        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 223
        [Docket No. 121210693-2693-01]
        RIN 0648-BC68
        Endangered and Threatened Species: Designation of a Nonessential Experimental Population of Central Valley Spring-Run Chinook Salmon Below Friant Dam in the San Joaquin River, CA

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; notice of availability.

          SUMMARY:

          We, the National Marine Fisheries Service (NMFS), propose a rule to designate a nonessential experimental population of Central Valley spring-run Chinook salmon (Oncorhynchus tshawytscha) under section 10(j) of the Endangered Species Act (ESA) in portions of the San Joaquin River, and to establish take exemptions for the proposed nonessential experimental population for particular activities inside the experimental population's geographic range and outside of the current evolutionarily significant unit (ESU) designated boundary of the species in the San Joaquin River tributaries and in the Delta.

          A draft environmental assessment (EA) has been prepared on this proposed action and is available for comment (see ADDRESSES and INSTRUCTIONS section below).

          DATES:

          To allow us adequate time to consider your comments on this proposed rule, they must be received no later than March 4, 2013. Comments on the EA must be received by March 4, 2013. Three public meetings will be held at which the public can make comments on the draft EA and proposed rule. The first meeting will be in Chico, CA on February 5, 2013, at the Chico Masonic Family Center, 1110 West East Avenue from 5:30 p.m. to 7:30 p.m. The second meeting will be in Fresno, CA on January 24, 2013, at the Fresno Metropolitan Flood Control District, Board Meeting Room, 5469 E. Olive Avenue from 5:30 p.m. to 7:30 p.m. (The public should park in the front parking area (rear parking area closes at 5:30 p.m. with no exit after that time) and enter the door located on the west side of the front building). The third meeting will be in Los Banos, CA on January 25, 2013 at the Los Banos Community Center, 645 7th Street from 2 p.m. to 4 p.m.

          ADDRESSES:
          You may submit comments on this proposed rule, identified by NOAA-NMFS-2012-0221 by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0221, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

          • Mail: Submit written comments to Elif Fehm-Sullivan, Fisheries Biologist, Protected Resources Division, Southwest Region, National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento, California 95814.
          • Fax: (916) 930-3629.
          • Email: SJRspring.salmon@noaa.gov.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are part of the public record and will generally be posted to http://www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
          You may access a copy of the draft EA by one of the following:
          • Visit NMFS' Reintroduction Web site at http://swr.nmfs.noaa.gov/sjrrestorationprogram/salmonreintroduction.htm.

          • Call (916) 930-3723 and request to have a CD or hard copy mailed to you.
          • Obtain a CD or hard copy by visiting NMFS' Central Valley office at 650 Capitol Mall, Suite 5-100, Sacramento, CA 95814.
          Please see the draft EA for additional information regarding commenting on that document.

          FOR FURTHER INFORMATION CONTACT:
          Elif Fehm-Sullivan, National Marine Fisheries Service, 650 Capitol Mall, Suite 5-100, Sacramento, California 95814 (916-930-3723) or Dwayne Meadows, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 (301-427-8403).

        SUPPLEMENTARY INFORMATION:

        Background Information Relevant to Experimental Population Designation

        In 1988, a coalition of environmental groups, led by the Natural Resources Defense Council (NRDC), filed a lawsuit challenging renewal of long-term water service contracts between the United States and the Central Valley Project (CVP) Friant Division contractors. After more than 18 years of litigation of this lawsuit, known as NRCD, et al., v. Kirk Rodgers, et al., a Settlement was reached (Settlement). On September 13, 2006, the Settling Parties, including NRDC, Friant Water Users Authority (now the Friant Water Authority (FWA)), and the U.S. Departments of the Interior and Commerce, agreed on the terms and conditions of the Settlement, which was subsequently approved by the U.S. Eastern District Court of California on October 23, 2006. The Settlement establishes two primary goals: (1) Restoration Goal—To restore and maintain fish populations in “good condition” in the mainstem San Joaquin River below Friant Dam to its confluence with the Merced River, including naturally reproducing and self-sustaining populations of salmon and other fish, and (2) Water Management Goal—To reduce or avoid adverse water supply impacts on all of the Friant Division long-term contractors that may result from the interim and restoration flows provided for in the Settlement. Paragraph 14 of the Settlement indicates that the Restoration Goal shall include the reintroduction of Central Valley spring-run Chinook salmon (hereafter, CV spring-run Chinook salmon) to the San Joaquin River between Friant Dam and its confluence with the Merced River.
        In 2009, as part of the Omnibus Public Land Management Act, Congress enacted the San Joaquin River Restoration Settlement Act (Public Law No. 111-11, 123 Stat. 1349) (SJRRSA), which ratified the terms of the litigation Settlement and provided additional authorities to the Department of the Interior to facilitate successful implementation of the Settlement. The SJRRSA provides that if the Secretary of Commerce (Secretary) concludes that a program to reintroduce CV spring-run Chinook salmon into the San Joaquin River can be implemented consistent with other requirements of the ESA, the reintroduction “shall be [conducted] pursuant to § 10(j)” of the ESA.
        The proposed experimental population will occur in the San Joaquin River from its confluence with the Merced River upstream to Friant Dam and will include all sloughs, channels, and water ways that allow for CV spring-run Chinook salmon passage along the San Joaquin River and will also include portions of the Kings River, when high water years connect the Kings River with the San Joaquin River. While this experimental area is part of the species historical range, it is outside the current range of the CV spring-run Chinook salmon ESU.
        The CV spring-run Chinook salmon ESU (70 FR 37160; June 28, 2005) is listed as threatened under the ESA, and its threatened status was recently confirmed following completion of a 5-year review (NMFS, 2011). The CV spring-run Chinook salmon ESU includes all naturally spawned populations of spring-run Chinook salmon in the Sacramento River and its tributaries, as well as the Feather River Fish Hatchery (FRFH) spring-run Chinook salmon program. We have issued protective regulations under section 4(d) of the ESA for CV spring-run Chinook salmon that prohibit their “take” unless otherwise authorized (50 CFR 223.203).
        Statutory and Regulatory Framework for Experimental Population Designation
        Section 10(j) of the ESA (16 U.S.C. 1539(j)) defines an experimental population as a population that has been authorized for release by the Secretary but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species. The ESA allows the Secretary to authorize the release of “experimental” populations of listed species outside their current range if the release would “further the conservation” of the listed species. Section 10(j) also requires that before authorizing the release of an experimental population, the Secretary identify the experimental population by regulation and determine, based on the best available information, whether or not the experimental population is “essential to the continued existence” of the listed species (see section 10(j)(2)(B)).

        The U.S. Fish and Wildlife Service (USFWS) promulgated regulations to guide its implementation of section 10(j) (see 50 CFR 17.80 through 17.84). While we do not have regulations governing the designation of experimental populations, we considered their regulations where appropriate in making the required determinations under section 10(j) and in formulating this proposed rule to designate and release an experimental population of CV spring-run Chinook salmon into the San Joaquin River upstream of the Merced River confluence. Although the USFWS regulations do not govern our proposal, the record demonstrates that our proposal would be consistent with the criteria of those regulations. We analyzed three key elements required by Section 10(j) in formulating this proposed rule.

