[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Notices]
[Pages 31354-31359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12598]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040511148-4148-01; I.D. No. 050304B]


Endangered and Threatened Species: Proposed Policy on the 
Consideration of Hatchery-Origin Fish in Endangered Species Act Listing 
Determinations for Pacific Salmon and Steelhead

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

ACTION: Notice of proposed policy.

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SUMMARY: The National Marine Fisheries Service (NMFS) is issuing a 
proposed policy that will address the role of hatchery produced Pacific 
salmon (Oncorhynchus gorbuscha, O. keta, O. kisutch, O. nerka, O. 
tshawytscha,) and steelhead (O. mykiss) in listing determinations under 
the Endangered Species Act of 1973 (ESA) as amended. This proposed 
policy would supersede the Interim Policy on Artificial (hatchery) 
Propagation of Pacific Salmon under the Endangered Species Act 
published in the Federal Register on April 5, 1993. The interim

[[Page 31355]]

policy requires revision for several reasons, including the need to 
take into account the results of scientific research that has occurred 
over the past decade, as well as the legal implications of a September 
12, 2001, decision by the U.S. District Court in Oregon, which held 
that NMFS made an improper distinction under the ESA by excluding from 
a listing of Oregon Coast coho salmon under the ESA of certain 
artificially propagated salmon populations that were nevertheless 
determined by NMFS to be part of the same ``distinct population 
segment'' (DPS) as the listed natural populations. Under the proposed 
new policy, NMFS would determine the viability of each DPS, including 
both natural and hatchery populations, in conducting ESA status reviews 
and using the product of such reviews in making listing determinations 
of threatened or endangered under the ESA for Pacific salmon and 
steelhead. This policy applies only to Pacific salmon and steelhead and 
only in the context of making ESA listing determinations. NMFS also 
plans to provide separate guidance on how artificial propagation 
programs may contribute to salmon and steelhead conservation and 
recovery.

DATES: Information and comments on the proposed policy must be received 
at the appropriate address or fax number (See ADDRESSES), no later than 
5 p.m. on September 1, 2004. In a forthcoming Federal Register 
document, NMFS will announce the dates and locations of public meetings 
to provide the opportunity for the interested individuals and parties 
to give comments, exchange information and opinions, and engage in a 
constructive dialogue concerning this proposed policy. NMFS encourages 
the public's involvement in such ESA matters.

ADDRESSES: Information and comments on this proposed policy should be 
submitted to Chief, Protected Resources Division, NMFS, 525 NE Oregon 
Street - Suite 500, Portland, OR 97232. Comments may also be sent via 
facsimile (fax) to 503 230-5435 or by e-mail. The mailbox address for 
providing e-mail comments is [email protected]. Include in the 
subject line of the e-mail comment the following document identifier: 
Hatchery Listing Policy.

FOR FURTHER INFORMATION CONTACT: Donna Darm, NMFS, Northwest Region, 
(206) 526-4489; Craig Wingert, NMFS, Southwest Region, (562) 980-4021; 
or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-1401, 
ext. 180.

SUPPLEMENTARY INFORMATION:

