[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Proposed Rules]
[Pages 37219-37220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12348]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 040525161-5159-04; I.D. 052104F]
Endangered and Threatened Species: 6-month Extension of the Final
Listing Determinations for Ten Evolutionarily Significant Units of West
Coast Oncorhynchus mykiss
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; 6-month extension of the deadline for final
listing determinations.
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SUMMARY: In June 2004, we (NMFS) proposed that ten Evolutionarily
Significant Units (ESUs) of West Coast Oncorhynchus mykiss (O. mykiss,
which includes anadromous steelhead and resident rainbow trout) be
listed as endangered or threatened species under the Endangered Species
Act (ESA). In April-May 2005, we received three independent scientific
reports containing information on the relationship of anadromous and
resident O. mykiss and on the viability of ESUs containing a diversity
of types of populations. In June 2005, we received a letter from the
U.S. Fish and Wildlife Service (FWS), stating its concerns about the
basis for final listing determinations for the ten O. mykiss ESUs and
specifying three issues regarding the relationship between anadromous
and resident O. mykiss, over which there is substantial disagreement
about the underlying data.
We are extending the deadline for final listing determinations for
the ten O. mykiss ESUs for 6 months to analyze the three reports, to
work with FWS to resolve the disagreements about the data relevant to
its issues of concern, and to solicit additional information from
scientific studies and other newly available data. Additionally, we are
soliciting comments and information from the public regarding the
reports, the issues raised by FWS, and about resident and anadromous O.
mykiss generally. This extension will enable us to make a final listing
determination based upon the best available scientific information.
DATES: All comments must be received no later than 5 p.m. Pacific
standard time on July 28, 2005.
ADDRESSES: You may submit comments, using a document identifier ``O.
mykiss Issues'' in the subject line or cover letter, on the O. mykiss
reports and FWS' issues and any other relevant information by any of
the following methods:
E-mail: [email protected].
Mail: You may submit written comments and information to
Chief, NMFS, Protected Resources Division, 1201 NE Lloyd Boulevard,
Suite 1100, Portland, OR 97232.
Hand Delivery/Courier: You may hand deliver written
comments and information to NMFS, Protected Resources Division, 1201 NE
Lloyd Boulevard, Suite 1100, Portland, OR 97232. Business hours are 8
a.m. to 5 p.m., Monday through Friday, except Federal holidays.
Fax: 503-230-5441.
Federal e-Rulemaking Portal: http:///www.regulations.gov.
Copies of the Federal Register notices cited herein and additional
salmon-related materials are available on the Internet at http://www.nwr.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Scott Rumsey, NMFS, Northwest Region,
Protected Resources Division by phone at (503) 872-2791.
SUPPLEMENTARY INFORMATION:
Background
In 1996, we completed a comprehensive status review of West Coast
steelhead (Busby et al., 1996) that resulted in proposed listing
determinations for ten steelhead ESUs, five as endangered and five as
threatened species (61 FR 41541; August 9, 1996). On August 18, 1997,
we listed five of the ESUs, two as endangered and three as threatened
(62 FR 43937) and announced a 6-month extension of final listing
determinations for the other five ESUs, pursuant to section
4(b)(6)(B)(i) of the ESA (62 FR 43974). On March 10, 1998, we proposed
to list two additional steelhead ESUs as threatened (63 FR 11798). On
March 19, 1998, we listed as threatened two of the steelhead ESUs that
were deferred in August 1997 and designated the other three proposed
ESUs as candidate species (63 FR 13347). On March 25, 1999, we listed
as threatened the two ESUs proposed in March 1998 (64 FR 14517). On
February 11, 2000, we proposed to list the Northern California
steelhead ESU as threatened (65 FR 6960) and listed that ESU as
threatened on June 7, 2000 (65 FR 36074). Under these listing
decisions, there are currently ten listed steelhead ESUs, two
endangered and eight threatened.
In our initial steelhead listings, we noted uncertainties about the
relationship of resident and anadromous O. mykiss, yet concluded that
the two forms are part of a single ESU where the resident and
anadromous O. mykiss have the opportunity to interbreed (62 FR at
43941). FWS disagreed that resident O. mykiss should be included in the
steelhead ESUs and advised that the resident fish not be listed (62 FR
at 43941). Accordingly, we decided to list only the anadromous O.
mykiss at that time (62 FR at 43951). That decision was followed in
each of the subsequent steelhead listings described in the preceding
paragraph.
Section 3 of the ESA defines the term 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.'' In our listing determinations for Pacific salmonids, we
treat an ESU as constituting a distinct population segment (DPS), and
hence a ``species,'' under the ESA (56 FR 58612; November 20, 1991). In
past listing determinations, hatchery fish considered to be part of an
ESU were generally not included as part of a listing, unless it was
determined that they were ``essential for recovery'' (58 FR 17573;
April 5, 1993).
In 2001, the U.S. District Court in Eugene, Oregon, set aside the
1998 threatened listing of the Oregon Coast coho ESU (Alsea Valley
Alliance v. Evans, 161 F. Supp. 2d 1154, D. Or. 2001) (Alsea decision).
In the Oregon Coast coho listing (63 FR 42587; August 10, 1998), we did
not include in the listing ten hatchery stocks determined to be part of
the Oregon Coast coho ESU. The court ruled that the ESA does not allow
listing a subset of a DPS and that we had improperly excluded hatchery
stocks from listing that were otherwise determined to be part of the
ESU. In
[[Page 37220]]
response to the Alsea decision and several listing and delisting
petitions, we announced that we would conduct an updated status review
of 27 West Coast salmonid ESUs, including the ten listed steelhead ESUs
(67 FR 6215, February 11, 2002; 67 FR 48601, July 25, 2002; 67 FR
79898, December 31, 2002).
