[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Notices]
[Pages 48455-48460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18254]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040511147-4147-01; I.D. 042804B]


Listing Endangered and Threatened Species and Designating 
Critical Habitat: Petitions to List the Cherry Point Stock of Pacific 
Herring as an Endangered or Threatened Species

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

ACTION: Notice of findings; request for information; and initiation of 
status review.

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SUMMARY: NMFS received a petition on January 22, 2004, to list the 
Cherry Point (Puget Sound, Washington) stock of Pacific herring (Clupea 
pallasi) as a threatened or endangered species under the Endangered 
Species Act (ESA). NMFS finds that the January 22, 2004, petition fails 
to present substantial scientific and commercial information indicating 
that the petitioned action may be warranted. On May 14, 2004, the same 
petitioners submitted additional scientific information, including 
information regarding the stock structure of the Cherry Point and other 
Pacific Northwest herring stocks. NMFS considers the petitioners' 
supplemental submission (in conjunction with the original January 22, 
2004, submission) as a distinct petition received by the agency on May 
14, 2004. NMFS finds that the supplemental May 14, 2004, petition does 
present substantial scientific and commercial information indicating 
that the petitioned action may be warranted. Accordingly, NMFS is 
initiating a status review of the species. To ensure that the status 
review is complete and based upon the best available scientific and 
commercial information, NMFS is soliciting information regarding: the 
population structure and viability of nearshore stocks of Pacific 
herring in Puget Sound (Washington) and the Strait of Georgia 
(Washington and British Columbia); efforts being made to protect the 
species; and potential peer reviewers.

DATES: Information and comments on the subject action must be received 
by October 12, 2004.

ADDRESSES: You may submit comments, identified by Docket No. 040511147-
4147-01, by any of the following methods:
     E-mail: [email protected]. Include Docket No. 
040511147-4147-01 in the subject line of the message.
     Agency Web Site: http://ocio.nmfs.noaa.gov/ibrm-ssi/index.shtml. Follow the instructions for submitting comments at: http://ocio.nmfs.noaa.gov/ibrm-ssi/process.shtml.
     Mail: Submit written comments and information to Chief, 
NMFS, Protected Resources Division, 525 NE Oregon Street, Suite 500, 
Portland, Oregon, 97232-2737. You may hand-deliver written comments to 
our office during normal business hours at the street address given 
above.
     Hand Delivery/Courier: NMFS, Protected Resources Division, 
525 NE Oregon Street, Suite 500, Portland, Oregon, 97232-2737.
     Fax: 503-230-5435

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

SUPPLEMENTARY INFORMATION:

Background

    On January 22, 2004, NMFS received a petition (hereafter referred 
to as ``the January 22nd petition'') from the Northwest Ecosystem 
Alliance, the Center for Biological Diversity, Ocean Advocates, People 
for Puget Sound, Public Employees for Environmental Responsibility, Sam 
Wright, and the Friends of the San Juans to find that the Cherry Point 
(Washington) stock of Pacific herring qualifies as a Distinct 
Population Segment (DPS) and warrants listing as a threatened or 
endangered species under the ESA. Subsequently, on May 14, 2004, the 
same petitioners submitted additional information including new genetic 
information on the stock structure of Pacific herring in Puget Sound 
and the Strait of Georgia (Washington) that had become available since 
NMFS' receipt of the January 22nd petition. Upon receipt of the 
supplemental information, NMFS had not made its 90-day finding on the 
January 22nd petition. NMFS is treating the supplemental submission, in 
conjunction with the information already submitted by the same 
petitioners on January 22, 2004, as a new petition received by the 
agency on May 14, 2004 (hereafter referred to as the ``May 14th 
petition''). Copies of the two petitions are available from NMFS (See 
ADDRESSES section, above, and ``References'' section, below).