          Element 1: In determining whether release of an experimental population of spring-run Chinook salmon into the San Joaquin River would further the conservation of the Central Valley spring-run Chinook ESU, we considered the effects of gathering broodstock on the extant populations of the ESU; the potential for the released population to survive in the foreseeable future; and the potential contribution of an experimental population to the recovery of the Central Valley spring-run Chinook ESU.

          Element 2: An appropriate means to identify the experimental population, and

          Element 3: Whether the experimental population is essential to the continued existence of the species in the wild or not;
        In order to comply with Section 10011(c) of the San Joaquin River Restoration Settlement Act, we also considered any additional measures, appropriate to address management concerns under local conditions, and we considered a process for data collection and periodic review of the status of the experimental population.
        In applying the above considerations to the proposed designation and release of the experimental population of CV spring-run Chinook salmon into the San Joaquin River, we used the best available information as required by section 10(j). We discuss in more detail below how we considered each of these three elements.

        Section 10(j) of the ESA requires that an experimental population be treated as a threatened species under the ESA, with two exceptions that apply if an experimental population is not determined to be essential to the listed species' continued existence (i.e., nonessential): 1) section 7 of the ESA applies in a different manner as described below in this paragraph, and 2) critical habitat shall not be designated for that experimental population. If the experimental population is determined to be nonessential, then section 10(j) requires that we apply the section 7 consultation provisions as if the population is a species proposed for listing. This means that the section 7(a)(2) consultation requirement does not apply to any experimental population of CV spring-run Chinook salmon that we determine is nonessential. The only provisions of section 7 that apply to a nonessential experimental population (NEP) are sections 7(a)(1) and 7(a)(4). Section 7(a)(1) requires that Federal agencies use their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of threatened and endangered species. Section 7(a)(4) requires Federal agencies to confer, rather than consult, with us on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are advisory in nature.
        Section 7 of the ESA does not apply to activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency. The associated take exemptions proposed below associated with the experimental population will provide sufficient protections to reduce effects of existing or anticipated Federal or State actions, or private activities within or adjacent to the experimental population area.
        Will an experimental population designation further the conservation of the species?
        The ESA defines “conservation” as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provide pursuant to this [Act] are no longer necessary.” We discuss in more detail below each of the factors we considered in determining if release of an experimental population would “further the conservation” of CV spring-run Chinook: We first considered the most appropriate source of fish to establish an experimental population. Reintroduction efforts have the best chance for success when the donor population has life history characteristics compatible with the anticipated environmental conditions of the habitat into which fish will be reintroduced. Populations found in watersheds closest to the reintroduction area are most likely to have adaptive traits that will lead to a successful reintroduction, and therefore, only spring-run Chinook salmon populations found in the Central Valley will be used in establishing the experimental population in the San Joaquin River.
        Functionally independent populations of CV spring-run Chinook salmon occur in Deer, Mill, and Butte creeks. The Feather River CV spring-run Chinook salmon population is also supplemented by operation of the FRFH. The Deer and Mill creek population levels are at a high risk of extinction and special care and consideration will be used when considering these fish as a donor source for reintroduction into the San Joaquin River. The Butte Creek CV spring-run Chinook salmon population is considered to be at a low risk of extinction and has the largest run size of the three major CV spring-run Chinook salmon populations in the Central Valley, thus it may be possible to remove fish from this population in years with high adult returns (NMFS, 2011).
        Fish produced from the FRFH specifically for the reintroduction are proposed to be the initial source of individuals to establish an experimental population of CV spring-run Chinook salmon in the San Joaquin River. We would later consider diversifying the donor stock with fish from the naturally spawning population in other streams like Butte Creek if and when those populations can sustain the removal of fish. Such diversification would be subject to ESA review.

        In determining whether release of the proposed experimental population would further the conservation of CV spring-run Chinook, we also considered the potential for the released population to survive in the foreseeable future. The Central Valley drainage as a whole is estimated to have supported spring-run Chinook salmon returns as large as 600,000 fish between the late 1880s and 1940s (CDFG, 1998). However, the CV spring-run Chinook salmon runs in the San Joaquin River were extirpated as a direct result of the completion of Friant Dam and the associated operation of the Friant-Kern and Madera irrigation canals which caused the river to run dry in many locations. As a result of these impacts, the last substantial CV spring-run Chinook salmon spawning cohort (numbering >1,900) returned in 1948 (Yoshiyama et al., 1996). Central Valley spring-run Chinook salmon were originally most abundant in the San Joaquin River basin where the run ascended to high-elevation streams fed by snow-melt where they over-summered until the fall spawning season (Yoshiyama et al., 1996). Construction of other low elevation dams in the foothills of the Sierra Nevada on the American, Mokelumne, Stanislaus, Tuolumne, and Merced rivers extirpated CV spring-run Chinook salmon in these watersheds as well (CDFG, 1998).

        NMFS' Public Draft Recovery Plan for Central Valley salmonids characterizes the San Joaquin River basin below Friant Dam as having a high potential to support a spawning population of reintroduced CV spring‐run Chinook salmon with implementation of the San Joaquin River Restoration Program (SJRRP). The Settlement establishes a framework for accomplishing the Restoration Goal which includes channel and structural modifications along the San Joaquin River below Friant Dam and releases of water from Friant Dam downstream to the river's confluence with the Merced River. Based on the available information, we believe that implementation of these actions will create habitat conditions in the San Joaquin River from Friant Dam to its confluence with the Merced River sufficient to support the establishment of CV spring‐run Chinook salmon populations.

        In addition to actions undertaken by the SJRRP, there are many Federal and State laws and regulations that will also help ensure the establishment and survival of the experimental population by protecting aquatic and riparian habitat. Section 404 of the Clean Water Act (CWA) (40 CFR parts 100 through 149) requires avoidance, minimization, and mitigation for the potential adverse effects of dredge and fill activities within the nation's waterways. Section 404(b) of the CWA requires that section 404 permits are granted only in the absence of practicable alternatives to the proposed project, which would have a less adverse impact on the aquatic ecosystem. CWA section 401 provides protection against adverse water quality conditions. In addition, construction and operational storm water runoff is subject to restrictions under CWA Section 402 and state water quality laws. Also the Magnuson-Stevens Fishery Conservation and Management Act, as amended (16 U.S.C. 1801 et seq.), requires that Essential Fish Habitat (EFH) be identified and Federal action agencies must consult with NMFS on any activity which they fund, permit, or carry out that may adversely affect EFH. Freshwater EFH for Pacific salmon in the California Central Valley includes waters currently or historically accessible to salmon within the Central Valley ecosystem as described in Myers et al. (1998), which includes the area where this NEP is being proposed.

