[Federal Register Volume 65, Number 1 (Monday, January 3, 2000)]
[Proposed Rules]
[Pages 108-111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33857]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 991207318-9318-01; I.D. 092799G]
RIN 0648-AG15


Limitation on Section 9 Protections Applicable to Salmon Listed 
as Threatened under the Endangered Species Act (ESA), for Actions Under 
Tribal Resource Management Plans (Tribal Plans)

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

ACTION: Proposed rule; request for comments and notice of public 
hearings.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes to 
modify the ESA section 9 take prohibitions applied to threatened 
salmonids by creating a new limitation on those prohibitions. NMFS does 
not find it necessary and advisable to impose prohibitions on take when 
impacts on listed salmonids results from implementation of a tribal 
resource management plan (Tribal Plan), where the Secretary of Commerce 
(Secretary) has determined that implementing that Tribal Plan will not 
appreciably reduce the likelihood of survival and recovery for the 
listed species. Threatened salmonids that are currently subject to ESA 
section 9(a) take prohibitions which would be modified by the proposal 
include Snake River spring/summer chinook salmon; Snake River fall 
chinook salmon; Central California Coast (CCC) coho salmon; and 
Southern Oregon/Northern California Coast (SONCC) coho salmon. This 
proposed limitation on take prohibitions would also be available to all 
other threatened salmonid Evolutionarily Significant Units (ESUs) 
whenever final protective regulations make the take prohibitions of ESA 
section 9(a) applicable to that ESU. This rule intends to harmonize 
statutory conservation requirements with tribal rights and the Federal 
trust responsibility to tribes.

DATES: Comments on this rule must be received at the appropriate 
address (see ADDRESSES), no later than 5:00 p.m., eastern standard 
time, on March 3, 2000. Public hearings on this proposed action have 
been scheduled. See SUPPLEMENTARY INFORMATION for dates and times of 
public hearings.

ADDRESSES: Comments on this proposed rule or requests for information 
should be sent to Branch Chief, Protected Resources Division, NMFS, 
Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-
2737. Comments will not be accepted if submitted via e-mail or 
Internet. See SUPPLEMENTARY INFORMATION for locations of public 
hearings.

FOR FURTHER INFORMATION CONTACT: Chris Mobley at (301) 713-1401; Garth 
Griffin at (206) 526-5006; or Craig Wingert at (562) 980-4021.

SUPPLEMENTARY INFORMATION:

Definitions

     Indian Tribe - Any Indian tribe, band, nation, pueblo, community 
or other organized group within the United States which the Secretary 
of the Interior has identified on the most current list of federally 
recognized tribes maintained by the Bureau of Indian Affairs.
    Tribal rights - Those rights legally accruing to a tribe or tribes 
by virtue of inherent sovereign authority, unextinguished aboriginal 
title, treaty, statute, judicial decisions, executive order or 
agreement, and which give rise to legally enforceable remedies.
    Tribal trust resources - Those natural resources, either on or off 
Indian lands, retained by, or reserved by or for Indian tribes through 
treaties, statutes, judicial decisions, and executive orders, which are 
protected by fiduciary obligation on the part of the United States.

Purpose

    The purpose of this proposed regulation is to provide a mechanism, 
consistent with both NMFS' obligation to conserve listed species, and 
with the Government's trust obligations to Indian tribes (tribes), 
through which NMFS may enable a tribe to conduct tribal trust resource 
management actions that may take threatened salmonids, without the risk 
of enforcement challenges that might be brought pursuant to take 
prohibitions adopted under ESA section 4(d). Existing and proposed 
section 4(d) regulations apply section 9 ``take'' prohibitions to all 
species listed by NMFS and U.S. Fish and Wildlife Service. The limit on 
take prohibitions would encompass a variety of types of Tribal Plans, 
including but not limited to, plans that address fishery harvest, 
artificial propagation, research, habitat or land management. Tribal 
Plans could be developed by one tribe or jointly with other tribes. 
Where there exists a Federal court proceeding with continuing 
jurisdiction over the subject matter of a Tribal Plan, the plan may be 
developed and implemented within the ongoing Federal court proceeding. 
In a Federal Register document proposing ESA section 4(d) regulations 
for Puget Sound Chinook and certain other threatened ESUs published 
today in a separate section of this Federal Register issue, NMFS 
describes the review process for plans developed jointly by tribes and 
states within the context of ongoing Federal Court proceedings.