ESA Statutory and Policy Provisions

    Section 4(b)(3) of the ESA contains provisions concerning petitions 
from interested persons requesting the

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Secretary of Commerce (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 and commercial information indicating that the petitioned 
action may be warranted. NMFS' ESA implementing regulations 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. In evaluating a petitioned action, the 
Secretary considers several factors, including whether the petition 
contains 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)).
    For the subject January 22\nd\ and May 14\th\ petitions, NMFS 
evaluated whether the information provided and cited therein meets the 
ESA's standard for ``substantial information.'' The agency also 
reviewed other information readily available to NMFS scientists (i.e., 
currently within agency files) to determine whether there is general 
agreement with the information presented in the petitions. NMFS further 
consulted with co-manager Pacific herring experts from the Washington 
Department of Fish and Wildlife (WDFW), and from Washington tribes 
including the Swinomish Indian Tribal Community, the Lummi Indian 
Nation, the Suquamish Tribe, and the Northwest Indian Fisheries 
Commission.
    Under the ESA, a listing determination may address a species, 
subspecies, or a DPS of any vertebrate species which interbreeds when 
mature (16 U.S.C. 1532(15)). On February 7, 1996, the U.S. Fish and 
Wildlife Service and NMFS adopted a policy to clarify the agencies' 
interpretation of the phrase ``distinct population segment of any 
species of vertebrate fish or wildlife'' (ESA section 3(15)) for the 
purposes of listing, delisting, and reclassifying a species under the 
ESA (51 FR 4722). The joint DPS policy identified two elements that 
must be considered when making DPS determinations: (1) The discreteness 
of the population segment in relation to the remainder of the species 
(or subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs.
    A population segment may be considered discrete if it satisfies 
either one of the following conditions: (1) it is markedly separated 
from other populations of the same biological taxon as a consequence of 
physical, physiological, ecological, or behavioral factors 
(quantitative measures of genetic or morphological discontinuity may 
provide evidence of this separation); or (2) it is delimited by 
international governmental boundaries across which there is a 
significant difference in exploitation control, habitat management or 
conservation status. Under the joint DPS policy, if a population is 
determined to be discrete, the agency must then consider whether it is 
significant to the taxon to which it belongs. Considerations in 
evaluating the significance of a population include: persistence of the 
discrete population in an unusual or unique ecological setting for the 
taxon; evidence that the loss of the discrete population segment would 
cause a significant gap in the taxon's range; evidence that the 
discrete population segment represents the only surviving natural 
occurrence of a taxon that may be more abundant elsewhere outside its 
historical geographic range; or evidence that the discrete population 
segment has marked genetic differences from other populations of the 
species.
    A species, subspecies, or DPS is ``endangered'' if it is in danger 
of extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA Sections 3(6) and 3(19), respectively).

Life History of Pacific Herring

    Pacific herring in the Eastern Pacific Ocean range from northern 
Baja California north to Cape Bathurst in the Beaufort Sea (Hart, 1973; 
Lassuy, 1989). They are also found in Arctic waters from Coronation 
Gulf, to the Chukchi Sea, and the Russian Arctic. In the Western 
Pacific they are found from Toyama Bay, Japan, west to Korea and the 
Yellow Sea (Haegele and Schweigert, 1985; Wang, 1986).
    Pacific herring adults move inshore during winter and early spring 
and reside in holding areas before moving to adjacent spawning grounds 
(Hay, 1985). Spawning grounds are typically in sheltered inlets, 
sounds, bays, and estuaries (Haegele and Schweigert, 1985). Pacific 
herring usually spawn in shallow subtidal zones, depositing adhesive 
eggs over algae, vegetation, or other substrates (Emmett et al., 1991). 
The location and timing of spawning for individual stocks are generally 
consistent and predictable from year to year (Hay et al., 1989; O'Toole 
et al., 2000).
    Herring spawning time varies with latitude, with earlier spawning 
times (e.g., early winter) occurring in the more southern latitudes of 
the species' range, and later spawning times (e.g., mid-summer) 
occurring toward the north of the species' range (Hay, 1985). In Puget 
Sound, spawning generally occurs from January to April, with peak 
spawning activity in February and March (Bargmann, 1998).
    Pacific herring larvae drift in the ocean currents after hatching 
and are abundant in shallow nearshore waters (Lassuy, 1989; Hay and 
McCarter, 1997). After 2 to 3 months, larvae metamorphose into 
juveniles which form large schools and remain primarily in inshore 
waters during their first summer. Juveniles usually stay in nearshore 
shallow-water areas until fall. After their first summer, juveniles may 
disperse to deeper offshore waters to mature (Stocker and Kronlund, 
1985), or reside year-round nearshore or in estuaries prior to spawning 
(Hay, 1985). For example, in Puget Sound some herring stocks spend 
their entire life residing within Puget Sound, while other stocks are 
migratory and occur during summer in the coastal areas off Washington 
and southern British Columbia (Trumble, 1983). The age at first 
maturity is generally 2 to 5 years (Hay, 1985), with lengths ranging 
from 13 to 26 cm (Garrison and Miller, 1982; Emmett et al., 1991). In 
Puget Sound, Pacific herring reach sexual maturity at age-2 to age-4 
(Bargmann, 1998), while stocks in the Strait of Georgia and other major 
Pacific herring assessment areas in British Columbia reach sexual 
maturity at age-3 (Hay and McCarter, 1999). Herring may spawn annually 
for several years (Bargmann, 2001), with fecundity increasing as their 
body size increases (Hart, 1973).
    In the state of Washington there are 21 documented spawning stocks: 
19 stocks in Puget Sound (including the Cherry Point stock and the 
recently re-discovered Woolochet Bay stock), and two on the Washington 
Coast (Bargmann, 1998; Koenings, 2000). The Cherry Point herring stock 
spawns along the coastline from the north end of Bellingham Bay and 
Lummi Island (Washington), north to Point Roberts (Canada) (Lemberg et 
al., 1997). The Cherry Point stock exhibits later spawning time (late 
March to early June) than other Puget Sound stocks (January to late 
April) (Lemberg et al., 1997), but

