[Federal Register Volume 62, Number 138 (Friday, July 18, 1997)]
[Rules and Regulations]
[Pages 38479-38485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18804]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 227

[Docket No. 970424096-7155-02; I.D. 042597A]
RIN 0648-AG56


Endangered and Threatened Species; Interim Rule Governing Take of 
the Threatened Southern Oregon/Northern California Coast Evolutionarily 
Significant Unit (ESU) of Coho Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim rule; request for comments.

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SUMMARY: By a rule published on May 6, 1997, NMFS, on behalf of the 
Secretary of Commerce (Secretary), determined to list as threatened the 
Southern Oregon/Northern California Coast (SONCC) ESU of coho salmon 
(Oncorhynchus kisutch). Under section 4(d) of the Endangered Species 
Act (ESA), the Secretary is required to adopt such regulations as he 
deems necessary and advisable for the conservation of species listed as 
threatened. Such regulations may include application of the 
prohibitions contained in section 9(a) of the ESA, which apply to 
endangered species. In this interim rule, NMFS imposes the section 9(a) 
prohibitions for endangered species, except with respect to certain 
benign and beneficial actions in Oregon and California, and specified 
actions taken consistent with the Oregon Coastal Salmon Restoration 
Initiative (OCSRI) and implemented consistent with the April 1997 
Memorandum of Agreement (MOA) between NMFS and the Governor of Oregon. 
The Federal Register document containing the final listing 
determination describes the relevant details of the OCSRI and the 
implementing MOA.

DATES: Comments on this rule must be received by September 16, 1997.
    This interim rule is effective August 18, 1997.

ADDRESSES: Comments should be sent to Protected Species Program, 
Environmental and Technical Services Division, NMFS, Northwest Region, 
525 NE Oregon Street, Suite 500, Portland, OR 97232-2737.

FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005; Craig 
Wingert at 310-980-4021; or Joe Blum at 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    The final rule determining to list the SONCC coho salmon ESU as 
threatened, published on May 6, 1997 (62 FR 24588), describes the 
current range and status of this ESU, previous Federal actions on this 
species, a summary of the comments and recommendations received in 
response to NMFS' proposal to list the ESU, descriptions of the factors 
affecting its continued existence, the reasons why critical habitat is 
not being proposed, and the conservation measures recommended by NMFS 
or otherwise available to this ESU.
    Section 4(d) of the ESA provides that, whenever a species is listed 
as a threatened species, the Secretary shall issue such regulations as 
he deems necessary and advisable to provide for the conservation of the 
species, including any or all of the prohibitions applicable to 
endangered species under section 9(a). Those section 9(a) prohibitions, 
in part, make it illegal for any person subject to the jurisdiction of 
the United States to take (including harass, harm, pursue, hunt, shoot, 
wound, kill, trap, or collect; or to attempt any of these), import or 
export, ship in interstate commerce in the course of commercial 
activity, or sell or offer for sale in interstate or foreign commerce 
any wildlife species listed as endangered. It is also illegal to 
possess, sell, deliver, carry, transport, or ship any such wildlife 
that has been taken illegally.
    When NMFS first proposed the ESU for listing as threatened (60 FR 
38011, July 25, 1995), it also proposed to apply the prohibitions of 
section 9(a) to this species. NMFS continues to find that the 
prohibitions for endangered species are generally necessary and 
advisable for conservation of the species. NMFS further finds that take 
of the SONCC coho salmon should not be prohibited when it results from 
a specific subset of activities adequately regulated by Federal, state, 
and local governments. Accordingly, this interim rule revises the 
earlier proposal by providing certain additional exceptions.
    NMFS has chosen to make this rule interim rather than final in 
order to give the public the opportunity to comment on the additional 
exceptions that are included in the new Sec. 227.22. NMFS will consider 
all comments submitted during the comment period before issuing a final 
rule.

Interim Take Exceptions in Oregon

    Following NMFS' proposal to list Oregon Coast and SONCC coho 
salmon, the State of Oregon initiated a major effort to address the 
factors for decline of these at-risk stocks. That effort culminated in 
the adoption by Oregon of the OCSRI. The OCSRI contains significant 
improvements in hatchery management and in harvest management. Previous 
harvest rate reductions on Oregon coastal coho, as refined and 
incorporated in the OCSRI, are expected to result in an increase in the 
near-term stability of the populations. The OCSRI also includes a broad 
array of state agency and other measures affecting habitat.
    NMFS sought to ensure that the adaptive management program 
contained in the OCSRI would rapidly lead to the ultimate 
implementation of measures and rules that NMFS would consider adequate 
in these areas. Accordingly, NMFS entered into an MOA with the Governor 
of Oregon in April 1997 to clarify how NMFS and Oregon will work 
together toward implementation, necessary adjustments, and adaptive 
changes to the OCSRI. (Copies of the MOA are available from NMFS; see 
ADDRESSES.)
    Based on a review and assessment of the OCSRI and MOA, NMFS has 
determined that it is unnecessary to prohibit certain benign and 
beneficial actions in Oregon, as well as certain measures provided 
under the OCSRI and implemented in accordance with the MOA. The actions 
NMFS believes do not require prohibition are related to harvest carried 
out in accordance with

