[Federal Register Volume 62, Number 138 (Friday, July 18, 1997)]
[Rules and Regulations]
[Pages 38479-38485]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-18804]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 227
[Docket No. 970424096-7155-02; I.D. 042597A]
RIN 0648-AG56
Endangered and Threatened Species; Interim Rule Governing Take of
the Threatened Southern Oregon/Northern California Coast Evolutionarily
Significant Unit (ESU) of Coho Salmon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim rule; request for comments.
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SUMMARY: By a rule published on May 6, 1997, NMFS, on behalf of the
Secretary of Commerce (Secretary), determined to list as threatened the
Southern Oregon/Northern California Coast (SONCC) ESU of coho salmon
(Oncorhynchus kisutch). Under section 4(d) of the Endangered Species
Act (ESA), the Secretary is required to adopt such regulations as he
deems necessary and advisable for the conservation of species listed as
threatened. Such regulations may include application of the
prohibitions contained in section 9(a) of the ESA, which apply to
endangered species. In this interim rule, NMFS imposes the section 9(a)
prohibitions for endangered species, except with respect to certain
benign and beneficial actions in Oregon and California, and specified
actions taken consistent with the Oregon Coastal Salmon Restoration
Initiative (OCSRI) and implemented consistent with the April 1997
Memorandum of Agreement (MOA) between NMFS and the Governor of Oregon.
The Federal Register document containing the final listing
determination describes the relevant details of the OCSRI and the
implementing MOA.
DATES: Comments on this rule must be received by September 16, 1997.
This interim rule is effective August 18, 1997.
ADDRESSES: Comments should be sent to Protected Species Program,
Environmental and Technical Services Division, NMFS, Northwest Region,
525 NE Oregon Street, Suite 500, Portland, OR 97232-2737.
FOR FURTHER INFORMATION CONTACT: Garth Griffin at 503-231-2005; Craig
Wingert at 310-980-4021; or Joe Blum at 301-713-1401.
SUPPLEMENTARY INFORMATION:
Background
The final rule determining to list the SONCC coho salmon ESU as
threatened, published on May 6, 1997 (62 FR 24588), describes the
current range and status of this ESU, previous Federal actions on this
species, a summary of the comments and recommendations received in
response to NMFS' proposal to list the ESU, descriptions of the factors
affecting its continued existence, the reasons why critical habitat is
not being proposed, and the conservation measures recommended by NMFS
or otherwise available to this ESU.
Section 4(d) of the ESA provides that, whenever a species is listed
as a threatened species, the Secretary shall issue such regulations as
he deems necessary and advisable to provide for the conservation of the
species, including any or all of the prohibitions applicable to
endangered species under section 9(a). Those section 9(a) prohibitions,
in part, make it illegal for any person subject to the jurisdiction of
the United States to take (including harass, harm, pursue, hunt, shoot,
wound, kill, trap, or collect; or to attempt any of these), import or
export, ship in interstate commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any wildlife species listed as endangered. It is also illegal to
possess, sell, deliver, carry, transport, or ship any such wildlife
that has been taken illegally.
When NMFS first proposed the ESU for listing as threatened (60 FR
38011, July 25, 1995), it also proposed to apply the prohibitions of
section 9(a) to this species. NMFS continues to find that the
prohibitions for endangered species are generally necessary and
advisable for conservation of the species. NMFS further finds that take
of the SONCC coho salmon should not be prohibited when it results from
a specific subset of activities adequately regulated by Federal, state,
and local governments. Accordingly, this interim rule revises the
earlier proposal by providing certain additional exceptions.
NMFS has chosen to make this rule interim rather than final in
order to give the public the opportunity to comment on the additional
exceptions that are included in the new Sec. 227.22. NMFS will consider
all comments submitted during the comment period before issuing a final
rule.
Interim Take Exceptions in Oregon
Following NMFS' proposal to list Oregon Coast and SONCC coho
salmon, the State of Oregon initiated a major effort to address the
factors for decline of these at-risk stocks. That effort culminated in
the adoption by Oregon of the OCSRI. The OCSRI contains significant
improvements in hatchery management and in harvest management. Previous
harvest rate reductions on Oregon coastal coho, as refined and
incorporated in the OCSRI, are expected to result in an increase in the
near-term stability of the populations. The OCSRI also includes a broad
array of state agency and other measures affecting habitat.