Background

    Pursuant to its obligations under section 4(d) of the ESA to issue 
regulations that are necessary and advisable for the conservation of 
threatened species, NMFS issued a final rule on April 22, 1992, that 
extended section 9(a) take prohibitions to threatened Snake River 
spring/summer chinook salmon and Snake River fall chinook salmon (57 FR 
14653). Take prohibitions for CCC coho salmon were issued in a final 
rule on October 31, 1996 (61 FR 56138), and for SONCC coho salmon in an 
interim final rule on July 18, 1997 (62 FR 38479). NMFS extended 
generic ESA section 9 prohibitions, with limitations provided only for 
activities covered under section 10 of the ESA, to the Snake River 
chinook salmon and CCC coho salmon ESUs. The interim final rule for 
SONCC coho salmon applied the section 9(a) prohibitions against take to 
conserve SONCC coho salmon, with limitations for a small number of 
actions in Oregon and California (state research and monitoring 
activities, and certain habitat restoration, harvest, and artificial 
propagation activities) that were deemed sufficiently protective of 
SONCC coho that additional conservation through take prohibitions were 
not necessary.
    This proposed rule would modify the existing take prohibitions by 
adding a limitation on take prohibitions for activities conducted in 
accord with a Tribal Plan that the Secretary determines, based on 
analysis of the impacts of the Tribal Plan on the biological 
requirements of the species, that the Tribal Plan and actions conducted 
pursuant to it will not appreciably reduce the likelihood of survival 
and recovery for the listed species.
    Tribal activities have not been identified as major factors 
contributing to the decline of threatened species. NMFS believes that a 
Secretarial determination that implementation of a tribal resource plan 
will not appreciably reduce the likelihood of survival and recovery of 
an ESU is sufficient that additional Federal protections are not 
necessary and advisable for activities carried out under those plans. 
Thus, the existing 4(d) protections for threatened

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ESUs will continue to constitute those necessary and advisable to 
provide for the conservation of the ESUs even with limits on take 
prohibitions as proposed in this rule. Likewise, the proposed steelhead 
and chinook 4(d) rules, as modified by this additional limit on take 
prohibitions, contain those protections that NMFS deems necessary and 
advisable for the conservation of the threatened ESUs.

Tribal Rights

    The United States has a unique legal relationship with Indian 
tribes as set forth in the Constitution of the United States, treaties, 
statutes, executive orders, and court decisions. While Congress has 
plenary authority over tribes, the tribes remain sovereigns, possessing 
the authority to govern their lands and members within the boundaries 
of reservation lands. Worcester v. Georgia, 31 U.S. 515 (1832); see 
also McClanahan v. Arizona State Tax Commission 411 U.S. 164 (1973); 
Santa Clara Pueblo v. Martinez 436 U.S. 49 (1978). Indian tribes are 
regarded as ``domestic dependent nations'' and are owed a fiduciary 
duty of trust by the United States ``with moral obligations of the 
highest responsibility and trust.'' Seminole Nation v. U.S., 316 U.S. 
286, (1942); U.S. v. Mitchell, 463 U.S. 206 (1983). The trust 
responsibility requires the United States to employ a standard of ``due 
care'' in its oversight of tribal resources. U.S. v. Creek Nation, 295 
U.S. 103 (1935). See also Pyramid Lake Paiute Tribe v. Morton, 354 
F.Supp. 252 (D.D.C. 1972). The trust responsibility has both procedural 
and substantive components as articulated in the President's Memorandum 
on Government to Government Relations with Native American Tribal 
Governments, (59 FR 22951, April 29, 1994) and Executive Order 13084 of 
May 14, 1998, on Consultation and Coordination with Indian Tribal 
Governments, (63 FR 27655, May 19, 1998).
    Native people all along the Pacific coast and throughout the 
Columbia and Snake River basins and the central valley of California 
have depended upon fish as their primary source of food and economy. 
For most of these indigenous cultures, the ``first salmon'' ceremony 
was an important religious festival and the many tribes engaged in 
religious rituals to ensure that the life cycle of the salmon, its 
migration from natal mountain streams to the sea and its return to 
spawn and die, would remain unbroken. The cultural importance of salmon 
to most tribes in the Pacific Northwest cannot be overstated. In 
signing treaties with the United States, most Indian tribes in the 
Pacific Northwest reserved their ``right of taking fish, at all usual 
and accustomed places and stations...in common with all citizens...'' 
The Supreme Court once stated that to these tribes the right to fish 
was ``not much less necessary to the existence of the Indians than the 
atmosphere they breathed.'' U.S. v. Winans, 198 U.S. 371, 381 (1905). 
The right to fish is reserved to many tribes by treaty, statute, and 
executive order.
    The appropriate exercise of its trust obligation commits the United 
States to harmonize its many statutory responsibilities with the 
exercise of tribal sovereignty, tribal rights, and tribal self-
determination. In fulfillment of the President's commitment, the 
Secretary of Commerce instructed all agencies of the Department of 
Commerce to commit to government-to-government relations with tribal 
governments (Memorandum of the Secretary, March 30, 1995). NMFS 
proposes this rule in recognition of the unique legal and political 
relationships between tribes and the United States, and in keeping with 
the trust responsibility to Indian tribes, treaty and Executive Order 
rights, and the President's Memorandum and Executive Order.