[[Page 38480]]

the OCSRI, artificial production carried out in accordance with the 
OCSRI, research and monitoring, and habitat restoration. These 
exceptions do not exempt actions funded, authorized, or carried out by 
Federal agencies, which must comply with section 7 and other applicable 
provisions of the ESA.
    With respect to harvest, the OCSRI provides a comprehensive package 
of measures that reduce harvest rates to an average harvest rate of 
less than 15 percent. Harvest rates would be permitted to increase only 
under carefully specified conditions characterized by significant 
increases in escapement and productivity and in no case would exceed 35 
percent.
    With respect to artificial production, Oregon production is reduced 
from a high of 6.4 million smolts in 1990 to 2.3 million by 1998. The 
OCSRI also specifies that hatchery strays may not exceed 10 percent of 
natural spawning. In addition, the take of naturally produced 
broodstock for hatchery production will be counted against the total 
allocation of fish for harvest and is only allowed if it is not deemed 
detrimental to the recovery of the species. Incorporation of naturally 
produced coho into the hatchery broodstock will minimize genetic 
divergence between the two populations, and will also preserve hatchery 
populations as a ``safety net'' for assisting the natural population in 
the event of a serious decline.
    With respect to the research and monitoring activities consistent 
with the OCSRI, NMFS finds that these activities are vital to improving 
understanding of risks facing salmon in this ESU and to judge the 
effectiveness of conservation measures. They also provide critical 
information to the adaptive management approach of the OCSRI, allowing 
revision of habitat-related actions to ensure best management in the 
future.
    With respect to habitat measures, NMFS finds that certain habitat 
restoration activities are likely to assist in conserving coho. NMFS is 
aware that many projects, particularly those that are part of the 
Southwest Oregon Salmon Restoration Initiative, already have been 
developed and, in some cases, funded. NMFS determines it is advisable 
that incidental take associated with restoration activities that are 
part of the Southwest Oregon Salmon Restoration Initiative not be 
prohibited during the 1997 field season.
    Projects developed, prioritized, and carried out based on at least 
a watershed scale assessment and action plan, and, where possible, a 
sub-basin or basin scale, are likely to be the most beneficial. The 
interim rule therefore provides that section 9 take prohibitions will 
not apply to activities conducted pursuant to watershed action plans or 
watershed restoration plans that are consistent with NMFS-approved 
guidelines and are approved by the appropriate state agency and NMFS. 
To approve a plan, NMFS must concur that the plan is consistent with 
those guidelines.
    Until a watershed action plan for the watershed in which an 
activity is proposed has been approved, or for 2 years following the 
effective date of this interim rule (whichever comes first), an 
individual habitat restoration activity that is consistent with state 
guidelines that meet the standards of 50 CFR 222.22 is not prohibited. 
Guidelines for approving individual activities and plans will be 
developed by Oregon and NMFS. After a watershed plan has been approved, 
only activities conducted pursuant to the plan are not subject to the 
section 9 take prohibitions. If no plan has been approved for a 
watershed after 2 years following the effective date of this interim 
rule, the general section 9 take prohibitions of this interim rule 
would apply to individual restoration activities the same as to all 
other habitat-affecting activities.

