[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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