Background

    NMFS is responsible for determining whether species, subspecies, or 
DPSs of Pacific salmon and steelhead are threatened or endangered under 
the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.). To be 
considered for listing as threatened or endangered under the ESA, a 
group of organisms must constitute a species, which is defined in 
section 3 of the ESA 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.'' Since 
1991, NMFS has used the term ``evolutionarily significant unit'' (ESU) 
to refer to a DPS of Pacific salmon and steelhead, and has defined an 
ESU as a Pacific salmon or steelhead population or group of populations 
that (i) is substantially reproductively isolated from other 
conspecific populations, and (ii) represents an important component in 
the evolutionary legacy of the biological species (56 FR 58612; 
November 20, 1991). ESUs typically are composed of several genetically 
similar populations. (A few ESUs are composed of a single extant 
population, e.g., the Snake River sockeye, Snake River fall-run 
chinook, and Sacramento River winter-run chinook ESUs).
    The viability of salmon and steelhead ESUs is characterized by the 
health, abundance, productivity, spatial structure, and genetic/
behavioral diversity of the individual populations within the ESU 
(McElhany et al., 2001). An ESU with a greater abundance of productive 
populations will be more tolerant to environmental variation, 
catastrophic events, genetic processes, demographic stochasticity, 
ecological interactions, and other processes than one with a single or 
a few populations (Caughley and Gunn, 1996; Foley, 1997; Meffe and 
Carroll, 1994; Lande, 1993; Middleton and Nisbet, 1997). Similarly, an 
ESU that is distributed across a variety of well-connected habitats can 
better respond to environmental perturbations including catastrophic 
events, than ESUs in which connectivity between populations has been 
restricted or lost (Schlosser and Angermeier, 1995; Hanski and Gilpin, 
1997; Tilman and Lehman, 1997; Cooper and Mangel, 1999). Genetic and 
behavioral diversity and the maintenance of local adaptations within an 
ESU allow for the exploitation of a wide array of environments, protect 
against short-term environmental changes, and provide the raw material 
for surviving long-term environmental change (Groot and Margolis,1991; 
Wood, 1995).
    ESUs with fewer populations have greater risk of becoming extinct 
due to catastrophic events, and have a lower likelihood that the 
necessary phenotypic and genotypic diversity will exist to maintain 
future viability than ESUs with more populations. ESUs with limited 
geographic range are similarly at increased extinction risk due to 
catastrophic events. ESUs with populations that are geographically 
distant from each other, or are separated by severely degraded habitat, 
may lack the connectivity to function as metapopulations and are more 
likely to become extinct than populations that can function as 
metapopulations. ESUs with limited life-history diversity are more 
likely to become extinct as the result of correlated environmental 
catastrophes or environmental change that occurs too rapidly for an 
evolutionary response. ESUs comprised of a small proportion of 
populations meeting or exceeding these viability criteria may lack the 
``source'' populations to sustain the non-viable ``sink'' populations 
during environmental downturns. ESUs consisting of a single population 
are especially vulnerable in this regard.
    Assessing an ESU involves evaluating the current biological 
viability of the populations that comprise the ESU. The fact that the 
current biological status of an ESU does not reflect historical 
abundance, productivity, spatial structure or diversity does not mean 
that it is currently not viable, but historical status serves as an 
informative benchmark against which to weigh viability. Whether, upon 
assessment, the biological status of an ESU meets the ESA's standard 
for listing as either threatened or endangered i.e., the ESU is in 
danger of extinction throughout all or a significant portion of its 
range or is likely to become so in the foreseeable future--depends on 
which viability criteria it fails to meet, what the past trend has 
been, whether that trend is likely to continue, and how far below the 
benchmark it is.

Artificial Propagation of Pacific Salmon and Steelhead

    Most of the ESUs listed as threatened or endangered have associated 
hatchery populations (that is, artificially propagated salmon and 
steelhead released into habitats within the historic geographic range 
of the ESU) as well as mixed populations of natural and hatchery fish.
    The artificial propagation of hatchery fish presents both potential 
benefits and risks to the biological status of salmonid ESUs (e.g., 
Independent Scientific Advisory Board (ISAB), 2003;

[[Page 31356]]