Interim Take Exceptions in California

    NMFS has determined that it is unnecessary to prohibit specific 
benign and beneficial actions carried out by state, tribal, and local 
governments in the California portion of the SONCC coho salmon ESU. 
These include: (1) Certain fishery management activities conducted by 
the State, (2) fisheries research and monitoring activities permitted 
or conducted by the State, and (3) certain State, local, tribal, and 
private habitat restoration activities. These exceptions do not exempt 
actions funded, authorized, or carried out by Federal agencies, which 
must comply with section 7 and other applicable provisions of the ESA.
    The State of California has jurisdiction over fisheries within 3 
miles (approximately 5 km) of its coast. The California Fish and Game 
Commission (CFGC) and the California Department of Fish and Game (CDFG) 
are responsible for establishing the State's sport and commercial ocean 
salmon fishing regulations, respectively, within 3 miles (approximately 
5 km) of the coast each year. Typically, the CFGC and CDFG conform the 
State's ocean salmon fishing regulations to those adopted by NMFS for 
the Federal Exclusive Economic Zone (EEZ). NMFS has determined that it 
is advisable that incidental take of coho salmon associated with these 
State fisheries management activities not be prohibited provided the 
regulations issued by the State are consistent with the ocean salmon 
fishing regulations implemented by NMFS for the Federal EEZ.
    In carrying out its fisheries management responsibilities in 
California, the CDFG conducts or permits a wide range of research and 
monitoring studies on various fisheries, including studies on coho 
salmon which occur in the California portion of the SONCC ESU. NMFS 
finds that these activities are vital for improving our understanding 
of the status and risks facing coho salmon and other species in this 
ESU and will provide critical information for assessing the 
effectiveness of current and future management practices.
    There are numerous ongoing local habitat restoration and watershed 
planning efforts that are expected to contribute to the conservation of 
coho salmon in the California portion of the SONCC coho salmon ESU. 
These include, but are not limited to, restoration efforts in the Scott 
River watershed, the Shasta River watershed, the South Fork Trinity 
Watershed, and the Mattole River. In addition, there are county-based 
Resource Conservation Districts throughout the range of coho in the 
California portion of this ESU that are providing a focus for 
agricultural interests and local conservation groups to develop and 
prioritize habitat restoration plans. NMFS believes that certain 
activities in California are likely to assist in conserving coho 
salmon, provided that California puts in place a program that assures 
technically supported watershed assessments and coordinated long-term 
monitoring strategies for watershed protection plans and activities. 
This interim rule, therefore, does not apply section 9 prohibitions to 
activities conducted in accordance with such a program and an approved 
watershed plan or guidelines, under similar conditions as described in 
the section ``Interim Take Exceptions in Oregon,'' above.
    Coho salmon in the SONCC ESU are currently harvested by the Yurok 
and Hoopa Indian tribes, incidental to larger subsistence fisheries for 
chinook salmon in the Klamath and Trinity Rivers. These fisheries are 
conducted in accordance with the tribes' existing federally reserved 
fishing rights. Harvest management practiced by both tribes is 
conservative, focuses on the harvest of chinook salmon stocks, and has 
had limited impacts on coho salmon in the SONCC ESU. In recognition of 
the tribes' federally reserved fishing rights, special status, and 
other tribal conservation programs, NMFS intends

[[Page 38481]]

to work with the tribal governments in California to identify an 
appropriate mechanism for authorizing the incidental take of coho 
salmon in these chinook fisheries. NMFS may consider promulgation of a 
separate 4(d) regulation, consistent with the conservation of SONCC 
coho salmon, to achieve this objective.
    The prohibitions of section 9 will not apply to activities 
specified in an application for a permit for scientific purposes or to 
enhance the propagation or survival of the species, provided that an 
application has been received by the Assistant Administrator for 
Fisheries, NOAA (AA), by September 16, 1997. This exception will cease 
upon the AA's rejection of the application as insufficient, upon 
issuance or denial of a permit, or on January 20, 1998, whichever 
occurs earliest.

