39900 Federal Register / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations 

1While a detailed definition of ‘‘United States 

work’’ may be found at 17 U.S.C. 101 (definition of 

‘‘United States work’’), we offer a somewhat 

simplified description here: A ‘‘United States work’’ 

is a work that (1) is first published in the United 

States (unless it was simultaneously published in 

a country that has a copyright treaty relationship 

with the United States and where the term of 

copyright protection is shorter than the term in the 

United States), (2) is first published in a country 

with which the United States has no copyright 

treaty relations, and the authors of which are all 

nationals, domiciliaries, or habitual residents of the 

United States, or (3) is unpublished and all the 

authors of which are nationals, domiciliaries, or 

habitual residents of the United States. 

Unit size 

Percentage of 

area median 

income 

3 bedrooms or more ............. * 

*15.6% plus (1.8% multiplied by the number 

of bedrooms in excess of 3). 

(e) Missing Information. Each 

Enterprise shall make every effort to 

obtain the information necessary to 

make the calculations in this section. If 

an Enterprise makes such efforts but 

cannot obtain data on the number of 

bedrooms in particular units, in making 

the calculations on such units, the units 

shall be assumed to be efficiencies 

except as provided in § 1282.15(e)(6)(i). 

§ 1282.20 Actions to be taken to meet the 

goals. 

To meet the goals under this rule, 

each Enterprise shall operate in 

accordance with 12 U.S.C. 4565(b). 

§ 1282.21 Notice and determination of 

failure to meet goals. 

If the Director determines that an 

Enterprise has failed or there is a 

substantial probability that an 

Enterprise will fail to meet any housing 

goal, the Director shall follow the 

procedures at 12 U.S.C. 4566(b). 

§ 1282.22 Housing plans. 

(a) If the Director determines, under 

§ 1282.21, that an Enterprise has failed 

or there is a substantial probability that 

an Enterprise will fail to meet any 

housing goal and that the achievement 

of the housing goal was or is feasible, 

the Director may require the Enterprise 

to submit a housing plan for approval by 

the Director. 

(b) Nature of plan. If the Director 

requires a housing plan, the housing 

plan shall: 

(1) Be feasible; 

(2) Be sufficiently specific to enable 

the Director to monitor compliance 

periodically; 

(3) Describe the specific actions that 

the Enterprise will take: 

(i) To achieve the goal for the next 

calendar year; and 

(ii) If the Director determines that 

there is a substantial probability that the 

Enterprise will fail to meet a housing 

goal in the current year, to make such 

improvements and changes in its 

operations as are reasonable in the 

remainder of the year; and 

(4) Address any additional matters 

relevant to the plan as required, in 

writing, by the Director. 

(c) Deadline for submission. The 

Enterprise shall submit the housing plan 

to the Director within 30 days after 

issuance of a notice under § 1282.21 

requiring the Enterprise to submit a 

housing plan. The Director may extend 

the deadline for submission of a plan, in 

writing and for a time certain, to the 

extent the Director determines an 

extension is necessary. 

(d) Review of housing plans. The 

Director shall review and approve or 

disapprove housing plans in accordance 

with 12 U.S.C. 4566(c)(4) and (5). 

(e) Resubmission. If the Director 

disapproves an initial housing plan 

submitted by an Enterprise, the 

Enterprise shall submit an amended 

plan acceptable to the Director not later 

than 15 days after the Director’s 

disapproval of the initial plan; the 

Director may extend the deadline if the 

Director determines an extension is in 

the public interest. If the amended plan 

is not acceptable to the Director, the 

Director may afford the Enterprise 15 

days to submit a new plan. 

Dated: July 28, 2009. 

James B. Lockhart III, 

Director, Federal Housing Finance Agency. 

[FR Doc. E9–18517 Filed 8–7–09; 8:45 am] 

BILLING CODE P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. RM 2009–5] 

Fees for Special Handling of 

Registration Claims 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Temporary rule. 

