[Federal Register Volume 66, Number 29 (Monday, February 12, 2001)]
[Proposed Rules]
[Pages 9808-9813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3545]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 010118020-1020-01; I.D. 010801A]
RIN 0648-AO86


Endangered and Threatened Species: Threatened Status for One 
Evolutionarily Significant Unit of Steelhead in California and Oregon

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS' completed Endangered Species Act (ESA) status reviews 
for steelhead (Oncorhynchus mykiss) populations in Washington, Oregon, 
Idaho, and California resulted in proposed listings for several 
steelhead Evolutionarily Significant Units (ESUs), including a Klamath 
Mountains Province (KMP) steelhead ESU. Steelhead in this ESU inhabit 
coastal river basins between the Elk River in Oregon and the Klamath 
River in California, inclusive. After reviewing additional information, 
including biological data on the species' status and an assessment of 
protective efforts, NMFS concluded in 1998 that this ESU did not 
warrant listing. However, the U.S. District Court for the Northern 
District of California (Court) recently overturned that decision and 
remanded the rule to the agency. The District Court concluded that NMFS 
erred in relying on the expected effects of future conservation 
measures when making its final listing determination. In light of the 
Court's order and of the need to formally solicit any new information 
regarding the status of KMP steelhead, the agency now re-proposes to 
list the KMP steelhead ESU as a threatened species under the ESA.

DATES: Public hearings on this proposal will be held on February 22, 
2001, in Gold Beach, OR, and Eureka, CA. Comments on this proposal must 
be received no later than 5 p.m. Pacific time, on March 5, 2001. 
Comments will not be accepted if submitted via e-mail or the Internet.

ADDRESSES: Two public hearings on this proposal will be held: (1) on 
Thursday, February 22, 2001, from 6:30 p.m. to 9 p.m at the Gold Beach 
City Hall, City Council Chambers, 29592 Ellensburg Avenue, Gold Beach, 
OR; and (2) on Thursday, February 22, 2001, from 6:30 p.m. to 9 p.m. at 
the Eureka Inn, 518 7th Street, Eureka, CA.
    Comments on this proposed rule and requests for reference materials 
should be sent to the Chief, Protected Resources Division, NMFS, 
Northwest Region, 525 NE Oregon Street, Suite 500, Portland, OR 97232-
2737. Comments may also be sent via facsimile (fax) to (503) 230-5435, 
but will not be accepted if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, 503-231-2005, Craig 
Wingert, 562-980-4021, or Chris Mobley, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related to West Coast Steelhead

    The first petition to address steelhead in the Klamath Mountains 
Province or ``KMP'' (named after a geological province in southwest 
Oregon and northwest California) was received on May 5, 1992, and dealt 
with winter steelhead in the Illinois River, a tributary to Oregon's 
Rogue River. The agency conducted a status review of this population 
(NMFS, 1993) and published a May 20, 1993, determination (58 FR 29390) 
wherein NMFS concluded that Illinois River winter steelhead did not 
warrant listing because they did not represent a ``species'' under the 
ESA. However, NMFS recognized that this population was part of a larger 
ESU whose extent had not yet been determined, but whose status might 
warrant listing because of declining trends in steelhead abundance 
observed in several southern Oregon streams.
    In its May 20, 1993, finding regarding Illinois River winter 
steelhead, NMFS announced that it would conduct an expanded status 
review to identify all coastal steelhead ESUs within California, 
Oregon, and Washington and to determine whether any identified ESUs 
warranted listing under the ESA (58 FR 29390). Subsequently, on 
February 16, 1994, NMFS received a petition from the Oregon Natural 
Resources Council and from 15 co-petitioners to list all steelhead (or 
specific ESUs, races, or stocks) within the States of California, 
Oregon, Washington, and Idaho. In response to this petition, NMFS 
announced the expansion of its status review of steelhead to include 
inland steelhead populations occurring in eastern Washington and Oregon 
and the State of Idaho (59 FR 27527, May 27, 1994).
    On March 16, 1995, NMFS identified a KMP steelhead ESU and 
published a proposed rule to list it as a threatened species under the 
ESA (60 FR 14253). The proposed ESU included steelhead populations 
inhabiting coastal river basins between the Elk River in Oregon and the 
Klamath River in California, inclusive. Subsequent to this proposal, 
the agency completed a coastwide status review of steelhead (NMFS, 
1996a) that identified a total of 15 steelhead ESUs in the states of 
Washington, Oregon, Idaho, and California. By August 9, 1996, the 
agency had proposed 10 steelhead ESUs, including KMP steelhead, for 
listing as threatened or endangered under the ESA (61 FR 41541). While 
the agency had proposed listing KMP steelhead prior to the other ESUs, 
unresolved issues and practical considerations made it more prudent to 
consider a final determination on KMP steelhead in the context of final 
listing decisions for all West Coast steelhead ESUs.
    On August 18, 1997, NMFS published a final rule listing five ESUs 
as threatened and endangered under the ESA (62 FR 43937). In a separate 
document published on the same day, NMFS determined that substantial 
scientific disagreement remained for five proposed ESUs, including the 
KMP steelhead ESU (62 FR 43974, August 18, 1997). In accordance with 
section 4(b)(6)(B)(i) of the ESA, NMFS deferred its decision on these 
five steelhead ESUs for 6 months for the purpose of soliciting 
additional data. During this 6-month period of deferral, NMFS' 
scientist evaluated new information regarding the status of these 
proposed steelhead ESUs. This new information resulted in the updating 
of status review documents for these five ESUs (NMFS, 1997; NMFS, 
1998).