On June 14, 2004, we proposed to list the ten O. mykiss ESUs
(including the resident fish that co-occur with the anadromous form),
one as endangered and nine as threatened (69 FR 33102). In the proposed
rule, we noted that the Alsea decision required listing of an entire
ESU, in contrast to our prior steelhead-only listings, and stated the
scientific principles and working assumptions we used to determine
whether particular resident groups were part of an O. mykiss ESU that
included anadromous steelhead (69 FR at 33113). Following an initial
public comment period of 90 days, the public comment period was
extended twice for an additional 36 and 22 days(69 FR 53031, August 31,
2004; 69 FR 61348, October 18, 2004), respectively. During the comment
period, we received numerous comments disagreeing with our proposals
(generally and for specific resident populations) to include resident
O. mykiss in various ESUs and criticizing how we considered resident O.
mykiss in evaluating the risk to the continued existence of the whole
ESU.
On June 7, 2005, FWS wrote to NMFS (FWS, 2005), stating its
concerns about the factual and legal bases for our final listing
determinations for the ten proposed O. mykiss ESU listings. FWS
suggested that we invoke the ESA 4(b)(6)(B)(i) provision for extending
the final O. mykiss listing determinations ``to allow for further
scientific evaluation, data gathering, and debate among the scientific
experts within FWS and NMFS ....''
The specific areas that FWS identified where there is substantial
disagreement regarding the sufficiency or accuracy of available data on
which to make final listing decisions are: (1) the determination of the
O. mykiss ESUs, in particular whether resident and anadromous fish in a
region are in a single ESU; (2) the relatedness of co-occurring
resident and anadromous O. mykiss, including whether they form single,
routinely interbreeding populations, and whether resident O. mykiss
produce the anadromous life form and vice versa; and (3) assessment of
the risk of extinction of ESUs containing both resident and anadromous
O. mykiss, including the contributions of both types of populations to
the stability of the ESU.
In the last two months, we have received three reports from
independent scientific panels that bear directly on these areas of
disagreement raised by FWS. (1) On April 8, 2005, the Independent
Scientific Advisory Board hosted by the Northwest Power Planning
Council issued a report, in response to five questions from NMFS'
Northwest Fisheries Science Center, entitled ``Viability of ESUs
Containing Multiple Types of Populations'' (ISAB, 2005). (The report is
available at http://www.nwppc.org/library/isab/isab2005-2.htm). (2) On
May 5, 2005, the Recovery Science Review Panel hosted by the Northwest
Fisheries Science Center issued a report on its December 2004 meeting
on the relation between anadromous and resident forms of O. mykiss and
how life form diversity affects the viability of O. mykiss ESUs (RSRP,
2005). (The report is available at http://www.nwfsc.noaa.gov/trt/rsrp_docs/rsrpreportdec04finalwbios.pdf.) (3) On May 16, 2005, an
independent scientific panel convened by the Northwest and Southwest
Fisheries Science Centers issued a report entitled ``Considering Life
History, Behavioral, and Ecological Complexity in Defining Conservation
Units for Pacific Salmon'' (Hey et al., 2005). We are considering the
concepts and the scientific information presented in these reports,
both of which bear on the relationship of anadromous and resident O.
mykiss.
In addition, we are aware of ongoing genetic O. mykiss research by
NMFS and state wildlife agencies in Washington, Oregon, California, and
Alaska on the ability of resident fish to adopt an anadromous life
history and the degree of reproductive isolation between resident and
anadromous populations. This research specifically includes studies of
the Snake River Basin and Middle Columbia River O. mykiss ESUs, and
pertains generally to the issues of concern to FWS for all ten of the
O. mykiss ESUs proposed for listing.
Extension of Final Listing Determination
Section 4(b)(6) requires that we take one of three actions within
one year of a proposed listing: (1) finalize the proposed listing; (2)
withdraw the proposed listing; or (3) extend the final determination by
not more than 6 months. Section 4(b)(6)(B)(i) allows a 6-month
extension of the 1-year deadline for a final listing determination if
``there is substantial disagreement regarding the sufficiency or
accuracy of the available data relevant to the determination ... for
the purposes of soliciting additional data.'' In light of the concerns
raised by FWS and commenters on the proposed listings regarding the
sufficiency and accuracy of the data that will form the basis of our
final O. mykiss listings, and of the three recent independent
scientific reports related to these issues, we conclude that a 6-month
extension of the final listing determination for the ten O. mykiss ESUs
is warranted. The 6-month extension will afford us the opportunity to
discuss these issues and exchange information with FWS, to review and
assimilate the recent scientific panels' reports, to solicit an
additional year's data from the ongoing genetic studies, and to
consider additional information submitted by the public.
Information Solicited
We solicit public comment on the issues of concern raised by FWS
and seek information that may help resolve those issues. Specifically,
we request information about: the relationship between co-occurring
resident and anadromous O. mykiss populations; the range, distribution,
and habitat-use patterns of resident populations; the abundance,
density, and presence/absence of resident O. mykiss; genetic or other
relevant data indicating the amount of exchange and the degree of
historic and current relatedness between anadromous and resident O.
mykiss life forms; the existence of natural and artificial barriers to
anadromous populations; and the relationship of resident O. mykiss
located above impassible barriers to anadromous and resident
populations below such barriers.
References
A complete list of all references cited herein is available upon
request (see ADDRESSES), or can be obtained from the Internet at:
http://www.nwr.noaa.gov.
Authority: 16 U.S.C. 1531 et seq.
Dated: June 14, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 05-12348 Filed 6-27-05; 8:45 am]
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