Endangered and Threatened Species: Final Protective Regulations for Threatened Upper Columbia River Steelhead, 5177-5180 [06-929]
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Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations
47 CFR 73.670(b) and (c) and
Note 1, § 73.671(e) and (f), and
§ 76.225(b) and (c) and Note 1 are stayed
effective February 1, 2006, until further
notice. The Commission will publish a
document in the Federal Register
announcing the lift of the stay.
ADDRESSES: Federal Communications
Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Kim
Matthews, Policy Division, Media
Bureau, Federal Communications
Commission, (202) 418–2120.
SUPPLEMENTARY INFORMATION: On
September 9, 2004, the Commission
adopted a Report and Order and Further
Notice of Proposed Rule Making
(‘‘Order’’) in MM Docket 00–167. The
Order addresses matters related to two
areas: The obligation of television
licensees to provide educational
programming for children and the
requirement that television licensees
protect children from excessive and
inappropriate commercial messages.
Some of the rules and policies adopted
in the Order apply only to digital
broadcasters while others apply to both
analog and digital broadcasters as well
as cable operators. Most of the rules
adopted in the Order were scheduled to
take effect on January 1, 2006.
A number of parties petitioned for
Commission reconsideration of the
Order. Those reconsideration petitions
are now pending before the
Commission. On September 26, 2005,
Viacom, Inc. (Viacom), The Walt Disney
Company (Disney), NBC Universal, Inc.,
and NBC Telemundo License Co. filed
a Motion for Extension of Effective Date
or, in the Alternative, Administrative
Stay with the Commission requesting
that the Commission stay the rules or
delay their effective date until after the
Commission acts on the petitions for
reconsideration. In addition, in late
September and early October, 2005, the
Office of Communication of the United
Church of Christ (UCC) and Viacom
withdrew their participation in
reconsideration petitions and filed
separate petitions for judicial review of
the Order. UCC filed a petition for
review of the Order in the U.S. Court of
Appeals for the Sixth Circuit on
September 26, 2005. Viacom filed a
petition for review of the Order in the
U.S. Circuit Court of Appeals for the
D.C. Circuit on October 3, 2005. Disney
subsequently filed a petition for writ of
mandamus with the D.C. Circuit
requesting that the Commission be
directed to act on the petitions for
reconsideration or that the Court stay
the rules until the Commission decides
the reconsideration petitions. Viacom
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DATES:
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then also asked the D.C. Circuit to stay
the rules until it resolved Viacom’s
petition for review. On November 16,
2005, the D.C. Circuit transferred both
Viacom’s petition and Disney’s petition
to the Sixth Circuit.
Representatives of the broadcast and
cable industries and public interest
groups interested in children’s
television issues have been meeting in
an attempt to resolve their differences
regarding the new rules that are the
subject of the litigation. Those parties
have now informed the Commission
that they have reached an agreement on
a recommendation to the Commission
that, if adopted, would resolve their
concerns with the Commission’s rules.
The parties’ recommendation would
maintain with modifications most of the
rules adopted by the Commission to
promote educational programming for
children and to protect children from
overcommercialization on television.
The Commission will, of course, make
an independent determination on the
appropriate course of action on
reconsideration. However, we greatly
appreciate a joint recommendation from
these previously adverse interests and
will give their recommendation serious
consideration. The parties have further
recommended that the Commission
should stay the effective date of the new
rules until 60 days after publication in
the Federal Register of the
Commission’s order on reconsideration,
a course of action that would give the
Commission the time to evaluate the
parties’ recommendation in the pending
reconsideration proceeding and would
permit the petitions for judicial review
to be held in abeyance and the stay
motions now pending before the Sixth
Circuit to become moot. In light of that
agreement and the issues raised in the
pending petitions for reconsideration,
we find that the public interest is served
by delaying the effective date of the new
rules to permit the Commission to act
on the petitions for reconsideration and
to afford broadcasters and cable
operators additional time to come into
compliance with the revised children’s
television requirements, as such
requirements may be modified on
reconsideration. The Commission will
publish a document in the Federal
Register announcing the lift of the stay.
Accordingly, we are hereby staying
the effective date of newly adopted
§ 73.670(b) and (c) and Note 1,
§ 73.671(e) and (f) (referred to in the
Report and Order and Further Notice of
Proposed Rule Making in MM Docket
No. 00–167, 19 FCC Rcd 22,943 (2004),
as 47 CFR 73.671 Notes 3 and 4), and
§ 76.225(b) and (c) and Note 1 of the
Commission’s rules until further notice.
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We find for good cause that notice and
comment are impracticable based on the
imminent effective date, the measures
that would be required by the industry
to comply with the new rules, which
may be modified on reconsideration, the
broad-based agreement to the stay by
children’s television advocates and
industry representatives, and the fact
that we are only temporarily staying the
effective date until we resolve the
pending petitions for reconsideration.
Congressional Review Act. The
Commission will not send a copy of this
Order Staying Effective Date to Congress
and the General Accounting Office
(GAO) pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A),
because the Commission is only staying
the effective date of its rules and this
action is not subject to the
Congressional Review Act.