[[Page 9809]]

    Based on a review of the updated information for these ESUs and of 
a review and evaluation of Federal, state, and local conservation 
efforts being made to reduce the threats to these ESUs, NMFS issued a 
final rule on March 19, 1998 (63 FR 13347) listing two ESUs as 
threatened (Lower Columbia River and Central Valley California) and a 
notice of determination that three ESUs (KMP, Oregon Coast, and 
Northern California) did not warrant listing. The latter determination 
was based on the best available scientific and commercial data that 
these ESUs had been at a lower risk of extinction than they were at the 
time of the proposed listing determinations. Even though the risks 
confronting these ESUs had been reduced to a point at which listing was 
not warranted, NMFS still expressed concerns about the status of these 
three ESUs in the notice of determination and, therefore, identified 
them as candidate species, which the agency would continue to monitor 
and re-assess by 2002.

The Recent District Court Ruling

    On October 25, 2000, the U.S. District Court for the Northern 
District of California (Court) issued a finding that NMFS' March 19, 
1998, determination regarding the KMP steelhead ESU was arbitrary and 
capricious (Federation of Fly Fishers v. Daley, Civ. No. C-99-0981-SI). 
The Court vacated NMFS' ``not warranted'' determination and remanded 
the case to NMFS for further consideration. In vacating the agency's 
decision, the Court held that the ESA does not allow NMFS to consider 
the expected effects of future conservation actions or to rely 
exclusively on voluntary conservation efforts. Hence, the Court's 
finding essentially re-instates NMFS' original proposal to list KMP 
steelhead as a threatened species under the ESA. Due to time 
constraints imposed by the Court, NMFS will be able to accept public 
comments only until March 5, 2001, on this listing re-proposal so that 
new information can be efficiently evaluated and a final agency 
determination be promulgated by March 31, 2001.

