[Federal Register Volume 72, Number 25 (Wednesday, February 7, 2007)]
[Proposed Rules]
[Pages 5648-5652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2010]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration, National Marine 
Fisheries Service

50 CFR Part 223

[Docket No. [070123015-7015-01; I.D. 052104F]
RIN 0648-AV18


Endangered and Threatened Species: Proposed Protective 
Regulations

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

ACTION: Proposed rule; request for comments; notice of availability of 
a draft environmental assessment.

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SUMMARY: We, NMFS, are proposing to issue protective regulations under 
section 4(d) of the Endangered Species Act (ESA) for a distinct 
population segment (DPS) of steelhead in Puget Sound, Washington, 
presently proposed for listing as a threatened species. The 4(d) 
regulations prohibit the take of listed species, unless a ``limit'' 
applies for specified categories of activities determined to be 
adequately protective of listed salmonids. In addition, we are 
announcing the availability of an environmental assessment (EA) that 
analyzes the impacts of promulgating these 4(d) regulations. We are 
furnishing this notification to allow other agencies and the public an 
opportunity to review and comment on the draft EA. All comments 
received will become part of the public record and will be available 
for review.

DATES: Comments on this proposed rule and the draft EA must be received 
by no later than 5 p.m. P.S.T. on March 9, 2007. (See ADDRESSES).

ADDRESSES: Comments may be submitted by mail to Chief, Protected 
Resources Division, NMFS, 1201 NE Lloyd Blvd - Suite 1100, Portland, OR 
97232-1274. Comments may be submitted by e-mail to [email protected]. 
Include in the subject line of the e-mail the following document 
identifier: [070123015-7015-01]. Comments may also be submitted via 
facsimile (fax) to 503-230-5441, or via the Internet through the 
Federal e-Rulemaking portal at http://www.regulations.gov. The draft EA 
and other information regarding Pacific salmon and steelhead can be 
found at http://www.nwr.noaa.gov/ESA-Salmon-Regulations-Permits/4d-Rules/.

FOR FURTHER INFORMATION CONTACT: For further information regarding this 
proposed rule contact Steve Stone, NMFS, Northwest Region, (503) 231-
2317; or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-
1401.

SUPPLEMENTARY INFORMATION:

Background

Regulatory Authority

    NMFS is responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) of most marine and anadromous 
species warrant listing as threatened or endangered under the ESA (16 
U.S.C. 1531 et seq.). For species listed as endangered, section 9(a) of 
the ESA prohibits activities that result in take. Under the ESA the 
term ``take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or to attempt to engage in any such conduct. 
Activities that may harm

[[Page 5649]]

include significant habitat modification or degradation that actually 
kills or injures listed species by significantly impairing essential 
behavioral patterns including breeding, spawning, rearing, migrating, 
feeding or sheltering (64 FR 60727, November 8, 1999). For species 
listed as threatened, section 4(d) of the ESA requires the Secretary of 
Commerce to issue such regulations as are deemed necessary and 
advisable to provide for the conservation of the species. Such 4(d) 
protective regulations may prohibit, with respect to threatened 
species, some or all of the acts that section 9(a) of the ESA prohibits 
with respect to endangered species. Both the section 9(a) prohibitions 
and section 4(d) regulations apply to all individuals, organizations, 
and agencies subject to U.S. jurisdiction.
    In the 1990s, we adopted ESA section 4(d) regulations for Pacific 
salmon and steelhead that applied to threatened species all of the ESA 
section 9(a)(1) prohibitions for endangered species. In 1997 we began 
to use our authority under section 4(d) to tailor specific protective 
regulations to limit the application of those prohibitions for a range 
of activities determined to be necessary and advisable to provide for 
the conservation of threatened Pacific salmon and steelhead. The 
specific regulations (commonly referred to as ``limits'') addressed an 
array of activities, including salmonid research, habitat restoration, 
and harvest and hatchery management. We created a mechanism whereby 
parties could obtain an approval determining that their proposed 
activity qualified under one of the limits and, therefore, any take in 
the course of the activity is not prohibited under the ESA. In 2005 we 
revised and simplified the 4(d) regulations for threatened Pacific 
salmon and steelhead DPSs by making all DPSs subject to the same limits 
(70 FR 37160; June 28, 2005).
    Additionally, the regulations were modified so that the section 9 
prohibitions do not apply to adipose-fin-clipped hatchery fish. We 
determined that these revisions would minimize the regulatory burden of 
managing species listed as threatened under the ESA, while retaining 
the necessary and advisable protections to provide for the conservation 
of threatened Pacific salmon and O. mykiss DPSs. Currently, there are 
14 limits applicable to one or more threatened DPSs of Pacific salmon 
and steelhead, and the resultant regulations are codified in our 
regulations at 50 CFR 223.203.
    The ESA provides other protections for both endangered and 
threatened species. In particular, section 7(a)(2) of the ESA requires 
that each Federal agency shall, in consultation with and with the 
assistance of NMFS or FWS, as appropriate, ensure that any action 
authorized, funded, or carried out by such agency is not likely to 
jeopardize the continued existence of an endangered or threatened 
species or result in the destruction or adverse modification of areas 
designated as critical habitat. Also, under section 10 of the ESA, we 
may issue permits authorizing the take of a listed species for 
scientific purposes, to enhance its propagation or survival, or to 
conduct otherwise lawful activities identified in a conservation plan 
that may result in the incidental take of a listed species.

