Endangered and Threatened Wildlife and Plants: Threatened Status for the Puget Sound/Georgia Basin Distinct Population Segments of Yelloweye and Canary Rockfish and Endangered Status for the Puget Sound/Georgia Basin Distinct Population Segment of Bocaccio Rockfish, 22276-22290 [2010-9847]

Download as PDF 22276 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations not contain an information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. Therefore, it does not contain any new or modified ‘‘information collection burden for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198. 85. Concerning the Second FNPRM, this document does not contain an information collection subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. Therefore, it does not contain any new or modified ‘‘information collection burden for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198. 86. The Commission will send a copy of this Order on Reconsideration and Second Further Notice of Proposed Rulemaking in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act. D. Contact Persons 87. For further information concerning this proceeding, please contact Peter Trachtenberg, Spectrum and Competition Policy Division at 202– 418–7369, Christina Clearwater, Spectrum and Competition Policy Division at 202–418–1893 or Nese Guendelsberger, Spectrum and Competition Policy Division at 202– 418–0634. sroberts on DSKD5P82C1PROD with RULES IV. Ordering Clauses 88. Accordingly, it is ordered, pursuant to the authority contained in Sections 1, 4(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 201, 202, 251(a), 253, 303(r), and 332(c)(1)(B), and Section 1.429 of the Commission’s rules, 47 CFR 1.429, this Order on Reconsideration and Second Further Notice of Proposed Rulemaking is hereby adopted. 89. It is further ordered Section 20.12 of the Commission’s rules is amended as specified in the Final Rules, and such rule amendments shall be effective May 28, 2010. 90. It is further ordered the Petitions for Reconsiderations filed by Leap Wireless International, Inc., MetroPCS Communications, Inc., Spectrum Co., LLC, Sprint Nextel, and T–Mobile USA, Inc. are hereby granted in part and denied in part to the extent expressed herein. 18:10 Apr 27, 2010 Jkt 220001 The Commission will resolve automatic roaming disputes on a case-by-case basis, taking into consideration the totality of the circumstances presented in each case. [FR Doc. 2010–9832 Filed 4–27–10; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF COMMERCE List of Subjects in 47 CFR Part 20 Communications common carriers, Communications equipment, and Radio. National Oceanic and Atmospheric Administration Marlene H. Dortch, Secretary, Federal Communications Commission. [Docket No. 080229341–0108–03] Final Rules Endangered and Threatened Wildlife and Plants: Threatened Status for the Puget Sound/Georgia Basin Distinct Population Segments of Yelloweye and Canary Rockfish and Endangered Status for the Puget Sound/Georgia Basin Distinct Population Segment of Bocaccio Rockfish For the reason discussed in the preamble, the Federal Communications Commission amends 47 CFR part 20 as follows: ■ C. Congressional Review Act VerDate Mar<15>2010 91. It is further ordered the Commission’s Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Order on Reconsideration and Second Further Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis and Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. PART 20—COMMERCIAL MOBILE RADIO SERVICES 1. Authority: 47 U.S.C. 154, 160, 201, 251–254, 303, and 332 unless otherwise noted. ■ 2. In § 20.3 remove the definitions ‘‘Home Carrier’’ and ‘‘Home Market’’ and revise the definition of ‘‘Host Carrier’’ to read as follows: ■ § 20.3 Definitions. * * * * * Host Carrier. For automatic roaming, the host carrier is a facilities-based CMRS carrier on whose system another carrier’s subscriber roams. A facilitiesbased CMRS carrier may, on behalf of its subscribers, request automatic roaming service from a host carrier. * * * * * ■ 3. In § 20.12 revise paragraph (d) to read as follows: § 20.12 Resale and roaming. * * * * * (d) Automatic Roaming. Upon a reasonable request, it shall be the duty of each host carrier subject to paragraph (a)(2) of this section to provide automatic roaming to any technologically compatible, facilitiesbased CMRS carrier on reasonable and not unreasonably discriminatory terms and conditions, pursuant to Sections 201 and 202 of the Communications Act, 47 U.S.C. 201 and 202. The Commission shall presume that a request by a technologically compatible CMRS carrier for automatic roaming is reasonable pursuant to Sections 201 and 202 of the Communications Act, 47 U.S.C. 201 and 202. This presumption may be rebutted on a case by case basis. PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 50 CFR Parts 223 and 224 RIN 0648–XF89 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: We, the NMFS, issue a final determination to list the Puget Sound/ Georgia Basin Distinct Population Segments (DPSs) of yelloweye rockfish (Sebastes ruberrimus) and canary rockfish (Sebastes pinniger) as threatened, and bocaccio rockfish (Sebastes paucispinis) as endangered under the Endangered Species Act (ESA). We intend to propose protective regulations for yelloweye and canary rockfish under ESA section 4(d) and critical habitat for all three species in separate rulemakings, and will solicit public comments for these rulemakings separately. DATES: This final rule is effective on July 27, 2010. ADDRESSES: NMFS, Protected Resources Division, 7600 Sandpoint Way, NE., Building #1, Seattle, WA 98115. FOR FURTHER INFORMATION CONTACT: Dan Tonnes at the address above or at (206) 526–4643, or Dwayne Meadows, Office of Protected Resources, Silver Spring, MD (301) 713–1401. The final rule, references and other materials relating to this determination can be found on our Web site at http:// www.nwr.noaa.gov. SUPPLEMENTARY INFORMATION: Background On April 9, 2007, we received a petition from Mr. Sam Wright of E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations Olympia, Washington, to list stocks of greenstriped rockfish, redstripe rockfish, yelloweye rockfish, canary rockfish, and bocaccio, in Puget Sound as endangered or threatened species under the ESA and to designate critical habitat. Puget Sound is part of a larger inland system, the Georgia Basin, situated between southern Vancouver Island and the mainland coasts of Washington State and British Columbia. We declined to initiate a review of the species’ status under the ESA, finding that the petition failed to present substantial scientific or commercial information to suggest that the petitioned actions may be warranted (72 FR 56986; October 5, 2007). On October 29, 2007, we received a letter from Sam Wright presenting information that was not included in the April 2007 petition, and requesting that we reconsider our October 5, 2007, decision not to initiate a review of the species’ status. We considered the supplemental information provided in the letter and the information submitted previously in the April 2007 petition as a new petition to list these species and to designate critical habitat. The supplemental information included additional details on the life histories of rockfish supporting the case that individuals of these species occurring in Puget Sound may be unique and additional information on recreational harvest levels suggesting significant declines of rockfish abundance. We determined that greenstriped rockfish and redstripe rockfish did not warrant listing under the ESA, but that the bocaccio, yelloweye and canary rockfishes may warrant listing under the ESA; and we therefore initiated status reviews of these three species (73 FR 14195; March 17, 2008). The overall steps we follow when evaluating the ESA status of a species are to: (1) Delineate the species under consideration; (2) review the status of the species; (3) consider the ESA section 4(a)(1) factors to identify threats facing the species; (4) assess whether certain protective efforts mitigate these threats; and (5) predict the species’ future persistence. We provide more detailed information and findings regarding each of these steps later in this notice. To ensure that this assessment was based on the best available scientific and commercial information, we formed a Biological Review Team (BRT) comprised of Federal scientists from our Northwest and Southwest Fisheries Science Centers. We asked the BRT to first determine whether yelloweye rockfish, canary rockfish and bocaccio warrant delineation into DPSs, using the criteria in the joint NMFS—U.S. Fish and Wildlife Service (FWS) DPS policy VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 (61 FR 4722; February 7, 1996). We also asked the BRT to assess the level of extinction risk facing each species and to describe their confidence that the species is at high risk, moderate risk, or neither. We described a species with high risk as one that is at or near a level of abundance, productivity, and/or spatial structure that places its persistence in question. We described a species at moderate risk as one that exhibits a trajectory indicating that it is more likely than not to be at a high level of extinction risk in the foreseeable future, with the appropriate time horizon depending on the nature of the threats facing the species and the species’ life history characteristics. The report of the BRT deliberations (Drake et al., 2010) (hereafter ‘‘status report’’) thoroughly describes yelloweye rockfish, canary rockfish, and bocaccio biology and natural history, and assesses demographic risks, threats, limiting factors, and overall extinction risk. On April 23, 2009, we proposed to list the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary rockfish as threatened and bocaccio rockfish as endangered species under the ESA (74 FR 18516). We solicited comments and suggestions from all interested parties including the public, other governmental agencies, the Government of Canada, the scientific community, industry, and environmental groups. Specifically, we requested information regarding: (1) Population structure of yelloweye rockfish, canary rockfish, and bocaccio; (2) biological or other relevant data concerning any threats to the rockfish DPSs we propose for listing; (3) the range, distribution, and abundance of these rockfish DPSs; (4) current or planned activities within the range of the rockfish DPSs we propose for listing and their possible impact on these DPSs; and (5) efforts being made to protect rockfish DPSs we propose to list. Subsequent to the proposed rule (74 FR 18516, April 23, 2009), the BRT produced an updated status report (Drake et al., 2010) that summarizes new and additional information that has become available since release of the draft status report (Drake et al., 2008), responds to substantive peer review and public comments on the draft status report and the proposed rule and presents the final BRT conclusions on the status of the Puget Sound/Georgia Basin DPSs of yelloweye rockfish, canary rockfish, and bocaccio. Summary of Comments Received in Response to the Proposed Rule We solicited public comment on the proposed listing of each rockfish DPS PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 22277 for 60 days. We did not receive a request for, nor did we hold, a public hearing on the proposal. Public comments were received from four separate commenters, and copies of all public comments received are available online at: http://www.regulations.gov/search/ Regs/. Summaries of the substantive technical comments received, and our responses, are provided below, organized by category. 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. Similarly, 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). In accordance with these policies, we solicited technical review of the draft status report (Drake et al., 2008) from six independent experts selected from the academic and scientific community. Each of these reviewers is an expert in rockfish biology or extinction risk assessment methodology. Comments were received from four of the six independent experts from whom we requested technical review. The reviewers were generally supportive of the scientific principles underlying the DPS determination and proposed listing determination for each species. There was substantial overlap between the comments from the independent expert reviewers and the substantive public comments. The comments were sufficiently similar that we have responded to the peer reviewer’s comments through our general responses, which have been placed in three general categories below. The comments received concerning critical habitat are not germane to this listing decision and will not be addressed in this final rule. Those comments will be addressed during any subsequent rulemaking on critical habitat for each rockfish DPS. Delineation of Distinct Population Segments Comment 1: One commenter questioned the BRTs interpretation of the strong 1999 year class of coastal bocaccio, and the lack of a strong year class the same year in the Georgia Basin, as additional evidence that the two populations were not highly connected and thus consisted of two discrete units. The commenter stated that ‘‘The documented 1999 strong year class was evident in the southern portion of the California Current System. The presence E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES 22278 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations of a strong year class in northern portions of their range has not been documented.’’ The commenter also stated that the bocaccio lengthfrequency data reported in Drake et al. (2008) do not support the conclusion that successful recruitment is occurring in the Puget Sound and that the presence of mature individuals and many size (age) classes supports a viable population in the region. Response: We agree with the commenter that the bocaccio recruitment event documented in 1999 was for the California portion of the stock. Thus it could be problematic to conclude that the bocaccio 1999 year class was also strong off the coast of Washington and British Columbia. We therefore do not rely on this factor to conclude that Georgia Basin bocaccio are discrete from coastal bocaccio. In response to the comment regarding length-frequency data for bocaccio, the BRT conducted an additional analysis to include an examination of the coherence of other year-classes and modified the status report to show the results of this analysis (Drake et al., 2010). Overall, there appears to be little correspondence between age structure of bocaccio inside and outside of the Puget Sound region (referring to the San Juan, Eastern Straits of Juan de Fuca, North Sound, Central Sound, South Sound and Hood Canal regions). This distinction in age structure suggests demographic isolation, which provides additional evidence of discreteness for the Puget Sound/Georgia Basin DPS designation. Comment 2: One reviewer stated that the genetic data from other rockfish species in Puget Sound provide a reasonable template for the possible genetic structure of yelloweye rockfish, canary rockfish and bocaccio, while another reviewer and one commenter stated that a finding of discreteness was questionable for each species given the lack of genetic data. One of the commenters also noted that bocaccio have unique larval characteristics, and canary rockfish and bocaccio have adult characteristics that distinguish them from the four rockfish species for which we do have genetic information, making it inappropriate to draw inferences from the genetic information for those four species. Response: While we lack genetic data for yelloweye rockfish, canary rockfish and bocaccio within each DPS, there is substantial additional evidence for each species to support a conclusion, in conjunction with inferences from genetic data available for other rockfish species, that each population in the Georgia Basin is discrete from its coastal VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 counterpart. Regarding bocaccio, we continue to conclude that the best interpretation of all the available scientific information is that bocaccio in the Georgia Basin are discrete from coastal bocaccio. Although adult bocaccio have a greater ability to move over long distances than some other rockfish species, in general, bocaccio life history mirrors the life histories of the four species for which we do have genetic information—live-bearing of young, pelagic larval and juvenile stages, and eventual settlement to benthic habitats. Though larval bocaccio do remain in the pelagic environment longer than some other rockfish species, they are subjected to the same environmental factors within the Georgia Basin that generally limit dispersal as other rockfish species. The retentive circulation patterns of currents within the Puget Sound make it likely that a significant fraction of larvae released by bocaccio (especially in more inland portions of the Sound) are retained within the Sound. Other evidence that Georgia Basin bocaccio populations are discrete from coastal populations includes: The difference in age structure between coastal and inland populations, which suggests the two groups are demographically independent, and the size frequency data from bocaccio in the Puget Sound, which reveals the presence of individuals large enough to be sexually mature. Regarding canary rockfish, we continue to conclude that the best interpretation of all of the available scientific information is that fish within the Puget Sound/Georgia Basin are discrete from coastal canary rockfish. Although adult canary rockfish have a greater ability to move over long distances than some other rockfish species, in general, canary rockfish life history mirrors the life histories of the four species for which we do have genetic information—live-bearing of young, pelagic larval and juvenile stages, and eventual settlement to benthic habitats. Larval canary rockfish are subjected to the same environmental factors within the Puget Sound/Georgia Basin that generally limit dispersal as other rockfish species. The retentive circulation patterns of currents within the Puget Sound make it likely that a significant fraction of larvae released by canary rockfish (especially in more inland portions of the Sound) are retained within the Sound. For yelloweye rockfish unpublished genetic studies comparing fish from coastal waters and the waters between Vancouver Island and British Columbia (Withler, personal communication, July PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 2008) show differentiation between the two groups. Several other lines of evidence support a conclusion that yelloweye rockfish in the Georgia Basin are discrete from coastal populations of yelloweye rockfish. Two aspects of the life history of yelloweye rockfish suggest genetic and potentially demographic isolation from coastal populations: (1) Both as adults and juveniles, yelloweye rockfish are most abundant near rocky substrata. Rocky substrates are infrequent and patchy in distribution in North Puget Sound and the Georgia Strait, and are very rare in Puget Sound proper (waters east of Admiralty Inlet); (2) yelloweye rockfish show very limited movement as adults. These two aspects of their life history, combined with the retentive patterns of circulation of the Georgia Basin, support a conclusion that yelloweye rockfish in the Georgia Basin are discrete from coastal populations of yelloweye rockfish. Comment 3: One commenter noted a recent report by Field et al. (2009) which showed evidence that bocaccio do not show strong population structure within coastal waters, which could serve as evidence that bocaccio within the Puget Sound are likely to be a component of coastal stocks instead of a Puget Sound/Georgia Basin DPS. Response: We agree that studies of coastal bocaccio populations have found little genetic differentiation over large geographic distances, as reported in Field et al. (2009). The report by Field et al. (2009) did not conduct genetic analysis of bocaccio from the Georgia Basin. Field et al. (2009) did conclude, however, that despite an apparent lack of genetic differentiation, there are sufficient demographic differences between northern and southern populations of Pacific coastal bocaccio to suggest they