Life History of KMP Steelhead

    Biological information for West Coast steelhead and the KMP ESU, in 
particular, can be found in agency assessments conducted by NMFS (NMFS, 
1993, 1994, 1996a, 1997, 1998) and in previous Federal Register 
documents (60 FR 14253, March 16, 1995; 61 FR 41541, August 9, 1996). 
Steelhead exhibit one of the most complex suites of life history traits 
of any salmonid species. Individuals may exhibit anadromy (meaning they 
migrate as juveniles from fresh water to the ocean, and then return to 
spawn in fresh water) or freshwater residency (meaning they reside 
their entire life in fresh water). Resident forms are usually referred 
to as ``rainbow'' or ``redband'' trout, while anadromous life forms are 
termed ``steelhead.'' Few detailed studies have been conducted 
regarding the relationship between resident and anadromous O. mykiss, 
and, as a result, the relationship between these two life forms is 
poorly understood. The scientific name for the biological species that 
includes both steelhead and rainbow trout has been changed from Salmo 
gairdneri to O. mykiss. This change reflects the premise that all 
trouts from western North America share a common lineage with Pacific 
salmon. Nonanadromous O. mykiss may co-occur with the anadromous form. 
The KMP steelhead ESU includes both life forms. However, only the 
anadromous form is under the jurisdiction of NMFS; the U.S. Fish and 
Wildlife Service (USFWS) maintains ESA authority over resident life 
forms.
    Historically, steelhead were distributed throughout the North 
Pacific Ocean from the Kamchatka Peninsula in Asia to the northern Baja 
California Peninsula. Presently, the species distribution extends from 
the Kamchatka Peninsula, east and south along the Pacific coast of 
North America, to at least Malibu Creek in southern California. Within 
the KMP ESU, the species inhabits coastal river basins between the Elk 
River in Oregon and the Klamath River in California, inclusive.
    Steelhead typically migrate to marine waters after spending 2 years 
in fresh water. They then reside in marine waters for typically 2 or 3 
years prior to returning to their natal stream to spawn as 4- or 5-
year-olds. Unlike other Pacific salmon, steelhead are iteroparous, 
meaning they are capable of spawning more than once before they die. 
However, it is rare for steelhead to spawn more than twice before 
dying; most that do so are females. Biologically, steelhead can be 
divided into two reproductive ecotypes, based on their state of sexual 
maturity at the time of river entry and the duration of their spawning 
migration. These two ecotypes are termed ``stream maturing'' and 
``ocean maturing.'' Stream maturing steelhead enter fresh water in a 
sexually immature condition and require several months to mature and 
spawn. Ocean maturing steelhead enter fresh water with well developed 
gonads and spawn shortly after river entry. These two reproductive 
ecotypes are more commonly referred to by their season of freshwater 
entry (i.e., summer (stream maturing) and winter steelhead (ocean 
maturing)). The KMP steelhead ESU contains populations of both winter 
and summer steelhead. In addition, the Rogue and Klamath River Basins 
are distinctive in that they are two of the few basins producing 
``half-pounder'' steelhead. This life history type refers to immature 
steelhead that return to fresh water after only 2-4 months in the 
ocean, generally overwinter in fresh water, then outmigrate again the 
following spring (Snyder, 1925; Kesner and Barnhart, 1972; Everest, 
1973; Barnhart, 1986).

Consideration as a ``Species'' Under the ESA

    To qualify for listing as a threatened or endangered species, the 
identified populations of steelhead must be considered ``species'' 
under the ESA. The ESA defines ``species'' to include ``any subspecies 
of fish or wildlife or plants, and any distinct population segment of 
any species of vertebrate fish or wildlife which interbreeds when 
mature.'' NMFS published a policy (56 FR 58612, November 20, 1991) 
describing how the agency will apply the ESA definition of ``species'' 
to Pacific salmonid species. This policy provides that a salmonid 
population will be considered distinct, and hence a species, under the 
ESA, if it represents an ESU of the biological species. A population 
must satisfy two criteria to be considered an ESU: (1) It must be 
reproductively isolated from other conspecific population units and (2) 
it must represent an important component in the evolutionary legacy of 
the biological species. The first criterion, reproductive isolation, 
needs not be absolute, but must be strong enough to permit 
evolutionarily important differences to accrue in different population 
units. The second criterion is met if the population contributes 
substantially to the ecological/genetic diversity of the species as a 
whole. Guidance on the application of this policy is contained in 
Waples (1991), a NOAA Technical Memorandum entitled ``Definition of 
`Species' Under the Endangered Species Act: Application to Pacific 
Salmon,'' which is available upon request (see ADDRESSES). The genetic, 
ecological, and life history characteristics, as well as human-induced 
genetic changes that NMFS assessed to identify the number and 
geographic extent of steelhead ESUs on the West Coast, including the 
KMP steelhead ESU, are discussed in detail in NMFS' steelhead status 
reviews (NMFS, 1993, 1994, 1996a, 1997, 1998) and in

[[Page 9810]]

listing proposals (60 FR 14253, March 16, 1995; 61 FR 41541, August 9, 
1996).

