23822 Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Proposed Rules 

Center frequency 

(MHz) 

Channel Nos. 

employed 

Lower 

frequency 

(MHz) 

Upper 

frequency 

(MHz) 

4975 .............................................................................. 11 & 12 ......................................................................... 4970 4980 

4980 .............................................................................. 12 & 13 ......................................................................... 4975 4985 

4985 .............................................................................. 13 to 18 1 ...................................................................... 4980 4990 

1 These channels should only be used if all other channels are blocked. 

(3) 15 MHz bandwidth aggregation: 

Center frequency 

(MHz) 

Channel Nos. 

employed 

Lower 

frequency 

(MHz) 

Upper 

frequency 

(MHz) 

4947.5 ........................................................................... 1 to 7 1 .......................................................................... 4940 4955 

4952.5 ........................................................................... 6 to 8 ............................................................................ 4945 4960 

4957.5 ........................................................................... 7 to 9 ............................................................................ 4950 4965 

4962.5 ........................................................................... 8 to 10 .......................................................................... 4955 4970 

4967.5 ........................................................................... 9 to 11 .......................................................................... 4960 4975 

4972.5 ........................................................................... 10 to 12 ........................................................................ 4965 4980 

4977.5 ........................................................................... 11 to 13 ........................................................................ 4970 4985 

4982.5 ........................................................................... 12 to 18 1 ...................................................................... 4975 4990 

1These channels should only be used if all other channels are blocked. 

(4) 20 MHz bandwidth aggregation: 

Center frequency 

(MHz) 

Channel Nos. 

employed 

Lower 

frequency 

(MHz) 

Upper 

frequency 

(MHz) 

4950 .............................................................................. 1 to 8 1 .......................................................................... 4940 4960 

4955 .............................................................................. 6 to 9 ............................................................................ 4945 4965 

4960 .............................................................................. 7 to 10 .......................................................................... 4950 4970 

4965 .............................................................................. 8 to 11 .......................................................................... 4955 4975 

4970 .............................................................................. 9 to 12 .......................................................................... 4960 4980 

4975 .............................................................................. 10 to 13 ........................................................................ 4965 4985 

4980 .............................................................................. 11 to 18 1 ...................................................................... 4970 4990 

1These channels should only be used if all other channels are blocked. 

[FR Doc. E9–11907 Filed 5–20–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 070910507–81216–02] 

RIN 0648–AV94 

Endangered and Threatened Wildlife 

and Plants: Proposed Rulemaking to 

Establish Take Prohibitions for the 

Threatened Southern Distinct 

Population Segment of North American 

Green Sturgeon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments; notice of availability of a 

draft environmental assessment. 

SUMMARY: Under section 4(d) of the 

Endangered Species Act (ESA), the 

Secretary of Commerce (Secretary) is 

required to adopt such regulations as he 

deems necessary and advisable for the 

conservation of species listed as 

threatened. This proposed ESA 4(d) rule 

represents the regulations that we, the 

National Marine Fisheries Service 

(NMFS), believe necessary and 

advisable to conserve the threatened 

Southern Distinct Population Segment 

of North American green sturgeon 

(Acipenser medirostris; hereafter 

Southern DPS). We propose to apply the 

prohibitions listed under ESA sections 

9(a)(1)(A) through 9(a)(1)(G) for the 

Southern DPS, and we highlight specific 

categories of activities that are likely to 

result in take of Southern DPS fish. We 

do not find it necessary and advisable 

to apply the take prohibitions to certain 

categories of activities that contribute to 

conserving the Southern DPS. We also 

propose a variety of methods by which 

take of the Southern DPS may be 

authorized. 

We announce the availability of a 

draft environmental assessment (EA) 

that analyzes the environmental impacts 

of promulgating these proposed 4(d) 

regulations for the Southern DPS. 

Finally, we solicit comments regarding 

the draft EA and this proposed rule. 

DATES: Comments regarding the 

proposed rule and supporting 

documents may be sent to the 

appropriate address or fax number (see 

ADDRESSES), no later than 5 p.m. Pacific 

Standard Time on July 20, 2009. A 

public hearing will be held promptly if 

any person so requests by July 6, 2009. 

Notice of the location and time of any 

such hearing will be published in the 

Federal Register not less than 15 days 

before the hearing is held. 

ADDRESSES: You may submit comments, 

identified by RIN 0648–AV94, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Facsimile (fax): 562–980–4027, 

Attn: Melissa Neuman. 


dwashington3 on PROD1PC60 with PROPOSALS-1
Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Proposed Rules 23823 

• Mail: Submit written comments to 

Chief, Protected Resources Division, 

Attn: Melissa Neuman, Southwest 

Region, National Marine Fisheries 

Service, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

We will accept anonymous comments 

(enter N/A in the required fields, if you 

wish to remain anonymous). 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

A list of reference materials regarding 

this proposed rule can be obtained via 

the Internet at http:// 

www.swr.nmfs.noaa.gov or by 

submitting a request to the Assistant 

Regional Administrator, Protected 

Resources Division, Southwest Region, 

NMFS, 501 West Ocean Blvd., Suite 

4200, Long Beach, CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115 or Lisa Manning, 

NMFS, Office of Protected Resources 

(301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

We determined that the Southern DPS 

is at risk of extinction in the foreseeable 

future throughout all or a significant 

portion of its range and listed the 

species as threatened under the ESA on 

April 7, 2006 (71 FR 17757). At that 

time we summarized the process for 

considering the application of ESA 

section 9 prohibitions to the threatened 

Southern DPS. In the case of threatened 

species, ESA section 4(d) states that the 

Secretary shall decide whether, and to 

what extent, to extend the section 9(a) 

prohibitions, including those regarding 

take, to the species, and authorizes us to 

issue regulations we consider necessary 

and advisable for the conservation of the 

species. Such regulations may include 

any or all of the prohibitions that 

automatically apply to endangered 

species. Those prohibitions, in part, 

make it illegal for any person subject to 

the jurisdiction of the United States to 

take the listed species. The term ‘‘take’’ 

means to harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect, or attempt to engage in any such 

conduct. (16 U.S.C. 1532(19)). The term 

‘‘harm’’ is defined as any act which kills 

or injures fish or wildlife. Such an act 

may include significant habitat 

modification or degradation that results 

in death or injury of wildlife by 

significantly impairing essential 

behavioral patterns, including breeding, 

spawning, rearing, migrating, feeding, or 

sheltering. (50 CFR 222.102). 

Whether take prohibitions or other 

protective regulations are necessary or 

advisable is in large part dependent on 

the biological status of the species and 

potential impacts of various activities 

on the species. Green sturgeon have 

persisted for millions of years through 

cycles of naturally occurring 

perturbations that have likely presented 

short- and long-term challenges to the 

species’ survival. We conclude that the 

threatened Southern DPS of North 

American green sturgeon is currently at 

risk of extinction primarily because of 

human-induced ‘‘takes’’ involving 

elimination of freshwater spawning 

habitat, degradation of freshwater and 

estuarine habitat quality, water 

diversions, fishing, and other causes. 

Therefore, we conclude that extending 

the take prohibitions to the Southern 

DPS is necessary and advisable. 

When the final rule to list the 

Southern DPS was published on April 7, 

2006, we solicited the public for 

information that would inform the ESA 

section 4(d) rulemaking. Specifically, 

we requested information regarding: (1) 

green sturgeon spawning habitat within 

the range of the Southern DPS that was 

present in the past, but may have been 

lost over time; (2) biological or other 

relevant data concerning any threats to 

the Southern DPS; (3) current or 

planned activities within the range of 

the Southern DPS and their possible 

impact on the Southern DPS; (4) efforts 

being made to protect the Southern DPS; 

(5) necessary prohibitions on take to 

promote the conservation of the 

Southern DPS; (6) quantitative 

evaluations describing the quality and 

extent of freshwater and marine habitats 

(occupied currently or occupied in the 

past, but no longer occupied) for 

juvenile and adult Southern DPS fish; 

(7) activities that could be affected by an 

ESA section 4(d) rule; and (8) the 

economic costs and benefits of 

additional requirements of management 

measures likely to result from protective 

regulations. No substantive additional 

comments, beyond those that had been 

received during prior solicitations for 

information, were received. 

Public scoping workshops held on 

May 31 and June 1, 2006, helped 

advance our understanding of the 

threats that are likely to result in the 

take of Southern DPS fish. In cases 

where evidence of direct take due to a 

particular activity was lacking, activities 

that have caused take in species that use 

similar habitats (i.e., migratory, 

spawning, and rearing), consume 

similar prey types, have similar 

morphologies and/or physiologies, and/ 

or share other life history requirements 

(e.g., white sturgeon (Acipenser 

transmontanus) and chinook salmon 

(Oncorhynchus tshawytscha)) were 

identified and considered for their 

effects on Southern DPS fish. More 

detailed justification regarding the use 

of take information for surrogate species 

(i.e. one that shares a similar life history 

or habitat requirement) to infer the take 

potential of an activity on the Southern 

DPS fish is provided in previous 

Federal Register notices (70 FR 17386, 

April 6, 2005; 71 FR 17757, April 7, 

2006). 

We conclude that the threatened 

Southern DPS of North American green 

sturgeon is at risk of extinction 

primarily because its populations have 

been reduced by human ‘‘take,’’ through 

activities that include, but are not 

limited to: (1) commercial and 

recreational fisheries activities that 

directly target or incidentally catch 

Southern DPS fish; (2) tribal fisheries 

activities that directly target or 

incidentally catch Southern DPS fish; 

(3) poaching; (4) collecting or handling 

Southern DPS fish for activities such as 

research, monitoring, and emergency 

rescues; (5) habitat-altering activities 

that result in the elimination, 

obstruction or delay of passage of adult 

Southern DPS fish to and from 

spawning areas, or otherwise result in 

the inability of adult Southern DPS fish 

to migrate to and from spawning areas; 

(6) habitat-altering activities that result 

in the destruction, modification or 

curtailment of spawning or rearing 

habitat for egg, larval or juvenile stages; 

(7) habitat altering activities that result 

in the elimination, obstruction or delay 

of downstream passage of larval or 

juvenile stages of Southern DPS fish; (8) 

entrainment and impingement of any 

life stage of Southern DPS fish during 

the operation of water diversions, 

dredging or power generating projects; 

(9) application of pesticides adjacent to 

or within waterways that contain any 

life stage of Southern DPS fish at levels 

that adversely affect the biological 

requirements of the Southern DPS; (10) 

discharge or dumping of toxic chemicals 

or other pollutants into waters or areas 

that contain Southern DPS fish; and (11) 

introducing or releasing non-native 

species likely to alter the Southern DPS’ 


dwashington3 on PROD1PC60 with PROPOSALS-1
23824 Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Proposed Rules 

habitat or to compete with the Southern 

DPS for space or food. 

Spatial Context for Proposed 4(d) Rule 

Application 

As described in a Federal Register 

notice (68 FR 4433) published on 

January 23, 2003, we determined that 

based on genetic and behavioral 

information, North American green 

sturgeon is comprised of at least two 

DPSs that qualify as species under the 

ESA: (1) a northern DPS consisting of 

populations originating from coastal 

watersheds northward of and including 

the Eel River (‘‘Northern DPS’’); and (2) 

a southern DPS consisting of 

populations originating from coastal 

watersheds south of the Eel River 

(‘‘Southern DPS’’) and the Central 

Valley of California. These geographic 

boundaries were largely defined by 

genetic evidence indicating that, among 

samples from rivers where green 

sturgeon are known to spawn (i.e. the 

Rogue, Klamath, and Sacramento 

rivers), the Rogue and Klamath River 

fish were more similar to one another 

than to the Sacramento River fish (Israel 

et al., 2004). Although the Southern DPS 

boundaries are defined by the species’ 

genetic structure and its likely strong 

homing capabilities and spawning site 

fidelity, the spatial extent of the ESA 

listing and proposed take prohibitions 

for the Southern DPS is not confined to 

areas south of the Eel River. Southern 

DPS subadults and adults tagged in San 

Pablo Bay, a northern extension of San 

Francisco Bay, have been tracked in 

estuarine and marine waters far north of 

the Eel River (Lindley et al., 2008), and 

preliminary genetic mixed stock 

analyses indicate that a proportion of 

green sturgeon in many estuaries north 

of the Eel River DPS boundary are of 

Southern DPS origin (J. Israel, UC Davis, 

2006, unpublished data). 