        At the state level, the California Fish and Game Code section 1600, et seq. and the California Environmental Quality Act (Pub. Resources Code sections 21000 et seq.) (CEQA) set forth criteria for the incorporation of avoidance, minimization, and feasible mitigation measures for on-going activities as well as for individual projects. Section 1600 et seq. was enacted to provide conservation for the state's fish and wildlife resources and includes requirements to protect riparian habitat resources on the bed, channel, or bank of streams and other waterways. Section 1600 et seq. requires a person to notify the California Department of Fish and Wildlife (CDFW) (previously called California Department of Fish and Game until Dec 31, 2012) before substantially diverting or obstructing the natural flow of a river or stream. The CDFW then has the opportunity to determine whether the activity may substantially adversely affect an existing fish or wildlife resource and issue a final agreement that includes reasonable measures necessary to protect the resource (California Fish and Game Code Section 1602). Under CEQA, no public agency shall approve or carry out a project without identifying all feasible mitigation measures necessary to reduce impacts to a less than significant level, and shall incorporate such measures absent overriding considerations. In addition, protective measures, including programs for strategic screening and participation in habitat conservation programs, will be implemented in conjunction with SJRRP activities and are intended to provide a net benefit to the reintroduction.
        The SJRRP restoration actions, in combination with the protective measures proposed in this rule, as well as compliance with existing Federal, State and local laws, statutes, and regulations, including those mentioned above, are expected to ensure the survivability of the experimental population in the San Joaquin River into the foreseeable future.
        In addition, we considered the potential contribution of an experimental population toward recovery of the CV spring-run Chinook ESU. NMFS' draft recovery plan for Central Valley salmon and steelhead contains specific management strategies for recovering CV spring-run Chinook salmon that include securing existing populations and reintroducing populations into historically occupied habitats, including the San Joaquin River. Establishing an experimental population of CV spring-run Chinook salmon in the San Joaquin River that persist into the foreseeable future is expected to reduce the species' overall extinction risk from natural and anthropogenic factors by increasing its abundance, productivity, spatial structure, and diversity within the Central Valley. These expected improvements in the overall viability of CV spring-run Chinook salmon, in addition to other actions being implemented throughout the Central Valley, will contribute to the species recovery.
        In light of the foregoing, we conclude that release of the proposed experimental population would further the conservation of CV spring-run Chinook salmon.
        Identification of the Experimental Population
        Section 10(j) requires that the experimental population be designated only when, and at such times, as it is geographically separate from nonexperimental populations of the same species. We are proposing to designate the experimental population area for experimental CV spring-run Chinook salmon population as the San Joaquin River from its confluence with the Merced River upstream to Friant Dam, including all  sloughs, channels, and water ways that connect the San Joaquin River and provide passage for the species. In addition, the experimental area includes portions of the Kings River in high water years that provide connectivity between the Kings River with the San Joaquin River. The proposed experimental population area is within the species historical range, but it is presently unoccupied by CV spring-run Chinook salmon and is outside the currently defined freshwater and estuarine boundary of the CV spring-run Chinook salmon ESU.

        False pathways (water ways that salmon follow that do not lead to spawning habitat) that fish may use as a result of restored flows have not yet been identified; however, the SJRRP includes actions to prevent or reduce straying to false pathways, and this proposed experimental population designation assumes that the SJRRP will take appropriate action to reduce losses of the experimental population caused by undesirable straying. In addition, we will be using other means of identifying fish that are part of the experimental population such as marking fish with specific fin clips or other methods (e.g., coded wire tags, genetic testing).
        Is the experimental population essential to the continued existence of the species?

        Since we do not have regulations implementing section 10(j), we considered the USFWS regulations (50 CFR 17.80(b)), which define an essential experimental population as “an experimental population whose loss would be likely to appreciably reduce the likelihood of the survival of the species in the wild.” All other experimental populations are classified as nonessential. While we are not bound by the definition of “essential” in the USFWS regulations, we have determined it is appropriate for use in this proposed rule.

        In making the determination whether the proposed experimental population of CV spring-run Chinook salmon is essential, we used the the best available information as required by ESA section 10(j)(2)(B). Furthermore, we considered the geographic location of the proposed experimental population in relation to other populations of CV spring-run Chinook salmon, the source of fish that will be used to establish the experimental population (e.g., naturally spawning populations or FRFH stocks), and whether the removal of individuals from any donor population would appreciably reduce the likelihood of the existing listed species survival and recovery in the wild.
        Through our section 10 permitting authority and the section 7 consultation process, we will also ensure that the use of CV spring-run Chinook salmon from any donor populations for release into the San Joaquin River is not likely to jeopardize the continued existence of the species in the wild. Currently NMFS has issued a 10(a)(1)(A) permit along with a section 7 Biological Opinion (2012) that reached a non-jeopardy conclusion on the first five years of broodstock collection from FRFH.
        As noted above, there are several choices for source populations for this experimental population. Initially we will be using FRFH fish in excess to what is needed for Feather River operations. If we consider using CV spring-run Chinook salmon from naturally spawning populations, we will remove only small numbers of fish from natural populations that we consider to be viable and at a low risk of extinction. In addition, a captive broodstock program is being established as part of the SJRRP to augment and supplement the establishment of experimental populations in the San Joaquin River. Over time, we expect the captive broodstock at the San Joaquin River conservation hatchery will produce sufficient numbers of eggs and juveniles to support reintroduction actions, and will reduce the need for fish to be taken from existing hatchery or natural populations in the Sacramento River basin.
        The San Joaquin River is substantially geographically separated from the watersheds that support extant populations of CV spring-run Chinook salmon in the Sacramento River basin. We expect that any CV spring-run Chinook salmon reintroduced to the San Joaquin River will imprint on this river and would therefore be unlikely to stray into the Sacramento River basin and interact with extant populations found in that watershed. Thus it is expected that the proposed experimental population will exist as a population independent from those in the Sacramento River basin and will not contribute to their survival.
        Based on these considerations, we conclude that the loss of the proposed experimental San Joaquin River population of CV spring-run Chinook salmon is not likely to appreciably reduce the likelihood of the survival of the species in the wild. Accordingly, this population will be considered nonessential under this designation.
        Additional Management Restrictions, Protective Measures, and Other Special Management Considerations
        The ESA defines “take” to mean: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. For threatened species such as the proposed NEP of CV spring-run Chinook salmon, the ESA does not specifically prohibit take, but ESA section 4(d) (16 U.S.C. 1533(d)) provides that the Secretary shall issue protective regulations he or she deems necessary and advisable for species conservation. Such protective regulations may, if appropriate, include the take prohibitions of section 9 of the ESA.
        Therefore, in conjunction with our proposal to designate and authorize the release of a CV spring-run Chinook salmon NEP in the San Joaquin River, we also propose to promulgate protective regulations under section 4(d) of the ESA that would apply to the NEP. To ensure that the NEP has protections from activities that are not lawful under Federal, State or local laws and regulations, we propose to apply all take prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G), except for section 9(a)(1)(C) which involves the irrelevant issue of take upon the high seas, to the experimental population when it is within the experimental population area. Such activities include those resulting in direct intentional take or harm or illegal activities that result in incidental take or harm. These prohibitions would apply to all CV spring-run Chinook salmon in the experimental population area that have intact adipose fins as well as those that are adipose fin-clipped.
        In addition, we are proposing that the unintentional take of CV spring-run Chinook salmon in the experimental population area that is caused by otherwise lawful activities will be exempted from the take prohibitions under section 9. Similarly, this proposed rule proposes to exempt handling of fish in the experimental population for salvage/rescue and scientific research subject to specific requirements. We are proposing to provide an exemption from the section 9 take prohibitions for specified scientific research activities conducted by the State of California that is consistent with the existing state 4(d) research programs established for listed salmon, making use of the system already in place. Federal, State, and private-sponsored research activities for scientific research or enhancement purposes that are not covered under the exceptions, criteria for exceptions, and reporting requirements or exemptions provided by NMFS-approved 4(d) programs above, may take CV spring-run Chinook salmon in the NEP pursuant to the specifications of an ESA section 10 permit. Section 9(a)(1)(B) take prohibitions would not apply to ongoing research activities if an application for an ESA section 10(a)(1)(A) permit is received by NMFS, preferably through the NMFS online application Web site.