Paperwork Reduction. This Order
Staying Effective Date does not contain
new or modified information collection
requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104–
13. In addition, therefore, it does not
contain any new or modified
‘‘information collection burden for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(ca)(4).).
Accordingly, it is ordered that the
effective date of 47 CFR 73.670(b) and
(c) and Note 1, § 73.671(e) and (f), and
§ 76.225(b) and (c) and Note 1 as
adopted in the Order in the abovecaptioned proceeding is stayed until
further notice.
List of Subjects in 47 CFR Parts 73 and
76
Cable, Television.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 06–799 Filed 1–31–06; 8:45 am]
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Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations
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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final listing determination.
AGENCY:
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.
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 https://
www.nwr.noaa.gov.
DATES:
SUPPLEMENTARY INFORMATION:
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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
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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 (§ 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
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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
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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
https://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
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(50 CFR 223.203(b)(1)); scientific or
artificial propagation activities with
pending permit applications at the time
of rulemaking (§ 223.203(b)(2));
emergency actions related to injured,
stranded, or dead salmonids
(§ 223.203(b)(3)); fishery management
activities (§ 223.203(b)(4)); hatchery and
genetic management programs
(§ 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
(§ 223.203(b)(6)); scientific research
activities permitted or conducted by the
states (§ 223.203(b)(7)); state, local, and
private habitat restoration activities
(§ 223.203(b)(8)); properly screened
water diversion devices
(§ 223.203(b)(9)); routine road
maintenance activities
(§ 223.203(b)(10)); certain park pest
management activities
(§ 223.203(b)(11)); certain municipal,
residential, commercial, and industrial
development and redevelopment
activities (§ 223.203(b)(12));
management activities on state and
private lands within the State of
Washington (§ 223.203(b)(13)); and
activities undertaken consistent with an
approved tribal resource management
plan (§ 223.204).
Limit § 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
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5179
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.
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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: https://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.
PART 223—THREATENED MARINE
AND ANADROMOUS SPECIES
1. The authority citation for part 223
continues to read as follows:
I
Authority: 16 U.S.C. 1531–1543; subpart B,
§ 223.12 also issued under 16 U.S.C. 1361 et
seq.
2. In § 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:
I
For the reasons set out in the
preamble, 50 CFR part 223 is amended
as follows:
I
Section
Remove
§ 223.203(a)
§ 223.203(b)(1)
§ 223.203(b)(2)
§ 223.203(b)(3)
§ 223.203(b)(4)
§ 223.203(b)(5)
§ 223.203(b)(6)
§ 223.203(b)(7)
§ 223.203(b)(8)
§ 223.203(b)(9)
§ 223.203(b)(10)
§ 223.203(b)(11)
§ 223.203(b)(12)
§ 223.203(b)(13)
§ 223.203(c)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
§ 223.102(a)(2)
3. In § 223.203, paragraph (b)(2) is
revised to read as follows:
I
§ 223.203
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Anadromous fish.
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*
*
*
*
*
(b) * * *
(2) The prohibitions of paragraph (a)
of this section relating to threatened
species of salmonids listed in
§ 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]
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50 CFR Part 229
[Docket No. 030221039-6017-25; I.D.
012706A]
Taking of Marine Mammals Incidental
to Commercial Fishing Operations;
Atlantic Large Whale Take Reduction
Plan (ALWTRP)
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule.
AGENCY:
SUMMARY: The Assistant Administrator
for Fisheries (AA), NOAA, announces
temporary restrictions consistent with
the requirements of the ALWTRP’s
implementing regulations. These
regulations apply to lobster trap/pot and
anchored gillnet fishermen in an area
totaling approximately 2,404 nm2 (8,245
km2), southeast of Portland, ME, for 15
days. The purpose of this action is to
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through
through
through
through
through
through
through
through
through
through
through
through
through
through
through
Add
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
(a)(21)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
§ 223.102(a)
provide protection to an aggregation of
northern right whales (right whales).
DATES: Effective beginning at 0001 hours
February 3, 2006, through 2400 hours
February 17, 2006.
ADDRESSES: Copies of the proposed and
final Dynamic Area Management (DAM)
rules, Environmental Assessments
(EAs), Atlantic Large Whale Take
Reduction Team (ALWTRT) meeting
summaries, and progress reports on
implementation of the ALWTRP may
also be obtained by writing Diane
Borggaard, NMFS/Northeast Region,
One Blackburn Drive, Gloucester, MA
01930.
FOR FURTHER INFORMATION CONTACT:
Diane Borggaard, NMFS/Northeast
Region, 978–281–9300 x6503; or Kristy
Long, NMFS, Office of Protected
Resources, 301–713–1401.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several of the background documents
for the ALWTRP and the take reduction
planning process can be downloaded
from the ALWTRP web site at https://
www.nero.noaa.gov/whaletrp/.
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[Federal Register Volume 71, Number 21 (Wednesday, February 1, 2006)]
[Rules and Regulations]
[Pages 5177-5180]
From the Federal Register Online via the Government Printing 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 https://
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:
https://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