SUMMARY: The Copyright Office of the 

Library of Congress is publishing an 

interim rule relating to fees for special 

handling of registration claims that have 

been pending for at least six months. 

Special handling is the expedited 

processing of an application and is 

granted in certain circumstances when 

compelling reasons are present. 

Ordinarily a special handling fee is 

charged for special handling in addition 

to the regular fee for an application to 

register a copyright claim. Because of 

current delays in the processing of 

applications for registration occurring in 

the course of the Office’s 

implementation of its business process 

reengineering program, the Office has 

determined that the special handling fee 

shall not be assessed for conversion of 

a pending application to special 

handling status when the application 

has been pending for more than six 

months and the applicant has satisfied 

the Office that expedited handling of the 

registration is needed because the 

applicant is about to file a suit for 

copyright infringement. 

EFFECTIVE DATES: This rule is effective 

August 10, 2009 through July 1, 2011. 

FOR FURTHER INFORMATION CONTACT: 

David O. Carson, General Counsel, or 

Stephen Ruwe, Attorney–Advisor, 

Copyright GC/I&R, P.O. Box 70400, 

Washington, D.C. 20024–0400, 

Telephone (202) 707–8380. Telefax: 

(202) 707–8366. 

SUPPLEMENTARY INFORMATION: Although 

the copyright law provides that a work 

of authorship obtains copyright 

protection from the moment it is fixed 

in a tangible medium of expression and 

that copyright registration is not a 

prerequisite for such protection, 

copyright registration nevertheless is 

required in order to obtain certain 

remedies for copyright infringement. 

Section 411 of the Copyright Act 

provides that, with certain exceptions, a 

suit for infringement of a United States 

work1 may not be filed until registration 

of the copyright claim has been made or 

refused by the Copyright Office. Section 

412 provides that, with certain 

exceptions, the remedies of statutory 

damages and awards of attorney’s fees 

are not available to a copyright owner 

when (1) infringement of copyright in 

an unpublished work commenced 

before the effective date of its 

registration; or (2) infringement of 

copyright commenced after first 

publication of the work and before the 

effective date of its registration, unless 

such registration was made within three 

months after the first publication of the 

work. 

Because the effective date of 

registration is ‘‘the day on which an 

application, deposit, and fee, which are 

later determined by the Register of 

Copyrights or by a court of competent 

jurisdiction to be acceptable for 

registration, have all been received in 

the Copyright Office,’’ 17 U.S.C. 410(d), 

a delay by the Copyright Office in its 

processing of an application for 

copyright registration will not adversely 

affect the ability of a copyright owner to 


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Federal Register / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations 39901 

2A minority of courts have misread section 411(a) 

as providing that the prerequisite of copyright 

registration has been satisfied the moment the 

application, fee and deposit have been received in 

the Copyright Office. That interpretation of the 

statute ignores the text and purpose of section 

411(a). See La Resolana Architects, PA v. Clay 

Realtors Angel Fire, 416 F.3d 1195 (10th Cir. 2005); 

Brief for the United States as Amicus Curiae 

Supporting Vacatur and Remand at 24 n.14, Reed 

Elsevier, Inc. v. Muchnick, No. 08-103 (U.S. June 8, 

2009). 

obtain an award of statutory damages or 

attorney’s fees. No matter how long it 

takes for the Office to issue the 

certificate of registration, the effective 

date of registration will be the date the 

application, fee and deposit arrived at 

the Copyright Office. 