Tracking data, genetic mixed stock 

analysis, and direct observation indicate 

that Southern DPS fish occur in 

freshwater rivers and coastal estuaries 

and bays along the west coast of North 

America, including, but not limited to: 

San Pablo Bay, CA; Suisun Bay, CA; San 

Francisco Bay, CA (Radtke, 1966; CDFG, 

2002; Kelly et al., 2006; J. McLain, 

USFWS, 2006, unpublished data; 

Department of Water Resources Bay 

Delta and Tributaries data base, 2005, 

http://bdat.ca.gov/index.html); the 

Sacramento-San Joaquin Delta in the 

Central Valley California (Radtke, 1966; 

CDFG, 2002; Wang, 2006); Sacramento 

River, CA (USFWS, 1992; Adams et al., 

2002; Gaines and Martin, 2002; Israel et 

al., 2004; Heublein et al., in press); 

lower Feather River, CA (Adams et al., 

2006; A. Seeholtz, CDWR, 2008, 

unpublished data; FERC, 2008, 

unpublished data); lower Yuba River, 

CA (Adams et al., 2002; CDFG, 2002; G. 

Reedy, South Yuba River Citizens 

League, 2006, unpublished data); 

Humboldt Bay, CA (Moyle et al., 1992; 

B. Pinnix, USFWS, 2008, unpublished 

data; S. Lindley, NMFS, 2008, 

unpublished data); Coos Bay, OR 

(Lindley and Moser, 2006); Winchester 

Bay, OR (Lindley and Moser, 2006; J. 

Israel, UC Davis, 2006, unpublished 

data); Yaquina Bay, OR (Emmett et al., 

1991; ODFW, 2002; D. M. Nelson, 2008, 

Letter to Steve Stone; J. Hightower, 

USGS, 2006, unpublished data); lower 

Columbia River and estuary, OR and 

WA (Israel et al., 2004; Lindley and 

Moser, 2006; WDFW, 2006, unpublished 

data; ODFW, 2006, unpublished data); 

Willapa Bay, WA (Lindley and Moser, 

2006; J. Israel and B. May, UC Davis, 

2006, unpublished data; WDFW, 

unpublished data; ODFW, unpublished 

data); Grays Harbor, WA (Lindley and 

Moser, 2006; J. Israel and B. May, UC 

Davis, 2006, unpublished data); and 

Puget Sound, WA (Lindley and Moser, 

2006). Southern DPS fish also occur in 

coastal waters within 110 meters depth 

from Monterey Bay, CA, to Yakutat Bay, 

AK (Lindley and Moser, 2006; Lindley 

et al., 2008), including the Strait of Juan 

de Fuca, WA. 

Green sturgeon have also been 

observed or collected in the following 

coastal rivers, estuaries, and marine 

waters; however, in many of these cases, 

individuals were not identified to the 

DPS level: Elkhorn Slough, CA (Moyle 

et al., 1992; Yoklavich et al., 2002; S. 

Lindley, NMFS, 2008, unpublished 

data; C. Raifsnider and J. Steinbeck, 

Tenera Environmental, 2006, personal 

communication); Tomales Bay, CA 

(Moyle et al., 1992; J. McLain,USFWS, 

2006, unpublished data); Noyo Harbor, 

CA (Moyle et al., 1992; D. Catania, 

California Academy of Sciences, 2006, 

personal communication); Eel River, CA 

(Moyle et al., 1992; Adams et al., 2006); 

Klamath/Trinity River, CA (Nakamoto et 

al., 1995; VanEenenaam et al., 2001; 

Adams et al., 2002; Adams et al., 2006; 

VanEenenaam et al., 2006; Benson et al., 

2007); Rogue River, OR (Rien et al.; 

2001; Adams et al., 2002; Erickson et al., 

2002; Adams et al., 2006; Erickson and 

Hightower, 2007; Erickson and Webb, 

2007; Webb and Erickson, 2007); 

Siuslaw River, OR (Emmett et al., 1991; 

S. Lindley and M. Moser, NMFS, 2008, 

unpublished data); Alsea River, OR 

(Emmett et al., 1991; D. M. Nelson, 

2008, Letter to Steve Stone); Tillamook 

Bay, OR (Emmett et al., 1991; ODFW, 

1997; ODFW, 2002; D. M. Nelson, 2008, 

Letter to Steve Stone); coastal waters 

within 110 m depth from the California/ 

Mexico border to Monterey Bay, CA 

(Roedel, 1941; Norris, 1957; R. 

Rasmussen, NMFS, 2006, unpublished 

data); and coastal waters northwest of 

Yakutat Bay, AK, including portions of 

the Gulf of Alaska, and the Bering Sea 

(J. Ferdinand and D. Stevenson, NMFS, 

2006, unpublished data). 

Evaluation of Activities 

While this proposal applies the take 

prohibitions to any activity that takes 

the Southern DPS, we wanted to 

determine which activities would most 

likely impede efforts necessary to 

conserve and recover the Southern DPS. 

To do this, we considered the following 

questions: (1) For which activities do we 

have evidence of take of Southern DPS 

fish; (2) for those activities where 

evidence of Southern DPS take does not 

exist, is there evidence of take of 

surrogate species that share similar 

biological requirements with Southern 

DPS fish; (3) are protective/conservation 

measures underway to reduce or 

minimize take imposed by some 

activities; and (4) are there additional 

protective/conservation measures that, 

if taken, would reduce take to low 

enough levels such that particular 

activities could proceed without 

appreciably reducing the likelihood of 

survival and recovery of the Southern 

DPS? 

Commercial and Recreational Fisheries 

Activities 

Take of Southern DPS fish occurs 

during commercial and recreational 

fishing activities throughout the range of 

North American green sturgeon. 

However, quantifying fishery-related 

take reliably and assessing its effects is 

challenging because: (1) Northern and 

Southern DPS fish are morphologically 

indistinguishable from one another and 

when green sturgeon have been taken, 

they have rarely been identified to the 

DPS level; (2) until recently some 

fisheries did not report green sturgeon 

take, and (3) in cases where data on take 

of green sturgeon is available, methods 

for estimating the total annual take by 

a fishery are still being developed. The 

two DPSs co-inhabit some coastal areas 

and bays in Northern California, 

Oregon, and Washington, and the 

proportion of Southern DPS fish 

contributing to overall populations in 

these areas may be high (e.g., 80 percent 

in the Columbia River; J. Israel, UC 

Davis, 2008, unpublished data). Thus, 

while we know that fisheries-related 

take is occurring, we are uncertain how 

this take is apportioned between the two 

DPSs, different locales, and different 

types of fisheries. 


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Green sturgeon are taken as bycatch in 

white sturgeon fisheries, salmon gillnet 

fisheries, coastal groundfish trawl 

fisheries, and coastal California halibut 

set net fisheries (Adams et al., 2006; R. 

Rasmussen, NMFS, 2006, unpublished 

data; J. Ferdinand et al., NMFS, 2006, 

unpublished data). These fisheries have 

taken large numbers of green sturgeon 

historically and have been cited as 

factors in the decline of the species (70 

FR 17386, April 6, 2005; 71 FR 17757, 

April 7, 2006). For example, from 1985 

to 1993, the harvest of green sturgeon in 

commercial fisheries in the Columbia 

River and in Washington ranged from 

3,000 to over 7,500 fish per year. Sport 

fishing harvest during the same period 

ranged from less than 100 to over 500 

fish, with the majority harvested from 

the Columbia River. Since 1993, 

commercial and sport harvest of green 

sturgeon has declined in the Columbia 

River and Washington fisheries to about 

150 fish harvested in 2003 (Adams et al. 

2006). 

State recreational and commercial 

fishing regulations have been revised in 

response to evidence of recent sturgeon 

declines and to the listing of the 

Southern DPS. In California, the 

California Fish and Game Commission 

approved revised regulations, effective 

March 1, 2007, to prohibit retention of 

green sturgeon, alter the slot (size) limit 

(142 cm) and bag limit (one individual 

daily; 3 individuals annually) for white 

sturgeon, and require implementation of 

a sturgeon report card system. The 

Washington Fish and Wildlife 

Commission adopted a permanent rule 

to prohibit retention of green sturgeon 

in recreational fisheries statewide 

effective May 1, 2007. In addition, the 

Washington Department of Fish and 

Wildlife and Oregon Department of Fish 

and Wildlife voted to prohibit the 

retention of green sturgeon in Columbia 

River recreational fisheries from 

Bonneville Dam to the mouth of the 

river, effective January 1, 2007. For 

commercial fisheries, the retention of 

green sturgeon has been prohibited in 

the Columbia River by emergency rule 

since July 2006 and statewide in 

Washington by permanent rule since 

January 26, 2007. The State of California 

has prohibited commercial fishing for 

sturgeon since 1917. While these 

emergency and permanent rules offer 

Southern DPS fish protection, it is 

unclear whether the state closures will 

remain in effect over the long-term and 

ultimately what overall effect the 

closures will have on the Southern DPS. 

Commercial groundfish trawl fisheries 

occurring in coastal waters along the 

West coast of North America take green 

sturgeon. Fish are primarily caught as 

bycatch off the coast of California. Over 

a 6–year period, from 2001–2007, 450 

green sturgeon were reported as bycatch in trawls off the California coast. 

Almost all green sturgeon caught in this 

fishery are released alive (J. Majewski, 

NMFS, 2006, unpublished data), but the 

long-term fate of these individuals 

remains unknown. A program for 

monitoring green sturgeon take was 

established with the NMFS Observer 

Program in January 2007. Additional 

measures that may be implemented to 

protect green sturgeon and the Southern 

DPS include zero retention of green 

sturgeon in all fisheries, minimizing 

incidental catch, monitoring of 

incidental catch, increased enforcement, 

fisheries closures in areas important to 

the species, and outreach and education 

on proper catch and release methods 

and green sturgeon conservation issues. 

Tribal Fisheries 

Green sturgeon are taken as bycatch in 

tribal salmon and sturgeon fisheries 

conducted by the Quinault Tribe in 

coastal Washington waters. Tribal 

harvest of green sturgeon occurs in 

Grays Harbor and at the mouth of 

tributaries, primarily the Chehalis and 

Humptulips rivers. The number of green 

sturgeon taken annually from 1985 to 

2003 ranged from less than 10 to almost 

200 fish (Adams et al., 2006). In 2006, 

the Quinault Tribe implemented zero 

retention of green sturgeon for the Grays 

Harbor fishery (J. Schumacker, Quinault 

Indian Tribe, 2006, personal 

communication). A large proportion of 

green sturgeon caught in Grays Harbor 

may be Southern DPS fish, based on 

hydroacoustic tracking information 

(Lindley and Moser, 2006) and a genetic 

study indicating that approximately 50 

percent of green sturgeon sampled in 

Grays Harbor belong to the Southern 

DPS (J. Israel and B. May, UC Davis, 

2006, unpublished data). 