Take Guidance

    NMFS and the U.S. Fish and Wildlife Service published in the 
Federal Register on July 1, 1994 (59 FR 34272), a policy that NMFS 
shall identify, to the maximum extent practicable at the time a species 
is listed, those activities that would or would not constitute a 
violation of section 9 of the ESA. The intent of this policy is to 
increase public awareness of the effect of a listing on proposed and 
on-going activities within the species' range. NMFS believes that, 
based on the best available information, the following actions will not 
result in a violation of this interim rule:
    1. Possession of coho salmon from the Southern Oregon/Northern 
California Coast ESU acquired lawfully by permit issued by NMFS 
pursuant to section 10 of the ESA, or by the terms of an incidental 
take statement pursuant to section 7 of the ESA.
    2. Federally funded or approved projects that involve activities 
such as silviculture, grazing, mining, road construction, dam 
construction and operation, discharge of fill material, stream 
channelization or diversion for which section 7 consultation has been 
completed, and when such activity is conducted in accordance with any 
terms and conditions provided by NMFS in an incidental take statement 
accompanied by a biological opinion pursuant to section 7 of the ESA.
    Activities that NMFS believes could potentially harm, injure or 
kill coho salmon in the Southern Oregon/Northern California Coast ESU 
and result in a violation of this rule include, but are not limited to:
    1. Land-use activities that adversely affect coho salmon habitat in 
this ESU (e.g., logging, grazing, farming, road construction in 
riparian areas, and areas susceptible to mass wasting and surface 
erosion);
    2. Except for the habitat alteration activities that are excepted 
from take prohibitions in this rule, destruction or alteration of coho 
salmon habitat in this ESU, such as removal of large woody debris and 
``sinker logs'' or riparian shade canopy, dredging, discharge of fill 
material, draining, ditching, diverting, blocking, or altering stream 
channels or surface or ground water flow;
    3. Discharges or dumping of toxic chemicals or other pollutants 
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting 
the listed coho salmon;
    4. Violation of discharge permits;
    5. Pesticide applications;
    6. Interstate and foreign commerce of coho salmon from the SONCC 
coho ESU and import/export of coho salmon from this ESU without an ESA 
permit, unless the fish were harvested pursuant to this rule;
    7. Except as provided in this interim rule, collecting or handling 
of coho salmon from this ESU. Permits to conduct these activities are 
available for purposes of scientific research or to enhance the 
propagation or survival of the species;
    8. Introduction of non-native species likely to prey on coho salmon 
in this ESU or displace them from their habitat.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that might or might not be 
considered by NMFS as constituting a take of SONCC ESU coho salmon 
under the ESA and its regulations. Questions regarding whether specific 
activities will constitute a violation of this rule, and general 
inquiries regarding prohibitions and permits, should be directed to 
NMFS (see ADDRESSES).

Classification

    For the following reasons, the Assistant General Counsel for 
Legislation and Regulation of the U.S. Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., that this rule will not have a significant economic impact 
on a substantial number of small entities.
    NMFS canvassed business activity by economic sector (SIC codes) in 
Curry, Jackson, and Josephine counties in Oregon, and Del Norte, 
Humboldt, Siskiyou, and Mendocino counties in California. NMFS 
identified fishing, agriculture, sand and gravel mining, construction, 
and timber harvest as the economic sectors likely to be affected by the 
prohibitions of this interim 4(d) rule. These sectors are all 
relatively heavily regulated at Federal and/or state levels independent 
of this action.
    For each sector, NMFS estimated the number of small businesses 
within the geographic range of this ESU, the approximate number of 
employees in that sector, and the annual revenues of those businesses. 
NMFS then used available data to identify what, if any, incremental 
economic impacts the 4(d) prohibitions might create over and above 
impacts attributable to other state or Federal controls, including ESA 
Sec. 7 consultations. In the Commercial and Recreational Fishing 
sector, existing
    ocean salmon fishing regulations that control harvest of SONCC coho 
salmon prohibit retention of coho and limit any incidental take of coho 
resulting from other fisheries to between 10 and 13 percent. Because 
NMFS has determined that these restrictions are sufficient to avoid 
jeopardizing coho in the SONCC ESU, the interim 4(d) rule excepts ocean 
fishing activities conducted under these regulations from take 
prohibitions. Similarly, the interim rule excepts ocean, bay, and 
freshwater fisheries under Oregon's jurisdiction from take 
prohibitions, so long as the activity complies with agreed-upon Oregon 
regulations. Hence the rule will not impose any additional burdens on 
small entities associated with commercial or recreational ocean harvest 
or upon inland recreational fishing in Oregon.
    Existing California regulations for bay and freshwater coho 
fisheries are not as stringent and do not warrant an exception. 
However, California estimates the contribution of coho salmon to in-
river sport catch in the California portion of the ESU to be small. The 
impacts of the rule will be associated with ensuring that coho salmon 
are not targeted in any fishing efforts and that any coho salmon that 
are incidentally hooked are released. NMFS does not expect the take 
prohibitions to result in any fishery closures in California's inland 
waters or a decrease in fishing effort. Consequently, the interim 4(d) 
rule will cause very little, if any, loss of revenue for small entities 
involved in inland recreational fishing activities in the California 
range of the SONCC coho salmon ESU.
    NMFS has determined there are approximately 5,000 agriculture 
businesses within the geographic area of the ESU, with a combined 
annual revenue of approximately $275 million. All entities are assumed 
for this analysis to be small. The majority of agricultural activities 
that might result in take of SONCC coho are those affecting water

