Endangered and Threatened Species: Final Listing Determinations for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations for Threatened Salmonid ESUs, 37160-37204 [05-12351]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37160-37204]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12351]



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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 223 and 224



Endangered and Threatened Species; Final Listing Determinations; Final 
Rules and Proposed Rules

Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 040525161-5155-02; I.D. 052104F]
RIN No. 0648-AR93


Endangered and Threatened Species: Final Listing Determinations 
for 16 ESUs of West Coast Salmon, and Final 4(d) Protective Regulations 
for Threatened Salmonid ESUs

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

ACTION: Final rule.

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SUMMARY: We, NOAA's National Marine Fisheries Service (NMFS), are 
issuing final determinations to list 16 Evolutionarily Significant 
Units (ESUs) of West Coast salmon (chum, Oncorhynchus keta; coho, O. 
kisutch, sockeye, O. nerka; Chinook, O. tshawytscha; pink, O. 
gorbuscha) under the Endangered Species Act (ESA) of 1973, as amended. 
We have concluded that four ESUs are endangered, and twelve ESUs are 
threatened, in California, Oregon, Washington, and Idaho. Fifteen of 
these ESUs were previously listed as threatened or endangered under the 
ESA, and one ESU was previously designated as a candidate species. With 
respect to the Oregon Coast coho ESU and ten O. mykiss ESUs, we have 
found that substantial disagreement regarding the sufficiency or 
accuracy of the relevant data precludes making final listing 
determinations at this time, and accordingly we are extending the 
deadline for making our final determinations for these 11 ESUs for an 
additional 6 months. The findings regarding the extension of the final 
listing determination for the Oregon Coast coho ESU and for the ten O. 
mykiss ESUs appear in the Proposed Rules section in today's Federal 
Register issue. The ten O. mykiss ESUs were previously listed and 
remain listed pending final agency action.
    Also in this notice, we are finalizing amendments to the ESA 4(d) 
protective regulations for threatened salmonid ESUs. As part of the 
proposed listing determinations in June 2004, we proposed changes to 
these protective regulations to provide the necessary flexibility to 
ensure that fisheries and artificial propagation programs are managed 
consistently with the conservation needs of ESA-listed ESUs, and to 
clarify the existing regulations so that they can be more efficiently 
and effectively interpreted and followed by all affected parties.
    Finally, we are soliciting biological and economic information 
relevant to designating critical habitat for the Lower Columbia River 
coho salmon ESU.

DATES: This final rule is effective August 29, 2005.

ADDRESSES: Correspondence concerning this final rule may be addressed 
to Chief, Protected Resources Division, Northwest Region, NMFS, 1201 
Lloyd Boulevard, Suite 1100, Portland, Oregon, 97232-1274; or Chief, 
Protected Resources Division, Southwest Region, NMFS, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA, 90802-4213.
    Information relevant to designating critical habitat for the Lower 
Columbia River coho ESU may be submitted by: standard mail to Steve 
Stone, Protected Resources Division, Northwest Region, NMFS, 1201 Lloyd 
Boulevard, Suite 1100, Portland, Oregon, 97232-1274; e-mail to 
LCRcoho--CH.nwr@noaa.gov; or fax to (503) 230-5441. Please include the 
identifier ``Information RE: Critical Habitat for Lower Columbia River 
Coho'' with any information submitted.

FOR FURTHER INFORMATION CONTACT: For further information regarding the 
final listing determinations and the final amendments to the 4(d) 
protective regulations please contact Scott Rumsey, NMFS, Northwest 
Region, (503) 872-2791; Craig Wingert, NMFS, Southwest Region, (562) 
980-4021; or Marta Nammack, NMFS, Office of Protected Resources, (301) 
713-1401. For further information concerning the information request 
regarding critical habitat for Lower Columbia River coho salmon, please 
contact Steve Stone, NMFS, Northwest Region, (503) 231-2317.

SUPPLEMENTARY INFORMATION: The ESA listing determinations and the 
amended 4(d) protective regulations for threatened ESUs described in 
this document are effective August 29, 2005. The take prohibitions 
applicable to threatened species do not apply to activities specified 
in an application for a permit or a 4(d) approval for scientific 
purposes or to enhance the conservation or survival of the species, 
provided that the application has been received by the Assistant 
Administrator for Fisheries, NOAA (AA), no later than August 29, 2005. 
This ``grace period'' for pending research and enhancement applications 
will remain in effect until the issuance or denial of authorization, or 
December 28, 2005, whichever occurs earliest. Additionally, biological 
and economic information regarding critical habitat for the Lower 
Columbia River coho ESU must be received no later than 5 p.m. P.S.T. on 
August 29, 2005 (see ADDRESSES and Information Solicited).

Organization of This Final Rule

    This Federal Register notice describes the final listing 
determinations for 16 ESUs of West Coast salmon under the ESA, as well 
as final amendments to the 4(d) protective regulations for threatened 
ESUs. The pages that follow summarize the comments and information 
received in response to the proposed listing determinations and 
proposed protective regulations (69 FR 33102; June 14, 2004), describe 
any changes from the proposed listing determinations and proposed 
protective regulations, and detail the final listing determinations for 
16 ESUs and the final protective regulations for threatened ESUs. To 
assist the reader, the content of this notice is organized as follows:

    I. Review of Necessary Background Information.
     Statutory basis for Listing Species Under the 
Endangered Species Act.
     Life History of West Coast Salmon.
     NMFS' Past Pacific Salmonid ESA Listings and the Alsea 
Decision.
     Initiation of Coast-Wide ESA Status Reviews for 27 ESUs 
of Pacific Salmonids.
    II. Summary of Comments and Information Received in Response to 
the Proposed Rule.
     Comments on the Consideration of Artificial Propagation 
in Listing Determinations.
     Comments on the Consideration of Efforts Being Made to 
Protect the Species.
     Comments on the Proposed Take Prohibitions and 
Protective Regulations.
     Comments on ESU-Specific Issues.
    III. Summary of Changes from the Proposed Listing Determinations 
and Proposed Protective Regulations.
    IV. Treatment of the Four Listing Determination Steps for Each 
ESU Under Review.
    (1) Determination of ``Species'' under the ESA
    (2) Viability Assessments of ESUs and Summary of Factors 
Affecting the Species
    (3) Evaluation of Efforts Being Made to Protect West Coast 
Salmonids
    (4) Final Listing Determinations of ``threatened,'' 
``endangered,'' or ``not warranted,'' based on the foregoing 
information
    V. Take Prohibitions and Protective Regulations
    VI. Identification of Those Activities That Would Constitute a 
Violation of Section 9 of the ESA
    VII. Effective Date of the Final Listing Determinations and 
Protective Regulations
    VIII. Summary of agency efforts in designating Critical Habitat 
for listed salmon and O. mykiss ESUs, and a summary of Information 
Solicited regarding critical