Green sturgeon are also taken, though 

rarely, in tribal commercial and 

subsistence salmon fisheries occurring 

in freshwater and coastal marine waters 

of Washington, including the Strait of 

Juan de Fuca, Georgia and Rosario 

straits, and Puget Sound (W. Beattie, 

NW Indian Fisheries Commission, 2008, 

personal communication). The Yurok 

and Hoopa Tribes harvest green 

sturgeon in the Klamath River in 

California, but most of the fish are 

believed to be Northern DPS green 

sturgeon (J. Israel, UC Davis, 2006, 

unpublished data). Overall, the take of 

green sturgeon in tribal fisheries has 

been low compared to non-tribal 

fisheries. Measures that may be 

implemented to conserve the Southern 

DPS include a commitment by the 

Quinault Tribe, and perhaps other 

Tribes within the occupied range of the 

Southern DPS, to minimize take and 

monitor incidental catch of green 

sturgeon over the long-term. 

Poaching 

Poaching is a potential threat to the 

Southern DPS. In recent years, several 

arrests have been made for illegal 

harvest of white sturgeon for their meat 

and roe from the Sacramento River 

(CDFG, 2003 and 2006), the SacramentoSan Joaquin Delta (CDFG, 2004), and the 

lower Columbia River (Cohen, 1997). In 

the lower Columbia River, an estimated 

2,000 sturgeon were killed over a 5–year 

period by poachers to produce caviar 

(Cohen, 1997). Poaching may be less 

significant than incidental take 

associated with white sturgeon 

sportfishing (Williamson, 2003). 

However, the tendency for green 

sturgeon to form aggregations for long 

periods of time may make them easy 

targets for poachers (Erickson et al., 

2002). Increased public outreach and 

awareness, increased enforcement, and 

heavier sentences and fines for poachers 

may help to protect green sturgeon from 

the threats of poaching. 

Research, Monitoring and Enforcement 

Activities 

Scientific research and monitoring of 

the Southern DPS contributes valuable 

information for the management, 

conservation, and future status reviews 

of the species. However, collection or 

handling associated with scientific 

research and monitoring constitutes take 

and may result in stress, injuries, or 

mortality of Southern DPS fish. In 

recent years, much research and 

monitoring effort has been placed on: (1) 

tracking the movements and habitat use 

of Southern DPS fish by using a variety 

of non-lethal tagging techniques; and (2) 

identifying the DPS of origin using nonlethal genetic sampling techniques. 

These two research and monitoring 

activities provide information crucial to 

the development of an effective recovery 

strategy for the species. The best 

available information indicates that 

these procedures, when done according 

to accepted protocols, result in minimal 

short-term stress to the fish and do not 

result in lethal take. Important scientific 

information (e.g., genetic, pathologic, 

taxonomic, meristic) is also gathered 

from already dead individuals, thereby 

providing valuable data without putting 

the species at further risk. 

Enforcement of the ESA and its 

implementing regulations is an essential 

component of protecting and recovering 


dwashington3 on PROD1PC60 with PROPOSALS-1
23826 Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 / Proposed Rules 

species once they are listed. 

Enforcement of this proposed regulation 

for the Southern DPS of green sturgeon 

may involve take. For example, when 

acting in the course of his or her official 

duties, a NMFS enforcement agent 

investigating an alleged ESA take 

violation may need to collect a Southern 

DPS fish or samples thereof as evidence 

of the violation. 

Emergency Rescue and Salvage 

Activities 

Emergency fish rescue activities, 

including aiding sick, injured, or 

stranded fish, disposing of dead fish, or 

salvaging dead fish for use in scientific 

studies, are forms of take. Rescue 

activities would benefit the Southern 

DPS in the event of emergency 

situations that result from natural 

disasters or national defense or security 

emergencies (see 50 CFR 402.05). 

Activities such as the rescue of fish 

stranded behind a man-made barrier 

(e.g., weirs, nets, dams) are not 

considered emergency fish rescue 

activities and should be subject to 

NMFS ESA review. 

Habitat-altering Activities 

Dams and water diversion structures 

have caused the elimination, 

obstruction, or delay of passage for 

green sturgeon and other sturgeon 

species and may reduce body condition 

and reproductive success. For example, 

dams and water diversion structures 

have been observed to obstruct or 

disrupt the upstream spawning 

migrations of shortnose sturgeon in the 

lower Cape Fear River, NC (Moser and 

Ross, 1995). White sturgeon have also 

been found stranded behind the 

Fremont Weir in the Yolo Bypass, CA 

(Harrell and Sommer, 2006). 

Disruptions in migration may cause fish 

to stop their upstream migration or may 

delay access to spawning habitats 

(Moser and Ross, 1995). The inability to 

reach spawning habitats may cause fish 

to spawn in habitats of lower quality, 

resulting in decreased recruitment 

(Cooke and Leach, 2004). Several dams 

and water diversion structures exist 

along the spawning migration route of 

the Southern DPS and would be 

expected to have detrimental effects 

similar to those observed in surrogate 

species. Fish passage studies at the Red 

Bluff Diversion Dam (RBDD) in the 

Sacramento River show that the RBDD 

blocks the upstream migration of the 

Southern DPS when the gates are 

lowered between May 15 and September 

15 (Heublein et al., 2006; Brown, 2007). 

Mitigation measures have been 

implemented, including the raising of 

RBDD gates from September 15 to May 

15 each year to allow fish passage and 

the protection and restoration of 

spawning and rearing habitat along the 

Sacramento River, bays, and the 

Sacramento-San Joaquin Delta. 

However, when the gates are raised, 

green sturgeon may become disoriented 

or suffer injuries due to the high 

velocity of water passing under the gates 

(M. Tucker, NMFS, 2007, personal 

communication). Between May 18 and 

June 10, 2007, carcasses of 10 adult 

Southern DPS fish (168–226 cm total 

length) were found at (n=2) or 

downstream (n=8) of RBDD (E. 

Campbell, USFWS, 2007, unpublished 

data). Locations of the retrieved 

carcasses and necropsy results suggest 

that the fish suffered mortality due to 

injuries inflicted by the gates at RBDD. 

Installation of adequate fish passage 

facilities, modification of existing 

passage facilities, or other provisions to 

specifically aid sturgeon passage at 

dams and diversions, and application of 

other mitigation measures, such as 

salvage operations, would contribute to 

the protection of the Southern DPS. 

The elimination, obstruction, or delay 

of downstream passage is a concern for 

larval and juvenile stages of the 

Southern DPS, as are habitat-altering 

activities that destroy, modify, or curtail 

spawning or rearing habitats for egg, 

larval, or juvenile stages. Specific 

concerns include, but are not limited to: 

increased sediment input or runoff into 

streams; filling in or isolation of stream 

channels, side channels, and 

intermittent waters; direct removal or 

alteration of physical structures; and 

obstruction of downstream migration. 

Increased input or runoff of fine 

sediments into streams may result from 

a number of activities including, but not 

limited to, mining, logging, farming, 

grazing, and bridge and road 

construction. Increased erosion and 

sediment input or runoff into streams 

caused by land use and other human 

activities have been found to reduce the 

survival and successful development of 

eggs and embryos of salmon and other 

fish species (Scrivener and Brownlee, 

1989; Owen et al., 2005). The effects on 

green sturgeon eggs and embryos are 

likely to be similar. Green sturgeon eggs 

are large and dense and likely sink into 

rock crevices or attach to hard surfaces 

(Deng et al., 2002; Kynard et al., 2005). 

Once hatched, green sturgeon embryos 

remain near the bottom and use rocks as 

cover (Kynard et al., 2005). Excess fine 

sediments can compromise successful 

development by burying alreadydeposited eggs , reducing interstitial 

dissolved oxygen available for eggs 

(Scrivener and Brownlee, 1989), or 

filling areas used by embryos for cover. 

Thus, Southern DPS eggs or embryos 

may be taken due to habitat-altering 

activities that increase input of fine 

sediments or runoff into spawning or 

rearing habitat. The effect that increased 

input of fine sediments or runoff has at 

the individual, population and species 

levels will depend on the temporal and 

spatial extent of habitat change. The 

only way to determine this is to analyze 

particular activities on a case-by-case 

basis. 

The filling in or isolation of stream 

channels, side channels, and 

intermittent waters may destroy or block 

access to rearing habitats, or impede or 

delay downstream migration by 

trapping larvae and juveniles that have 

entered these areas. Activities that fill in 

or isolate waters include, but are not 

limited to, the installation of tide gates, 

culverts, and debris- or sedimenttrapping road crossing structures. These 

activities and their effects are a concern 

for listed salmon and steelhead and may 

also affect larval and juvenile Southern 

DPS fish. However, we currently lack 

the information needed to quantitatively 

assess these effects. Although relatively 

large numbers of juveniles have been 

collected in shallow areas of the Santa 

Clara shoal in the Sacramento-San 

Joaquin Delta (Radtke, 1966), the use of 

stream channels, side channels, and 

intermittent waters as rearing habitat by 

green sturgeon larvae and juveniles has 

not been documented. Information 

regarding the use of these habitats by 

early life stages of green sturgeon is 

needed. 

Direct removal or alteration of 

physical structures essential to the 

integrity and function of the Southern 

DPS’s spawning or rearing habitat, 

including rocks, soil, gravel, and 

vegetation, may adversely affect the 

growth and survival of larvae and 

juveniles. Green sturgeon likely use 

specific substrate types at different life 

stages, but observations of early life 

stages of green sturgeon in the field are 

lacking. Studies suggest that spawning 

most likely occurs over cobble 

substrates that provide crevices and 

cover for eggs (Kynard et al., 2005; 

Nguyen and Crocker, 2006). However, in 

a laboratory study of substrate use by 

post-hatch larval green sturgeon, growth 

and survival was greatest in flat slaterock substrates that provided cover and 

sufficient foraging opportunities 

(Nguyen and Crocker, 2006). Survival 

was low in cobble substrates, because 

larvae became trapped in crevices and 

died; whereas in sand substrates, the 

cause of lower survival and growth was 

attributed to the ingestion of sand 

particles similar in size to food particles 

(Nguyen and Crocker, 2006). Juveniles 


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likely use deep pool habitats with rock 

structure during the winter (Kynard et 

al., 2005). Removal or alteration of these 

physical structures (i.e. cobble for 

spawning and egg development; flat 

rock for larval rearing; deep pool 

habitats with rock structure for juvenile 

rearing) may reduce spawning or rearing 

success rates. Information regarding the 

use of spawning habitats by Southern 

DPS early life stages and the effects of 

removing or altering physical 

components of Southern DPS spawning 

habitat on recruitment success is 

needed. 

The construction and maintenance of 

dams and water diversion structures 

may impede or delay downstream 

migration and alter habitats important to 

larval and juvenile stages of the 

Southern DPS. Dams and water 

diversions may block downstream 

migration of larvae and juveniles, unless 

fish transport or bypass facilities exist. 

Passage across dams and water 

diversion structures may also disorient 

or injure larvae and juveniles and make 

them more vulnerable to predation, as 

has been observed for juvenile 

salmonids at RBDD (Bigelow and 

Johnson, 1996; Gaines and Martin, 

2002). The actual construction of dams 

and water diversion structures may 

cause increased erosion and 

sedimentation and disrupt or alter 

physical structures in spawning or 

rearing habitats, with effects as 

described in the previous paragraphs. 

