Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 42481

species of salmonids listed in § 223.102

(a)(12), (a)(13), (a)(16), (a)(17), and (a)

(19) do not apply to non-Federal forest

management activities conducted in the

State of Washington provided that:

(i) The action is in compliance with

forest practice regulations adopted and

implemented by the Washington Forest

Practices Board that NMFS has found

are at least as protective of habitat

functions as are the regulatory elements

of the Forests and Fish Report dated

April 29, 1999, and submitted to the

Forest Practices Board by a consortium

of landowners, tribes, and state and

Federal agencies.

(ii) All non-regulatory elements of the

Forests and Fish Report are being

implemented.

(iii) Actions involving use of

herbicides, pesticides, or fungicides are

not included within this limit.

(iv) Actions taken under alternative

plans are included in this limit

provided that the Washington

Department of Natural Resources

(WDNR) finds that the alternate plans

protect physical and biological

processes at least as well as the state

forest practices rules and provided that

NMFS, or any resource agency or tribe

NMFS designates, has the opportunity

to review the plan at every stage of the

development and implementation. A

plan may be excluded from this limit if,

after such review, WDNR determines

that the plan is not likely to adequately

protect listed salmon.

(v) Prior to determining that

regulations adopted by the Forest

Practice Board are at least as protective

as the elements of the Forests and Fish

Report, NMFS will publish notification

in the Federal Register announcing the

availability of the Report and

regulations for public review and

comment.

(vi) NMFS finds the activities to be

consistent with the conservation of

listed salmonids’ habitat by contributing

to the attainment and maintenance of

PFC. NMFS defines PFC as the

sustained presence of a watershed’s

natural habitat-forming processes that

are necessary for the long-term survival

of salmonids through the full range of

environmental variation. Actions that

affect salmonid habitat must not impair

properly functioning habitat,

appreciably reduce the functioning of

already impaired habitat, or retard the

long-term progress of impaired habitat

toward PFC. Programs must meet this

biological standard in order for NMFS to

find they qualify for a habitat-related

limit. NMFS uses the best available

science to make these determinations.

NMFS may review and revise previous

findings as new scientific information

becomes available. NMFS will evaluate

the effectiveness of the program in

maintaining and achieving habitat

function that provides for conservation

of the listed salmonids. If the program

is not adequate, NMFS will identify to

the jurisdiction ways in which the

program needs to be altered or

strengthened. Changes may be identified

if the program is not protecting desired

habitat functions or where even with the

habitat characteristics and functions

originally targeted, habitat is not

supporting population productivity

levels needed to conserve the ESU. If

Washington does not make changes to

respond adequately to the new

information, NMFS will publish

notification in the Federal Register

announcing its intention to withdraw

the limit on activities associated with

the program. Such an announcement

will provide for a comment period of no

less than 30 days, after which NMFS

will make a final determination whether

to subject the activities to the ESA

section 9(a)(1) take prohibitions.

(vii) NMFS approval of regulations

shall be a written approval by NMFS

Northwest Regional Administrator.

(c) Affirmative defense. In connection

with any action alleging a violation of

the prohibitions of paragraph (a) of this

section with respect to the threatened

species of salmonids listed in § 223.102

(a)(5) through (a)(10), and (a)(12)

through (a)(19), any person claiming the

benefit of any limit listed in paragraph

(b) of this section or § 223.209(a) shall

have a defense where the person can

demonstrate that the limit is applicable

and was in force, and that the person

fully complied with the limit at the time

of the alleged violation. This defense is

an affirmative defense that must be

raised, pleaded, and proven by the

proponent. If proven, this defense will

be an absolute defense to liability under

section (a)(1)(G) of the ESA with respect

to the alleged violation.

(d) Severability. The provisions of this

section and the various applications

thereof are distinct and severable from

one another. If any provision or the

application thereof to any person or

circumstances is stayed or determined

to be invalid, such stay or invalidity

shall not affect other provisions, or the

application of such provisions to other

persons or circumstances, which can be

given effect without the stayed or

invalid provision or application.

[FR Doc. 00–16933 Filed 7–7–00; 8:45 am]

BILLING CODE 3510–22–F

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.

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

42482 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 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

42484 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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 offreservation 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

Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations 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-tostaff 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-ofinformation 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,

§ 223.12 also issued under 16 U.S.C. 1361 et

seq.

2. Section 223.209 is added to read as

follows:

§ 223.209 Tribal plans.

(a) Limits on the prohibitions. The

prohibitions of § 223.203(a) of this

subpart relating to threatened species of

salmonids listed in § 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

42486 Federal Register / Vol. 65, No. 132 / Monday, July 10, 2000 / Rules and Regulations

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]

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