Federal Register / Vol. 73, No. 187 / Thursday, September 25, 2008 / Rules and Regulations 55451 

open seasons are prescribed’’ in part 20. 

Because of this definition, many of the 

migratory birds that we had intended 50 

CFR 21.21(b) to cover are not covered by 

the new regulations. We are therefore 

publishing this document to correct the 

final regulations by revising § 21.21(b) 

to remove the term ‘‘migratory game 

birds’’ and instead use the more generic 

term ‘‘migratory birds.’’ 

List of Subjects in 50 CFR Part 21 

Exports, Hunting, Imports, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

■ Accordingly, 50 CFR part 21 is 

corrected by making the following 

correcting amendments: 

PART 21—MIGRATORY BIRD PERMITS 

■ 1. The authority citation for part 21 

continues to read as follows: 

Authority: Migratory Bird Treaty Act, 40 

Stat. 755 (16 U.S.C. 703); Public Law 95–616, 

92 Stat. 3112 (16 U.S.C. 712(2)); Public Law 

106–108, 113 Stat. 1491, Note following 16 

U.S.C. 703. 

§ 21.21 [Amended] 

■ 2. In § 21.21, amend paragraph (b) 

introductory text by: 

■ a. Removing the words ‘‘Game bird’’ 

from the heading; and 

■ b. Removing the word ‘‘game’’ both 

times that it appears in the second and 

third sentences. 

Dated: September 19, 2008. 

Sara Prigan, 

Federal Register Liaison. 

[FR Doc. E8–22516 Filed 9–24–08; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 223 

[Docket No. 070727426–81200–01] 

RIN 0648–AV18 

Endangered and Threatened Species: 

Final Protective Regulations for 

Threatened Puget Sound Steelhead 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, NMFS, apply the 

Endangered Species Act (ESA) 

protective regulations for threatened 

West Coast salmon and steelhead to the 

distinct population segment (DPS) of 

steelhead (Oncorhynchus mykiss) in 

Puget Sound, Washington. 

DATES: The effective date of this rule is 

October 27, 2008. 

ADDRESSES: NMFS, Protected Resources 

Division, 1201 NE Lloyd Boulevard, 

Suite 1100, Portland, OR 97232. 

FOR FURTHER INFORMATION CONTACT: 

Steve Stone, NMFS, Northwest Region, 

at (503) 231–2317; or Marta Nammack, 

NMFS, Office of Protected Resources, at 

(301) 713 1401. Reference materials 

regarding protective regulations for this 

and other 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 ‘‘take’’ and import/ 

export 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 directs the Secretary of Commerce 

(Secretary) to issue regulations he or she 

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 21 threatened 

Pacific salmon and steelhead 

Evolutionarily Significant Units (ESUs) 

or Distinct Populations Segments (DPSs) 

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

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

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

73 FR 7816, February 11, 2008). 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 took this action to provide 

appropriate 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 Pacific salmon and steelhead 

ESUs or DPSs. 

On March 29, 2006, we proposed to 

list the Puget Sound steelhead DPS as a 

threatened species (71 FR 15666). On 

February 7, 2007 (72 FR 5648), we 

proposed protective regulations for 

Puget Sound steelhead under section 

4(d) of the ESA. On May 11, 2007, we 

issued a final determination listing the 

Puget Sound steelhead DPS as 

threatened, and we announced that we 

would finalize protective regulations in 

a subsequent Federal Register notice (72 

FR 26722). In this final rule we apply 

the 4(d) protective regulations adopted 

for other Pacific salmonids, as amended 

in June 2005 (70 FR 37160; June 28, 

2005), to Puget Sound steelhead. 

Summary of Comments Received in 

Response to the Proposed Rule 

We solicited public comment on the 

proposed protective regulations and 

draft Environmental Assessment (EA) 

(72 FR 5648; February 7, 2007) and 

received nine comments in response. 