While existing laws require mining, 

timber harvest, and other resource use 

plans to address erosion and other 

adverse impacts on stream habitats, 

these laws may not be adequate to 

protect the Southern DPS. Additional 

measures that would help reduce 

potential adverse impacts on Southern 

DPS fish are: (1) protection of riparian 

habitat by limiting activities that cause 

erosion, sediment input or runoff into 

streams, or roadway and other linear 

development near or across streams; (2) 

construction of fish protection and 

passage facilities; and (3) limiting the 

temporal and/or spatial scopes of 

habitat alteration activities that occur in 

and near spawning and rearing 

locations. 

Habitat Restoration 

The primary purpose of habitat 

restoration is to restore natural aquatic 

or riparian habitat conditions or 

processes over the long-term. 

Specifically, we define habitat 

restoration as the process of 

reestablishing a self-sustaining habitat 

that closely resembles natural 

conditions in terms of structure and 

function for the Southern DPS. A variety 

of habitat-altering activities such as 

barrier removal or modification to 

restore natural water flows, river and 

estuarine bed restoration, natural bank 

protection, restoration of native 

vegetation, removal of non-native 

species, and removal of contaminated 

sediments have been used to reestablish 

natural river and estuarine functions 

over the long-term. Although take of 

green sturgeon could potentially occur 

during the course of completing 

restoration activities, we do not have 

evidence that these types of activities 

have taken the Southern DPS or a 

surrogate species. It is likely that these 

activities are important to the 

conservation and recovery of the 

Southern DPS. 

Entrainment and Impingement Risks 

The operation of water diversions, 

power generating projects, and dredging 

activities pose entrainment and 

impingement threats to all life stages of 

the Southern DPS. We define 

entrainment to mean the incidental 

trapping of any life stage of fish within 

waterways or structures that carry water 

being diverted for anthropogenic use. 

We define impingement to mean the 

entrapment of any life stage of fish on 

the outer part of any structure (e.g., 

intake structures, screening devices) 

that separates water traveling a natural 

course of passage from water that is 

being diverted for anthropogenic use. 

Unscreened water diversions number in 

the hundreds to thousands in the 

Sacramento River and the SacramentoSan Joaquin Delta (Herren and 

Kawasaki, 2001). Factors that determine 

the entrainment risk of fish at diversions 

include the location and size of fish. A 

study of fish entrainment at an 

unscreened diversion in the Sacramento 

River documented entrainment of fish 

ranging in size from 9 to 59 mm fork 

length (FL) in July 2000 and 2001 

(Nobriga et al., 2004). Green sturgeon 

were not among the species documented 

in the study, but Southern DPS larvae 

and small juveniles within the size 

range of 9–59 mm FL occur in the 

Sacramento River at that time of year 

and are believed to also be at risk of 

entrainment at unscreened diversions. 

Entrainment of juvenile green sturgeon 

has been documented at the state and 

Federal fish facilities in the south 

Sacramento-San Joaquin Delta, where 

fish are salvaged before they enter the 

pumps (Adams et al., 2006). Programs to 

install fish screens at water diversions 

are being implemented and many major 

diversions have already been screened. 

Installation of fish screens, construction 

of bypass and other fish protection 

facilities (Bigelow and Johnson, 1996; 

Gaines and Martin, 2002), adjustments 

in the timing of operations, and 

continuation of fish salvage operations, 

where applicable, would help minimize 

and mitigate entrainment of Southern 

DPS fish at water diversions. 

Evidence exists for the impingement 

of green sturgeon in the operation of 

coastal power plants using cooling 

water intake systems. Two juvenile 

green sturgeon were impinged and died 

on cooling water intake screens at the 

now retired Contra Costa Plant Units 1– 

5 in 1978–1979 and at the Moss Landing 

Power Plant in 2006 (C. Raifsnider and 

J. Steinbeck, Tenera Environmental, 

2006, personal communication). Current 

conservation efforts include the 

installation of screens to reduce 

entrainment, studies of fish 

impingement and entrainment at power 

plants, and laws that require the 

minimization of fish impingement and 

entrainment. Other actions that can be 

taken to reduce impingement and 

entrainment include altering the time of 

day when water intake pumps are 

operated, altering the velocity of water 

intake, and the use of alternative cooling 

systems that do not require water intake. 

Dredging operations in freshwater 

rivers, bays, and estuaries where 

Southern DPS fish occur may pose 

entrainment risk. Although entrainment 

of green sturgeon in dredging operations 

has not been documented, the effects 

could be significant. Approximately two 

thousand juvenile white sturgeon were 

entrained during operation of a large 

suction dredge in the lower Columbia 

River (Buell, 1992). Juvenile green 

sturgeon would be expected to face 

similar entrainment risks from dredging 

operations because they are also bottomoriented and occur in habitats similar to 

white sturgeon. Long-term management 

strategies for San Francisco Bay 

dredging operations have established 

regional environmental work windows, 

or periods of time when certain fish 

species are not likely to be present in a 

location. Currently, it is believed that 

Southern DPS juveniles reside in San 

Francisco, Suisun, and San Pablo bays 

year-round so environmental work 

windows will likely not be effective in 

reducing the risks of dredging 

operations to the Southern DPS in these 

locations. However, the use of specific 

types of dredging equipment with 

modified designs would reduce the 

entrainment risk to Southern DPS fish 

from dredging operations. 

Pesticides and Discharge of Pollutants 

The application of pesticides adjacent 

to or within waterways that contain any 

life stage of the Southern DPS may 

adversely affect their growth and 


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reproductive success. Several pesticides 

have been detected in the Sacramento 

River Basin at levels that are likely to be 

harmful to aquatic life (Domagalski et 

al., 2000). The accumulation of 

industrial chemicals and pesticides 

such as polychlorinated biphenyls 

(PCBs), dichloro-diphenyltrichloroethanes (DDTs), and chlordanes 

in white sturgeon gonad, liver, and 

muscle tissues affects growth and 

reproductive development and results 

in lower reproductive success (Fairey et 

al., 1997; Foster et al., 2001a; Foster et 

al., 2001b; Kruse and Scarnecchia, 2002; 

Feist et al., 2005; Greenfield et al., 

2005). Green sturgeon are believed to 

experience similar risks from 

contaminants, although their exposure 

may be reduced because a greater 

proportion of their subadult and adult 

lives are spent in marine waters (70 FR 

17386, April 6, 2005). Pesticides may 

also indirectly affect green sturgeon 

through effects on their prey species. 

For example, green sturgeon are 

believed to enter Willapa Bay to feed on 

burrowing ghost shrimp (Neotrypaea 

californiensis), which have declined in 

abundance due to the deliberate 

application of carbaryl (Moser and 

Lindley, 2006). 

The discharge or dumping of toxic 

chemicals or other pollutants into 

waters and areas where Southern DPS 

fish occur would be expected to reduce 

their growth and reproductive success. 

Pollutants including mercury, selenium, 

and arsenic have been detected in white 

sturgeon gonad, liver, and muscle 

tissues and are believed to affect growth, 

reproductive development, and 

reproductive success (Fairey et al., 

1997; Davis et al., 2002; Kruse and 

Scarnecchia, 2002; Greenfield et al., 

2005; Webb et al., 2006). Again, the 

effects on green sturgeon are likely to be 

similar. 

Under the Federal Clean Water Act, 

acceptable levels for contaminants in 

waterways have been established by the 

States and the U.S. Environmental 

Protection Agency (EPA). Entities must 

also obtain National Pollutant Discharge 

Elimination System (NPDES) permits to 

discharge contaminants. However, 

NPDES permits are not required for 

irrigated agriculture and agricultural 

stormwater runoff. Furthermore, the 

national standards for use of pesticides 

and toxic substances may not be 

conservative enough to adequately 

protect the Southern DPS as was found 

for listed salmonids in recent draft and 

final jeopardy biological opinions 

issued by NMFS to the EPA (NMFS 

1998, NMFS 2000, NMFS 2008). Thus, 

programs to aid agricultural producers 

in meeting NMFS-imposed water 

quality standards may be required to 

minimize adverse impacts on the 

Southern DPS. 

Non-native Species Introductions 

Non-native species are a continuing 

problem in freshwater rivers and coastal 

bays and estuaries and may affect the 

Southern DPS through trophic 

interactions. Introduced species, such as 

striped bass in the Sacramento River 

and the Sacramento-San Joaquin Delta, 

may prey on green sturgeon. Non-native 

species may also replace prey species of 

green sturgeon and result in greater 

bioaccumulation of contaminants. For 

example, Potamocorbula amurensis, a 

non-native bivalve, has become 

widespread in the San Francisco Bay 

and the Sacramento-San Joaquin Delta 

and has replaced other common prey 

items for white sturgeon. P. amurensis 

is an efficient bioaccumulator of 

selenium, a reproductive toxin that 

causes deformities in embryos and 

reduced hatchability of eggs, and has 

been linked with increased selenium 

levels in white sturgeon (Linville et al., 

2002). P. amurensis has also been 

identified in the gut contents of at least 

one green sturgeon (CDFG, 2002). Nonnative species may also alter the 

Southern DPS’ habitat or compete with 

the Southern DPS for space or food. 

Although existing laws prohibit the 

release of non-native species into the 

environment, accidental and intentional 

introduction of non-native species 

remains a problem. Eradication 

programs for non-native species, 

increased public education and 

outreach, and increased fines or 

penalties for the release of non-native 

species would help to alleviate this 

problem. 

Proposed 4(d) Protective Regulations 

for the Southern DPS 

We propose to apply the prohibitions 

listed under ESA sections 9(a)(1)(A) 

through 9(a)(1)(G) for the Southern DPS, 

including all the ESA section 9(a)(1)(B) 

and 9(a)(1)(C) prohibitions (the ‘‘take 

prohibitions’’) except for specific 

activities described below (see 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements). ESA section 

9(a)(1)(A) states that it is unlawful to 

import or export endangered species 

into or from the United States; ESA 

section 9(a)(1)(B) states that it is illegal 

to take endangered species within the 

United States or the territorial sea of the 

United States; ESA section 9(a)(1)(C) 

states that it is illegal to take endangered 

species upon the high seas; ESA section 

9(a)(1)(D) states that it is illegal to 

possess, sell, deliver, carry, transport, or 

ship, by any means whatsoever, 

endangered species taken in violation of 

9(a)(1)(A) and 9(a)(1)(C); ESA section 

9(a)(1)(E) states that it is illegal to 

deliver, receive, carry, transport, or ship 

in interstate or foreign commerce by any 

means whatsoever and in the course of 

a commercial activity, endangered 

species; ESA section 9(a)(1)(F) states 

that it is illegal to sell or offer for sale 

in interstate or foreign commerce, 

endangered species; and ESA section 

9(a)(1)(G) states that it is illegal to 

violate any regulation pertaining to 

endangered species or to any threatened 

species of fish or wildlife listed 

pursuant to section 4 of the ESA and 

promulgated by the Secretary pursuant 

to authority provided by the ESA. 

These prohibitions are necessary and 

advisable for the conservation of the 

Southern DPS because human ‘‘take’’ 

via activities including, but not limited 

to, detrimental habitat alteration, 

modification, and curtailment; fisheries 

catch and bycatch; application of 

pesticides, toxic chemicals, or other 

pollutants adjacent to or within 

waterways; entrainment or impingement 

of eggs or fish during water diversion 

operations, dredging, or power 

generation; unnecessary collection or 

handling; and introduction of nonnative species that disrupt trophic 

pathways, has contributed to the decline 

of the Southern DPS and is likely to 

impede its conservation and recovery. 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements 

We propose exceptions to the ESA 

section 9(a)(1)(B) and 9(a)(1)(C) 

prohibitions (the ‘‘take prohibitions’’) 

for specific activities. These proposed 

exceptions encompass specific activities 

that may be excluded from the take 

prohibitions for the Southern DPS 

through the relatively informal 

coordination process described below. 