KMP Steelhead ESU Determination

    The KMP steelhead ESU has been described in NMFS' status review 
documents and Federal Register notices cited earlier; no new scientific 
information has been received to indicate that the ESU should be 
redefined. This ESU includes both winter and summer steelhead 
inhabiting coastal river basins between the Elk River in Oregon and the 
Klamath River in California, inclusive. Half-pounder juveniles 
(described previously under ``Life History of KMP Steelhead'') also 
occur in this geographic area. Geologically, this region includes the 
Klamath Mountains Geological Province, which is not as erosive as the 
Franciscan formation terrains south of the Klamath River Basin. 
Dominant vegetation along the coast is redwood forest, while some 
interior basins are much drier than the surrounding areas. The region 
is characterized by many endemic plant species. Elevated stream 
temperatures are a factor affecting steelhead and other species in some 
of the larger river basins. With the exception of major river basins, 
such as the Rogue and Klamath, most rivers in this region have a short 
duration of peak flows. Strong and consistent coastal upwelling begins 
at about Cape Blanco and continues south into the central California 
coast, resulting in a relatively productive nearshore marine 
environment. Protein electrophoretic analyses of coastal steelhead have 
indicated genetic discontinuities between the steelhead of this region 
and those to the north and south (Hatch, 1990; NMFS, 1993 and 1994). 
Chromosomal studies have also identified a distinctive karyotype that 
has been reported only from populations within this ESU.
    The relationship between hatchery steelhead populations and 
naturally spawned steelhead within this ESU was also assessed in a 
NMFS' status review update (NMFS, 1998). Based on this assessment, 
NMFS' steelhead Biological Review Team (BRT) concluded that seven 
steelhead hatchery stocks are part of this ESU because they were 
established from indigenous natural populations. In Oregon these stocks 
are Applegate River, Oregon Department of Fish and Wildlife (ODFW) 
stock 62 (winter run); Upper Rogue River, ODFW stock 
52 (winter run); Upper Rogue River, ODFW stock 52 
(summer run); and Chetco River, ODFW stock 96 (winter run). In 
California, the stocks are Iron Gate Hatchery stock (winter run); 
Trinity River Hatchery stock (winter run); and Rowdy Creek Hatchery 
stock. The majority of the BRT also concluded that these hatchery 
stocks were not likely to be essential for the recovery of the ESU 
(i.e., if the ESU were listed).

Status of the KMP Steelhead ESU

    Section 3 of the ESA defines the term ``endangered species'' as 
``any species that is in danger of extinction throughout all or a 
significant portion of its range.'' The term ``threatened species'' is 
defined as ``any species that is likely to become an endangered species 
within the foreseeable future throughout all or a significant portion 
of its range.'' In its previous status reviews for West Coast salmon 
and steelhead, NMFS has identified a number of factors that should be 
considered in evaluating the level of risk faced by an ESU, including 
(1) absolute numbers of fish and their spatial and temporal 
distribution, (2) current abundance in relation to historical abundance 
and current carrying capacity of the habitat, (3) trends in abundance, 
(4) natural and human-influenced factors that cause variability in 
survival and abundance, (5) possible threats to genetic integrity 
(e.g., from strays or outplants from hatchery programs), and (6) recent 
events (e.g., a drought or changes in harvest management) that have 
predictable short-term consequences for abundance of the ESU.
    Based on these factors and on the best available scientific 
information, NMFS' BRT first reviewed the status of the KMP steelhead 
in 1994 (NMFS, 1994) and determined that it was likely to become 
endangered in the foreseeable future. The agency subsequently proposed 
this ESU for listing as a threatened species (60 FR 14253, March 16, 
1995), noting that available information indicated that most of the 
steelhead populations in the KMP ESU were in significant decline and 
not self-sustaining. After completing a coastwide status review in 
1996, the agency restated its proposal to list the ESU as threatened 
and highlighted concerns for summer steelhead as well as the apparent 
replacement of natural fish with hatchery-produced fish. The status of 
the ESU was last reassessed in a 1997 status review update (NMFS, 
1997), wherein the NMFS' BRT analyzed new information and once again 
concluded that the KMP ESU was likely to become endangered in the 
foreseeable future. The BRT expressed concern about the lack of 
reliable and recent data for many populations and the almost universal 
decline of native summer steelhead populations in this ESU. Although 
the percentage of naturally spawning hatchery fish was considered low 
to moderate in Oregon streams in the ESU, the BRT had major concerns 
regarding stray hatchery fish in the Klamath and Trinity River Basins. 
In addition, the BRT cited significant risks resulting from habitat 
loss and degradation (e.g., due to dams, logging, water withdrawals, 
and mining) within the range of this ESU.
    In addition to the BRT's assessment, the agency also considered 
existing and recently implemented conservation efforts focused on KMP 
steelhead. Significant state efforts in Oregon and California 
(including harvest restrictions, monitoring, and habitat improvements) 
appeared to have reduced threats to this species. In addition, NMFS 
believed that biological risks associated with habitat modification and 
degradation on Federal lands had decreased as a result of the Northwest 
Forest Plan (Forest Ecosystem Management Assessment Team (FEMAT), 
1993). While NMFS remained concerned about habitat conditions on non-
Federal lands within the range of the ESU, the agency noted that the 
majority of lands were actually under Federal ownership. After 
reviewing all of the available types of information, NMFS concluded in 
March 1998 that the KMP steelhead ESU did not warrant listing as a 
threatened species but instead should be classified as a candidate 
species and its status re-evaluated by 2002. However, the recent ruling 
by the Court on October 25, 2000, states that NMFS erred in arriving at 
this determination and requires the agency to re-assess this ESU.
    NMFS scientists have recently conducted a preliminary survey of new 
information on KMP steelhead populations that has become available 
since the BRT last reviewed the species in December 1997 (NMFS, 2000). 
Available new data for Oregon populations in the KMP steelhead ESU are 
concentrated in the Rogue River Basin and show no major changes since 
the last assessment. New information on California steelhead 
populations in NMFS' possession is also very limited and consist 
primarily of short-term data from creel and snorkel surveys. This 
paucity of available data compels the agency to re-propose the ESU as a 
threatened species at this time. However, the agency is hopeful that 
data sets currently being compiled in Oregon and California, as well as 
any new information received in response to this listing proposal, will 
permit a more rigorous assessment prior to a final listing 
determination.