are demographically independent. This demographic independence of southern and northern coastal bocaccio provides further evidence of population structure, and also supports an inference that Georgia Basin bocaccio populations are discrete from coastal populations. Comment 4: One commenter stated ‘‘* * *whether [Puget Sound/Georgia Basin] bocaccio and canary rockfish constitute self-sustaining populations may be questionable. Their early life stages have not been confirmed in Puget Sound (Garrison and Miller, 1982) and their documented occurrence in Puget Sound proper is restricted to less than 24 locations compared to hundred of records for copper, quillback, and brown rockfish (Washington, 1977; Miller and Borton, 1980). E:\FR\FM\28APR1.SGM 28APR1 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations sroberts on DSKD5P82C1PROD with RULES Response: We agree that juvenile bocaccio rockfish have not been documented within the Puget Sound region, but note that a small number of juvenile canary rockfish were reported by Weispfenning (2006) near the San Juan Islands. Most surveys were conducted after the bocaccio population size was already very low. Given the extremely episodic nature of bocaccio recruitment (Tolimieri and Levin, 2005) and their apparently very low population size, the probability of seeing a juvenile bocaccio is extremely low. Habitats that feature rock and microalgae (kelp species) are most readily used by juvenile bocaccio (Love et al., 1991), and relatively few studies have assessed fish assemblages within these habitats within the region. Thus, it is difficult to draw conclusions from the absence of post-settlement bocaccio in surveys. We acknowledge that bocaccio and canary rockfish have been documented in fewer areas of the Georgia Basin compared to other rockfish species. However, as an example of their past distribution we note that Moulton and Miller (1987) reported that 222 bocaccio rockfish were recorded in recreational fisheries in 1975, and 327 in 1985. The precise locations where these fish were caught were not reported by Moulton and Miller, though they did identify that all fish were caught in the eastern Strait of Juan de Fuca, the Central Sound, and South Sound. Moulton and Miller (1987) also report that 1,035 canary rockfish were recorded in recreational fisheries in 1975 and 934 in 1985. These fish were caught in the Gulf/ Bellingham, San Juan Islands, Hood Canal, Central Puget Sound, South Puget Sound and the eastern Strait of Juan de Fuca regions. In addition, canary rockfish have been reported as bycatch from salmon and bottom fishermen in 2004 to 2007 catch statistics in 6 of the 9 Marine Catch Areas within the DPS (WDFW, unpublished data). Similarly, canary rockfish have been documented as part of the assemblage of fishes in the Puget Sound region for as long as there have been formal fisheries surveys, dating back to at least the 1930s (Williams et al., in press). Appropriateness of the Scope of the Proposed Rule and Assessment Comment 5: Several reviewers and commenters discussed our assessment of extinction risk as it related to rockfish abundance data. One reviewer stated that ‘‘* * * abundance data for the individual species are not sufficient for independent [extinction] analysis * * *’’. The same reviewer also noted VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 that the lack of data was further confounded by an overall lack of abundance numbers from fishery independent sources. Another commenter stated that ‘‘Given the data gaps identified in the proposed listing rule, it does not seem certain here that the threshold for listing has been met.’’ Response: The analysis of extinction risk for yelloweye rockfish, canary rockfish and bocaccio was based upon a host of considerations in addition to species abundance. In assessing risk, it is often important to include both qualitative and quantitative information. In previous NMFS status reviews, we have used a ‘‘risk matrix’’ as a method to organize and summarize the professional judgment of a panel of knowledgeable scientists. This approach is described in detail by Wainright and Kope (1999) and has been used in Pacific salmonid status reviews (e.g., Good et al., 2005; Hard et al., 2007), as well as in reviews of Pacific hake, walleye pollock, and Pacific cod (Gustafson et al., 2000), Puget Sound rockfishes (Stout et al., 2001b), Pacific herring (Stout et al., 2001a; Gustafson et al., 2006), and black abalone (Butler et al., 2008). The BRT used this approach here as well. In this risk matrix approach, the collective condition of individual populations is summarized at the DPS level according to four demographic risk criteria: Abundance, growth rate/ productivity, spatial structure/ connectivity, and diversity. These viability criteria, outlined in McElhany et al. (2000), reflect concepts that are well founded in conservation biology and are generally applicable to a wide variety of species. These criteria describe demographic risks that individually and collectively provide strong indicators of extinction risk. The summary of demographic risks and other pertinent information obtained by this approach is then considered in determining the species’ overall level of extinction risk. When making ESA listing determinations, we must use the best available scientific and commercial data available. The BRT employed the Forest Ecosystem Management Team (FEMAT) voting methodology to address any uncertainties about the subject rockfish DPSs. The FEMAT methodology allows each BRT member to distribute 10 likelihood points among DPSs scenarios, reflecting their view of the probability that the particular category correctly reflects the true DPS status. This method has also been used in all recent status review updates for federally listed Pacific salmon and steelhead (Oncorhynchus mykiss) PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 22279 Evolutionary Significant Units (such as Good et al., 2005) as well as reviews of killer whales (Krahn et al., 2002; 2004) and herring (Gustafson et al., 2006). Despite the general lack of population data from non-fishery sources, the weight of evidence demonstrates that these DPSs abundances have been greatly reduced from historic levels and abundance trends are negative. The analysis of each species status was, in part, determined by available data that shows the relative decline of yelloweye, canary and bocaccio rockfish catch in fishery statistics over the past several decades (FR 18516; April 23, 2009). The analysis of fishery catch data show each species declining at rates faster than the overall rockfish populations in the Puget Sound region. In the case of bocaccio, no fish have been observed in fishery catch statistics since the late 1990s. We agree that fishery independent data for each species, such as the use of drop cameras and remotely operated video surveys, provide important information regarding rockfish status. In particular, fishery independent data from each of the major regions of the DPSs would enhance our understanding of abundance, spatial structure, and demographic profiles (such as the size and relative age structure) of each species. However the available data—including genetic studies from other rockfish and fish species, strong evidence of decline from fisheries data, and unique environmental conditions within the Georgia Basin as viewed through the methodologies and assessments utilized by the BRT (Drake et al., 2010), support the extinction risk assessments that inform this final rule. Comment 6: Several reviewers and commenters questioned our assessment and conclusions of the overall abundance trends of rockfish within the Puget Sound region as they relate to fishery catch statistics and catch frequencies for yelloweye rockfish, canary rockfish and bocaccio. They also remarked that this assessment was further confounded by fishing regulation changes that may have obscured recent catch statistics. One reviewer stated that ‘‘Changes in gear and switches in the targeted species should tend to prolong elevated catch levels in a multispecies time series, so an observed decline in overall catch probably reflects steeper declines in the actual abundance of individual fishes.’’ The reviewer stated that the BRT’s analysis of fishery catch data ‘‘should produce a conservative estimate of the trend for each species (i.e., the actual trend is probably more negative than identified).’’ One commenter concurred E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES 22280 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations with the general population trend analysis that shows that each species was more common in early time series of species compositions and that catch rates and relative abundances of each species have declined. The same commenter noted that early time series data may be obscured by the difficulty of correctly identifying rockfish by untrained samplers. Response: We recognize that the trend in the aggregate rockfish population does not equate to species specific trends of yelloweye rockfish, canary rockfish and bocaccio. Additionally, the early time series species’ compositions were likely obscured by the difficulty of correctly identifying rockfish to species. Because of the lack of time series data, we focused on total rockfish trends and trends in the species composition of the total rockfish assemblage, but also considered information on trends during discrete time periods for each species. Total rockfish abundance has declined and yelloweye rockfish, canary rockfish and bocaccio have become a smaller proportion of the total rockfish assemblage. This analysis allowed the BRT to use the trends in total rockfish as an upper bound on the trends for each species. We agree that this approach should produce a conservative estimate of the overall trend for each species because over time there have been changes in fishing gear and locations (in response to localized depletion of stocks), which may have prolonged harvest rates for each species. In other words, when local rockfish aggregations were fished out, anglers would move to new locations and fishery statistics will not necessarily show these localized depletions (Yamanaka and Lacko, 2001). The available fisheries data do show a reduction of the proportion of yelloweye rockfish, canary rockfish and bocaccio compared to the overall rockfish catch data, and we agree with the reviewer that the reduction in overall abundance may be greater than reflected in the available data. Comment 7: A commenter stated that the draft status report (Drake et al., 2008) did not ‘‘evaluate potential adverse impacts to low abundance rockfish populations due to depensation, especially the sub-set of depensatory mortality factors commonly known as Allee effects.’’ Response: Allee effects, as applied by the commenter to rockfish populations, is a term to characterize additional viability risks when populations are at very low abundance and cannot find mates (Courchamp et al., 2008). We agree that Allee effects are likely a risk factor for yelloweye rockfish, canary VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 rockfish and bocaccio in all or portions of the Puget Sound/Georgia Basin DPSs. The final status report was clarified to more explicitly discuss the risk from Allee effects (Drake et al., 2010). Comment 8: Three commenters asked that we assess in more detail existing regulatory programs that may serve to protect rockfish, including habitat protection and fishery management. Response: In the proposed rule we described our consideration of the effects of existing programs on extinction risk of the three species (FR 18516; April 23, 2009). In response to these comments, we describe the following additional details about these programs. A number of agencies within Washington State have regulatory authority over actions that affect rockfish habitat. The Washington State Departments of Ecology, Natural Resources, Fish and Wildlife, and the Puget Sound Partnership (PSP) are agencies that collectively have various authorities to prevent habitat degradation and loss from a variety of activities, manage aquatic lands, provide technical and planning assistance, fund restoration efforts, and conduct monitoring. The Department of Ecology oversees the State Shoreline Management Act that mandates that each County develop and update policies on the use and protection of the shoreline. Assessing the effectiveness of regulatory programs designed to protect water quality and habitat for rockfish is complicated by the general lack of systematic monitoring that occurs related to specific development and permitting activities. From 2006 to 2008, an additional five miles of bulkheads were constructed along Puget Sound shorelines (Cornwall and Mayo, 2008). These types of shoreline developments can impact nearshore habitat conditions for macroalgae used by juvenile rockfish, and degrade forage fish spawning habitat (Rice, 2006), potentially decreasing food sources of rockfish. Recently, the PSP released a ‘‘State of the Sound’’ report (PSP 2010) that, in part, assessed the status of the Puget Sound ecosystem through a series of indicators. Of the indicators most closely related to rockfish, their habitat and prey, herring spawn biomass and eelgrass coverage each declined, while the amount of flame retardant chemicals within herring (and harbor seals) showed an increasing trend. One water quality indicator (polycyclic aromatic hydrocarbons levels in Elliot Bay) improved, while another (extent of dissolved oxygen in the Puget Sound) had no clear trend. Additionally the report stated that the ‘‘shoreform’’ PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 indicator, which is the overall condition of the Puget Sound shoreline, also had no clear trend (PSP 2010). Washington State has a variety of marine protected areas managed by eleven Federal, state, and local agencies (Van Cleve et al., 2009), though some of these areas are outside of the range of the rockfish DPSs. The WDFW has established 25 marine reserves within the DPS, and 16 host rockfish (Palsson et al., 2009), though most of these reserves are within waters shallower than those typically used by adult yelloweye rockfish, canary rockfish, or bocaccio. The WDFW reserves total 2,120.7 acres of intertidal and subtidal habitat. Aside from the WDFW reserves, the Washington State Department of Natural Resources operates an Aquatic Reserve Program that is intended to protect habitat through their statutory ownership authority. Management objectives and allowed activities within the reserves in the Puget Sound region and along the Pacific coast are diverse (Van Cleve et al., 2009) and there is no comprehensive monitoring program to assess the collective effects of existing protected areas within the Puget Sound region. A recent report identified several impediments to implementing effective monitoring of existing marine protected areas including large areas of the environment to cover, expenses to conduct survey work, insufficient funding for data management and analysis, the challenge of avoiding harm to species or habitats while conducting research, and narrow agency mandates (Van Cleve et al., 2009). The total percentage of the Puget Sound region within reserve status is unknown, though Van Cleve et al. (2009) estimate that one to five percent of the Puget Sound region is within a reserve. Compared to fished areas, studies have found higher fish densities, sizes, or reproductive activity in the assessed WDFW marine reserves (Palsson and Pacunski, 1995; Palsson, 1998; Eisenhardt, 2001; 2002; Palsson, 2004). However, since they were established over several decades with unique and somewhat unrelated ecological goals, and encompass relatively small areas (average of 23 acres), the net effect of existing reserves to yelloweye rockfish, canary rockfish and bocaccio abundance, productivity and spatial structure are probably very small. In general, the characteristics of a network of reserves that are relevant to enhancing populations of yelloweye rockfish, canary rockfish and bocaccio include sites in each of the major regions of the DPS, and sites that provide some connectivity to each other E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations (for larvae). Finally the sites would need to be large enough to collectively encompass diverse habitats that facilitate productivity of individual fish and reserve resiliency to outside disturbances and stressors (Sobel and Dahlgren, 2004). In 2007, the Canadian government designated approximately 135 rockfish conservation areas that encompasses 30 percent of the area of the inside waters of Vancouver Island. These reserves do not allow directed commercial or recreational harvest for any species of rockfish, nor do they allow harvest of marine species that may incidentally catch rockfish. Since the Canadian reserves were recently established, the effects to rockfish populations are unknown. However, the attributes of these reserves that include the overall size of the network, which encompass a variety of habitats distributed throughout the northern portion of the DPS, will likely provide substantial benefit to rockfish populations. However, the lack of an analogous network in the southern portion of the Georgia Basin still leaves a possible gap in the survival and recovery potential of yelloweye rockfish, canary rockfish and bocaccio. Consideration of these additional details did not change our extinction risk analysis for yelloweye rockfish, canary rockfish and bocaccio within this final listing determination. The programs and protective efforts described about do not alter the risk factors identified by Drake et al. (2010), and discussed in the proposed rule (74 FR 18516, April 23, 2009). Comment 9: One commenter questioned how future recovery planning could occur given the general lack of precise abundance data, stating ‘‘listing these three species at this stage will make it difficult, if not impossible, to establish accurate delisting and recovery criteria.’’ Response: Future recovery planning efforts for yelloweye rockfish, canary rockfish and bocaccio will incorporate the best available information regarding each species’ abundance and spatial structure within the DPS. For instance, we expect that additional abundance data for each species will be available from studies by the WDFW prior to the development of the recovery plan. In addition, the recovery plan itself will identify data gaps that warrant further research. Beyond just identifying delisting criteria, we expect that the recovery plan for each species will also identify specific management actions necessary to achieve recovery of the species. VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 Biological or Other Relevant Data Concerning Any Threats to Each DPS Comment 10: Two commenters discussed the role of water quality as it relates to the status of yelloweye rockfish, canary rockfish and bocaccio. Referring to our proposed listing, one commenter stated that ‘‘* * * the characterization of nutrient issues and dissolved oxygen problems in Puget Sound is exceedingly broad’’ One commenter stated that ‘‘The impact of hypoxia as a risk to the petitioned rockfish in southern Puget Sound may be overstated in that historical documented occurrences of canary, bocaccio, and yelloweye rockfish do not correspond to areas of poor water quality in southern Puget Sound.’’ Response: We agree that elevated nutrient levels and low dissolved oxygen levels (causing hypoxia) are not uniformly distributed across the DPS, and that some areas of rockfish habitat are more likely to be affected than others. Specifically, periods of low dissolved oxygen are becoming more widespread in portions of Hood Canal and south of the Tacoma Narrows. Comment 11: Two commenters discussed contaminants. One commenter noted that our proposed listing adequately characterized what is known and not known regarding the impact or threat of toxic contaminants on each species, and added that ‘‘If pelagic prey dominate the diet of a petitioned species it may experience greater exposure to persistent bioaccumulative toxins (PBTs) across a greater spatial range (not just urban areas). Pelagic prey such as herring in Puget Sound have unusually high body burdens of PBTs * * * If petitioned species consume herring or similar pelagic prey, we believe that PBT contamination may have played a role in their decline, and is a risk factor for their recovery.’’ One commenter asked that we provide additional detail regarding ‘‘the level of scientific consensus on the emerging topics of reproductive dysfunction and other sub-lethal affects as a result of contaminant exposure.’’ Response: We agree that contaminants within forage fish such as herring distribute contaminants across a greater spatial range than just urban areas. The long life span and residency of rockfish in the Georgia Basin increase the risk of exposure and bioaccumulation in individual fish. Although risks from contaminants can affect all life history stages of rockfish, few studies have investigated the effects of toxins on rockfish ecology or physiology. Contaminants may influence growth PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 22281 rates of rockfish. For example, Palsson et al. (2009) describe a case in which male rockfish have lower growth rates than females—an unusual pattern for rockfish since males typically grow faster than females. The explanation may be that male rockfish tend to accumulate PCBs, while female’s body burden does not increase with time since they lower their toxin level when they release eggs. Thus, the observed difference in growth rate may result from the higher contaminant concentration in males versus females. The full effect of contaminants on rockfish remains unknown, but there is clearly a potential for impact and that warrants further research efforts. Comment 12: One commenter questioned whether rocky habitat loss has occurred as stated in the proposed rule (74 FR 18516, April 23, 2009). Instead, the commenter stated that ‘‘habitat may be degraded due to derelict fishing gear or impaired water quality.’’ Response: We agree that rocky habitat loss is rare, and other factors have likely reduced rocky habitat suitability in some areas, but note that the loss of rocky habitat has occurred near the Skagit River delta as a result of sedimentation from the Skagit watershed (Grossman et al., in review). We also concur that lost commercial fishing nets and commercial and recreational crab pots (collectively referred to as derelict fishing gear) may be having a large impact on rockfish habitat suitability. Lost gear generally catches on bottom structure such as rocky reefs and large boulders that are also attractive to rockfish (NRC, 2007). Derelict nets trap fine sediments out of the water column, making a layer of soft sediment over rocky areas that changes habitat quality and suitability for benthic organisms (NRC, 2007). This gear covers habitats used by rockfish for shelter and pursuit of food and likely causes a depletion of food sources. For instance, a study of several derelict nets in the San Juan Islands reported an estimated 107 invertebrates and 16 fish (of various species) entangled per day (NRC, 2008). One net had been in place for 15 years, entangling an estimated 16,500 invertebrates and 2,340 fish (NRC, 2008). Though these estimates are coarse, they illustrate the potential impacts of derelict gear within the DPS. In shallower waters used by juvenile rockfish, this gear can reduce kelp overstory coverage and growth. Comment 13: One commenter requested ‘‘* * * that the listing decision process incorporate direct characterization and consideration of climate change effects on rockfish.’’ E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES 22282 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations Response: The draft and final status report analyzed the effects of climate variability and change on the extinction risk of yelloweye rockfish, canary rockfish and bocaccio rockfish (Drake et al., 2008; 2010). In general, variable ocean conditions (exacerbated by climate change) may increase extinction risk for each species. Marine, estuarine, and freshwater habitat in the Pacific Northwest has been influenced by climate change over the past 50 to100 years and global patterns suggest the long-term trend is for a warmer, less productive ocean regime in the California Current and the Transitional Pacific. Projections for the consequences of climate change in the Georgia Basin include: Continued rise of air and marine water temperatures, altered river and stream flows, increase of winter runoff with decrease in water stored as snow pack, increased river flooding, and continued sea level rise (NMFS, 2007). Related consequences to the Georgia Basin will likely consist of changes to water quality, circulation patterns, biological productivity, habitat distributions, populations of sensitive species, rates of harmful algal blooms, surface wind patterns, and coastal upwelling regimes. In addition, ocean acidification harms invertebrate calcification, photosynthesis, nitrogen fixation and reproduction (Doney et al., 2009). These types of impacts could fundamentally change food web dynamics that cascade to upper-level predators such as rockfish. These types of changes, collectively, could alter habitat conditions that are necessary for rockfish persistence. Comment 14: A commenter stated that ‘‘By a wide margin, the highest bycatch mortality for rockfish occurs in the Puget Sound recreational fishery for the winter Puget Sound blackmouth [immature Chinook salmon]’’ and not within the lingcod fishery, as stated in Drake et al. (2008). Response: The most recent fishery catch statistics do not show that yelloweye rockfish, canary rockfish and bocaccio bycatch from fishers targeting blackmouth (Chinook) salmon during the winter is high relative to other seasons. Rockfish catch data from 2004 to 2007 provided by the WDFW show that 100 percent of yelloweye rockfish and 95 percent of the canary rockfish bycatch associated with salmon fishing occurs within the May through August time periods (WDFW unpublished data). Determination of Species Under the ESA The ESA defines species to include subspecies or a DPS of any vertebrate species which interbreeds when mature VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 (16 U.S.C. 1532(16)). The FWS and NMFS have adopted a joint policy describing what constitutes a DPS of a taxonomic species (61 FR 4722; February 7, 1996). The joint DPS policy identifies two criteria for making DPS determinations: (1) The population must be discrete in relation to the remainder of the taxon (species or subspecies) to which it belongs; and (2) the population must be significant to the remainder of the taxon to which it belongs. A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: (1) ‘‘It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation’’; or (2) ‘‘It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D)’’ of the ESA. If a population segment is found to be discrete under one or both of the above conditions, its biological and ecological significance to the taxon to which it belongs is evaluated. This consideration may include, but is not limited to: (1) ‘‘Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon; (2) evidence that the loss of the discrete population segment would result in a significant gap in the range of a taxon; (3) evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range; and (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics.’’ The ESA defines an endangered species as one that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a threatened species as one that is ‘‘likely to become an endangered species in the foreseeable future throughout all or a significant portion of its range’’ (Sections 3(6) and (20) of the ESA). Section 4(a)(1) of the ESA and NMFS’s implementing regulations (50 CFR 424) state that we must determine whether a species is endangered or threatened because of any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or man-made factors affecting its continued existence. We are to make this determination based solely on the best available scientific and commercial information after conducting a review of the status of the species and taking into account any efforts being made by states or foreign governments to protect the species. Summary of Factors Affecting the Puget Sound/Georgia Basin DPSs The primary factors responsible for the decline of the three DPSs of rockfishes are overutilization for commercial and recreational purposes, habitat degradation, water quality problems including low dissolved oxygen and elevated contaminant levels, and inadequacy of existing regulatory mechanisms. The factors for decline are addressed collectively in the following section due to their similarity for each species. This section briefly summarizes findings regarding threats to the three DPSs of rockfishes. More details can be found in the status report (Drake et al., 2010), Palsson et al., (2009), and the proposed listing determination (74 FR 18516; April 23, 2009). The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range The BRT identified habitat degradation as a threat to these rockfish. In particular, degradation of rocky habitat, loss of eelgrass and kelp, introduction of non-native species that modify habitat, and degradation of water quality were identified as specific threats to rockfish habitat in the Georgia Basin. Though each species has been documented along areas of high relief and non-rocky substrates such as sand, mud and other unconsolidated sediments (Washington, 1977; Miller and Borton, 1980), it is very likely that densities of bocaccio, canary rockfish, and yelloweye rockfish are highest near rocky habitats. Such habitat is extremely limited in Puget Sound, with only 10 km2 (3.8 sq miles) of such habitat in Puget Sound Proper, and 207 km2 (80 sq miles) in North Puget Sound (Palsson et al., 2009). Rocky habitat is threatened by, or has been impacted by, derelict fishing gear, construction of bridges, sewer lines and other structures, deployment of cables and pipelines, and burying from dredge spoils and natural subtidal slope movement (Palsson et al., 2009). Juvenile bocaccio and canary rockfish utilize nearshore waters with substrates of rock or cobble compositions, and/or E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations kelp species (Love et al., 1991; Love et al., 2002). Habitats with these features likely offer a beneficial mix of warmer temperatures, food and refuge from predators (Love et al., 1991). Areas with floating and submerged kelp species (Families Chordaceace, Alariaceae, Lessoniacea, and Costariaceae, and Laminaricea) support the highest densities of most juvenile rockfish species (Carr, 1983; Halderson and Richards, 1987; Matthews, 1989; Hayden-Spear, 2006). Kelp cover is highly variable and has shown longterm declines in some regions, while kelp beds have increased in areas where artificial substrate provides additional kelp habitat (Palsson et al., 2009). Threats to kelp communities include toxins such as petroleum products which lower photosynthesis and respiration, activities associated with oyster culture and boat operations, and harvest (Mumford, 2007). Indirect stressors to kelp include low dissolved oxygen, eutrophication, and changes in trophic structure resulting from harvest of organisms that feed upon kelp (Mumford, 2007). Shoreline development has occurred along approximately 30 percent of the Puget Sound (Broadhurst, 1998), and has increased in recent years (Cornwall and Mayo, 2008). Development along the shoreline has been linked to reduced invertebrate abundance and species taxa diversity (Dugan et al., 2003), and reduced forage fish egg viability (Rice, 2006). These are examples of food web changes that may alter forage fish prey composition or abundance for these rockfish. Non-indigenous species are an emerging threat to biotic habitat in the Puget Sound region. Sargassum muiticum is an introduced brown alga that is now common throughout much of the Sound (Drake et al., 2010). The degree to which Sargassum influences native macroalgae, eelgrass, or rockfish themselves is not presently understood. Several species of non-indigenous tunicates have been identified in the Puget Sound region. For example, Ciona savignyi was initially seen in one location in 2004, but within two years spread to 86 percent of sites surveyed in Hood Canal (Puget Sound Action Team, 2007). The exact impact of invasive tunicates on rockfish or their habitats is unknown, but results in other regions (e.g., Levin et al., 2002) suggest the potential for introduced invertebrates to have widespread impacts on rocky-reef fish populations. Over the last century, human activities have introduced a variety of toxins into the Georgia Basin at levels that may affect rockfish populations or VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 the prey that support them. Several urban embayments in the Sound have high levels of heavy metals and organic compounds (Palsson et al., 2009). About 32 percent of the sediments in the Puget Sound region are considered to be moderately or highly contaminated (Puget Sound Action Team, 2007). Organisms that live in or eat these sediments are consumed, thus transferring contaminants up the food web to higher level predators like rockfishes, and to a wider geographic area. Not surprisingly, contaminants such as polychlorinated biphenyls (PCBs), chlorinated pesticides (e.g., DDT), and polybrominated diphenyl ethers (PBDEs) appear in rockfish collected in urban areas (Palsson et al., 2009). While the highest levels of contamination occur in urban areas, toxins can be found in the tissues of fish in all regions of the sound (Puget Sound Action Team, 2007). Rockfish collected in rural areas of the San Juan Islands revealed high levels of mercury and hydrocarbons (West et al., 2002). Although few studies have investigated the effects of toxins on rockfish ecology or physiology, other fish in the Puget Sound region that have been studied do show a substantial impact. As an example English sole is a demersal fish in the Puget Sound that lives in somewhat similar habitats as rockfish, and reproductive impairment has been documented in individuals from contaminated areas. This reduction effectively decreases the productivity of the species (Landahl et al., 1997). Reproductive function of rockfish is also likely affected by contaminants (Palsson et al., 2009), and other life history stages may be as well (Drake et al., 2010). Some areas with good habitat structure for rockfish are also located in areas that are now subject to high levels of contaminants. This is evidenced by the fact that rockfish were historically captured in great numbers in these areas (Palsson et al., 2009 and Puget Sound Action Team, 2007). In addition to chemical contamination, water quality in the Puget Sound region is also influenced by sewage, animal waste, and nutrient inputs. The Washington Department of Ecology has been monitoring water quality in the Puget Sound region for several decades. Monitoring includes fecal coliform, nitrogen, ammonium, and dissolved oxygen. In 2005, of the 39 sites sampled, eight were classified as highest concern, and 10 were classified as high concern. Hood Canal has seen persistent and increasing areas of low dissolved oxygen since the mid 1990s. Typically, rockfish move out of areas PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 22283 with dissolved oxygen less than 2 mg/ l; however, when low dissolved oxygen waters were quickly upwelled to the surface in 2003, about 26 percent of the rockfish population was killed (Palsson et al., 2009). In addition to Hood Canal, periods of low dissolved oxygen are becoming more widespread in waters south of Tacoma Narrows (Palsson et al., 2009). Overutilization for Commercial, Recreational, Scientific or Educational Purposes Our status report (Drake et al., 2010) and the WDFW (Palsson et al., 2009) identify overutilization for commercial and recreational purposes as the leading cause of decline to yelloweye rockfish, canary rockfish and bocaccio in the Puget Sound/Georgia Basin. The evidence is clear that historic overfishing has played a major role in the declines of rockfish in the Puget Sound region (Palsson et al., 2009; Drake et al., 2010; Williams et al., in press). Moreover, the life histories of yelloweye rockfish, canary rockfish and bocaccio make them highly susceptible to overfishing and, once populations are at a low level, recovery can require decades (Parker et al., 2000; Love et al., 2002). In particular, rockfish grow slowly, have a long life span and low natural mortality rates, mature late in life, often have sporadic reproductive success from year to year, may display high fidelity to specific habitats and locations, and require a diverse genetic and age structure to maintain healthy populations (Love et al., 2002). Estimates of rockfish harvest in the Puget Sound region are available for the last 87 years (Palsson et al., 2009). Commercial harvest was very low prior to World War II, rose during the War, and then averaged 125,000 pounds (56,700 kg) between 1945 and 1970. In the 1970s, harvest increased dramatically, peaking in 1980 at 880,000 pounds (399,200 kg). Catches remained high until the early 1990s and then declined dramatically (Palsson et al., 2009). From 1921 to 1970 a total of 3,812,000 pounds (1,729,000 kg) of rockfish were landed in the Puget Sound region, while nearly this same level of harvest (3,968,000 pounds; 1,800,000 kg) was achieved in only 7 years (from 1977 to 1983). The average annual harvest from 1977 to 1990 was nearly four times pre–1970 levels. Palsson et al. (2009) provide a rough estimate of the total rockfish biomass in the Puget Sound region during the 1999 to 2004 time period of 3,205,521 pounds (1,454,000 kg), less than the total harvest from 1977 to 1983. For comparison, exploitation rates for E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES 22284 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations canary rockfish during the 1980s and 1990s along the U.S. Pacific Coast ranged from 5 to 19 percent (Stewart, 2007), bocaccio ranged from 5 to 31 percent (MacCall, 2008), and yelloweye rockfish ranged from less than 5 percent to about 17 percent (Wallace, 2007). In each of these cases, these high exploitation rates were followed by dramatic declines in population size (Stewart, 2007; Wallace, 2007; MacCall, 2008). Fishery removals can affect both the absolute abundance of rockfish as well as the relative abundance of larger fish. Palsson et al. (2009) examined studies comparing rockfish populations in marine reserves in the Puget Sound region to populations outside reserves, and related this information to longterm trends in rockfish catch data, to draw conclusions about the effects of fishing on rockfish in the Puget Sound region. They noted that rockfish in marine reserves in the Puget Sound region generally are at higher densities than rockfish outside reserves. They considered this information in the context of steep declines in the catch of rockfish after the early 1980s to conclude that the current low abundance of rockfish in the Puget Sound region is likely the result of overfishing. They further noted that rockfish in marine reserves in the Puget Sound region are larger than rockfish outside the reserves. Coupled with information that the size of rockfish in the Puget Sound region has declined in recent decades, they concluded that fishing has also likely altered the age structure of rockfish populations by removing larger older individuals. Age truncation (the removal of older fish) can occur at even moderate levels of fishing for rockfish (Berkeley et al., 2004). Age truncation has been widely demonstrated for rockfish populations all along the west coast (Mason, 1998; Harvey et al., 2006), even for species not currently categorized as overfished by the Pacific Fishery Management Council. It can have ‘‘catastrophic’’ effects for long-lived species such as rockfish (Longhurst, 2002). For yelloweye rockfish, canary rockfish and bocaccio in the Georgia Basin, it is likely that the age truncation effects of past overfishing are longlasting and constitute an ongoing threat, particularly because older and larger females are likely to be more fecund and their offspring may have higher survival rates. In addition, fishing can have dramatic impacts on the size or age structure of the population, with effects that can influence ongoing productivity. Because most rockfish females release