In determining that it is necessary and 

advisable to not impose take 

prohibitions on certain activities, we are 

mindful that new information may 

require a reevaluation of that conclusion 

at any time. For any of the exceptions 

to the take prohibitions described 

below, we would evaluate on a regular 

basis the effectiveness of the activities 

in conserving and protecting the 

Southern DPS. If the activities are not 

effective in conserving and protecting 

the Southern DPS, we would identify 

ways in which the activities need to be 

altered or strengthened. For habitatrelated exceptions to the take 

prohibitions, changes may be required if 

the activities are not achieving desired 

habitat functionality or the habitat is not 

supporting population productivity 

levels needed to conserve the Southern 


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DPS. If the responsible agency does not 

make changes to respond adequately to 

the new information, we would publish 

notification in the Federal Register 

announcing the intention to impose take 

prohibitions on those activities. Such an 

announcement would provide for a 

comment period of not less than 30 

days, after which we would make a final 

determination whether to extend the 

ESA section 9(a)(1)(B) and (C) take 

prohibitions to the activities. We 

propose that take of the Southern DPS 

not be prohibited during the course of 

the following activities: 

(1) Federal, state or private-sponsored 

research or monitoring activities if they 

adhere to all of the following: (a) the 

activity must comply with required state 

reviews or permits; (b) the research or 

monitoring activity must be directed at 

the Southern DPS and not be incidental 

to research or monitoring of another 

species; (c) take of live mature adults in 

the lower Feather River from the 

confluence with the Sacramento River 

to the Oroville Dam (rkm 116), the lower 

Yuba River from the confluence with 

the Feather River to the Daguerre Dam 

(rkm 19), or Suisun, San Pablo, and San 

Francisco Bays or the Sacramento-San 

Joaquin Delta from the Golden Gate 

Bridge up into the Sacramento River to 

Keswick Dam (rkm 483) may only occur 

from July 1 through March 1 so as to 

substantially increase the likelihood 

that uninterrupted upstream spawning 

migrations of adults will occur; (d) take 

must be non-lethal; (e) take involving 

the removal of any life stage of the 

Southern DPS from the wild must not 

exceed 60 minutes; (f) take must not 

involve artificial spawning or 

enhancement activities; (g) a description 

of the study objectives and justification, 

a summary of the study design and 

methodology, estimates of the total nonlethal take of Southern DPS fish 

anticipated, estimates of incidental take 

of other ESA listed species anticipated 

and proof that those takes have been 

authorized by NMFS or the USFWS, 

identification of funding sources, and a 

point of contact must be reported to 

NMFS at least 60 days prior to the start 

of the study, or for ongoing studies 

within 60 days after publication of the 

final rule; (h) reports that include the 

total number of Southern DPS and any 

other ESA listed species taken, 

information that supports that take was 

non-lethal, and a summary of the project 

results must be submitted to NMFS on 

a schedule to be determined by NMFS 

staff; (i) research or monitoring that 

involves action, permitting or funding 

by a federal agency must still comply 

with the requirements of ESA section 

7(a)(2) in order to ensure that the action 

will not jeopardize the continued 

existence of the threatened Southern 

DPS. 

(2) Enforcement activities when an 

employee of NMFS, acting in the course 

of his or her official duties, takes the 

Southern DPS without a permit, if such 

action is necessary for purposes of 

enforcing the ESA or its implementing 

regulations. 

(3) 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 they adhere to all 

of the following: (a) the activity must 

comply with required state or other 

Federal reviews or permits; (b) activities 

may only be conducted by an employee 

or designee of NMFS or the U.S. Fish 

and Wildlife Service (USFWS), any 

Federal land management agency, or 

California Department of Fish and Game 

(CDFG), Oregon Department of Fish and 

Wildlife (ODFW), Washington 

Department of Fish and Wildlife 

(WDFW), or Alaska Department of Fish 

and Game (ADFG); (c) the emergency 

rescue may only occur because of 

situations that result from natural 

disasters, national defense, or security 

emergencies (see 50 CFR 402.05); (d) the 

emergency rescue must benefit the 

Southern DPS; (e) a report must be 

submitted to NMFS that includes, at a 

minimum, the number and status of fish 

handled and the location of rescue and/ 

or salvage operations within 30 days 

after conducting the emergency rescue. 

(4) 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 they adhere to all of the 

following: (a) compliance with required 

state and Federal reviews and permits; 

(b) a detailed description of the 

restoration activity sent to NMFS at 

least 60 days prior to the start of the 

restoration project which includes: the 

geographic area affected; when activities 

will occur; how they will be conducted; 

and the severity of direct; indirect, and 

cumulative impacts of activities on the 

Southern DPS; identification of funding 

sources; demonstration that all state and 

federal regulatory requirements have 

been met; a description of methods used 

to ensure that the likelihood of survival 

or recovery of the listed species is not 

reduced; a plan for minimizing and 

mitigating any adverse impacts to 

Southern DPS spawning or rearing 

habitat; an estimate of the amount of 

incidental take of the listed species that 

may occur and a description of how that 

estimate was made; a plan for effective 

monitoring and adaptive management; a 

pledge to use best available science and 

technology when conducting restoration 

activities; and a point of contact; (c) 

progress reports that include the total 

number of Southern DPS taken, 

information regarding whether the take 

was lethal or non-lethal, a summary of 

the status of the project, and any 

changes in the methods being 

employed, must be submitted to NMFS 

on a schedule to be determined by 

NMFS staff; (d) activities that involve 

action, permitting or funding by a 

federal agency must still comply with 

the requirements of ESA section 7(a)(2) 

in order to ensure that the action will 

not jeopardize the continued existence 

of the threatened Southern DPS. 

Exemptions Provided by NMFSapproved ESA 4(d) Programs 

We propose exemptions from the take 

prohibitions for certain activities 

included within a NMFS-approved 4(d) 

program. Activities included in a 4(d) 

program would be excused from the 

take prohibitions for the Southern DPS 

through a formal NMFS 4(d) program 

approval process described below. 

ESA 4(d) Program for Commercial and 

Recreational Fishery Management 

Take of green sturgeon in commercial 

and recreational fisheries activities 

would be allowed if fisheries activities 

were conducted under approved 

Fisheries Management and Evaluation 

Plans (FMEPs). We expect that, in many 

cases, fisheries will have acceptably 

small impacts on the threatened 

Southern DPS as long as state fishery 

management programs are specifically 

tailored to meet certain criteria. NMFSapproved FMEPs must address limiting 

take of green sturgeon in order to protect 

the listed entity, the Southern DPS. We 

consider this necessary because 

discrimination between the non-listed 

Northern DPS and listed Southern DPS, 

via gear specificity, visual indicators, 

spatial distribution, etc., is not currently 

possible. In order for NMFS to exempt 

commercial or recreational fishing 

activities from the take prohibitions, an 

FMEP must: (1) prohibit retention of 

green sturgeon (i.e. zero bag limit); (2) 

set maximum incidental take levels; (3) 

include measures to minimize 

incidental take of green sturgeon (e.g., 

temporal/spatial restrictions, size, gear); 

(4) provide a biologically based 

rationale demonstrating that the 

incidental take management strategy 

will not significantly reduce the 


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likelihood of survival or recovery of the 

Southern DPS; (5) include effective 

monitoring and evaluation plans; (6) 

provide for evaluating monitoring data 

and making revisions to the FMEP; (7) 

provide for effective enforcement and 

education; and (8) report the amount of 

incidental take and summarize the 

effectiveness of the FMEP to NMFS on 

a biannual basis. If we find that an 

FMEP meets these criteria, we would 

issue a letter of concurrence to the State 

that sets forth the terms of the FMEP’s 

implementation and the duties of the 

parties pursuant to the FMEP. 

Section 9(a)(1)(B) and (a)(1)(C) take 

prohibitions would not apply to ongoing 

commercial and recreational fisheries 

activities after publication of the final 

rule, for up to 120 days, if a letter of 

intent to develop an FMEP addressing 

green sturgeon has been received by 

NMFS within 30 days after the final rule 

is published in the Federal Register. 

The exemption will be suspended if the 

letter of intent is rejected without 

further review of an FMEP. If the letter 

of intent is received within 30 days of 

publication of the final 4(d) rule in the 

Federal Register, a final FMEP must be 

received by NMFS within 120 days from 

the date of receipt of the letter of intent. 

Ongoing commercial and recreational 

fisheries activities may continue until 

NMFS issues a letter of concurrence (or 

denial) for final FMEPs. 

Once an FMEP has been submitted to 

NMFS for review, NMFS will: (1) 

provide a public comment period (≥ 30 

days) before approval of new or 

amended FMEPs; (2) provide a letter of 

concurrence for approved FMEPs that 

specifies the implementation and 

reporting requirements; (3) evaluate 

FMEPs on a regular basis and identify 

changes that would improve their 

effectiveness; and (4) provide a public 

comment period (≥ 30 days) before 

withdrawing approval of an FMEP. 

ESA 4(d) Program for Tribal Fishery 

Management 

Fishery harvest or other activities 

conducted 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 are eligible to obtain take 

authorization via the same method 

outlined in the NMFS final rule for 

authorizing take of threatened salmon 

and steelhead for actions under tribal 

resource management plans (July 10, 

2000; 65 FR 42481). This method has 

been modified below for the Southern 

DPS. We consider current tribal fishing 

activities to have acceptably small 

impacts on the threatened Southern DPS 

and propose that if the tribes, either 

singly or jointly, develop tribal resource 

management plans for the Southern 

DPS, or incorporate the Southern DPS 

into existing tribal resource 

management plans, that current and 

future tribal activities are not likely to 

appreciably reduce the likelihood of 

survival and recovery of the species. 

A tribe intending to exercise a tribal 

right to fish or undertake other resource 

management actions that may impact 

the threatened Southern DPS could 

create a tribal resource management 

plan (Tribal Plan) that would assure that 

those actions would not appreciably 

reduce the likelihood of survival and 

recovery of the species. The Secretary 

would stand ready to the maximum 

extent practicable to provide technical 

assistance to any tribe that so requests 

in examining impacts on the listed 

Southern DPS and in the development 

of Tribal Plans that meet tribal 

management responsibilities and needs. 

In making a determination whether a 

Tribal Plan will appreciably reduce the 

likelihood of survival and recovery of 

the threatened Southern DPS, the 

Secretary, in consultation with the tribe, 

would use the best available scientific 

and commercial data (including careful 

consideration of any tribal data and 

analysis) to determine the Tribal Plan’s 

impact on the biological requirements of 

the species. The Secretary would also 

assess the effect of the Tribal Plan on 

survival and recovery in a manner 

consistent with tribal rights and trust 

responsibilities. Before making a final 

determination, the Secretary would seek 

comment from the public on his 

pending determination whether or not 

implementation of a Tribal Plan will 

appreciably reduce the likelihood of 

survival and recovery of the listed 

Southern DPS. The Secretary would 

publish notification in the Federal 

Register of any determination regarding 

a Tribal Plan and the basis for that 

determination. 

