Endangered and Threatened Species: Final Protective Regulations for Threatened Upper Columbia River Steelhead, 5177-5180 [06-929]

Download as PDF 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 erjones on PROD1PC61 with RULES DATES: VerDate Aug<31>2005 14:29 Jan 31, 2006 Jkt 205001 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. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 5177 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] BILLING CODE 6712–01–P E:\FR\FM\01FER1.SGM 01FER1 5178 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 http:// www.nwr.noaa.gov. DATES: SUPPLEMENTARY INFORMATION: erjones on PROD1PC61 with RULES 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 VerDate Aug<31>2005 14:29 Jan 31, 2006 Jkt 205001 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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 E:\FR\FM\01FER1.SGM 01FER1 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations erjones on PROD1PC61 with RULES 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 VerDate Aug<31>2005 14:29 Jan 31, 2006 Jkt 205001 (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 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 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. E:\FR\FM\01FER1.SGM 01FER1 5180 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 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. 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. erjones on PROD1PC61 with RULES * * * * * (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] BILLING CODE 3510–22–S VerDate Aug<31>2005 16:17 Jan 31, 2006 Jkt 208001 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 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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 http:// www.nero.noaa.gov/whaletrp/. E:\FR\FM\01FER1.SGM 01FER1

Agencies

[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.

-----------------------------------------------------------------------

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
------------------------------------------------------------------------
                  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)
                   )
------------------------------------------------------------------------


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