However, a delay in the issuance of a 

certificate of registration can create 

difficulties for a copyright owner of a 

United States work who wishes to file 

a suit for copyright infringement. The 

copyright owner will have to wait until 

the Office has either registered the 

copyright or refused to register the 

copyright; the copyright owner may not 

file suit the moment the application, fee 

and deposit have been submitted to the 

Copyright Office. See 17 U.S.C. 411(a).2

Special Handling 

In recognition that copyright owners 

sometimes need to file suits for 

copyright infringement before they can 

reasonably expect the Office to issue (or 

refuse to issue) a certificate of 

registration, the Copyright Office has 

long offered a service called ‘‘Special 

Handling.’’ Special Handling provides 

expedited processing of an application 

for copyright registration. See Copyright 

Office Circular 10, at http:// 

www.copyright.gov/circs/circ10.pdf, 

which states, ‘‘Special handling is the 

expedited processing of an application 

for registration of a claim to copyright 

or for the recordation of a document 

pertaining to copyright. It is granted in 

certain circumstances to those who have 

compelling reasons for this service. It is 

subject to the approval of the chief of 

the Receipt Analysis and Control 

Division, who must consider the 

workload of the Copyright Office at the 

time the request is made.’’ Special 

Handling may be justified for any of the 

following three reasons: pending or 

prospective litigation, customs matters, 

or contract or publishing deadlines that 

necessitate the expedited issuance of a 

certificate. Once a request for special 

handling is received and approved, 

every attempt is made to process the 

claim within five working days, 

although the Office cannot guarantee 

that all applications for which Special 

Handling has been approved will be 

processed within that time. For more 

details on Special Handling, see 

Circular 10. See also Notice of Policy 

Decision, Policy Decision Announcing 

Fee for Special Handling Of 

Applications for Copyright Registration, 

47 FR 19254 (May 4, 1982); Policy 

Decision: Revised Special Handling 

Procedures, 56 FR 37528 (Aug. 7, 1991). 

Since 1982, the Copyright Office has 

charged a fee for special handling, in 

addition to the basic fee for an 

application for copyright registration. 

As the Office explained when it first 

imposed the Special Handling fee, ‘‘In 

the past the Copyright Office absorbed 

the additional costs of special handling 

but cannot continue to do so in the face 

of the rising number of such requests 

and the fiscal restraints under which it 

must operate. ... A claim that receives 

special handling must be processed 

outside of the normal work flow 

necessitating individual handling at 

each step and individual routing 

between work stations. A separate 

system of controls must be maintained 

for the special handling of claims to 

assure both that they move 

expeditiously through the necessary 

procedures and that they can be located 

quickly if the need should arise. Each of 

these activities involves more employee 

time than claims in the normal work 

flow since employees could otherwise 

be more efficiently occupied processing 

ordinary claims.’’ 47 FR at 19254. See 

also Notice of Policy Decision, Policy 

Decision Announcing Increase in the 

Fee for Special Handling of 

Applications for Copyright Registration, 

49 FR 39741 (Oct. 10, 1984). Special 

Handling fees, along with other 

Copyright Office fees, are set forth at 37 

CFR 201.3(d). See also Final Rule: Fees, 

74 FR 32805 (July 9, 2009). 

Delays in Registration Processing 

As the Office has implemented its 

business process reengineering program, 

which has involved converting the 

registration system from the old, paper– 

based process to a new system of 

electronic processing and included a 

reorganization of the operations of the 

Office that has given new duties to 

copyright registration specialists, the 

pendency rates for applications for 

registration have risen to unacceptably 

high levels due to issues relating to the 

transition to the new system, especially 

with respect to paper applications. As a 

result, some applicants whose 

applications have been pending for 

several months may find that events 

occurring after an application was 

submitted require the applicant to seek 

expedited registration. In particular, an 

applicant may discover that a work that 

is the subject of a pending application 

has been infringed since the application 

was submitted. Because a suit for 

copyright infringement may not be 

instituted until after the work has been 

registered (or after registration has been 

refused), the applicant may need to 

convert the pending application to 

Special Handling. 