Independent Multidisciplinary Science Team (IMST), 2001; ISAB, 2001; 
Hatchery Scientific Review Group, 2004). Artificial propagation has 
been shown to be effective in bolstering the numbers of naturally 
spawning fish in the short term under certain conditions, and in 
conserving genetic resources and guarding against the catastrophic loss 
of naturally spawned populations at critically low abundance levels 
(IMST, 2001).
    There are, however, several reasons why long-term deleterious 
consequences of such supplementation may outweigh the short-term 
advantage of increased population size (NRC, 1995). In recent years, 
various studies and scientific works have identified some potential 
adverse effects of artificial propagation, including behavioral 
differences that result in diminished fitness and survival of hatchery 
fish relative to naturally spawned fish; genetic effects resulting from 
poor broodstock and rearing practices (e.g., inbreeding, outbreeding, 
domestication selection); incidence of disease; and increased rates of 
competition with and predation on naturally spawned populations. In 
assessing the risks to any particular population, however, it is often 
difficult to demonstrate conclusively that adverse effects are actually 
occurring, and, if they are demonstrated, how serious they are (CDFG/
NMFS, 2001).
    In response to these concerns, there have been recent changes in 
hatchery practices seeking to mitigate risks and enhance benefits of 
artificial propagation. Continued scientific work is necessary to 
identify and to measure these risks and benefits more completely, and 
to assess the operations of hatcheries that implement modern management 
practices. In light of the developing science on the positive and 
negative effects of hatchery programs on natural populations, the 
legacy of hatchery programs and the existing requirements to maintain 
many of them present a challenge for developing a framework for 
consideration of hatchery fish in listing determinations.

Past Pacific Salmon and Steelhead ESA Listings and the Alsea Decision

    Section 3 of the ESA defines (i) an endangered species as ``any 
species that is in danger of extinction throughout all or a significant 
portion of its range'' and (ii) a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The statute 
enumerates five factors that may cause a species to be threatened or 
endangered (ESA section 4(a)(1)): (a) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (b) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (c) disease or predation; (d) the inadequacy of 
existing regulatory mechanisms; or (e) other natural or manmade factors 
affecting its continued existence.
    Since 1991, NMFS has conducted ESA status reviews of six species of 
Pacific salmonids in California, Oregon, Washington, and Idaho, 
identifying 51 ESUs and listing 26 of these ESUs as of September 2001. 
Twenty-three of the listed ESUs include hatchery populations, and in 
many of those cases the annual abundance of fish from hatcheries far 
exceeds that of naturally spawned fish. Thus, the manner in which the 
hatchery populations associated with an ESU are considered in making a 
determination whether the ESU should be listed can affect the outcome 
of that determination.
    Section 4(b)(1)(A) of the ESA requires NMFS to make listing 
determinations based solely on 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. 
Accordingly, NMFS follows three steps in making its listing 
determinations. First, NMFS determines whether a population or group of 
populations constitutes an ESU; that is, whether the population(s) 
should be considered a ``species'' within the meaning of the ESA. 
Second, NMFS determines the biological status of the ESU and the 
factors that have led to its decline. Third, NMFS assesses efforts 
being made to protect the ESU and determines whether, in light of those 
efforts, the statutory listing criteria are satisfied.
    In the past, NMFS focused on whether the naturally spawned fish 
are, by themselves, self-sustaining in their natural ecosystem over the 
long term. NMFS listed as ``endangered'' those ESUs whose naturally 
spawned populations were found to have a present high risk of 
extinction, and listed as ``threatened'' those ESUs whose naturally 
spawned populations were found likely to become endangered in the 
foreseeable future (that is, whose present risk of extinction was not 
high, but whose risk of extinction was likely to become high within a 
foreseeable period of time).
    In its listing determinations, NMFS did not explicitly consider the 
contribution of the hatchery fish to the overall viability of the ESU, 
or whether the presence of hatchery fish within the ESU might have the 
potential for reducing the risk of extinction of the ESU or the 
likelihood that the ESU would become endangered in the foreseeable 
future. (The listing of Snake River fall chinook, however, is an 
exception. See 57 FR 14653; April 22, 1992.) NMFS frequently evaluated 
artificial propagation only as a factor in the decline of the naturally 
spawned populations within an ESU.
    For each ESU where hatchery fish were present, NMFS reviewed the 
associated hatchery populations to determine how closely related the 
hatchery populations were to the naturally spawned populations. This 
review focused on the origin of the hatchery fish and their similarity 
to locally adapted naturally spawned fish. Factors included in this 
consideration were: genetic, life history, and habitat use 
characteristics; the degree to which the characteristics of the wild 
population may have been altered over time; and other factors that 
would affect the biological usefulness of hatchery fish for recovery.
    Since 1993, NMFS has applied an interim policy on how it will 
consider artificial propagation in the listing and recovery of Pacific 
salmon and steelhead under the ESA (58 FR 17573, April 5, 1993). The 
1993 policy provided guidance on the use of artificial propagation to 
assist in the conservation of these listed species and to help avoid 
additional species listings. The policy also provided guidance for 
evaluating artificial propagation in section 7 consultation, section 10 
permitting, and recovery planning pursuant to the ESA.
    When NMFS determined that an ESU should be listed as threatened or 
endangered, it applied its interim artificial propagation policy for 
Pacific salmon and steelhead. That policy provided that hatchery salmon 
and steelhead found to be part of the ESU would not be listed under the 
ESA unless they were found to be essential for recovery (i.e., if NMFS 
determined that the hatchery population contained a substantial portion 
of the genetic diversity remaining in the ESU). The result of this 
policy was that a listing determination for an ESU depended solely upon 
the relative health of the naturally spawning component of the ESU. In 
most cases, hatchery fish within the ESUs were not relied upon to 
contribute to recovery, and therefore were not listed.
    Subsequently, in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 
1154 (D. Or. 2001)(Alsea decision), the U.S. District Court in Eugene, 
Oregon, set aside NMFS' 1998 ESA listing of Oregon

