[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Proposed Rules]
[Pages 37217-37219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12350]



  Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / 
Proposed Rules  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 040525161-5156-03; I.D. 020105C]


Endangered and Threatened Species: 6-month Extension of the Final 
Listing Determination for the Oregon Coast Evolutionarily Significant 
Unit of Coho Salmon

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

ACTION: Proposed rule; 6-month extension of the deadline for a final 
listing determination.

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SUMMARY: In June 2004, we (NMFS) proposed that the Oregon Coast coho 
Evolutionarily Significant Unit (ESU) (Oncorhynchus kisutch) be listed 
as a threatened species under the Endangered Species Act (ESA). In 
March 2005, the State of Oregon released a draft Oregon Coastal Coho 
Assessment (draft assessment) of the viability of the Oregon Coast coho 
ESU and the contributions of the Oregon Plan for Salmon and Watersheds 
(OPSW) to conserving the Oregon Coast coho ESU. The draft assessment 
concluded that the Oregon Coast coho ESU is viable. On February 9, 
2005, we announced in a Federal Register notice that we would consider 
the information presented by Oregon in determining the final listing 
status for the ESU, and we solicited public comment on the draft 
assessment. The comments received by NMFS and Oregon raised a number of 
concerns regarding the sufficiency and adequacy of the data and 
analyses used in the draft assessment. On May 6, 2005, Oregon released 
a final Oregon Coastal Coho Assessment (final assessment) that 
incorporates and responds to the comments received and includes several 
substantive changes in response, regarding the sufficiency and adequacy 
of the draft assessment.
    We are extending the deadline for the final listing determination 
for the Oregon Coast coho ESU by 6 months to analyze Oregon's final 
assessment in light of the comments received on the draft assessment. 
This extension will enable NMFS to make a final listing determination 
based upon the best available scientific information. Additionally, we 
are soliciting additional information regarding the sufficiency and 
adequacy of the final assessment.

DATES: All comments must be received no later than 5 p.m. Pacific 
standard time on July 28, 2005.

ADDRESSES: Copies of the final Oregon Coastal Coho Assessment are 
available on the Internet at: http://www.oregon-plan.org, or upon 
request (see FOR FURTHER INFORMATION CONTACT, below).
    You may submit comments, using a document identifier ``Oregon's 
Final Coastal Coho Assessment'' in the subject line or cover letter, on 
the final assessment 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.
     Federal e-Rulemaking Portal: http://www.regulations.gov.
     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.
    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 1995, we completed a comprehensive status review of West Coast 
coho salmon (Weitkamp et al., 1995) that resulted in proposed listing 
determinations for three coho ESUs, including a proposal to list the 
Oregon Coast coho ESU as a threatened species (60 FR 38011; July 25, 
1995). On October 31, 1996, we announced a 6-month extension of the 
final listing determination for the ESU pursuant to section 
4(b)(6)(B)(i) of the ESA, noting substantial disagreement regarding the 
sufficiency and accuracy of the available data relevant to the 
assessment of extinction risk and the evaluation of protective efforts 
(61 FR 56211). On May 6, 1997 (62 FR 24588), we withdrew our proposal 
to list the Oregon Coast coho ESU as threatened, based in part on 
conservation measures contained in the Oregon Coastal Salmon 
Restoration Initiative (Oregon Plan) and an April 23, 1997, Memorandum 
of Agreement (MOA) between NMFS and the State of Oregon which further 
defined Oregon's commitment to salmon conservation. We concluded that 
the implementation of harvest and hatchery reforms, and habitat 
protection and restoration efforts under the Oregon Plan and the MOA 
substantially reduced the risk of extinction faced by the Oregon Coast 
coho ESU. On June 1, 1998, the Federal District Court for the District 
of Oregon issued an opinion finding that our May 6, 1997, determination 
to not list Oregon Coast coho was arbitrary and capricious (Oregon 
Natural Resources Council et al. v. Daley, 6 F. Supp. 2d 1139 (D. Or. 
1998). The court vacated our determination to withdraw the July 25, 
1995, proposed rule (60 FR 38011) to list the Oregon Coast coho ESU and 
remanded the case to us for further consideration. The court held that 
the ESA does not allow us to consider the biological effects of future 
or voluntary conservation measures, and that we could give no weight to 
such measures in making a listing determination. We appealed the 
decision, and the District Court and the Ninth Circuit Court of Appeals 
declined to stay the District Court's order, thus requiring us to make 
a new determination. On August 10, 1998, we issued a final rule (63 FR 
42587) listing the Oregon Coast coho ESU as threatened, basing the 
determination solely on the information and data contained in the 1995 
status review (Weitkamp et al., 1995) and the May 6, 1997, proposed 
rule (62 FR 24588).
    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 
previous 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 1998 listing, 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