Although the Office believes that as a 

general proposition, the imposition of 

an additional fee for Special Handling is 

fully justified, it is difficult to justify 

imposition of that fee for expedited 

registration of a claim when both (1) the 

applicant needs a certificate of 

registration in order to file an imminent 

suit for copyright infringement, and (2) 

the application has been pending longer 

than would ordinarily be reasonable to 

expect. We note that before the 

commencement of the delays caused by 

the conversion to the new registration 

processing system, 90% of all 

registration claims were processed 

within 6 months. Currently, a similar 

percentage of claims that are submitted 

electronically are processed within 6 

months, but it is taking up to 19 months 

to process 90% of all claims submitted 

on paper applications. Only 5% of 

claims submitted on paper applications 

are processed within 6 months. 

Waiver of Special Handling Fee 

Under the circumstances, the Office 

has concluded that it is appropriate to 

waive the fee for conversion of a 

pending application to Special Handling 

status in cases where (1) the applicant 

satisfies the Office that the applicant is 

about to file suit for infringement of the 

copyright in the work that is the subject 

of the application; and (2) the 

application has been pending for more 

than 6 months without any action by the 

Copyright Office. The first requirement 

is based on the recognition that a 

copyright owner simply cannot file a 

copyright infringement suit unless the 

Office has acted upon an application for 

registration. Because of this 

requirement, a copyright owner who has 

been waiting for longer than it would 

ordinarily take for a registration 

decision and who now needs to file a 

suit for copyright infringement should 

not have to pay an additional fee in 

order to ‘‘expedite’’ the registration. 

The second requirement is based on 

the fact that prior to the inception of the 

current delays, almost all (90%) 

applicants could expect to receive their 

certificates of registration within 6 

months. Because an applicant could 

ordinarily expect to receive the 

certificate within that time frame, 6 

months is an appropriate period of time 

after which persons meeting the first 

requirement should be relieved of the 


rmajette on DSK29S0YB1PROD with RULES
39902 Federal Register / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations 

obligation to pay for Special Handling. 

However, there is less justification for 

providing such relief in cases where the 

delay is due, in whole or in part, to the 

fact that the Office had to correspond 

with the applicant due to questions 

about the application. For that reason, 

an application must have been pending 

for more than six months without any 

action (including correspondence) by 

the Copyright Office. 

In order to ensure that the Special 

Handling fee is waived only in cases 

where litigation is truly imminent and 

the need for Special Handling is 

therefore crucial, persons requesting 

conversion of their applications to 

Special Handling status with a waiver of 

the Special Handling fee must supply 

satisfactory proof that they are about to 

file a copyright infringement suit by 

submitting to the Copyright Office 

General Counsel (1) an affidavit or a 

declaration under penalty of perjury, 

signed by the applicant or by the 

applicant’s attorney, identifying the 

work for which registration is pending 

and which is the subject of the request 

for Special Relief and providing basic 

information about the prospective 

litigation, including the identity of the 

defendant and the court in which suit 

will be filed, and (2) a draft of the 

complaint that will be filed once the 

certificate of registration has been 

issued. The purpose of these 

requirements is to ensure that waivers of 

the Special Handling fee are given only 

in cases where Special Handling is in 

fact needed in order to facilitate 

imminent litigation. 

In order to facilitate identification of 

the pending claim that is the subject of 

the request, the request should include 

the exact title of the work as it appears 

on the application, as well as the 

name(s) of the author(s) and claimant(s), 

the date the application was submitted 

to the Copyright Office and the means 

(e.g., by mail, by hand delivery, or by 

electronic submission) by which it was 

submitted, and a description of the 

deposit. A person requesting conversion 

of a pending copyright registration 

application to Special Handling status 

should also, whenever possible, provide 

a photocopy of the application. 

This interim regulation will expire on 

July 1, 2011. The Office anticipates that 

by that date, processing time for 

applications will have returned to 

normal and that almost all claims (apart 

from those that require correspondence 

because of problems or questions 

pertaining to the application) will be 

processed within 6 months. 

List of Subjects in 37 CFR Part 201 

Copyright, General provisions. 

