Endangered and Threatened Species; Interim Rule Governing Take of the Threatened Southern Oregon/Northern California Coast Evolutionarily Significant Unit (ESU) of Coho Salmon

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