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similar to some locations in British Columbia (Stout et al., 2001).

Relationship of Stock and DPS Concepts

    Pacific herring in the vicinity of Cherry Point (Washington) are 
considered to be a stock for management purposes in the state of 
Washington (Bargmann, 1998). There is no definition of the term 
``stock'' that is generally accepted by all fisheries biologists (Stout 
et al., 2001). The term stock has been used to refer to: fish spawning 
in a particular place or time, separated to a substantial degree from 
fish spawning in a different place or time (Ricker, 1972); a population 
sharing a common environment that is sufficiently discrete to warrant 
consideration as a self-perpetuating system that can be managed 
separately (Larkin, 1972); a species group or population of fish that 
maintains and sustains itself over time in a definable area (Booke, 
1981); and, an intraspecific group of randomly mating individuals with 
temporal or spatial integrity (Ihssen et al., 1981). None of these 
definitions imply that a fish stock is ecologically, biologically, or 
physiologically significant in relation to the biological species as a 
whole. Hence, information establishing a group of fish as a stock, such 
as the Cherry Point stock of Pacific herring, does not necessarily 
qualify it as a DPS. A DPS may be composed of a group of related 
stocks, or in some cases (if the evidence warrants) a single stock, 
that form(s) a discrete population and are (is) significant to the 
biological species as a whole.

2001 Pacific Herring Status Review

    NMFS completed a status review of Pacific Herring in 2001 (Stout et 
al., 2001). NMFS initiated this review in response to a petition 
received in February 1999 to list 18 species of marine fishes in Puget 
Sound, including Pacific herring. NMFS concluded that the Pacific 
herring stocks in Puget Sound do not constitute a DPS, and thereby do 
not qualify as a ``species'' under the ESA. NMFS found that these 
stocks, including the Cherry Point herring stock, belonged to a larger 
Georgia Basin Pacific herring DPS consisting of inshore stocks from 
Puget Sound and the Strait of Georgia (64 FR 17659; April 3, 2001). The 
stocks within the Georgia Basin DPS exhibit consistent spawning times 
and locations. There is considerable evidence of straying by adults and 
juveniles (Hay et al., 1999), resulting in little genetic 
differentiation among stocks. NMFS noted that several herring stocks 
within the Georgia Basin DPS (including the Cherry Point stock) have 
shown marked declines in range and abundance, and are classified as 
``depressed'' or ``critical'' by the state of Washington (Bargmann, 
1998). However, NMFS concluded that the Georgia Basin Pacific herring 
DPS is not threatened or endangered throughout all or a significant 
portion of its range (64 FR 17659; April 3, 2001).