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habitat for the Lower Columbia River coho ESU
    IX. Description of the Classification, NMFS' compliance with 
various laws and executive orders with respect to this rulemaking 
(e.g., National Environmental Policy Act, Regulatory Flexibility 
Act)
    X. Description of amendments to the Code of Federal Regulations 
(List of Subjects). This section itemizes the specific changes to 
Federal law being made based on the foregoing information:
     Amendments to the list of threatened and endangered 
species
     Amendments to the protective regulations for threatened 
West Coast salmonids

Background

Listing Species Under the Endangered Species Act

    NMFS is responsible for determining whether species, subspecies, or 
distinct population segments (DPSs) of Pacific salmon and steelhead are 
threatened or endangered under the Endangered Species Act (ESA) (16 
U.S.C. 1531 et seq). To be considered for listing under the ESA, a 
group of organisms must constitute a ``species,'' which is defined in 
section 3 of the ESA to include ``any subspecies of fish or wildlife or 
plants, and any distinct population segment [emphasis added] of any 
species of vertebrate fish or wildlife which interbreeds when mature.'' 
In this notice, we are issuing final listing determinations for DPSs of 
Pacific salmon. To qualify as a DPS, a Pacific salmon population must 
be substantially reproductively isolated from other conspecific 
populations and represent an important component in the evolutionary 
legacy of the biological species. A population meeting these criteria 
is considered to be an ESU (56 FR 58612; November 20, 1991). In our 
previous listing determinations for Pacific salmonids under the ESA, we 
have treated an ESU as constituting a DPS, and hence a ``species,'' 
under the ESA.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The statute 
lists factors that may cause a species to be threatened or endangered 
(ESA section 4(a)(1)): (a) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (b) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (c) disease or predation; (d) the inadequacy of 
existing regulatory mechanisms; or (e) other natural or manmade factors 
affecting its continued existence.
    Section 4(b)(1)(A) of the ESA requires NMFS to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made to protect the species. We 
follow a four-step process in making listing determinations for Pacific 
salmon: (1) We first determine the ESU or species under listing 
consideration; (2) we determine the viability of the defined ESU and 
the factors that have led to its decline; (3) we assess efforts being 
made to protect the ESU, determining if these efforts adequately 
mitigate threats to the species; and (4) based on the foregoing steps 
and the statutory listing factors, we determine if the ESU is 
threatened or endangered, or does not warrant listing under the ESA.

Life History of West Coast Salmon

    The specific life-history characteristics of the subject species 
are summarized in the proposed listing determinations notice (69 FR 
33102; June 14, 2004). These species addressed in this notice each 
exhibit anadromy, meaning that adults migrate from the ocean to spawn 
in freshwater lakes and streams where their offspring hatch and rear 
prior to migrating to the ocean to forage until maturity. The migration 
and spawning times vary considerably among and within species and 
populations. At spawning, adults pair to lay and fertilize thousands of 
eggs in freshwater gravel nests or ``redds'' excavated by females. 
Depending on lake/stream temperatures, eggs incubate for several weeks 
to months before hatching as ``alevins'' (a larval life stage dependent 
on food stored in a yolk sac). Following yolk sac absorption, alevins 
emerge from the gravel as young juveniles called ``fry'' and begin 
actively feeding. Depending on the species and location, juveniles may 
spend from a few hours to several years in freshwater areas before 
migrating to the ocean. The physiological and behavioral changes 
required for the transition to salt water result in a distinct 
``smolt'' stage in most species. En route to the ocean the juveniles 
may spend from a few days to several weeks in the estuary, depending on 
the species. The highly productive estuarine environment is an 
important feeding and acclimation area for juveniles preparing to enter 
marine waters.
    Juveniles and subadults typically spend from 1 to 5 years foraging 
over thousands of miles in the North Pacific Ocean before returning to 
freshwater to spawn. Some species, such as coho and Chinook salmon, 
have precocious life-history types (primarily male fish) that mature 
and spawn after only several months in the ocean. Spawning migrations 
known as ``runs'' occur throughout the year, varying in time by species 
and location. Most adult fish return or ``home'' with great fidelity to 
spawn in their natal stream, although some do stray to non-natal 
streams. Salmon species die after spawning.

Past Pacific Salmonid ESA Listings and the Alsea Decision

    Pacific salmon ESUs in California and the Pacific Northwest have 
suffered broad declines over the past hundred years. Since 1991, we 
have conducted ESA status reviews of six species of Pacific salmonids 
in California, Oregon, Washington, and Idaho, identifying 52 ESUs, with 
25 ESUs currently listed as threatened or endangered (see the Proposed 
Rule, 69 FR 33102; June 14, 2004, for a detailed summary of previous 
listing actions for West Coast salmonid ESUs). In past status reviews, 
we based our extinction risk assessments on whether the naturally 
spawned fish in an ESU are self-sustaining in their natural ecosystem 
over the long term. We listed as ``endangered'' those ESUs whose 
naturally spawned populations were found to have a present high risk of 
extinction, and listed as ``threatened'' those ESUs whose naturally 
spawned populations were found likely to become endangered in the 
foreseeable future.
    In past status reviews we did not explicitly consider the 
contribution of hatchery fish to the overall viability of an ESU, or 
whether the presence of hatchery fish within the ESU might have the 
potential for reducing the risk of extinction of the ESU or the 
likelihood that the ESU would become endangered in the foreseeable 
future. We generally considered artificial propagation as a threat to 
the long-term persistence of the naturally spawned populations within 
an ESU. Under a 1993 Interim Policy on the consideration of 
artificially propagated Pacific salmon and steelhead under the ESA (58 
FR 17573; April 5, 1993), if it was determined that an ESU warranted 
listing, we then reviewed the associated hatchery stocks to determine 
if they were part of the ESU. We did not include hatchery stocks in an 
ESU if: (1) Information indicated that the hatchery stock was of a 
different genetic lineage than the listed natural populations; (2) 
information indicated that hatchery practices had produced appreciable

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changes in the ecological and life-history characteristics of the 
hatchery stock and these traits were believed to have a genetic basis; 
or (3) there was substantial uncertainty regarding the relationship 
between hatchery fish and the existing natural population(s). The 
Interim Policy provided that hatchery salmon and steelhead found to be 
part of an ESU would not be listed under the ESA unless they were found 
to be essential for the ESU's recovery (i.e., if we determined that the 
hatchery stock contained a substantial portion of the genetic diversity 
remaining in the ESU). The result of the Interim Policy was that a 
listing determination for an ESU depended solely upon the relative 
health of the natural populations in an ESU, and that most hatchery 
stocks determined to be part of an ESU were excluded from any listing 
of the ESU.
    Subsequently, in Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 
1154 (D. Or. 2001)(Alsea), the U.S. District Court in Eugene, Oregon, 
set aside our 1998 ESA listing of Oregon Coast coho salmon (O. kisutch) 
because it impermissibly excluded hatchery fish within the ESU from 
listing. The court ruled that the ESA does not allow listing a subset 
of a DPS and that, since we had found an ESU constitutes a DPS, we had 
improperly excluded stocks from the listing that we had determined were 
part of the ESU. Although the Alsea ruling affected only one ESU, the 
interpretive issue raised by the ruling called into question the 
validity of the Interim Policy implemented in nearly all of our Pacific 
salmonid listing determinations.