Puget Sound Steelhead

    In 1996 we identified Puget Sound steelhead as a DPS of West Coast 
steelhead and determined that listing was not warranted under the ESA 
(61 FR 41541; August 9, 1996). Subsequently we received a petition to 
re-evaluate the status of this DPS and on March 29, 2006, published a 
proposed rule to list it as threatened under the ESA (71 FR 15666). The 
new information reviewed and relevant findings are described in that 
Federal Register notice as well as an updated species status review 
(NMFS, 2005). The DPS is proposed to include all naturally spawned 
anadromous winter-run and summer-run O. mykiss (steelhead) populations, 
in streams in the river basins of the Strait of Juan de Fuca, Puget 
Sound, and Hood Canal, Washington, bounded to the west by the Elwha 
River (inclusive) and to the north by the Nooksack River and Dakota 
Creek (inclusive), as well as the Green River natural and Hamma Hamma 
winter-run steelhead hatchery stocks.
    We are presently reviewing comments received on the listing 
proposal in preparation of a final listing determination due within 1 
year of the proposal. Section 4(b)(6)(B)(I) of the ESA authorizes 
extending the deadline for a final listing determination for not more 
than 6 months for the purpose of soliciting additional data. Our ESA 
regulations at 50 CFR 424.17(a)(1)(iv) condition such an extension on 
finding ``substantial disagreement among scientists knowledgeable about 
the species concerned regarding the sufficiency or accuracy of the 
available data relevant to the determination.''
Proposed 4(d) Protective Regulations for Puget Sound Steelhead
    If the Puget Sound steelhead DPS is listed as a threatened species, 
we would have to issue such ESA section 4(d) regulations deemed 
necessary and advisable for its conservation. We would propose to amend 
existing 4(d) regulations to provide the necessary flexibility to 
ensure that programs are managed consistently with the conservation 
needs of Puget Sound steelhead. Doing so would be warranted because, as 
described in our proposal to list this DPS, the inadequacy of existing 
regulatory mechanisms is a factor limiting the viability of Puget Sound 
steelhead into the foreseeable future.
    In keeping with recent updates to our ESA section 4(d) regulations 
for Pacific salmon and steelhead, we propose to apply the ESA section 
9(a)(1) prohibitions (subject to the ``limits'' discussed below) to 
unmarked steelhead with an intact adipose fin that are part of the 
Puget Sound steelhead DPS. Juvenile hatchery steelhead are typically 
marked by clipping off their adipose fin just prior to release into the 
natural environment as a means of distinguishing them from fish of 
natural origin. Most unmarked steelhead in this DPS are of natural 
origin. However some hatchery steelhead are released unmarked. Unmarked 
hatchery fish that are surplus to the recovery needs of this DPS and 
that are otherwise distinguishable from naturally spawned fish in the 
DPS (e.g., by run timing or location) may be made not subject to the 
4(d) prohibitions by limits (b)(4) and (b)(6) of 50 CFR 223.203 for 
fishery management plans, as well as under 50 CFR 223.209 for tribal 
resource management plans. This approach provides an effective means to 
manage the artificial propagation and directed take of threatened Puget 
Sound steelhead while providing for the species' conservation and 
recovery.
    Placing specific limits on the application of section 9(a)(1) 
prohibitions for this DPS will allow NMFS to not apply these 
prohibitions to certain activities, provided the activities meet 
specific conditions to adequately protect the species. In this rule the 
agency is proposing to protect Puget Sound steelhead using the same 14 
limits currently in place for other threatened Pacific salmon and 
steelhead. These limits, codified in agency regulations at 50 CFR 
223.203, address: activities conducted in accordance with ESA section 
10 incidental take authorization (50 CFR 223.203(b)(1)); scientific or 
artificial propagation activities with pending permit applications at 
the time of rulemaking (Sec.  223.203(b)(2)); emergency actions related 
to injured, stranded, or dead salmonids (Sec.  223.203(b)(3)); fishery 
management activities (Sec.  223.203(b)(4)); hatchery and genetic 
management