Analysis of the Petitions

    NMFS evaluated the petitions to determine if they present 
substantial scientific and commercial information to suggest that the 
Cherry Point herring stock may qualify as a DPS, and, if so, that such 
a DPS may be threatened or endangered throughout all or a significant 
portion of its range. NMFS was especially interested in information 
that was not considered in the Stout et al. (2001) Pacific herring 
status review. Essential considerations in evaluating the petitions 
included whether they present substantial information indicating: (1) 
the discreteness of the Cherry Point herring stock; (2) the 
significance of the Cherry Point herring stock; and, if these first two 
were satisfied, (3) the risk to the survival of a putative Cherry Point 
Pacific herring DPS throughout all or a significant portion of its 
range.
    Upon receipt of the January 22\nd\ petition, scientists at NMFS' 
Northwest Fisheries Science Center (NWFSC) evaluated the information 
contained therein, as well as other information available to the 
agency. Additionally, NMFS consulted with co-manager Pacific herring 
experts from the WDFW and Washington tribes. The NWFSC presented its 
review of the January 22\nd\ petition in a March 30, 2004, memorandum 
(NMFS, 2004a). Upon receipt of the May 14\th\ petition, the NWFSC 
evaluated the information contained therein, in conjunction with the 
material previously submitted in the January 22nd petition. This latter 
review is presented in a July 19, 2004 memorandum (NMFS, 2004b). NMFS' 
analysis of the petitions is summarized below, and organized with 
respect to the discreteness, significance, and survival risk of the 
Cherry Point Pacific herring stock.

January 22nd Petition

Discreteness of the Population Segment

    Genetic Information NMFS' 2001 determination of a Georgia Basin 
Pacific herring DPS considered, in part, genetic analyses of protein 
variants called ``allozymes'' (Utter, 1972; Utter et al., 1974; Grant, 
1979, 1981; Grant and Utter, 1984). Allozyme variation in Pacific 
herring indicates genetic differentiation over relatively large 
geographic areas, such as among herring in Asia, the East Bering Sea, 
the Gulf of Alaska, and the Eastern North Pacific (Grant and Utter, 
1984). The January 22\nd\ petition presents genetic information that 
the petitioners contend suggest that the Cherry Point herring stock is 
discrete under the joint DPS policy. The January 22\nd\ petition 
presents new genetic information from the Canadian Department of 
Fisheries and Oceans (Beacham et al., 2001, 2002) addressing the Cherry 
Point stock and stocks in British Columbia.
    Beacham et al. (2001), using microsatellite DNA analyses, compared 
levels of genetic distance among 65 herring samples from Southeast 
Alaska, British Columbia, and Washington. Microsatellite DNA markers, 
such as those used in Beacham et al. (2001), can potentially detect 
stock structure on finer spatial and temporal scales than can other DNA 
or protein markers (Stout et al., 2001). Beacham et al. (2001) found no 
genetic differentiation among samples from the five British Columbia 
herring management stocks. However, a few samples, including the sample 
from Cherry Point, exhibited statistically significant allele frequency 
differences at some microsatellite loci compared to other samples in 
the study. The petitioners conclude in the January 22\nd\ petition, on 
the basis of the Beacham et al. (2001) study, that Cherry Point herring 
are genetically discrete compared to other herring stocks.
    NMFS does not agree with the interpretation of Beacham et al. 
(2001) presented in the January 22\nd\ petition. The study lacks the 
necessary spatial and temporal coverage of samples to draw any firm 
conclusions regarding the discreteness of the Cherry Point stock. 
First, the study focused on the stock structure of herring in British 
Columbia. The Cherry Point sample analyzed in this study was the only 
sample from herring stocks in Washington State and Puget Sound; hence 
the study design does not inform considerations of population structure 
within the Puget Sound, Washington portion of the Georgia Basin DPS. 
Second, although Beacham et al. (2001) did indeed find statistically 
significant differentiation between the (single) Cherry Point sample 
and the geographically closest Canadian sampling sites, a single sample 
does not provide persuasive evidence of population discreteness. The 
authors noted that the result may be a sampling artifact. The 
individual Strait of Georgia samples were collected over several years 
from 1997-2000, while the Cherry Point sample was collected in 2000. 
The authors