NMFS sought to ensure that the adaptive management program
contained in the OCSRI would rapidly lead to the ultimate
implementation of measures and rules that NMFS would consider adequate
in these areas. Accordingly, NMFS entered into an MOA with the Governor
of Oregon in April 1997 to clarify how NMFS and Oregon will work
together toward implementation, necessary adjustments, and adaptive
changes to the OCSRI. (Copies of the MOA are available from NMFS; see
ADDRESSES.)
Based on a review and assessment of the OCSRI and MOA, NMFS has
determined that it is unnecessary to prohibit certain benign and
beneficial actions in Oregon, as well as certain measures provided
under the OCSRI and implemented in accordance with the MOA. The actions
NMFS believes do not require prohibition are related to harvest carried
out in accordance with
[[Page 38480]]
the OCSRI, artificial production carried out in accordance with the
OCSRI, research and monitoring, and habitat restoration. These
exceptions do not exempt actions funded, authorized, or carried out by
Federal agencies, which must comply with section 7 and other applicable
provisions of the ESA.
With respect to harvest, the OCSRI provides a comprehensive package
of measures that reduce harvest rates to an average harvest rate of
less than 15 percent. Harvest rates would be permitted to increase only
under carefully specified conditions characterized by significant
increases in escapement and productivity and in no case would exceed 35
percent.
With respect to artificial production, Oregon production is reduced
from a high of 6.4 million smolts in 1990 to 2.3 million by 1998. The
OCSRI also specifies that hatchery strays may not exceed 10 percent of
natural spawning. In addition, the take of naturally produced
broodstock for hatchery production will be counted against the total
allocation of fish for harvest and is only allowed if it is not deemed
detrimental to the recovery of the species. Incorporation of naturally
produced coho into the hatchery broodstock will minimize genetic
divergence between the two populations, and will also preserve hatchery
populations as a ``safety net'' for assisting the natural population in
the event of a serious decline.
With respect to the research and monitoring activities consistent
with the OCSRI, NMFS finds that these activities are vital to improving
understanding of risks facing salmon in this ESU and to judge the
effectiveness of conservation measures. They also provide critical
information to the adaptive management approach of the OCSRI, allowing
revision of habitat-related actions to ensure best management in the
future.
With respect to habitat measures, NMFS finds that certain habitat
restoration activities are likely to assist in conserving coho. NMFS is
aware that many projects, particularly those that are part of the
Southwest Oregon Salmon Restoration Initiative, already have been
developed and, in some cases, funded. NMFS determines it is advisable
that incidental take associated with restoration activities that are
part of the Southwest Oregon Salmon Restoration Initiative not be
prohibited during the 1997 field season.
Projects developed, prioritized, and carried out based on at least
a watershed scale assessment and action plan, and, where possible, a
sub-basin or basin scale, are likely to be the most beneficial. The
interim rule therefore provides that section 9 take prohibitions will
not apply to activities conducted pursuant to watershed action plans or
watershed restoration plans that are consistent with NMFS-approved
guidelines and are approved by the appropriate state agency and NMFS.
To approve a plan, NMFS must concur that the plan is consistent with
those guidelines.
Until a watershed action plan for the watershed in which an
activity is proposed has been approved, or for 2 years following the
effective date of this interim rule (whichever comes first), an
individual habitat restoration activity that is consistent with state
guidelines that meet the standards of 50 CFR 222.22 is not prohibited.
Guidelines for approving individual activities and plans will be
developed by Oregon and NMFS. After a watershed plan has been approved,
only activities conducted pursuant to the plan are not subject to the
section 9 take prohibitions. If no plan has been approved for a
watershed after 2 years following the effective date of this interim
rule, the general section 9 take prohibitions of this interim rule
would apply to individual restoration activities the same as to all
other habitat-affecting activities.
Interim Take Exceptions in California
NMFS has determined that it is unnecessary to prohibit specific
benign and beneficial actions carried out by state, tribal, and local
governments in the California portion of the SONCC coho salmon ESU.
These include: (1) Certain fishery management activities conducted by
the State, (2) fisheries research and monitoring activities permitted
or conducted by the State, and (3) certain State, local, tribal, and
private habitat restoration activities. These exceptions do not exempt
actions funded, authorized, or carried out by Federal agencies, which
must comply with section 7 and other applicable provisions of the ESA.