        Questions regarding whether specific activities will constitute a violation of the section 9 take prohibition, and general inquiries regarding prohibitions and permits, should be directed to NMFS (see ADDRESSES).
        As noted above, we propose to prohibit the intentional take of CV spring-run Chinook salmon in the experimental population area by angling. We intend to work with CDFW to review fishing regulations in the geographic area in order to minimize the impact of this prohibition on current angling on other species. In the future, if the experimental population becomes established, we may consider allowing limited harvest of CV spring-run Chinook salmon in the experimental population through a Fishery Management and Evaluation Plan developed by CDFW and approved by NMFS.
        Special Take Exemptions Outside of the Experimental Population Area

        Under the SJRRSA, the reintroduction of an experimental CV spring-run Chinook salmon population to the San Joaquin River must not impose more than de minimis water supply reductions, additional storage releases, or bypass flows on unwilling third parties. The SJRRSA defines “third party” to mean persons or entities diverting or receiving water pursuant to applicable State and Federal laws which includes CVP contractors outside of the Friant Division of the CVP and the State Water Project (SWP) contractors. Because the proposed reintroduction under the SJRRSA cannot impose any more than de minimis effects onto third parties and some of these third parties operate outside of the proposed experimental population area, this proposed rule also extends special take exemptions to third parties outside of the experimental population area geographic location. These proposed special take exemptions will apply to fish that originate from the San Joaquin River, including the experimental area above the confluence with the Merced River. Spring-run Chinook salmon that are part of the threatened CV spring-run Chinook salmon ESU (50 CFR 223.102), and are known to occur in the area, will be exempt from take prohibitions for activities related to diverting or receiving water pursuant to applicable State and Federal laws, but otherwise would continue to be covered by the take prohibitions applicable to the non-experimental part of the ESU. The proposed special take exemptions for CV spring-run Chinook salmon that originate from the San Joaquin River would address areas downstream from the confluence of the Merced and San Joaquin rivers, including all tributaries to the San Joaquin River and in the south Delta.

        For take at the CVP and SWP facilities in the Delta, NMFS will annually calculate and document the proportionate contribution of CV spring-run Chinook salmon originating from the reintroduction to the San Joaquin River. NMFS will document this calculation by January 15 each year and will describe the method for calculating and deducting this share of CV spring-run Chinook salmon take from the operational triggers and incidental take statements associated with the June 2009 Biological Opinion on the Long-term Operations of the CVP and SWP or subsequent future Biological Opinions. The intent of this proposed exemption is to ensure that the proposed experimental reintroduction will not impose more than a de minimis impact on water supply, storage releases and bypass flows for unwilling third parties due to the reintroduction.
        Process for Periodic Review
        Monitoring and analysis is necessary to gauge the progress of the proposed reintroduction program and to provide information for decision-making and adaptive management. Fish passage, fish biology, aquatic habitat, and conservation hatchery facility operations will be the primary focus of the monitoring (FMP, 2009).

        Fish passage monitoring will focus on addressing a variety of issues important to successful reintroduction. These issues consist of measuring fish passage efficiency, smolt injury and mortality rates, and adult river passage to spawning areas. Passive integrated transponder tags and radio tags will be used to evaluate and monitor fish passage effectiveness. Biological evaluation and monitoring will concentrate on adult escapement and spawning success, competition with resident species, predation, disease transfer, smolt production, harvest, and sustainability of natural runs. Habitat monitoring will focus on long-term trends in the productive capacity of the reintroduction area (i.e., habitat availability, habitat effectiveness, riparian condition) and natural production (the number, size, productivity, and life history diversity) of CV spring-run Chinook salmon in the experimental population area.
        Monitoring at the conservation hatchery facility will focus on multiple issues important to the quality of fish collected and produced for use in the reintroduction program. CDFW will be primarily responsible for monitoring conservation hatchery facility operations. Monitoring activities will consist mainly of tracking broodstock sources; disease history and treatment; pre-release performance such as survival, growth, and fish health by life stage; the numerical production advantage provided by the conservation hatchery facility program relative to natural production; and success of the conservation hatchery facility program in meeting the programs objectives.
        While this monitoring is being conducted for purposes of making the reintroduction effort successful, we will use the information to also determine if the experimental population designation is causing any harm to CV spring-run Chinook salmon that are part of the threatened ESU and their habitat, and then, based on this and other available information, determine if any changes to the experimental population designation may be warranted. Any contribution that an experimental population might make to the overall viability of CV spring-run Chinook salmon would be considered in future status assessments required under the ESA.
        Experimental Population Findings
        Based on the best available scientific information, we have determined that the designation and release of a NEP of CV spring-run Chinook salmon in the San Joaquin River basin below Friant Dam will further the conservation of CV spring-run Chinook salmon. Fish used for the reintroduction will rely on FRFH hatchery production or fish produced from a conservation hatchery facility from limited collection of wild fish, and loss of some fish will not reduce the survival and recovery of CV spring-run Chinook salmon. The collection of wild fish will be permitted only after issuance of permits under section 10(a)(1)(A) of the ESA that ensure that any such collections will not jeopardize the survival and recovery of the species. We have determined that this experimental population is nonessential because it is not necessary for the continued survival of the CV spring-run Chinook salmon; however, the population is expected to contribute to the recovery of CV spring-run Chinook salmon if the reintroduction is successful. This experimental population designation and release is being implemented in association with the reintroduction efforts called for in the SJRRP and the Stipulation of Settlement. Actions of the SJRRP are intended to provide habitat conditions that will be sufficient to establish a CV spring-run Chinook salmon population in the San Joaquin River while at the same time ensuring that no further protections will be needed and that the reintroduction will not impact landowners and third parties as defined by the SJRRSA.
        The success of the reintroduction of CV spring-run Chinook salmon in the experimental population area will be monitored as part of the SJRRP. We will assess the contribution of the NEP to the status of the species during the required five year status review of the CV spring-run Chinook salmon ESU. This information will be used by NMFS to determine if changes to the NEP designation may be warranted.
        As previously noted, we considered the Fish and Wildlife Service's regulations and applied them only where appropriate in this proposed rule. We believe that our identification of the proposed experimental population, our finding that release of the proposed experimental population would further the conservation of CV spring-run Chinook, and our finding that the proposed experimental population is not essential to the continued existence of the listed species would be identical had we strictly applied all of the Fish and Wildlife Service's 10(j) regulations.
        Public Comment