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cautioned that it is premature to reach conclusions about population 
structure given the samples analyzed; additional samples are needed to 
evaluate whether differentiation among sites is stable over time. For 
genetic differences to signify substantial reproductive isolation among 
populations, rather than annual variation or sampling error, 
differences among putative populations over time must generally be 
larger than the temporal variation within populations (Beacham et al., 
2001; Waples, 1998).
    An updated version of the Beacham et al., (2001) study has included 
additional sampling locations, and has added additional temporal 
samples at several locations (Beacham et al., 2002). However, as in the 
Beacham et al. (2001) study, only a single May 2000 Cherry Point sample 
is included in the analysis. Without samples collected in multiple 
years it is impossible to analyze the temporal stability of genetic 
differences found between the single Cherry Point sample and British 
Columbia samples collected in other years (Beacham et al., 2002).
    Although NMFS is very supportive of ongoing genetic research on the 
stock structure of Pacific herring, such as the research of Beacham et 
al. (2001, 2002) and others, the new genetic information included in 
the January 22\nd\ petition does not present substantial information to 
suggest that the Cherry Point stock is discrete, or that NMFS' 2001 
determination of a Georgia Basin Pacific Herring DPS otherwise needs to 
be re-examined (NMFS, 2004a).
    Physiological Information - The January 22\nd\ petition presents 
new physiological information to suggest that the Cherry Point stock is 
discrete under the joint DPS policy. Gao et al. (2001) analyzed the 
composition of herring otoliths (small calcium carbonate structures 
found in the heads of all bony fishes that function in fish hearing and 
balance) among three stocks in Puget Sound. The ratios of stable 
isotopes of oxygen and carbon vary naturally in the marine environment, 
predominantly due to temperature and salinity. Otoliths deposit daily 
growth increments, incorporating the stable isotopic composition of the 
surrounding environment. Fish that rear in environments with distinct 
isotopic signatures can be distinguished by analyzing the isotopic 
composition of their otoliths. Gao et al. (2001) compared the isotopic 
ratios of otolith nuclei (representing the isotopic composition during 
the first 6 months of growth) among spawning adult herring from Cherry 
Point and two locations in south Puget Sound. Gao et al. (2001) found a 
statistically significant difference in isotopic composition between 
the Cherry Point samples and the samples from the two south Puget Sound 
locations. Their findings suggest that Cherry Point herring are a 
separate stock, consistent with the findings of Bargmann (1998) and 
Lemberg et al. (1997). However, some of the Cherry Point samples in Gao 
et al. (2001) exhibited isotopic ratios characteristic of the south 
Puget Sound samples. This observation suggests that some herring adults 
that reared elsewhere in Puget Sound may have strayed to the Cherry 
Point vicinity to spawn, or that water conditions characteristic of the 
south Puget Sound locations may also occur in the vicinity of Cherry 
Point. In NMFS' 2001 status review, considerable evidence of straying 
by adults and juveniles among stocks differing in spawning time and 
location argued for the delineation of the larger Georgia Basin DPS. 
NMFS concludes that the findings of Gao et al. (2001) are consistent 
with its 2001 DPS finding (NMFS, 2004a). While the stable isotope 
analysis may provide useful insights to early rearing conditions and 
stock structure, they do not provide substantial information regarding 
the physiological discreteness of the Cherry Point stock.
    Behavioral and Ecological Information - In the January 22\nd\ 
petition the petitioners also discuss distinct patterns in spawning 
time and location (Lemberg et al., 1997), and parasitic communities 
(O'Toole et al., 2000; Trumble, 1983; Hershberger, 2002) in Cherry 
Point herring relative to other stocks. These patterns, however, were 
discussed in detail in NMFS' 2001 status review (Stout et al., 2001) in 
identifying the Georgia Basin Pacific herring DPS. As noted in the 
``Relationship of Stock and DPS Concepts'' section above, patterns that 
establish a group of fish as a stock do not necessarily indicate that 
it is a DPS.
    The January 22\nd\ petition fails to present substantial 
information relevant to the discreteness of the Cherry Point stock 
(NMFS, 2004a).

Significance of the Population Segment

    With respect to the considerations for significance articulated in 
the DPS policy, the petitioners assert in the January 22\nd\ petition 
that the Cherry Point herring stock is significant to the taxon to 
which it belongs because it: exhibits marked differences in genetic 
characteristics from other populations; and occupies a unique 
ecological setting for the taxon. Except for the study by Beacham et 
al. (2001) discussed above, the January 22\nd\ petition does not 
present any information pertaining to the potential genetic 
significance of the Cherry Point stock to Pacific herring that was not 
considered in NMFS' 2001 status review. For the reasons set forth above 
(in the ``Discreteness - Genetic Information'' section), the Beacham et 
al. (2001, 2002) studies do not indicate that the Cherry Point stock 
exhibits marked differences in genetic characteristics, or is otherwise 
significant to the taxon to which it belongs. In the 2001 status review 
NMFS concluded that the Cherry Point herring stock does not represent a 
unique ecological setting for Pacific herring, as similar environmental 
conditions exist for several herring populations in British Columbia 
(Stout et al., 2001). The January 22\nd\ petition fails to present 
substantial information pertaining to the significance of the Cherry 
Point ecological setting with respect to the species (NMFS, 2004a).

