[Federal Register Volume 67, Number 143 (Thursday, July 25, 2002)]
[Proposed Rules]
[Pages 48601-48603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18861]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224 and 226

[Docket no. 020718171-2171-01 I.D. 071002B]
[RIN 0648-ZB25]


Listing Endangered and Threatened Species: Findings on a 
Delisting Petition, and Two Listing Petitions, Concerning 16 
Evolutionarily Significant Units of Pacific Salmon and Steelhead

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

ACTION: Notice of findings; request for comments.

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SUMMARY: SUMMARY: The National Marine Fisheries Service (NMFS) has 
received a delisting petition, as well as two listing petitions, 
concerning a total of 16 Evolutionarily Significant Units (ESUs) of 
chinook salmon (Oncorhynchus tshawytscha), coho salmon (O. kisutch), 
chum salmon (O. keta), and steelhead (O. mykiss) currently listed as 
threatened or endangered under the Endangered Species Act of 1973, as 
amended (ESA). NMFS finds that these three petitions present 
substantial scientific and commercial information to suggest that the 
petitioned actions may be warranted.

DATES: Written comments on these petition findings must be received by 
August 26, 2002.

ADDRESSES: Information or comments on this action should be submitted 
to the Assistant Regional Administrator, Protected Resources Division, 
NMFS, 525 NE Oregon Street, Suite 500, Portland, OR 97232-2737. 
Comments will not be accepted if submitted via e-mail or the Internet. 
However, comments may be sent via facsimile to (503) 230-5435.

FOR FURTHER INFORMATION CONTACT: Garth Griffin, NMFS, Northwest Region, 
(503) 231-2005; Craig Wingert, NMFS, Southwest Region, (562) 980-4021; 
or Chris Mobley, NMFS, Office of Protected Resources, (301) 713-1401. 
Additional information, including the petitions addressed in this 
notice, are available on the Internet at www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

Salmon and Steelhead ESUs

    NMFS is responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) of Pacific salmon and steelhead are 
threatened or endangered species under the ESA. NMFS has determined 
that DPSs are represented by ESUs of Pacific salmon and steelhead, and 
treats ESUs as a ``species'' under the ESA (ESU policy; 56 FR 58612, 
November 20, 1991). To date, NMFS has completed comprehensive coastwide 
status reviews of Pacific salmonids and identified 51 ESUs in 
California, Oregon, Washington, and Idaho. Five of these ESUs are 
currently listed under the ESA as endangered, and 21 ESUs are listed as 
threatened.

Listing Factors and Basis for Petition Findings

    Section 4(b)(3)(A) of the ESA requires that, to the maximum extent 
practicable, within 90 days after receiving a petition for listing, 
reclassification, or delisting (among other things) the Secretary make 
a finding whether the petition presents substantial scientific 
information indicating that the petitioned action may be warranted. The 
ESA implementing regulations for NMFS define ``substantial 
information'' as the amount of information that would lead a reasonable 
person to believe that the measure proposed in the petition may be 
warranted (50 CFR 424.14(b)(1)). In evaluating a petitioned action, the 
Secretary must consider whether such a petition (1) clearly indicates 
the recommended administrative measure and the species involved, (2) 
contains a detailed narrative justification for the recommended 
measure, describing past and present numbers and distribution of the 
species involved and any threats faced by the species, (3) provides 
information regarding the status of the species over all or a 
significant portion of its range, and (4) is accompanied by appropriate 
supporting documentation (50 CFR 424.14(b)(2)). 50 CFR 424.11 describes 
the factors that must be considered in listing, reclassifying, or 
delisting a species under the ESA. Submitted petitions are considered 
in the context of these factors in determining whether a petition does 
or does not present substantial scientific and commercial information 
to suggest that the petitioned action may be warranted. A species may 
be listed or reclassified as a threatened or endangered species because 
of any one or a combination of the following factors: (1) The present 
or threatened destruction, modification, or

[[Page 48602]]

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 continued 
existence. A species may be delisted for one or more of the following 
reasons: (1) The species is extinct or has been extirpated from its 
previous range; (2) the species has recovered and is no longer 
endangered or threatened; or (3) investigations show that the best 
scientific or commercial data available when the species was listed, or 
the interpretation of such data, were in error.

Petitions Received

    On March 14, 2002, NMFS received a petition from the Central Coast 
Forest Association (CCFA petition) to delist the threatened Central 
California Coast (CCC) coho salmon ESU. On April 29, 2002, NMFS 
received two petitions from Trout Unlimited and several co-petitioners 
(hereafter, Trout Unlimited petitions) to redefine and list a total of 
15 ESUs currently listed as threatened or endangered. One of the Trout 
Unlimited petitions seeks to define the threatened Oregon coast coho 
ESU as including only natural fish (i.e., naturally spawned fish and 
their progeny, exclusive of all hatchery fish), and to list it as a 
threatened species under the ESA. The other Trout Unlimited petition 
seeks to define 14 ESUs as including only natural fish, and to list 
these ESUs as threatened or endangered species under the ESA. This 
petition addresses the naturally spawned portions of the: Puget Sound, 
Upper Willamette River, Snake River spring/summer, Snake River fall, 
Upper Columbia River spring, and Lower Columbia River chinook ESUs; 
Hood Canal summer and Columbia River chum ESUs; Southern Oregon/
Northern California Coasts coho ESU; and the Upper Willamette River, 
Snake River, Middle Columbia River, Upper Columbia River, and Lower 
Columbia River steelhead ESUs.