[[Page 31357]]

Coast coho salmon (O. kisutch) because it impermissibly excluded 
hatchery fish within the ESU from listing and therefore listed an 
entity that was not a species, subspecies or DPS. The court stated: 
``NMFS concluded that nine hatchery stocks were part of the same Oregon 
Coast ESU/DPS as the 'naturally-spawned' populations but none of the 
hatchery stocks were included in the listing decision because NMFS did 
not consider them 'essential to recovery.' The distinction between 
members of the same ESU/DPS is arbitrary and capricious because NMFS 
may consider listing only an entire species, subspecies or distinct 
population segment ('DPS') of any species.''
    Although the court's ruling applied only to the Oregon Coast coho 
salmon ESU, the court's interpretation of the ESA implicitly called 
into question nearly all of NMFS' Pacific salmonid listing 
determinations since 1991. In addition, a preliminary review of the 
other 25 listing determinations suggested that hatchery populations 
were not treated consistently in those listings. Further, substantially 
more scientific research into artificial propagation issues had been 
completed since the interim policy was adopted in 1993.
    Accordingly, NMFS determined that it would reconsider its 1993 
interim policy on how it considers hatchery populations in making ESA 
listing determinations (67 FR 6215; February 11, 2002). The proposed 
policy set forth in this notice results from that reconsideration. It 
would supersede NMFS' 1993 interim artificial propagation policy.

Additional Legal Factors Influencing Consideration of Hatchery Fish

    The ESA defines ``fish or wildlife'' to mean ``any member of the 
animal kingdom, including without limitation any fish .'' [emphasis 
added]. This definition includes fish bred in a hatchery. 16 U.S.C. 
1532(8).
    The ESA defines ``species'' to include ``any subspecies of fish or 
wildlife or plants, and any distinct population segment of any species 
or vertebrate fish or wildlife which interbreeds when mature.'' 16 
U.S.C. 1532(16). NMFS cannot list any group of organisms that is not a 
species, subspecies or DPS. If NMFS determines that an ESU includes 
hatchery fish as well as naturally spawned fish, it must list or not 
list the entire ESU.
    The statutory provisions of the ESA do not address the relationship 
between naturally spawned populations and hatchery populations 
regarding species conservation. One of the purposes of the ESA, 
however, is ``to provide a means whereby the ecosystems upon which 
endangered species and threatened species may be conserved.'' 16 U.S.C. 
1531(b). Further, in issuing incidental take permits pursuant to 
section 10(a)(1)(B), the Secretary is required to find that ``the 
taking will not appreciably reduce the likelihood of the survival and 
recovery of the species in the wild.'' This incidental take permit 
provision was patterned after the preexisting joint NMFS/U.S. Fish and 
Wildlife Service (FWS) consultation regulations to implement section 7 
of the ESA, which defines ``jeopardize the continued existence of'' to 
mean ``to engage in an action that reasonably would be expected, 
directly or indirectly, to reduce appreciably the likelihood of both 
survival and recovery of a listed species in the wild. . . .'' 50 CFR 
402.02. Accordingly, the ESA does not preclude NMFS from giving special 
recognition to naturally spawned fish as a measure of the 
sustainability of the natural ecosystem.