Survival Risk

    Since the January 22\nd\ petition does not present substantial 
information to suggest that the Cherry Point stock may warrant 
delineation as a separate DPS (NMFS, 2004a), it is unnecessary to 
consider survival risk in evaluating whether the petitioned action may 
be warranted.

Finding on January 22\nd\ Petition

    After reviewing the information contained in the January 22\nd\ 
petition, as well as information readily available to NMFS scientists, 
NMFS determines that it fails to present substantial scientific and 
commercial information indicating the petitioned action may be 
warranted for the Cherry Point stock of Pacific herring.

May 14th Petition

Discreteness of the Population Segment

    The May 14\th\ petition presents additional new genetic information 
from WDFW (Small et al., 2004) addressing the relatedness of the Cherry 
Point and other herring stocks in Puget Sound. Small et al. (2004) 
describe microsatellite DNA variation within and among 16 samples of 
Pacific herring, including 12 samples from Puget Sound, 4 of which were 
samples from the Cherry Point stock from different years. Similar to 
the Beacham et al. (2001, 2002) studies (described above under the 
January 22\nd\ petition), the Small et al. (2004) study found low 
levels of genetic differentiation among samples. However, the four 
Cherry Point samples were consistently differentiated from other Puget 
Sound samples, providing some evidence for potential population 
discreteness. The new information

[[Page 48459]]

presented in the May 14\th\ petition, in combination with the 
information presented in the January 22\nd\ petition (e.g., the Beacham 
et al. 2001, 2002 studies), represents substantial information 
pertaining to the discreteness of the Cherry Point stock of Pacific 
herring (NMFS, 2004b).
    The results of Small et al. (2004) need to be reconciled with other 
studies (not presented in the petitions but currently within agency 
files) that seem to indicate that the Cherry Point stock is not 
discrete. Three recent studies evaluating the distribution patterns of 
Pacific herring, using an extensive herring tagging database for 
British Columbia, do not appear to point to the discreteness of the 
Cherry Point stock (Hay et al., 2001; Hay and McKinnell, 2002; Ware and 
Schweigert, 2001). Additionally, two other studies (Markiewicz et al., 
2001; Landis et al., 2004) provide some evidence of episodic 
immigration into the Cherry Point stock from other stocks in years of 
high abundance, although the data are subject to alternative 
interpretations. These studies suggesting that the Cherry Point herring 
stock may be part of a larger metapopulation need to be reconciled with 
the genetic differentiation described by Small et al. (2004).

Significance of the Population Segment

    Under the joint DPS policy, a discrete population segment may be 
significant to the taxon to which it belongs if there is evidence that 
it differs markedly from other populations its genetic characteristics 
(61 FR 4722; February 7, 1996). The new genetic information presented 
in the May 14th petition (i.e., Small et al., 2004) presents 
substantial information indicating that the Cherry Point Pacific 
herring stock may be significant with respect to the species.

Survival Risk

    The majority of the information in the January 22\nd\ petition and 
the May 14\th\ petition regarding the abundance, trends, and survival 
risk of the Cherry Point stock was evaluated in NMFS' 2001 status 
review. The petitions provide additional information regarding spawner 
biomass estimates for 2001-2004 for the period since the status review. 
The petitioners note that the Cherry Point herring stock has declined 
dramatically over the last three decades, with the spawning biomass in 
2000 representing a 94 percent decline from historical observations. 
The 2001 status review noted that a decline of this magnitude meets an 
International Union for the Conservation of Nature and Natural 
Resources (IUCN) criterion for ``vulnerable'' species considered to be 
facing a high risk of extinction in the wild (Stout et al., 2001). 
Additionally, a quantitative analysis of trends in Cherry Point herring 
biomass indicated that, at the time of the 2001 status review, there 
was a 50 percent chance that the Cherry Point stock would decline to 
one ton or less in 100 years (Stout et al., 2001). Although the Cherry 
Point stock has more than doubled in spawner biomass over the past 4 
years and is at its highest level since 1996, the spawner biomass is at 
half the level set by WDFW (Bargmann, 2001) as necessary for the stock 
to maintain itself and provide harvest (although a stock below optimal 
harvest levels is not necessarily in danger of extinction or likely to 
become so in the foreseeable future). Given that the May 14\th\ 
petition presents substantial information that the Cherry Point stock 
may warrant delineation as a separate DPS (see May 14\th\ petition 
``Discreteness'' and ``Significance'' sections, above), the information 
previously reviewed in 2001 (Stout et al., 2001) and reiterated in the 
petitions represents substantial information indicating that a putative 
Cherry Point DPS may be threatened or endangered throughout all or a 
significant portion of its range (NMFS, 2004b).