Initiation of Coast-Wide ESA Status Reviews

    Following the Alsea ruling, NMFS received a total of nine petitions 
seeking to delist, or to redefine and list, 17 listed salmonid ESUs 
(see the Proposed Rule for a summary of the petitions; 69 FR 33102; 
June 14, 2004). We determined that seven of the petitions presented 
substantial scientific and commercial information that the petitioned 
actions may be warranted for 16 of the subject ESUs (67 FR 6215, 
February 11, 2002; 67 FR 40679, June 13, 2002; 67 FR 48601, July 25, 
2002). As part of our response to the ESA interpretive issues raised by 
the Alsea ruling, we announced that we would revise the 1993 Interim 
Policy, and we elected to initiate status reviews for 11 ESUs in 
addition to the 16 ESUs for which we had accepted delisting/listing 
petitions (67 FR 6215, February 11, 2002; 67 FR 79898, December 31, 
2002).
    NMFS' Pacific Salmonid Biological Review Team (BRT) (an expert 
panel of scientists from several Federal agencies including NMFS, FWS, 
and the U.S. Geological Survey) reviewed the viability and extinction 
risk of naturally spawning populations in the 27 ESUs, 16 of which are 
the subject of this proposed rule (NMFS, 2003b). The BRT evaluated the 
risk of extinction based on the performance of the naturally spawning 
populations in each of the ESUs under the assumption that present 
conditions will continue into the future. The BRT did not explicitly 
consider artificial propagation in its evaluations.
    The BRT assessed ESU-level extinction risk (as indicated by the 
viability of the naturally spawning populations) at two levels: First, 
at the individual population level, then at the overall ESU level. The 
BRT used factors for ``Viable Salmonid Populations'' (VSP; McElhany et 
al., 2000) to guide its risk assessments. The VSP factors were 
developed to provide a consistent and logical reference for making 
viability determinations and are based on a review and synthesis of the 
conservation biology and salmon literature. Individual populations were 
evaluated according to the four VSP factors: abundance, productivity, 
spatial structure (including connectivity), and diversity. These four 
parameters are universal indicators of species' viability, and 
individually and collectively function as reasonable predictors of 
extinction risk. After reviewing all relevant biological information 
for the populations in a particular ESU, the BRT ascribed an ESU-level 
risk score for each of the four VSP factors.
    The BRT described and assessed ESU-level risk for each of the VSP 
factors and the ESU-level extinction risk based on the performance of 
the naturally spawning populations. The BRT's assessment of ESU-level 
extinction risk uses categories that correspond to the definitions of 
endangered species and threatened species, respectively, in the ESA: in 
danger of extinction throughout all or a significant portion of its 
range, likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range, or neither. In 
general, these evaluations did not include consideration of the 
potential contribution of hatchery stocks to the viability of ESUs, or 
evaluate efforts being made to protect the species. Therefore, the 
BRT's findings are not recommendations regarding listing. The BRT's 
ESU-level extinction risk assessment reflects the BRT's professional 
scientific judgment, guided by the analysis of the VSP factors, as well 
as by expectations about the likely interactions among the individual 
VSP factors. For example, a single VSP factor with a ``High Risk'' 
score might be sufficient to result in an overall extinction risk 
assessment of ``in danger of extinction,'' but a combination of several 
VSP factors with more moderate risk scores could also lead to the same 
assessment, or a finding that the ESU is ``likely to become 
endangered.''
    To assist in determining the ESU membership of individual hatchery 
stocks, a Salmon and Steelhead Hatchery Assessment Group (SSHAG), 
composed of NMFS scientists from the Northwest and Southwest Fisheries 
Science Centers, evaluated the best available information describing 
the relationships between hatchery stocks and natural ESA-listed salmon 
and anadromous O. mykiss populations in the Pacific Northwest and 
California. The SSHAG produced a report, entitled ``Hatchery Broodstock 
Summaries and Assessments for Chum, Coho, and Chinook Salmon and 
Steelhead Stocks within Evolutionarily Significant Units Listed under 
the Endangered Species Act'' (NMFS, 2003a), describing the relatedness 
of each hatchery stock to the natural component of an ESU on the basis 
of stock origin and the degree of known or inferred genetic divergence 
between the hatchery stock and the local natural population(s). We used 
the information presented in the SSHAG Report to determine the ESU 
membership of those hatchery stocks within the historical geographic 
range of a given ESU. Our assessment of individual hatchery stocks and 
our findings regarding their ESU membership are detailed in the 
Salmonid Hatchery Inventory and Effects Evaluation Report (NMFS, 
2004b).
    The assessment of the effects of ESU hatchery programs on ESU 
viability and extinction risk is also presented in the Salmonid 
Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b). The 
Report evaluates the effects of hatchery programs on the likelihood of 
extinction of an ESU on the basis of the four VSP factors (i.e., 
abundance, productivity, spatial structure, and diversity) and how 
artificial propagation efforts within the ESU affect those factors. In 
April 2004, we convened an Artificial Propagation Evaluation Workshop 
of Federal scientists and managers with expertise in salmonid 
artificial propagation. The Artificial Propagation Evaluation Workshop 
reviewed the BRT's findings (NMFS, 2003a), evaluated the Salmonid 
Hatchery Inventory and Effects Evaluation Report (NMFS, 2004b), and 
assessed the overall extinction risk of ESUs with associated hatchery 
stocks. The discussions and conclusions of the