larvae on only one day each year, the VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 timing of parturition (giving birth) can be crucial in terms of matching favorable oceanographic conditions for larvae. Larger or older females release larvae earlier in the season compared to smaller or younger females in black, blue, yellowtail, kelp, and darkblotched rockfish (Nichol and Pikitch, 1994; Sogard et al., 2008). Maternal effects on larval quality have been documented for black, blue, gopher, and yellowtail rockfish (Berkeley et al., 2004; Sogard et al., 2008). The mechanism for maternal effects on larval quality across species is the size of the oil globule provided to larvae at parturition, which provides the developing larvae with energy insurance against the risks of starvation (Berkeley et al., 2004; Fisher et al., 2007), and in black rockfish enhances early growth rates (Berkeley et al., 2004). An additional maternal effect in black rockfish indicates that older females are more successful in producing progeny that recruit from primary oocyte to fully developed larvae (Bobko and Berkeley, 2004). In a broad span of species, there is evidence that age or size truncation is associated with increased variability in recruitment. Examples include Icelandic cod (Marteinsdottir and Thorarinsson, 1998), striped bass (Secor, 2000), Baltic cod (Wieland et al., 2000), and many species of California Current fishes (Hsieh et al., 2006). For long-lived species, reproduction over a span of many years is considered a bet-hedging strategy that has a buffering effect at the population level, increasing the likelihood of some successful reproduction over a period of variable environmental conditions (Longhurst, 2002). When reproductive effort is limited to younger ages, this buffering capacity is lost and populations more closely follow short-term fluctuations in the environment (Hsieh et al., 2006). In summary, it is likely that past overfishing has reduced the abundance of the yelloweye rockfish, canary rockfish and bocaccio DPSs, leading to the current low abundance levels that place their future viability at risk. In addition, it is likely that past overfishing has reduced the proportion of large females in yelloweye rockfish, canary rockfish and bocaccio, harming the productivity of the populations and affecting their ability to recover from current low levels of abundance. Ongoing fisheries also create risks for these DPSs, and are discussed below under the ‘‘Inadequacy of Existing Regulations’’ section. Disease or Predation The status report identified predation as a threat to each species (Drake et al., 2010). Rockfish are important prey PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 items of lingcod (Beaudreau and Essington, 2007). Populations of lingcod have been low in the Puget Sound region, but are increasing in recent years (Palsson et al., 2009). Predation by pinnipeds may be locally significant. Four pinniped species are found in the waters of the State of Washington: Harbor seals, California sea lions, Steller sea lions, and northern elephant seals. Harbor seal populations have increased to more than 10,000 (Jeffries et al., 2003). The harbor seal is the only pinniped species that breeds in Washington waters, and is the only pinniped with known haul-out sites in the San Juan Islands (Jeffries et al., 2000). In the Puget Sound region, harbor seals are opportunistic feeders that consume seasonally and locally abundant prey (Olesiuk et al., 1990; London et al., 2001). About 2,000 Steller sea lions occur seasonally in Washington waters, with dozens found in the Puget Sound region, particularly in the San Juan Islands (Palsson et al., 2009). About 8 percent of the Steller sea lion diet is rockfish (Lance and Jeffries, 2007). Though not abundant, their large size and aggregated distribution suggest that their local impact on rockfish could be significant. Fifteen species of marine birds breed along the Washington coast; seven of these have historically been found breeding in the Puget Sound region (Speich and Wahl, 1989). The predominant breeding marine birds in the San Juan Islands are pigeon guillemots, double-crested cormorants, pelagic cormorants, and members of the western gull/glaucous-winged gull complex (Speich and Wahl, 1989). The first three species are locally abundant. Although these avian predators can consume juvenile rockfish, whether they have a significant impact on rockfish populations is unknown. Rockfish are susceptible to diseases and parasites (Love et al., 2002), but the extent and population consequences of disease and parasite impacts on the yelloweye rockfish, canary rockfish and bocaccio DPSs are not known. Palsson et al. (2009) suggest that stress associated with poor water quality may exacerbate the incidence and severity of naturally occurring diseases to the point of directly or indirectly decreasing survivorship of rockfish. The Inadequacy of Existing Regulatory Mechanisms Sport and Commercial Fishing Regulations Significant efforts to protect rockfish in the Puget Sound region from overharvest began in 1982 when the Washington Department of Fisheries E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations (now the WDFW) published the Puget Sound Groundfish Management Plan. This plan identified rockfish as an important commercial and recreational resource in the Sound and established acceptable biological catch levels to control harvest (Palsson et al., 2009). The acceptable biological catch levels were based on recent average catches and initially set at 304,360 kg (671,000 total pounds) of rockfish for the Puget Sound region. This plan emphasized recreational fisheries for rockfish while limiting the degree of commercial fishing. During the 1980s, the WDFW continued to collect information on rockfish harvest with an emphasis on increasing the amount of information available on rockfish bycatch in nontargeted fisheries (e.g., salmon fishery). In response to a reduction in catches, rockfish recreational harvest limits were reduced from 15 fish to 10 fish in North Puget Sound and to 5 fish in South Puget Sound in 1983. The 1982 Groundfish Management Plan was updated in 1986 and extended the preference for recreational fisheries over commercial fishing for rockfish to the San Juan Islands and the Strait of Juan de Fuca (Palsson et al., 2009). During this same time, the WDFW received a Federal grant to monitor recreational catches of rockfish and collect biological data on rockfish populations in the Sound. Information was collected, and new management scenarios for rockfish were developed but never implemented. In 1991, the WDFW adopted a significant change in strategy for rockfish management in Puget Sound. The strategy, called ‘‘passive management,’’ ended all monitoring of commercial fisheries for groundfish and collection of biological data and increased their reliance on anecdotal information (Palsson et al., 2009). The switch in strategy was at least partially due to the closing by the State legislature of commercial bottom fishing in Puget Sound south of Foulweather Bluff. The termination of monitoring created a data gap in rockfish biological data for the 1990s. In 1994, the recreational daily bag limit for rockfish was reduced to five fish in North Puget Sound and three fish in South Puget Sound. In addition, the WDFW adopted regulations to close remaining trawl fisheries in Admiralty Inlet. In 1996, the Washington State Fish and Wildlife Commission established a new policy for Puget Sound groundfish management. The policy stated that the commission would manage Puget Sound groundfish in a conservative manner in order to minimize the risk of overharvest and to ensure the long-term VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 health of the resource. During the next two years, the WDFW developed a groundfish management plan (Palsson et al., 1998) that identified specific goals and objectives to achieve the commission’s precautionary approach (Palsson et al., 2009). The plan also called for the development of speciesspecific (including many rockfishes) conservation and use plans. The WDFW is currently developing a Rockfish Conservation Plan, which is designed as a comprehensive management plan for all rockfish species within the Puget Sound and Strait of Juan de Fuca regions. The plan provides policy-level directions for future recovery efforts, monitoring, fisheries management, habitat protection and enhancement and research. The plan also notably calls for the designation of rockfish reserves within the region. In response to dwindling rockfish populations, in 2000, the WDFW established a one rockfish daily bag limit for the entire Puget Sound region, and in 2002 and 2003, prohibited the retention of canary and yelloweye rockfishes. Though these series of bag limit restrictions improved protective efforts for rockfish, they nonetheless were enacted after a large drop in rockfish abundance that occurred prior to the 1980s. In retrospect, they did not prevent the severe reduction of rockfish abundance within the Georgia Basin. In 2004, the WDFW promulgated additional protective regulations limiting harvest of rockfish to the open salmon and lingcod seasons, prohibiting spearfishing for rockfish east of Sekiu, and only allowing the retention of the first rockfish captured. Monitoring of recreational fisheries has also increased, with estimates of total rockfish catches by boat-based anglers now available. Bycatch and subsequent discarding of rockfish is currently thought to be quite high in the recreational fishery (Palsson et al., 2009). The WDFW reported bycatch rates of greater than 20 percent (20 percent of rockfish caught are released) prior to the 1980s, but in recent years bycatch rates are in excess of 50 percent. The recent increase is likely the outcome of the reduction in the allowable daily catch of rockfish (Palsson et al. 2009). Palsson et al. (2009) reports that for every rockfish landed in the Puget Sound region, 1.5 are released. From 2004 to 2007 canary and yelloweye rockfish were reported as bycatch in recreational salmon and bottomfish fisheries in each of the major regions of the Puget Sound (WDFW unpublished data). The vast majority of these fish were released, though the mortality levels of these fish were likely high due to barotrauma (Palsson et al., PO 00000 Frm 00081 Fmt 4700 Sfmt 4700 22285 2009). No bocaccio were reported in the 2004 to 2007 time period (WDFW unpublished data), though a number of rockfish were reported as unknown species. The status report assessed recreational and commercial fisheries as a ‘‘high’’ or ‘‘very high’’ threat to each species (Drake et al., 2010). Fishers targeting other species of rockfish or other types of popular fishes such as salmon and lingcod are likely to hook the occasional yelloweye rockfish, canary rockfish or bocaccio. This is because all of the aforementioned fishes’ distributions overlap within the Georgia Basin. They also consume similar or identical prey items, making them vulnerable to fishing lures or baits imitating these prey items. Although fishers may return rockfish to the water, the mortality rate of these fish is extremely high (Parker et al., 2006). There are some methods available that could lower the mortality rates of discarded rockfish (summarized by Palsson et al., 2009), though application of these methods in the Puget Sound region fishery would be difficult (Palsson et al., 2009). The WDFW considers bycatch of rockfish to be a ‘‘high impact stressor’’ on rockfish populations (Palsson et al., 2009). Recently the State of Washington adopted regulations that ban the retention of all rockfish species within Marine Catch Areas 6 to 13, which roughly overlap with the rockfish DPSs. In addition, a prohibition of fishing for bottomfish (except halibut) in waters deeper than 120 feet (36.6 m) was adopted. Because most yelloweye rockfish, canary rockfish and bocaccio reside in waters between 40 to 250 meters (Love et al., 2002), the 120-foot rule will likely reduce the numbers of incidentally caught rockfish by fishers targeting bottomfish. Bycatch will still occur in the bottomfish fishery in waters shallower than 120 feet (36.6 m), and in the halibut fishery. Bycatch will also continue to occur in recreational salmon fisheries because anglers targeting salmon are not subject to the 120-foot (36.6 m) depth restriction and also incidentally catch yelloweye rockfish, canary rockfish, and bocaccio. Though the state law requires all rockfish to be released, most are killed by the effects of barotrauma. Thus, bycatch remains an ongoing threat to each species. Commercial catch data do not include information on bycatch, and there is no effective program to make direct observations of bycatch aboard fishing vessels operating in Puget Sound region. Given the very high mortality rate of discarded rockfish (Parker et al., 2006), and the low resiliency of rockfish populations to exploitation, recent E:\FR\FM\28APR1.SGM 28APR1 22286 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations levels of bycatch are an important threat to yelloweye rockfish, canary rockfish and bocaccio (Drake et al., 2010). Though there are some marine reserves within the Puget Sound region, as previously discussed, they cover a relatively small area, and not all encompass rockfish habitat. While existing reserves support localized increased biomass of rockfish (Palsson, 2004), they were not established to serve as a regional network and do not alter our conclusions regarding extinction risk for each species. sroberts on DSKD5P82C1PROD with RULES Tribal Fishing Several species of rockfish have been historically harvested by Native Americans. Since 1991, rockfishes harvested by tribal fishers have represented less than two percent of the total Puget Sound region rockfish harvest (Palsson et al., 2009). Information from the Northwest Indian Fisheries Commission indicates that total reported rockfish catches by member tribes from 2000 to 2005 ranged between 10.9 and 368 kg (24 and 811 pounds). Tribal regulations in the Puget Sound region vary by tribe from a ban on commercial harvest of rockfish to a 15 fish bag limit for personal use. The currently low rockfish abundance in this area has significantly decreased the interest in harvest of rockfish by tribal fishers (W. Beattie, Northwest Indian Fisheries Commission, personal communication). Other Natural or Manmade Factors Affecting Its Continued Existence Rockfishes are known to compete interspecifically for resources (Larson, 1980). Harvey et al. (2006) documented the decline of bocaccio in the California Current, and used bioenergetic models to suggest that recovery of coastal populations of bocaccio may be inhibited by other more common rockfishes. In the Puget Sound region, more abundant species such as copper and quillback rockfish likely eat some juvenile yelloweye rockfish, canary rockfish and bocaccio and may compete for food sources. These interactions could limit the ability of the petitioned species to recover. Chinook and coho salmon consume larval and juvenile rockfish, and they also compete for prey with small size classes of rockfish (Buckley, 1997). Although it is uncertain how detrimental the effect may be, releases of hatchery salmon have the potential to influence the population dynamics of the petitioned species. Derelict fishing gear can continue ‘‘ghost’’ fishing and is known to kill rockfish (Palsson et al., 2009). There is VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 an ongoing program run by the Northwest Straits Initiative to remove derelict gear throughout the Puget Sound region, mostly concentrated in waters less than 100 feet (33 meters) deep. Nets and other gear in waters deeper than 100 feet have been incidentally encountered in habitat surveys, though the overall extent and impact of nets in deeper waters is unknown. In addition, during removal efforts nets have been documented to drape over slopes deeper than 100 feet, but current guidelines require the net to be cut off at 100 feet. Current guidelines also do not allow ‘‘mechanical advantage,’’ such as grappling hooks attached to vessel hydraulic systems, to remove nets that are too entangled in bottom substrate or rock for hand removal. Because habitats deeper than 100 feet are most readily used by adult yelloweye rockfish, canary rockfish and bocaccio, there is an unknown but potentially large impact from deepwater derelict gear on each population within the DPS. Approximately 20 percent of lost nets reported by fishermen are not recovered because the net drifts away and becomes submerged before responders arrive (J. June, Natural Resource Consultants, personal communication, November 2009). There are no devices installed on nets to track their location after they are lost, further complicating the recovery effort. As previously discussed, climate change could alter habitats within the Georgia Basin. Patterns of circulation and productivity in the Puget Sound region are influenced by climate conditions. Changes in the timing of freshwater input affect stratification and mixing in the Sound, while changes in wind pattern influence the amount of biologically important upwelled water that enters the Strait of Juan de Fuca from the coast (Snover et al., 2005). Direct studies on the effect of climate variability on rockfish are rare, but all the studies performed to date suggest that climate plays an extremely important role in population dynamics (Drake et al., 2010). The negative effect of the warm water conditions associated ˜ with El Nino appear to be common across rockfishes (Moser et al., 2000). Field and Ralston (2005) noted that recruitment of all species of rockfish appeared to be correlated at large scales and hypothesized that such synchrony was the result of large-scale climate forcing. Exactly how climate influences the yelloweye rockfish, canary rockfish and bocaccio in the Georgia Basin is unknown; however, Tolimieri and Levin (2005) report that bocaccio recruitment off of California is correlated with PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 specific sets of climate patterns. Given the general importance of climate to the Georgia Basin and to rockfish, it is likely that climate influences the dynamics of each species. Any future changes in climate patterns could affect the ability of yelloweye rockfish, canary rockfish and bocaccio within the Puget Sound/ Georgia Basin DPSs to recover. Efforts Being Made To Protect the Rockfish DPSs Section 4(b)(1)(A) of the ESA requires the Secretary to make listing determinations solely on the basis of the best scientific and commercial data available after taking into account efforts being made to protect a species. Therefore, in making ESA listing determinations, we first identify factors that have led to a species’ decline and assess the level of extinction risk. We then assess efforts being made to protect the species to determine if those measures ameliorate the risks faced by the DPS(s). To do this, we follow the guidance in the joint NMFS—FWS ‘‘Policy for Evaluation of Conservation Efforts When Making Listing Decisions’’ (68 FR 15100, 28 March 2003). This section summarizes the protective efforts described in the proposed rule (FR 18516; April 23, 2009). Yelloweye rockfish, canary rockfish and bocaccio indirectly benefit from many Federal, state and tribal regulatory and voluntary aquatic habitat improvement programs aimed at other species. Rockfish require water quality that facilitates their growth, movement and reproductive potential. Federal programs carried out under laws such as the Federal Clean Water Act (CWA) of 1972 help to ensure that water quality is maintained or improved and that discharge of fill material into waterways is regulated. Several sections of this law, such as section 404 (discharge of fill into wetlands), section 402 (discharge of pollutants into water bodies), and section 404(d) (designation of water quality limited areas), regulate activities that might degrade rockfish habitat. Although programs carried out under the CWA are well funded and enforcement of this law occurs, the Puget Sound region nonetheless continues to receive daily input of water quality pollutants from a variety of sources (PSP, 2010). The Washington State Department of Ecology (Ecology) estimates that Puget Sound