ESA 4(d) Program for Scientific 

Research and Monitoring Activities 

State-coordinated research activities 

for scientific research or enhancement 

purposes that do not fall into the 

exception category described above (see 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements) may receive an 

exemption from the take prohibitions 

for the Southern DPS for activities 

included in a state-sponsored, ESAcompliant, scientific research program 

between state fishery agencies (i.e., 

CDFG, ODFW, WDFW, or ADFG) and 

NMFS, hereafter referred to as a state 

4(d) research program. Activities 

conducted as part of a state 4(d) 

research program must meet existing 

state and federal laws and regulations 

and would include research and 

monitoring projects conducted by state 

employees or by recipients of state 

fishery agency-issued permits 

(including Federal and non-Federal 

entities), that directly or incidentally 

take Southern DPS green sturgeon. We 

find that in carrying out their 

responsibilities to manage state 

fisheries, state agencies are conducting 

or sponsoring research vital for 

improving our understanding of the 

status and risks facing the Southern DPS 

and other listed species that occur in 

overlapping habitat, and provide critical 

information for assessing the 

effectiveness of current and future 

management practices. 

State 4(d) research programs have 

been developed and implemented in 

California, Oregon, and Washington for 

listed West coast salmon and steelhead 

and are consistent with ESA 

requirements for research-related take of 

these listed species. The Southern DPS 

would most likely be incorporated into 

the existing state 4(d) research programs 

established for listed salmon and 

steelhead. Otherwise, the state would be 

required to prepare a program and 

submit it to NMFS for approval. NMFS 

may approve the program or return the 

program to the state agency for revision. 

In general, we conclude that as long 

as state biologists and cooperating 

agencies carefully consider the benefits 

and risks of activities included in a state 

4(d) research program, such programs 

would help streamline the take 

authorization process for researchers, 

state agencies, and NMFS by allowing 

state fishery agencies to maintain 

primary responsibility for coordination 

and oversight of research activities. 

Each year, researchers would be 

required to submit research applications 

to the state fishery agency preferably 

through the NMFS online application 

website Authorizations and Permits for 

Protected Species (APPS) at https:// 

apps.nmfs.noaa.gov. Research 

applications must include, at a 

minimum, the following information: 

(1) an estimate of the total direct or 

incidental take of Southern DPS fish 

that is anticipated; (2) a description of 

the study design and methodology; (3) 

a justification for take of Southern DPS 

fish and the techniques to be employed; 

and (4) a point of contact. The state 

agency would have access, via NMFS, to 

the submitted applications, evaluate and 

determine which projects are eligible for 

inclusion under the program, and 

approve or deny individual project 

applications. Once the state agency 


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review is complete, the state agency 

would be required to provide for NMFS’ 

review and approval a list of project 

applications approved for possible 

inclusion in a 4(d) research program for 

the coming year. After our review of the 

applications and follow-ups with the 

researchers to address concerns if 

necessary, we would analyze effects of 

the activities on the Southern DPS. 

Finally, we would complete the ESA 

section 7 consultation and NEPA 

documentation and issue an approval 

letter to the state fishery agency 

confirming that the research activities 

covered within the 4(d) research 

program are exempt from the ESA take 

prohibitions. A section 10 permit is not 

issued. Researchers have to comply with 

the conditions of the 4(d) research 

program and must submit an annual 

report, preferably through the NMFS 

online application website 

Authorizations and Permits for 

Protected Species (APPS) at https:// 

apps.nmfs.noaa.gov. The annual report 

must include, for each project: (1) a 

summary of the number of green 

sturgeon taken directly or incidentally; 

and (2) a summary of the results of the 

project, in order for NMFS to evaluate 

the effects of the research project on the 

Southern DPS. We would continue to 

work with the state fishery agencies to 

ensure authorized research involving 

listed Southern DPS fish is both 

coordinated and conducted in a manner 

that does not jeopardize the 

conservation and recovery of the 

Southern DPS. 

Section 9(a)(1)(B) and 9(a)(1)(C) take 

prohibitions would not apply to ongoing 

state-supported scientific research and 

enhancement activities seeking take 

authorization of the Southern DPS fish 

through a state 4(d) program, if the 

above information is provided to NMFS, 

preferably through the NMFS online 

application website Authorizations and 

Permits for Protected Species (APPS) at 

https://apps.nmfs.noaa.gov , within 120 

days after publication of the final 4(d) 

rule. The take prohibitions would take 

effect if the state 4(d) program package 

is rejected as insufficient or is denied. 

If the state 4(d) research program 

package is received no later than 120 

days after publication of the final 4(d) 

rule, ongoing state-supported scientific 

research activities may continue until 

NMFS issues a written decision of 

approval or denial. 

Take Authorizations Provided By ESA 

Sections 7 or 10 

Federally funded, authorized, or 

implemented activities that may require 

take authorization (see Proposed 4(d) 

Protective Regulations for the Southern 

DPS), and are not covered under 

Exceptions, Criteria for Exceptions, and 

Reporting Requirements or Exemptions 

Provided by NMFS-approved 4(d) 

Programs above, will be examined on a 

case-by-case basis through interagency 

consultation as prescribed by ESA 

section 7. All other activities (i.e., those 

not federally funded, authorized, or 

implemented) that may require take 

authorization, and are not covered 

under Exceptions, Criteria for 

Exceptions, and Reporting 

Requirements or Exemptions Provided 

by NMFS-approved 4(d) Programs 

above, will be examined on a case-by 

case basis as prescribed by ESA section 

10. 

Federal, state and private-sponsored 

research activities for scientific research 

or enhancement purposes that are not 

covered under Exceptions, Criteria for 

Exceptions, and Reporting 

Requirements or Exemptions Provided 

by NMFS-approved 4(d) Programs 

above, may take Southern DPS fish 

pursuant to the specifications of an ESA 

section 10 permit. Section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions would not 

apply to ongoing research activities if an 

application for an ESA section 10 

(a)(1)(A) permit is received by NMFS no 

later than 120 days after publication of 

the final 4(d) rule. The take prohibitions 

would take effect if the permit 

application is rejected as insufficient or 

a permit is denied. If the permit 

application is received no later than 120 

days after publication of the final 4(d) 

rule, ongoing research activities may 

continue without take prohibitions until 

NMFS issues or denies a permit. 

TABLE 1. EVALUATION OF ACTIVITIES THAT MAY OCCUR THROUGHOUT THE AREA AFFECTED BY THE PROPOSED

PROHIBITIONS FOR SOUTHERN DPS FISH, EGGS OR LARVAE. 

Activity Take 

Take of 

Surrogate 

Species 

Protective/ 

Conservation Measures or Benefits Take Authorization 

Necessary 

Methods of Take Authorization 

ESA section 7 or 

10 

4(d) Program 

Fishing 

Commercial Y Y Y Y Y 

Recreational Y Y Y Y Y 

Tribal Y Y Y Y Y 

Poaching N Y N N/A N N 

Collection or Handling 

Research/monitoring 

Federal, State or Private-sponsored (compliant with Exceptions) Y Y N 

State-sponsored (outside scope of Exceptions) Y Y Y Y Y 

Federal or Private-sponsored (outside scope of Exceptions) Y Y Y Y N 

Emergency Rescue (compliant with Exceptions) N Y Y N 


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TABLE 1. EVALUATION OF ACTIVITIES THAT MAY OCCUR THROUGHOUT THE AREA AFFECTED BY THE PROPOSED

PROHIBITIONS FOR SOUTHERN DPS FISH, EGGS OR LARVAE.—Continued 

Activity Take 

Take of 

Surrogate 

Species 

Protective/ 

Conservation Measures or Benefits Take Authorization 

Necessary 

Methods of Take Authorization 

ESA section 7 or 

10 

4(d) Program 

Emergency Rescue (outside scope of Exceptions) N Y N Y Y N 

Detrimental Habitat-Altering Activities 

Activities that Eliminate, Obstruct, or Delay Passage 

Dam installation, repair, modification, operation Y Y Y Y N 

Diversion installation, repair, modification, operation Y Y Y Y N 

Activities that Destroy, Modify, or Curtail Spawning or Rearing Habitat 

Input of fine sediments/runoff N Y Y Y Y N 

Dam installation, repair, modification, operation Y Y Y Y N 

Diversion installation, repair, modification, operation Y Y Y Y N 

Filling/isolation of channels/intermittent waters N N Y Y Y N 

Removal/alteration of physical structure that provides 

spawning/rearing habitat 

N N Y Y Y N 

Habitat Restoration (compliant with Exceptions) 

Barrier removal/modification to restore flows N N Y N 

Riverine or estuarine bed restoration N N Y N 

Natural bank protection N N Y N 

Restoration of native vegetation N N Y N 

Removal of non-native species N N Y N 

Removal of contaminated sediments N N Y N 

Habitat Restoration (outside scope of Exceptions) N N N Y Y N 

Entrainment/Impingement 

Water diversions Y Y Y Y N 

Power generating projects Y Y Y Y N 

Dredging N Y Y Y Y N 

Pesticide/Pollutant Discharge N Y Y Y Y N 

Non-native Species Introductions N Y Y N/A N N 

Note: Evidence of take of the Southern DPS during the course of an activity is indicated (yes or no; Y or N); if there is no such evidence, then 

evidence of take of a surrogate species is indicated (Y or N). Existence of protective/conservation measures to minimize take of Southern DPS 

fish during the course of the activity or to benefit the Southern DPS is indicated (Y or N). Based on best available information and expert opinion, 

whether an activity requires take authorization (Y or N) or is illegal according to other laws and therefore cannot be authorized (N/A), and whether methods for allowing take resulting from a particular activity exist through ESA sections 7 or 10 or through a proposed ESA section 4(d) Program (Y or N). This is not an exhaustive list of all activities that occur throughout the area affected by the proposed take prohibitions. Please see 

Proposed 4(d) Protective Regulations for the Southern DPS for the full range of activities for which NMFS is proposing to prohibit take. 

Under section 9(b)(1) of the ESA, 

Southern DPS fish held in captivity or 

a controlled environment prior to the 

ESA listing are exempt from the 

prohibitions of section 9(a)(1)(A) and 

(a)(1)(G) of the ESA and would therefore 

also be exempt from the prohibitions of 

this proposed regulation, provided that 

holding and any subsequent holding or 

use of the fish is not for commercial 

activity. The burden of proof that 

Southern DPS fish were taken prior to 

listing lies with the individual holding 

the animals. The prohibitions of this 

proposed regulation would, however, 

apply to any progeny of Southern DPS 

fish taken prior to listing. 

Summary 

We propose to apply the section 9 

take prohibitions to the Southern DPS, 


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while providing exceptions for some 

activities (i.e., some types of research/ 

monitoring, enforcement, emergency 

rescue/salvage, and habitat restoration; 

see Exceptions, Criteria for Exceptions, 

and Reporting Requirements) that 

NMFS finds will not impede, and in 

most cases will promote, the 

conservation of the species. However, if 

the activity is federally funded, 

authorized or implemented it will still 

be subject to NMFS review under the 

ESA jeopardy standard (i.e. ESA section 

7(a)(2)). Apart from the subset of 

activities defined in Exceptions, Criteria 

for Exceptions, and Reporting 

Requirements above, if the Southern 

DPS is anticipated to be taken during 

the course of an activity, several 

methods may be pursued to obtain take 

authorization depending on the specific 

circumstances of the activity. For 

federally funded, authorized or 

implemented activities, the traditional 

method of seeking take coverage 

through ESA sections 7 or 10 exists. For 

activities that are not federally funded, 

authorized or implemented, take 

authorization may be obtained through 

ESA section 10, by establishing a 

NMFS-approved 4(d) program (i.e., for 

commercial or recreational fishing 

activities or state-sponsored research 

outside the scope of those activities 

defined in Exceptions, Criteria for 

Exceptions, and Reporting 

Requirements) that adequately protects 

the Southern DPS, or by developing a 

tribal resource management plan that 

will not appreciably reduce the 

likelihood of survival and recovery of 

the Southern DPS (see Exemptions 

Provided by NMFS-approved ESA 4(d) 

Programs). Take of the Southern DPS 

due to poaching and non-native species 

introductions is illegal according to 

existing state and/or federal laws, thus 

no method of take authorization is being 

proposed for these activities. 