Comments received consisted of e-mails 

and letters submitted by or for the 

following entities: Lummi Nation, 

Muckleshoot Indian Tribe, Native Fish 

Society, Port Gamble S’Klallam and 

Jamestown S’Klallam Tribes, Tulalip 

Tribes of Washington, U.S. Department 

of Interior, Washington Forest 

Protection Association, Western States 

Petroleum Association, and Wild Fish 

Conservancy. Copies of the full text of 

comments received are available upon 

request (see ADDRESSES and FOR

FURTHER INFORMATION CONTACT). Below 

we address the comments received that 

pertain to proposed protective 

regulations for Puget Sound steelhead. 

Comment 1: One commenter 

recommended that we re-open the 

comment period on the proposed 4(d) 

limits after making a final listing 

determination. This commenter also 

believed that we should explain each of 

the 4(d) limits in greater detail to 

prevent confusion regarding which 4(d) 

limits would be in effect for Puget 

Sound steelhead. 

Response: We have described the 

same 4(d) limits presently being applied 

to Puget Sound steelhead in previously 

published Federal Register notices (65 

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

July 10, 2000; 69 FR 33102; June 14, 


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2004; 70 FR 37160, June 28, 2005). We 

do not believe that providing additional 

time for comment would result in 

substantive new information beyond 

that which we have already considered 

during this and previous rulemakings. 

To reduce confusion and enhance 

public understanding of the various 4(d) 

limits, we are in the process of updating 

a comprehensive ‘‘Citizen’s Guide to the 

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

http://www.nwr.noaa.gov. At this 

website we also identify agency contacts 

who can assist interested parties in 

understanding the take prohibitions and 

which 4(d) limits are relevant to their 

anticipated activities. 

Comment 2: One commenter 

suggested that it was not necessary to 

issue a 4(d) rule for Puget Sound 

steelhead because ESA protective 

regulations already exist for a number of 

other co-occurring species in Puget 

Sound. Another commenter was 

skeptical that the 4(d) limits would be 

effective at conserving steelhead, 

contending that many of the limits were 

based on vague criteria and would place 

responsibility on local agencies that 

have failed to meet their existing 

mandates to conserve steelhead. In 

contrast, another commenter asserted 

that the adoption of the proposed 

protective regulations was the most 

appropriate action for protecting Puget 

Sound steelhead. 

Response: We acknowledge that 

existing ESA protective regulations for 

co-occurring species such as Puget 

Sound Chinook and Hood Canal 

summer-run chum salmon (both listed 

as threatened species under the ESA) 

provide some level of protection to 

Puget Sound steelhead. There are many 

activities that the existing regulations 

would not cover, however, such as the 

take of steelhead in fisheries or for 

hatchery broodstock. In addition, there 

are areas and times where Puget Sound 

steelhead are the only listed species that 

occur. Protective regulations prohibiting 

take of Puget Sound steelhead will 

specifically address the take of listed 

steelhead. Applying the existing limits 

on the take prohibition to Puget Sound 

steelhead will provide incentives and 

opportunities for interested parties to 

work with us to address a wide 

spectrum of human activities that will 

continue to pose a threat to steelhead 

unless they are managed in ways that 

adequately protect listed steelhead. 

We also acknowledge that 

management efforts to date have not 

been sufficient to prevent Puget Sound 

steelhead from becoming a threatened 

species. However, we believe that state, 

tribal, and local governments remain in 

the best position to help develop and 

implement conservation strategies for 

listed species. During 8 years of 

implementing these 4(d) protections we 

have worked with state, tribal, and local 

governments throughout the Pacific 

Northwest to achieve significant 

conservation benefits for listed species. 

Such achievements include more 

efficient review and implementation of 

hundreds of scientific studies on 

threatened salmon and steelhead, and 

closer coordination to craft Fishery 

Management Evaluation Plans (FMEP), 

Hatchery Genetic Management Plans, 

and Tribal Resource Management Plans. 