[[Page 9811]]

Summary of Factors Affecting the Species

    Section 4(a)(1) of the ESA and NMFS' implementing regulations (50 
CFR part 424) set forth procedures for listing species. The Secretary 
of Commerce (Secretary) must determine, through the regulatory process, 
whether a species is endangered or threatened based upon any one or a 
combination of the following factors: (1) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or education 
purposes; (3) disease or predation; (4) inadequacy of existing 
regulatory mechanisms; or (5) other natural or human-made factors 
affecting its continued existence. The factors threatening naturally 
reproducing steelhead are numerous and varied. For KMP steelhead 
populations, the present depressed condition is the result of 
longstanding, human-induced factors that serve to exacerbate the 
adverse effects of natural environmental variability from such factors 
as drought, floods, and poor ocean conditions.
    NMFS has prepared a report that summarizes the factors leading to 
the decline of steelhead on the West Coast (NMFS, 1996b). This report, 
available upon request (see ADDRESSES section), concludes that all of 
the factors identified in section 4(a)(1) of the ESA have played a role 
in the decline of West Coast steelhead. The report further identifies 
several factors that were considered to have contributed to the decline 
of the KMP steelhead ESU, including: hatchery introgression, logging, 
water diversion/extraction, habitat blockages, poaching, agriculture, 
hydropower development, historic flooding, and mining. As a result of 
previous listing proposals (60 FR 14253, March 16, 1995; 61 FR 41541, 
August 9, 1996), NMFS has received numerous comments regarding the 
relative importance of various factors contributing to the decline of 
KMP steelhead. These comments will be considered along with any new 
information resulting from the current listing proposal prior to the 
agency making a final listing determination for this ESU.