Artificial Propagation under the ESA

    Section 4(b) of the ESA requires the Secretary to make listing 
determinations after conducting a review of the status of the species, 
and after taking into account those efforts, if any, being made to 
protect the species. 16 U.S.C. 1533(b)(1)(A). Such efforts being made 
to protect the species include ``conservation'' practices, defined by 
the ESA as ``all methods and procedures which are necessary to bring 
any endangered species or any threatened species to the point at 
which'' the protections of the act are no longer necessary. 16 U.S.C. 
1532(3). The methods and procedures of conservation include 
``propagation'' and ``transplantation.''
    Although the NMFS/FWS Policy Regarding Controlled Propagation of 
Species Listed Under the ESA (65 FR 56916; September 20, 2000) exempted 
Pacific salmon from its application (65 FR at 56921), the joint policy 
provides useful general guidance regarding the role of artificial 
propagation in the conservation and recovery of ESA-listed species, 
including plant, invertebrate, and vertebrate species. The joint policy 
notes several potential contributions of artificial propagation 
including: preventing extinction; providing opportunities for 
scientific research regarding beneficial propagation methods and 
technologies; maintaining genetic vigor and demographic diversity; 
maintaining refugial populations while habitat threats or 
vulnerabilities to catastrophic events are addressed; introduction or 
re-introduction of individuals to (re)establish self-sustaining 
populations; and enhancing existing wild populations to facilitate 
recovery.
    While acknowledging the potentially supportive role that artificial 
propagation may play in the conservation and recovery of listed 
species, the joint policy stresses that artificial propagation is not a 
substitute for addressing factors responsible for a species' decline 
and that recovery of wild populations in their natural habitat is the 
first priority. The policy recognizes that genetic and ecological risks 
may be associated with artificial propagation, and requires that 
artificial propagation for species conservation and recovery be 
conducted in a manner that minimizes risks and preserves the genetic 
and ecological distinctiveness of the species to the maximum extent 
possible.
    The proposed policy is intended to be consistent with the joint 
policy. This policy provides more specific guidance for considering 
artificial propagation issues particular to listing Pacific salmon and 
steelhead under the ESA. For Pacific salmon and steelhead, artificial 
propagation programs have been in place for many decades, serving a 
variety of purposes established by Congress and local authorities. 
Those programs now number in the hundreds. Whereas the joint policy 
pertains to recovery, the proposed policy would guide NMFS' 
consideration of existing artificial propagation efforts when 
evaluating the extinction risk of a salmon or steelhead ESU for 
purposes of making an ESA listing decision.
    Because NMFS must base its listing determinations for Pacific 
salmon and steelhead on the risk of extinction of the entire ESU, 
including both natural and hatchery fish, the agency must consider the 
likelihood that the hatchery and naturally spawned components will 
contribute to the continued existence of the ESU into the future.Yet, 
because there are so many different ways in which hatchery-origin fish 
interact with the environment, there can be no uniform conclusion about 
the potential contribution of hatchery-origin fish to the survival of 
an ESU. For example, fish that are carefully reared under semi-natural 
conditions, then acclimated to a specific stream and introduced to re-
establish, or expand the range of, the natural population, might make 
an important contribution to the rebuilding or support of that 
population. On the other hand, fish that are reared solely for the 
purpose of augmenting harvest and which are released away from the 
spawning and rearing areas

[[Page 31358]]

used by the naturally spawning fish in the ESU might contribute little 
to rebuilding or supporting other populations within the ESU, although 
their presence will increase the overall numbers of fish within the 
ESU.