NMFS Obligations Under the ESA

    Section (4)(d) of the ESA provides that the Secretary shall issue 
such regulations as deemed necessary and advisable to provide for the 
conservation of threatened species. Whether a protective regulation is 
necessary or advisable is, in large part, dependent upon the biological 
status of the species and potential impacts of various activities on 
the species.
    For each of the threatened species that would be immediately 
affected by this proposed regulation, the Secretary has already adopted 
the ``take'' prohibitions of section 9 of the ESA throughout the 
species' range. The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture or collect (or attempt the above) any 
listed species. Land management activities could result in injury, harm 
or death of a listed salmonid. A fishery designed to harvest non-listed 
fish, no matter how carefully structured through season, gear, and 
other provisions, could, on occasion, result in injury, harm or death 
of a listed fish. A research plan may have as its objective the taking 
of listed fish. Some tribal fisheries are located or timed such that 
any fishery would take listed fish.
    The Secretary administers the ESA within the context of the Federal 
trust responsibility, reserved tribal rights, and government-to-
government relationships. Therefore, the purpose of this proposed rule 
is to establish a process that will enable the Secretary to meet the 
conservation needs of listed species while respecting tribal rights, 
values and needs.

Procedures

    The proposed regulation recognizes and implements the commitment to 
government-to-government relations made by the President and the 
Secretary of Commerce. A tribe intending to exercise a tribal right to 
fish or undertake other resource management actions that may impact 
threatened salmonids could create a Tribal Plan that would assure that 
those actions would not appreciably reduce the likelihood of survival 
and recovery of the species.
    The Secretary stands ready to provide technical assistance in 
examining impacts on listed salmonids and other salmonids to any tribe 
that so requests, as tribes develop Tribal Plans that meet tribal 
management responsibilities and needs. In making a determination 
whether a Tribal Plan will appreciably reduce the likelihood of 
survival and recovery of threatened salmonids, the Secretary, in 
consultation with the tribe, will use the best available biological 
data (including careful consideration of any tribal data and analysis) 
to determine the Tribal Plan's impact on the biological requirements of 
the species, and will assess the effect of the Tribal Plan on survival 
and recovery, consistent with the trust responsibilities and tribal 
rights described here.
    Before making a determination, the Secretary will provide an 
opportunity for public comment on the question whether the Tribal Plan 
will affect the biological status of the species in a way that would 
appreciably reduce the likelihood of its survival and recovery. The 
Secretary shall publish notification of any determination regarding a 
Tribal Plan, with a discussion of the biological analysis underlying 
that determination, in the Federal Register.