The State of California has jurisdiction over fisheries within 3
miles (approximately 5 km) of its coast. The California Fish and Game
Commission (CFGC) and the California Department of Fish and Game (CDFG)
are responsible for establishing the State's sport and commercial ocean
salmon fishing regulations, respectively, within 3 miles (approximately
5 km) of the coast each year. Typically, the CFGC and CDFG conform the
State's ocean salmon fishing regulations to those adopted by NMFS for
the Federal Exclusive Economic Zone (EEZ). NMFS has determined that it
is advisable that incidental take of coho salmon associated with these
State fisheries management activities not be prohibited provided the
regulations issued by the State are consistent with the ocean salmon
fishing regulations implemented by NMFS for the Federal EEZ.
In carrying out its fisheries management responsibilities in
California, the CDFG conducts or permits a wide range of research and
monitoring studies on various fisheries, including studies on coho
salmon which occur in the California portion of the SONCC ESU. NMFS
finds that these activities are vital for improving our understanding
of the status and risks facing coho salmon and other species in this
ESU and will provide critical information for assessing the
effectiveness of current and future management practices.
There are numerous ongoing local habitat restoration and watershed
planning efforts that are expected to contribute to the conservation of
coho salmon in the California portion of the SONCC coho salmon ESU.
These include, but are not limited to, restoration efforts in the Scott
River watershed, the Shasta River watershed, the South Fork Trinity
Watershed, and the Mattole River. In addition, there are county-based
Resource Conservation Districts throughout the range of coho in the
California portion of this ESU that are providing a focus for
agricultural interests and local conservation groups to develop and
prioritize habitat restoration plans. NMFS believes that certain
activities in California are likely to assist in conserving coho
salmon, provided that California puts in place a program that assures
technically supported watershed assessments and coordinated long-term
monitoring strategies for watershed protection plans and activities.
This interim rule, therefore, does not apply section 9 prohibitions to
activities conducted in accordance with such a program and an approved
watershed plan or guidelines, under similar conditions as described in
the section ``Interim Take Exceptions in Oregon,'' above.
Coho salmon in the SONCC ESU are currently harvested by the Yurok
and Hoopa Indian tribes, incidental to larger subsistence fisheries for
chinook salmon in the Klamath and Trinity Rivers. These fisheries are
conducted in accordance with the tribes' existing federally reserved
fishing rights. Harvest management practiced by both tribes is
conservative, focuses on the harvest of chinook salmon stocks, and has
had limited impacts on coho salmon in the SONCC ESU. In recognition of
the tribes' federally reserved fishing rights, special status, and
other tribal conservation programs, NMFS intends
[[Page 38481]]
to work with the tribal governments in California to identify an
appropriate mechanism for authorizing the incidental take of coho
salmon in these chinook fisheries. NMFS may consider promulgation of a
separate 4(d) regulation, consistent with the conservation of SONCC
coho salmon, to achieve this objective.
The prohibitions of section 9 will not apply to activities
specified in an application for a permit for scientific purposes or to
enhance the propagation or survival of the species, provided that an
application has been received by the Assistant Administrator for
Fisheries, NOAA (AA), by September 16, 1997. This exception will cease
upon the AA's rejection of the application as insufficient, upon
issuance or denial of a permit, or on January 20, 1998, whichever
occurs earliest.
Take Guidance
NMFS and the U.S. Fish and Wildlife Service published in the
Federal Register on July 1, 1994 (59 FR 34272), a policy that NMFS
shall identify, to the maximum extent practicable at the time a species
is listed, those activities that would or would not constitute a
violation of section 9 of the ESA. The intent of this policy is to
increase public awareness of the effect of a listing on proposed and
on-going activities within the species' range. NMFS believes that,
based on the best available information, the following actions will not
result in a violation of this interim rule:
1. Possession of coho salmon from the Southern Oregon/Northern
California Coast ESU acquired lawfully by permit issued by NMFS
pursuant to section 10 of the ESA, or by the terms of an incidental
take statement pursuant to section 7 of the ESA.
2. Federally funded or approved projects that involve activities
such as silviculture, grazing, mining, road construction, dam
construction and operation, discharge of fill material, stream
channelization or diversion for which section 7 consultation has been
completed, and when such activity is conducted in accordance with any
terms and conditions provided by NMFS in an incidental take statement
accompanied by a biological opinion pursuant to section 7 of the ESA.