Proposed Five-Point Policy

    In light of the above considerations, NMFS proposes to adopt the 
policy set forth below to supersede NMFS' 1993 interim artificial 
propagation policy. The proposed policy would have five points. First, 
the proposed policy summarizes NMFS' existing ESU policy, and 
recognizes that genetic resources that represent the ecological and 
genetic diversity of a salmonid species can be found in hatchery fish 
as well as fish spawned in the wild.
    The second point describes the process NMFS will use to delineate 
which populations are included in an ESU. In deciding which hatchery 
programs are likely to produce fish that would be included in an ESU, 
NMFS used terminology developed by the Salmon And Steelhead Hatchery 
Assessment Group (SSHAG, 2003)(available at http://www.noaa.gov/fisheries/). In its report, the SSHAG defines categories to describe 
the degree of genetic divergence between hatchery stock(s) and the 
natural population(s) that occupy the watershed into which the hatchery 
stock is released. In previous status reviews, the test for inclusion 
of hatchery stocks in a given ESU was a ``substantial'' divergence 
threshold evaluated relative to ``historical'' populations in the ESU. 
NMFS is proposing that it consider, as part of the ESU, those hatchery 
fish with a level of genetic divergence between the hatchery stocks and 
the local natural populations that is no more than what would be 
expected between closely related populations within the ESU. This 
proposal is consistent with the ``moderate divergence'' standard used 
in the SSHAG (2003) report. In practice, it is unlikely that this 
proposed change, as applied, would present an appreciably different 
threshold for the inclusion of hatchery stocks in an ESU compared to 
policy struck down by the court in the Alsea decision.
    The third point states, consistent with the Alsea decision, that 
status determinations for Pacific salmonid ESUs will be based on the 
entire ESU, while recognizing the necessity of conserving natural 
populations and their habitat. This point also acknowledges the ESA's 
focus on the conservation and recovery of natural populations, the use 
of natural populations in reducing the risk of extinction, and their 
use as a point of comparison for monitoring/evaluating the level of 
genetic divergence of hatchery fish from naturally spawning fish in an 
ESU.
    The fourth point describes the process for making status 
determinations for ESUs. The process incorporates the concept of Viable 
Salmonid Populations that was developed by NMFS scientists (McElhany et 
al., 2000, available at http://www.nwfsc.noaa.gov). Specifically, the 
process generally considers four key attributes of a viable salmonid 
population or conservation unit: abundance, productivity, spatial 
distribution, and genetic diversity. Under these criteria, a high 
abundance of one population of fish within an ESU is not, by itself, 
adequate to show that the ESU is viable. The analysis does not assign 
equal or predetermined weight to each of the four attributes, nor does 
it preclude consideration of other factors that may be biologically 
relevant in a particular circumstance. The analysis was designed to 
evaluate the viability of naturally spawning salmonid populations and 
requires the application of professional judgment when applied to 
salmonid populations that include hatchery fish because, for example, 
attributes such as productivity (number of adults returned per spawner) 
are measured differently for hatchery fish than for naturally spawning 
fish.
    Finally, the fifth point recognizes that hatcheries can play an 
important role in fulfilling trust and treaty obligations with regard 
to harvest of some Pacific salmonid populations and provides a 
mechanism for using hatchery fish that are surplus to the conservation 
and recovery needs of the ESU.