Comment 3: One commenter 

recommended that we describe the 

current status of the Forest Practices 

Habitat Conservation Plan (HCP) in 

Washington and clarify that ESA take 

prohibitions need not apply to lands 

covered by this and other HCPs. 

Response: Section 10 of the ESA 

allows us to issue permits for the take 

of a listed species. The process requires 

that a non-federal permit applicant 

develop and submit an HCP to NMFS. 

We coordinate with applicants, provide 

technical assistance to ensure use of the 

best available science, and ensure that 

National Environmental Policy Act 

(NEPA) and ESA procedures are 

followed. Once an HCP is final and all 

parties agree to the plan, we issue an 

ESA Section 10 incidental take permit 

for the listed species. HCPs are often in 

effect for many decades to provide the 

greatest benefits of functioning habitats, 

while permitting land management 

under stable regulations. This ESA 

regulatory assurance is particularly 

attractive to landowners with long-term 

investments, such as timber growers or 

water suppliers. While applicants’ 

future activities under an HCP may 

cause a low level of unintentional injury 

or death to listed salmon and steelhead, 

the habitat they manage will support 

long-term survival and recovery of those 

fish. 

On June 5, 2006, NMFS issued an 

incidental take permit under section 10 

of the ESA to the Washington 

Department of Natural Resources that 

covers activities and forestlands 

identified in the Washington State 

Forest Practices HCP. This HCP is a 50– 

year agreement for protection of 

Washington’s streams and forests that 

provide habitat for more than 70 aquatic 

species, including threatened or 

endangered salmon and steelhead. The 

incidental take permit includes a 

provision that, ‘‘for unlisted covered 

species, the permit will take effect upon 

the listing of a species as endangered, 

and for a species listed as threatened, on 

the effective date of a rule under Section 

4(d) of the ESA prohibiting take of the 

species.’’ 

One of the 4(d) limits that will be in 

effect for Puget Sound steelhead 

recognizes that entities holding a permit 

under section 10 of the ESA (or 

receiving other exemptions of the ESA) 

are free of take prohibitions so long as 

they act in accordance with the permit 

or applicable law (§ 223.203(b)(1)). 

Therefore, approved HCPs in the range 

of Puget Sound steelhead including the 

Washington State Forest Practices HCP 

would comply with this 4(d) limit. 

Comment 4: Several commenters 

requested that we delay adoption of a 

4(d) rule until we engaged in 

government-to-government 

consultations with affected Indian 

tribes. These commenters also asserted 

that requiring the release of all steelhead 

with an intact adipose fin would 

discriminate against tribal fishermen by 

disrupting net fisheries and precluding 

access to large quantities of harvestable 

salmon and steelhead in order to avoid 

taking a small number of unmarked 

steelhead. 

Response: We recognize that the tribes 

have longstanding cultural ties to 

steelhead and steelhead fisheries, and 

that a number of tribes have treaty-based 

rights. We also understand that an ESA 

listing of Puget Sound steelhead may 

impact some tribal fisheries and 

resource management agencies, at least 

in the short term. Soon after listing 

Puget Sound steelhead as a threatened 

species, we met and consulted with 

several of the affected tribes to discuss 

implications for their steelhead 

management. All Puget Sound steelhead 

fisheries are regulated, either by the 

State of Washington or by tribal 

governments. These discussions have 

continued to date and are expected to 

result in a comprehensive new fisheries 

management plan for Puget Sound 

steelhead from tribal and state 

comanagers. This plan will address all 

manner of steelhead harvest, including 

tribal net fisheries. We will review this 

plan, including public input and 

revisions to it, and determine if it meets 

the criteria for coverage under one or 

more of the 4(d) limits. To accommodate 

development and review of the plan, 

this final 4(d) rule provides for a delay 

in the effective date for take 

prohibitions associated with tribal and 

recreational steelhead harvest until June 

1, 2009, so long as that harvest is not 

directed at naturally spawning stocks 

and is authorized either by a federally 

recognized treaty tribe or the State of 

Washington. By the beginning of the 

2010 winter fishing season, we expect 

such harvest to be addressed by two 

relevant 4(d) limits: § 223.203(b)(4) - 


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fishery harvest activities associated with 

an approved FMEP, and § 223.203(b)(6) 