Final Rule 

■ In consideration of the foregoing, part 

201 of 37 CFR chapter II is amended as 

follows: 

PART 201—GENERAL PROVISIONS 

■ 1. The authority citation for part 201 

continues to read as follows: 

Authority: 17 U.S.C. 702. 

■ 2. Part 201 is amended by adding 

§ 201.15 to read as follows: 

§ 201.15 Special Handling of Pending 

Claims Requiring Expedited Processing for 

purposes of Litigation. 

(a) Special Handling is the expedited 

processing of an application for 

registration of a claim to copyright or for 

the recordation of a document 

pertaining to copyright. It is granted in 

cases where a compelling need for the 

service exists due to pending or 

prospective litigation, customs matters, 

or contract or publishing deadlines that 

necessitate the expedited issuance of a 

certificate of registration. 

(b) Fee. The fee for Special Handling 

is set forth at section 201.3(d) of this 

chapter. 

(c) Waiver of fee. When no action 

(including communication from the 

Copyright Office) has been taken on an 

application for registration within six 

months after the time the application, 

fee and deposit were received by the 

Copyright Office, the applicant may 

request Special Handling of the 

application and request that the fee for 

Special Handling be waived. The fee 

may be waived only when the applicant 

satisfies the Copyright Office that the 

applicant is about to file suit for 

infringement of the copyright in a work 

that is the subject of the application. 

(d) Form of request for Special 

Handling and for waiver of fee. A 

request for Special Handling and for a 

waiver of the Special Handling fee must 

be submitted in the form of an affidavit 

or declaration under penalty of perjury 

pursuant to 28 U.S.C. 1746, signed by 

either the applicant or an attorney 

acting on behalf of the applicant, which 

(1) Provides the following information 

relating to the application for 

registration: 

(i) The exact title of the work for 

which registration is sought, as reflected 

on the application; 

(ii) The name(s) of the author(s) of the 

work, as reflected on the application; 

(iii) The name(s) of claimants, as 

reflected on the application; 

(iv) The date the application was 

submitted to the Copyright Office; 

(v) The means (e.g., by hand delivery, 

by electronic submission, by first class 

mail, by Express Mail, or by registered 

or certified mail) by which the 

application was submitted to the 

Copyright Office; and 

(vi) A description of the material 

deposited for registration, to assist in 

identifying the deposit; 

(2) Includes a copy of the application 

that was submitted to the Copyright 

Office, or states that the applicant does 

not have access to a copy of the 

application; 

(3) States that the applicant or a 

person acting with the authorization of 

the applicant is about to file suit for 

infringement of the copyright in a work 

that is the subject of the application; 

(4) Identifies the defendant(s) and the 

court in which the suit will be filed; and 

(5) Includes a copy of the complaint 

for copyright infringement that the 

applicant or a person acting with the 

authorization of the applicant intends to 

file in a United States District Court or 

the United States Court of Federal 

Claims. The copy of the complaint may 

omit allegations identifying the 

certificate of copyright registration, but 

must otherwise be complete. 

(e) Submission of request for Special 

Handling and for waiver of fee. The 

materials identified in paragraph (d) of 

this section may be delivered to the 

Copyright Office by hand or by United 

States Postal Service Express Mail. 

Delivery by regular United States mail 

or overnight delivery services such as 

Federal Express and United Parcel 

Service cannot be accepted. The 

materials shall be delivered as follows: 

(1) By hand. (i) If hand–delivered by 

a private party, the materials shall be 

placed in an envelope addressed to 

‘‘Request for Waiver of Special Handling 

Fee, Office of the General Counsel, U.S. 

Copyright Office’’ and brought to the 

James Madison Building, Library of 

Congress, U.S. Copyright Office, Room 

401, 101 Independence Avenue, SE, 

Washington, DC 20559, between 8:30 

a.m. and 5 p.m. E.D.T. 

