[Federal Register Volume 71, Number 21 (Wednesday, February 1, 2006)]
[Rules and Regulations]
[Pages 5178-5180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-929]
[[Page 5178]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 060124013-6013-01; I.D. 052104F]
RIN 0648-AU18
Endangered and Threatened Species: Final Protective Regulations
for Threatened Upper Columbia River Steelhead
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final listing determination.
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SUMMARY: We, NOAA's National Marine Fisheries Service (NMFS), are
applying the protective regulations for threatened West Coast salmon
and steelhead to Upper Columbia River steelhead. Upper Columbia River
steelhead were previously listed as endangered in 1997 and were thereby
afforded protections against ``take'' under the Endangered Species Act
(ESA). On January 5, 2006, the listing status of Upper Columbia River
steelhead was changed to threatened. We have determined that the
existing protective regulations for threatened West Coast salmonids are
necessary and advisable for the conservation of Upper Columbia River
steelhead.
DATES: This final determination is effective March 3, 2006.
ADDRESSES: NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard,
Suite 1100, Portland, OR 97232.
FOR FURTHER INFORMATION CONTACT: Dr. Scott Rumsey, NMFS, Northwest
Region, Protected Resources Division, at (503) 872-2791, and Marta
Nammack, NMFS, Office of Protected Resources, at (301) 713-1401.
Reference materials regarding the protective regulations for threatened
salmonids are available upon request or on the Internet at http://www.nwr.noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
ESA section 9(a)(1) (16 U.S.C. 1538(a)(1)) prohibits the import/
export and ``take'' of, and commercial transactions involving all
species listed as endangered. The term ``take'' is defined under the
ESA as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect, or to attempt to engage in any such conduct''
(Section 3(19), 16 U.S.C. 1532 (19)). In the case of threatened
species, section 4(d) of the ESA leaves it to the discretion of the
Secretary of Commerce (Secretary) whether, and to what extent, to apply
the statutory 9(a)(1) take and other prohibitions, and directs the
agency to issue regulations it deems necessary and advisable for the
conservation of the species. The 4(d) protective regulations may
prohibit, with respect to threatened species, some or all of the acts
which section 9(a)(1) of the ESA prohibits with respect to endangered
species. These 9(a)(1) prohibitions and 4(d) regulations apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Since 1997 we have promulgated a total of 29 ``limits'' to the ESA
section 9(a) ``take'' prohibitions for 19 threatened salmon and
steelhead Evolutionarily Significant Units (ESUs) (62 FR 38479, July
18, 1997; 65 FR 42422, July 10, 2000; 65 FR 42485, July 10, 2000; 67 FR
1116, January 9, 2002). On June 28, 2005, as part of the final listing
determinations for 16 ESUs of West Coast salmon, we amended and
streamlined the previously promulgated 4(d) protective regulations for
threatened salmon and steelhead (70 FR 37160). We finalized an
amendment to provide the necessary flexibility to ensure that fisheries
and artificial propagation programs are managed consistently with the
conservation needs of threatened salmon and steelhead. Under this
change the section 4(d) protections apply to natural and hatchery fish
with an intact adipose fin, but not to listed hatchery fish that have
had their adipose fin removed prior to release into the wild.
Additionally, we made several simplifying and clarifying changes to the
4(d) protective regulations including updating an expired limit (Sec.
223.203(b)(2)), providing a temporary exemption for ongoing research
and enhancement activities, and applying the same set of 14 limits to
all threatened salmon and steelhead. With respect to steelhead, the
amended June 2005 4(d) rule applies to the steelhead ESUs previously
listed as threatened: South-Central California, Central California
Coast, California Central Valley, Northern California, Upper Willamette
River, Lower Columbia River, Middle Columbia River, and Snake River
Basin steelhead.
On August 18, 1997, Upper Columbia River steelhead were listed as
an endangered species, and subject to the section 9(a)(1) take
prohibitions (62 FR 43937). After conducting an updated status review
of listed West Coast steelhead, we proposed in June 2004 to list Upper
Columbia River steelhead as threatened (69 FR 33102; June 14, 2004). As
part of the proposed listing determination we proposed applying the
amended 4(d) protective regulations to Upper Columbia River steelhead.
On January 5, 2006, we issued a final determination listing the Upper
Columbia River steelhead Distinct Population Segment (DPS) as
threatened, and we announced that we would finalize the protective
regulations in a subsequent Federal Register notice (71 FR 834). In
this final rule we are applying the 4(d) protective regulations, as
amended in June 2005 (70 FR 37160; June 28, 2005), to Upper Columbia
River steelhead.