- actions undertaken in compliance with 

a resource management plan developed 

jointly by the States of Washington, 

Oregon, and/or Idaho and the Tribes 

(joint plan) within the continuing 

jurisdiction of United States v. 

Washington or United States v. Oregon. 

Delaying the take prohibitions 

pertaining to steelhead harvest until 

June 2009 (one fishing season) is not 

expected to pose undue risk to listed 

steelhead. In the final listing 

determination (72 FR 26722; May 11, 

2007), we observed that a primary threat 

to Puget Sound steelhead is the natural 

spawning of out-of-basin hatchery 

steelhead. Allowing the present level of 

hatchery-directed harvest to continue 

through June 2009 will assist in 

removing existing hatchery fish before 

they are able to spawn. We also 

concluded in the final listing 

determination that previous harvest 

management practices likely 

contributed to the historical decline of 

Puget Sound steelhead, but that the 

elimination of the directed harvest of 

wild steelhead in the mid 1990s has 

largely addressed this threat. Based on 

these factors we concluded that 

suspending the take prohibition for one 

fishing season would be consistent with 

conservation of the Puget Sound 

steelhead ESU. 

Comment 5: One commenter 

requested that we explain how the EA 

has complied with applicable case law. 

This commenter also asserted that we 

should explain if and how we intend to 

conduct ESA section 7 consultation 

pertaining to the proposed issuance of a 

4(d) rule. 

Response: The EA developed in 

support of these 4(d) regulations was 

prepared in accordance with NOAA 

directives, policies, and guidelines for 

implementing the NEPA, Council on 

Environmental Quality Regulations for 

Implementing the Procedural Provisions 

of NEPA, and NOAA Administrative 

Order (NAO) 216–6. A NEPA Handbook, 

available on the Internet at http:// 

www.nepa.noaa.gov, describes these 

and other relevant legal requirements 

and describes how we apply them. 

We also have certain consultation 

responsibilities under section 7 of the 

ESA when making determinations 

regarding a specific 4(d) limit. That is, 

we must conduct a consultation to 

ensure that the proposed action (e.g., 

adopting an FMEP under 

§ 223.203(b)(4)) will not jeopardize the 

continued existence of listed salmonids 

or destroy or adversely modify 

designated critical habitat. In addition, 

we must consider any adverse effects on 

designated essential fish habitat (EFH) 

by completing a consultation as 

required by the Magnuson-Stevens Act. 

Generally, ESA and EFH consultations 

are conducted concurrently. As detailed 

in an updated ‘‘4(d) Rule 

Implementation Binder for Threatened 

Salmon and Steelhead on the West 

Coast’’ (available on the Internet at 

http://www.nwr.noaa.gov/ESA-SalmonRegulations-Permits/4d-Rules/), we 

expect that our 4(d) limit evaluations 

will provide a large part of the 

biological analysis required for the ESA 

section 7/EFH consultation. 

Comment 6: One commenter noted 

that juvenile steelhead and rainbow 

trout are similar in appearance and 

requested that we explain how take 

prohibitions would apply to the former 

but not the latter life form. Another 

commenter believed that protective 

regulations should apply to both 

resident and anadromous life forms and 

that we should require applicants for 

take authorization to undertake efforts 

to research the relationship between the 

two forms and incorporate the findings 

into management actions. 