Efforts Being Made to Protect West Coast Steelhead

    Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to 
make listing determinations solely on the basis of the best scientific 
and commercial data available after conducting a review of the status 
of the species and after taking into account efforts being made to 
protect the species. Therefore, in making its listing determinations, 
NMFS first assesses the status of the species and identifies factors 
that have led to the decline of the species. NMFS then assesses 
conservation measures to determine whether they ameliorate risks to the 
species. In judging the efficacy of existing conservation efforts, NMFS 
considers the following: (1) The substantive, protective, and 
conservation elements of such efforts; (2) the degree of certainty such 
efforts will be reliably implemented; (3) the degree of certainty such 
efforts will be effective; and (4) the presence of monitoring 
provisions that determine effectiveness and that permit adaptive 
management. In some cases, conservation efforts may be relatively new 
and may not have had time to demonstrate their biological benefit. In 
such cases, provisions for adequate monitoring and funding of 
conservation efforts are essential to ensure that intended conservation 
benefits are realized.
    As part of its West Coast steelhead status review, NMFS reviewed an 
array of protective efforts for steelhead and other salmonids, ranging 
in scope from regional strategies to local watershed initiatives. NMFS 
has summarized some of the major efforts in a supplement to the earlier 
status reviews (NMFS, 1996c). NMFS also reviewed steelhead conservation 
measures being implemented by the states of California and Oregon at 
the time of its March 19, 1998, listing determination for the KMP 
steelhead ESU (63 FR 13347). During the next two months, NMFS will seek 
to update the current status of conservation efforts affecting KMP 
steelhead and, in keeping with the recent Court order, will take into 
account appropriate conservation efforts when assessing the final ESA 
status of KMP steelhead. NMFS encourages all parties to submit 
information on such efforts, on particularly existing conservation 
efforts, or on those that have only recently been implemented (e.g., 
since 1997) but will likely ameliorate risks faced by KMP steelhead.

Proposed Determination

    In keeping with an October 25, 2000, order by the U.S. District 
Court for the Northern District of California, NMFS is re-proposing to 
list the KMP steelhead ESU as a threatened species under the ESA. This 
proposal is supported by previous agency listing proposals (60 FR 
14253, March 16, 1995; 61 FR 41541, August 9, 1996) and BRT reports 
(NMFS, 1994; NMFS, 1997), which concluded that steelhead in the KMP ESU 
are likely to become endangered in the foreseeable future. Also, a 
preliminary review of updated abundance and trend information available 
for this ESU indicates that the current biological status of the ESU 
has changed little since it was last evaluated by the NMFS BRT. The 
agency believes that many conservation efforts have helped reduced the 
risks faced by KMP steelhead. However, the recent Court ruling will 
require that NMFS reconsider the manner in which these efforts factor 
into a final listing determination for this ESU.
    As described in agency status reviews and in the proposed listing 
determination cited above, NMFS defines the KMP steelhead ESU to 
include all native, naturally spawned populations of steelhead (and 
their progeny) residing in streams between the Elk River (Oregon) and 
Klamath River Basins (California), inclusive. NMFS scientists have 
previously examined the relationship between hatchery and natural 
populations of steelhead in this ESU and also assessed whether any 
hatchery populations are essential for their recovery (NMFS, 1998). At 
this time, NMFS does not believe any specific hatchery populations 
warrant listing. Also, NMFS is proposing to list only the anadromous 
life forms of O. mykiss.

Prohibitions and Protective Measures

    Section 4(d) of the ESA requires NMFS to issue protective 
regulations it finds necessary and advisable to provide for the 
conservation of threatened species. Section 9 of the ESA prohibits 
violations of protective regulations for threatened species promulgated 
under section 4(d). The 4(d) protective regulations may prohibit, with 
respect to the threatened species, some or all of the acts which 
section 9 of the ESA prohibits with respect to endangered species. 
These section 9 prohibitions and 4(d) regulations apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
If NMFS determines that the KMP steelhead ESU warrants listing as a 
threatened species, then the agency will develop and promulgate a 4(d) 
protective regulation for the ESU in a separate rulemaking. The process 
for completing the 4(d) rule will provide the opportunity for public 
comment on the proposed protective regulations.
    In the case of threatened species, NMFS has flexibility under 
section 4(d) to tailor the protective regulations to provide for the 
conservation of the species. NMFS has recently published 4(d) 
regulations for 14 threatened ESUs