[[Page 38482]]

quality, such as sediment from cultivation or livestock movements on 
the banks or in the beds of streams, temperature increases from 
clearing vegetation, confined animal feeding operations, overgrazing, 
and the like. Unscreened water diversions and reduction of flows 
through irrigation could also result in take. To the extent an 
agricultural activity causes water quality impairments, that activity 
is subject to the water pollution control requirements of the Clean 
Water Act (CWA), as administered by the states. For example, in Oregon, 
Agricultural Water Quality Management plans are being developed under 
State law for all water quality impaired stream segments and will 
result in agricultural practices that do not ``take'' through impairing 
water quality. Similar regulation of agricultural activities in 
California fall under the Regional Water Quality Control Board and 
other entities associated with the State's Non-point Source Management 
Plan. Therefore, any additional costs over and above those imposed by 
existing law with respect to water quality related activities are 
likely to be quite small.
    However, it is unlikely that these water quality plans will 
completely protect all important physical habitat conditions from 
further degradation, particularly with respect to reductions in 
remaining riparian vegetation. Therefore, NMFS expects some loss of 
productivity where an agricultural operation ceases to cultivate or 
remove vegetation in a riparian area because of this interim rule. Even 
assuming that all riparian agricultural activity were to be halted 
within 50 ft of coho streams and that none of that restriction were 
attributed to water quality requirements (unrealistically conservative 
assumptions), this would take less than 1 percent of the agricultural 
land within the ESUs out of production.
    To avoid taking juvenile coho, farmers who irrigate will have to 
have proper screening of irrigation pumps or diversions. A relatively 
high proportion of diversions in Oregon are already properly screened 
in accord with existing state requirements. The average cost of 
screening is about $1,000 per screen, and the one-time total cost would 
be in the range of 2 percent of an estimated ``low end'' of annual farm 
income. Oregon has a screening program that defrays much of the cost of 
screen installation and, in any case, this capital cost does not 
represent a significant portion of capital available to agricultural 
operations, considering external financing capabilities and cost share 
opportunities.
    Thus, the two major areas in which agricultural activity may need 
adjustment to comply with the 4(d) prohibitions will result in economic 
impact in the 3-percent range of annual revenue, calculated on the most 
conservative of assumptions. Even if there are some additional 
circumstances where farm practices need adjustment (such as irrigation 
alterations or exclusion of livestock from a redd area not already 
dealt with for water quality reasons), the incremental costs and 
revenue loss attributable to the interim 4(d) rule would be well below 
5 percent of annual gross revenues for the most affected entities.
    A total of eight businesses within the ESU were identified as 
mining sand and gravel, some or all of which likely involve in-water 
work and hence potentially affecting listed coho. These businesses 
employ substantially fewer than 200 people in total, with an estimated 
gross production value in the range of $10 million, and most are small 
entities. Gravel, sand, or other removal activities in navigable waters 
are regulated by the U.S. Army Corps of Engineers (Corps) under section 
10 of the Rivers and Harbors Act. NMFS' consultations with the Corps 
triggered by the listing of the SONCC ESU will set the baseline for 
impacts of most in-water mining activities in the lower reaches of 
stream systems at a level that will not result in take, and this rule 
will not result in any additional lost revenue in those locations. 
Those few entities that may be operating in the upper reaches of a 
river system may sustain economic impacts, but the extent of those 
impacts cannot be known until assessments of annual gravel recruitment 
and patterns of deposition is completed for each river system so that 
limits of permissible removal may be set for any particular site. That 
information dictates reduction in volume removed or changes in timing 
or methods, and the rule could cause loss of revenue or increased cost 
to small business (for instance in locating new sources of gravel) for 
one or more of the eight small entities engaged in gravel removal, but 
the extent of that impact cannot be projected at this time. NMFS seeks 
comments and/or data that can assist in making projections.
    Specific construction categories that might be affected by the 
interim 4(d) regulation were examined, including highway and street 
construction, heavy construction, concrete work, and excavation work. 
Approximately 200 businesses within the ESU were primarily engaged in 
these categories, although only some of them would be affected by the 
rule. These businesses employ just over 1,000 people, with annual 
revenues under $140 million. Over 90 percent of these construction 
businesses within the ESU were found to be small entities.
    Construction activities likely to be affected include construction 
of irrigation withdrawal structures, construction of docks and piers, 
fill in wetlands for roads, private residences or commercial 
development, and installation of industrial and municipal wastewater 
outfalls. The Corps regulates in-water fill activities under Sec. 404 
of the Clean Water Act (regardless of amount) and impacts to navigation 
(docks, etc.) under Sec. 10 of the Rivers and Harbors Act. Any of the 
above actions likely to affect coho in the SONCC ESU will be examined 
during Corps consultation with NMFS under ESA Sec. 7, through which any 
changes in the activity necessary to avoid jeopardizing the coho will 
be required. Hence, the rule is unlikely to additionally affect 
businesses engaged in any of these in-water activities.
    Within the ESU, between four and five hundred businesses are 
engaged in either forestry or logging. These firms employ 3,000 to 
4,000 people, with total revenue estimated at approximately $700 
million. Approximately 80 percent of the forestry businesses and 100 
percent of the logging businesses are considered small entities under 
SBA classification guidelines. The interim 4(d) rule could affect 
logging operations and timber revenues by limiting the extent of 
harvest activity in riparian areas in order to protect water quality, 
protect sources of large woody debris, etc. All forest activity on 
Federal lands, which comprise 53 percent of the land in this ESU, is 
conducted under the Northwest Forest Plan, which has already been 
determined adequate to protect coho salmon habitat. Therefore, logging 
on, or timber availability from, Federal forests will not be affected 
by the rule.
    Approximately 1.9 million acres in this ESU are private non-
industrial forest lands, which can be equated generally with small 
businesses. Harvest on these lands is subject to state regulation of 
forest practices, which require some degree of buffer protection. The 
Oregon Forest Practice rules set riparian management areas (RMA) 
ranging up to 100 ft in width, prohibit removal of any trees in the 
first 20 ft of the riparian area on large and medium size streams, and 
require retention of varying additional amounts of timber in the 
remaining RMA. The California Forest Practice Rules set protective 
zones ranging up to 150 ft in width, with a similarly complex set of 
timber