Proposed Policy

    For the foregoing reasons, NMFS proposes to adopt the following new 
policy on the consideration of hatchery fish in Endangered Species Act 
listing determinations for Pacific salmon and steelhead:
    1. Under NMFS' Policy on Applying the Definition of Species under 
the Endangered Species Act to Pacific Salmon (ESU policy)(56 FR 58612; 
November 20, 1991), a distinct population segment (DPS) of a Pacific 
salmonid species is considered for listing if it meets two criteria: 
(a) it must be substantially reproductively isolated from other 
conspecific population units; and (b) it must represent an important 
component in the evolutionary legacy of the species. A key feature of 
the ESU concept is the recognition of genetic resources that represent 
the ecological and genetic diversity of the species. These genetic 
resources can reside in a fish spawned in a hatchery (hatchery fish) as 
well as in a fish spawned in the wild (natural fish).
    2. In delineating an ESU to be considered for listing, NMFS will 
identify all populations that are part of the ESU, including 
populations of natural fish (natural populations), populations of 
hatchery fish (hatchery fish), and populations that include both 
natural fish and hatchery fish (mixed populations). Hatchery fish with 
a level of genetic divergence between the hatchery stocks and the local 
natural populations that is no more than what would be expected between 
closely related populations within the ESU (a) are considered part of 
the ESU, (b) will be considered in determining whether an ESU should be 
listed under the ESA, and (c) will be included in any listing of the 
ESU.
    3. Status determinations for Pacific salmonid ESUs will be based on 
the status of the entire ESU. In assessing the status of an ESU, NMFS 
will apply this policy in support of the conservation of naturally-
spawning salmon and the ecosystems upon which they depend, consistent 
with section 2(b) of the ESA. 16 U.S.C. 1531(b). Natural populations 
that are stable or increasing, are spawning in the wild, and have 
adequate spawning and rearing habitat reduce the risk of extinction of 
the ESU. Such natural populations, particularly those with minimal 
genetic contribution from hatchery fish, can provide a point of 
comparison for the evaluation of the effects of hatchery fish on the 
likelihood of extinction of the ESU.
    4. Status determinations for Pacific salmonid ESUs generally 
consider four key attributes: abundance, productivity, genetic 
diversity, and spatial distribution. The effects of hatchery fish on 
the status of an ESU will depend on which of the four key attributes 
are currently limiting the ESU, and how the hatchery fish within the 
ESU affect each of the attributes. The presence within an ESU of 
hatchery fish with a level of genetic divergence between the hatchery 
stocks and the local natural populations that is no more than what 
would be expected between closely related populations within the ESU 
can affect the status of the ESU, and thereby, affect a listing 
determination, by contributing to increasing abundance and productivity 
of the ESU, by improving spatial distribution, and by serving as a 
source population for repopulating unoccupied habitat. Conversely, a 
hatchery program managed without adequate consideration of its 
conservation effects can affect a listing determination by reducing 
genetic diversity of the ESU and reducing the productivity of the ESU. 
In evaluating

[[Page 31359]]

the effect of hatchery fish on the status of an ESU, the presence of a 
long-term hatchery monitoring and evaluation program is an important 
consideration.
    5. Hatchery programs are capable of producing more fish than may be 
immediately useful in the conservation and recovery of an ESU and can 
play an important role in fulfilling trust and treaty obligations with 
regard to harvest of some Pacific salmonid populations. For ESUs listed 
as threatened, NMFS will, where appropriate, exercise its authority 
under section 4(d) of the ESA to allow the harvest of listed hatchery 
fish that are surplus to the conservation and recovery needs of the ESU 
in accordance with approved harvest plans.

Request for Comments

    NMFS intends to base the final policy on the best available 
scientific and commercial information available, and take advantage of 
information and recommendations from all interested parties. Therefore, 
NMFS solicits comments and suggestions regarding this proposed policy 
from the public, as well as other concerned governmental agencies and 
tribal governments, the scientific community, industry, or any other 
party (see DATES and ADDRESSES). In addition, in a separate notice, 
NMFS will schedule public meetings on this proposed policy to provide 
the opportunity for the public to give comments and to permit an 
exchange of information and opinion. NMFS encourages the public's 
involvement in such ESA matters. Written comments on the proposed 
policy are solicited (see DATES and ADDRESSES). The final decision on 
this policy is expected to be published by January 2005 and will take 
into consideration the comments and any additional information received 
by NMFS. Such communications may lead to a decision that differs from 
this proposal.

References

    A complete list of all cited references, and an overview of the 
scientific literature regarding the potential benefits and risks of 
artificial propagation, is available upon request (see ADDRESSES) or 
via the internet at http://www.nwr.noaa.gov/HatcheryListingPolicy/References.html.

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

    Dated: May 28, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 04-12598 Filed 6-2-04; 8:45 am]
BILLING CODE 3510-22-S