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improperly excluded hatchery stocks from listing that were otherwise 
determined to be part of the ESU. In 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 Oregon Coast coho ESU (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 Oregon Coast coho ESU as 
a threatened species (69 FR 33102). In the proposed rule, we noted that 
Oregon was initiating a comprehensive assessment of the viability of 
the Oregon Coast coho ESU and of the adequacy of actions under OPSW for 
conserving Oregon Coast coho. 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.
    In January 2005, Oregon made publicly available its draft 
assessment of the ESU's viability. The draft assessment also evaluated 
the certainty of implementation and effectiveness of OPSW measures in 
mitigating the risk of extinction for the Oregon Coast coho ESU, 
consistent with the joint NMFS/U.S. Fish and Wildlife Service Policy on 
Evaluating Conservation Efforts (68 FR 15100; March 28, 2003). The 
draft assessment concluded that: the Oregon Coast coho ESU is 
biologically viable; conservation measures under the OPSW have stopped, 
if not reversed, the deterioration of Oregon Coast coho habitats; and 
it is highly likely that existing monitoring efforts will detect any 
significant future deterioration in ESU viability, or degradation of 
environmental conditions, allowing a timely and appropriate response to 
conserve the ESU. On February 9, 2005, we published a notice of 
availability of the draft assessment for public review and comment in 
the Federal Register (70 FR 6840) and noted that information presented 
in the draft and final assessments would be considered in developing 
the final listing determination for the Oregon Coast coho ESU. The 
public comment period on the draft assessment extended through March 
11, 2005.
    We received 15 comments on Oregon's draft assessment (copies of the 
comments are available on the Internet at: http://www.nwr.noaa.gov/occd/DraftCohoReportComments/Comments_Index.html). On March 18, 2005, 
we forwarded these comments, as well as NMFS' technical review, for 
Oregon's consideration in developing their final assessment (NMFS, 
2005). The public comments and our review highlighted areas of 
uncertainty or disagreement regarding the sufficiency and accuracy of 
the draft assessment including: the assumption that Oregon Coast coho 
populations are inherently resilient at low abundance and that this 
compensatory response will prevent extinction during periods of low 
marine survival; the reduced importance of abundance as a useful 
indicator of extinction risk; uncertainty in abundance and hatchery 
fraction data that may result in an underestimation of extinction risk; 
assumptions regarding the duration and severity of future periods of 
unfavorable marine and freshwater conditions; the ability of monitoring 
and adaptive management efforts to detect population declines or 
habitat degradation and to identify and implement necessary protective 
measures; and the ability of OPSW measures to halt or reverse habitat 
degradation once detected.
    On May 13, 2005, Oregon issued its final assessment. The final 
assessment includes a summary of, and response to, the comments 
received on the draft assessment, and includes several substantive 
changes intended to address concerns raised regarding the sufficiency 
and accuracy of the draft assessment. The final assessment concludes 
that: (1) the Oregon Coast coho ESU is viable under current conditions 
and should be sustainable through a future period of adverse 
environmental conditions; (2) given the assessed viability of the ESU, 
the quality and quantity of habitat is necessarily sufficient to 
support a viable ESU; and (3) the integration of laws, adaptive 
management programs, and monitoring efforts under the OPSW will 
conserve and improve environmental conditions and the viability of the 
ESU into the foreseeable future.

Extension of Final Listing Determination

    ESA section 4(b)(6) requires that we take one of three actions 
within 1 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 Oregon's draft assessment, the concerns raised by commenters 
and our own review regarding the sufficiency and accuracy of the draft 
assessment, and the substantive changes made in Oregon's final 
assessment to address these concerns, we conclude that a 6-month 
extension of the final listing determination for the Oregon Coast coho 
ESU is warranted. For the final listing determination to be made solely 
on the basis of the best available scientific and commercial 
information, it is essential to resolve the substantial disagreement 
regarding the data and analyses supporting Oregon's conclusion that the 
ESU is biologically viable. Furthermore, an evaluation of protective 
efforts under OPSW must be made in the context of risks to the Oregon 
Coast coho ESU, and would be premature given the substantial 
disagreement regarding the sufficiency or accuracy of Oregon's 
extinction risk assessment. The 6-month extension will afford us the 
opportunity to solicit public comment regarding the validity of 
Oregon's final assessment (see ``Information Solicited'' section, 
below), to fully analyze Oregon's final assessment in light of the 
concerns raised with respect to the draft assessment, and to seek peer 
review of Oregon's final assessment consistent with the 1994 NMFS/U.S. 
Fish and Wildlife Service joint policy on peer review (59 FR 34270, 
July 1, 1994) and the Office of Management and Budget's Final 
Information Quality Bulletin for Peer Review (70 FR 2664; January 14, 
2005).

Information Solicited

    We are soliciting public comment on whether Oregon's final 
assessment adequately resolves the concerns raised regarding the 
sufficiency or accuracy of the data and analyses used in the draft 
assessment. The concerns raised are summarized in our review of the 
draft assessment, which is available on request (see FOR FURTHER 
INFORMATION CONTACT, above) or on the Internet at: http://www.nwr.noaa.gov/occd/DraftCohoReportComments/Comments_Index.html. 
Specifically, NMFS is soliciting public comment on whether Oregon's 
final assessment provides sufficient new information and analyses to 
alter our extinction risk assessment and proposed determination that 
the ESU is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its range 
(i.e., ``threatened''). Additionally, we are soliciting comment on 
whether the final assessment presents information and analyses 
demonstrating, consistent with the joint NMFS/U.S. Fish and Wildlife 
Service's Policy on Evaluating Conservation Efforts (68 FR 15100; March 
28, 2003), that the OPSW provides sufficient certainty of

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implementation and effectiveness to alter our proposed determination 
that efforts being made to protect the Oregon Coast coho ESU do not 
substantially mitigate the assessed level of extinction risk.

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. 05-12350 Filed 6-27-05; 8:45 am]
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