Public Comments Solicited 

We invite comments and suggestions 

from all interested parties regarding the 

proposed protective regulations for the 

Southern DPS under section 4(d) of the 

ESA (see ADDRESSES). Data, information, 

and comments that are accompanied by 

supporting documentation such as 

maps, logbooks, bibliographic 

references, personal notes, and/or 

reprints of pertinent publications are 

helpful and appreciated. 

Public Hearing 

The ESA provides for a pubic hearing 

on this proposal, if requested. Requests 

must be filed by the date specified in 

the DATES section above. Such requests 

must be made in writing and addressed 

to the Chief, Protected Resources 

Division, Attn: Melissa Neuman, 

Southwest Region, National Marine 

Fisheries Service, 501 West Ocean 

Blvd., Suite 4200, Long Beach, CA 

90802–4213. 

Peer Review 

In December 2004, the Office of 

Management and Budget (OMB) issued 

a Final Information Quality Bulletin for 

Peer Review (Peer Review Bulletin) 

establishing minimum peer review 

standards, a transparent process for 

public disclosure, and opportunities for 

public input. The Peer Review Bulletin, 

implemented under the Information 

Quality Act (Public Law 106 554), is 

intended to provide public oversight on 

the quality of agency information, 

analyses, and regulatory activities. The 

text of the Peer Review Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664). The Peer 

Review Bulletin requires Federal 

agencies to subject ‘‘influential’’ 

scientific information to peer review 

prior to public dissemination. 

Influential scientific information is 

defined as ‘‘information the agency 

reasonably can determine will have or 

does have a clear and substantial impact 

on important public policies or private 

sector decisions,’’ and the Peer Review 

Bulletin provides agencies broad 

discretion in determining the 

appropriate process and level of peer 

review. The Peer Review Bulletin 

establishes stricter standards for the 

peer review of ‘‘highly influential’’ 

scientific assessments, defined as 

information whose ‘‘dissemination 

could have a potential impact of more 

than $500 million in any one year on 

either the public or private sector or that 

the dissemination is novel, 

controversial, or precedent-setting, or 

has significant interagency interest.’’ We 

do not consider the scientific 

information underlying the proposed 

protective regulations to constitute 

influential scientific information as 

defined in the Peer Review Bulletin. 

The information is not novel; similar 

information for listed salmonids whose 

range substantially overlaps with that of 

the Southern DPS has been used in 

support of protective regulations that 

have been in existence for a number of 

years. Therefore the agency expects the 

information to be non-controversial and 

have minimal impacts on important 

public policies or private sector 

decisions. 

References 

A complete list of the references used 

in this proposed rule is available upon 

request (see ADDRESSES) or via the 

internet at http://www.swr.noaa.gov. 

Classification 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601B612) was designed to 

ensure that agencies carefully assess 

whether aspects of a proposed 

regulatory scheme (record keeping, 

safety requirements, etc.) can be tailored 

to be less burdensome for small 

businesses while still achieving the 

agency’s statutory responsibilities. 

When an agency proposes regulations, 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601B612) requires the agency to 

prepare and make available for public 

comment an initial regulatory flexibility 

analysis (IRFA) that describes the 

impact of the proposed rule on small 

businesses, nonprofit enterprises, local 

governments, and other small entities, 

unless the agency is able to certify that 

the action will not have a significant 

impact on a substantial number of small 

entities. This proposed ESA 4(d) rule 

has specific requirements for regulatory 

compliance and sets an enforceable 

performance standard (do not take listed 

fish) when conducting specific activities 

unless that activity is within a carefully 

circumscribed set of activities on which 

NMFS proposes not to impose the take 

prohibitions. Hence, the universe of 

entities reasonably expected to be 

directly or indirectly impacted by the 

prohibition is broad. 

Based on the language of the proposed 

4(d) rule, as well as a review of existing 

section 7 consultations for the Southern 

DPS of green sturgeon and co-existing 

salmon and steelhead species, the IRFA 

identified the following activities that 

may be affected by this proposed rule: 

commercial, recreational and tribal 

fisheries; dams and water diversions; 

power production (electric services and 

gas distribution); crop agriculture and 

point source polluters (NPDESpermitted activities); habitat-altering 

activities; and in-water construction and 

dredging activities. A great deal of 

uncertainty exists with regard to how 

potentially regulated entities will 

attempt to avoid take of the Southern 

DPS. This is caused by two factors: 

relatively little data exist on green 

sturgeon abundance and behavior, and 

NMFS has a short history of managing 

the Southern DPS. In addition, the 

spatial distribution of the Southern DPS 

overlaps nearly entirely with habitat for 

salmon and steelhead species. Several 

key variables, such as whether current 

fish passage facilities and fish screens 

designed to protect salmon species will 

be considered adequate to provide 


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passage for the Southern DPS over the 

long term, remain undetermined at this 

time. Thus, while baseline protections 

are expected to be afforded to the 

Southern DPS on behalf of salmon and 

steelhead species, the degree to which 

incremental measures would be 

required for the Southern DPS has not 

been determined. As such, the IRFA 

does not provide estimates of total costs 

of conservation measures likely to be 

undertaken for the Southern DPS. 

Instead, the analysis characterizes 

potential impacts on affected industries. 

In formulating this proposed rule, we 

considered five alternative approaches, 

described in more detail in the IRFA. 

These are: (1) a No Action Alternative 

where no ESA section 9(a)(1) 

prohibitions or any other protective 

regulations are applied to the Southern 

DPS; (2) a Full Action Alternative where 

all ESA section 9(a)(1) prohibitions are 

applied to the Southern DPS; (3) 

Alternative A where the prohibitions 

listed under ESA section 9(a)(1)(A) and 

9(a)(1)(D) through 9(a)(1)(G) are applied 

to the Southern DPS and the take 

prohibitions (ESA section 9(a)(1)(B) and 

9(a)(1)(C)) are applied to specific 

categories of activities that either cause 

take of Southern DPS fish; (4) 

Alternative B (Proposed Action) where 

ESA section 9(a)(1) prohibitions are 

applied to the Southern DPS as in the 

Full Action Alternative, but with 

exceptions and exemptions for activities 

that NMFS has determined to be 

adequately protective of the Southern 

DPS; and (5) Alternative C where the 

ESA section 9(a)(1) prohibitions are 

applied as described in Alternative A, 

but with exceptions from the take 

prohibitions (ESA section 9(a)(1)(B) and 

9(a)(1)(C)) for activities that NMFS has 

determined to be adequately protective 

of the Southern DPS. 

The comparative analysis of the 

alternatives is described in more detail 

in the IRFA. In summary, the Full 

Action Alternative and Alternative B 

(Proposed Action) are anticipated to 

affect the largest number of industries, 

but the impacts Alternative B will have 

on those industries is expected to be 

less severe because certain activities 

may be allowed to continue (e.g., some 

habitat restoration, emergency rescue, 

and research/monitoring activities) 

under this alternative. Alternatives A 

and C are anticipated to affect a smaller 

number of industries than the Full 

Action Alternative and Alternative B. 

For reasons similar to those explained 

above, Alternative C is expected to have 

a less severe impact on the affected 

industries than Alternative A. The No 

Action Alternative will have no effect 

on industries. We invite comments on 

the alternative contained in this 

proposed rule and on whether there is 

a preferable alternative (including 

alternatives not described here) that 

would meet the statutory requirements 

of ESA section 4(d). We also solicit 

information regarding the impact that 

alternative would have on your 

economic activity and why the 

alternative is preferable. 

Executive Order (E.O.) 12866 - 

Regulatory Planning and Review 

The proposed ESA section 4(d) 

regulations addressed in this rule have 

been determined to be not significant for 

the purposes of E.O. 12866. Section 

1(b)(12) of E.O. 12866 also requires each 

agency to write regulations that are easy 

to understand. We invite your 

comments (see ADDRESSES) on how to 

make this proposed rule easier to 

understand, including answers to 

questions such as the following: (1) Are 

the requirements in the rule clearly 

stated? (2) Does the rule contain 

technical language or jargon that 

interferes with its clarity? (3) Does the 

format of the rule (grouping and order 

of sections, use of headings, 

paragraphing, etc.) aid or reduce its 

clarity? (4) Would the rule be easier to 

understand if it were divided into more 

(but shorter) sections? (5) Is the 

description of the rule in the 

SUPPLEMENTARY INFORMATION section of 

the preamble helpful in understanding 

the rule? (6) What else could NMFS do 

to make the rule easier to understand? 

E.O. 12988 - Civil Justice Reform 

We have determined that this 

proposed rule does not unduly burden 

the judicial system and meets the 

requirements of sections 3(a) and 3(b)(2) 

of E.O. 12988. We are proposing 

protective regulations pursuant to 

provisions in the ESA using an existing 

approach that improves the clarity of 

the regulations and minimizes the 

regulatory burden of managing ESA 

listings while retaining the necessary 

and advisable protections to provide for 

the conservation of threatened species. 

E.O. 13175 - Consultation and 

Coordination With Indian Tribal 

Governments 

E.O. 13175 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 proposed rule may 

impose substantial direct compliance 

costs on the communities of Indian 

tribal governments within the range of 

this DPS. Accordingly, the requirements 

of section 5(b) and (c) of E.O. 13175 may 

apply to this proposed rule. Thus, we 

intend to inform potentially affected 

tribal governments and to solicit their 

input on the proposed rule and will 

continue coordination and discussions 

with interested tribes as NMFS moves 

toward a final rule. 

E.O. 13132 - Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations where a regulation will 

preempt state law, or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

statute). Neither of those circumstances 

is applicable to this proposed rule. In 

fact, this notice proposes mechanisms 

by which NMFS, in the form of 4(d) 

exceptions to take prohibitions, may 

defer to state and local governments 

where they provide necessary 

protections for the Southern DPS. 

Paperwork Reduction Act 

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. 

This proposed rule contains 

collection-of-information requirements 

subject to the Paperwork Reduction Act 

(PRA) and which have been submitted 

to OMB for review and approval. Public 

reporting burden per response for this 

collection of information is estimated to 

average: (1) 40 hours for development of 

a Fisheries Management and Evaluation 

Plan; (2) 20 hours for development of a 

Tribal Fishery Management Plan; (3) 40 

hours for development of a Statesponsored scientific research program; 

(4) 5 hours to prepare reports on 

emergency rescue, salvage or disposal of 

Southern DPS fish; (5) 40 hours to 

prepare reports on restoration activities; 

and (6) 40 hours to prepare reports on 

federal and private-sponsored research 

and monitoring. These estimates 

include the time for reviewing 

instructions, searching existing data 

sources, gathering and maintaining the 

data needed, and completing and 

reviewing the collection of information. 

We invite comments regarding these 

burden estimates, or any other aspect of 

this data collection, including 

suggestions for reducing the burden, to 


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NMFS (see ADDRESSES) and to OMB at 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Washington, DC. 20503 

(Attention: NOAA Desk Officer). 

National Environmental Policy Act 

(NEPA) 

Whenever a species is listed as 

threatened, the ESA requires that we 

shall issue such regulations as we deem 

necessary and advisable to provide for 

its conservation. Accordingly, the 

promulgation of ESA section 4(d) 

protective regulations is subject to the 

requirements of NEPA, and we have 

prepared a draft Environmental 

Assessment (EA) analyzing the 

proposed 4(d) regulations and 

alternatives. We are seeking comment 

on the draft EA, which is available on 

the Federal eRulemaking Portal web site 

(http://www.regulations.gov) or upon 

request (see DATES and ADDRESSES, 

above). 

