[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Rules and Regulations]
[Pages 42605-42606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20315]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 0907291194-91213-01]
RIN 0648-XQ71


Listing Endangered and Threatened Species: Change in Status for 
the Upper Columbia River Steelhead Distinct Population Segment

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

ACTION:  Final rule; correcting amendment.

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SUMMARY:  We, NMFS, announce that the Upper Columbia River steelhead is 
reclassified as a threatened species consistent with a recent court 
ruling. We also correct the table of threatened fishes to indicate that 
the same species is listed as threatened under the Endangered Species 
Act of 1973 (ESA). This species was inadvertently dropped from the 
table during an unrelated rulemaking.

DATES: Effective August 24, 2009.

FOR FURTHER INFORMATION CONTACT:  For further information regarding 
this notice contact Eric Murray, NMFS, Northwest Region, (503) 231-
2378; or Marta Nammack, NMFS, Office of Protected Resources, (301) 713-
1401.

SUPPLEMENTARY INFORMATION:

Background

    In 1997, we completed a comprehensive status review of West Coast 
steelhead (Oncorhynchus mykiss) that resulted in ESA listings for Upper 
Columbia River (UCR) steelhead and nine other distinct population 
segments (DPSs) of West Coast steelhead (62 FR 43937; Busby et al., 
1996). At that time, we determined that the UCR steelhead was an 
endangered species. In January 2006, we reclassified the UCR steelhead 
from endangered to threatened based on an updated review that noted 
increasing steelhead abundance, more widespread spawning, and 
artificial propagation programs aimed at improving local adaptation and 
diversity within the range of this DPS (71 FR 834; January 5, 2006 ). 
The decision to downlist UCR steelhead was also based on our 
application of a recent Policy on the Consideration of Hatchery-Origin 
Fish in Endangered species Act Listing Determinations for Pacific 
Salmon and Steelhead (70 FR 37204: June 28, 2005). Subsequent to this 
downlisting, we also published protective regulations (71 FR 5178; 
February 1, 2006), designated critical habitat (70 FR 52630; September 
2, 2005), and adopted a recovery plan (72 FR 57303; October 10, 2007) 
for UCR steelhead. In April 2006, our decision to downlist UCR 
steelhead from endangered to threatened was challenged in the U.S. 
District Court for the Western District of Washington.
    On June 13, 2007, the district court ruled that we had erred in 
downlisting UCR steelhead, concluding that we had not given appropriate 
consideration to self-sustaining natural populations (Trout Unlimited 
v. Lohn, C06-0483-JCC, 2007). The result of this ruling was to return 
UCR steelhead to endangered status. We appealed that decision to the 
U.S. Court of Appeals for the Ninth Circuit, and on March 16, 2009, 
that court ruled that our downlisting did not violate the ESA and that, 
on remand, the district court should grant NMFS' motion for summary 
judgment. Accordingly, on June 18, 2009, the district court revised its 
ruling, effectively re-instating UCR steelhead to threatened status 
under the ESA.

Current Status

    Consistent with the Courts' rulings and our listing determination 
of January 5, 2006 (71 FR 834), the UCR steelhead is listed as 
threatened under the ESA. Critical habitat was designated for UCR 
steelhead on September 2, 2005 (70 FR 52630). The protective 
regulations issued for UCR steelhead on February 1, 2006 (71 FR 5178) 
are now effective. A recovery plan was adopted for UCR steelhead on 
October 9, 2007 (72 FR 57303).

Correcting Amendment

    In the May 9, 2006, issue of the Federal Register, we published a 
final rule to implement our determination to list elkhorn (Acropora 
palmata) and staghorn (A. cervicornis) corals as threatened species 
under the ESA (7l FR 26852). In the same action, we made a format 
change to ensure that all threatened species listed under sect;(223.102 
were in table format to match the threatened fishes table. By mistake, 
we did not include the already listed UCR steelhead DPS in Sec.  
223.102(c). This document corrects the table in Sec.  223.102(c) to 
include the UCR steelhead DPS as a threatened species.

References

    Copies of previous Federal Register Notices and reference materials 
are available on the Internet at http://www.nwr.noaa.gov, or upon 
request (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.


[[Page 42606]]


    Dated: August 17, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
Accordingly, 50 CFR part 223 is corrected by making the following 
correcting amendment:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543.

0
2. In Sec.  223.102, paragraph (c)(25) is added to the table to read as 
follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

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                       Species\1\                                                                                                      Citation(s) for
--------------------------------------------------------                Where Listed                    Citation(s) for Listing       Critical Habitat
             Common Name               Scientific Name                                                     Determination(s)            Designation(s)
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(c) * * *                             .................  .........................................  ..............................  ....................
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(25) Upper Columbia River steelhead       Oncorhynchus     U.S.A., WA, Distinct Population Segment     71 FR 834; January 5, 2006           70 FR 52630;
                                                mykiss             including all naturally spawned                                     September 2, 2005
                                                                  anadromous O. mykiss (steelhead)
                                                             populations below natural and manmade
                                                             impassable barriers in streams in the
                                                            Columbia River Basin upstream from the
                                                            Yakima River, Washington, to the U.S.-
                                                          Canada border, as well as six artificial
                                                               propagation programs: the Wenatchee
                                                          River, Wells Hatchery (in the Methow and
                                                              Okanogan Rivers), Winthrop NFH, Omak
                                                         Creek, and the Ringold steelhead hatchery
                                                                                         programs.
                                                                      * * * * * * *
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\1\Species includes taxonomic species, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996) and evolutionarily
  significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

[FR Doc. E9-20315 Filed 8-21-09; 8:45 am]
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