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Artificial Propagation Evaluation Workshop are detailed in a workshop 
report (NMFS, 2004c). In this document, the extinction risk of an ESU 
``in-total'' refers to the assessed level of extinction risk after 
considering the contributions to viability by all components of the ESU 
(hatchery origin, natural origin, anadromous, and resident).
    On June 3, 2004, we published in the Federal Register a proposed 
policy for the consideration of hatchery-origin fish in ESA listing 
determinations (Hatchery Listing Policy; 69 FR 31354). On June 14, 
2004, we proposed listing determinations for the 27 ESUs under review, 
proposing that four ESUs be listed as threatened and 23 ESUs be listed 
as endangered (69 FR 33102). We proposed maintaining the existing ESA 
listing status for 22 ESUs: Two sockeye ESUs (the endangered Snake 
River and threatened Ozette Lake sockeye ESUs); eight Chinook ESUs (the 
endangered Upper Columbia River spring-run ESU, and the threatened 
Central Valley spring-run, California Coastal, Upper Willamette River, 
Lower Columbia River, Puget Sound, Snake River fall-run, and Snake 
River spring/summer-run Chinook ESUs); one coho ESU (the threatened 
Southern Oregon/Northern California Coast coho ESU); two chum ESUs (the 
threatened Columbia River and Hood Canal summer-run chum ESUs); and 
nine O. mykiss ESUs (the endangered Southern California O. mykiss ESU, 
and the threatened South-Central California Coast, Central California 
Coast, California Central Valley, Northern California, Upper Willamette 
River, Lower Columbia River, Middle Columbia River, and Snake River 
Basin O. mykiss ESUs). We proposed revising the status of three ESA-
listed ESUs: The endangered Sacramento River winter-run Chinook and 
Upper Columbia River O. mykiss ESUs were proposed for threatened 
status; and the threatened Central California Coast coho ESU was 
proposed for endangered status. Finally, we proposed that two ESUs 
designated as candidate species be listed as threatened: the Oregon 
Coast coho and Lower Columbia River coho ESUs. Also as part of the 
proposed listing determinations, we proposed amending the section 4(d) 
protective regulations for threatened ESUs to: Exclude listed hatchery 
fish marked by a clipped adipose fin and resident fish from the ESA 
take prohibition; and simplify existing 4(d) protective regulations so 
that the same set of limits apply to all threatened ESUs.

Summary of Comments and Information Received in Response to the 
Proposed Rule

    With the publication of the proposed listing determinations for 27 
ESUs we announced a 90-day public comment period extending through 
September 13, 2004. In Federal Register notices published on August 31, 
2004 (69 FR 53093), September 9, 2004 (69 FR 54637), and October 8, 
2004 (69 FR 61347), we extended the public comment period for the 
proposed policy through November 12, 2004. The public comment period 
for the proposed listing determinations was open for 151 days. We held 
14 public hearings (at eight locations in the Pacific Northwest, and 
six locations in California) to provide additional opportunities and 
formats to receive public input (69 FR 53039, August 31, 2004; 69 FR 
54620, September 9, 2004; 69 FR 61347, October 8, 2004). Additionally, 
pursuant to the requirements of the National Environmental Policy Act 
(NEPA) of 1969, we conducted an Environmental Assessment (EA) analyzing 
the proposed amendments to the 4(d) protective regulations for 
threatened salmonids. As part of the proposed listing determinations 
and the proposed amendments to the 4(d) protective regulations, we 
announced that a draft of the EA was available from NMFS upon request 
(69 FR at 33172; June 14, 2004). Additionally, on November 15, 2004, we 
published a notice of availability in the Federal Register soliciting 
comment on the draft EA for an additional 30 days (69 FR 65582).
    A joint NMFS/FWS policy requires us to solicit independent expert 
review from at least three qualified specialists, concurrent with the 
public comment period (59 FR 34270; July 1, 1994). We solicited 
technical review of the proposed listing determinations from over 50 
independent experts selected from the academic and scientific 
community, Native American tribal groups, Federal and state agencies, 
and the private sector. In December 2004 the Office of Management and 
Budget (OMB) issued a Final Information Quality Bulletin for Peer 
Review establishing minimum peer review standards, a transparent 
process for public disclosure, and opportunities for public input. The 
OMB Peer Review Bulletin, implemented under the Information Quality Act 
(Pub. L. 106-554), is intended to provide public oversight on the 
quality of agency information, analyses, and regulatory activities, and 
applies to information disseminated on or after June 16, 2005. The 
independent expert review under the joint NMFS/FWS peer review policy, 
and the comments received from several academic societies and expert 
advisory panels, collectively satisfy the requirements of the OMB Peer 
Review Bulletin (NMFS, 2005a).
    In response to the requests for information and comments on the 
proposed hatchery listing policy, the proposed listing determinations, 
and the proposed amendments to the 4(d) protective regulations, we 
received over 28,250 comments by fax, standard mail, and e-mail. The 
majority of the comments received were from interested individuals who 
submitted form letters or form e-mails. Comments were also submitted by 
state and tribal natural resource agencies, fishing groups, 
environmental organizations, home builder associations, academic and 
professional societies, expert advisory panels (including NMFS' 
Recovery Science Review Panel, the Independent Science Advisory Board, 
and the State of Oregon's Independent Multidisciplinary Science Team), 
farming groups, irrigation groups, and individuals with expertise in 
Pacific salmonids. The majority of respondents focused on the proposed 
Hatchery Listing Policy, although many respondents also included 
comments relevant to the proposed listing determinations and the 
proposed amendments to the 4(d) protective regulations. The public 
comments were generally critical of the proposed hatchery listing 
policy, for a variety of reasons, but were generally favorable of the 
proposed listing determinations and the manner in which the proposed 
hatchery listing policy was implemented. Those few comments that 
addressed the proposed amendments to the 4(d) protective regulations 
expressed concerns about the practical implications of the proposed 
changes on the management of hatchery programs as well as on tribal, 
recreational, and commercial salmon and steelhead fisheries.
    We also received comments from four of the independent experts from 
whom we had requested technical review of the proposed listing 
determinations. The independent expert reviews were generally 
supportive of the scientific principles underlying the application of 
the proposed Hatchery Listing Policy in the proposed listing 
determinations. However, the reviewers noted several concerns with the 
proposed Hatchery Listing Policy including: Vague and imprecise policy 
language; an apparent de-emphasis of the importance of naturally 
spawned self-sustaining populations for the conservation and recovery 
of salmonid ESUs, and the goal