receives between 14 and 94 million pounds of toxic pollutants per year, which include oil and grease, PCBs, phthalates, PBDEs, and heavy metals that include zinc, copper and lead (Ecology 2010). This level of pollutant loading has been documented to bioaccumulate in many E:\FR\FM\28APR1.SGM 28APR1 sroberts on DSKD5P82C1PROD with RULES Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations fishes and marine mammals in the Puget Sound (Collier et al., 2007). Forecasted population growth are likely to exacerbate these toxic inputs (Collier et al., 2007). This indicates that although current programs provide some protection, they are not sufficient to fully protect rockfish habitat. Section 10 of the Rivers and Harbors Act prohibits placement of any structure in any navigable waterway of the United States without approval from the Army Corps of Engineers. Most or all rockfish habitat in the United States is considered to be navigable, and it is not expected that any major obstructions to migration would be constructed within their range. The Coastal Zone Management Act and Coastal Zone Act Reauthorization Amendments of 1990 encourage states and tribes to preserve, protect, develop, and where possible, restore or enhance valuable natural coastal resources such as wetlands, floodplains, estuaries, beaches, dunes, barrier islands, and coral reefs, as well as the fish and wildlife using those habitats. Despite these provisions, the status of rockfishes and other species continues to decline. In the Puget Sound region and elsewhere along the west coast, governments and non-governmental organizations are working to restore depressed salmon stocks. Rockfish in the Puget Sound region benefit from these efforts indirectly, primarily through improved water quality in streams that flow into the Puget Sound region. As part of these efforts, the State of Washington established the Puget Sound Partnership in 2007, a new agency consisting of an executive director, an ecosystem coordination board, and a Puget Sound science panel. The Partnership was created to oversee the restoration of the environmental health of Puget Sound by 2020, and in 2008 created a long-term plan called the 2020 Action Agenda (PSP, 2010). Throughout the Puget Sound/Georgia Basin DPS, an array of Federal, State, tribal, and local entities carry out aquatic habitat restoration programs. These programs are generally intended to benefit other fish species such as salmon, but rockfish may also benefit from some projects, particularly those that occur within the nearshore environment (which could benefit juvenile rockfishes). Although these programs are too numerous to list individually, they include the Pacific Coast Salmon Recovery Fund and the Northwest Straits Commission, which organizes removal of derelict fishing gear. Though these existing efforts and programs do ameliorate some risks to VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 yelloweye rockfish, canary rockfish and bocaccio, their cumulative impacts are not sufficient to ensure survival and recovery of each species within the range of the Puget Sound/Georgia Basin DPSs (74 FR 18516; April 23, 2009). Final Listing Determination Section 4(b)(1) of the ESA requires that the listing determination be 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 those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the draft and final reports of the BRT (Drake et al., 2008; 2010), comanager comments, peer review comments, public comments and other available published and unpublished information, and we have consulted with species experts and other individuals familiar with yelloweye rockfish, canary rockfish and bocaccio. For the reasons stated above, and as summarized below, we conclude: (1) Yelloweye rockfish, canary rockfish and bocaccio inhabiting the Georgia Basin based on marked separation meet the discreteness and significance criteria for DPSs; (2) Georgia Basin bocaccio are in danger of extinction throughout their range; and (3) Georgia Basin canary rockfish and yelloweye rockfish are likely to become endangered throughout their ranges in the foreseeable future. Bocaccio occurring in the Georgia Basin are discrete from other members of their species based on marked separation evidenced by the following: (1) Bocaccio exhibit similar larval and juvenile life history as all other rockfish species that demonstrate significant genetic differences between populations inhabiting coastal waters and inland marine waters of the Pacific Northwest; (2) the differences in age structure between coastal and inland stocks indicates that the two are demographically independent; and (3) given the unique habitat conditions and retentive circulation patterns of Puget Sound, a significant fraction of larvae released by bocaccio (especially the more inland portions of the Sound), could be retained within the Sound. Yelloweye rockfish occurring in the Georgia Basin are discrete from other members of their species based on the following: (1) All other rockfish species for which genetic information are available have significant genetic differences between populations inhabiting coastal waters and inland marine waters of the Pacific Northwest. Similarly, information from yelloweye rockfish studies show genetic PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 22287 differences between rockfish inhabiting coastal waters and inland marine waters of Vancouver Island; (2) yelloweye rockfish generally remain sedentary as adults, limiting gene flow between populations and regions; and (3) given the unique habitat conditions and retentive circulation patterns of Puget Sound, a significant fraction of larvae released by yelloweye rockfish (especially the more inland portions of the Sound), could be retained within the Sound. Canary rockfish occurring in the Georgia Basin are discrete from other members of their species based on the following: (1) Canary rockfish exhibit similar larval and juvenile life histories as all other rockfish species that demonstrate significant genetic differences between populations inhabiting coastal waters and inland marine waters of the Pacific Northwest; and (2) given the unique habitat conditions and retentive circulation patterns of Puget Sound, a significant fraction of larvae released by canary rockfish (especially the more inland portions of the Sound), could be retained within the Sound. These DPSs meet the significance criterion because they occupy the unique ecological setting of the Georgia Basin. The current patterns of the inland marine waters, interactions between fresh and saltwater, the protection afforded by the land features of the Olympic Peninsula and Vancouver Island, and sill-dominated bathymetry make the Georgia Basin different from other coastal areas occupied by these species and likely lead to unique adaptations in these species. Some ongoing efforts to protect Pacific salmonids, as described in the previous section, are likely to also benefit these rockfish species. However, these efforts do not comprehensively address the threats from degradation of benthic and nearshore habitats, fishery bycatch and degraded water quality. Based on the best scientific and commercial information available, including the preliminary and final BRT reports, we have determined that the Puget Sound/Georgia Basin DPS of bocaccio is currently in danger of extinction throughout all of its range. Factors supporting this conclusion include: (1) Reduced abundance, to the point where the species is undetected in recent fishery surveys, thus raising concerns about successful reproduction and persistence; (2) infrequent recruitment events dependent on rare weather and ocean conditions; (3) high susceptibility to overfishing; (4) high mortality rate associated with any incidental capture in fisheries, despite E:\FR\FM\28APR1.SGM 28APR1 22288 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations sroberts on DSKD5P82C1PROD with RULES improvements (summarized in the previous sections) in current recreational fishing regulations; and (5) exposure to degraded water quality and other habitat perturbations within the Georgia Basin. Therefore, we are listing the Puget Sound/Georgia Basin DPS of bocaccio as endangered. We have determined that the Puget Sound/Georgia Basin DPSs of canary and yelloweye rockfish are not presently in danger of extinction, but are likely to become so in the foreseeable future throughout all of their range. Factors supporting a conclusion that these DPSs are not presently in danger of extinction include: (1) These DPSs’ abundances have been greatly reduced from historic levels, but fish are still present in significant enough numbers to be caught in recreational fisheries and research trawls; (2) large female members of these species are highly fecund and, if allowed to survive and reproduce successfully, can produce large numbers of offspring; and (3) the WDFW fishing regulations reduce potential for bycatch associated with bottomfishing. Factors supporting a conclusion that these DPSs are likely to become in danger of extinction in the foreseeable future include: (1) These DPSs’ abundances have greatly decreased from historic levels and abundance trends are negative; (2) individuals of these species appear to be absent in areas where they were formerly abundant; (3) although these species were formerly abundant in the catch, they are less frequent now; (4) although current recreational fishing regulations have been changed to offer more protection to these DPSs, they are still vulnerable to being hooked in fisheries in the Georgia Basin and often die after release, further reducing population productivity and abundance; and (5) current protective measures for habitat in the Puget Sound region are not yet sufficient to ameliorate the threats to these species as evidenced by continuing water quality and nearshore and benthic habitat degradation. We are therefore listing the Puget Sound/ Georgia Basin DPSs of yelloweye and canary rockfish as threatened. Prohibitions and Protective Measures Section 9 of the ESA prohibits the take of endangered species. The term ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). Take of Puget Sound/Georgia Basin DPS of bocaccio would be prohibited when this listing takes effect (see DATES section). In the case of threatened species, ESA section 4(d) leaves it to the Secretary’s discretion whether, and to what extent, VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 extend the section 9(a) ‘‘take’’ prohibitions to the species, and authorizes us to issue regulations necessary and advisable for the conservation of the species. Thus, we have flexibility under section 4(d) to tailor protective regulations, taking into account the effectiveness of available conservation measures. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These 9(a) prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. We will evaluate protective regulations pursuant to section 4(d) for the DPSs of yelloweye and canary rockfish, and issue proposed regulations in forthcoming rules that will be published in the Federal Register. Section 7(a)(2) of the ESA requires Federal agencies to confer with us on actions likely to jeopardize the continued existence of species proposed for listing or result in the destruction or adverse modification of proposed critical habitat. Once a species is listed as threatened or endangered, section 7(a)(2) requires Federal agencies to ensure that any actions they fund, authorize, or carry out do not jeopardize the continued existence of the species. Once critical habitat is designated, section 7(a)(2) also requires Federal agencies to ensure that they do not fund, authorize, or carry out any actions that are likely to destroy or adversely modify that habitat. Our section 7 regulations require the responsible Federal agency to initiate formal consultation if a Federal action may affect a listed species or its critical habitat (50 CFR 402.14(a)). Examples of Federal actions that may affect the yelloweye rockfish, canary rockfish and bocaccio DPSs include shoreline development, cable laying, tidal energy projects, dredging, dredge disposal, point and non-point source discharge of persistent contaminants, adoption of water quality standards, regulation of newly emerging chemical contaminants, research and monitoring, and fishery harvest and management practices. Sections 10(a)(1)(A) and (B) of the ESA provide us with authority to grant exceptions to the ESA’s Section 9 ‘‘take’’ prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. The type of activities potentially requiring a section 10(a)(1)(A) research/ enhancement permit include scientific PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 research that targets yelloweye rockfish, canary rockfish or bocaccio. Section 10(a)(1)(B) incidental take permits may be issued to non-Federal entities performing activities that may incidentally take listed species, as long as the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Effective Date of the Final Listing Determination We recognize that numerous parties may be affected by the listing of the Puget Sound/Georgia Basin DPSs of yelloweye rockfish, canary rockfish, and bocaccio. To permit an orderly implementation of the consultation requirements applicable to threatened and endangered species, the final listing will take effect on July 27, 2010. Critical Habitat Section 3(5)(A) of the ESA defines critical habitat as ‘‘(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * * on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed * * * upon a determination by the Secretary that such areas are essential for the conservation of the species.’’ Section 4(a)(3) of the ESA requires that, to the extent practicable and determinable, critical habitat be designated concurrently with the listing of a species. Designation of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. In determining what areas qualify as critical habitat, 50 CFR 424.12(b) requires that we consider those physical or biological features that are essential to the conservation of a given species including ‘‘space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.’’ The regulations further direct NMFS to ‘‘focus on the principal biological or physical constituent elements * * * that are essential to the conservation of the species,’’ and specify E:\FR\FM\28APR1.SGM 28APR1 22289 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations that the ‘‘Known primary constituent elements shall be listed with the critical habitat description.’’ The regulations identify physical and biological features as including, but not limited to: ‘‘Roost sites, nesting grounds, spawning sites, feeding sites, seasonal wetland or dry land, water quality or quantity, host species or plant pollinator, geological formation, vegetation type, tide, and specific soil types.’’ In our proposal to list yelloweye rockfish, canary rockfish and bocaccio, we requested information on the identification of specific areas that meet the definition of critical habitat defined above. We also solicited biological and economic information relevant to making a critical habitat designation for each species. We have reviewed the comments provided and the best available scientific information. We conclude that critical habitat is not determinable at this time for the following reasons: (1) Information is not currently available to assess impacts of designation, (2) information is not currently available regarding the physical and biological features essential to conservation. Classification National Environmental Policy Act (NEPA) ESA listing decisions are exempt from the requirements to prepare an environmental assessment or environmental impact statement under the NEPA (see NOAA Administrative Order 216–6.03(e)(1) and Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981)). Thus, we have determined that this final listing determination for the Puget Sound/ Georgia Basin DPSs of yelloweye rockfish, canary rockfish, and bocaccio is exempt from the requirements of NEPA. Executive Order (E.O.) 12866, Regulatory Flexibility Act and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under E.O. 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act. E.O. 13084—Consultation and Coordination With Indian Tribal Governments E.O. 13084 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This final rule does not impose substantial direct compliance costs on Indian tribal governments or communities. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this final rule. Nonetheless, we will continue to inform potentially affected tribal governments, solicit their input, and coordinate on future management actions. E.O. 13132—Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this final rule. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, the proposed rule (74 FR 18516, April 23, 2009) was provided to the relevant state agencies in each Species 1 state in which the species is believed to occur, and these agencies were invited to comment. We have conferred with the State of Washington and their comments and recommendations have been considered and incorporated into this final determination where applicable. References A list of references cited in this document is available upon request (see ADDRESSES) or via the Internet at http://www.nwr.noaa.gov. Additional information, including agency reports and written comments, is also available at this Internet address. List of Subjects 50 CFR Part 223 Endangered and threatened species, Exports, Imports, Transportation. 50 CFR Part 224 Endangered and threatened species, Exports, Reporting and recordkeeping requirements. Dated: April 23, 2010. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 223 is amended as follows: ■ PART 223—THREATENED MARINEAND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: ■ Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9) et seq. 2. In § 223.102, in the table, amend paragraph (c) by adding paragraphs (c)(26)), and (c)(27) to read as follows: ■ § 223.102 Enumeration of threatened marine and anadromous species. * * * * * Where listed sroberts on DSKD5P82C1PROD with RULES Common name * (c) * * * (26) Rockfish, Yelloweye— Puget Sound/Georgia Basin DPS. * * ........................................... Sebastes ruberrimus ......... (27) Rockfish, Canary— Puget Sound/Georgia Basin DPS. Sebastes pinniger ............. Citation(s) for listing determination(s) * ........................................... U.S.A.-Washington, and British Columbia, including Puget Sound and Georgia Basin. U.S.A.-Washington, and British Columbia, including Puget Sound and Georgia Basin. * * ........................................... [Insert FEDERAL REGISTER page and date citation]. [Insert FEDERAL REGISTER page and date citation]. [Insert FEDERAL REGISTER page and date citation]. [Insert FEDERAL REGISTER page and date citation]. Scientific name VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 PO 00000 Frm 00085 Fmt 4700 Sfmt 4700 E:\FR\FM\28APR1.SGM 28APR1 Citation(s) for critical habitat designation(s) * 22290 Federal Register / Vol. 75, No. 81 / Wednesday, April 28, 2010 / Rules and Regulations Species 1 Citation(s) for listing determination(s) Where listed Common name Scientific name * * * PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 3. The authority citation for part 224 continues to read as follows: ■ * * Citation(s) for critical habitat designation(s) * * Authority: 16 U.S.C. 1531–1543 and 16 U.S.C. 1361 et seq. § 224.101 Enumeration of endangered marine and anadromous species. 4. Amend the table in § 224.101(a), by adding an entry for ‘‘Puget Sound/ Georgia Basin- Bocaccio’’ at the end to read as follows: * ■ Species 1 * * (a) * * * * * Where listed Common name * Puget Sound/Georgia Basin DPS—Bocaccio. * * * * Citation(s) for listing determination(s) Citation(s) for critical habitat designation(s) * U.S.A., Washington, and British Columbia, including Puget Sound and Georgia Basin. * * [Insert FEDERAL REGISTER page and date citation]. * [Insert FEDERAL REGISTER page and date citation]. Scientific name * * Sebastes paucispinis ........ * [FR Doc. 2010–9847 Filed 4–27–10; 8:45 am] sroberts on DSKD5P82C1PROD with RULES BILLING CODE 3510–22–P VerDate Mar<15>2010 16:00 Apr 27, 2010 Jkt 220001 PO 00000 Frm 00086 Fmt 4700 Sfmt 9990 E:\FR\FM\28APR1.SGM 28APR1