[[Page 9812]]

of salmon and steelhead (65 FR 42422, July 10, 2000) that adopt an 
array of limits on take prohibitions. Some of the broad categories of 
activities addressed by these limits include: scientific research; fish 
harvest; artificial propagation; habitat restoration; screening water 
diversions; routine road maintenance; and municipal, residential, 
commercial, and industrial development and redevelopment. By receiving 
NMFS approval under a limit, governments and individuals obtain 
assurance that their activities, when implemented in accordance with 
the criteria in the 4(d) rule, do not violate ESA ``take'' prohibitions 
and will not be subject to enforcement actions.
    Section 7(a)(2) of the ESA requires Federal agencies to consult 
with NMFS to ensure that activities they authorize, fund, or conduct 
are not likely to jeopardize the continued existence of a listed 
species or adversely modify critical habitat. Examples of Federal 
actions likely to affect steelhead in the KMP steelhead ESU include 
authorized land management activities (e.g., timber sales and harvest, 
and livestock grazing) of the U.S. Forest Service and Bureau of Land 
Management, operation of hydroelectric and storage projects permitted 
by the Federal Energy Regulatory Commission, and activities permitted 
by the U.S. Army Corps of Engineers under the Clean Water Act and River 
and Harbors Act.
    Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with 
authority to grant exceptions to the ESA's ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. NMFS has 
issued section 10(a)(1)(A) research/enhancement permits for listed 
salmon and steelhead for a number of activities, including trapping and 
tagging, electroshocking to determine population presence and 
abundance, removal of fish from irrigation ditches, and collection of 
adult fish for artificial propagation programs.
    Section 10(a)(1)(B) of the ESA incidental take permits may be 
issued to non-Federal entities performing activities which may 
incidentally take listed species, so long as the taking is incidental 
to, and not the purpose of, the carrying out of an otherwise lawful 
activity. The types of activities potentially requiring a section 
10(a)(1)(B) incidental take permit include the operation and release of 
artificially propagated fish by state or privately operated and funded 
hatcheries, state or academic research not receiving Federal 
authorization or funding, logging, road building, grazing, and 
diverting water onto private lands.

Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, NMFS, jointly with USFWS, published a series of 
policies regarding listings under the ESA, including: (1) a policy 
regarding peer review of scientific data (59 FR 34270) and (2) a policy 
to identify, to the maximum extent possible, those activities that 
would or would not constitute a violation of section 9 of the ESA (59 
FR 34272). The intent of the first policy is to ensure that listings 
are based on the best scientific and commercial data available. Prior 
to a final listing and concurrent with the public comment period, NMFS 
will solicit the expert opinions of at least three qualified 
specialists. Independent peer reviewers will be selected from the 
academic and scientific community, Native American tribal groups, 
Federal and state agencies, and the private sector. The intent of the 
second policy is to increase public awareness of the effect of this 
listing on proposed and ongoing activities within the species' range. 
If NMFS determines that the KMP steelhead ESU warrants listing as a 
threatened species, the agency will identify activities that will be 
considered likely to result in section 9 violations as well as specific 
activities (to the extent known) that will not be considered likely to 
result in section 9 violations once a 4(d) rule has been adopted.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. While 
NMFS has completed an initial analysis of the biological status of 
steelhead in the KMP steelhead ESU, it has not performed the full 
analysis necessary for designating critical habitat at this time. If 
this ESU is listed under ESA, it is NMFS' intent to develop a critical 
habitat proposal as soon as the analysis can be completed.

Public Comments Solicited

    NMFS has exercised its best professional judgement in developing 
this proposal to list the KMP steelhead ESU. To ensure that the final 
action resulting from this proposal will be as accurate and effective 
as possible, NMFS is soliciting data, comments, and suggestions from 
the public, other governmental agencies, the scientific community, 
industry, and any other interested parties. NMFS is interested in any 
additional information concerning: (1) biological or other relevant 
data concerning any threats to steelhead in this ESU; (2) the range, 
distribution, and population size of steelhead in this ESU; (3) current 
or planned activities in the range of the ESU and their possible impact 
on KMP steelhead; (4) steelhead escapement, particularly recent 
escapement data partitioned into natural and hatchery components; (5) 
the proportion of naturally reproducing fish that were reared as 
juveniles in a hatchery; (6) homing and straying of natural and 
hatchery fish; (7) the reproductive success of naturally reproducing 
hatchery fish (i.e., hatchery-produced fish that spawn in natural 
habitat) and their relationship to the proposed ESU; (8) efforts being 
made to protect native, naturally reproducing populations of steelhead 
in this ESU; and (9) suggestions for specific regulations under section 
4(d) of the ESA that should apply to steelhead in this ESU. Suggested 
regulations may address activities, plans, or guidelines that, despite 
their potential to result in the take of listed fish, will ultimately 
promote the conservation and recovery of threatened steelhead. NMFS 
will review all public comments and any additional information 
regarding the status of the KMP steelhead ESU and will complete a final 
rule by March 31, 2001, as required under the recent Court order.
    Joint Commerce-Interior ESA implementing regulations state that the 
Secretary ``shall promptly hold at least one public hearing if any 
person so requests within 45 days of publication of a proposed 
regulation to list ... or to designate or revise critical habitat.'' 
(see 50 CFR 424.16(c)(3)). A public hearing schedule on this proposal 
is contained in this notice. Public hearings will provide the 
opportunity for the public to give comments and to permit an exchange 
of information and opinion among interested parties. NMFS encourages 
the public's involvement in such ESA matters. Written comments on the 
proposed rule should be submitted to NMFS by March 5, 2001.(see 
ADDRESSES and DATES).

