[Federal Register Volume 64, Number 118 (Monday, June 21, 1999)]
[Proposed Rules]
[Pages 33037-33040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15721]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 990614161-9161-01; I.D. 061199B]


Listing Endangered and Threatened Species and Designating 
Critical Habitat: Petition To List Eighteen Species of Marine Fishes in 
Puget Sound, Washington

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

ACTION: Notice of finding; request for information and comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a petition to list 18 species of Puget Sound 
marine fishes and to designate critical habitat under the Endangered 
Species Act (ESA). The petitioned fishes include 1 herring, 1 cod, 1 
hake, 1 pollock, and 14 rockfish species. NMFS determines that the 
petition presents substantial scientific information indicating that 
the petitioned action may be warranted for seven of the species: 
Pacific herring, Pacific cod, Pacific hake, walleye pollock, brown 
rockfish, copper rockfish, and quillback rockfish. NMFS solicits 
information and comments pertaining to these seven species in Puget 
Sound and seeks suggestions from the public for peer reviewers for the 
agency's review of the petitioned action.

DATES: Information and comments on the action must be received by 
September 20, 1999.

ADDRESSES: Information and comments on this action should be submitted 
to Chief, Protected Resources Division, NMFS, 525 NE Oregon Street - 
Suite 500, Portland, OR 97232.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, NMFS, Northwest Region 
(503) 231-2005, or Marta Nammack, NMFS, Office of Protected Resources 
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On February 8, 1999, the Secretary of Commerce (Secretary) received 
a petition from Sam Wright of Olympia, Washington, to list and 
designate critical habitat for 18 species of marine fishes in Puget 
Sound, Washington. The following are the species petitioned: Pacific 
herring (Clupea pallasi), Pacific cod (Gadus macrocephalus), Pacific 
hake (Aka Pacific whiting) (Merluccius productus), walleye pollock 
(Theragra chalcogramma), brown rockfish (Sebastes auriculatus), copper 
rockfish (S. caurinus), greenstripe rockfish (S. elongatus), widow 
rockfish (S. entomelas), yellowtail rockfish (S. flavidus), quillback 
rockfish (S. maliger), black rockfish (S. melanops), blue rockfish (S. 
mystinus), China rockfish (S. nebulosus), tiger rockfish (S. 
nigrocinctus), bocaccio (S. paucispinis), canary rockfish (S. 
pinniger), redstripe rockfish (S. proriger), and yelloweye rockfish (S. 
ruberrimus). Although the petitioner identified Pacific herring as ``C. 
harengus pallasi,'' NMFS has followed the naming convention of Robins 
et al. (1991) which considers C. harengus (Atlantic herring) and C. 
pallasi as separate species. Therefore, NMFS considered only the latter 
as the petitioned species. Copies of this petition are available from 
NMFS (See ADDRESSES).

Analysis of Petition

    Section 4(b)(3) of the ESA contains provisions concerning petitions 
from interested persons requesting the Secretary to list species under 
the ESA (16 U.S.C. 1533(b)(3)(A)). Section 4(b)(3)(A) requires that, to 
the maximum extent practicable, within 90 days after receiving such a 
petition, the Secretary make a finding whether the petition presents 
substantial scientific information indicating that the petitioned 
action may be warranted. NMFS' ESA implementing regulations define 
``substantial information'' as the

[[Page 33038]]

amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating a petitioned action, the Secretary considers several 
factors, including whether the petition contains a detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species (50 CFR. 
424.14(b)(2)(ii)). In addition, the Secretary considers whether the 
petition provides information regarding the status of the species over 
all or a significant portion of its range (50 CFR. 424.14(b)(2)(iii).
    Under the ESA, a listing determination can address a species, 
subspecies, or distinct population segment (DPS) of a species (16 
U.S.C. 1532(15)). The petitioner requested listings for ``species/
populations' or evolutionary[sic] significant units'' in Puget Sound. 
The term Evolutionarily Significant Unit or ``ESU'' is currently 
defined only for DPSs of Pacific salmonids (see 56 FR 58612, November 
20, 1991). For these petitioned species, NMFS would instead rely on the 
DPS framework described in a NMFS/U.S. Fish and Wildlife Service policy 
regarding the identification of distinct vertebrate population segments 
(61 FR 4722, February 7, 1996). Since the petitioner focused on stocks 
within Puget Sound (rather than on the entire species or subspecies), 
NMFS considered the petition in the context of defining DPSs in this 
area that may warrant listing under the ESA.
    For each of the petitioned species, NMFS evaluated whether the 
information provided or cited in the petition met the ESA's standard 
for ``substantial information.'' The agency also reviewed other 
information readily available to NMFS scientists (i.e., currently 
within agency files) and consulted with state and tribal experts on 
these species to determine whether there was general agreement on 
issues related to the uniqueness, distribution, abundance, and threats 
to the petitioned species/populations. With respect to uniqueness, NMFS 
assessed whether the petitioner's and otherwise available information 
might support the identification of DPSs that may warrant listing under 
the ESA.
    Information submitted by the petitioner varied considerably for 
each of the 18 species, and the level of detail was generally the 
greatest for the herring and cod species. In addition, some of the 
information was largely speculative or not directly relevant to the 
petitioner's request. Hence, the amount and quality of information in 
the petition played a major role in NMFS' decision on whether to 
initiate a status review for a particular species.
    For all of the petitioned species, the petitioner theorized that 
Puget Sound's unique hydrological and physical characteristics (i.e., 
numerous fjord-like estuarine basins with sills and constricted 
entrances) could contribute to genetic differentiation and population 
subdivision (i.e., the formation of DPSs). While this is plausible, 
NMFS assessed whether more direct measures of distinctness (in 
particular, genetic or life history data) are evident in this area. 
NMFS also assessed whether the petitioner accurately reflected any 
known trends in abundance or threats to the 18 species and, moreover, 
whether these trends/threats would lead a reasonable person to believe 
that listing under the ESA may be warranted. A summary of the results 
of this assessment follows; members of the family Scorpaenidae (i.e., 
rockfishes) were assessed together because of the paucity of data for 
most of the species.
    Pacific herring - The petitioner noted that several stocks have 
been identified in Puget Sound (Bargmann, 1998) and that life history 
differences (e.g., spawning timing and growth rates) and spawning site 
fidelity may contribute to stock separation. Populations in Puget Sound 
have not been examined in detail for genetic distinctness, but plans 
are being made to conduct genetic sampling for this species in the 
range petitioned. Also, several studies conducted in other areas of the 
North Pacific may help shed light on whether DPSs are present in Puget 
Sound.
    The petitioner cited recent studies indicating that some Puget 
sound stocks are in ``critical'' or ``depressed'' condition, and noted 
that the 1998 run size was the lowest on record for at least one 
herring stock. The petitioner also expressed concern over the apparent 
increase in natural mortality and the concurrent decrease in number of 
age classes for some stocks. NMFS' initial assessment corroborated 
that, overall, catches of Pacific herring reached a peak in the mid-
1970s and then declined and have remained at low levels since the 
1980s. The petitioner suggested that harvest, marine mammal predation, 
and urbanization/industrial development have played a role in the 
species' decline (but noted that the decline of the Discovery Bay stock 
may not be attributable to overharvest or habitat degradation).
    NMFS has determined that the available information is substantial 
and that the petitioned action may be warranted. Therefore, the agency 
will initiate a status review of Pacific herring in Puget Sound.
     Pacific cod - The petitioner noted that three stocks have been 
identified in Puget Sound (Palsson, 1990) and that tagging studies 
indicate that adults of the species may remain near specific spawning 
grounds. Also, the petition cited a study reporting high growth rates 
and egg production rates that may indicate the presence of DPSs of 
Pacific cod in Puget Sound (Palsson et al., 1997). Allozyme studies 
show a major genetic demarcation across the North Pacific, but little 
genetic population structure has been detected among local stocks 
within these two major groups (Grant et al., 1987).
    The petitioner cited commercial and recreational catch data and 
recent surveys indicating that some Puget Sound cod stocks may have 
collapsed in the late 1970s and 1980s (Palsson, 1990; Palsson et al., 
1997). Also cited were recent acoustic surveys indicating that Agate 
Passage (south Puget Sound) populations may be at a critical or near-
extinct level. NMFS has verified that Puget Sound cod populations have 
undergone a long-term decline since the mid-1970s and a marked decline 
since the late-1980s. The petitioner did not identify specific threats 
to this species, although the petition suggests that overharvest, 
marine mammal predation, and marine, estuarine, and terrestrial habitat 
degradation are potential factors in the species' decline.
    NMFS has determined that the available information is substantial 
and that the petitioned action may be warranted. Therefore, the agency 
will initiate a status review of Pacific cod in Puget Sound.
     Pacific hake - The petitioner expressed principal concern for a 
resident population that occurs in south Puget Sound and migrates 
seasonally between Port Susan and Saratoga Passage. The petitioner 
cited studies reporting that Puget Sound hake are genetically distinct 
from coastal populations (Utter and Hodgins, 1971), and that hake 
within Puget Sound may be distinguishable as two separate stocks (Goni, 
1988). NMFS has confirmed these findings and also reviewed information 
indicating that other species of hake tend to show subdivided 
population structure around geographically complex coastlines (Roldan 
et al., 1998), but not along linear coastlines (Grant et al., 1988; 
Roldan, 1991)
    The petitioner cited commercial catch data and recent surveys 
documenting that south Puget Sound populations have declined from an 
estimated adult biomass of over 45 million pounds in