        We want the final rule to be as effective and accurate as possible, and the final EA to evaluate the potential issues and reasonable range of alternatives. Therefore, we invite the public, State, Tribal, and government agencies, the scientific community, environmental groups, industry, local landowners, and all interested parties to provide comments on the proposed rule and EA. We request that submitted comments be relevant to the reintroduction and experimental population designation and not include comments on the SJRRP as a whole, which is beyond the scope of the action described in this proposed rule. Comments should be as specific as possible, provide relevant information or suggested changes, the basis for the suggested changes, and any additional supporting information where appropriate. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        Prior to issuing a final rule, we will take into consideration the comments and supporting materials received. The final rule may differ from the proposed rule based on this information and other considerations. We are interested in all public comments, but are specifically interested in obtaining feedback on:
        (1) The geographical boundary of the designated experimental population.
        (2) The extent to which the experimental population would be affected by current or future Federal, State, or private actions within or adjacent to the experimental population area.
        (3) Any necessary management restrictions, protective measures, or other management measures that we may have not considered.
        (4) The extent to which we have has provided protections for third parties as required by the SJRRSA.
        (5) Whether we should propose the experimental population as nonessential.
        (6) Whether the proposed designation furthers the conservation of the species and we have used the best available science in making this determination.
        Information Quality Act and Peer Review

        In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act (Section 515 of Pub. L. 106-554) in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. The peer review requirements of the OMB Bulletin apply to influential or highly influential scientific information disseminated on or after June 16, 2005. There are no documents supporting this proposed rule that meet this criteria.
        Classification
        Executive Order 12866
        This rule has been determined to be not significant under E.O. 12866.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.):

        Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 801 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
        We are certifying that this rule would not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale. The effect of the proposal would be to avoid the need for affected entities, including small entities, to obtain ESA permits or authorization to conduct otherwise lawful activities as a result of reintroduction of CV spring-run Chinook salmon to the San Joaquin River. We do not collect the data to be able to quantify the number or type of small entities within the area affected by this proposed rule. If this proposal is adopted, the area affected by this rule includes the San Joaquin River from Friant Dam to Mossdale County Park, San Joaquin County, California and associated water ways accessible to anadromous fish. The NEP area would include the San Joaquin River from Friant Dam downstream to the confluence with the Merced River. Private land ownership is significant in the NEP area. Land uses are primarily agriculture, recreation, and tourism.
        This proposed rule authorizes incidental take of CV spring-run Chinook salmon within the NEP area. The regulations implementing the ESA define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Intentional take for negligent, or as a result of unlawful, activities would not be permitted. Intentional take other than for conservation purposes as described in the special rule are not authorized unless for research or educational purposes, which would require a section 10 permit under the ESA. Because of the substantial regulatory relief provided by NEP designations, we do not expect this rule to have any significant effect on recreational, agricultural, or development activities within the NEP area.

        Additionally, the proposal would provide specific regulatory relief to persons or entities diverting or receiving water pursuant to applicable State and Federal laws, such that the reintroduction of CV spring-run Chinook salmon would not impose more than de minimus: Water supply reductions, additional storage releases, or bypass flows on these persons or entities, if unwilling. These exemptions include Central Valley Project contractors outside of the Friant Division of the Central Valley Project and the State Water Project. Because this proposal would require no additional regulatory requirements on small entities and would provide regulatory relief for activities within the affected area, the Chief Council for Regulation certified that this proposed rule would not have a significant economic effect on a substantial number of small entities.
        Executive Order 12630
        In accordance with E.O. 12630, the proposed rule does not have significant takings implications. A takings implication assessment is not required because this proposed rule: (1) Would not effectively compel a property owner to have the government physically invade their property, and (2) would not deny all economically beneficial or productive use of the land or aquatic resources. This proposed rule would substantially advance a legitimate government interest (conservation and recovery of a listed fish species) and would not present a barrier to all reasonable and expected beneficial use of private property.
        Executive Order 13132

        In accordance with E.O. 13132, we have determined that this proposed rule does not have federalism implications as that termed is defined in E.O. 31312.

        Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

        OMB regulations at 5 CFR 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), require that Federal agencies obtain approval from OMB before collecting information from the public. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. This proposed rule does not include any new collections of information that require approval by OMB under the Paperwork Reduction Act.
        National Environmental Policy Act

        In compliance with all provisions of the National Environmental Policy Act of 1969 (NEPA), we have analyzed the impact on the human environment and considered a reasonable range of alternatives for this proposed rule. We have prepared a draft EA on this proposed action and have made it available for public inspection (see ADDRESSES section). All appropriate NEPA documents will be finalized before this rule is finalized.
        Government-to-Government Relationship With Tribes (E.O. 13175)
        E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests. If we issue a regulation with tribal implications (defined as having a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes) we must consult with those governments or the Federal Government must provide funds necessary to pay direct compliance costs incurred by tribal governments.
        There are no tribally owned or managed lands included in the experimental population area. We have invited all possibly impacted tribes (letter dated November, 15, 2010, from Maria Rea, Central Valley Office Supervisor, NMFS) to discuss the proposed rule at their convenience should they choose to have a government-to-government consultation.
        References Cited

        A complete list of all references cited in this proposed rule is available upon request from National Marine Fisheries Service office (see FOR FURTHER INFORMATION CONTACT).

          Dated: January 9, 2013.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, performing the functions and duties of the Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

          List of Subjects in 50 CFR Part 223
          Endangered and threatened species, Exports, Imports.

        For the reasons set out in the preamble, we propose to amend part 223, subpart B of chapter 1, title 50 of the Code of Federal Regulations, as set forth below.

          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, § 223.201-202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9).

        2. Add § 223.301 paragraph (b) to read as follows:

          § 223.301
          Special rules—marine and anadromous fishes.

          (b) San Joaquin River CV spring-run Chinook Salmon Experimental Population (Oncorhynchus tshawytscha).
          (1) The San Joaquin River CV spring-run Chinook salmon population identified in paragraph (b)(5) of this section is designated as a nonessential experimental population under section 10(j) of the ESA.
          (2) 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 that are part of the threatened, nonessential experimental population of CV spring-run Chinook salmon identified in paragraph (a)(4) of this section.
          (3) Allowable take of CV spring-run Chinook salmon in the Experimental Population Area:

          (i) Any taking of CV spring-run Chinook salmon provided that it is unintentional, not due to negligent conduct, and incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Examples of otherwise lawful activities include recreation, agriculture, municipal usage, and other similar activities, which are carried out in accordance with Federal, State, and local laws and regulations.