[[Page 38483]]

retention requirements depending on stream size, slope, etc. NMFS does 
not consider either of these state regulatory schemes fully adequate to 
protect coho, and, therefore, would expect the 4(d) rule to result in 
some curtailment of harvest on lands owned by small entities over and 
above the impacts of state regulation.
    For purposes of estimating a maximum impact small entity timber 
harvest operations might experience from the rule, this analysis 
assumes a uniform, entirely unmanaged and unharvested (e.g. ``no 
touch'') buffer of 150 ft (the maximum managed width under existing 
California regulation). Based on the ratio of stream miles (8,500) to 
total forest acres (11 million) in this ESU, that buffer would 
constitute an average of 2.4 percent of the total forest acreage.
    Obviously, not all forest lands will be adjacent to streams that 
contribute to coho habitat, and also some landholdings will be affected 
above the average amount. There also could be some incremental impacts 
related to non fish-bearing streams over and above what would result 
from water quality requirements and the Northwest Forest Plan, but 
these are speculative and cannot be quantified. Absent any data to 
identify these ratios or other impacts, NMFS assumes that the land 
owners most affected have double the average riparian frontage. The 
maximum reduction in timber harvest with that assumption would be below 
5 percent, with the impacts of existing state regulation subtracted 
out. That incremental impact may be further lessened because of 
tightened harvest regulations needed to meet Clean Water Act concerns.
    Logging companies would presumably be affected to an even lesser 
extent, since they operate on Federal as well as private lands, and 
would not be limited to harvest operations on the most affected private 
lands. Thus, the interim rule may have an incremental economic impact 
ranging from zero to 5 percent on small timber owning entities and 
logging companies.
    To sum up, impacts of this interim 4(d) rule fall below NMFS' 
threshold criteria for determining that a rule will cause significant 
economic impact on a substantial number of small entities. These 
standards include: (a) Five percent loss of revenue for twenty percent 
of the small entities; (b) ten percent increase in compliance costs for 
twenty percent of the small entities; (c) two percent of the small 
entities cease operations; or (d) capital costs of compliance are a 
significant portion of capital available considering internal cash flow 
and external financing capabilities.
    Of the several thousand small entities operating in sectors that 
may be impacted by the interim 4(d) rule, estimates of revenue 
reduction on the entities most seriously impacted by the rule range 
from zero (construction and fishing businesses) to under 5 percent 
(forestry). In the sand and gravel mining sector, it is not possible to 
project the range of impact, but fewer than eight entities would 
potentially be affected. Hence, of all small entities potentially 
substantially impacted by the interim 4(d) rule prohibitions, far fewer 
than 20 percent have any potential for a revenue reduction exceeding 5 
percent. Any impacts on small governments will likely fall within the 
impacts in one or more of these same categories (e.g., road 
construction).
    The interim 4(d) rule places no reporting or recordkeeping 
compliance costs on small entities. The capital cost of potential 
irrigation screening should not represent a significant portion of 
capital available, especially recognizing existing state programs to 
defray some of those costs. NMFS has identified no entities likely to 
be forced to cease business operations as a result of this rule.
    This interim rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This interim rule contains a collection-of-information requirement 
subject to the provisions of the Paperwork Reduction Act which has been 
approved by the Office of Management and Budget under control Number 
0648-0230. Public reporting burden for the approval of Watershed Plans 
under exceptions 227.22(e) and (f) is estimated to average less than 30 
hours per response, including the time for formatting, copying, 
preparing transmittal letter, and responding to any inquiries.
    Comments are invited on: (a) Whether the proposed collection of 
information to provide these exceptions (without which restoration 
actions would require a section 10 permit) is necessary for the proper 
performance of the functions of the agency, including whether the 
information shall have practical utility; (b) the accuracy of the 
agency's estimate of the burden of the proposed collection of 
information; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; and (d) ways to minimize the burden of 
the collection of information on respondents, including through the use 
of automated collection techniques or other forms of information 
technology. Send comments on these or any other aspects of the 
collection of information to NMFS (see ADDRESSES) and to OMB at the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

