5178 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 060124013–6013–01; I.D. 

052104F] 

RIN 0648–AU18 

Endangered and Threatened Species: 

Final Protective Regulations for 

Threatened Upper Columbia River 

Steelhead 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final listing determination. 

SUMMARY: We, NOAA’s National Marine 

Fisheries Service (NMFS), are applying 

the protective regulations for threatened 

West Coast salmon and steelhead to 

Upper Columbia River steelhead. Upper 

Columbia River steelhead were 

previously listed as endangered in 1997 

and were thereby afforded protections 

against ‘‘take’’ under the Endangered 

Species Act (ESA). On January 5, 2006, 

the listing status of Upper Columbia 

River steelhead was changed to 

threatened. We have determined that 

the existing protective regulations for 

threatened West Coast salmonids are 

necessary and advisable for the 

conservation of Upper Columbia River 

steelhead. 

DATES: This final determination is 

effective March 3, 2006. 

ADDRESSES: NMFS, Protected Resources 

Division, 1201 NE Lloyd Boulevard, 

Suite 1100, Portland, OR 97232. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Scott Rumsey, NMFS, Northwest 

Region, Protected Resources Division, at 

(503) 872–2791, and Marta Nammack, 

NMFS, Office of Protected Resources, at 

(301) 713–1401. Reference materials 

regarding the protective regulations for 

threatened salmonids are available upon 

request or on the Internet at http:// 

www.nwr.noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

ESA section 9(a)(1) (16 U.S.C. 

1538(a)(1)) prohibits the import/export 

and ‘‘take’’ of, and commercial 

transactions involving all species listed 

as endangered. The term ‘‘take’’ is 

defined under the ESA as ‘‘to harass, 

harm, pursue, hunt, shoot, wound, kill, 

trap, capture or collect, or to attempt to 

engage in any such conduct’’ (Section 

3(19), 16 U.S.C. 1532 (19)). In the case 

of threatened species, section 4(d) of the 

ESA leaves it to the discretion of the 

Secretary of Commerce (Secretary) 

whether, and to what extent, to apply 

the statutory 9(a)(1) take and other 

prohibitions, and directs the agency to 

issue regulations it deems necessary and 

advisable for the conservation of the 

species. The 4(d) protective regulations 

may prohibit, with respect to threatened 

species, some or all of the acts which 

section 9(a)(1) of the ESA prohibits with 

respect to endangered species. These 

9(a)(1) prohibitions and 4(d) regulations 

apply to all individuals, organizations, 

and agencies subject to U.S. jurisdiction. 

Since 1997 we have promulgated a 

total of 29 ‘‘limits’’ to the ESA section 

9(a) ‘‘take’’ prohibitions for 19 

threatened salmon and steelhead 

Evolutionarily Significant Units (ESUs) 

(62 FR 38479, July 18, 1997; 65 FR 

42422, July 10, 2000; 65 FR 42485, July 

10, 2000; 67 FR 1116, January 9, 2002). 

On June 28, 2005, as part of the final 

listing determinations for 16 ESUs of 

West Coast salmon, we amended and 

streamlined the previously promulgated 

4(d) protective regulations for 

threatened salmon and steelhead (70 FR 

37160). We finalized an amendment to 

provide the necessary flexibility to 

ensure that fisheries and artificial 

propagation programs are managed 

consistently with the conservation 

needs of threatened salmon and 

steelhead. Under this change the section 

4(d) protections apply to natural and 

hatchery fish with an intact adipose fin, 

but not to listed hatchery fish that have 

had their adipose fin removed prior to 

release into the wild. Additionally, we 

made several simplifying and clarifying 

changes to the 4(d) protective 

regulations including updating an 

expired limit (§ 223.203(b)(2)), 

providing a temporary exemption for 

ongoing research and enhancement 

activities, and applying the same set of 

14 limits to all threatened salmon and 

steelhead. With respect to steelhead, the 

amended June 2005 4(d) rule applies to 

the steelhead ESUs previously listed as 

threatened: South-Central California, 

Central California Coast, California 

Central Valley, Northern California, 

Upper Willamette River, Lower 

Columbia River, Middle Columbia 

River, and Snake River Basin steelhead. 