Public Hearings

    NMFS is soliciting comments, information, and/or recommendations on 
any aspect of this proposed rule from all concerned parties. (see DATES 
and ADDRESSES). Public hearings provide an additional opportunity for 
the public to give comments and to permit an exchange of information 
and opinion among interested parties. NMFS Northwest Region has, 
therefore, scheduled 15 public hearings throughout the Northwest to 
receive

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public comment on this rule and other 4(d) rules proposed concurrently. 
Similarly, NMFS' Southwest Region will hold 7 hearings in California. 
The agency will consider all information, comments, and recommendations 
received before reaching a final decision on 4(d) protections for these 
ESUs.

Public Hearings in Washington, Idaho, and Oregon

    (1) January 10, 2000, 6:00 - 9:00 p.m., Metro Regional Center, 
Council Chamber, 600 NE Grand Ave, Portland, Oregon;
    (2) January 11, 2000, 6:00 - 9:00 p.m., Quality Inn, 3301 Market St 
NE, Salem, Oregon;
    (3) January 12, 2000, 6:00 - 9:00 p.m., Lewiston Community Center, 
1424 Main Street, Lewiston, Idaho;
    (4) January 13, 2000, 6:00 - 9:00 p.m., Natural Resource Center, 
Bureau of Land Management, 1387 South Vinnell Way, Boise, Idaho;
    (5) January 18, 2000, 6:00 - 9:00 p.m., City Library, 525 Anderson 
Ave., Coos Bay, Oregon;
    (6) January 19, 2000, 6:00 - 9:00 p.m., Hatfield Science Center, 
2030 SE Marine Science Drive, Newport, Oregon;
    (7) January 20, 2000, 6:00 - 9:00 p.m., Columbia River Maritime 
Museum, 1792 Marine Drive, Astoria, Oregon;
    (8) January 24, 2000, 6:00 - 9:00 p.m., Eugene Water & Electric 
Board Training Room, 500 East 4TH Ave. Eugene, Oregon;
    (9) January 25, 2000, 6:00 - 9:00 p.m., City Hall, 2nd 
Floor Council Chamber, 500 SW Dorian Ave., Pendleton, Oregon;
    (10) January 26, 2000, 6:00 - 9:00 p.m., Yakima County Courthouse, 
Room 420, 128 North 2nd St., Yakima, Washington
    (11) January 27, 2000, 6:00 - 9:00 p.m., Mid Columbia Senior 
Center, John Day Room, 1112 West 9th, The Dalles, Oregon;
    (12) January 31, 2000, 6:00 - 9:00 p.m., City Hall, Dining Room 
(Basement), 904 6th St., Anacortes, Washington;
    (13) February 1, 2000, 6:00 - 9:00 p.m., Northwest Fisheries 
Science Center Auditorium, 2725 Montlake Blvd. East, Seattle, 
Washington;
    (14) February 2, 2000, 6:00 - 9:00 p.m., City Hall, Council 
Chamber, 321 E. 5th, Port Angeles Washington;
    (15) February 3, 2000, 6:00 - 9:00 p.m., Sawyer Hall, 510 Desmond 
Drive, Lacey, Washington;

Public Hearings in California

    (1) January 25, 2000, 6:30 - 9:00 p.m., Double Tree (now Red Lion), 
1830 Hilltop Drive, Redding, California;
    (2) January 26, 2000, 6:30 - 9:00 p.m., Heritage Hotel, 1780 
Tribute Rd., Sacramento, California
    (3) January 27, 2000, 6:30 - 9:00 p.m., Modesto Irrigation 
District, 1231 11th St., Modesto, California;
    (4) January 31, 2000, 6:30 - 9:00 p.m., Eureka Inn, 518 Seventh 
St., Eureka, California;
    (5) February 1, 2000, 6:30 - 9:00 p.m., Double Tree, One Double 
Tree Drive, Rohnert Park, California;
    (6) February 2, 2000, 6:30 - 9:00 p.m., Best Western, 2600 Sand 
Dunes Drive, Monterey, California;
    (7) February 3, 2000, 7:00 - 9:30 p.m., Embassy Suites, 333 Madonna 
Rd., San Luis Obispo, California. 7:00-9:30P

Special Accomodations

    These hearings are physically accessible to people with 
disabilities. Requests for sign language interpretation or other aids 
should be directed to Garth Griffin or Craig Wingert (see ADDRESSES) 7 
days prior to each meeting date.

