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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Atlantic salmon. The Passamaquoddy 

Tribe has continued to maintain efforts 

to balance agricultural practices with 

natural resources. In a tract of Tribal 

land in Township 19, which accounts 

for approximately 12 km of the 28 km 

of rivers and streams on Passamaquoddy 

land that contain physical and 

biological features essential to salmon, 

the Tribe has established an ordinance 

to govern its water withdrawals for 

these lands. This ordinance states, ‘‘it is 

important to the Tribe that its water 

withdrawals at T. 19 do not adversely 

affect the Atlantic salmon in any of its 

life stages, or its habitat,’’ and restricts 

water withdrawals to avoid adverse 

impact on the Atlantic salmon. 

The benefits of excluding Tribal lands 

from critical habitat include 

maintenance of a long-term working 

relationship between the Tribes and 

government agencies that promotes 

environmental conservation and 

Atlantic salmon conservation and the 

continued promotion of established 

national policies, our Federal trust 

obligations, and our deference to the 

Tribes in management of natural 

resources on their lands. 

Also, in § 226.217(b)(2)(i) of the June 

19, 2009, final rule (74 FR 29300), we 

inadvertently left out the ‘‘E’’ in the 

table to indicate that the Belfast Bay 

HUC 10 watershed was excluded from 

critical habitat based on economic 

impacts. This final rule corrects that 

omission. 

Correction 

In FR Doc. E9–14268 appearing on 

page 29300 in the Federal Register of 

Friday, June 19, 2009, the following 

corrections are made: 

On page 29330, under the heading 

Other Relevant Impacts: Tribal Lands, 

third column, the first paragraph is 

corrected to read: ‘‘Secretarial Order 

3206 recognizes that Tribes have 

governmental authority and the desire 

to protect and manage their resources in 

the manner that is most beneficial to 

them. Pursuant to the Secretarial Order, 

and consistent with the Federal 

government’s trust responsibilities, the 

Services must consult with the affected 

Indian Tribes when considering the 

designation of critical habitat in areas 

that may impact tribal trust resources, 

tribally-owned fee lands, or the exercise 

of tribal rights.’’ 

Classification 

The determinations made by the 

agency in the Classification section in 

the final rule published June 19, 2009 

(74 FR 29300), with respect to Executive 

Order 12866, the Coastal Zone 

Management Act, the Regulatory 

Flexibility Act, the Information Quality 

Act, the Paperwork Reduction Act, the 

National Environmental Policy Act, 

Federalism, and Takings are unaltered 

by this correction. 

The Assistant Administrator for 

Fisheries, NOAA (AA) finds good cause 

pursuant to 5 U.S.C. 553(b)(B) to waive 

prior notice and the opportunity for 

public comment because it is 

‘‘unnecessary’’. Exclusion of the 

Penobscot Nation’s Trust and fee lands 

was part of the proposed rule on which 

public comment was solicited. The only 

comment received on this aspect of the 

proposed rule was from the Penobscot 

Nation. As such, this correction is 

considered a minor rule regarding 

which the public is not particularly 

interested. This correction actually 

responds to a further comment from the 

Penobscot Nation which pointed out 

that the agency had misinterpreted the 

intent of its comment on the proposed 

rule. 

The AA further finds pursuant to 5 

U.S.C. 553(d)(3) good cause to waive the 

thirty (30) day delayed effectiveness 

period because it relieves a burden. 

Activities that are funded, authorized, 

or carried out by a Federal agency, such 

as agriculture, development, and 

transportation, on Tribal lands might be 

negatively impacted by the designation. 

If the activity may affect critical habitat, 

then the Federal agency would be 

required to consult with NMFS under 

ESA section 7 to ensure that the activity 

does not destroy or adversely modify 

critical habitat. Implementing this 

correction as soon as possible would 

remove this burden that might impact 

Federal activities on Tribal lands. 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: August 3, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 1. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. In § 226.217 paragraphs (b)(2)(i), 

(b)(4), and (b)(7)(ii) are revised to read 

as follows: 

§ 226.217 Critical habitat for the Gulf of 

Maine Distinct Population Segment of 

Atlantic Salmon (Salmo salar). 

* * * * * 

(b) * * * 

(2) * * * 

(i) HUC 10 watersheds in the 

Penobscot Bay SHRU analyzed for 

critical habitat, those that meet the 

criteria for critical habitat, and those 

excluded under ESA section 4(b)(2): 

Penobscot Bay SHRU HUC 10 

Code HUC 10 Name Status 

Economic 

(E), Military 

(M), or 

Tribal (T) 

exclusions 

1 0102000101 North Branch Penobscot River .........................................

2 0102000102 Seeboomook Lake ............................................................

3 0102000103 WEST Branch Penobscot River at Chesuncook Lake .....

4 0102000104 Caucomgomok Lake .........................................................

5 0102000105 Chesuncook Lake ..............................................................

6 0102000106 Nesowadnehunk Stream ...................................................

7 0102000107 Nahamakanta Stream .......................................................