(ii) If hand–delivered by a commercial 

courier, the materials shall be placed in 

an envelope or package, no larger than 

12 inches by 18 inches by 4 inches, 

addressed to ‘‘Request for Waiver of 

Special Handling Fee, Office of the 

General Counsel, U.S. Copyright Office, 

LM 403, James Madison Building, 

Library of Congress, 101 Independence 

Avenue, SE, Washington, DC 20559’’ 

and delivered to the Congressional 

Courier Acceptance Site (‘‘CCAS’’), 

located at 2nd and D Streets, NE, 

Washington, DC between 8:30 a.m. and 

4 p.m. 

(2) By Express Mail. If sent by Express 

Mail, the materials should be placed in 

an envelope or package, no larger than 

12 inches by 18 inches by 4 inches, 


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Federal Register / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations 39903 

addressed to ‘‘Request for Waiver of 

Special Handling Fee, Office of the 

General Counsel, U.S. Copyright Office, 

Copyright GC/I&R, P.O. Box 70400, 

Washington, DC 20024,’’ and deposited 

with the United States Postal Service. 

Dated: July 29, 2009. 

Marybeth Peters, 

Register of Copyrights. 

Approved by: 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. E9–19101 Filed 8–7–09; 8:45 am] 

BILLING CODE 1410–33–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 0808061060–91139–03] 

RIN 0648–AW77 

Endangered and Threatened Species; 

Designation of Critical Habitat for 

Atlantic Salmon (Salmo salar) Gulf of 

Maine Distinct Population Segment; 

Final Rule 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue a final 

rule to revise the regulatory language 

that appeared in a final rule that 

published in the Federal Register of 

June 19, 2009. The final rule designated 

critical habitat for the Atlantic salmon 

(USalmo salar) Gulf of Maine Distinct 

Population Segment (GOM DPS) under 

the Endangered Species Act (ESA). We 

designated as critical habitat 45 specific 

areas occupied by Atlantic salmon at the 

time of listing that comprise 

approximately 19,571 km of perennial 

river, stream, and estuary habitat and 

799 square km of lake habitat within the 

range of the GOM DPS and in which are 

found those physical and biological 

features essential to the conservation of 

the species. We excluded approximately 

1,256 km of river, stream, and estuary 

habitat and 100 square km of lake 

habitat from critical habitat pursuant to 

the ESA. We issue this final rule to 

revise the designated critical habitat for 

the expanded GOM DPS of Atlantic 

salmon to exclude all trust and fee 

holdings of the Penobscot Indian 

Nation, and we correct the table to add 

an ‘‘E’’ to indicate that Belfast Bay is 

excluded from critical habitat under the 

ESA for reasons of economics. 

DATES: Effective August 10, 2009. 

FOR FURTHER INFORMATION CONTACT: Dan 

Kircheis, National Marine Fisheries 

Service, Maine Field Station, 17 Godfrey 

Drive, Orono, ME 04473 at (207) 866– 

7320, or Marta Nammack at (301) 713– 

1401 ext. 180. 

SUPPLEMENTARY INFORMATION: In the 

proposed rule to designate critical 

habitat for the expanded GOM DPS of 

Atlantic salmon (73 FR 51747; 

September 5, 2008), we proposed to 

exclude under section 4(b)(2) of the ESA 

all tribal lands from the critical habitat 

designation, based on Secretarial Order 

3206 that recognizes Tribes as having 

the governmental authority and the 

desire to protect and manage their 

resources in a manner that is most 

beneficial to them. 