Classification

    The Chief Counsel for Regulation of the Department of Commerce has 
certified that this proposed rule would not have a significant economic 
impact on a substantial number of small entities as described in the 
Regulatory Flexibility Act. Therefore, a regulatory flexibility 
analysis is not required.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 13084 - Consultation with Indian Tribal Governments

    The United States has a unique relationship with tribal governments 
as set forth in the Constitution, treaties, statutes, and Executive 
Orders. In keeping with this unique relationship, with the mandates of 
the Presidential Memorandum on Government to Government Relations With 
Native American Tribal Governments (59 FR 22951), and with Executive 
Order 13084, NMFS has developed this proposed rule in close 
coordination with tribal governments and organizations. This proposal 
reflects many of the suggestions brought forth by tribal 
representatives during that process.
    NMFS' coordination during development of this tribal rule has 
included meetings with tribes and tribal organizations, and individual 
staff-to-staff conversations. NMFS will schedule more formal 
consultation opportunities with each potentially affected tribe, to be 
completed during the first 2 months after publication of this document. 
Moreover, NMFS will continue to give careful consideration to all 
written or oral comments received and will continue its contacts and 
discussions with interested tribes as we move toward a final rule.

Paperwork Reduction Act

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA), unless that 
collection of information displays a currently valid Office of 
Management and Budget (OMB) control number.
    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the PRA. This requirement 
has been submitted to OMB for approval. Public reporting burden for 
this collection of information is estimated to average 20 hours per 
response for tribes that elect to provide a tribal resource management 
plan that the Secretary may determine will not appreciably reduce the 
likelihood of survival and recovery of the species. This estimate 
includes any time required for reproducing, transmitting, and 
describing the content of the resource management plan.
    Public comment is sought regarding whether this proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, 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). 
Comments must be received by March 3, 2000.
    NMFS will comply with the National Environmental Policy Act (NEPA) 
of 1969. NMFS is currently working on the necessary NEPA documentation 
and will publish notification of its decision under NEPA prior to 
issuance of the final rule.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Fish, Fisheries, 
Imports, Indians, Intergovernmental relations, Marine mammals, Treaties


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    Dated: December 22, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 is revised 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.

    2. Section 223.209 is added to read as follows:


Sec. 223.209  Tribal plans.

    (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. 223.102(a), except as provided in 
paragraph (b) of this section.
    (b) Limits on the take prohibitions.
    (1) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102 do not apply to 
any activity undertaken by a tribe, tribal member, tribal permittee, or 
tribal agent in compliance with a Tribal resource management plan 
(Tribal Plan), provided that:
    (i) The Secretary determines that implementation of such Tribal 
Plan will not appreciably reduce the likelihood of survival and 
recovery of the listed salmonids. In making that determination the 
Secretary shall use the best available biological data to determine the 
Tribal Plan's impact on the biological requirements of the species, and 
will assess the effect of the Tribal Plan on survival and recovery, 
consistent with legally enforceable tribal rights and with the 
Secretary's trust responsibilities to tribes;
    (ii) A Tribal Plan may include but is not limited to plans that 
address fishery harvest, artificial production, research, habitat, or 
land management, and may be developed by one tribe or jointly with 
other tribes. The Secretary will consult on a government-to-government 
basis with any tribe that so requests, to provide technical assistance 
in examining impacts on listed salmonids and other salmonids as tribes 
develop Tribal resource management plans that meet the management 
responsibilities and needs of the tribes. A Tribal Plan must specify 
the procedures by which the tribe will enforce its provisions;
    (iii) Where there exists a Federal court proceeding with continuing 
jurisdiction over the subject matter of a Tribal Plan, the plan may be 
developed and implemented within the ongoing Federal Court proceeding. 
In such circumstances, compliance with the Tribal Plan's terms shall be 
determined within that Federal Court proceeding;
    (iv) The Secretary shall seek comment from the public on the 
Secretary's pending determination whether or not implementation of a 
Tribal Plan will appreciably reduce the likelihood of survival and 
recovery of the listed salmonids; and
    (v) The Secretary shall publish notification in the Federal 
Register of any determination regarding a Tribal Plan and the basis for 
that determination.
    (2) [Reserved]
[FR Doc. 99-33857 Filed 12-30-99; 8:45 am]
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