2011-5109. Listing Endangered and Threatened Species: Correction To Codify in the Code of Federal Regulations Application of Take Prohibitions to the Upper Columbia River Steelhead Distinct Population Segment

AGENCY:

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

ACTION:

Final rule; correcting amendment.

SUMMARY:

We, NMFS, announce a correcting amendment to the Code of Federal Regulations to clarify that take prohibitions under section 4(d) of the Endangered Species Act of 1973 (ESA) apply to the Upper Columbia River steelhead distinct population segment (DPS).

DATES:

Effective March 7, 2011.

FOR FURTHER INFORMATION CONTACT:

For further information regarding this notice contact Eric Murray, NMFS, Northwest Region, 503-231-2378; or Marta Nammack, NMFS, Office of Protected Resources, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background and Correcting Amendment

We first listed the Upper Columbia River steelhead DPS under the ESA in 1997 as an endangered species (62 FR 43937; August 18, 1997). In January 2006, we conducted a status review and downgraded the DPS's status to threatened (71 FR 834; January 5, 2006). We published proposed and final rules applying ESA section 4(d) protections to the DPS on June 14, 2004 and February 1, 2006, respectively (69 FR 33102; 71 FR 5178). In 2007, a Federal district court set aside the downgraded listing; however, in 2009, the Ninth Circuit Court of Appeals reversed the district court's decision, thereby reinstating the January 2006 threatened listing and February 2006 protective regulations. On August 24, 2009, we published a Federal Register document summarizing the results of the litigation and the ESA status reviews and clarifying that the January 2006 threatened listing and February 2006 protective regulations remain in effect for the DPS (74 FR 42605).

In our August 2009 Federal Register notice, we explained that, due to a previous clerical error, the Upper Columbia River steelhead DPS had been inadvertently dropped from the enumeration of threatened species at 50 CFR 223.102(c). The August 2009 notice included a correcting amendment to reinstate the Upper Columbia River steelhead DPS to our list of threatened species at 50 CFR 223.102(c)(25). That correcting amendment, however, failed to update the cross-references at 50 CFR 223.203, which identifies the threatened anadromous fish subject to protections under ESA section 4(d). This correcting amendment remedies that oversight.

Classification

The Assistant Administrator finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment, because it is impracticable, unnecessary, and contrary to the public interest. NMFS fully intended the Upper Columbia River steelhead DPS to be subject to the ESA section 4(d) protections and expressly stated this intent in the February 2006 final rule. NMFS also previously provided public notice in the Federal Register and considered public comments on the 2006 final rule. However, due to a clerical error, the conforming change is not currently reflected in the regulations. In order to avoid regulatory confusion and ensure continuous protections and enforcement capability for the Upper Columbia River steelhead DPS, the Assistant Administrator waives the requirement for prior notice and opportunity for public comment.

For the same reasons above, the Assistant Administrator finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness and makes this rule effective immediately upon publication.

Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

It has been determined that this rule is not significant for purposes of Executive Order 12866.

References

Copies of previous Federal Register notices and related reference materials are available on the Internet at http://www.nwr.noaa.gov,, or upon request (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 223

• Endangered and threatened species
• Exports
• Imports
• Transportation

Dated: March 1, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator for Fisheries for Regulatory Programs, National Marine Fisheries Service.

For the reasons set forth in the preamble, 50 CFR part 223 is corrected by making the following correcting amendment:

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) and (b) are revised to read as follows:

§ 223.203

Anadromous fish.

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(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)(25).

(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)(25) are described in the following paragraphs (b)(1) through (b)(13):

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