Agencies

[Federal Register Volume 75, Number 81 (Wednesday, April 28, 2010)]
[Rules and Regulations]
[Pages 22276-22290]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9847]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 080229341-0108-03]
RIN 0648-XF89


Endangered and Threatened Wildlife and Plants: Threatened Status 
for the Puget Sound/Georgia Basin Distinct Population Segments of 
Yelloweye and Canary Rockfish and Endangered Status for the Puget 
Sound/Georgia Basin Distinct Population Segment of Bocaccio Rockfish

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

ACTION: Final rule.

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SUMMARY: We, the NMFS, issue a final determination to list the Puget 
Sound/Georgia Basin Distinct Population Segments (DPSs) of yelloweye 
rockfish (Sebastes ruberrimus) and canary rockfish (Sebastes pinniger) 
as threatened, and bocaccio rockfish (Sebastes paucispinis) as 
endangered under the Endangered Species Act (ESA). We intend to propose 
protective regulations for yelloweye and canary rockfish under ESA 
section 4(d) and critical habitat for all three species in separate 
rulemakings, and will solicit public comments for these rulemakings 
separately.

DATES: This final rule is effective on July 27, 2010.

ADDRESSES: NMFS, Protected Resources Division, 7600 Sandpoint Way, NE., 
Building 1, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Dan Tonnes at the address above or at 
(206) 526-4643, or Dwayne Meadows, Office of Protected Resources, 
Silver Spring, MD (301) 713-1401. The final rule, references and other 
materials relating to this determination can be found on our Web site 
at http://www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION: 

Background

    On April 9, 2007, we received a petition from Mr. Sam Wright of

[[Page 22277]]

Olympia, Washington, to list stocks of greenstriped rockfish, redstripe 
rockfish, yelloweye rockfish, canary rockfish, and bocaccio, in Puget 
Sound as endangered or threatened species under the ESA and to 
designate critical habitat. Puget Sound is part of a larger inland 
system, the Georgia Basin, situated between southern Vancouver Island 
and the mainland coasts of Washington State and British Columbia. We 
declined to initiate a review of the species' status under the ESA, 
finding that the petition failed to present substantial scientific or 
commercial information to suggest that the petitioned actions may be 
warranted (72 FR 56986; October 5, 2007). On October 29, 2007, we 
received a letter from Sam Wright presenting information that was not 
included in the April 2007 petition, and requesting that we reconsider 
our October 5, 2007, decision not to initiate a review of the species' 
status. We considered the supplemental information provided in the 
letter and the information submitted previously in the April 2007 
petition as a new petition to list these species and to designate 
critical habitat. The supplemental information included additional 
details on the life histories of rockfish supporting the case that 
individuals of these species occurring in Puget Sound may be unique and 
additional information on recreational harvest levels suggesting 
significant declines of rockfish abundance. We determined that 
greenstriped rockfish and redstripe rockfish did not warrant listing 
under the ESA, but that the bocaccio, yelloweye and canary rockfishes 
may warrant listing under the ESA; and we therefore initiated status 
reviews of these three species (73 FR 14195; March 17, 2008).
    The overall steps we follow when evaluating the ESA status of a 
species are to: (1) Delineate the species under consideration; (2) 
review the status of the species; (3) consider the ESA section 4(a)(1) 
factors to identify threats facing the species; (4) assess whether 
certain protective efforts mitigate these threats; and (5) predict the 
species' future persistence. We provide more detailed information and 
findings regarding each of these steps later in this notice.
    To ensure that this assessment was based on the best available 
scientific and commercial information, we formed a Biological Review 
Team (BRT) comprised of Federal scientists from our Northwest and 
Southwest Fisheries Science Centers. We asked the BRT to first 
determine whether yelloweye rockfish, canary rockfish and bocaccio 
warrant delineation into DPSs, using the criteria in the joint NMFS--
U.S. Fish and Wildlife Service (FWS) DPS policy (61 FR 4722; February 
7, 1996). We also asked the BRT to assess the level of extinction risk 
facing each species and to describe their confidence that the species 
is at high risk, moderate risk, or neither. We described a species with 
high risk as one that is at or near a level of abundance, productivity, 
and/or spatial structure that places its persistence in question. We 
described a species at moderate risk as one that exhibits a trajectory 
indicating that it is more likely than not to be at a high level of 
extinction risk in the foreseeable future, with the appropriate time 
horizon depending on the nature of the threats facing the species and 
the species' life history characteristics. The report of the BRT 
deliberations (Drake et al., 2010) (hereafter ``status report'') 
thoroughly describes yelloweye rockfish, canary rockfish, and bocaccio 
biology and natural history, and assesses demographic risks, threats, 
limiting factors, and overall extinction risk.
    On April 23, 2009, we proposed to list the Puget Sound/Georgia 
Basin DPSs of yelloweye rockfish and canary rockfish as threatened and 
bocaccio rockfish as endangered species under the ESA (74 FR 18516). We 
solicited comments and suggestions from all interested parties 
including the public, other governmental agencies, the Government of 
Canada, the scientific community, industry, and environmental groups. 
Specifically, we requested information regarding: (1) Population 
structure of yelloweye rockfish, canary rockfish, and bocaccio; (2) 
biological or other relevant data concerning any threats to the 
rockfish DPSs we propose for listing; (3) the range, distribution, and 
abundance of these rockfish DPSs; (4) current or planned activities 
within the range of the rockfish DPSs we propose for listing and their 
possible impact on these DPSs; and (5) efforts being made to protect 
rockfish DPSs we propose to list. Subsequent to the proposed rule (74 
FR 18516, April 23, 2009), the BRT produced an updated status report 
(Drake et al., 2010) that summarizes new and additional information 
that has become available since release of the draft status report 
(Drake et al., 2008), responds to substantive peer review and public 
comments on the draft status report and the proposed rule and presents 
the final BRT conclusions on the status of the Puget Sound/Georgia 
Basin DPSs of yelloweye rockfish, canary rockfish, and bocaccio.

Summary of Comments Received in Response to the Proposed Rule

    We solicited public comment on the proposed listing of each 
rockfish DPS for 60 days. We did not receive a request for, nor did we 
hold, a public hearing on the proposal. Public comments were received 
from four separate commenters, and copies of all public comments 
received are available online at: http://www.regulations.gov/search/Regs/. Summaries of the substantive technical comments received, and 
our responses, are provided below, organized by category.
    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. Similarly, 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). In accordance with these 
policies, we solicited technical review of the draft status report 
(Drake et al., 2008) from six independent experts selected from the 
academic and scientific community. Each of these reviewers is an expert 
in rockfish biology or extinction risk assessment methodology. Comments 
were received from four of the six independent experts from whom we 
requested technical review. The reviewers were generally supportive of 
the scientific principles underlying the DPS determination and proposed 
listing determination for each species.
    There was substantial overlap between the comments from the 
independent expert reviewers and the substantive public comments. The 
comments were sufficiently similar that we have responded to the peer 
reviewer's comments through our general responses, which have been 
placed in three general categories below. The comments received 
concerning critical habitat are not germane to this listing decision 
and will not be addressed in this final rule. Those comments will be 
addressed during any subsequent rulemaking on critical habitat for each 
rockfish DPS.

Delineation of Distinct Population Segments

    Comment 1: One commenter questioned the BRTs interpretation of the 
strong 1999 year class of coastal bocaccio, and the lack of a strong 
year class the same year in the Georgia Basin, as additional evidence 
that the two populations were not highly connected and thus consisted 
of two discrete units. The commenter stated that ``The documented 1999 
strong year class was evident in the southern portion of the California 
Current System. The presence

[[Page 22278]]

of a strong year class in northern portions of their range has not been 
documented.'' The commenter also stated that the bocaccio length-
frequency data reported in Drake et al. (2008) do not support the 
conclusion that successful recruitment is occurring in the Puget Sound 
and that the presence of mature individuals and many size (age) classes 
supports a viable population in the region.
    Response: We agree with the commenter that the bocaccio recruitment 
event documented in 1999 was for the California portion of the stock. 
Thus it could be problematic to conclude that the bocaccio 1999 year 
class was also strong off the coast of Washington and British Columbia. 
We therefore do not rely on this factor to conclude that Georgia Basin 
bocaccio are discrete from coastal bocaccio.
    In response to the comment regarding length-frequency data for 
bocaccio, the BRT conducted an additional analysis to include an 
examination of the coherence of other year-classes and modified the 
status report to show the results of this analysis (Drake et al., 
2010). Overall, there appears to be little correspondence between age 
structure of bocaccio inside and outside of the Puget Sound region 
(referring to the San Juan, Eastern Straits of Juan de Fuca, North 
Sound, Central Sound, South Sound and Hood Canal regions). This 
distinction in age structure suggests demographic isolation, which 
provides additional evidence of discreteness for the Puget Sound/
Georgia Basin DPS designation.
    Comment 2: One reviewer stated that the genetic data from other 
rockfish species in Puget Sound provide a reasonable template for the 
possible genetic structure of yelloweye rockfish, canary rockfish and 
bocaccio, while another reviewer and one commenter stated that a 
finding of discreteness was questionable for each species given the 
lack of genetic data. One of the commenters also noted that bocaccio 
have unique larval characteristics, and canary rockfish and bocaccio 
have adult characteristics that distinguish them from the four rockfish 
species for which we do have genetic information, making it 
inappropriate to draw inferences from the genetic information for those 
four species.
    Response: While we lack genetic data for yelloweye rockfish, canary 
rockfish and bocaccio within each DPS, there is substantial additional 
evidence for each species to support a conclusion, in conjunction with 
inferences from genetic data available for other rockfish species, that 
each population in the Georgia Basin is discrete from its coastal 
counterpart. Regarding bocaccio, we continue to conclude that the best 
interpretation of all the available scientific information is that 
bocaccio in the Georgia Basin are discrete from coastal bocaccio. 
Although adult bocaccio have a greater ability to move over long 
distances than some other rockfish species, in general, bocaccio life 
history mirrors the life histories of the four species for which we do 
have genetic information--live-bearing of young, pelagic larval and 
juvenile stages, and eventual settlement to benthic habitats. Though 
larval bocaccio do remain in the pelagic environment longer than some 
other rockfish species, they are subjected to the same environmental 
factors within the Georgia Basin that generally limit dispersal as 
other rockfish species. The retentive circulation patterns of currents 
within the Puget Sound make it likely that a significant fraction of 
larvae released by bocaccio (especially in more inland portions of the 
Sound) are retained within the Sound. Other evidence that Georgia Basin 
bocaccio populations are discrete from coastal populations includes: 
The difference in age structure between coastal and inland populations, 
which suggests the two groups are demographically independent, and the 
size frequency data from bocaccio in the Puget Sound, which reveals the 
presence of individuals large enough to be sexually mature.
    Regarding canary rockfish, we continue to conclude that the best 
interpretation of all of the available scientific information is that 
fish within the Puget Sound/Georgia Basin are discrete from coastal 
canary rockfish. Although adult canary rockfish have a greater ability 
to move over long distances than some other rockfish species, in 
general, canary rockfish life history mirrors the life histories of the 
four species for which we do have genetic information--live-bearing of 
young, pelagic larval and juvenile stages, and eventual settlement to 
benthic habitats. Larval canary rockfish are subjected to the same 
environmental factors within the Puget Sound/Georgia Basin that 
generally limit dispersal as other rockfish species. The retentive 
circulation patterns of currents within the Puget Sound make it likely 
that a significant fraction of larvae released by canary rockfish 
(especially in more inland portions of the Sound) are retained within 
the Sound.
    For yelloweye rockfish unpublished genetic studies comparing fish 
from coastal waters and the waters between Vancouver Island and British 
Columbia (Withler, personal communication, July 2008) show 
differentiation between the two groups. Several other lines of evidence 
support a conclusion that yelloweye rockfish in the Georgia Basin are 
discrete from coastal populations of yelloweye rockfish. Two aspects of 
the life history of yelloweye rockfish suggest genetic and potentially 
demographic isolation from coastal populations: (1) Both as adults and 
juveniles, yelloweye rockfish are most abundant near rocky substrata. 
Rocky substrates are infrequent and patchy in distribution in North 
Puget Sound and the Georgia Strait, and are very rare in Puget Sound 
proper (waters east of Admiralty Inlet); (2) yelloweye rockfish show 
very limited movement as adults. These two aspects of their life 
history, combined with the retentive patterns of circulation of the 
Georgia Basin, support a conclusion that yelloweye rockfish in the 
Georgia Basin are discrete from coastal populations of yelloweye 
rockfish.
    Comment 3: One commenter noted a recent report by Field et al. 
(2009) which showed evidence that bocaccio do not show strong 
population structure within coastal waters, which could serve as 
evidence that bocaccio within the Puget Sound are likely to be a 
component of coastal stocks instead of a Puget Sound/Georgia Basin DPS.
    Response: We agree that studies of coastal bocaccio populations 
have found little genetic differentiation over large geographic 
distances, as reported in Field et al. (2009). The report by Field et 
al. (2009) did not conduct genetic analysis of bocaccio from the 
Georgia Basin. Field et al. (2009) did conclude, however, that despite 
an apparent lack of genetic differentiation, there are sufficient 
demographic differences between northern and southern populations of 
Pacific coastal bocaccio to suggest they are demographically 
independent. This demographic independence of southern and northern 
coastal bocaccio provides further evidence of population structure, and 
also supports an inference that Georgia Basin bocaccio populations are 
discrete from coastal populations.
    Comment 4: One commenter stated ``* * *whether [Puget Sound/Georgia 
Basin] bocaccio and canary rockfish constitute self-sustaining 
populations may be questionable. Their early life stages have not been 
confirmed in Puget Sound (Garrison and Miller, 1982) and their 
documented occurrence in Puget Sound proper is restricted to less than 
24 locations compared to hundred of records for copper, quillback, and 
brown rockfish (Washington, 1977; Miller and Borton, 1980).

[[Page 22279]]

    Response: We agree that juvenile bocaccio rockfish have not been 
documented within the Puget Sound region, but note that a small number 
of juvenile canary rockfish were reported by Weispfenning (2006) near 
the San Juan Islands. Most surveys were conducted after the bocaccio 
population size was already very low. Given the extremely episodic 
nature of bocaccio recruitment (Tolimieri and Levin, 2005) and their 
apparently very low population size, the probability of seeing a 
juvenile bocaccio is extremely low. Habitats that feature rock and 
microalgae (kelp species) are most readily used by juvenile bocaccio 
(Love et al., 1991), and relatively few studies have assessed fish 
assemblages within these habitats within the region. Thus, it is 
difficult to draw conclusions from the absence of post-settlement 
bocaccio in surveys.
    We acknowledge that bocaccio and canary rockfish have been 
documented in fewer areas of the Georgia Basin compared to other 
rockfish species. However, as an example of their past distribution we 
note that Moulton and Miller (1987) reported that 222 bocaccio rockfish 
were recorded in recreational fisheries in 1975, and 327 in 1985. The 
precise locations where these fish were caught were not reported by 
Moulton and Miller, though they did identify that all fish were caught 
in the eastern Strait of Juan de Fuca, the Central Sound, and South 
Sound. Moulton and Miller (1987) also report that 1,035 canary rockfish 
were recorded in recreational fisheries in 1975 and 934 in 1985. These 
fish were caught in the Gulf/Bellingham, San Juan Islands, Hood Canal, 
Central Puget Sound, South Puget Sound and the eastern Strait of Juan 
de Fuca regions. In addition, canary rockfish have been reported as 
bycatch from salmon and bottom fishermen in 2004 to 2007 catch 
statistics in 6 of the 9 Marine Catch Areas within the DPS (WDFW, 
unpublished data). Similarly, canary rockfish have been documented as 
part of the assemblage of fishes in the Puget Sound region for as long 
as there have been formal fisheries surveys, dating back to at least 
the 1930s (Williams et al., in press).

