[Federal Register Volume 65, Number 132 (Monday, July 10, 2000)]
[Rules and Regulations]
[Pages 42481-42486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16932]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 991207318-0159-02; I.D. No 092799G]
RIN 0648-AG15


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

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

ACTION: Final rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a 
final rule to modify the ESA section 9 take prohibitions applied to 
threatened salmon and steelhead. The modification will create a section 
4(d) limitation on those prohibitions for tribal resource management 
plans (Tribal Plans), 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. 
This rule intends to harmonize statutory conservation requirements with 
tribal rights and the Federal trust responsibility to tribes.

DATES: Effective September 8, 2000.

ADDRESSES: Branch Chief, NMFS, Northwest Region, Protected Resources 
Division, 525 NE. Oregon St., Suite 500, Portland, OR 97232-2737; 
Assistant Regional Administrator, Protected Resources Division, NMFS, 
Southwest Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213; Salmon Coordinator, Office of Protected Resources, NMFS, 
1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005; Craig 
Wingert at 562-980-4021.

Electronic Access

    Reference materials regarding this final rule can also be obtained 
from the internet at www.nwr.noaa.gov.

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 tribes 
maintained by the

[[Page 42482]]

Bureau of Indian Affairs (65 FR 13298, March 13, 2000).
    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.
    Indian lands--Any lands title to which is either: 1) held in trust 
by the United States for the benefit of any Indian tribe or individual; 
or 2) held by any Indian tribe or individual subject to restrictions by 
the United States against alienation.

Background

    For the past decade NMFS has been conducting ESA status reviews for 
salmon and steelhead throughout the Pacific Northwest and California. 
To date, these reviews have identified 20 population groups, or 
``evolutionarily significant units'' (ESUs), that warrant threatened 
status under the ESA. Section 4(d) of the ESA provides that whenever a 
species is listed as threatened, the Secretary shall issue such 
regulations (i.e., ``4(d) rules'') as he deems necessary and advisable 
for the conservation of the species. Such 4(d) rules may include any or 
all of the prohibitions that apply automatically to protect endangered 
species under ESA 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, capture 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, unless with written 
authorization for incidental take. NMFS has promulgated ESA 4(d) rules 
that apply the section 9 take prohibitions to nearly all threatened 
salmon and steelhead ESUs. In a recent ESA 4(d) rule addressing 14 of 
these ESUs (i.e., the salmon/steelhead 4(d) rules published elsewhere 
in this Federal Register issue), NMFS determined it is not necessary 
and advisable to apply the section 9 take prohibitions to specified 
categories of activities that contribute to conserving listed salmonids 
or are governed by a program that adequately limits impacts on listed 
salmonids. NMFS also determined it is not necessary or advisable to 
prohibit activities associated with Tribal resource management 
activities when those activities conserve listed salmonids or 
adequately limit impacts on listed salmonids. NMFS accordingly proposed 
a parallel ESA 4(d) rule for Tribal Plans (i.e., a tribal plan limit) 
(65 FR 111, January 3, 2000). In that proposal, NMFS announced a 
process whereby a tribe could conduct tribal trust resource management 
actions that may take threatened salmonids, without the risk of 
violating take prohibitions adopted under ESA section 4(d). Eligibility 
for such limits on take prohibitions would require a determination by 
the Secretary that implementing a specific Tribal Plan will not 
appreciably reduce the likelihood of survival and recovery of the 
listed species. The purpose of this 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, and not 
causing an abridgement of any treaties, rights, executive orders, or 
statutes. 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, or water 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.
    This final rule acknowledges that 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. The appropriate exercise of its trust obligation commits the 
United States to harmonize its many statutory responsibilities with the 
tribal exercise of tribal sovereignty, tribal rights, and tribal self-
determination. NMFS believes that this final rule recognizes the unique 
legal and political relationships between tribes and the United States, 
and is in keeping with the trust responsibility to Indian tribes. 
Furthermore, NMFS believes that additional Federal protections are not 
needed for activities carried out under those Tribal Plans deemed by 
the Secretary to not appreciably reduce the likelihood of survival and 
recovery of an ESU.