Response: As described in the final 

listing determination for the Puget 

Sound steelhead DPS (72 FR 26722; 

May 11, 2007), resident O. mykiss occur 

within the range of the DPS but are not 

part of the DPS due to marked 

differences in physical, physiological, 

ecological, and behavioral 

characteristics. Only anadromous O. 

mykiss are listed in this DPS and subject 

to the ESA 4(d) take regulations. We 

recognize that it is difficult to 

distinguish between the two life forms, 

especially juvenile fish. Therefore we 

encourage the public to carefully 

consider the impacts of activities that 

might result in taking either life form 

and recommend that they consult with 

NMFS (see contacts at http:// 

www.nwr.noaa.gov/Regional-Office/ 

Habitat-Conservation/WashingtonState-Branch/) or state or tribal 

biologists familiar with steelhead in the 

area of concern. 

There is a critical need to improve our 

understanding of the interactions 

between the anadromous and resident 

life forms of O. mykiss, and, when 

appropriate, we will encourage 

applicants for take authorization to 

undertake efforts to research the 

relationship between the two forms and 

incorporate the findings into 

management actions and additional 

scientific research. Such research could 

elucidate the factors affecting 

reproductive exchange between the two 

life forms, as well as their respective 

contributions to the viability of O. 

mykiss as a whole. These considerations 

may prove to be important in the 

context of recovery planning and 

assessing risks faced by the O. mykiss 

species as a whole. At present, there is 

insufficient information to evaluate 

whether, under what circumstances, 

and to what extent the resident form 

may contribute to the viability of 

steelhead over the long term (Recovery 

Science Review Panel, 2004; Good et al., 

2005; Independent Scientific Advisory 

Board, 2005; NMFS, 2005). 

Description of Protective Regulations 

Being Afforded Puget Sound Steelhead 

Consistent with the June 28, 2005 

amended 4(d) protective regulations (70 

FR 37160), 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 

Puget Sound 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 

adopting the same set of 14 limits for 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 adopt this same set 

of 14 limits for Puget Sound 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)); 

ongoing scientific and conservation 

activities for which a permit application 

has been timely submitted, and treaty 

and non-treaty fisheries for which a 

comanager’s management plan has been 

timely submitted (§ 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 


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(§ 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 conducted or permitted 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)); forest 

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). 

Limits § 223.203(b)(4) and 

§ 223.203(b)(6) address fishery 

management plans. As noted in our 

response to comments above, steelhead 

comanagers and stakeholders in the 

State of Washington have been actively 

working to develop a comprehensive 

management plan for Puget Sound 

steelhead. We have participated in the 

development of this plan and will 

review it for compliance with the above 

4(d) limits. We have reviewed existing 

state and tribal fisheries management 

regimes and concluded that 

implementation of these regimes for the 

balance of the current fishing season is 

adequate for conservation of Puget 

Sound steelhead, until a comprehensive 

regime is adopted (NMFS, 2008). 

Therefore, steelhead harvest is not 

prohibited until June 1, 2009, so long as 

the harvest is authorized by the State of 

Washington or a tribe with jurisdiction 

over steelhead. If NMFS does not 

receive a fishery management plan for 

Puget Sound steelhead by November 14, 

2008, subsequent take by harvest will be 

subject to the take prohibitions. 

Section 223.203(b)(2) exempts 

scientific or artificial propagation 

activities with pending applications for 

ESA approval. The limit was amended 

as part of the June 28, 2005, final listing 

determination for West Coast salmon 

and steelhead to temporarily exempt 

such activities from the take 

prohibitions for 6 months, provided that 

a complete application was received 

within 60 days of the notice’s 

publication (70 FR 37160). The 

deadlines associated with this 

exemption were most recently extended 

to address research related to threatened 

Oregon Coast coho salmon (73 FR 7816; 