In the final rule to designate critical 

habitat for the expanded GOM DPS of 

Atlantic salmon (74 FR 29300; June 19, 

2009), we included as critical habitat 

Trust and Fee lands owned by the 

Penobscot Indian Nation, based on our 

interpretation of comments that we 

received from the Penobscot Indian 

Nation. In their comments, the 

Penobscot Indian Nation stated that ‘‘the 

Nations Trust landholdings are 

adequately identified and appropriately 

excluded from Critical Habitat 

Designation.’’ Then they stated, ‘‘Given 

the extent of important salmon habitat 

located within the Penobscot Indian 

Reservation the Penobscot Nation asks 

that the services do not exclude any 

portion of the Penobscot Indian 

Reservation from the designation as 

Critical Habitat. The bed, banks, and 

islands that make up the Penobscot 

Indian Reservation are indeed ‘‘critical’’ 

to the survival of wild Atlantic salmon 

in the Penobscot River watershed. In 

fact, the Penobscot Nation believes that 

the recovery of the species will not be 

possible without adequate access to the 

Atlantic salmon habitat that is 

contained within the Penobscot Indian 

Reservation.’’ We interpreted this to 

mean that all of the Penobscot Indian 

Nation’s land should be included as 

critical habitat. 

On June 22, 2009, we received notice 

from the Tribe that we incorrectly 

included Trust and Fee lands as critical 

habitat when they were seeking to 

include reservation lands. This final 

rule corrects the final rule published on 

June 19, 2009 (74 FR 29300) to exclude 

all areas that are Trust and Fee lands of 

the Penobscot Indian Nation. Critical 

habitat on Penobscot Indian lands will 

remain designated only for those lands 

that make up the Penobscot Reservation. 

The exclusion of the Trust and Fee 

lands from the designation of critical 

habitat does not diminish the number of 

functional habitat units below those 

needed for the recovery of the species in 

the Penobscot Bay salmon habitat 

recovery unit. 

The effect of this correction is to 

exclude 1,400 instead of 1,256 km of 

river, stream, and estuary habitat and 

127 instead of 100 sq km of lake habitat 

from critical habitat pursuant to section 

4(b)(2) of the ESA. 

Recent information provided by the 

Penobscot on Tribal ownership of lands 

within the occupied range designated as 

critical habitat discloses that the 

Penobscot Tribe hold approximately 

60,500 acres (244.8 sq km) of Fee lands 

and lands held in Trust within the areas 

occupied by GOM DPS. We have 

determined that all the rivers, streams, 

lakes, and estuaries of approximately 

9,500 acres (38.4 sq km) of land held for 

the Passamaquoddy tribe already 

disclosed in the final rule and 

approximately 60,500 acres (244.8 sq 

km) of Fee lands and lands held in Trust 

by the Penobscot Nation (not disclosed 

in the final rule) within the areas 

occupied by the GOM DPS are excluded 

from critical habitat designation based 

on the principles of the Secretarial 

Order discussed above. The rivers, 

lakes, and streams within the 

approximately 4,400–acre (17.8 sq km) 

Penobscot Reservation are included as 

critical habitat per request of the 

Penobscot Nation. 

We do not believe that exclusion of 

Penobscot Tribal Trust lands and 

Passamaquoddy tribal lands, including 

their lands in the Downeast Coastal 

Salmon Habitat Recovery Unit (SHRU), 

will reduce the conservation value or 

functional habitat units of Atlantic 

salmon habitat within those particular 

areas, given the ongoing cooperative 

efforts between the Tribes and the 

agencies. The Penobscot Indian Nation 

and the Passamaquoddy Tribe own 

lands within the range of the GOM DPS 

and have actively pursued or 

participated in activities to further 

promote the health and continued 

existence of Atlantic salmon and their 

habitats. The Penobscot Indian Nation 

has developed and maintained its own 

water quality standards that state ‘‘it is 

the official policy of the Penobscot 

Nation that all waters of the Tribe shall 

be of sufficient quality to support the 

ancient and historical traditional and 

customary uses of such tribal waters by 

members of the Penobscot Nation.’’ The 

Tribe is also currently participating in 

the Penobscot River Restoration Project 

that has the intended goal of restoring 

11 species of diadromous fish, including 


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