Summary of Comments and Information Received in Response to the 
Proposed Rule

    Between January 10 and February 22, 2000, NMFS held 25 public 
hearings in Washington, Oregon, Idaho, and California to allow for 
public testimony and to discuss the proposed tribal plan limit and 
salmon/steelhead ESA 4(d) rules. The agency also requested comments 
from all interested parties and conferred with affected tribes 
throughout the Pacific Northwest and California. The agency received 
approximately 20 written comments pertaining to the proposed tribal 
plan limit. New information, comments, and responses are summarized 
here. Copies of references, reports and related documents are available 
upon request (see ADDRESSES).
    Comment 1: Numerous tribal commenters addressed the issue of 
government-to-government consultation. Commenters cited concerns that 
consultation had not occurred during the development of the tribal plan 
limit and salmon/steelhead ESA 4(d) rules and underscored the need for 
NMFS to consult with tribes as these rules are implemented.
    Response: Throughout the development of the tribal plan limit and 
salmon/steelhead ESA 4(d) rules NMFS has made a concerted effort to 
notify and confer with tribal representatives and technical staff 
throughout the Pacific Northwest and California. Contact regarding 
these rules began before December 1998, when a draft steelhead ESA 4(d) 
rule was submitted for review to affected tribes well in advance of the 
proposed rules. During a 2-year period, NMFS coordinated and attended a 
number of meetings and working sessions with tribal governments and 
representatives (including staff from inter-tribal fisheries 
commissions) to discuss particular aspects of the rules. These meetings 
allowed NMFS to develop proposed ESA 4(d) rules that the agency 
believes address a wide range of issues highlighted by the tribes. 
Since publication of the proposed 4(d) rules NMFS and tribal staffs and 
tribal council members have met to discuss these rules.
    NMFS recognizes the need to work closely with the tribes of the 
region to develop and improve upon information exchange and 
consultation opportunities relating to salmon and steelhead 
conservation. Since beginning work on these ESA 4(d) rules, NMFS' 
Northwest Region has added a tribal liaison position to its staff to 
focus on improving communications with the

[[Page 42483]]