Activities that NMFS believes could potentially harm, injure or
kill coho salmon in the Southern Oregon/Northern California Coast ESU
and result in a violation of this rule include, but are not limited to:
1. Land-use activities that adversely affect coho salmon habitat in
this ESU (e.g., logging, grazing, farming, road construction in
riparian areas, and areas susceptible to mass wasting and surface
erosion);
2. Except for the habitat alteration activities that are excepted
from take prohibitions in this rule, destruction or alteration of coho
salmon habitat in this ESU, such as removal of large woody debris and
``sinker logs'' or riparian shade canopy, dredging, discharge of fill
material, draining, ditching, diverting, blocking, or altering stream
channels or surface or ground water flow;
3. Discharges or dumping of toxic chemicals or other pollutants
(e.g., sewage, oil, gasoline) into waters or riparian areas supporting
the listed coho salmon;
4. Violation of discharge permits;
5. Pesticide applications;
6. Interstate and foreign commerce of coho salmon from the SONCC
coho ESU and import/export of coho salmon from this ESU without an ESA
permit, unless the fish were harvested pursuant to this rule;
7. Except as provided in this interim rule, collecting or handling
of coho salmon from this ESU. Permits to conduct these activities are
available for purposes of scientific research or to enhance the
propagation or survival of the species;
8. Introduction of non-native species likely to prey on coho salmon
in this ESU or displace them from their habitat.
These lists are not exhaustive. They are intended to provide some
examples of the types of activities that might or might not be
considered by NMFS as constituting a take of SONCC ESU coho salmon
under the ESA and its regulations. Questions regarding whether specific
activities will constitute a violation of this rule, and general
inquiries regarding prohibitions and permits, should be directed to
NMFS (see ADDRESSES).
Classification
For the following reasons, the Assistant General Counsel for
Legislation and Regulation of the U.S. Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration, pursuant to the Regulatory Flexibility Act, 5 U.S.C.
601 et seq., that this rule will not have a significant economic impact
on a substantial number of small entities.
NMFS canvassed business activity by economic sector (SIC codes) in
Curry, Jackson, and Josephine counties in Oregon, and Del Norte,
Humboldt, Siskiyou, and Mendocino counties in California. NMFS
identified fishing, agriculture, sand and gravel mining, construction,
and timber harvest as the economic sectors likely to be affected by the
prohibitions of this interim 4(d) rule. These sectors are all
relatively heavily regulated at Federal and/or state levels independent
of this action.
For each sector, NMFS estimated the number of small businesses
within the geographic range of this ESU, the approximate number of
employees in that sector, and the annual revenues of those businesses.
NMFS then used available data to identify what, if any, incremental
economic impacts the 4(d) prohibitions might create over and above
impacts attributable to other state or Federal controls, including ESA
Sec. 7 consultations. In the Commercial and Recreational Fishing
sector, existing
ocean salmon fishing regulations that control harvest of SONCC coho
salmon prohibit retention of coho and limit any incidental take of coho
resulting from other fisheries to between 10 and 13 percent. Because
NMFS has determined that these restrictions are sufficient to avoid
jeopardizing coho in the SONCC ESU, the interim 4(d) rule excepts ocean
fishing activities conducted under these regulations from take
prohibitions. Similarly, the interim rule excepts ocean, bay, and
freshwater fisheries under Oregon's jurisdiction from take
prohibitions, so long as the activity complies with agreed-upon Oregon
regulations. Hence the rule will not impose any additional burdens on
small entities associated with commercial or recreational ocean harvest
or upon inland recreational fishing in Oregon.
Existing California regulations for bay and freshwater coho
fisheries are not as stringent and do not warrant an exception.
However, California estimates the contribution of coho salmon to in-
river sport catch in the California portion of the ESU to be small. The
impacts of the rule will be associated with ensuring that coho salmon
are not targeted in any fishing efforts and that any coho salmon that
are incidentally hooked are released. NMFS does not expect the take
prohibitions to result in any fishery closures in California's inland
waters or a decrease in fishing effort. Consequently, the interim 4(d)
rule will cause very little, if any, loss of revenue for small entities
involved in inland recreational fishing activities in the California
range of the SONCC coho salmon ESU.