          (ii) Any taking of CV spring-run Chinook salmon by an employee or designee of NMFS, the USFWS, other Federal land management agencies, the California Department of Fish and Wildlife, or any other governmental entity if in the course of their duties it is necessary to: aid a sick, injured or stranded fish; dispose of a dead fish; or salvage a dead fish which may be useful for scientific study. Any agency acting under this provision must report to NMFS (see ADDRESSES section) the numbers of fish handled and their status on an annual basis.
          (iii) Any taking of CV spring-run Chinook salmon for scientific research or enhancement purposes by a person or entity with a valid section 10(a)(1)(A) permit issued by NMFS and a valid permit issued by the CDFW.
          (iv) Any taking of CV spring-run Chinook salmon for scientific research purposes by the CDFW provided that:
          (A) Scientific research activities involving purposeful take are conducted by employees or contractors of CDFW or as a part of a monitoring and research program overseen by or coordinated with CDFW.
          (B) CDFW provides for NMFS' review and approval a list of all scientific research activities involving direct take planned for the coming year, including an estimate of the total direct take that is anticipated, a description of the study design, including a justification for taking the species and a description of the techniques to be used, and a point of contact.
          (C) CDFW annually provides to NMFS the results of scientific research activities directed at fish in the experimental population, including a report of the direct take resulting from the studies and a summary of the results of such studies.
          (D) Scientific research activities that may incidentally take fish in the experimental population are either conducted by CDFW personnel, or are in accord with a permit issued by the CDFW.
          (E) CDFW provides NMFS annually, for its review and approval, a report listing all scientific research activities it conducts or permits that may incidentally take fish in the experimental population during the coming year. Such reports shall also contain the amount of incidental take occurring in the previous year's scientific research activities and a summary of the results of such research.

          (F) Electro fishing in any body of water known or suspected to contain fish in the experimental population is conducted in accordance with NMFS “Guidelines for Electrofishing Waters Containing Salmonids Listed Under the Endangered Species Act” (NMFS, 2000a).

          (G) NMFS' approval of a research program shall be a written approval by NMFS Northwest or Southwest Regional Administrator.
          (4) Take of CV spring-run Chinook salmon in Experimental Population Area that is not allowed:

          (i) Except as expressly allowed in paragraph (3) of this section, the taking of CV spring-run Chinook salmon is prohibited within the experimental population area. This includes the taking of CV spring-run Chinook salmon by all activities that are illegal or not allowed under Federal, State or local laws and regulations.
          (ii) No person shall possess, sell, deliver, carry, transport, ship, import, or export, by any means whatsoever, CV spring-run Chinook salmon from the nonessential, experimental population area in violation of this paragraph and paragraph (2) of this section.
          (5) San Joaquin River CV Spring-run Chinook Salmon Experimental Population Area.

          The geographic boundary defining the experimental population of CV spring-run Chinook salmon includes the San Joaquin River from Friant Dam downstream to its confluence with the Merced River as well as all sloughs, channels, and waterways connected with the San Joaquin River that allow for CV spring-run Chinook salmon passage. Those portions of the Kings River that connect with the San Joaquin River during high water years are also part of the experimental population area. The experimental population area is within the historic range of the species, but is outside of its current range. All CV spring-run Chinook salmon in this defined experimental population area are considered part of the San Joaquin River experimental population.
          (6) Special Take Exemption Outside of the Experimental Population Area:

          (i) Any taking of CV spring-run Chinook salmon in those portions of the lower San Joaquin River and its tributaries downstream from its confluence with the Merced River to Mossdale County Park in San Joaquin County, by otherwise lawful activities related to diverting or receiving water pursuant to applicable State and Federal laws.
          (ii) Any taking of CV spring-run Chinook salmon at the CVP and SWP projects in the Delta that originates from reintroduction to the San Joaquin River. NMFS will annually determine by January 15 the share of take at the CVP and SWP facilities that originates from the reintroduction to the San Joaquin River. This determination will provide a methodology for deducting San Joaquin River origin spring-run Chinook salmon from the operational triggers and incidental statements associated with any biological opinion that is in effect at the time for operations of the CVP and SWP facilities.

      [FR Doc. 2013-00809 Filed 1-15-13; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AT84
        Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Arkansas River Basin Population of the Arkansas River Shiner

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft economic analysis and draft environmental assessment, and notice of public hearings.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the availability of the draft economic analysis and draft environmental assessment for the proposal to designate critical habitat for the Arkansas River Basin population of the Arkansas River shiner (Notropis girardi) under the Endangered Species Act of 1973 (Act), as amended. The draft economic analysis finds that, over the next 20 years, costs associated with Arkansas River shiner conservation activities are forecast to range from $9 to $11 million per year. In constant dollars, the draft economic analysis estimates there will be an economic impact of $198 million over the next 20 years. The greatest economic impacts are expected to occur to concentrated animal feeding operations, oil and gas production, and water management activities, in that order. Comments previously submitted on the October 6, 2004, proposed rule (69 FR 59859) during both the initial and extended comment periods (April 28, 2005, 70 FR 21987), need not be resubmitted as they have been incorporated into the public record and will be fully considered in preparation of the final rule. We will hold three public informational sessions and hearings (see DATES and ADDRESSES sections).

          DATES:
          Comments must be submitted directly to the Service (see ADDRESSES section) on or before August 31, 2005 of this document, or at the public hearings.
          We will hold public informational sessions from 4 p.m. to 5:15 p.m., followed by a public hearing from 7 p.m. to 9 p.m., on the following dates:
          1. August 15, 2005: Oklahoma City, Oklahoma;
          2. August 17, 2005: Amarillo, Texas;
          3. August 18, 2005: Liberal, Kansas.

          ADDRESSES:

          Meetings: The public informational sessions and hearings will be held at the following locations:

          1. Oklahoma City, Oklahoma: Conservation Education Center Auditorium, Oklahoma City Zoological Park, 2101 NE 50th Street, Oklahoma City, Oklahoma, 73111;
          2. Amarillo, Texas: Auditorium, Texas A&M Agricultural Experiment Station, 6500 Amarillo Boulevard West, Amarillo, Texas, 79106; and
          3. Liberal, Kansas: Meeting Rooms, Seward County Activities Center, 810 Stadium Road, Liberal, Kansas, 67901.
          Disabled persons needing reasonable accommodations in order to attend and participate in the public hearing should contact Jerry Brabander, Field Supervisor, Oklahoma Ecological Services Field Office, at the phone number and address below as soon as possible. In order to allow sufficient time to process requests, please call no later than 3 days before the hearing. Information regarding this proposal is available in alternative formats upon request.
          If you wish to comment on the proposed rule, draft economic analysis, or draft environmental assessment, you may submit your comments and materials by any one of several methods:
          1. You may submit written comments and information by mail or hand-delivery to the Oklahoma Ecological Services Office, U.S. Fish and Wildlife Service, 222 South Houston, Tulsa, Oklahoma 74127-8909.
          2. Written comments may be sent by facsimile to 918-581-7467.

          3. You may send your comments by electronic mail (e-mail) to r2arshinerch@fws.gov. For directions on how to submit electronic filing of comments, see the “Public Comments Solicited” section below.

          You may obtain copies of the draft economic analysis and draft environmental assessment by mail or by visiting our Web site at http://ifw2es.fws.gov/Oklahoma/shiner.htm. You may review comments and materials received, and review supporting documentation used in preparation of this proposed rule, by appointment, during normal business hours, at the above address.

          FOR FURTHER INFORMATION CONTACT:
          Jerry Brabander, Field Supervisor, Oklahoma Office (telephone 918-581-7458; facsimile 918-581-7467).