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of the ESA to conserve the ecosystems upon which they depend; 
accumulating long-term adverse impacts of artificial propagation due to 
unavoidable artificial selection and domestication in the hatchery 
environment; and the lack of scientific evidence that artificial 
propagation can contribute to the productivity and conservation of 
viable natural populations over the long term. Two of the reviewers 
felt that hatchery fish are inherently different from wild fish and 
should not be included in ESUs, and were concerned that the inclusion 
of hatchery fish in ESUs would jeopardize the conservation and recovery 
of native salmonid populations in their natural ecosystems. The other 
two reviewers were supportive of the scientific basis for including 
hatchery fish in ESUs, but felt that the policy did not appropriately 
emphasize that the conservation and recovery of listed ESUs depends 
upon the viability of wild populations and natural ecosystems over the 
long term.
    There was substantial overlap between the comments from the 
independent expert reviewers, the independent scientific panels and 
academic societies, and the substantive public comments. Some of the 
comments received were not directly pertinent to the proposed listing 
determinations or the proposed amendments to the 4(d) protective 
regulations. We will consider and address comments relating to other 
determinations (for example, the proposed Hatchery Listing Policy (69 
FR 31354, June 3, 2004), the proposed critical habitat designations for 
20 West Coast salmonid ESUs (69 FR 71880, December 10, 2004; 69 FR 
74572, December 14, 2004), and the remanded biological opinion on the 
Federal Columbia River Power System (see https://www.salmonrecovery.gov/
R_biop_final.shtml)) in the context of those determinations. With 
respect to comments received on the Hatchery Listing Policy, the 
summary of and response to comments below is confined to the 
implementation of the policy in delineating the ESUs for consideration, 
and determining their ESA listing status. The reader is referred to the 
final Hatchery Listing Policy elsewhere in this edition of the Federal 
Register for a summary of the comments received regarding the legal and 
policy interpretations articulated in the policy.
    The summary of comments and our responses below are organized into 
four general categories: (1) General comments on the consideration of 
artificial propagation in the proposed listing determinations; (2) 
general comments on the consideration of efforts being made to protect 
the species; (3) comments on the proposed amendments to the protective 
regulations; and (4) comments on ESU-specific issues (for example, the 
ESU membership of specific hatchery stocks, level of extinction risk 
assessed for an ESU, and the consideration of specific conservation 
efforts being made to protect and conserve an ESU).

General Comments on the Consideration of Artificial Propagation

    Issue 1: Several commenters felt that our implementation of the 
Hatchery Listing Policy's threshold for including hatchery stocks in a 
given ESU was inconsistent among hatchery programs both within and 
among ESUs. The commenters felt that in most circumstances quantitative 
information on the genetic differentiation of a specific hatchery stock 
relative to the local natural population(s) is not available. The 
commenters argued that, given the poor availability of genetic data, 
determinations of whether a given hatchery stock is part of an ESU are 
ambiguous, highly subjective, and arbitrary.
    Response: We agree with the commenters that in many cases empirical 
genetic data are not available to quantitatively assess the level of 
genetic differentiation and reproductive isolation of a hatchery stock 
relative to the local natural population(s) in an ESU. The ESA requires 
that we review the status of the species based upon the ``best 
available'' scientific and commercial information, and in many 
instances the agency must rely on qualitative analyses of surrogate 
information when quantitative genetic data are not available to assist 
in determining the ``species'' under consideration. For this 
rulemaking, in lieu of empirical genetic data, we relied on a number of 
strong biological indicators to inform a qualitative assessment of the 
level of reproductive isolation and evolutionary divergence, such as 
stock isolation, selection of run timing, the magnitude and regularity 
of incorporating natural broodstock, the incorporation of out-of-basin 
or out-of-ESU eggs or fish, mating protocols, behavioral and life-
history traits, etc.
    Issue 2: One commenter disapproved of our approach of evaluating 
the ESU membership of hatchery fish in terms of individual hatchery 
programs. The commenter recommended that ESU membership be based on 
broodstock source, recognizing that a given broodstock may be 
propagated at several hatchery facilities. The commenter felt that our 
approach of evaluating hatchery programs confused three important 
issues: the broodstock source, history, and genetic management of the 
hatchery fish; the management practices of the hatchery program 
producing the hatchery fish (such as the timing and location of 
releasing hatchery fish); and the life-history characteristics of the 
local natural population where a hatchery stock is being released. The 
commenter was concerned that evaluating and listing hatchery fish by 
hatchery program could erroneously result in one group of hatchery fish 
from a given broodstock source being included in an ESU, and another 
group of hatchery fish from the same broodstock source not being 
included in the ESU.
    Response: The commenter is correct that our approach could, and 
did, result in hatchery programs being excluded from an ESU despite 
having been derived from the same broodstock lineage as other hatchery 
programs included in the ESU. However, we feel it would be 
inappropriate to determine the ESU membership of hatchery fish solely 
on the basis of broodstock lineage to the exclusion of a case-by-case 
analysis of the past and present practices of hatchery programs 
producing fish within the geographic range of an ESU. The commenter 
correctly points out that individual hatchery programs may differ in 
their broodstock lineage, hatchery practices, and the specific 
ecological conditions into which the hatchery fish are released. The 
broodstock used represents the raw genetic resources brought into a 
hatchery program, and provides one useful predictor of ESU membership. 
How these raw genetic resources are managed and the specific 
environmental and ecological conditions into which the hatchery fish 
are released are also key determinants of whether a group of hatchery 
fish is part of an ESU. Critical considerations in evaluating the 
relationship of hatchery fish to an ESU include whether it reflects: 
(1) The level of reproductive isolation characteristic of the natural 
populations in the ESU; and (2) the ecological, life-history, and 
genetic diversity that compose the ESU's evolutionary legacy. 
Information regarding the origin, isolation, and broodstock source and 
mating protocols of a hatchery program help determine its level of 
reproductive isolation from the local natural population(s) in an ESU. 
Information regarding the behavioral and life-history traits of the 
hatchery fish produced by a program relative to the locally adapted 
natural populations help inform evaluations of whether the hatchery 
fish are

[[Page 37165]]