NMFS has determined there are approximately 5,000 agriculture
businesses within the geographic area of the ESU, with a combined
annual revenue of approximately $275 million. All entities are assumed
for this analysis to be small. The majority of agricultural activities
that might result in take of SONCC coho are those affecting water
[[Page 38482]]
quality, such as sediment from cultivation or livestock movements on
the banks or in the beds of streams, temperature increases from
clearing vegetation, confined animal feeding operations, overgrazing,
and the like. Unscreened water diversions and reduction of flows
through irrigation could also result in take. To the extent an
agricultural activity causes water quality impairments, that activity
is subject to the water pollution control requirements of the Clean
Water Act (CWA), as administered by the states. For example, in Oregon,
Agricultural Water Quality Management plans are being developed under
State law for all water quality impaired stream segments and will
result in agricultural practices that do not ``take'' through impairing
water quality. Similar regulation of agricultural activities in
California fall under the Regional Water Quality Control Board and
other entities associated with the State's Non-point Source Management
Plan. Therefore, any additional costs over and above those imposed by
existing law with respect to water quality related activities are
likely to be quite small.
However, it is unlikely that these water quality plans will
completely protect all important physical habitat conditions from
further degradation, particularly with respect to reductions in
remaining riparian vegetation. Therefore, NMFS expects some loss of
productivity where an agricultural operation ceases to cultivate or
remove vegetation in a riparian area because of this interim rule. Even
assuming that all riparian agricultural activity were to be halted
within 50 ft of coho streams and that none of that restriction were
attributed to water quality requirements (unrealistically conservative
assumptions), this would take less than 1 percent of the agricultural
land within the ESUs out of production.
To avoid taking juvenile coho, farmers who irrigate will have to
have proper screening of irrigation pumps or diversions. A relatively
high proportion of diversions in Oregon are already properly screened
in accord with existing state requirements. The average cost of
screening is about $1,000 per screen, and the one-time total cost would
be in the range of 2 percent of an estimated ``low end'' of annual farm
income. Oregon has a screening program that defrays much of the cost of
screen installation and, in any case, this capital cost does not
represent a significant portion of capital available to agricultural
operations, considering external financing capabilities and cost share
opportunities.
Thus, the two major areas in which agricultural activity may need
adjustment to comply with the 4(d) prohibitions will result in economic
impact in the 3-percent range of annual revenue, calculated on the most
conservative of assumptions. Even if there are some additional
circumstances where farm practices need adjustment (such as irrigation
alterations or exclusion of livestock from a redd area not already
dealt with for water quality reasons), the incremental costs and
revenue loss attributable to the interim 4(d) rule would be well below
5 percent of annual gross revenues for the most affected entities.
A total of eight businesses within the ESU were identified as
mining sand and gravel, some or all of which likely involve in-water
work and hence potentially affecting listed coho. These businesses
employ substantially fewer than 200 people in total, with an estimated
gross production value in the range of $10 million, and most are small
entities. Gravel, sand, or other removal activities in navigable waters
are regulated by the U.S. Army Corps of Engineers (Corps) under section
10 of the Rivers and Harbors Act. NMFS' consultations with the Corps
triggered by the listing of the SONCC ESU will set the baseline for
impacts of most in-water mining activities in the lower reaches of
stream systems at a level that will not result in take, and this rule
will not result in any additional lost revenue in those locations.
Those few entities that may be operating in the upper reaches of a
river system may sustain economic impacts, but the extent of those
impacts cannot be known until assessments of annual gravel recruitment
and patterns of deposition is completed for each river system so that
limits of permissible removal may be set for any particular site. That
information dictates reduction in volume removed or changes in timing
or methods, and the rule could cause loss of revenue or increased cost
to small business (for instance in locating new sources of gravel) for
one or more of the eight small entities engaged in gravel removal, but
the extent of that impact cannot be projected at this time. NMFS seeks
comments and/or data that can assist in making projections.
Specific construction categories that might be affected by the
interim 4(d) regulation were examined, including highway and street
construction, heavy construction, concrete work, and excavation work.
Approximately 200 businesses within the ESU were primarily engaged in
these categories, although only some of them would be affected by the
rule. These businesses employ just over 1,000 people, with annual
revenues under $140 million. Over 90 percent of these construction
businesses within the ESU were found to be small entities.
Construction activities likely to be affected include construction
of irrigation withdrawal structures, construction of docks and piers,
fill in wetlands for roads, private residences or commercial
development, and installation of industrial and municipal wastewater
outfalls. The Corps regulates in-water fill activities under Sec. 404
of the Clean Water Act (regardless of amount) and impacts to navigation
(docks, etc.) under Sec. 10 of the Rivers and Harbors Act. Any of the
above actions likely to affect coho in the SONCC ESU will be examined
during Corps consultation with NMFS under ESA Sec. 7, through which any
changes in the activity necessary to avoid jeopardizing the coho will
be required. Hence, the rule is unlikely to additionally affect
businesses engaged in any of these in-water activities.