Special Accommodations

    These hearings are physically accessible to people with 
disabilities. Requests for sign language interpretation or other aids 
should be directed to Garth Griffin or Craig Wingert (see ADDRESSES).

[[Page 9813]]

References

    A complete list of all cited references is available upon request 
(see ADDRESSES).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA). See NOAA Administrative Order 216-6.

Executive Order 12866 and Regulatory Flexibility Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act (RFA) are not applicable to the listing 
process. In addition, this proposed rule is exempt from review under 
Executive Order 12866.

Executive Order 13132-Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, NMFS has conferred with state and local 
government agencies in the course of assessing the status of the KMP 
steelhead ESU and considered, among other things, state and local 
conservation measures. State and local governments have expressed 
support for the conservation of KMP steelhead and made efforts to 
reduce risks faced by the ESU. The history and content of this 
dialogue, as well as the basis for this proposed action, are described 
in the SUPPLEMENTARY INFORMATION section of this document and in other 
Federal Register documents preceding this proposed action. (See 61 FR 
41541, August 9, 1996; 62 FR 43974, August 18, 1997; and 63 FR 13347, 
March 19, 1998). NMFS' staff have had numerous discussions with various 
governmental agency representatives regarding the status of this ESU 
and have sought working relationships with agencies and others in order 
to promote salmonid restoration efforts. In addition, NMFS' staff have 
given presentations to interagency forums and other interested groups 
considering conservation measures. As the process continues, NMFS 
intends to continue engaging in informal and formal contacts with 
affected state, local, or regional entities, giving careful 
consideration to all written or oral comments received. As one part of 
that continued process, NMFS has scheduled public hearings on this 
proposed action. NMFS also intends to consult with appropriate elected 
officials in consideration of a final rule.

Executive Order 13175-Consultation and Coordination With Indian Tribal 
Governments

    NMFS has consulted with affected tribes throughout the course of 
the West Coast steelhead status review. These consultations have 
included numerous presentations and discussions with tribal officials 
and representatives, in particular, the Klamath River Basin tribes, 
regarding the status of the KMP steelhead and conservation efforts 
directed at this ESU. NMFS will continue to actively engage the 
affected tribes and will seek their assistance and expertise to 
complete the agency's KMP steelhead status review. Moreover, the agency 
will carry out its responsibilities under the Act in a manner that 
recognizes tribal sovereignty and harmonizes the agency's statutory 
missions with Federal trust responsibilities to tribes and that strives 
to ensure that Indian tribes do not bear a disproportionate burden for 
the conservation of listed species. In keeping with E.O. 13175, NMFS 
will summarize the history of consultations with affected tribes and 
describe the manner in which tribal concerns were addressed at the time 
of the final listing determination for KMP steelhead.

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, Marine 
mammals, Transportation.

    Dated: February 7, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set forth in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.

    2. In Sec. 223.102, paragraph (a)(23) is added to read as follows:


Sec. 223.102  Enumeration of threatened species.

* * * * *
    (a) * * *
    (23) Klamath Mountains Province steelhead (Oncorhynchus mykiss). 
Includes all naturally spawned populations of steelhead (and their 
progeny) in coastal river basins ranging from the Elk River in Curry 
County, Oregon, to the Klamath River, inclusive, in Del Norte County, 
California.
* * * * *
[FR Doc. 01-3545 Filed 2-9-01; 8:45 am]
BILLING CODE 3510-22-S