tribes and developing consultation procedures that will meet both NMFS 
and tribal needs. It is the agency's intent to continue working with 
tribal governments to develop regularly scheduled meetings between NMFS 
and tribal technical staff and policy makers to provide more timely 
notice regarding NMFS' activities and to discuss how consultation might 
occur for future fisheries issues and ESA rulemaking.
    There remains the opportunity for the tribes and the agency to hold 
future discussions on application of the ESA 4(d) rules. Such future 
discussions can include the identification of cultural/economic issues 
requiring the agency's attention and ideas on how such analyses should 
be conducted. In response to tribal requests, NMFS will correspond with 
each commenting tribal government, clarify how its comments were 
addressed, and identify the need for additional meetings to discuss 
potential amendments and/or modifications to the rules.
    Comment 2: Many commenters challenged the basis for a Secretarial 
review of Tribal Plans. Their comments ranged in scope from questioning 
the appropriateness of Secretarial review and public notification 
(e.g., the disclosure of confidential tribal information), to specific 
comments on Tribal Plan contents, standards and time frames. One 
commenter suggested that the time period covered by a Tribal Plan be 
fixed (e.g., a 1-year plan with annual reviews) while another suggested 
that the period covered by the plan be similar to that for ESA section 
10 Habitat Conservation Plans (HCPs), which can extend for a number of 
years. Another commenter suggested that the scope covered by the tribal 
plan limit be expanded (e.g., to include all listed species and ESUs 
versus the four stocks specifically identified in the Tribal 4(d) 
proposed rule's Summary Section).
    Some commenters addressed the Secretarial review process, in 
particular the need to take into account the impacts of non-tribal 
activities on the listed species so that any assessment of Tribal Plans 
would accurately assess impacts that are beyond tribal control. After 
such review has been completed, and if a Tribal Plan was found to be 
insufficient, some commenters stated the Secretary should provide 
specific comments to the affected tribe(s) so that they have an 
opportunity to respond. These and other commenters noted that NMFS has 
an obligation to abide by Principle 3(C) (i.e., the ``Conservation 
Necessity Principle'') of the June 1997 Secretarial Order No. 3206 
entitled ``American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act'' (Secretarial Order). 
Additionally, some commenters suggested the Secretarial review have 
specific time constraints (e.g., 60 days) so tribes could plan on 
implementing approved actions in a timely manner.
    Response: The nature of some of these comments suggests a general 
misunderstanding regarding the purpose of Secretarial review. 
Secretarial review will determine if implementation of the plan will 
appreciably reduce the likelihood of survival and recovery of the 
listed species. The Secretary will not review the Tribal Plan to 
determine adequacy of meeting tribal goals and objectives. A 
determination that an action may or may not reduce the likelihood of 
survival or recovery will be made in the context of the operative 
environmental conditions at the local (site-specific) and ESU levels. 
There are legitimate concerns about disproportionate conservation 
requirements being placed on the tribes when surrounding non-Indian 
lands are in extremely degraded conditions. These concerns are 
addressed in other comments/responses in this document.
    NMFS respectfully disagrees with the suggestion that tribes should 
have the ultimate responsibility for making a determination that a 
Tribal Plan will not appreciably reduce the likelihood of survival and 
recovery of threatened salmon or steelhead. This determination cannot 
be delegated by the Secretary to a tribal government. However, NMFS 
agrees that in making the determination it must work closely with the 
tribes to determine the level of impact, if any, on threatened species. 
As suggested by one tribal commenter, this means the Secretary shall 
consider data and analysis provided by the tribe and shall defer, where 
appropriate, to the tribe's conclusion that a Tribal Plan does not 
appreciably reduce the likelihood of survival and recovery of the 
species. If the Secretary determines a Tribal Plan should be modified, 
the tribe will be informed as soon as possible with a detailed 
explanation of what changes are recommended and the reason for the 
changes.
    It is NMFS' view that, given the sovereign status of the tribes it 
is inappropriate to describe in this final rule the specific qualifying 
criteria for Tribal Plans. The plans will be held to the same 
fundamental ESA standard as any other activity, and will be evaluated 
consistent with principles outlined in the Secretarial Order. NMFS will 
work with tribes to the maximum extent practicable to craft plans that 
will meet the needs of listed species and accomplish the goals of the 
tribes. Furthermore, NMFS recognizes, as stated in the Secretarial 
Order, that it has a trust obligation to minimize impacts on tribes as 
much as possible while still meeting agency responsibilities under the 
ESA.
    With respect to reporting requirements, NMFS believes it would be 
inappropriate to require a specific time period for all Tribal Plans, 
and instead prefers to allow tribes to suggest schedules that meet 
their needs. Also, it is not feasible to place mandatory time limits on 
the Secretary's review since the Tribal Plans themselves will likely 
vary considerably in size and complexity. Regarding the scope of the 
tribal plan limit, the proposed rule states this rule would apply to 
all existing and future listings of threatened salmonids promulgated by 
NMFS ``whenever final protective regulations make the take prohibitions 
of ESA section 9(a) applicable'' to the particular species/ESU.
    Finally, regarding the process for public notification, NMFS is 
obliged to make public the determinations made under section 4 of the 
ESA. This is in contrast with other statutory provisions (e.g., ESA 
section 7 consultations) that do not include public review and comment 
processes. If the tribes elect to develop and submit plans under the 
tribal plan limit, the pending determination of the Secretary regarding 
survival and recovery of listed species is subject to public review and 
comment. However, public notification will focus on those features of a 
Tribal Plan needed to understand the Secretary's pending determination 
and NMFS will take all appropriate actions to ensure confidential 
information is protected to the maximum extent possible under 
applicable law. Furthermore, the public notification process will focus 
on the Secretary's pending decision, not on the Tribal Plan. In other 
words the agency will consider only those comments concerning the 
adequacy of the Secretary's pending determination that a Tribal Plan 
will or will not result in an appreciable reduction in the likelihood 
of survival and recovery.
    Comment 3: While a number of commenters questioned the 
applicability of the ESA to tribal actions, other commenters contended 
that the tribal plan limit fails to meet the standards necessary for 
compliance with the ESA. Several commenters reminded NMFS of its trust 
relationship with tribal governments and the need to comply with 
existing judicially mandated procedures/processes (e.g., harvest 
issues) concerning trust resource management. One commenter questioned 
the applicability of the rule