        SUPPLEMENTARY INFORMATION:
        Public Comments Solicited
        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning the proposed rule, the draft economic analysis, and the draft environmental assessment. On the basis of public comment, during the development of our final determination, we may find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. We particularly seek comments concerning:
        (1) The reasons why any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefits of designation will outweigh any threats to the species resulting from designation;
        (2) Specific information on the distribution of the Arkansas River shiner, the amount and distribution of the species' habitat, and which habitat is essential to the conservation of the species, and why;
        (3) Land-use designations and current or planned activities in the subject area and their possible impacts on the species or proposed critical habitat;
        (4) Whether our approach to listing or critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments;
        (5) Any foreseeable economic, environmental, or other impacts resulting from the proposed designation of critical habitat or coextensively from the proposed listing, and in particular, any impacts on small entities or families;
        (6) Whether the economic analysis identifies all State and local costs. If not, what other costs should be included;
        (7) Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the listing of the species or the designation of critical habitat;
        (8) Whether the economic analysis correctly assesses the effect on regional costs associated with land- and water-use controls that derive from the designation;
        (9) Whether the designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation;
        (10) Whether the economic analysis appropriately identifies all costs that could result from the designation or coextensively from the listing; and
        (11) Any information as to possible costs associated with instream flow requirements for the shiner downstream of Sanford Dam.
        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home addresses from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

        If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please submit electronic comments in ASCII file format and avoid the use of special characters or any form of encryption. Please also include your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Oklahoma Ecological Services Field Office at (918) 581-7458.
        Background
        On October 6, 2004 (69 FR 59859), we proposed to designate as critical habitat a total of approximately 2,002 kilometers (1,244 miles) of linear distance of rivers, including 91.4 meters (300 feet) of adjacent riparian areas measured laterally from each bank. This distance includes areas that we are proposing to exclude that are discussed below. The areas that we have determined to be essential to the conservation of the Arkansas River shiner include portions of the Canadian River (often referred to as the South Canadian River) in New Mexico, Texas, and Oklahoma, the Beaver/North Canadian River of Oklahoma, the Cimarron River in Kansas and Oklahoma, and the Arkansas River in Arkansas, Kansas, and Oklahoma.

        In developing this proposal, we evaluated those lands determined to be essential to the conservation of the Arkansas River shiner to ascertain if any specific areas would be appropriate for exclusion from the final critical habitat designation pursuant to section 4(b)(2) of the Act. On the basis of our preliminary evaluation, we believe that the benefits of excluding the Beaver/North Canadian River of Oklahoma and the Arkansas River in Arkansas, Kansas, and Oklahoma from the final critical habitat for the Arkansas River Shiner outweigh the benefits of their inclusion.

        On September 30, 2003, in a complaint brought by the New Mexico Cattle Growers Association and 16 other plaintiffs, the U.S. District Court of New Mexico instructed us to propose critical habitat by September 30, 2004, and publish a final rule by September 30, 2005. The proposed rule was signed on September 30, 2004, and published in the Federal Register on October 6, 2004 (69 FR 59859). Additional background information is available in the October 6, 2004, proposed rule.
        Critical habitat identifies specific areas that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.
        Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We are announcing the availability of a draft economic analysis and draft environmental assessment for the proposal to designate certain areas as critical habitat for the Arkansas River shiner. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        Costs related to conservation activities for the proposed Arkansas River shiner critical habitat pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $9 to $11 million dollars on an annualized basis. The low end of this range assumes zero impact to private agricultural activities and lower-bound estimates for all other activities; the high-end of this range assumes upper-bound estimates for private agriculture and all other activities. The total impact in constant dollars is $198 million over the next 20 years. The total impacts in constant dollars are the following for each of the economic sectors impacted (from Exhibit ES-4a in executive summary of the draft economic analysis): $7.3 to 20.4 million for administrative costs; $31.8 million for water operations; $28.6 to 57 million for oil and gas; $68.7 million for CAFOs; $3.6 million for Federal farm assistance; $5.9 million for grazing; $0.9 million for agricultural crops; $0.1 to $0.5 million for transportation; and $9.3 million for recreation.
        As noted in our proposed rule, in developing critical habitat designations, we have also recognized under section 4(b)(2) partnerships and conservation programs or efforts that provide a conservation benefit to the subject species. In the case of Arkansas River shiner, it is our intent to recognize future conservation efforts. In this regard we have met with the Arkansas River Shiner Coalition (Coalition), whose mission is to ease the regulatory burdens of designated critical habitat for its members and to work with the Service toward the eventual recovery of the Arkansas River shiner. The Coalition represents several agricultural and ranching associations, water service providers, groundwater conservation districts, and other groups in Texas, Oklahoma, and New Mexico. The Coalition has developed an Arkansas River shiner management plan and intends to submit it to us during the current comment period. If we receive a plan from the Coalition, we will evaluate the conservation measures being provided to or planned for the Arkansas River shiner when making our final determination of critical habitat, and we may exclude areas pursuant to section 4(b)(2) of the Act if we find that the benefits of their exclusion outweigh the benefits of their inclusion.
        Required Determinations—Amended
        Regulatory Planning and Review

        In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the Arkansas River shiner will result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register, the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.
        Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
        Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. As noted above, in our proposed rule we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

        To determine if the proposed designation of critical habitat for the Arkansas River shiner would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (e.g., concentrated animal feeding operations, oil and gas, agriculture, livestock grazing, and recreation). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted or authorized by Federal agencies; non-Federal activities are not affected by the designation.
        If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In our draft economic analysis of this proposed designation, we evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in five categories: Concentrated animal feeding operations, oil and gas, agriculture, livestock grazing, and recreation. The following summary of the information contained in Appendix A of the draft economic analysis provides the basis for our determination.
        Concentrated Animal Feeding Operations (CAFOs)
        Arkansas River shiner conservation activities have the potential to affect approximately 67 of the 4,125 small animal feeding businesses (roughly 1.6 percent) located within States that contain proposed shiner habitat and impacted CAFOs (Oklahoma, Texas, and Kansas). The watersheds with highest potential impacts to small CAFOs are the Lower Canadian (Unit 1b of proposed critical habitat) and the Lower Cimarron-Skeleton (Unit 3 of proposed critical habitat). Impacts are possible in the form of additional compliance costs related to a number of potential requirements, including increased storage capacity in wastewater retention structures and various monitoring and testing activities. These compliance costs may lead to financial stress at up to 33 facilities. Upper-bound estimates of potential impacts result from conservative assumptions (that is, assumptions that are intended to overstate rather than understate costs) regarding the number and type of project modifications required of CAFO facilities as summarized in Section 6 of the draft economic analysis.
        Oil and Gas Production Activities
        Project modifications to oil and gas activities resulting from Arkansas River shiner conservation activities will have minimal effects on small oil and gas and pipeline businesses in counties that contain proposed Arkansas River shiner habitat. Impacts are expected to be limited to additional costs of compliance for oil and gas projects. Assuming that each potentially impacted well and pipeline represent individual well and pipeline businesses, annual compliance costs are roughly 0.14 percent of estimated 1997 revenues for potentially impacted small oil and gas well production businesses and 0.09 percent of estimated 1997 revenues for potentially impacted small pipeline businesses in these counties. As noted in the draft economic analysis, 1997 revenue data is the most current available data from the United States Economic Census.
        Agriculture
        While Arkansas River shiner conservation activities have not impacted private crop production since the listing of the species in 1998, the draft economic analysis considers that farmers may make decisions that lead to reductions in crop production within proposed critical habitat. Section 7 of the draft economic analysis presents a scenario in which farmers choose to retire agricultural land from production in order to avoid section 9 take of the species (“take” means to harass, harm, pursue, or collect, or attempt to engage in any such conduct). The screening analysis estimates that up to 14 small farms in States that contain proposed Arkansas River shiner habitat could be impacted under this scenario. This represents a small percentage (less than one percent) of total farm operations in these States.
        Livestock Grazing