[[Page 33039]]

1983 to approximately 1 to 3 million pounds in 5 of the past 6 years 
(Palsson et al., 1997). The petition did not document the status of 
north Puget Sound hake; however, Palson et al. (1997) reported that 
abundance peaked in the late 1970s and early 1980s (approximately 7-33 
lb./hour in terms of effort) with a decline thereafter to approximately 
5 lb./hour. The petitioner identified overharvest and marine mammal 
predation as important factors in the species' decline and suggested 
that marine, estuarine, and terrestrial habitat degradation have also 
played a role.
    NMFS has determined that the available information is substantial 
and that the petitioned action may be warranted. Therefore, the agency 
will initiate a status review of Pacific hake in Puget Sound.
     Walleye pollock - The petitioner noted that Puget Sound stocks of 
this species represent the southernmost distribution of this species. 
The petition cited unpublished data indicating stock separation between 
north and south Puget Sound, with the latter stock being in the worse 
condition. While NMFS did not find genetic data specific to populations 
in Puget Sound, some studies have demonstrated genetic differences 
between Japanese and Northeastern Pacific pollock populations (Grant 
and Utter, 1980; Mulligan et al., 1992; Shields and Gust, 1995).
    The petitioner cited recreational catch data, trawl surveys, and 
cohort analysis indicating a decline (and possible collapse) in the 
southern Puget Sound pollock stock since the mid-1980s (Palsson et al., 
1997). These authors suggest that the South Sound pollock population is 
at a critical status and possibly extinct. No information was provided 
on pollock populations in other areas of Puget Sound, although NMFS has 
verified that a similar trend can be seen in the North Sound pollock 
populations as well. The current status of North Sound stock is less 
certain because of minimal catch data and because the status of pollock 
stocks in the nearby Strait of Georgia is relatively healthy. The 
petitioner did not identify specific threats to this species, although 
the petition suggests that overharvest, marine mammal predation, and 
marine, estuarine, and terrestrial habitat degradation are potential 
factors in the species' decline.
    NMFS has determined that the available information is substantial 
and that the petitioned action may be warranted. Therefore, the agency 
will initiate a status review of walleye pollock in Puget Sound.
     Rockfishes - Although 14 species of rockfish are identified in the 
petition, relatively little information was presented or is readily 
available on the population characteristics and status of individual 
species. Aside from the petitioner's general assertion that the 
physical characteristics of Puget Sound may promote greater population 
subdivision, the petitioner did not provide information specifically 
addressing the distribution or population structure of each species in 
Puget Sound. The petitioner noted that genetic studies using 
conventional techniques have not consistently shown population 
differentiation or structuring for Puget Sound rockfishes, adding that 
other techniques may be required to show such distinctness. NMFS did 
review evidence from high resolution molecular genetic data for some 
rockfish species that suggests genetic differences may exist between 
populations of these species within Puget Sound. However, these studies 
are limited in sampling and scope and address only three of the 
petitioned species (brown, copper, and quillback rockfish). The 
petitioner also stated that there are differences in growth rates for 
some species within Puget Sound, but failed to reference the particular 
species.
    The petitioner provided no species-specific information on trends 
or past and current abundance, but did characterize three rockfishes 
(brown, copper, and quillback rockfish) as the most common species 
currently caught in Puget Sound. Instead, the petitioner relied on 
composite data for all members of the genus Sebastes that suggest a 
declining trend in recreational fisheries in both north and south Puget 
Sound. While these data are the primary stock indicator for Puget 
Sound, it is impossible to discern the status of particular species 
from these data. NMFS did review limited supplemental survey data 
(SCUBA and trawl) for south Puget Sound that demonstrate a reduction in 
counts from the late 1980s to early 1990s, but these data also fail to 
distinguish among species.
    With respect to threats facing the species, the petitioner 
identified an array of factors potentially contributing to the decline 
of Puget Sound rockfishes, including overharvest, marine mammal 
predation, and marine, estuarine, and terrestrial habitat degradation. 
The petitioner expressed particular concern over the lack of adequate 
``no-take'' refuges for these species and the risks associated with 
overfishing these relatively long-lived species.
    NMFS concludes that the available information for Puget Sound 
rockfish is insubstantial for most of the petitioned species. Still, 
there are reasons to believe that some of the species may warrant ESA 
protection. The agency believes that the best approach to identifying 
candidates for an ESA status review includes determining which rockfish 
species are most likely to yield conclusive information during the 
review. It is clear from the assessment made to date that the majority 
of the petitioned species have little or no prospects for yielding such 
information in the time required to complete a status review (i.e., by 
February 2000). However, NMFS believes that the petition provides 
substantial information indicating serious threats and trends for 
rockfish in general, and that the prospects are good for obtaining more 
detailed information for three of the better-studied species, i.e., 
brown, copper, and quillback rockfish. Therefore, the agency will 
initiate a status review of brown rockfish, copper rockfish, and 
quillback rockfish in Puget Sound. In addition, NMFS is hopeful that 
information obtained during status reviews for these three species may 
help determine whether other Puget Sound rockfish may warrant 
consideration for an ESA status review.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available to NMFS scientists, the Secretary 
determines that the petition presents substantial scientific 
information indicating the petitioned action may be warranted for seven 
of the species identified in Puget Sound, namely: Pacific herring, 
Pacific cod, Pacific hake, walleye pollock, brown rockfish, copper 
rockfish, and quillback rockfish. In accordance with section 4(b)(3)(B) 
of the ESA, the Secretary will make his determination whether the 
petitioned action is warranted for these seven species within 12 months 
from the date the petition was received (i.e., by February 8, 2000).