[[Page 5650]]

programs (Sec.  223.203(b)(5)); activities in compliance with joint 
tribal/state plans developed within United States v. Washington or 
United States v. Oregon (Sec.  223.203(b)(6)); scientific research 
activities permitted or conducted by the states (Sec.  223.203(b)(7)); 
state, local, and private habitat restoration activities (Sec.  
223.203(b)(8)); properly screened water diversion devices (Sec.  
223.203(b)(9)); routine road maintenance activities (Sec.  
223.203(b)(10)); Portland parks pest management activities (Sec.  
223.203(b)(11)); certain municipal, residential, commercial, and 
industrial development and redevelopment activities (Sec.  
223.203(b)(12)); forest management activities on state and private 
lands within the State of Washington (Sec.  223.203(b)(13)); and 
activities undertaken consistent with an approved tribal resource 
management plan (Sec.  223.204).
    Comprehensive descriptions of each ESA section 4(d) limit are 
contained in previously published Federal Register notices (62 FR 
38479, July 18, 1997; 65 FR 42422, July 10, 2000; 65 FR 42485, July 10, 
2000; 67 FR 1116, January 9, 2002) and on the Internet at: http://www.nwr.noaa.gov/ESA-Salmon-Regulations-Permits/4d-Rules/Index.cfm. One 
of these limits (Sec.  223.203(b)(11) - Portland parks pest management) 
is very limited in scope and not applicable to this DPS.
    Limit Sec.  223.203(b)(2) exempts scientific or artificial 
propagation activities with pending applications for ESA section 4(d) 
approval. The limit was most recently amended on February 1, 2006, to 
temporarily not apply the take prohibitions(71 FR 5178) to such 
activities, provided that a complete application for 4(d) approval was 
received within 60 days of the notice's publication. In the interest of 
conserving Puget Sound steelhead, we propose to once again revise Sec.  
223.203(b)(2) to provide a ``grace period'' that allows research and 
enhancement activities to continue uninterrupted while the necessary 
4(d) assessments are completed.
    These limits are not prescriptive regulations, and no one is 
required to seek our approval for the management of their activities 
under an ESA section 4(d) limit. The fact that an activity is not 
conducted within the specified criteria for a limit does not 
automatically mean that the activity violates the ESA. Many activities 
do not affect Puget Sound steelhead and, therefore, need not be 
conducted according to a given limit to avoid ESA section 9 take 
violations. Nevertheless, there is greater certainty that an activity 
or program is not at risk of violating the section 9 take prohibitions 
if it is conducted in accordance with these limits. In order to reduce 
its liability, a jurisdiction, entity, or individual may informally 
comply with a limit by choosing to modify its programs to be consistent 
with the evaluation considerations described in the individual limits. 
Or they may seek to qualify their plans or ordinances for inclusion 
under a limit by obtaining authorization from NMFS under a specific 
section 4(d) limit.
    If Puget Sound steelhead were listed, we would encourage everyone 
to evaluate their practices and activities to determine the likelihood 
of taking Puget Sound steelhead. We can assure ESA compliance by 
ensuring compliance with existing section 4(d) regulations, as well as 
through section 7 consultation with Federal agencies or section 10 
research, enhancement, and incidental take permits. If take is likely 
to occur, then the jurisdiction, entity, or individual should modify 
its practices to avoid the take of listed steelhead, or seek to avoid 
potential ESA liability through section 7, section 10, or section 4(d) 
procedures. We will continue to work collaboratively with all affected 
governmental entities to recognize existing management programs that 
conserve listed Puget Sound salmonids and to strengthen others. Any 
final rule resulting from this proposal may be amended (through 
proposed rulemaking and public comment) to add new limits on the take 
prohibitions, or to amend or delete adopted limits as circumstances 
warrant.

Public Comments Solicited

    We invite comments and suggestions from all interested parties 
regarding the proposed approach for managing protective regulations for 
Puget Sound steelhead under section 4(d) of the ESA (see ADDRESSES). We 
request that data, information, and comments be accompanied by: 
supporting documentation such as maps, logbooks, bibliographic 
references, personal notes, and/or reprints of pertinent publications; 
and the name of the person submitting the data, the address, and any 
association, institution, or business that the person represents.