[[Page 42484]]

to ``all Federally recognized tribes'' and expressed concern that the 
agency would be in the position of expanding ``off-reservation 
rights.''
    Response: The tribal plan limit was developed to be consistent with 
the agency's obligation to conserve listed species under the ESA and 
meet trust obligations to Indian tribes. NMFS concludes this final rule 
responds to both mandates, but it is clearly the prerogative of any 
tribe to choose whether to submit a Tribal Plan for review under the 
tribal plan limit. By meeting its responsibility under ESA, in 
conjunction with obligations under the Secretarial Order, NMFS can meet 
its trust responsibilities to the tribes while improving the condition 
of salmon, steelhead, and other trust resources as well. NMFS is fully 
cognizant of these trust responsibilities and notes that the agency 
routinely consults with affected tribes on harvest and hatchery actions 
via section 7 of the ESA. This occurs in court mandated procedures such 
as U.S. v. Oregon and U.S. v. Washington, as well as for actions not 
covered by judicial requirements.
    The unique political and constitutional relationship between the 
United States and Indian tribes as described in this rule involves 
Federally recognized tribes. It would be inappropriate to base the 
tribal plan limit's applicability on some other characteristic such as 
possession of off-reservation fishing rights. The agency's compliance 
with the ESA, the Secretarial Order, and its trust obligations to the 
tribes will not expand any rights held by the tribes. Those rights and 
authorities exist by virtue of the tribe being a sovereign entity; NMFS 
does not have the ability to limit or expand them.
    Comment 4: A number of commenters expressed views regarding tribal 
treaty rights, tribal impacts on listed species, and the conservation 
burden placed on both tribal and non-tribal entities. While some 
commenters were concerned the tribal plan limit may give the tribes a 
``blank check'' to conduct activities as they please, others were 
concerned the rule may infringe upon pre-existing tribal rights (e.g., 
fishing and water rights). Some commenters agreed that NMFS needs to 
find a way to harmonize ESA and tribal trust responsibilities, in 
particular relating to issues concerning terminal fisheries (i.e., 
fisheries typically occurring near river mouths or hatchery release 
sites where the targeted species is returning to spawn) and harvest/
hatchery management. Other commenters stated they did not agree with 
NMFS' assertion that tribal actions have not been major factors 
contributing to the decline of salmon and steelhead.
    Response: NMFS believes that by meeting its responsibilities under 
the ESA, in conjunction with the obligations under the Secretarial 
Order, it will not only meet its trust responsibilities to the tribes, 
but improve the status of trust resources. It is the agency's intent to 
continue working with the tribes to identify how best to meet these 
responsibilities without infringing upon pre-existing tribal rights. 
Similarly, NMFS believes this rule will assist the agency in ensuring 
there is not a disproportionate conservation burden placed on either 
tribal or non-tribal parties. As noted previously in this document, 
NMFS expects an equitable balance can be achieved by holding all 
parties to a standard that supports the concepts of viable salmonid 
populations and properly functioning habitat conditions.
    NMFS disagrees with comments suggesting the tribal plan limit will 
provide a ``blank check'' to the tribes to conduct activities that may 
affect listed species. Although the tribes and Federal government 
maintain a unique relationship, NMFS has an important role in 
administering the ESA. This includes reviewing Tribal Plans to assess 
and determine that proposed actions do not appreciably reduce the 
likelihood of survival and recovery.
    NMFS strongly concurs that tribes in terminal fisheries areas are 
placed at a significant disadvantage when they attempt to exercise 
their treaty or trust rights to harvest fish. The majority of salmon or 
steelhead harvested in these fisheries are likely to be listed under 
the ESA, offering little or no opportunity to pursue a NMFS 
authorization for incidental take. It is difficult to characterize such 
harvest as ``incidental'' take. This is in contrast to harvest that 
occurs in fisheries in which listed fish intermingle with unlisted fish 
(``mixed-stock fisheries''). This issue was an important motivation for 
NMFS to develop the tribal plan limit. Adoption of this limit will 
enable NMFS to authorize tribal harvest in terminal fisheries, so long 
as NMFS concludes that harvest will not impair the survival and 
recovery of the listed ESU. Tribes exercising their rights to fish will 
no longer be held to a different standard than others who have 
opportunities to harvest fish in mixed-stock fisheries, or who take 
listed fish when conducting other non-harvest activities.
    Finally, in stating that ``[T]ribal activities have not been 
identified as major factors contributing to the decline of threatened 
species,'' the agency considered the totality of tribal actions in the 
context of all historic impacts on the species. Tribes have a long 
history of promoting sound resource management in a manner that takes 
into account a wide variety of environmental values, including ESA-
listed species.
    Comment 5: Numerous commenters voiced concerns about the construct 
of the proposed rule both in general and specific terms. Some stated a 
separate 4(d) rule for Tribal Plans was unnecessary and undesirable. 
Others referenced a court decision indicating that, absent direct 
legislative language, NMFS' trust obligations would be fulfilled by 
compliance with general regulations and statutes. Others were concerned 
with the lack of specific standards.
    Response: The tribal plan limit is an affirmative expression of 
NMFS' trust relationship with the tribes. The judicial case cited by 
several commenters involved the Federal Aviation Administration which, 
unlike NMFS' management authority over imperiled trust resources (e.g., 
marine mammals and listed salmon and steelhead), is not likely to 
involve a constant, almost daily interaction with numerous Indian 
tribes. Therefore, developing a rule that pertains to the daily 
interaction of the agency and the tribes seems to be most appropriate.

