[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]
[[Page 108]]
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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
[[Page 111]]
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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