Comments and Information Received in Response to the Proposed Rule
We solicited public comment on the proposed listing determinations
for West Coast salmon and steelhead, and the proposed amendments to the
4(d) protective regulations for a total of 268 days (69 FR 33102, June
14, 2004; 69 FR 53031, August 31, 2004; 69 FR 61348, October 18, 2004;
70 FR 6840, February 9, 2005;70 FR 37219, June 28, 2005; 70 FR 67130,
November 4, 2005). We held eight public hearings in the Pacific
Northwest, and six public hearings in California, concerning the June
2004 West Coast salmon and steelhead proposed listing determinations
and proposed amendments to the 4(d) protective regulations (69 FR
53031, August 31, 2004; 69 FR 54647, September 9, 2004; 69 FR 61348,
October 18, 2004). Additionally, pursuant to the requirements of the
National Environmental Policy Act (NEPA) of 1969, we conducted an
Environmental Assessment (EA) analyzing the proposed amendments to the
4(d) protective regulations for threatened salmonids. As part of the
proposed listing determinations and the proposed amendments to the 4(d)
protective regulations, we announced that a draft of the EA was
available from NMFS upon request (69 FR at 33172; June 14, 2004).
Additionally, on November 15, 2004, we published notice of availability
in the Federal Register, soliciting comment on the draft EA for an
additional 30 days (69 FR 65582).
In response to the various requests for comments on the June 2004
proposed listing determinations and proposed 4(d) protective
regulations, we received over 28,250 comments by fax, standard mail,
and e-mail. The majority of the comments received were from interested
individuals who submitted form letters or form e-mails and addressed
general issues not specific to a particular ESU. Comments were also
submitted by state and tribal natural resource agencies, fishing
groups, environmental
[[Page 5179]]
organizations, home builder associations, academic and professional
societies, expert advisory panels, farming groups, irrigation groups,
and individuals with expertise in Pacific salmonids. The majority of
respondents focused on the consideration of hatchery-origin fish in ESA
listing determinations, with only a few comments specifically
addressing the proposed amendments to the 4(d) protective regulations.
We did not receive any comments specifically addressing the proposed
application of the amended 4(d) protective regulations to Upper
Columbia River steelhead. The reader is referred to the June 28, 2005,
final rule for a summary of, and our response to, the public comments
received regarding the proposed amendments to the 4(d) protective
regulations (70 FR 37160 at 37166).
Description of Protective Regulations Being Afforded Upper Columbia
River Steelhead
Consistent with the June 2005 amended 4(d) protective regulations,
this final rule applies the ESA section 9(a)(1) take prohibitions
(subject to the ``limits'' discussed below) to unmarked anadromous fish
with an intact adipose fin that are part of the Upper Columbia River
steelhead DPS. (The clipping of adipose fins in juvenile hatchery fish
just prior to release into the natural environment is a commonly
employed method for the marking of hatchery production). We believe
this approach provides needed flexibility to appropriately manage the
artificial propagation and directed take of threatened salmon and
steelhead for the conservation and recovery of the listed species
The June 2005 amended ESA 4(d) protective regulations simplified
the previously promulgated 4(d) rules by applying the same set of 14
``limits'' to all threatened salmon and steelhead. These limits allow
us to exempt certain activities from the take prohibitions, provided
that the applicable programs and regulations meet specific conditions
to adequately protect the listed species. In this final rule we are
applying this same set of 14 limits to Upper Columbia River steelhead.
Comprehensive descriptions of each 4(d) limit are contained in ``A
Citizen's Guide to the 4(d) Rule'' (available on the Internet at http://www.nwr.noaa.gov), and in previously published Federal Register
notices (65 FR 42422, July 10, 2000; 65 FR 42485, July 10, 2000; 69 FR
33102; June 14, 2004; 70 FR 37160, June 28, 2005). These ``limits''
include: activities conducted in accordance with ESA section 10
incidental take authorization (50 CFR 223.203(b)(1)); scientific or
artificial propagation activities with pending permit applications at
the time of rulemaking (Sec. 223.203(b)(2)); emergency actions related
to injured, stranded, or dead salmonids (Sec. 223.203(b)(3)); fishery
management activities (Sec. 223.203(b)(4)); hatchery and genetic
management programs (Sec. 223.203(b)(5)); activities in compliance
with joint tribal/state plans developed within United States (U.S.) v.
Washington or U.S. v. Oregon (Sec. 223.203(b)(6)); scientific research
activities permitted or conducted by the states (Sec. 223.203(b)(7));
state, local, and private habitat restoration activities (Sec.
223.203(b)(8)); properly screened water diversion devices (Sec.
223.203(b)(9)); routine road maintenance activities (Sec.
223.203(b)(10)); certain park pest management activities (Sec.
223.203(b)(11)); certain municipal, residential, commercial, and
industrial development and redevelopment activities (Sec.