Peer Review

    In December 2004 the Office of Management and Budget (OMB) issued a 
Final Information Quality Bulletin for Peer Review (Peer Review 
Bulletin) establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
Peer Review Bulletin, implemented under the Information Quality Act 
(Public Law 106 554), is intended to provide public oversight on the 
quality of agency information, analyses, and regulatory activities. The 
text of the Peer Review Bulletin was published in the Federal Register 
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires 
Federal agencies to subject ``influential'' scientific information to 
peer review prior to public dissemination. Influential scientific 
information is defined as ``information the agency reasonably can 
determine will have or does have a clear and substantial impact on 
important public policies or private sector decisions,'' and the Peer 
Review Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. The Peer Review Bulletin 
establishes stricter standards for the peer review of ``highly 
influential'' scientific assessments, defined as information whose 
``dissemination could have a potential impact of more than $500 million 
in any one year on either the public or private sector or that the 
dissemination is novel,controversial, or precedent-setting, or has 
significant interagency interest.''
    The agency's status review for Puget Sound Steelhead (NMFS, 2005) 
is the key science document underlying the proposal to list Puget Sound 
steelhead as a threatened species. As described in our proposed rule, 
the status review was considered to be influential scientific 
information and was subjected to pre-dissemination peer review (60 FR 
15666; March 29, 2006). However, we do not consider the scientific 
information underlying the proposed protective regulations to 
constitute influential scientific information as defined in the Peer 
Review Bulletin. The information is not novel; similar information for 
other listed salmonids whose range overlaps with that of Puget Sound 
steelhead has been used in support of protective regulations that have 
been in existence for more than 6 years. Therefore the agency expects 
the information to be non-controversial and have minimal impacts on 
important public policies or private sector decisions.

References

    A complete list of the references used in this proposed rule is 
available upon request (see ADDRESSES) or via the internet at http://www.nwr.noaa.gov/ESA-Salmon-Regulations-Permits/4d-Rules/Index.cfm.

[[Page 5651]]

Required Determinations

National Environmental Policy Act (NEPA)

    While the ESA requirement to adopt protective regulations for 
threatened species is mandatory, NMFS has discretion in adopting such 
regulations as it deems necessary and advisable to provide for their 
conservation. Accordingly, the promulgation of ESA section 4(d) 
protective regulations is subject to the requirements of the NEPA, and 
we have prepared a draft Environmental Assessment (EA) analyzing the 
proposed amendments to our 4(d) regulations. We are seeking comment on 
the draft EA, which is available upon request (see DATES and ADDRESSES, 
above).

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed rule issued under authority of ESA 
section 4, if adopted, would not have a significant economic impact on 
a substantial number of small entities. As a result, no regulatory 
flexibility analysis has been prepared. The factual basis for this 
certification follows:
    Under section 4(d) of the ESA, NMFS is required to adopt such 
regulations as it deems necessary and advisable for the conservation of 
species listed as threatened, including prohibiting ``take'' of the 
threatened species.
    Steelhead are considered a gamefish in Washington state, and in 
Puget Sound are primarily harvested in recreational fisheries. The 
entities that service steelhead fisheries range in size from multi-
national corporations and chain stores to local family businesses. 
Except for the multi-national corporations and chain stores, most of 
these entities are small businesses that include bait and tackle 
suppliers, guides, and lodging and related service providers. These 
entities do not support steelhead fisheries exclusively, but instead 
provide goods and services related to a variety of other fisheries 
(e.g., for salmon and trout) as well. The economic output associated 
with sport fisheries for Puget Sound steelhead is estimated to be 
approximately $29 million per year, most of which ($19.5 million) is 
associated with the winter steelhead fishery (Washington Department of 
Fish and Wildlife, 2006).
    NMFS has previously adopted ESA 4(d) rules prohibiting take, except 
in certain circumstances, of all Pacific salmon and steelhead 
(salmonid) species listed as threatened under the ESA. NMFS now 
proposes to apply the Section 9(a)(1) take prohibitions (subject to the 
``limits'' discussed above and applicable to other threatened Pacific 
salmon and steelhead) to unmarked steelhead with an intact adipose fin 
that are part of the Puget Sound steelhead DPS. Because these 
prohibitions and associated limits address other threatened Pacific 
salmonids whose range overlaps that of Puget Sound steelhead, the 
proposed rule, if adopted, would not add a significant impact to the 
existing regulatory scheme. In addition, because the take of hatchery 
fish will not be prohibited, fisheries will be largely unaffected. 
Landowners will not be affected because the range of the Puget Sounds 
steelhead proposed for listing overlaps that of already-listed species 
whose take is already prohibited. Thus, this proposed rule, if adopted, 
will not have significant impacts on small entities. If you believe 
that this proposed rule will impact your economic activity, please 
comment on whether there is a preferable alternative that would meet 
the statutory requirements of ESA section 4(d) (see DATES and 
ADDRESSES). Please also describe the impact that alternative would have 
on your economic activity and why the alternative is preferable.