Changes to the Proposed Rule

    NMFS is modifying the proposed rule based on comments and new 
information received. The regulatory language has been modified to: (1) 
include the phrase ``tribal employee'' in the list of entities subject 
to the tribal plan limit; and (2) clarify that a Tribal Plan could 
address ``water management'' activities.
    Procedures for Implementing the ESA 4(d) Limit for Tribal Plans
    This final rule 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 the maximum 
extent practicable to provide technical assistance to any tribe that so 
requests in examining impacts on listed salmonids and other salmonids 
and in the development of Tribal Plans that meet tribal management 
responsibilities and needs. In making a determination whether a Tribal 
Plan will appreciably reduce the likelihood

[[Page 42485]]

of survival and recovery of threatened salmonids, the Secretary, in 
consultation with the tribe, will use the best available scientific and 
commercial data (including careful consideration of any tribal data and 
analysis) to determine the Tribal Plan's impact on the biological 
requirements of the species. The Secretary will also assess the effect 
of the Tribal Plan on survival and recovery in a manner consistent with 
tribal rights and trust responsibilities. Before making a final 
determination, the Secretary shall seek comment from the public on his 
pending determination whether or not implementation of a Tribal Plan 
will appreciably reduce the likelihood of survival and recovery of the 
listed salmonids. The Secretary shall publish notification in the 
Federal Register of any determination regarding a Tribal Plan and the 
basis for that determination.

Classification

    The Chief Counsel for Regulation of the Department of Commerce has 
certified that this 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 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 final rule in close coordination 
with tribal governments and organizations. This final rule 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. Moreover, NMFS will continue 
to give careful consideration to all tribal comments and will continue 
its contacts and discussions with interested tribes as this final rule 
is implemented.

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 PRA, unless that collection of information displays 
a currently valid OMB Control Number.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act (PRA) and which have been approved by 
OMB under control number 0648-0399. Public reporting burden per 
response for this collection of information is estimated to average 20 
hours for a tribal plan. This estimate includes the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding these burden 
estimates, or any other aspect of this data collection, including 
suggestions for reducing the burden, 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).

National Environmental Policy Act

    This final rule does not require the preparation of Tribal Plans. 
For most plans on which tribes request a NMFS determination under this 
limit, the Bureau of Indian Affairs or another agency, will have 
performed an NEPA analysis at the time they are developed. In the case 
of any tribal plan for which NEPA analysis has not been performed by 
another agency, NMFS will prepare an environmental analysis. Hence, 
NMFS has determined that this rule will not of its own force result in 
any changes to the human environment. Any plans determined to come 
within this limit will be evaluated under NEPA either by NMFS or 
another federal agency, prior to that determination. Therefore, this 
rule is categorically excluded from the need to prepare an 
Environmental Assessment, in accord with NOAA Administrative Order 216-
6 (3)(d) and (f).

References

    A list of references cited in this final rule is available upon 
request (see ADDRESSES).

List of Subjects in 50 CFR Part 223

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

    Dated: June 19, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 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) Limits on the prohibitions. The prohibitions of Sec. 223.203(a) 
of this subpart 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, tribal employee, or tribal agent in 
compliance with a Tribal resource management plan (Tribal Plan), 
provided that 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 (including 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 legally 
enforceable tribal rights and with the Secretary's trust 
responsibilities to tribes.
    (b) Consideration of a Tribal Plan. (1) A Tribal Plan may include 
but is not limited to plans that address fishery harvest, artificial 
production, research, or water 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 and 
will provide to the maximum extent practicable 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.
    (2) 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

[[Page 42486]]

Tribal Plan's terms shall be determined within that Federal Court 
proceeding.
    (3) 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.
    (4) The Secretary shall publish notification in the Federal 
Register of any determination regarding a Tribal Plan and the basis for 
that determination.
[FR Doc. 00-16932 Filed 7-7-00; 8:45 am]
BILLING CODE 3510-22-F