Finding on May 14\th\ Petition

    After reviewing the information contained in the petitions 
regarding the Cherry Point stock of Pacific herring, consulting with 
co-manager herring experts, and reviewing information readily available 
to NMFS scientists, NMFS determines that the May 14th petition presents 
substantial scientific and commercial information indicating that the 
petitioned action may be warranted. In accordance with section 
4(b)(3)(B) of the ESA and NMFS' implementing regulations (50 CFR 
424.14(b)(2)), NMFS will commence a review of the status of the species 
concerned and make a determination of whether the petitioned action is 
warranted within 12 months of receiving the May 14th petition.

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 continued 
existence. Listing 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

DPS Structure and Extinction Risk of Pacific Herring

    To ensure that the updated status review is complete and based on 
the best available and most recent scientific and commercial data, NMFS 
is soliciting information and comments (see DATES and ADDRESSES) 
concerning the Georgia Basin DPS of Pacific herring, inclusive of the 
Cherry Point herring stock. NMFS is soliciting information on inshore 
herring stocks from Puget Sound (Washington) and the Strait of Georgia 
(Washington and British Columbia) such as: (1) biological or other data 
relevant to determining the DPS structure of Pacific herring in Puget 
Sound and the Strait of Georgia (e.g., age structure, genetics, 
migratory patterns, morphology, physiology); (2) the abundance and 
biomass, as well as the spatial and temporal distribution of herring 
stocks in Puget Sound and the Strait of Georgia; (3) trends in 
abundance and distribution; (4) natural and human-influenced factors 
that cause variability in survival, distribution, and abundance; and 
(5) current or planned activities and their possible impact on Pacific 
herring (e.g., harvest measures and habitat actions). NMFS is 
particularly interested in such information for the period since the 
2001 status review of Pacific herring.

Efforts Being Made to Protect Pacific Herring

    Section 4(b)(1)(A) of the ESA requires the Secretary to make 
listing determinations solely on the basis of the best scientific and 
commercial data available after conducting a review of the status of a 
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. NMFS then assesses conservation measures to determine 
whether they ameliorate a species' extinction risk (50 CFR 424.11(f)). 
In judging the efficacy of conservation efforts, NMFS considers the 
following: the substantive, protective, and conservation elements of 
such efforts; the degree of certainty that such efforts will reliably 
be implemented; the degree of certainty that such efforts will be 
effective in furthering the conservation

[[Page 48460]]

of the species; and the presence of monitoring provisions to determine 
effectiveness of recovery efforts and that permit adaptive management 
(68 FR 15100; March 28, 2003). In some cases, conservation efforts may 
be relatively new or may not have had sufficient time to demonstrate 
their biological benefit. In such cases, provisions of adequate 
monitoring and funding for conservation efforts are essential to ensure 
that the intended conservation benefits are realized. NMFS encourages 
all parties to submit information on ongoing efforts to protect and 
conserve Pacific herring in Washington and British Columbia, as well as 
information on recently implemented or planned activities (i.e., since 
the 2001 status review) and their likely impact(s).

Identification of Peer Reviewers

    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. If NMFS 
determines that listing is warranted, the agency will solicit the 
expert opinions of at least three qualified specialists, concurrent 
with the public comment period following the publication of a proposed 
rule. In advance of any such determination, NMFS is soliciting the 
names and affiliations of potential independent peer reviewers from the 
academic and scientific community, Native American tribal groups, 
federal and state agencies, and the private sector.

References

    Copies of the petition and related materials are available on the 
Internet at http://www.nwr.noaa.gov/1salmon/salmonesa/herring/reference.html, or upon request (see ADDRESSES section above).

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

    Dated: August 4, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 04-18254 Filed 8-9-04; 8:45 am]
BILLING CODE 3510-22-S