Within the ESU, between four and five hundred businesses are
engaged in either forestry or logging. These firms employ 3,000 to
4,000 people, with total revenue estimated at approximately $700
million. Approximately 80 percent of the forestry businesses and 100
percent of the logging businesses are considered small entities under
SBA classification guidelines. The interim 4(d) rule could affect
logging operations and timber revenues by limiting the extent of
harvest activity in riparian areas in order to protect water quality,
protect sources of large woody debris, etc. All forest activity on
Federal lands, which comprise 53 percent of the land in this ESU, is
conducted under the Northwest Forest Plan, which has already been
determined adequate to protect coho salmon habitat. Therefore, logging
on, or timber availability from, Federal forests will not be affected
by the rule.
Approximately 1.9 million acres in this ESU are private non-
industrial forest lands, which can be equated generally with small
businesses. Harvest on these lands is subject to state regulation of
forest practices, which require some degree of buffer protection. The
Oregon Forest Practice rules set riparian management areas (RMA)
ranging up to 100 ft in width, prohibit removal of any trees in the
first 20 ft of the riparian area on large and medium size streams, and
require retention of varying additional amounts of timber in the
remaining RMA. The California Forest Practice Rules set protective
zones ranging up to 150 ft in width, with a similarly complex set of
timber
[[Page 38483]]
retention requirements depending on stream size, slope, etc. NMFS does
not consider either of these state regulatory schemes fully adequate to
protect coho, and, therefore, would expect the 4(d) rule to result in
some curtailment of harvest on lands owned by small entities over and
above the impacts of state regulation.
For purposes of estimating a maximum impact small entity timber
harvest operations might experience from the rule, this analysis
assumes a uniform, entirely unmanaged and unharvested (e.g. ``no
touch'') buffer of 150 ft (the maximum managed width under existing
California regulation). Based on the ratio of stream miles (8,500) to
total forest acres (11 million) in this ESU, that buffer would
constitute an average of 2.4 percent of the total forest acreage.
Obviously, not all forest lands will be adjacent to streams that
contribute to coho habitat, and also some landholdings will be affected
above the average amount. There also could be some incremental impacts
related to non fish-bearing streams over and above what would result
from water quality requirements and the Northwest Forest Plan, but
these are speculative and cannot be quantified. Absent any data to
identify these ratios or other impacts, NMFS assumes that the land
owners most affected have double the average riparian frontage. The
maximum reduction in timber harvest with that assumption would be below
5 percent, with the impacts of existing state regulation subtracted
out. That incremental impact may be further lessened because of
tightened harvest regulations needed to meet Clean Water Act concerns.
Logging companies would presumably be affected to an even lesser
extent, since they operate on Federal as well as private lands, and
would not be limited to harvest operations on the most affected private
lands. Thus, the interim rule may have an incremental economic impact
ranging from zero to 5 percent on small timber owning entities and
logging companies.
To sum up, impacts of this interim 4(d) rule fall below NMFS'
threshold criteria for determining that a rule will cause significant
economic impact on a substantial number of small entities. These
standards include: (a) Five percent loss of revenue for twenty percent
of the small entities; (b) ten percent increase in compliance costs for
twenty percent of the small entities; (c) two percent of the small
entities cease operations; or (d) capital costs of compliance are a
significant portion of capital available considering internal cash flow
and external financing capabilities.
Of the several thousand small entities operating in sectors that
may be impacted by the interim 4(d) rule, estimates of revenue
reduction on the entities most seriously impacted by the rule range
from zero (construction and fishing businesses) to under 5 percent
(forestry). In the sand and gravel mining sector, it is not possible to
project the range of impact, but fewer than eight entities would
potentially be affected. Hence, of all small entities potentially
substantially impacted by the interim 4(d) rule prohibitions, far fewer
than 20 percent have any potential for a revenue reduction exceeding 5
percent. Any impacts on small governments will likely fall within the
impacts in one or more of these same categories (e.g., road
construction).
The interim 4(d) rule places no reporting or recordkeeping
compliance costs on small entities. The capital cost of potential
irrigation screening should not represent a significant portion of
capital available, especially recognizing existing state programs to
defray some of those costs. NMFS has identified no entities likely to
be forced to cease business operations as a result of this rule.