representative of the ESU's evolutionary legacy. We feel that it is 
appropriate to evaluate the ESU membership of hatchery fish with 
respect to the specific hatchery programs producing them.
    Issue 3: Many commenters felt that hatchery-origin fish should not 
be included in ESUs. The commenters discussed scientific studies 
demonstrating that hatchery-origin fish differ from naturally-spawned 
fish in physical, physiological, behavioral, reproductive and genetic 
traits. Commenters argued that hatchery-origin and natural-origin fish 
should not be included in the same ESU because of these differences.
    Response: We do not agree that hatchery-origin fish should be 
universally excluded from ESUs. As articulated in the final Hatchery 
Listing Policy in this edition of the Federal Register, important 
genetic resources for the conservation and recovery of an ESU can 
reside in fish spawned in a hatchery as well as in fish spawned in the 
wild. The established practice of incorporating local natural-origin 
fish into hatchery broodstock can result in hatchery stocks and natural 
populations that are not reproductively isolated and that share the 
same genetic and ecological evolutionary legacy. Under the final 
Hatchery Listing Policy we determine the ESU membership of hatchery 
fish by conducting a case-by-case evaluation of the relationship of 
individual hatchery stocks to the local natural population(s) on the 
basis of: Stock origin and the degree of known or inferred genetic 
divergence between the hatchery stock and the local natural 
population(s); and the similarity of hatchery stocks to natural 
populations in ecological and life-history traits. Although certain 
hatchery programs will be determined to be reproductively isolated and 
not representative of the evolutionary legacy of an ESU (and hence not 
part of the ESU), we do not believe that such a conclusion is 
universally warranted for all hatchery stocks. Many hatchery stocks are 
reproductively integrated with natural populations in an ESU and 
continue to exhibit the local adaptations composing the ESU's 
ecological and genetic diversity. We recognize that artificial 
selection in the hatchery environment may be unavoidable, that a well-
managed hatchery stock could eventually diverge from the evolutionary 
lineage of an ESU, and that a poorly managed hatchery stock could 
quickly diverge from the evolutionary lineage of an ESU. However, the 
potential for divergence is not adequate justification for the 
universal exclusion of hatchery fish from an ESU. Consistent with the 
ESU policy, a hatchery program should be excluded from an ESU if the 
hatchery stock exhibits genetic, ecological or life-history traits 
indicating that it has diverged from the evolutionary legacy of the 
ESU.
    Issue 4: Many commenters felt that hatchery-origin fish should be 
considered only as a threat to the persistence of Pacific salmon and O. 
mykiss ESUs. The commenters cited scientific studies indicating that 
artificial selection in hatcheries can result in diminished 
reproductive fitness in hatchery-origin fish in only one generation. 
Commenters also noted scientific studies describing negative 
ecological, reproductive, and genetic effects of hatchery stocks on 
natural populations. The commenters were concerned that including 
hatchery fish in assessments of extinction risk reduces the importance 
of conserving self-sustaining populations in the wild, and 
inappropriately equates naturally produced fish and fish produced with 
ease in a hatchery.
    Response: We do not agree that all hatchery programs, and the 
hatchery fish they produce, can be universally regarded as threats to 
salmon and O. mykiss ESUs. There are so many different ways in which 
hatchery-origin fish interact with natural populations and the 
environment that there can be no uniform conclusion about the potential 
contribution of hatchery-origin fish to the survival of an ESU. As 
described in the final Hatchery Listing Policy elsewhere in this 
edition of the Federal Register, the consideration of hatchery-origin 
fish in evaluating the level of extinction risk of an ESU requires a 
case-by-case analysis of the risks, benefits, and uncertainties of 
specific hatchery stocks within the geographical area of an ESU. The 
risks and benefits of artificial propagation to the survival of an ESU 
over the long term are highly uncertain. The presence of well 
distributed self-sustaining natural populations that are ecologically 
and genetically diverse provides the most certain predictor that an ESU 
is not likely to become endangered in the foreseeable future. The 
presence of carefully designed and operated hatchery programs, under 
certain circumstances, may mitigate the risk of extirpation for 
severely depressed populations in the short term, and thereby reduce an 
ESU's immediate risk of extinction. Whether the contributions of a 
hatchery program or group of hatchery programs will warrant an ESU 
being listed as ``threatened'' rather than ``endangered'' will depend 
upon the specific demographic risks facing natural populations within 
the ESU, the availability and condition of the surrounding natural 
habitat, as well as the factors that led to the ESU's decline and 
current threats limiting the ESU's recovery.
    Issue 5: A few commenters felt that extinction risk should be 
evaluated based on the total abundance of fish within the defined ESU 
without discriminating between fish of hatchery or natural origin. 
These commenters contended that the District Court in Alsea ruled that 
once an ESU is defined, risk determinations should not discriminate 
among its components. The commenters described the risk of extinction 
as the chance that there will be no living representatives of the 
species, and that such a consideration must not be biased toward a 
specific means of production (artificial or natural).
    Response: The Alsea ruling does not require any particular approach 
to assessing extinction risk. The court ruled that if it is determined 
that a DPS warrants listing, all members of the defined species must be 
included in the listing. The court did not rule on how the agency 
should determine whether the species is in danger of extinction or 
likely to become so in the foreseeable future. The commenters assert 
that the viability of an ESU is determined by the total numbers of 
fish. The risk of extinction of an ESU depends not just on the 
abundance of fish, but also on the productivity, spatial distribution, 
and diversity of its component populations (Viable Salmonid Populations 
(VSP) factors; McElhany et al., 2000; Ruckelshaus et al., 2002). In 
addition to having sufficient abundance, viable ESUs and populations 
have sufficient productivity, diversity, and a spatial distribution to 
survive environmental variation and natural and human catastrophes. The 
commenters also assume that hatchery managers will continue to produce 
the same numbers of the same stock and quality of fish with the same 
success as in the past. In many cases, such assumptions are not 
warranted.
    Issue 6: One commenter noted that the proposed ESU delineations 
included ``naturally spawned fish'' within a given geographical area, 
and was concerned that as defined the ESUs might be misinterpreted to 
include the naturally spawned progeny of hatchery fish not included in 
the ESU. The commenter was concerned that the naturally-spawned progeny 
of these out-of-ESU hatchery fish would inadvertently be afforded the 
protections of the ESA, potentially constraining conservation measures 
intended to reduce the

[[Page 37166]]

negative impacts of these fish on listed local natural populations.
    Response: The final rule defines ESUs as naturally spawned fish 
originating from a defined geographic area, plus hatchery fish from 
certain enumerated hatchery programs. It is possible that within any 
geographic area there may be out-of-ESU hatchery strays spawning with 
other out-of-ESU hatchery strays to produce progeny that biologically 
would not be considered part of the ESU. As a practical matter, 
however, it is seldom possible to distinguish the progeny of these 
matings from the progeny of within-ESU natural spawners, without 
elaborate (and potentially inconclusive) tests. Accordingly, we have 
defined the ESUs to make the listings unambiguous and the ESA 
protections easily enforceable.
    Of the 16 ESUs addressed in this final rule, four ESUs have 
associated out-of-ESU hatchery programs: the Lower Columbia River 
Chinook, Upper Columbia River spring-run Chinook, Puget Sound Chinook, 
and Snake River spring/summer-run Chinook ESUs. In some instances the 
progeny of out-of-ESU hatchery fish may be distinguished by distinct 
patterns of habitat use, spawning location, run timing, or other means. 
In such a case we may determine that protection of those fish is not 
necessary for conservation of the ESU and approve actions that result 
in take, through sections 4(d), 7(a)(2), 10(a)(1)(A) or 10(a)(1)(B) of 
the ESA, as appropriate. NMFS will also use these statutory authorities 
to minimize harmful impacts to the listed ESUs from out-of-ESU hatchery 
fish spawning in the wild.