Petition Findings

    The petition findings on the CCFA and the Trout Unlimited petitions 
are informed by the September 2001 U.S. District Court ruling in Alsea 
Valley Alliance v. Evans (161 F. Supp. 2d 1154, D. Oreg. 2001; Alsea 
decision). The court ruled that it is arbitrary and capricious to 
exclude hatchery populations from listing if they are part of the same 
ESU as listed natural populations. The Court's ruling set aside NMFS' 
1998 ESA listing of Oregon Coast coho salmon and ruled that the ESA 
does not allow NMFS to list a subset of an ESU by excluding hatchery 
fish within an ESU from listing. Although the Court's ruling affected 
only one ESU, the interpretive issue raised by the ruling called into 
question nearly all of the agency's Pacific salmonid listing 
determinations. In response to the Alsea decision, NMFS has announced 
that it will conduct status review updates for 25 ESUs potentially 
affected by the Court's ruling (67 FR 6215, February 11, 2002). 
Additionally NMFS announced that it would revise its policy on how it 
considers hatchery populations in making ESA listing determinations.
    The CCFA petition seeks delisting of the CCC coho salmon ESU as a 
result of the Alsea decision. The CCC coho ESU was listed as a 
threatened species on October 31, 1996 (61 FR 56138). Only naturally 
spawned populations in the ESU were listed, and within-ESU hatchery 
populations were excluded from listing protection. Hence, the ESA 
interpretive issue raised by the Alsea decision pertains to the listing 
determination for the CCC coho ESU. NMFS thereby concludes that the 
CCFA petition presents substantial scientific and commercial 
information indicating the petitioned action may be warranted. This 
determination is consistent with previous NMFS findings on several 
petitions seeking to delist 14 other ESUs with unlisted hatchery 
populations (67 FR 6215, February 11, 2002).
    The Trout Unlimited petitioners assert that hatchery populations 
are functionally distinct from naturally spawned populations in the 15 
petitioned ESUs, and that the ESUs should be redefined to include only 
the naturally spawned populations. They present information describing 
continued adverse impacts and threats from hatchery production to the 
habitat, ocean survival, and long-term genetic fitness of natural 
populations in these ESUs. The petitioners provide a substantial 
collection of technical documents from the peer-reviewed scientific 
literature, as well as from the gray literature (e.g., non peer-
reviewed data, reports, and technical memoranda from Federal and state 
management agencies), addressing the ecological and genetic 
relationship between hatchery and naturally spawned populations. These 
references describe threats posed by hatchery populations to natural 
populations, as well as differences between hatchery and natural 
populations in behavior, genetic composition, and fitness. In light of 
the substantial scientific information provided, the petitioners 
further assert that the inclusion of hatchery fish in ESUs with 
naturally spawned fish is inconsistent with the ESA statutory language 
and Congressional intent, as well as with NMFS' regulatory 
interpretations of the ESA.
    NMFS maintains that its listing determinations have been wholly 
consistent with the existing regulations and policies guiding its 
listing determinations. The Alsea decision, however, ruled that NMFS' 
regulations guiding its consideration of hatchery populations in 
listing determinations are not consistent with the ESA. As mentioned 
above, NMFS is in the process of revising its policy on the 
consideration of hatchery fish in its ESA listing determinations to be 
consistent with the Alsea decision, and has initiated coastwide 
salmonid status review updates. The Trout Unlimited petitions provide 
scientific information that is relevant to NMFS' consideration of the 
relationship between hatchery and natural populations, and the 
delineation of Pacific salmon and steelhead ESUs. Accordingly, NMFS 
finds that the Trout Unlimited petitions present substantial scientific 
and commercial information indicating that the petitioned actions may 
be warranted.

Information Solicited

    NMFS has already committed to conducting status review updates for 
the 16 Pacific salmon and steelhead ESUs addressed in the CCFA and 
Trout Unlimited petitions, as well as for nine other ESUs (67 FR 6215, 
February 11, 2002). The agency is also in the process of clarifying its 
policy on how it considers hatchery populations in making ESA listing 
determinations. NMFS will consider the information presented and the 
issues raised by these petitions in the course of revising its listing 
policy and conducting the coastwide status review updates.
    NMFS has already solicited technical information to assist in these 
status review updates during two 60-day comment periods ending April 
12, 2002, and August 12, 2002. NMFS is now requesting information and 
comment on the ecological and genetic relationship of hatchery and 
natural populations in the 15 ESUs addressed in the Trout Unlimited 
petitions. Additionally, NMFS seeks information and comment on the 
potential risks and benefits posed by artificial propagation to 
naturally spawning populations, and the extent to which such efforts 
may contribute to, or hinder, efforts being made to protect the 
species.

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References

    The complete citations for the references used in this document can 
be obtained by contacting NMFS or via the Internet (see ADDRESSES and 
FOR FURTHER INFORMATION CONTACT).

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

    Dated: July 19, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 02-18861 Filed 7-24-02; 8:45 am]
BILLING CODE 3510-22-S