National Environmental Policy Act

    NMFS will comply with the National Environmental Policy Act (NEPA) 
of 1969 in implementing the provisions of this interim rule, completing 
NEPA requirements before the final rule is issued.

List of Subjects in 50 CFR Part 227

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: July 9, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 227 is amended 
as follows:

PART 227--THREATENED FISH AND WILDLIFE

    1. The authority citation for part 227 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also 
issued under 16 U.S.C. 1361 et seq.

    2. In subpart C, Sec. 227.21 is revised to read as follows:


Sec. 227.21  Threatened salmon.

    (a) Prohibitions. The prohibitions of section 9 of the ESA (16 
U.S.C. 1538) relating to endangered species apply to the threatened 
species of salmon listed in Sec. 227.4 (f), (g), (h), and (i), except 
as provided in paragraph (b) of this section. These prohibitions shall 
become effective for the threatened species of salmon listed in 
Sec. 227.4(i) on August 18, 1997.
    (b) Exceptions. (1) The exceptions of section 10 of the ESA (16 
U.S.C. 1539) and other exceptions under the Act relating to endangered 
species, including regulations implementing such exceptions, also apply 
to the threatened species of salmon listed in Sec. 227.4 (f), (g), (h), 
and (i). This section supersedes other restrictions on the 
applicability of parts 217 and 222 of this chapter, including, but not 
limited to,

[[Page 38484]]

the restrictions specified in Secs. 217.2 through 222.22(a) of this 
chapter with respect to the species identified in Sec. 227.21(a).
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmon listed in Sec. 227.4(i) do not apply to 
activities specified in an application for a permit for scientific 
purposes or to enhance the propagation or survival of the species, 
provided that the application has been received by the Assistant 
Administrator for Fisheries, NOAA (AA), by September 16, 1997. This 
exception ceases upon the AA's rejection of the application as 
insufficient, upon issuance or denial of a permit, or on Janury 20, 
1998 whichever occurs earliest.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmon listed in Sec. 227.4(i) do not apply to 
any employee or agent of the NMFS, any other Federal land management 
agency, or the Oregon Department of Fish and Wildlife (ODFW) or the 
California Department of Fish and Game (CDFG), who is designated by 
his/her agency for such purposes, when that employee or agent, acting 
in the course of his/her official duties, takes a coho salmon in 
California or Oregon without a permit if such action is necessary to: 
(1) Aid a sick, injured, or stranded individual, (2) dispose of a dead 
individual, or (3) salvage a dead individual, which may be useful for 
scientific study.
    3. In subpart C, section 227.22 is added to read as follows:


Sec. 227.22  Southern Oregon/Northern California Coast (SONCC) coho 
salmon.