On August 18, 1997, Upper Columbia 

River steelhead were listed as an 

endangered species, and subject to the 

section 9(a)(1) take prohibitions (62 FR 

43937). After conducting an updated 

status review of listed West Coast 

steelhead, we proposed in June 2004 to 

list Upper Columbia River steelhead as 

threatened (69 FR 33102; June 14, 2004). 

As part of the proposed listing 

determination we proposed applying 

the amended 4(d) protective regulations 

to Upper Columbia River steelhead. On 

January 5, 2006, we issued a final 

determination listing the Upper 

Columbia River steelhead Distinct 

Population Segment (DPS) as 

threatened, and we announced that we 

would finalize the protective regulations 

in a subsequent Federal Register notice 

(71 FR 834). In this final rule we are 

applying the 4(d) protective regulations, 

as amended in June 2005 (70 FR 37160; 

June 28, 2005), to Upper Columbia River 

steelhead. 

Comments and Information Received in 

Response to the Proposed Rule 

We solicited public comment on the 

proposed listing determinations for 

West Coast salmon and steelhead, and 

the proposed amendments to the 4(d) 

protective regulations for a total of 268 

days (69 FR 33102, June 14, 2004; 69 FR 

53031, August 31, 2004; 69 FR 61348, 

October 18, 2004; 70 FR 6840, February 

9, 2005;70 FR 37219, June 28, 2005; 70 

FR 67130, November 4, 2005). We held 

eight public hearings in the Pacific 

Northwest, and six public hearings in 

California, concerning the June 2004 

West Coast salmon and steelhead 

proposed listing determinations and 

proposed amendments to the 4(d) 

protective regulations (69 FR 53031, 

August 31, 2004; 69 FR 54647, 

September 9, 2004; 69 FR 61348, 

October 18, 2004). Additionally, 

pursuant to the requirements of the 

National Environmental Policy Act 

(NEPA) of 1969, we conducted an 

Environmental Assessment (EA) 

analyzing the proposed amendments to 

the 4(d) protective regulations for 

threatened salmonids. As part of the 

proposed listing determinations and the 

proposed amendments to the 4(d) 

protective regulations, we announced 

that a draft of the EA was available from 

NMFS upon request (69 FR at 33172; 

June 14, 2004). Additionally, on 

November 15, 2004, we published 

notice of availability in the Federal 

Register, soliciting comment on the 

draft EA for an additional 30 days (69 

FR 65582). 

In response to the various requests for 

comments on the June 2004 proposed 

listing determinations and proposed 

4(d) protective regulations, we received 

over 28,250 comments by fax, standard 

mail, and e-mail. The majority of the 

comments received were from interested 

individuals who submitted form letters 

or form e-mails and addressed general 

issues not specific to a particular ESU. 

Comments were also submitted by state 

and tribal natural resource agencies, 

fishing groups, environmental 


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Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 5179 

organizations, home builder 

associations, academic and professional 

societies, expert advisory panels, 

farming groups, irrigation groups, and 

individuals with expertise in Pacific 

salmonids. The majority of respondents 

focused on the consideration of 

hatchery-origin fish in ESA listing 

determinations, with only a few 

comments specifically addressing the 

proposed amendments to the 4(d) 

protective regulations. We did not 

receive any comments specifically 

addressing the proposed application of 

the amended 4(d) protective regulations 

to Upper Columbia River steelhead. The 

reader is referred to the June 28, 2005, 

final rule for a summary of, and our 

response to, the public comments 

received regarding the proposed 

amendments to the 4(d) protective 

regulations (70 FR 37160 at 37166). 

Description of Protective Regulations 

Being Afforded Upper Columbia River 

Steelhead 

Consistent with the June 2005 

amended 4(d) protective regulations, 

this final rule applies the ESA section 

9(a)(1) take prohibitions (subject to the 

‘‘limits’’ discussed below) to unmarked 

anadromous fish with an intact adipose 

fin that are part of the Upper Columbia 

River steelhead DPS. (The clipping of 

adipose fins in juvenile hatchery fish 

just prior to release into the natural 

environment is a commonly employed 

method for the marking of hatchery 

production). We believe this approach 

provides needed flexibility to 

appropriately manage the artificial 

propagation and directed take of 

threatened salmon and steelhead for the 

conservation and recovery of the listed 

species 

The June 2005 amended ESA 4(d) 

protective regulations simplified the 

previously promulgated 4(d) rules by 

applying the same set of 14 ‘‘limits’’ to 

all threatened salmon and steelhead. 