223.203(b)(12)); management activities on state and private lands
within the State of Washington (Sec. 223.203(b)(13)); and activities
undertaken consistent with an approved tribal resource management plan
(Sec. 223.204).
Limit Sec. 223.203((b)(2) exempts scientific or artificial
propagation activities with pending applications for 4(d) approval. The
limit was amended as part of the June 28, 2005, final rule to
temporarily exempt such activities from the take prohibitions for 6
months, provided that a complete application for 4(d) approval was
received within 60 days of the notice's publication (70 FR 37160). The
deadlines associated with this exemption have expired. As we discussed
in the proposed rule (69 FR 33102; June 14, 2004), we believe it is in
the interest of the conservation and recovery of threatened salmon and
steelhead to allow research and enhancement activities to continue
uninterrupted while we process the necessary 4(d) approvals. Provided
we receive a complete application by April 3, 2006, the take
prohibitions will not apply to research and enhancement activities
until the application is rejected as insufficient, 4(d) approval is
issued, or until March 1, 2007, whichever occurs earliest. The length
of this ``grace period'' is necessary because we process applications
for 4(d) approval annually.
Classification
National Environmental Policy Act
We conducted an Environmental Assessment (EA) under the NEPA
analyzing the proposed application of the amended 4(d) protective
regulations to Upper Columbia River steelhead. We solicited comment on
the EA as part of the proposed rule, as well as during a subsequent
comment period following formal notice in the Federal Register of the
availability of the draft EA for review. Informed by the comments
received, we finalized the EA on June 14, 2005, and issued a Finding of
No Significant Impact for the amended 4(d) protective regulations.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that the proposed rule issued under authority of ESA
section 4, if adopted, would not have a significant economic impact on
a substantial number of small entities. The factual basis for this
certification was published with the proposed rule, and is not repeated
here. No comments were received regarding that certification. As a
result, no final regulatory flexibility analysis for applying the 4(d)
protective regulations to Upper Columbia River steelhead contained in
this final rule has been prepared.
Executive Order (E.O.) 12866
The extension of the ESA 4(d) protective regulations to Upper
Columbia River steelhead addressed in this rule has been determined to
be significant for the purposes of E.O. 12866. We prepared a Regulatory
Impact Review which was provided to the Office of Management and Budget
(OMB) with the publication of the proposed rule.
E.O. 13084 - Consultation and Coordination with Indian Tribal
Governments
E.O. 13084 requires that if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments or the Federal
government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. This final rule
does not impose substantial direct compliance costs on the communities
of Indian tribal governments. Accordingly, the requirements of section
3(b) of E.O. 13084 do not apply to this action. Nonetheless, we intend
to inform potentially affected tribal governments and to solicit their
input and coordinate on future management actions.
[[Page 5180]]
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 final rule. In fact, this notice
provides mechanisms by which NMFS, in the form of 4(d) limits to the
statutory take prohibitions, may defer to state and local governments
where they provide adequate protections for threatened salmonids,
including Upper Columbia River steelhead.
References
A complete list of all references cited herein is available upon
request (see ADDRESSES), or can be obtained from the Internet at:
http://www.nwr.noaa.gov.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports.
Dated: January 26, 2006.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 223 is amended as
follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.
0
2. In Sec. 223.203, paragraphs (a), (b)(1) through (b)(13), and (c),
the references in the sections listed in the first column below are
revised according to the directions in the second and third columns:
------------------------------------------------------------------------
Section Remove Add
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Sec. Sec. 223.102(a)(2) through Sec.
223.203(a (a)(21) 223.102(a)
)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(1)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(2)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(3)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(4)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(5)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(6)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(7)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(8)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(9)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(10)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(11)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(12)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(b (a)(21) 223.102(a)
)(13)
Sec. Sec. 223.102(a)(2) through Sec.
223.203(c (a)(21) 223.102(a)
)
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0
3. In Sec. 223.203, paragraph (b)(2) is revised to read as follows:
Sec. 223.203 Anadromous fish.
* * * * *
(b) * * *
(2) The prohibitions of paragraph (a) of this section relating to
threatened species of salmonids listed in Sec. 223.102(a) do not apply
to activities specified in an application for ESA 4(d) authorization
for scientific purposes or to enhance the conservation or survival of
the species, provided that the application has been received by the
Assistant Administrator for Fisheries, NOAA (AA), no later than April
3, 2006. The prohibitions of this section apply to these activities
upon the AA's rejection of the application as insufficient, upon
issuance or denial of authorization, or March 1, 2007, whichever occurs
earliest.
* * * * *
[FR Doc. 06-929 Filed 1-31-06; 8:45 am]
BILLING CODE 3510-22-S