February 11, 2008), but one of these 

deadlines has now expired. As 

discussed in the proposed rule (69 FR 

33102; June 14, 2004), it is in the 

interest of the conservation and 

recovery of Puget Sound steelhead to 

allow ongoing research and 

enhancement activities to continue 

uninterrupted while we process the 

necessary permits and approvals. For 

modified research requests received by 

November 14, 2008, the take 

prohibitions will not apply to research 

and enhancement activities until the 

application is rejected as insufficient, a 

permit or 4(d) approval is issued, or 

until June 1, 2009, 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 

(NEPA) 

We conducted an EA under the NEPA 

analyzing the proposed application of 

the 4(d) protective regulations to Puget 

Sound steelhead. We solicited and 

received comments on the EA as part of 

the proposed rule. Informed by the 

comments received, we finalized the EA 

on August 25, 2008, and issued a 

finding of no significant impact for 

promulgation of the 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 this 

rule would not have a significant 

economic impact on a substantial 

number of small entities. As a result, no 

regulatory flexibility analysis is required 

and none has been prepared. The factual 

basis for this certification follows: 

Under section 4(d) of the ESA, NMFS 

is required to adopt such regulations as 

it deems necessary and advisable for the 

conservation of species listed as 

threatened, which may include 

prohibiting ‘‘take’’ of the threatened 

species. Steelhead are considered a 

game fish in Washington State, and in 

Puget Sound are primarily harvested in 

recreational fisheries. The entities that 

provide goods and services to steelhead 

fisheries range in size from multinational corporations and chain stores 

to local family businesses. Except for 

the multi-national corporations and 

chain stores, most of these entities are 

small businesses that include bait and 

tackle suppliers, guides, and lodging 

and related service providers. These 

entities do not support steelhead 

fisheries exclusively, but instead 

provide goods and services related to a 

variety of other fisheries as well, e.g., for 

salmon and trout. The economic output 

associated with sport fisheries for Puget 

Sound steelhead is estimated to be 

approximately $29 million per year, 

most of which ($19.5 million) is 

associated with the winter steelhead 

fishery (Washington Department of Fish 

and Wildlife, 2006). 

NMFS has previously adopted ESA 

4(d) rules prohibiting (with some limits) 

take of all Pacific salmon and steelhead 

(salmonid) species listed as threatened 

under the ESA. NMFS now proposes to 

apply the Section 9(a)(1) take 

prohibitions (subject to the limits 

discussed above and applicable to other 

threatened Pacific salmon and 

steelhead) to unmarked steelhead with 

an intact adipose fin that are part of the 

Puget Sound steelhead DPS. Because 

these prohibitions and associated limits 

address other threatened Pacific 

salmonids whose range overlaps that of 

Puget Sound steelhead, this final rule 

would not add a significant impact to 

the existing regulatory scheme. In 

addition, non-tribal harvest regulations 

currently prohibit, and are expected to 

continue to prohibit, the retention of 

fish with an intact adipose fin, and so 

are consistent with the 4(d) rule. 

Fisheries in the foreseeable future will 

thus be largely unaffected. In the long 

term, fisheries may be affected by 

changes in hatchery production. 

Landowners will be affected only in 

those areas (primarily headwater 

streams) where the range of the Puget 

Sound steelhead DPS does not overlap 

with that of already-listed species 

whose take is already prohibited. Thus, 

this final rule will not have significant 

impacts on small entities. 

Paperwork Reduction Act (PRA) 

This final rule does not contain a 

collection-of-information requirement 

for purposes of the PRA. 

Executive Order (E.O.) 12866 Regulatory 

Planning and Review 

We prepared a regulatory impact 

review in 2000 when the ESA section 

4(d) regulations were initially adopted 

and concluded that among the 

alternative regulatory approaches, the 

proposed 4(d) rule would maximize net 

benefits and minimize costs, within the 

constraints of the ESA. We have 

reviewed that analysis and new 

information available since the analysis 

was initially prepared, including OMB 

Circular A–4 (2003). We have 

determined that none of the new 

information would change the earlier 

analysis or conclusion. 