Appropriateness of the Scope of the Proposed Rule and Assessment

    Comment 5: Several reviewers and commenters discussed our 
assessment of extinction risk as it related to rockfish abundance data. 
One reviewer stated that ``* * * abundance data for the individual 
species are not sufficient for independent [extinction] analysis * * 
*''. The same reviewer also noted that the lack of data was further 
confounded by an overall lack of abundance numbers from fishery 
independent sources. Another commenter stated that ``Given the data 
gaps identified in the proposed listing rule, it does not seem certain 
here that the threshold for listing has been met.''
    Response: The analysis of extinction risk for yelloweye rockfish, 
canary rockfish and bocaccio was based upon a host of considerations in 
addition to species abundance. In assessing risk, it is often important 
to include both qualitative and quantitative information. In previous 
NMFS status reviews, we have used a ``risk matrix'' as a method to 
organize and summarize the professional judgment of a panel of 
knowledgeable scientists. This approach is described in detail by 
Wainright and Kope (1999) and has been used in Pacific salmonid status 
reviews (e.g., Good et al., 2005; Hard et al., 2007), as well as in 
reviews of Pacific hake, walleye pollock, and Pacific cod (Gustafson et 
al., 2000), Puget Sound rockfishes (Stout et al., 2001b), Pacific 
herring (Stout et al., 2001a; Gustafson et al., 2006), and black 
abalone (Butler et al., 2008). The BRT used this approach here as well.
    In this risk matrix approach, the collective condition of 
individual populations is summarized at the DPS level according to four 
demographic risk criteria: Abundance, growth rate/productivity, spatial 
structure/connectivity, and diversity. These viability criteria, 
outlined in McElhany et al. (2000), reflect concepts that are well 
founded in conservation biology and are generally applicable to a wide 
variety of species. These criteria describe demographic risks that 
individually and collectively provide strong indicators of extinction 
risk. The summary of demographic risks and other pertinent information 
obtained by this approach is then considered in determining the 
species' overall level of extinction risk.
    When making ESA listing determinations, we must use the best 
available scientific and commercial data available. The BRT employed 
the Forest Ecosystem Management Team (FEMAT) voting methodology to 
address any uncertainties about the subject rockfish DPSs. The FEMAT 
methodology allows each BRT member to distribute 10 likelihood points 
among DPSs scenarios, reflecting their view of the probability that the 
particular category correctly reflects the true DPS status. This method 
has also been used in all recent status review updates for federally 
listed Pacific salmon and steelhead (Oncorhynchus mykiss) Evolutionary 
Significant Units (such as Good et al., 2005) as well as reviews of 
killer whales (Krahn et al., 2002; 2004) and herring (Gustafson et al., 
2006).
    Despite the general lack of population data from non-fishery 
sources, the weight of evidence demonstrates that these DPSs abundances 
have been greatly reduced from historic levels and abundance trends are 
negative. The analysis of each species status was, in part, determined 
by available data that shows the relative decline of yelloweye, canary 
and bocaccio rockfish catch in fishery statistics over the past several 
decades (FR 18516; April 23, 2009). The analysis of fishery catch data 
show each species declining at rates faster than the overall rockfish 
populations in the Puget Sound region. In the case of bocaccio, no fish 
have been observed in fishery catch statistics since the late 1990s. We 
agree that fishery independent data for each species, such as the use 
of drop cameras and remotely operated video surveys, provide important 
information regarding rockfish status. In particular, fishery 
independent data from each of the major regions of the DPSs would 
enhance our understanding of abundance, spatial structure, and 
demographic profiles (such as the size and relative age structure) of 
each species. However the available data--including genetic studies 
from other rockfish and fish species, strong evidence of decline from 
fisheries data, and unique environmental conditions within the Georgia 
Basin as viewed through the methodologies and assessments utilized by 
the BRT (Drake et al., 2010), support the extinction risk assessments 
that inform this final rule.
    Comment 6: Several reviewers and commenters questioned our 
assessment and conclusions of the overall abundance trends of rockfish 
within the Puget Sound region as they relate to fishery catch 
statistics and catch frequencies for yelloweye rockfish, canary 
rockfish and bocaccio. They also remarked that this assessment was 
further confounded by fishing regulation changes that may have obscured 
recent catch statistics. One reviewer stated that ``Changes in gear and 
switches in the targeted species should tend to prolong elevated catch 
levels in a multispecies time series, so an observed decline in overall 
catch probably reflects steeper declines in the actual abundance of 
individual fishes.'' The reviewer stated that the BRT's analysis of 
fishery catch data ``should produce a conservative estimate of the 
trend for each species (i.e., the actual trend is probably more 
negative than identified).'' One commenter concurred

[[Page 22280]]

with the general population trend analysis that shows that each species 
was more common in early time series of species compositions and that 
catch rates and relative abundances of each species have declined. The 
same commenter noted that early time series data may be obscured by the 
difficulty of correctly identifying rockfish by untrained samplers.
    Response: We recognize that the trend in the aggregate rockfish 
population does not equate to species specific trends of yelloweye 
rockfish, canary rockfish and bocaccio. Additionally, the early time 
series species' compositions were likely obscured by the difficulty of 
correctly identifying rockfish to species. Because of the lack of time 
series data, we focused on total rockfish trends and trends in the 
species composition of the total rockfish assemblage, but also 
considered information on trends during discrete time periods for each 
species. Total rockfish abundance has declined and yelloweye rockfish, 
canary rockfish and bocaccio have become a smaller proportion of the 
total rockfish assemblage. This analysis allowed the BRT to use the 
trends in total rockfish as an upper bound on the trends for each 
species. We agree that this approach should produce a conservative 
estimate of the overall trend for each species because over time there 
have been changes in fishing gear and locations (in response to 
localized depletion of stocks), which may have prolonged harvest rates 
for each species. In other words, when local rockfish aggregations were 
fished out, anglers would move to new locations and fishery statistics 
will not necessarily show these localized depletions (Yamanaka and 
Lacko, 2001). The available fisheries data do show a reduction of the 
proportion of yelloweye rockfish, canary rockfish and bocaccio compared 
to the overall rockfish catch data, and we agree with the reviewer that 
the reduction in overall abundance may be greater than reflected in the 
available data.
    Comment 7: A commenter stated that the draft status report (Drake 
et al., 2008) did not ``evaluate potential adverse impacts to low 
abundance rockfish populations due to depensation, especially the sub-
set of depensatory mortality factors commonly known as Allee effects.''
    Response: Allee effects, as applied by the commenter to rockfish 
populations, is a term to characterize additional viability risks when 
populations are at very low abundance and cannot find mates (Courchamp 
et al., 2008). We agree that Allee effects are likely a risk factor for 
yelloweye rockfish, canary rockfish and bocaccio in all or portions of 
the Puget Sound/Georgia Basin DPSs. The final status report was 
clarified to more explicitly discuss the risk from Allee effects (Drake 
et al., 2010).
    Comment 8: Three commenters asked that we assess in more detail 
existing regulatory programs that may serve to protect rockfish, 
including habitat protection and fishery management.
    Response: In the proposed rule we described our consideration of 
the effects of existing programs on extinction risk of the three 
species (FR 18516; April 23, 2009). In response to these comments, we 
describe the following additional details about these programs. A 
number of agencies within Washington State have regulatory authority 
over actions that affect rockfish habitat. The Washington State 
Departments of Ecology, Natural Resources, Fish and Wildlife, and the 
Puget Sound Partnership (PSP) are agencies that collectively have 
various authorities to prevent habitat degradation and loss from a 
variety of activities, manage aquatic lands, provide technical and 
planning assistance, fund restoration efforts, and conduct monitoring. 
The Department of Ecology oversees the State Shoreline Management Act 
that mandates that each County develop and update policies on the use 
and protection of the shoreline. Assessing the effectiveness of 
regulatory programs designed to protect water quality and habitat for 
rockfish is complicated by the general lack of systematic monitoring 
that occurs related to specific development and permitting activities. 
From 2006 to 2008, an additional five miles of bulkheads were 
constructed along Puget Sound shorelines (Cornwall and Mayo, 2008). 
These types of shoreline developments can impact nearshore habitat 
conditions for macroalgae used by juvenile rockfish, and degrade forage 
fish spawning habitat (Rice, 2006), potentially decreasing food sources 
of rockfish.
    Recently, the PSP released a ``State of the Sound'' report (PSP 
2010) that, in part, assessed the status of the Puget Sound ecosystem 
through a series of indicators. Of the indicators most closely related 
to rockfish, their habitat and prey, herring spawn biomass and eelgrass 
coverage each declined, while the amount of flame retardant chemicals 
within herring (and harbor seals) showed an increasing trend. One water 
quality indicator (polycyclic aromatic hydrocarbons levels in Elliot 
Bay) improved, while another (extent of dissolved oxygen in the Puget 
Sound) had no clear trend. Additionally the report stated that the 
``shoreform'' indicator, which is the overall condition of the Puget 
Sound shoreline, also had no clear trend (PSP 2010).
    Washington State has a variety of marine protected areas managed by 
eleven Federal, state, and local agencies (Van Cleve et al., 2009), 
though some of these areas are outside of the range of the rockfish 
DPSs. The WDFW has established 25 marine reserves within the DPS, and 
16 host rockfish (Palsson et al., 2009), though most of these reserves 
are within waters shallower than those typically used by adult 
yelloweye rockfish, canary rockfish, or bocaccio. The WDFW reserves 
total 2,120.7 acres of intertidal and subtidal habitat. Aside from the 
WDFW reserves, the Washington State Department of Natural Resources 
operates an Aquatic Reserve Program that is intended to protect habitat 
through their statutory ownership authority.
    Management objectives and allowed activities within the reserves in 
the Puget Sound region and along the Pacific coast are diverse (Van 
Cleve et al., 2009) and there is no comprehensive monitoring program to 
assess the collective effects of existing protected areas within the 
Puget Sound region. A recent report identified several impediments to 
implementing effective monitoring of existing marine protected areas 
including large areas of the environment to cover, expenses to conduct 
survey work, insufficient funding for data management and analysis, the 
challenge of avoiding harm to species or habitats while conducting 
research, and narrow agency mandates (Van Cleve et al., 2009). The 
total percentage of the Puget Sound region within reserve status is 
unknown, though Van Cleve et al. (2009) estimate that one to five 
percent of the Puget Sound region is within a reserve. Compared to 
fished areas, studies have found higher fish densities, sizes, or 
reproductive activity in the assessed WDFW marine reserves (Palsson and 
Pacunski, 1995; Palsson, 1998; Eisenhardt, 2001; 2002; Palsson, 2004). 
However, since they were established over several decades with unique 
and somewhat unrelated ecological goals, and encompass relatively small 
areas (average of 23 acres), the net effect of existing reserves to 
yelloweye rockfish, canary rockfish and bocaccio abundance, 
productivity and spatial structure are probably very small. In general, 
the characteristics of a network of reserves that are relevant to 
enhancing populations of yelloweye rockfish, canary rockfish and 
bocaccio include sites in each of the major regions of the DPS, and 
sites that provide some connectivity to each other

[[Page 22281]]

(for larvae). Finally the sites would need to be large enough to 
collectively encompass diverse habitats that facilitate productivity of 
individual fish and reserve resiliency to outside disturbances and 
stressors (Sobel and Dahlgren, 2004).
    In 2007, the Canadian government designated approximately 135 
rockfish conservation areas that encompasses 30 percent of the area of 
the inside waters of Vancouver Island. These reserves do not allow 
directed commercial or recreational harvest for any species of 
rockfish, nor do they allow harvest of marine species that may 
incidentally catch rockfish. Since the Canadian reserves were recently 
established, the effects to rockfish populations are unknown. However, 
the attributes of these reserves that include the overall size of the 
network, which encompass a variety of habitats distributed throughout 
the northern portion of the DPS, will likely provide substantial 
benefit to rockfish populations. However, the lack of an analogous 
network in the southern portion of the Georgia Basin still leaves a 
possible gap in the survival and recovery potential of yelloweye 
rockfish, canary rockfish and bocaccio.
    Consideration of these additional details did not change our 
extinction risk analysis for yelloweye rockfish, canary rockfish and 
bocaccio within this final listing determination. The programs and 
protective efforts described about do not alter the risk factors 
identified by Drake et al. (2010), and discussed in the proposed rule 
(74 FR 18516, April 23, 2009).
    Comment 9: One commenter questioned how future recovery planning 
could occur given the general lack of precise abundance data, stating 
``listing these three species at this stage will make it difficult, if 
not impossible, to establish accurate delisting and recovery 
criteria.''
    Response: Future recovery planning efforts for yelloweye rockfish, 
canary rockfish and bocaccio will incorporate the best available 
information regarding each species' abundance and spatial structure 
within the DPS. For instance, we expect that additional abundance data 
for each species will be available from studies by the WDFW prior to 
the development of the recovery plan. In addition, the recovery plan 
itself will identify data gaps that warrant further research. Beyond 
just identifying delisting criteria, we expect that the recovery plan 
for each species will also identify specific management actions 
necessary to achieve recovery of the species.

Biological or Other Relevant Data Concerning Any Threats to Each DPS

    Comment 10: Two commenters discussed the role of water quality as 
it relates to the status of yelloweye rockfish, canary rockfish and 
bocaccio. Referring to our proposed listing, one commenter stated that 
``* * * the characterization of nutrient issues and dissolved oxygen 
problems in Puget Sound is exceedingly broad'' One commenter stated 
that ``The impact of hypoxia as a risk to the petitioned rockfish in 
southern Puget Sound may be overstated in that historical documented 
occurrences of canary, bocaccio, and yelloweye rockfish do not 
correspond to areas of poor water quality in southern Puget Sound.''
    Response: We agree that elevated nutrient levels and low dissolved 
oxygen levels (causing hypoxia) are not uniformly distributed across 
the DPS, and that some areas of rockfish habitat are more likely to be 
affected than others. Specifically, periods of low dissolved oxygen are 
becoming more widespread in portions of Hood Canal and south of the 
Tacoma Narrows.
    Comment 11: Two commenters discussed contaminants. One commenter 
noted that our proposed listing adequately characterized what is known 
and not known regarding the impact or threat of toxic contaminants on 
each species, and added that ``If pelagic prey dominate the diet of a 
petitioned species it may experience greater exposure to persistent 
bioaccumulative toxins (PBTs) across a greater spatial range (not just 
urban areas). Pelagic prey such as herring in Puget Sound have 
unusually high body burdens of PBTs * * * If petitioned species consume 
herring or similar pelagic prey, we believe that PBT contamination may 
have played a role in their decline, and is a risk factor for their 
recovery.''
    One commenter asked that we provide additional detail regarding 
``the level of scientific consensus on the emerging topics of 
reproductive dysfunction and other sub-lethal affects as a result of 
contaminant exposure.''
    Response: We agree that contaminants within forage fish such as 
herring distribute contaminants across a greater spatial range than 
just urban areas. The long life span and residency of rockfish in the 
Georgia Basin increase the risk of exposure and bioaccumulation in 
individual fish. Although risks from contaminants can affect all life 
history stages of rockfish, few studies have investigated the effects 
of toxins on rockfish ecology or physiology. Contaminants may influence 
growth rates of rockfish. For example, Palsson et al. (2009) describe a 
case in which male rockfish have lower growth rates than females--an 
unusual pattern for rockfish since males typically grow faster than 
females. The explanation may be that male rockfish tend to accumulate 
PCBs, while female's body burden does not increase with time since they 
lower their toxin level when they release eggs. Thus, the observed 
difference in growth rate may result from the higher contaminant 
concentration in males versus females. The full effect of contaminants 
on rockfish remains unknown, but there is clearly a potential for 
impact and that warrants further research efforts.
    Comment 12: One commenter questioned whether rocky habitat loss has 
occurred as stated in the proposed rule (74 FR 18516, April 23, 2009). 
Instead, the commenter stated that ``habitat may be degraded due to 
derelict fishing gear or impaired water quality.''
    Response: We agree that rocky habitat loss is rare, and other 
factors have likely reduced rocky habitat suitability in some areas, 
but note that the loss of rocky habitat has occurred near the Skagit 
River delta as a result of sedimentation from the Skagit watershed 
(Grossman et al., in review). We also concur that lost commercial 
fishing nets and commercial and recreational crab pots (collectively 
referred to as derelict fishing gear) may be having a large impact on 
rockfish habitat suitability. Lost gear generally catches on bottom 
structure such as rocky reefs and large boulders that are also 
attractive to rockfish (NRC, 2007). Derelict nets trap fine sediments 
out of the water column, making a layer of soft sediment over rocky 
areas that changes habitat quality and suitability for benthic 
organisms (NRC, 2007). This gear covers habitats used by rockfish for 
shelter and pursuit of food and likely causes a depletion of food 
sources. For instance, a study of several derelict nets in the San Juan 
Islands reported an estimated 107 invertebrates and 16 fish (of various 
species) entangled per day (NRC, 2008). One net had been in place for 
15 years, entangling an estimated 16,500 invertebrates and 2,340 fish 
(NRC, 2008). Though these estimates are coarse, they illustrate the 
potential impacts of derelict gear within the DPS. In shallower waters 
used by juvenile rockfish, this gear can reduce kelp overstory coverage 
and growth.
    Comment 13: One commenter requested ``* * * that the listing 
decision process incorporate direct characterization and consideration 
of climate change effects on rockfish.''