E.O. 13211 - Energy Supply, 

Distribution, or Use 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. 

According to E.O. 13211, Asignificant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

NMFS has determined that the energy 

effects are unlikely to exceed the energy 

impact thresholds identified in E.O. 

13211 because this proposed rule is not 

significant under E.O. 12866, and the 

spatial scope of this proposed rule 

overlaps with areas where protections 

for listed salmon are in effect. It is likely 

that the modifications required for 

salmon are similar enough to those that 

would be required for the Southern DPS 

such that the proposed action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

List of Subjects in 50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports, Transportation. 

Dated: May 14, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 223 is proposed 

to be 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 1543; subpart B, 

§ 223.201 202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

2. In subpart B of part 223, add 

§ 223.210 to read as follows: 

§ 223.210 North American green sturgeon. 

(a) Prohibitions. The prohibitions of 

section 9(a)(1)(A) through 9(a)(1)(G) of 

the ESA (16 U.S.C. 1538) relating to 

endangered species apply to the 

threatened Southern Distinct Population 

Segment (DPS) of North American green 

sturgeon listed in § 223.102(c)(1). 

(b) Exceptions. Exceptions to the take 

prohibitions described in section 

9(a)(1)(B) and (C) of the ESA (16 U.S.C. 

1538(a)(1)(B) and (C)) applied in 

paragraph (a) of this section to the 

threatened Southern DPS listed in 

§ 223.102(c) are described in paragraphs 

(b)(1) through (b)(3) of this section. 

(1) Scientific research and monitoring 

exceptions. The prohibitions of 

paragraph (a) of this section relating to 

the threatened Southern DPS listed in 

§ 223.102(c)(1) do not apply to ongoing 

or future Federal, state, or privatesponsored scientific research or 

monitoring activities if: 

(i) The scientific research or 

monitoring activity complies with 

required state reviews or permits. 

(ii) The research or monitoring 

activity is directed at the Southern DPS 

and is not incidental to research or 

monitoring of another species. 

(iii) Take of live mature adults in the 

lower Feather River from the confluence 

with the Sacramento River to the 

Oroville Dam (rkm 116), the lower Yuba 

River from the confluence with the 

Feather River to the Daguerre Dam (rkm 

19), or Suisun, San Pablo, and San 

Francisco Bays or the Sacramento-San 

Joaquin Delta from the Golden Gate 

Bridge up into the Sacramento River to 

Keswick Dam (rkm 483) occurs from 

July 1 through March 1 so as to 

substantially increase the likelihood 

that uninterrupted upstream spawning 

migrations of adults will occur. 

(iv) Take is non-lethal. 

(v) Take involving the removal of any 

life stage of the Southern DPS from the 

wild does not exceed 60 minutes. 

(vi) Take does not involve artificial 

spawning or enhancement activities. 

(vii) A description of the study 

objectives and justification, a summary 

of the study design and methodology, 

estimates of the total non-lethal take of 

Southern DPS fish anticipated, 

estimates of incidental take of other ESA 

listed species anticipated and proof that 

those takes have been authorized by 

NMFS or the USFWS, identification of 

funding sources, and a point of contact 

is reported to the NMFS Southwest 

Regional Office in Long Beach at least 

60 days prior to the start of the study, 

or within 60 days after publication of 

the final rule for ongoing studies. 

(viii) Reports that include the total 

number of Southern DPS and any other 

ESA listed species taken, information 

that supports that take was non-lethal, 

and a summary of the project results is 

submitted to the NMFS Southwest 

Regional Office in Long Beach on a 

schedule to be determined by NMFS. 

(ix) Research or monitoring that 

involves action, permitting or funding 

by a Federal agency still complies with 

the requirements of ESA section 7(a)(2) 

in order to ensure that the action will 

not jeopardize the continued existence 

of the threatened Southern DPS. 

(2) Enforcement exception. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to any employee of NMFS, 

when the employee, acting in the course 

of his or her official duties, takes the 

Southern DPS listed in § 223.102(c)(1) 

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(c)(1) 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: 

(i) The activity complies with 

required state or other Federal reviews 

or permits. 

(ii) The activity is conducted by an 

employee or designee of NMFS or the 

U.S. Fish and Wildlife Service 

(USFWS), any Federal land management 

agency, or California Department of Fish 

and Game, Oregon Department of Fish 

and Wildlife, Washington Department of 

Fish and Wildlife, or Alaska Department 

of Fish and Game. 

(iii) The activity occurs only because 

of emergency situations that result from 

natural disasters, national defense, or 

security emergencies (see § 402.05 of 

this title). 

(iv) The activity benefits the Southern 

DPS. 

(v) Those carrying out the activity 

submit a report to the NMFS Southwest 

Regional Office in Long Beach that 

includes, at a minimum, the number 


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and status of fish handled and the 

location of rescue and/or salvage 

operations within 30 days after 

conducting the emergency rescue. 

(4) Habitat restoration exceptions. 

The prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

do not apply to 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: 

(i) The activity complies with 

required state and Federal reviews and 

permits. 

(ii) Those carrying out the activity 

submit a detailed description of the 

restoration activity to the NMFS 

Southwest Regional Office in Long 

Beach at least 60 days prior to the start 

of the restoration project which 

includes: the geographic area affected; 

when activities will occur; how they 

will be conducted; and the severity of 

direct; indirect, and cumulative impacts 

of activities on the Southern DPS; 

identification of funding sources; 

demonstration that all state and federal 

regulatory requirements have been met; 

a description of methods used to ensure 

that the likelihood of survival or 

recovery of the listed species is not 

reduced; a plan for minimizing and 

mitigating any adverse impacts to 

Southern DPS spawning or rearing 

habitat; an estimate of the amount of 

incidental take of the listed species that 

may occur and a description of how that 

estimate was made; a plan for effective 

monitoring and adaptive management; a 

pledge to use best available science and 

technology when conducting restoration 

activities; and a point of contact. 

(iii) Those carrying out the activity 

submit progress reports that include the 

total number of Southern DPS taken, 

information regarding whether the take 

was lethal or non-lethal, a summary of 

the status of the project, and any 

changes in the methods being 

employed, to the NMFS Southwest 

Regional Office in Long Beach on a 

schedule to be determined by NMFS. 

(iv) An activity that involves action, 

permitting or funding by a federal 

agency complies with the requirements 

of ESA section 7(a)(2) in order to ensure 

that the action will not jeopardize the 

continued existence of the threatened 

Southern DPS. 

(c) Exemptions via ESA 4(d) program 

approval. Exemptions from the take 

prohibitions described in section 

9(a)(1)(B) and (C) of the ESA (16 U.S.C. 

1538(a)(1)(B) and (C)) applied in 

paragraph (a) of this section to the 

threatened Southern DPS listed in 

§ 223.102(c) are described in paragraphs 

(c)(1) through (c)(3) of this section. 

(1) Scientific research and monitoring 

exemptions. The prohibitions of 

paragraph (a) of this section relating to 

the threatened Southern DPS listed in 

§ 223.102(c)(1) do not apply to ongoing 

or future 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: 

(i) Descriptions of the ongoing and 

future 4(d) research or monitoring 

activity, as described in paragraph 

(c)(1)(ii) of this section, must be 

received by the NMFS Southwest 

Regional Office in Long Beach within 

120 days after publication of the final 

4(d) rule. This exception to the section 

9 take prohibitions expires if the 

proposal is rejected as insufficient or is 

denied. 

(ii) Descriptions of ongoing and future 

state-supported research activities must 

include the following information and 

should be submitted to NMFS by the 

State: an estimate of total direct or 

incidental take; a description of the 

study design and methodology; a 

justification for take and the techniques 

employed; and a point of contact. 

(iii) NMFS will provide written 

approval of a state 4(d) research 

program. 

(iv) The State agency will provide an 

annual report to NMFS that, at a 

minimum, summarizes the number of 

Southern DPS green sturgeon taken 

directly or incidentally, and summarizes 

the results of the project. 

(2) Fisheries exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

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 state. 

(i) An FMEP must prohibit retention 

of green sturgeon (i.e. zero bag limit); set 

maximum incidental take levels, 

include restrictions to minimize 

incidental take of the green sturgeon 

(e.g., temporal/spatial restrictions, size 

of fish, gear used); provide a biologically 

based rationale demonstrating that the 

incidental take management strategy 

will not significantly reduce the 

likelihood of survival or recovery; 

include effective monitoring and 

evaluation plans; provide for evaluating 

monitoring data and making revisions to 

the FMEP; provide for effective 

enforcement and education; and report 

the amount of incidental take and 

summarize the effectiveness of the 

FMEP to NMFS on a biannual basis. 

(ii) The ESA section 9(a)(1)(B) and 

(a)(1)(C) take prohibitions will not apply 

to ongoing commercial and recreational 

fisheries activities after publication of 

the final rule, for up to 120 days, if a 

letter of intent to develop an FMEP that 

is protective of green sturgeon has been 

received by NMFS within 30 days after 

the final rule is published in the Federal 

Register. The exemption will expire if 

the letter of intent is rejected without 

further review of a FMEP. If the letter of 

intent is received within 30 days of 

publication of the final 4(d) rule in the 

Federal Register, a final FMEP must be 

received by NMFS within 120 days from 

the date of receipt of the letter of intent. 

Ongoing commercial and recreational 

fisheries activities may continue until 

NMFS issues a letter of concurrence or 

denial for final FMEPs. 

(iii) NMFS’ will provide a public 

comment period (≥ 30 days) before 

approval of new or amended FMEPs; 

provide a letter of concurrence for 

approved FMEPs that specifies the 

implementation and reporting 

requirements; evaluate FMEPs on a 

regular basis and identify changes that 

would improve their effectiveness; and 

provide a public comment period (≥ 30 

days) before withdrawing approval of an 

FMEP. 

(3) Tribal exemptions. The 

prohibitions of paragraph (a) of this 

section relating to the threatened 

Southern DPS listed in § 223.102(c)(1) 

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 


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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. 

(i) A Tribal Plan may include, but is 

not limited to, plans that address fishery 

harvest, artificial production, research, 

or water or land management, and may 

be developed by one tribe or jointly 

with other tribes. The Secretary will 

consult on a government-to-government 

basis with any tribe that so requests and 

will provide, to the maximum extent 

practicable, technical assistance in 

examining impacts on the Southern DPS 

as tribes develop Tribal Plans. A Tribal 

Plan must specify the procedures by 

which the tribe will enforce its 

provisions. 

(ii) Where there exists a Federal court 

proceeding with continuing jurisdiction 

over the subject matter of a Tribal Plan, 

the plan may be developed and 

implemented within the ongoing 

Federal Court proceeding. In such 

circumstances, compliance with the 

Tribal Plan’s terms shall be determined 

within that Federal Court proceeding. 

(iii) The Secretary shall seek comment 

from the public on the Secretary’s 

pending determination whether or not 

implementation of a Tribal Plan will 

appreciably reduce the likelihood of 

survival and recovery of the listed 

Southern DPS. 

(iv) The Secretary shall publish 

notification in the Federal Register of 

any determination regarding a Tribal 

Plan and the basis for that 

determination. 

(d) 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 of North American green 

sturgeon listed in § 223.102(c)(1), any 

person claiming that their take is 

authorized via methods listed in 

paragraph (b) of this section shall have 

a defense where the person can 

demonstrate that the take authorization 

is applicable and was in force, and that 

the person fully complied with the take 

authorization 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. 

[FR Doc. E9–11945 Filed 5–20–09; 8:45 am] 

BILLING CODE 3510–22–S 


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