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E.O. 12988 Civil Justice Reform 

We have determined that this rule 

does not unduly burden the judicial 

system and meets the requirements of 

sections 3(a) and 3(b)(2) of E.O. 12988. 

We issue protective regulations 

pursuant to provisions in the ESA using 

an existing approach that improves the 

clarity of the regulations and minimizes 

the regulatory burden of managing ESA 

listings while retaining necessary and 

advisable protections to provide for the 

conservation of threatened species. 

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 rulemaking. In fact, 

this rule includes mechanisms by which 

we, in the form of 4(d) limits to take 

prohibitions, may defer to state and 

local governments where they provide 

adequate protections for Puget Sound 

steelhead. 

E.O. 13175 – Consultation and 

Coordination with Indian Tribal 

Governments 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and co-management 

agreements. These differentiate tribal 

governments from the other entities that 

deal with, or are affected by, the Federal 

Government. This relationship has 

given rise to a special Federal trust 

responsibility involving the legal 

responsibilities and obligations of the 

United States toward Indian Tribes and 

the application of fiduciary standards of 

due care with respect to Indian lands, 

tribal trust resources, and the exercise of 

tribal rights. E.O. 13175 outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. During our status review of 

Puget Sound steelhead we solicited 

information from the tribes, met with 

several tribal governments and 

associated tribal fisheries commissions, 

and provided the opportunity for all 

interested tribes to comment on the 

proposed listing of this DPS and discuss 

any concerns they may have. Several 

tribes submitted comments during the 

public comment period. We thoroughly 

considered and incorporated them, as 

appropriate, into our final 

determinations regarding listing and 

take prohibitions. We will continue to 

coordinate with the tribes on 

management and conservation actions 

related to this species. 

E.O. 13211 – Energy Supply, 

Distribution, or Use 

E.O. 13211 requires agencies to 

prepare a statement of energy effects 

when undertaking certain actions. 

According to E.O. 13211, ‘‘significant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

We have determined that the energy 

effects of this final rule are unlikely to 

exceed the energy impact thresholds 

identified in E.O. 13211 and that this 

rulemaking is, therefore, not a 

significant energy action. No statement 

of energy effects is required. 

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, Transportation. 

Dated: September 22, 2008. 

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. 

■ 2. In § 223.203, paragraphs (a), (b) 

introductory text, and (b)(2) are revised 

to read as follows: 

§ 223.203 Anadromous fish. 

* * * * * 

(a) Prohibitions. The prohibitions of 

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

1538(a)(1)) relating to endangered 

species apply to fish with an intact 

adipose fin that are part of the 

threatened species of salmonids listed 

in § 223.102(c)(3) through (c)(24). 

(b) Limits on the prohibitions. The 

limits to the prohibitions of paragraph 

(a) of this section relating to threatened 

species of salmonids listed in 

§ 223.102(c)(3) through (c)(24) are 

described in the following paragraphs 

(b)(1) through (b)(13): 

* * * * * 

(2) The prohibitions of paragraph (a) 

of this section relating to threatened 

Puget Sound steelhead listed in 

§ 223.102(c)(23) do not apply to: 

(i) Activities specified in an 

application for a permit 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 November 14, 

2008. The prohibitions of this section 

apply to these activities upon the AA’s 

rejection of the application as 

insufficient, upon issuance or denial of 

a permit, or June 1, 2009, whichever 

occurs earliest, or 

(ii) Steelhead harvested in tribal or 

recreational fisheries prior to June 1, 

2009, so long as the harvest is 

authorized by the State of Washington 

or a tribe with jurisdiction over 

steelhead harvest. If NMFS does not 

receive a fishery management plan for 

Puget Sound steelhead by November 14, 

2008, subsequent take by harvest will be 

subject to the take prohibitions. 

* * * * * 

[FR Doc. E8–22556 Filed 9–24–08; 8:45 am] 

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