Paperwork Reduction Act (PRA)

    This proposed rule does not contain a collection-of-information 
requirement for purposes of the PRA of 1980.

Executive Order (E.O.) 12866 - Regulatory Planning and Review

    The proposed ESA section 4(d) regulations addressed in this rule 
have been determined to be not significant for the purposes of E.O. 
12866. We have prepared a Regulatory Impact Review which was provided 
to the OMB.
    Section I(12) of E.O. 12866 also requires each agency to write 
regulations that are easy to understand. We invite your comments (see 
ADDRESSES) on how to make this proposed rule easier to understand, 
including answers to questions such as the following: (1) Are the 
requirements in the rule clearly stated? (2) Does the rule contain 
technical language or jargon that interferes with its clarity? (3) Does 
the format of the rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the 
rule be easier to understand if it were divided into more (but shorter) 
sections? (5) Is the description of the rule in the SUPPLEMENTARY 
INFORMATION section of the preamble helpful in understanding the rule? 
(6) What else could NMFS do to make the rule easier to understand?

E.O. 12988 - Civil Justice Reform

    We have determined that this proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of E.O. 12988. We are proposing protective regulations pursuant 
to provisions in the ESA using an existing approach that improves the 
clarity of the regulations and minimizes the regulatory burden of 
managing ESA listings while retaining the necessary and advisable 
protections to provide for the conservation of threatened species.

E.O. 13084 - Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This proposed rule 
does not impose substantial direct compliance costs on the communities 
of Indian tribal governments within the range of this DPS. Accordingly, 
the requirements of section 3(b) of E.O. 13084 do not apply to this 
proposed rule. Nonetheless, we intend to inform potentially affected 
tribal governments and to solicit their input on the proposed rule and 
will continue coordination and discussions with interested tribes as we 
move toward a final rule.

E.O. 13132 - Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of those 
circumstances is applicable to this proposed rule. In fact, this notice 
proposes mechanisms by which we, in the form of 4(d) limits to take 
prohibitions, may defer to state and local governments where they 
provide necessary protections for Puget Sound steelhead.

E.O. 13211 - Energy Supply, Distribution, or Use

    E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. According to E.O. 13211, 
``significant energy action'' means any action by an agency that is 
expected to lead to the

[[Page 5652]]

promulgation of a final rule or regulation that is a significant 
regulatory action under E.O. 12866 and is likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Although 
the regulations addressed in this rule have been determined to be 
significant for the purposes of E.O. 12866, we have determined that the 
energy effects are unlikely to exceed the energy impact thresholds 
identified in E.O. 13211. Therefore, this proposed action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: February 1, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, 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 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201 202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

    2. In Sec.  223.203, paragraphs (a), (b) introductory text, and 
(b)(2) are revised to read as follows:


Sec.  223.203  Anadromous fish.

* * * * *
    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA 
(16 U.S.C. 1538(a)(1)) relating to endangered species apply to fish 
with an intact adipose fin that are part of the threatened species of 
salmonids listed in Sec.  223.102(c)(3) through (c)(23).
    (b) Limits on the prohibitions. The limits to the prohibitions of 
paragraph (a) of this section relating to threatened species of 
salmonids listed in Sec.  223.102(c)(3) through (c)(23) are described 
in the following paragraphs (b)(1) through (b)(13):
* * * * *
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened Puget Sound steelhead listed in Sec.  223.102(c)(23) do not 
apply to activities specified in an application for ESA 4(d) 
authorization for scientific purposes or to enhance the conservation or 
survival of the species, provided that the application has been 
received by the Assistant Administrator for Fisheries, NOAA (AA), no 
later than 60 days after the publication of the final rule in the 
Federal Register. The prohibitions of this section apply to these 
activities upon the AA's rejection of the application as insufficient, 
upon issuance or denial of authorization, or 6 months after the 
publication of the final rule in the Federal Register, whichever occurs 
earliest.
* * * * *
[FR Doc. E7-2010 Filed 2-6-07; 8:45 am]
BILLING CODE 3510-22-S