Listing Factors and Basis for Determination

    Under section 4(a)(1) of the ESA, a species can be determined to be 
threatened or endangered based on any of the following factors: (1) The 
present or threatened destruction, modification, or curtailment of a 
species' habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting the species continuing 
existence. Listing

[[Page 33040]]

determinations are based solely on the best available scientific and 
commercial data after taking into account any efforts being made by any 
state or foreign nation to protect the species.

Information Solicited

    To ensure that the review is complete and is based on the best 
available scientific and commercial data, NMFS solicits information and 
comments concerning the status of Puget Sound populations of Pacific 
herring, Pacific cod, Pacific hake, walleye pollock, brown rockfish, 
copper rockfish, and quillback rockfish (see DATES and ADDRESSES). NMFS 
specifically requests the following information: (1) Biological or 
other relevant data that may help identify DPSs of any of these species 
(e.g., age structure, genetics, migratory patterns, morphology); (2) 
the range, distribution, and size of these species' populations in 
Puget Sound and coastal waters of Washington and British Columbia; (3) 
current or planned activities and their possible impact on this species 
(e.g., harvest measures and habitat actions); and (4) efforts being 
made to protect these species in Washington and British Columbia.
    NMFS also requests quantitative evaluations describing the quality 
and extent of estuarine and marine habitats for these species, as well 
as information on areas that may qualify as critical habitat in 
Washington. Areas that include the physical and biological features 
essential to the recovery of the species should be identified. 
Essential features include, but are not limited, to the following: (1) 
Habitat for individual and population growth, and for normal behavior; 
(2) food, water, air, light, minerals, or other nutritional or 
physiological requirements; (3) cover or shelter; (4) sites for 
reproduction and rearing of offspring; and (5) habitats that are 
protected from disturbance or are representative of the historic 
geographical and ecological distributions of the species.
    For areas potentially qualifying as critical habitat, NMFS requests 
information describing (1) the activities that affect the area or could 
be affected by the designation and (2) the economic costs and benefits 
of additional requirements of management measures likely to result from 
the designation. The economic cost to be considered in the critical 
habitat designation under the ESA is the probable economic impact ``of 
the [critical habitat] designation upon proposed or ongoing 
activities'' (50 CFR 424.19). NMFS must consider the incremental costs 
resulting specifically from a critical habitat designation that are 
above the economic effects attributable to listing the species. 
Economic effects attributable to listing include actions resulting from 
section 7 consultations under the ESA to avoid jeopardy to the species 
and from the taking prohibitions under section 9 or 4(d) of the ESA. 
Comments concerning economic impacts should distinguish the costs of 
listing from the incremental costs that can be directly attributed to 
the designation of specific areas as critical habitat.
    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service, published a series of policies regarding listings under the 
ESA, including a policy for peer review of scientific data (59 FR 
34270). The intent of the peer review policy is to ensure that listings 
are based on the best scientific and commercial data available. NMFS 
now solicits the names of recognized experts in the field that could 
take part in the peer review process for this status review. 
Independent peer reviewers will be selected from the academic and 
scientific community, tribal and other Native American groups, Federal 
and state agencies, the private sector, and public interest groups.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: June 15, 1999.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Services.
[FR Doc. 99-15721 Filed 6-18-99; 8:45 am]
BILLING CODE 3510-22-F