Endangered and Threatened Species: 6-month Extension of the Final Listing Determination for the Oregon Coast Evolutionarily Significant Unit of Coho Salmon, 37217-37219 [05-12350]
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Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Proposed Rules
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
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.
AGENCY:
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.
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16:55 Jun 27, 2005
Jkt 205001
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: https://www.oregonplan.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:
FinalCohoAssessment.nwr@noaa.gov.
• 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 salmonrelated materials are available on the
Internet at https://www.nwr.noaa.gov.
FOR FURTHER INFORMATION CONTACT:
Scott Rumsey, NMFS, Northwest
Region, Protected Resources Division,
by phone at (503) 872–2791.
SUPPLEMENTARY INFORMATION:
DATES:
DEPARTMENT OF COMMERCE
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
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37217
(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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Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Proposed Rules
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: https://www.nwr.noaa.gov/occd/
DraftCohoReportComments/
CommentslIndex.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).
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16:55 Jun 27, 2005
Jkt 205001
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
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Fmt 4701
Sfmt 4702
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:
https://www.nwr.noaa.gov/occd/
DraftCohoReportComments/
CommentslIndex.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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Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Proposed Rules
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: https://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]
BILLING CODE 3510–22–S
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
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.
AGENCY:
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.
VerDate jul<14>2003
16:55 Jun 27, 2005
Jkt 205001
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:
OmykissIssues.nwr@noaa.gov.
• 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 salmonrelated materials are available on the
Internet at https://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
PO 00000
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37219
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
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]]>Agencies
[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Proposed Rules]
[Pages 37217-37219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12350]
Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 /
Proposed Rules
[[Page 37217]]
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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.
-----------------------------------------------------------------------
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: https://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: FinalCohoAssessment.nwr@noaa.gov.
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: https://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 https://
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
[[Page 37218]]
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: https://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: https://
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
[[Page 37219]]
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:
https://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]
BILLING CODE 3510-22-S