        Limitations on livestock grazing may impact ranchers in the region. As discussed in Section 7 of the draft economic analysis, Arkansas River shiner conservation activities could result in a reduction in the level of grazing effort within proposed Arkansas River shiner habitat on non-Federal lands. On non-Federal lands, however, impacts are uncertain, because maps describing the overlap of privately grazed lands and the proposed designation are not available (i.e., that portion of each ranch which could be impacted by the designation). If each affected ranch is small, then approximately 20 to 43 ranches annually could experience losses in cattle grazing opportunities as a result of Arkansas River shiner conservation activities on non-Federal lands. This represents a small percentage (less than one percent for the upper-bound estimate) of beef cow operations in those States where habitat is proposed for designation.
        Recreation
        As detailed in Section 9 of the draft economic analysis, limitations on off road vehicle (ORV) use at the Rosita ORV area within Lake Meredith National Recreation Area in Hutchinson County, Texas, during the months of July to September may result in up to 23,299 lost visitor days annually. These lost visitor days represent 2.4 percent of the three-year average of total visitor trips to Lake Meredith National Recreation Area (2002 to 2004), and roughly 25 percent of annual ORV visitor trips to Rosita from 2000 to 2004. Recreation-related sales generated by small businesses in Hutchinson County, Texas, are estimated at $88.5 million. Thus, the total annual impact of reduced consumer expenditure ($897,00 to $1.3 million annually) is equivalent to 1.0 to 1.5 percent of small business revenues of affected industries in Hutchinson County. While small business impacts are likely to be minimal at the county level, some individual small businesses may experience greater impacts. However, data to identify which businesses will be affected or to estimate specific impacts to individual small businesses are not available.

        Based on this data we have determined that this proposed designation would not affect a substantial number of small businesses involved in concentrated animal feeding operations, oil and gas, agriculture, livestock grazing, and recreation. Further, we have determined that this proposed designation would also not result in a significant effect to the annual sales of those small businesses impacted by this proposed designation. As such, we are certifying that this proposed designation of critical habitat would not result in a significant economic impact on a substantial number of small entities. Please refer to Appendix A of our draft economic analysis of this designation for a more detailed discussion of potential economic impacts to small business entities.

        Executive Order 13211
        On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The proposed rule is considered a significant regulatory action under E.O. 12866 due to it potentially raising novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Appendix B of the draft economic analysis provides a detailed discussion and analysis of this determination. Specifically, three criteria were determined to be relevant to this analysis: (1) Reductions in crude oil supply in excess of 10,000 barrels per day (bbls); (2) reductions in natural gas production in excess of 25 million Mcf per year; and (3) increases in the cost of energy production in excess of one percent. The draft economic analysis determines that the oil and gas industry is not likely to experience “a significant adverse effect” as a result of Arkansas River shiner conservation activities. Therefore, this action is not a significant action and no Statement of Energy Effects is required.
        Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
        In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
        (a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”
        The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
        (b) The economic analysis discusses potential impacts of critical habitat designation for the Arkansas River shiner including administrative costs, water management activities, oil and gas activities, concentrated animal feeding operations, agriculture, and transportation. The analysis estimates that annual costs of the rule could range from $12.7 to $16.3 million per year. Concentrated animal feeding operations (CAFOs), oil and gas production, and water management activities are expected to experience the greatest economic impacts related to shiner conservation activities, in that order of relevant impact. Impacts on small governments are not anticipated, or they are anticipated to be passed through to consumers. For example, costs to CAFOs would be expected to be passed on to consumers in the form of price changes. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for the Arkansas River shiner will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.
        Takings
        In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the Arkansas River shiner in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the Arkansas River shiner does not pose significant takings implications.

          Authority:

          The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

          Dated: July 21, 2005.
          Craig Manson,
          Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-15164 Filed 7-29-05; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [Docket No. 000627195-0195-01; I.D. 060500C]
        RIN 0648-AN94
        Fisheries of the Exclusive Economic Zone Off Alaska; Seasonal Adjustment of Closure Areas to Trawl Gear in the Central Regulatory Area of the Gulf of Alaska; Withdrawal of Proposed Rule

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:
          NMFS withdraws the July 3, 2000, proposed regulatory amendment that would implement a seasonal closure of a portion of the Central Regulatory Area of the Gulf of Alaska (GOA) to vessels using trawl gear and that would implement an inseason action to open directed fishing for pollock within 10 nautical miles of the Steller sea lion haulouts located at Gull Point and Cape Barnabas for research purposes.  The proposed rule is withdrawn because of current litigation on the existing Steller sea lion protection measures.

          DATES:
          This proposed rule is withdrawn on October 2, 2000.

          FOR FURTHER INFORMATION CONTACT:
          Thomas Pearson (907) 481-1780, fax (907) 481-1781.

        SUPPLEMENTARY INFORMATION:

         A proposed rule was published on July 3, 2000 (65 FR 41044), that would impose a ban on all trawl fishing in the Chiniak Gully region on the east side of Kodiak Island and would authorize a temporary reopening of the 10-nm zones around Gull Point and Cape Barnabas to directed fishing for pollock.  These management measures would have been in effect annually during the period of August 1st to no later than September 20 in the years 2000-2003.  Rationale for the proposed actions was provided in the preamble to the proposed rule and is not repeated here.

        On July 19, 2000, the United States District Court for the Western District of Washington issued an order that granted a motion for a partial injunction of the North Pacific groundfish fisheries. Greenpeace v. NMFS, No. C98-4922.  This motion, filed by Greenpeace, American Oceans Campaign, and the Sierra Club requested injunctive relief until NMFS issues a legally adequate biological opinion addressing the combined, overall effects of the North Pacific groundfish fisheries on Steller sea lions and their critical habitat pursuant to the Endangered Species Act (ESA).  The comprehensive biological opinion on the impacts of the groundfish fisheries of the Bering Sea and Aleutian Islands and the Gulf of Alaska on listed species (including the western population of Steller sea lions) under the ESA will not be released until October 31, 2000.  Therefore, NMFS is hereby withdrawing the proposed rule to allow time for a thorough review of the new biological opinion, when it becomes available, before reinitiating rulemaking for the pollock fishery in order to protect Steller sea lions and their habitat.

          Authority:
          16 U.S.C. 1801 et seq.

          Dated:  September 26, 2000.
          William T. Hogarth,
          Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 00-25222 Filed 9-29-00; 8:45 am]
      BILLING CODE 3510-22-S