These limits allow us to exempt certain 

activities from the take prohibitions, 

provided that the applicable programs 

and regulations meet specific conditions 

to adequately protect the listed species. 

In this final rule we are applying this 

same set of 14 limits to Upper Columbia 

River steelhead. Comprehensive 

descriptions of each 4(d) limit are 

contained in ‘‘A Citizen’s Guide to the 

4(d) Rule’’ (available on the Internet at 

http://www.nwr.noaa.gov), and in 

previously published Federal Register 

notices (65 FR 42422, July 10, 2000; 65 

FR 42485, July 10, 2000; 69 FR 33102; 

June 14, 2004; 70 FR 37160, June 28, 

2005). These ‘‘limits’’ include: 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 (§ 223.203(b)(2)); 

emergency actions related to injured, 

stranded, or dead salmonids 

(§ 223.203(b)(3)); fishery management 

activities (§ 223.203(b)(4)); hatchery and 

genetic management programs 

(§ 223.203(b)(5)); activities in 

compliance with joint tribal/state plans 

developed within United States (U.S.) v. 

Washington or U.S. v. Oregon 

(§ 223.203(b)(6)); scientific research 

activities permitted or conducted by the 

states (§ 223.203(b)(7)); state, local, and 

private habitat restoration activities 

(§ 223.203(b)(8)); properly screened 

water diversion devices 

(§ 223.203(b)(9)); routine road 

maintenance activities 

(§ 223.203(b)(10)); certain park pest 

management activities 

(§ 223.203(b)(11)); certain municipal, 

residential, commercial, and industrial 

development and redevelopment 

activities (§ 223.203(b)(12)); 

management activities on state and 

private lands within the State of 

Washington (§ 223.203(b)(13)); and 

activities undertaken consistent with an 

approved tribal resource management 

plan (§ 223.204). 

Limit § 223.203((b)(2) exempts 

scientific or artificial propagation 

activities with pending applications for 

4(d) approval. The limit was amended 

as part of the June 28, 2005, final rule 

to temporarily exempt such activities 

from the take prohibitions for 6 months, 

provided that a complete application for 

4(d) approval was received within 60 

days of the notice’s publication (70 FR 

37160). The deadlines associated with 

this exemption have expired. As we 

discussed in the proposed rule (69 FR 

33102; June 14, 2004), we believe it is 

in the interest of the conservation and 

recovery of threatened salmon and 

steelhead to allow research and 

enhancement activities to continue 

uninterrupted while we process the 

necessary 4(d) approvals. Provided we 

receive a complete application by April 

3, 2006, the take prohibitions will not 

apply to research and enhancement 

activities until the application is 

rejected as insufficient, 4(d) approval is 

issued, or until March 1, 2007, 

whichever occurs earliest. The length of 

this ‘‘grace period’’ is necessary because 

we process applications for 4(d) 

approval annually. 

Classification 

National Environmental Policy Act 

We conducted an Environmental 

Assessment (EA) under the NEPA 

analyzing the proposed application of 

the amended 4(d) protective regulations 

to Upper Columbia River steelhead. We 

solicited comment on the EA as part of 

the proposed rule, as well as during a 

subsequent comment period following 

formal notice in the Federal Register of 

the availability of the draft EA for 

review. Informed by the comments 

received, we finalized the EA on June 

14, 2005, and issued a Finding of No 

Significant Impact for the amended 4(d) 

protective regulations. 

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. 

The factual basis for this certification 

was published with the proposed rule, 

and is not repeated here. No comments 

were received regarding that 

certification. As a result, no final 

regulatory flexibility analysis for 

applying the 4(d) protective regulations 

to Upper Columbia River steelhead 

contained in this final rule has been 

prepared. 