This interim rule has been determined to be not significant for
purposes of Executive Order 12866.
This interim rule contains a collection-of-information requirement
subject to the provisions of the Paperwork Reduction Act which has been
approved by the Office of Management and Budget under control Number
0648-0230. Public reporting burden for the approval of Watershed Plans
under exceptions 227.22(e) and (f) is estimated to average less than 30
hours per response, including the time for formatting, copying,
preparing transmittal letter, and responding to any inquiries.
Comments are invited on: (a) Whether the proposed collection of
information to provide these exceptions (without which restoration
actions would require a section 10 permit) is necessary for the proper
performance of the functions of the agency, including whether the
information shall have practical utility; (b) the accuracy of the
agency's estimate of the burden of the proposed collection of
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; and (d) ways to minimize the burden of
the collection of information on respondents, including through the use
of automated collection techniques or other forms of information
technology. Send comments on these or any other aspects of the
collection of information to NMFS (see ADDRESSES) and to OMB at the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
National Environmental Policy Act
NMFS will comply with the National Environmental Policy Act (NEPA)
of 1969 in implementing the provisions of this interim rule, completing
NEPA requirements before the final rule is issued.
List of Subjects in 50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
Dated: July 9, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 227 is amended
as follows:
PART 227--THREATENED FISH AND WILDLIFE
1. The authority citation for part 227 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also
issued under 16 U.S.C. 1361 et seq.
2. In subpart C, Sec. 227.21 is revised to read as follows:
Sec. 227.21 Threatened salmon.
(a) Prohibitions. The prohibitions of section 9 of the ESA (16
U.S.C. 1538) relating to endangered species apply to the threatened
species of salmon listed in Sec. 227.4 (f), (g), (h), and (i), except
as provided in paragraph (b) of this section. These prohibitions shall
become effective for the threatened species of salmon listed in
Sec. 227.4(i) on August 18, 1997.
(b) Exceptions. (1) The exceptions of section 10 of the ESA (16
U.S.C. 1539) and other exceptions under the Act relating to endangered
species, including regulations implementing such exceptions, also apply
to the threatened species of salmon listed in Sec. 227.4 (f), (g), (h),
and (i). This section supersedes other restrictions on the
applicability of parts 217 and 222 of this chapter, including, but not
limited to,
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the restrictions specified in Secs. 217.2 through 222.22(a) of this
chapter with respect to the species identified in Sec. 227.21(a).
(2) The prohibitions of paragraph (a) of this section relating to
threatened species of salmon listed in Sec. 227.4(i) do not apply to
activities specified in an application for a permit for scientific
purposes or to enhance the propagation or survival of the species,
provided that the application has been received by the Assistant
Administrator for Fisheries, NOAA (AA), by September 16, 1997. This
exception ceases upon the AA's rejection of the application as
insufficient, upon issuance or denial of a permit, or on Janury 20,
1998 whichever occurs earliest.
(3) The prohibitions of paragraph (a) of this section relating to
threatened species of salmon listed in Sec. 227.4(i) do not apply to
any employee or agent of the NMFS, any other Federal land management
agency, or the Oregon Department of Fish and Wildlife (ODFW) or the
California Department of Fish and Game (CDFG), who is designated by
his/her agency for such purposes, when that employee or agent, acting
in the course of his/her official duties, takes a coho salmon in
California or Oregon without a permit if such action is necessary to:
(1) Aid a sick, injured, or stranded individual, (2) dispose of a dead
individual, or (3) salvage a dead individual, which may be useful for
scientific study.
3. In subpart C, section 227.22 is added to read as follows:
Sec. 227.22 Southern Oregon/Northern California Coast (SONCC) coho
salmon.
The following exceptions to the prohibitions of section 227.21(a)
apply to SONCC coho salmon:
(a) Take of SONCC coho salmon within three miles (approximately 5
km) of the coast, and in bay, estuarine or freshwater fisheries
regulated under the sole authority of the State of Oregon is not
prohibited, if the take results from a fisheries harvest program
conducted in accordance with the Oregon Coastal Salmon Restoration
Initiative of March 1997 (OCSRI), provided that NMFS has issued written
concurrence that the fisheries regulations are consistent with the
OCSRI using information provided through the April 1997 Memorandum of
Agreement (MOA) between the State of Oregon and NMFS.