General Comments on the Consideration of Protective Efforts

    Issue 7: Several commenters criticized the evaluation of efforts 
being made to protect the species in the proposed listing 
determinations (see 69 FR at 33142 through 33157; June 14, 2004). The 
commenters argued that the joint NMFS/FWS ``Policy for Evaluation of 
Conservation Efforts When Making Listing Decisions'' (``PECE''; 68 FR 
15100; March 28, 2003) does not apply to currently listed species. In 
addition to this criticism the commenters felt that our treatment of 
protective efforts in the proposed listing determinations failed to 
address the criteria required under PECE for evaluating the certainty 
of implementation and effectiveness of protective efforts. (The 
commenters also provided criticisms specific to the consideration of 
protective efforts for the Sacramento River winter-run Chinook ESU, see 
Issue 13 in the ``Comments on ESU-specific Issues'' section, below).
    Response: Section 4(b)(1)(A) of the ESA requires the Secretary of 
Commerce to make listing determinations ``solely on the basis of the 
best scientific and commercial data available * * * after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made * * * to protect such species'' (emphasis 
added). When making listing determinations, we therefore evaluate 
efforts being made to protect the species to determine if those 
measures reduce the threats facing an ESU and ameliorate its assessed 
level of extinction risk. In judging the efficacy of protective 
efforts, we rely on the guidance provided in PECE. PECE provides 
direction for the consideration of protective efforts identified in 
conservation agreements, conservation plans, management plans, or 
similar documents (developed by Federal agencies, state and local 
governments, tribal governments, businesses, organizations, and 
individuals) that have not yet been implemented, or have been 
implemented but have not yet demonstrated effectiveness. The policy 
articulates 15 criteria for evaluating the certainty of implementation 
and effectiveness of protective efforts to aid in determination of 
whether a species should be listed as threatened or endangered. 
Evaluations of the certainty an effort will be implemented include 
whether: The necessary resources (e.g., funding and staffing) are 
available; the requisite agreements have been formalized such that the 
necessary authority and regulatory mechanisms are in place; there is a 
schedule for completion and evaluation of the stated objectives; and 
(for voluntary efforts) the necessary incentives are in place to ensure 
adequate participation. The evaluation of the certainty of an effort's 
effectiveness is made on the basis of whether the effort or plan: 
establishes specific conservation objectives; identifies the necessary 
steps to reduce threats or factors for decline; includes quantifiable 
performance measures for the monitoring of compliance and 
effectiveness; incorporates the principles of adaptive management; and 
is likely to improve the species' viability at the time of the listing 
determination.
    The commenters are correct that PECE does not explicitly apply to 
changing a species' listing status from endangered to threatened, or to 
delisting actions. NMFS and FWS noted that recovery planning is the 
appropriate vehicle to provide case-by-case guidance on the actions 
necessary to delist or change a species' listing status. The agencies 
left open whether specific policy guidance would be developed to 
instruct the consideration of conservation efforts for the purposes of 
changing a species' listing status or delisting a species, and such 
guidance has not yet been developed. Recovery planning efforts for the 
listed ESUs under review have not progressed to the point that they can 
provide guidance on the specific actions that would inform a decision 
to delist or change an ESU's listing status. In lieu of further policy 
guidance, PECE provides a useful and appropriate general framework to 
guide consistent and predictable evaluations of protective efforts.
    We agree with the commenters that the regional summary of 
protective efforts provided as part of the proposed listing 
determinations does not provide a detailed treatment of the fifteen 
criteria articulated in PECE. However, only one of the proposed 
listings for the 16 ESUs addressed in this notice relied on the 
determination that protective efforts ameliorated risks to an ESU's 
abundance, productivity, spatial structure, and diversity as a basis 
for proposing that a previously endangered species be listed as 
threatened (the Sacramento River winter-run Chinook ESU). (The final 
listing determination for the Sacramento River winter-run Chinook ESU 
does not rely on an evaluation of protective efforts.) Our review of 
protective efforts provided in the proposed listing determinations 
concluded that the efforts do not as yet individually or collectively 
provide sufficient certainty of implementation and effectiveness to 
alter the assessed level of extinction risk for the other ESUs under 
review. A detailed documentation of the fifteen criteria articulated in 
PECE is not necessary unless we rely on protective efforts to overcome 
our assessment of extinction risk and the five factors identified in 
ESA section 4(a)(1).

Comments on Protective Regulations

    Issue 8: Several commenters believe the ESA does not allow us to 
apply different levels of protections to hatchery and natural-origin 
fish in an ESU by not applying the take prohibitions to threatened 
hatchery fish that have had their adipose fin removed prior to release 
into the wild. The commenters argue that the Alsea ruling found that 
all fish included in an ESU must be protected equally if it is found 
that the ESU in-total warrants listing.
    Response 14: The Alsea ruling does not require us to implement 
protective regulations equally among components of threatened ESUs. The 
Alsea ruling found that the ESA does not allow us to

[[Page 37167]]