    The following exceptions to the prohibitions of section 227.21(a) 
apply to SONCC coho salmon:
    (a) Take of SONCC coho salmon within three miles (approximately 5 
km) of the coast, and in bay, estuarine or freshwater fisheries 
regulated under the sole authority of the State of Oregon is not 
prohibited, if the take results from a fisheries harvest program 
conducted in accordance with the Oregon Coastal Salmon Restoration 
Initiative of March 1997 (OCSRI), provided that NMFS has issued written 
concurrence that the fisheries regulations are consistent with the 
OCSRI using information provided through the April 1997 Memorandum of 
Agreement (MOA) between the State of Oregon and NMFS.
    (b) Incidental take of SONCC coho salmon in ocean fisheries within 
3 miles (approximately 5 km) of the coast that are regulated under the 
sole authority of the State of California is not prohibited, provided 
that the ocean salmon fishing regulations adopted by the California 
Fish and Game Commission and CDFG for recreational and commercial 
fisheries within 3 miles (approximately 5 km) of the coast are 
consistent with the Pacific Fishery Management Council's Fishery 
Management Plan for Ocean Salmon Fisheries and the annual ocean salmon 
fishing regulations issued by the Secretary of Commerce for the Federal 
EEZ.
    (c) Take of SONCC coho salmon in a hatchery program regulated under 
the sole authority of the State of Oregon is not prohibited, if the 
take results from a hatchery program conducted in accordance with the 
OCSRI, and the take is counted against the total allocation of harvest-
related mortality as specified in the OCSRI, provided that NMFS has 
issued written concurrence that the hatchery program is consistent with 
the OCSRI including the hatchery and genetic management plan adopted 
pursuant to the OCSRI, using information provided through the MOA.
    (d) Take of SONCC coho salmon in fisheries research and monitoring 
activities conducted in California and Oregon is not prohibited 
provided that:
    (1) Research and monitoring involving directed take of coho salmon 
is conducted by CDFG personnel (in California) and ODFW personnel (in 
Oregon).
    (2) The CDFG and ODFW, respectively, provide NMFS with a list of 
all research and monitoring activities involving coho salmon directed 
take planned for the coming year for NMFS' review and approval, 
including an estimate of the total directed take that is anticipated, a 
description of the study design including a justification for taking 
the species and a description of the techniques to be used, and a point 
of contact.
    (3) The CDFG and ODFW, respectively, annually provide NMFS with the 
results of research and monitoring studies directed at SONCC coho 
salmon, including a report of the directed take resulting from the 
studies.
    (4) The CDFG and ODFW, respectively, provide NMFS annually with a 
list of all research and monitoring studies each permits that may 
incidentally take listed coho salmon during the coming year and report 
the level of incidental take of listed coho salmon from the previous 
year's research and monitoring activities, for NMFS' review and 
approval.
    (5) The research and monitoring activities do not include the use 
of electrofishing in any body of water known or suspected to contain 
coho salmon.
    (e) Incidental take of the SONCC coho salmon in Oregon that results 
from a habitat restoration activity, as defined in paragraph (4), is 
not prohibited, provided that:
    (1) The activity is conducted pursuant to a watershed action or 
restoration plan that the state has affirmed in writing is consistent 
with state watershed plan guidelines that NMFS has found meet the 
standards set forth in 50 CFR 222.22(c), and NMFS concurs in writing 
that the plan is consistent with those guidelines; or
    (2) Until a watershed action or restoration plan is approved by 
both Oregon and NMFS as described in paragraph (e)(1) of this section, 
or until August 18, 1999, whichever occurs first, the ODFW has made a 
written finding that the activity is consistent with state restoration 
activity guidelines that NMFS has agreed in writing meet the standards 
set forth in 50 CFR 222.22(c); or January 19, 1998.
    (3) Until January 20, 1998, the activity is any restoration action 
listed in the Southwest Oregon Salmon Restoration Initiative (OCSRI ch. 
17F), provided that any action involving in-water work receives written 
approval from ODFW as to timing, scope, and methods.
    (4) ``Habitat restoration activity'' is defined as an activity that 
has the sole objective of restoring natural aquatic or riparian habitat 
conditions or processes.
    (f) Incidental take of the SONCC coho salmon in California that 
results from a habitat restoration activity, as defined in paragraph 
(3) of this section, is not prohibited, provided that California has a 
program in effect that NMFS finds will assure technically supported 
watershed assessments and coordinated long-term monitoring strategies 
for watershed protection plans and activities and:
    (1) The activity is conducted pursuant to a watershed protection 
plan that CDFG has affirmed in writing is consistent with state 
watershed plan guidelines for California's Watershed Protection Program 
that NMFS has found meet the standards set forth in 50 CFR 222.22(c), 
and NMFS concurs in writing that the plan is consistent with those 
guidelines; or
    (2) Until a watershed protection or restoration plan is certified 
by the State of California and NMFS as described in paragraph (f)(1) of 
this section, or until August 18, 1999, whichever occurs first, NMFS 
has made a written finding that the activity is consistent with State 
of California conservation guidelines that NMFS has previously found 
meet the standards set forth in 50 CFR 222.22(c).
    (3) ``Habitat restoration activity'' is defined as an activity that 
has the sole

[[Page 38485]]

objective of restoring natural aquatic or riparian habitat conditions 
or processes.
[FR Doc. 97-18804 Filed 7-17-97; 8:45 am]
BILLING CODE 3510-22-F