Executive Order (E.O.) 12866 

The extension of the ESA 4(d) 

protective regulations to Upper 

Columbia River steelhead addressed in 

this rule has been determined to be 

significant for the purposes of E.O. 

12866. We prepared a Regulatory Impact 

Review which was provided to the 

Office of Management and Budget 

(OMB) with the publication of the 

proposed rule. 

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 final rule does not 

impose substantial direct compliance 

costs on the communities of Indian 

tribal governments. Accordingly, the 

requirements of section 3(b) of E.O. 

13084 do not apply to this action. 

Nonetheless, we intend to inform 

potentially affected tribal governments 

and to solicit their input and coordinate 

on future management actions. 


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5180 Federal Register / Vol. 71, No. 21 / Wednesday, February 1, 2006 / Rules and Regulations 

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 final rule. In fact, 

this notice provides mechanisms by 

which NMFS, in the form of 4(d) limits 

to the statutory take prohibitions, may 

defer to state and local governments 

where they provide adequate 

protections for threatened salmonids, 

including Upper Columbia River 

steelhead. 

References 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES), or can be obtained from the 

Internet at: http://www.nwr.noaa.gov. 

List of Subjects in 50 CFR Part 223 

Endangered and threatened species, 

Exports, Imports. 

Dated: January 26, 2006. 

John Oliver, 

Deputy Assistant Administrator for 

Operations, 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 

continues 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. In § 223.203, paragraphs (a), (b)(1) 

through (b)(13), and (c), the references 

in the sections listed in the first column 

below are revised according to the 

directions in the second and third 

columns: 

Section Remove Add 

§ 223.203(a) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(1) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(2) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(3) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(4) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(5) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(6) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(7) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(8) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(9) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(10) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(11) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(12) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(b)(13) § 223.102(a)(2) through (a)(21) § 223.102(a) 

§ 223.203(c) § 223.102(a)(2) through (a)(21) § 223.102(a) 

■ 3. In § 223.203, paragraph (b)(2) is 

revised to read as follows: 

§ 223.203 Anadromous fish. 

* * * * * 

(b) * * * 

(2) The prohibitions of paragraph (a) 

of this section relating to threatened 

species of salmonids listed in 

§ 223.102(a) 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 April 3, 2006. 

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 

March 1, 2007, whichever occurs 

earliest. 

* * * * * 

[FR Doc. 06–929 Filed 1–31–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 229 

[Docket No. 030221039-6017-25; I.D. 

012706A] 

Taking of Marine Mammals Incidental 

to Commercial Fishing Operations; 

Atlantic Large Whale Take Reduction 

Plan (ALWTRP) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule. 

SUMMARY: The Assistant Administrator 

for Fisheries (AA), NOAA, announces 

temporary restrictions consistent with 

the requirements of the ALWTRP’s 

implementing regulations. These 

regulations apply to lobster trap/pot and 

anchored gillnet fishermen in an area 

totaling approximately 2,404 nm2 (8,245 

km2), southeast of Portland, ME, for 15 

days. The purpose of this action is to 

provide protection to an aggregation of 

northern right whales (right whales). 

DATES: Effective beginning at 0001 hours 

February 3, 2006, through 2400 hours 

February 17, 2006. 

ADDRESSES: Copies of the proposed and 

final Dynamic Area Management (DAM) 

rules, Environmental Assessments 

(EAs), Atlantic Large Whale Take 

Reduction Team (ALWTRT) meeting 

summaries, and progress reports on 

implementation of the ALWTRP may 

also be obtained by writing Diane 

Borggaard, NMFS/Northeast Region, 

One Blackburn Drive, Gloucester, MA 

01930. 

FOR FURTHER INFORMATION CONTACT: 

Diane Borggaard, NMFS/Northeast 

Region, 978–281–9300 x6503; or Kristy 

Long, NMFS, Office of Protected 

Resources, 301–713–1401. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

Several of the background documents 

for the ALWTRP and the take reduction 

planning process can be downloaded 

from the ALWTRP web site at http:// 

www.nero.noaa.gov/whaletrp/. 


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