list a subset of a DPS or ESU, and that all components of an ESU 
(natural populations, hatchery stocks, and resident populations) must 
be included in a listing if it is determined that an ESU warrants 
listing as threatened or endangered.
    The section 9(a) take prohibitions (16 U.S.C. 1538(a)(1)(B)) apply 
to species listed as endangered. In the case of threatened species, ESA 
Section 4(d) leaves it to the Secretary's discretion whether and to 
what extent to promulgate protective regulations. Section 4(d) of the 
ESA states that ``[w]henever a species is listed as a threatened 
species * * *, the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of such 
species' [emphasis added]. ``The Secretary may * * * prohibit with 
respect to any threatened species any act prohibited under section 
9(a)(1) * * * with respect to endangered species.'' This gives the 
Secretary flexibility under section 4(d) to tailor protective 
regulations that appropriately reflect the biological condition of each 
threatened ESU and the intended role of listed hatchery fish.
    We find that it is necessary and advisable for conservation of the 
ESUs to prohibit take only of natural-origin fish and hatchery fish 
with the adipose fin left intact. The majority of hatchery programs 
produce fish for harvest rather than for conservation. Protecting those 
fish intended for harvest is not necessary for the conservation of the 
ESU. To the contrary, if too many hatchery fish are allowed to spawn 
naturally, it may pose ecological and genetic risks to the natural 
populations in the ESU. Removal of some hatchery fish before they are 
allowed to spawn may thus be necessary for the conservation of some 
ESUs. This concern is discussed in more detail in the final Hatchery 
Listing Policy elsewhere in this edition of the Federal Register.
    Hatchery production that is surplus to conservation needs may thus 
create population pressures that cannot be relieved except through 
harvest of the surplus. An alternative approach to conservation would 
be to simply produce fewer hatchery fish. While reducing hatchery 
production might be another option for addressing this threat, the 
hatchery production itself is in many cases important for redressing 
lost treaty harvest opportunities (as well as meeting other societal 
values). Allowing the continued production of hatchery fish for 
harvest, and not prohibiting the take of listed marked hatchery fish, 
balances the conservation needs of listed ESUs against other Federal 
obligations.
    Issue 9: Several commenters were concerned that excluding 
threatened hatchery fish with a clipped adipose fin (hereafter, ``ad-
clipped'') from 4(d) protections would be perceived by managers as 
strong pressure to expand the use of mark-selective fisheries. (A 
``mark-selective'' fishery is one in which anglers can retain only ad-
clipped hatchery fish, while any unmarked fish that are caught must be 
released. Mark-selective fisheries are intended to protect the weaker 
stock(s) in a mixed-stock fishery, while allowing for harvest 
opportunities on stronger stocks. Mass-marking by clipping the adipose 
fins of hatchery fish that are intended for harvest is used to provide 
an easily distinguished visual cue for anglers). Some of these 
commenters suggested an alternative would be to prohibit the take of 
``naturally spawned fish,'' and fish from specified conservation 
hatcheries.
    Commenters also noted that many ad-clipped hatchery fish are 
released from conservation programs for recovery purposes and thus 
merit take prohibitions. The commenters were concerned that the 
proposed 4(d) protective regulations would require conservation 
hatchery managers to release hatchery fish with their adipose fins 
intact so that the take prohibitions would apply. The commenters argued 
that this would force hatchery managers to use alternative marking 
methods that are more expensive, more difficult to implement, and less 
effective.
    Response: The amended prohibitions do not mandate that listed 
hatchery fish be ad-clipped, nor do they mandate the use of mark-
selective fisheries. State and tribal hatchery and fishery managers use 
an array of management tools depending on the needs of individual 
salmonid populations and resource use objectives. Among these tools are 
mass marking and mark-selective fisheries. Although the amended 
protective regulations do not require it, ad-clipping may be the best 
strategy to achieve their goals for some hatchery programs. These ad-
clipped hatchery fish can be harvested in fisheries that have 
appropriate ESA authorization, including, but not limited to, mark-
selective fisheries. However, the amended 4(d) protective regulations 
do not mandate any particular management strategy provided the strategy 
is consistent with the conservation and recovery objectives of listed 
ESUs. An alternative approach would have been to prohibit the take of 
naturally spawned fish and fish from specific conservation hatcheries. 
We have instead chosen to rely on the adipose-fin clip because it 
provides a readily identifiable and enforceable feature for 
distinguishing those fish protected by the ESA take prohibitions.
    The commenters are correct that hatchery fish intended for 
conservation purposes will not be afforded ESA protection against take 
if they are released with a clipped adipose fin. Managers of 
conservation hatchery programs may choose to use alternative marking 
methods to assist research and monitoring efforts such that the take 
prohibitions apply to the fish they produce. We acknowledge that the 
prospect of listing more than 130 West Coast hatchery programs presents 
challenges to hatchery and fishery management in California, Oregon, 
Washington, and Idaho. We believe that exempting ad-clipped fish from 
the take prohibitions is the preferable regulatory option, as compared 
to the alternative of prohibiting take of all listed hatchery fish. 
Allowing for the take of listed ad-clipped hatchery fish provides a 
clearly enforceable distinction for when take prohibitions apply, and 
provides additional flexibility to more effectively manage fisheries, 
control the number and proportion of hatchery fish spawning in the 
wild, and minimize potentially adverse impacts of hatchery fish on 
natural populations. Although the proposed approach provides management 
flexibility, we recognize that it may present some challenges. We will 
continue to work with state and tribal managers to address any 
challenges in a way that minimizes adverse impacts on affected parties, 
while achieving conservation and resource use objectives for listed 
ESUs.
    Issue 10: A few commenters felt that NMFS should extend the ``grace 
period'' for applications for coverage under the 4(d) limits to: Apply 
to applications for all limits rather than just for scientific research 
and enhancement activities; allow for more than 60 days to submit an 
application; and allow for more than 6 months to obtain approval under 
a 4(d) limit. The commenters felt sufficient time must be allowed for 
entities to prepare and process applications for 4(d) coverage. The 
commenters were concerned that NMFS does not have the necessary 
resources to process applications and issue authorizations within 6 
months, given the likely high volume of new 4(d) applications and the 
significant administrative burden associated with processing and 
authorizing 4(d) applications. The commenters stressed that any delays 
in issuing authorizations under 4(d) would disrupt important fisheries 
and would also risk impeding progress on important recovery efforts.

[[Page 37168]]

    Response: We are concerned about the potential for disruption of 
ongoing scientific research, monitoring, and conservation activities, 
especially during the coming summer/fall field seasons. Consistent with 
the previously promulgated 4(d) protective regulations, the amended 
regulations finalized in this notice include a ``temporary'' limit or 
6-month grace period for ongoing scientific research and enhancement 
activities provided a permit application is received by NMFS within 60 
days of this notice (see DATES, above). Applicants will be subject to 
the take prohibitions if their permit application is denied, rejected 
as insufficient, or the 6-month grace period expires, whichever occurs 
earliest.
    We do not feel that a similar 6-month grace period is warranted for 
limits addressing other activities affecting threatened ESUs. In this 
notice we are amending existing 4(d) protective regulations for 
threatened ESUs that are already listed under the ESA (except for the 
Lower Columbia River coho ESU, which is a new threatened listing). 
Thus, activities affecting the subject ESUs already have ESA coverage 
through the existing 4(d) protective regulations, through section 10 
permits, as a result of section 7 consultation, or are in the process 
of obtaining such authorization. The amended 4(d) protective 
regulations will become effective within 60 days of the publication of 
this notice (see DATES, above). We believe that the grace period allows 
sufficient time to amend existing ESA authorizations consistent with 
the revised 4(d) protective regulations. Some activities will not need 
ESA coverage immediately after the amended protective regulations go 
into effect because the actions do not affect listed species. We will 
work with regional co-managers to prioritize activities and programs on 
the basis of how urgently each needs ESA coverage.
    We have anticipated that processing new 4(d) applications submitted 
in response to the amended 4(d) protective regulations will increase 
agency workload. As a result, we are evaluating our resource needs and 
are fully committed to meeting future program demands. We encourage 
entities to work together in developing plans for 4(d) approval that 
cover wide geographic scales and multiple activities, thus reducing the 
number of individual programs that need to be reviewed. While 
enforcement may be initiated against activities that take protected 
salmonids, our clear preference is to work with persons or entities to 
promptly shape their programs and activities to include credible and 
reliable conservation measures for listed salmon and O. mykiss ESUs.
    Issue 11: Two Federal agencies (the Bureau of Land Management 
(BLM), and the U.S. Forest Service (FS)) requested that we amend the 
limits concerning land management activities on state, private, and 
tribal lands to include activities on Federal lands that implement 
regional Land Resource Management Plans (LRMPs) and aquatic 
conservation strategies. The BLM and FS recognized that including 
Federal lands in these limits on the take prohibitions would not 
eliminate their requirement to consult under section 7 of the ESA. 
However, BLM and FS felt that extending these limits to Federal lands 
would make the section 7 consultation process more efficient, and 
minimize or eliminate the need to develop and implement reasonable and 
prudent measures, as well as mandatory terms and conditions for actions 
covered under a section 7 Incidental Take Statement.
    Response: It is not possib