8 0102000108 Jo-Mary Lake .....................................................................

9 0102000109 West Branch Penobscot River (3) ....................................

10 0102000110 West Branch Penobscot River (4) ....................................

11 0102000201 Webster Brook ...................................................................

12 0102000202 Grand Lake Matagamon ................................................... Critical Habitat T 

13 0102000203 East Branch Penobscot River (2) ..................................... Critical Habitat T 

14 0102000204 Seboeis River .................................................................... Critical Habitat T 

15 0102000205 East Branch Penobscot River (3) ..................................... Critical Habitat T 

16 0102000301 West Branch Mattawamkeag River ................................... Critical Habitat T 

17 0102000302 East Branch Mattawamkeag River .................................... Critical Habitat 


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Penobscot Bay SHRU HUC 10 

Code HUC 10 Name Status 

Economic 

(E), Military 

(M), or 

Tribal (T) 

exclusions 

18 0102000303 Mattawamkeag River (1) ................................................... Critical Habitat 

19 0102000304 Baskahegan Stream ..........................................................

20 0102000305 Mattawamkeag River (2) ................................................... Critical Habitat 

21 0102000306 Molunkus Stream .............................................................. Critical Habitat E 

22 0102000307 Mattawamkeag River (3 .................................................... Critical Habitat T 

23 0102000401 Piscataquis River (1) ......................................................... Critical Habitat 

24 0102000402 Piscataquis River (3) ......................................................... Critical Habitat 

25 0102000403 Sebec River .......................................................................

26 0102000404 Pleasant River ................................................................... Critical Habitat T 

27 0102000405 Seboeis Stream ................................................................. Critical Habitat T 

28 0102000406 Piscataquis River (4) ......................................................... Critical Habitat ‘‘ 

29 0102000501 Penobscot River (1) at Mattawamkeag ............................. Critical Habitat T 

30 0102000502 Penobscot River (2) at West Enfield ................................. Critical Habitat T 

31 0102000503 Passadumkeag River ........................................................ Critical Habitat E 

32 0102000505 Sunkhaze Stream .............................................................. Critical Habitat 

33 0102000506 Penobscot River (3) at Orson Island ................................ Critical Habitat T 

34 0102000507 Birch Stream ...................................................................... Critical Habitat T 

35 0102000508 Pushaw Stream .................................................................

36 0102000509 Penobscot River (4) at Veazie Dam ................................. Critical Habitat 

37 0102000510 Kenduskeag Stream .......................................................... Critical Habitat 

38 0102000511 Souadabscook Stream ...................................................... Critical Habitat 

39 0102000512 Marsh River ....................................................................... Critical Habitat 

40 0102000513 Penobscot River (6) .......................................................... Critical Habitat 

92 0105000216 Bagaduce River .................................................................

93 0105000217 Stonington Coastal ............................................................

94 0105000218 Belfast Bay ........................................................................ Critical Habitat E 

105 0105000219 Ducktrap River ................................................................... Critical Habitat 

103 0102000504 Olamon Stream .................................................................

95 0105000220 West Penobscot Bay Coastal ...........................................

* * * * * 

(4) Habitat that meets the definition of 

critical habitat in occupied habitat areas 

on Passamaquoddy Tribal Indian lands 

and Fee lands or lands held in Trust by 

the Penobscot Indian Reservation within 

the range of the GOM DPS are excluded 

from designation. Per request of the 

Penobscot Tribe, critical habitat does 

include occupied habitat that makes up 

the Penobscot Indian Reservation. The 

Indian lands specifically excluded from 

critical habitat are those defined in the 

Secretarial Order 3206, including: 

(i) Lands held in Trust by the United 

States for the benefit of any Indian 

Tribe; 

(ii) Lands held in trust by the United 

States for the benefit of any Indian Tribe 

or individual subject to restrictions by 

the United States against alienation; 

(iii) Fee lands, either within or 

outside the reservation boundaries, 

owned by the tribal government; and 

(iv) Fee lands within the reservation 

boundaries owned by individual 

Indians. 

The rivers, streams, lakes, and 

estuaries on approximately 9,500 acres 

(38.4 sq km) of lands held by the 

Passamaquoddy Tribe and 

approximately 60,500 acres (244.8 sq 

km) of Fee lands and land held in Trust 

for the Penobscot Tribe within the areas 

occupied by the GOM DPS are excluded 

from critical habitat designation based 

on the principles of the Secretarial 

Order discussed above. Per request of 

the Penobscot Nation, the rivers, lakes, 

and streams within the approximately 

4,400–acre (17.8 sq km) Penobscot 

Reservation are included as critical 

habitat. 

* * * * * 

(7) * * * 

(ii) Penobscot Bay SHRU. Critical 

habitat area (in sq km), areas excluded 

under ESA section 4(b)(2) (in sq km), 

and exclusion type, by HUC 10 

watershed: 


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* * * * * 

[FR Doc. E9–19094 Filed 8–7–09; 8:45 am] 

BILLING CODE 3510–22–S 


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