(b) Incidental take of SONCC coho salmon in ocean fisheries within
3 miles (approximately 5 km) of the coast that are regulated under the
sole authority of the State of California is not prohibited, provided
that the ocean salmon fishing regulations adopted by the California
Fish and Game Commission and CDFG for recreational and commercial
fisheries within 3 miles (approximately 5 km) of the coast are
consistent with the Pacific Fishery Management Council's Fishery
Management Plan for Ocean Salmon Fisheries and the annual ocean salmon
fishing regulations issued by the Secretary of Commerce for the Federal
EEZ.
(c) Take of SONCC coho salmon in a hatchery program regulated under
the sole authority of the State of Oregon is not prohibited, if the
take results from a hatchery program conducted in accordance with the
OCSRI, and the take is counted against the total allocation of harvest-
related mortality as specified in the OCSRI, provided that NMFS has
issued written concurrence that the hatchery program is consistent with
the OCSRI including the hatchery and genetic management plan adopted
pursuant to the OCSRI, using information provided through the MOA.
(d) Take of SONCC coho salmon in fisheries research and monitoring
activities conducted in California and Oregon is not prohibited
provided that:
(1) Research and monitoring involving directed take of coho salmon
is conducted by CDFG personnel (in California) and ODFW personnel (in
Oregon).
(2) The CDFG and ODFW, respectively, provide NMFS with a list of
all research and monitoring activities involving coho salmon directed
take planned for the coming year for NMFS' review and approval,
including an estimate of the total directed 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.
(3) The CDFG and ODFW, respectively, annually provide NMFS with the
results of research and monitoring studies directed at SONCC coho
salmon, including a report of the directed take resulting from the
studies.
(4) The CDFG and ODFW, respectively, provide NMFS annually with a
list of all research and monitoring studies each permits that may
incidentally take listed coho salmon during the coming year and report
the level of incidental take of listed coho salmon from the previous
year's research and monitoring activities, for NMFS' review and
approval.
(5) The research and monitoring activities do not include the use
of electrofishing in any body of water known or suspected to contain
coho salmon.
(e) Incidental take of the SONCC coho salmon in Oregon that results
from a habitat restoration activity, as defined in paragraph (4), is
not prohibited, provided that:
(1) The activity is conducted pursuant to a watershed action or
restoration plan that the state has affirmed in writing is consistent
with state watershed plan guidelines that NMFS has found meet the
standards set forth in 50 CFR 222.22(c), and NMFS concurs in writing
that the plan is consistent with those guidelines; or
(2) Until a watershed action or restoration plan is approved by
both Oregon and NMFS as described in paragraph (e)(1) of this section,
or until August 18, 1999, whichever occurs first, the ODFW has made a
written finding that the activity is consistent with state restoration
activity guidelines that NMFS has agreed in writing meet the standards
set forth in 50 CFR 222.22(c); or January 19, 1998.
(3) Until January 20, 1998, the activity is any restoration action
listed in the Southwest Oregon Salmon Restoration Initiative (OCSRI ch.
17F), provided that any action involving in-water work receives written
approval from ODFW as to timing, scope, and methods.
(4) ``Habitat restoration activity'' is defined as an activity that
has the sole objective of restoring natural aquatic or riparian habitat
conditions or processes.
(f) Incidental take of the SONCC coho salmon in California that
results from a habitat restoration activity, as defined in paragraph
(3) of this section, is not prohibited, provided that California has a
program in effect that NMFS finds will assure technically supported
watershed assessments and coordinated long-term monitoring strategies
for watershed protection plans and activities and:
(1) The activity is conducted pursuant to a watershed protection
plan that CDFG has affirmed in writing is consistent with state
watershed plan guidelines for California's Watershed Protection Program
that NMFS has found meet the standards set forth in 50 CFR 222.22(c),
and NMFS concurs in writing that the plan is consistent with those
guidelines; or
(2) Until a watershed protection or restoration plan is certified
by the State of California and NMFS as described in paragraph (f)(1) of
this section, or until August 18, 1999, whichever occurs first, NMFS
has made a written finding that the activity is consistent with State
of California conservation guidelines that NMFS has previously found
meet the standards set forth in 50 CFR 222.22(c).
(3) ``Habitat restoration activity'' is defined as an activity that
has the sole
[[Page 38485]]
objective of restoring natural aquatic or riparian habitat conditions
or processes.
[FR Doc. 97-18804 Filed 7-17-97; 8:45 am]
BILLING CODE 3510-22-F