[[Page 22282]]

    Response: The draft and final status report analyzed the effects of 
climate variability and change on the extinction risk of yelloweye 
rockfish, canary rockfish and bocaccio rockfish (Drake et al., 2008; 
2010). In general, variable ocean conditions (exacerbated by climate 
change) may increase extinction risk for each species. Marine, 
estuarine, and freshwater habitat in the Pacific Northwest has been 
influenced by climate change over the past 50 to100 years and global 
patterns suggest the long-term trend is for a warmer, less productive 
ocean regime in the California Current and the Transitional Pacific. 
Projections for the consequences of climate change in the Georgia Basin 
include: Continued rise of air and marine water temperatures, altered 
river and stream flows, increase of winter runoff with decrease in 
water stored as snow pack, increased river flooding, and continued sea 
level rise (NMFS, 2007). Related consequences to the Georgia Basin will 
likely consist of changes to water quality, circulation patterns, 
biological productivity, habitat distributions, populations of 
sensitive species, rates of harmful algal blooms, surface wind 
patterns, and coastal upwelling regimes. In addition, ocean 
acidification harms invertebrate calcification, photosynthesis, 
nitrogen fixation and reproduction (Doney et al., 2009). These types of 
impacts could fundamentally change food web dynamics that cascade to 
upper-level predators such as rockfish. These types of changes, 
collectively, could alter habitat conditions that are necessary for 
rockfish persistence.
    Comment 14: A commenter stated that ``By a wide margin, the highest 
bycatch mortality for rockfish occurs in the Puget Sound recreational 
fishery for the winter Puget Sound blackmouth [immature Chinook 
salmon]'' and not within the lingcod fishery, as stated in Drake et al. 
(2008).
    Response: The most recent fishery catch statistics do not show that 
yelloweye rockfish, canary rockfish and bocaccio bycatch from fishers 
targeting blackmouth (Chinook) salmon during the winter is high 
relative to other seasons. Rockfish catch data from 2004 to 2007 
provided by the WDFW show that 100 percent of yelloweye rockfish and 95 
percent of the canary rockfish bycatch associated with salmon fishing 
occurs within the May through August time periods (WDFW unpublished 
data).

Determination of Species Under the ESA

    The ESA defines species to include subspecies or a DPS of any 
vertebrate species which interbreeds when mature (16 U.S.C. 1532(16)). 
The FWS and NMFS have adopted a joint policy describing what 
constitutes a DPS of a taxonomic species (61 FR 4722; February 7, 
1996). The joint DPS policy identifies two criteria for making DPS 
determinations: (1) The population must be discrete in relation to the 
remainder of the taxon (species or subspecies) to which it belongs; and 
(2) the population must be significant to the remainder of the taxon to 
which it belongs.
    A population segment of a vertebrate species may be considered 
discrete if it satisfies either one of the following conditions: (1) 
``It is markedly separated from other populations of the same taxon as 
a consequence of physical, physiological, ecological, or behavioral 
factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation''; or (2) ``It is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D)'' of the ESA.
    If a population segment is found to be discrete under one or both 
of the above conditions, its biological and ecological significance to 
the taxon to which it belongs is evaluated. This consideration may 
include, but is not limited to: (1) ``Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that the loss of the discrete population segment 
would result in a significant gap in the range of a taxon; (3) evidence 
that the discrete population segment represents the only surviving 
natural occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historic range; and (4) evidence that 
the discrete population segment differs markedly from other populations 
of the species in its genetic characteristics.''
    The ESA defines an endangered species as one that is ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
a threatened species as one that is ``likely to become an endangered 
species in the foreseeable future throughout all or a significant 
portion of its range'' (Sections 3(6) and (20) of the ESA). Section 
4(a)(1) of the ESA and NMFS's implementing regulations (50 CFR 424) 
state that we must determine whether a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) overutilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or man-made factors affecting its continued 
existence. We are to make this determination based solely on the best 
available scientific and commercial information after conducting a 
review of the status of the species and taking into account any efforts 
being made by states or foreign governments to protect the species.

Summary of Factors Affecting the Puget Sound/Georgia Basin DPSs

    The primary factors responsible for the decline of the three DPSs 
of rockfishes are overutilization for commercial and recreational 
purposes, habitat degradation, water quality problems including low 
dissolved oxygen and elevated contaminant levels, and inadequacy of 
existing regulatory mechanisms. The factors for decline are addressed 
collectively in the following section due to their similarity for each 
species. This section briefly summarizes findings regarding threats to 
the three DPSs of rockfishes. More details can be found in the status 
report (Drake et al., 2010), Palsson et al., (2009), and the proposed 
listing determination (74 FR 18516; April 23, 2009).

The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    The BRT identified habitat degradation as a threat to these 
rockfish. In particular, degradation of rocky habitat, loss of eelgrass 
and kelp, introduction of non-native species that modify habitat, and 
degradation of water quality were identified as specific threats to 
rockfish habitat in the Georgia Basin. Though each species has been 
documented along areas of high relief and non-rocky substrates such as 
sand, mud and other unconsolidated sediments (Washington, 1977; Miller 
and Borton, 1980), it is very likely that densities of bocaccio, canary 
rockfish, and yelloweye rockfish are highest near rocky habitats. Such 
habitat is extremely limited in Puget Sound, with only 10 km\2\ (3.8 sq 
miles) of such habitat in Puget Sound Proper, and 207 km\2\ (80 sq 
miles) in North Puget Sound (Palsson et al., 2009). Rocky habitat is 
threatened by, or has been impacted by, derelict fishing gear, 
construction of bridges, sewer lines and other structures, deployment 
of cables and pipelines, and burying from dredge spoils and natural 
subtidal slope movement (Palsson et al., 2009).
    Juvenile bocaccio and canary rockfish utilize nearshore waters with 
substrates of rock or cobble compositions, and/or

[[Page 22283]]

kelp species (Love et al., 1991; Love et al., 2002). Habitats with 
these features likely offer a beneficial mix of warmer temperatures, 
food and refuge from predators (Love et al., 1991). Areas with floating 
and submerged kelp species (Families Chordaceace, Alariaceae, 
Lessoniacea, and Costariaceae, and Laminaricea) support the highest 
densities of most juvenile rockfish species (Carr, 1983; Halderson and 
Richards, 1987; Matthews, 1989; Hayden-Spear, 2006). Kelp cover is 
highly variable and has shown long-term declines in some regions, while 
kelp beds have increased in areas where artificial substrate provides 
additional kelp habitat (Palsson et al., 2009). Threats to kelp 
communities include toxins such as petroleum products which lower 
photosynthesis and respiration, activities associated with oyster 
culture and boat operations, and harvest (Mumford, 2007). Indirect 
stressors to kelp include low dissolved oxygen, eutrophication, and 
changes in trophic structure resulting from harvest of organisms that 
feed upon kelp (Mumford, 2007).
    Shoreline development has occurred along approximately 30 percent 
of the Puget Sound (Broadhurst, 1998), and has increased in recent 
years (Cornwall and Mayo, 2008). Development along the shoreline has 
been linked to reduced invertebrate abundance and species taxa 
diversity (Dugan et al., 2003), and reduced forage fish egg viability 
(Rice, 2006). These are examples of food web changes that may alter 
forage fish prey composition or abundance for these rockfish.
    Non-indigenous species are an emerging threat to biotic habitat in 
the Puget Sound region. Sargassum muiticum is an introduced brown alga 
that is now common throughout much of the Sound (Drake et al., 2010). 
The degree to which Sargassum influences native macroalgae, eelgrass, 
or rockfish themselves is not presently understood. Several species of 
non-indigenous tunicates have been identified in the Puget Sound 
region. For example, Ciona savignyi was initially seen in one location 
in 2004, but within two years spread to 86 percent of sites surveyed in 
Hood Canal (Puget Sound Action Team, 2007). The exact impact of 
invasive tunicates on rockfish or their habitats is unknown, but 
results in other regions (e.g., Levin et al., 2002) suggest the 
potential for introduced invertebrates to have widespread impacts on 
rocky-reef fish populations.
    Over the last century, human activities have introduced a variety 
of toxins into the Georgia Basin at levels that may affect rockfish 
populations or the prey that support them. Several urban embayments in 
the Sound have high levels of heavy metals and organic compounds 
(Palsson et al., 2009). About 32 percent of the sediments in the Puget 
Sound region are considered to be moderately or highly contaminated 
(Puget Sound Action Team, 2007). Organisms that live in or eat these 
sediments are consumed, thus transferring contaminants up the food web 
to higher level predators like rockfishes, and to a wider geographic 
area.
    Not surprisingly, contaminants such as polychlorinated biphenyls 
(PCBs), chlorinated pesticides (e.g., DDT), and polybrominated diphenyl 
ethers (PBDEs) appear in rockfish collected in urban areas (Palsson et 
al., 2009). While the highest levels of contamination occur in urban 
areas, toxins can be found in the tissues of fish in all regions of the 
sound (Puget Sound Action Team, 2007). Rockfish collected in rural 
areas of the San Juan Islands revealed high levels of mercury and 
hydrocarbons (West et al., 2002).
    Although few studies have investigated the effects of toxins on 
rockfish ecology or physiology, other fish in the Puget Sound region 
that have been studied do show a substantial impact. As an example 
English sole is a demersal fish in the Puget Sound that lives in 
somewhat similar habitats as rockfish, and reproductive impairment has 
been documented in individuals from contaminated areas. This reduction 
effectively decreases the productivity of the species (Landahl et al., 
1997). Reproductive function of rockfish is also likely affected by 
contaminants (Palsson et al., 2009), and other life history stages may 
be as well (Drake et al., 2010). Some areas with good habitat structure 
for rockfish are also located in areas that are now subject to high 
levels of contaminants. This is evidenced by the fact that rockfish 
were historically captured in great numbers in these areas (Palsson et 
al., 2009 and Puget Sound Action Team, 2007).
    In addition to chemical contamination, water quality in the Puget 
Sound region is also influenced by sewage, animal waste, and nutrient 
inputs. The Washington Department of Ecology has been monitoring water 
quality in the Puget Sound region for several decades. Monitoring 
includes fecal coliform, nitrogen, ammonium, and dissolved oxygen. In 
2005, of the 39 sites sampled, eight were classified as highest 
concern, and 10 were classified as high concern. Hood Canal has seen 
persistent and increasing areas of low dissolved oxygen since the mid 
1990s. Typically, rockfish move out of areas with dissolved oxygen less 
than 2 mg/l; however, when low dissolved oxygen waters were quickly 
upwelled to the surface in 2003, about 26 percent of the rockfish 
population was killed (Palsson et al., 2009). In addition to Hood 
Canal, periods of low dissolved oxygen are becoming more widespread in 
waters south of Tacoma Narrows (Palsson et al., 2009).

Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes

    Our status report (Drake et al., 2010) and the WDFW (Palsson et 
al., 2009) identify overutilization for commercial and recreational 
purposes as the leading cause of decline to yelloweye rockfish, canary 
rockfish and bocaccio in the Puget Sound/Georgia Basin. The evidence is 
clear that historic overfishing has played a major role in the declines 
of rockfish in the Puget Sound region (Palsson et al., 2009; Drake et 
al., 2010; Williams et al., in press). Moreover, the life histories of 
yelloweye rockfish, canary rockfish and bocaccio make them highly 
susceptible to overfishing and, once populations are at a low level, 
recovery can require decades (Parker et al., 2000; Love et al., 2002). 
In particular, rockfish grow slowly, have a long life span and low 
natural mortality rates, mature late in life, often have sporadic 
reproductive success from year to year, may display high fidelity to 
specific habitats and locations, and require a diverse genetic and age 
structure to maintain healthy populations (Love et al., 2002). 
Estimates of rockfish harvest in the Puget Sound region are available 
for the last 87 years (Palsson et al., 2009). Commercial harvest was 
very low prior to World War II, rose during the War, and then averaged 
125,000 pounds (56,700 kg) between 1945 and 1970. In the 1970s, harvest 
increased dramatically, peaking in 1980 at 880,000 pounds (399,200 kg). 
Catches remained high until the early 1990s and then declined 
dramatically (Palsson et al., 2009). From 1921 to 1970 a total of 
3,812,000 pounds (1,729,000 kg) of rockfish were landed in the Puget 
Sound region, while nearly this same level of harvest (3,968,000 
pounds; 1,800,000 kg) was achieved in only 7 years (from 1977 to 1983). 
The average annual harvest from 1977 to 1990 was nearly four times pre-
1970 levels.
    Palsson et al. (2009) provide a rough estimate of the total 
rockfish biomass in the Puget Sound region during the 1999 to 2004 time 
period of 3,205,521 pounds (1,454,000 kg), less than the total harvest 
from 1977 to 1983. For comparison, exploitation rates for

[[Page 22284]]

canary rockfish during the 1980s and 1990s along the U.S. Pacific Coast 
ranged from 5 to 19 percent (Stewart, 2007), bocaccio ranged from 5 to 
31 percent (MacCall, 2008), and yelloweye rockfish ranged from less 
than 5 percent to about 17 percent (Wallace, 2007). In each of these 
cases, these high exploitation rates were followed by dramatic declines 
in population size (Stewart, 2007; Wallace, 2007; MacCall, 2008).
    Fishery removals can affect both the absolute abundance of rockfish 
as well as the relative abundance of larger fish. Palsson et al. (2009) 
examined studies comparing rockfish populations in marine reserves in 
the Puget Sound region to populations outside reserves, and related 
this information to long-term trends in rockfish catch data, to draw 
conclusions about the effects of fishing on rockfish in the Puget Sound 
region. They noted that rockfish in marine reserves in the Puget Sound 
region generally are at higher densities than rockfish outside 
reserves. They considered this information in the context of steep 
declines in the catch of rockfish after the early 1980s to conclude 
that the current low abundance of rockfish in the Puget Sound region is 
likely the result of overfishing. They further noted that rockfish in 
marine reserves in the Puget Sound region are larger than rockfish 
outside the reserves.
    Coupled with information that the size of rockfish in the Puget 
Sound region has declined in recent decades, they concluded that 
fishing has also likely altered the age structure of rockfish 
populations by removing larger older individuals. Age truncation (the 
removal of older fish) can occur at even moderate levels of fishing for 
rockfish (Berkeley et al., 2004). Age truncation has been widely 
demonstrated for rockfish populations all along the west coast (Mason, 
1998; Harvey et al., 2006), even for species not currently categorized 
as overfished by the Pacific Fishery Management Council. It can have 
``catastrophic'' effects for long-lived species such as rockfish 
(Longhurst, 2002). For yelloweye rockfish, canary rockfish and bocaccio 
in the Georgia Basin, it is likely that the age truncation effects of 
past overfishing are long-lasting and constitute an ongoing threat, 
particularly because older and larger females are likely to be more 
fecund and their offspring may have higher survival rates. In addition, 
fishing can have dramatic impacts on the size or age structure of the 
population, with effects that can influence ongoing productivity.
    Because most rockfish females release larvae on only one day each 
year, the timing of parturition (giving birth) can be crucial in terms 
of matching favorable oceanographic conditions for larvae. Larger or 
older females release larvae earlier in the season compared to smaller 
or younger females in black, blue, yellowtail, kelp, and darkblotched 
rockfish (Nichol and Pikitch, 1994; Sogard et al., 2008). Maternal 
effects on larval quality have been documented for black, blue, gopher, 
and yellowtail rockfish (Berkeley et al., 2004; Sogard et al., 2008). 
The mechanism for maternal effects on larval quality across species is 
the size of the oil globule provided to larvae at parturition, which 
provides the developing larvae with energy insurance against the risks 
of starvation (Berkeley et al., 2004; Fisher et al., 2007), and in 
black rockfish enhances early growth rates (Berkeley et al., 2004). An 
additional maternal effect in black rockfish indicates that older 
females are more successful in producing progeny that recruit from 
primary oocyte to fully developed larvae (Bobko and Berkeley, 2004). In 
a broad span of species, there is evidence that age or size truncation 
is associated with increased variability in recruitment. Examples 
include Icelandic cod (Marteinsdottir and Thorarinsson, 1998), striped 
bass (Secor, 2000), Baltic cod (Wieland et al., 2000), and many species 
of California Current fishes (Hsieh et al., 2006). For long-lived 
species, reproduction over a span of many years is considered a bet-
hedging strategy that has a buffering effect at the population level, 
increasing the likelihood of some successful reproduction over a period 
of variable environmental conditions (Longhurst, 2002). When 
reproductive effort is limited to younger ages, this buffering capacity 
is lost and populations more closely follow short-term fluctuations in 
the environment (Hsieh et al., 2006).
    In summary, it is likely that past overfishing has reduced the 
abundance of the yelloweye rockfish, canary rockfish and bocaccio DPSs, 
leading to the current low abundance levels that place their future 
viability at risk. In addition, it is likely that past overfishing has 
reduced the proportion of large females in yelloweye rockfish, canary 
rockfish and bocaccio, harming the productivity of the populations and 
affecting their ability to recover from current low levels of 
abundance. Ongoing fisheries also create risks for these DPSs, and are 
discussed below under the ``Inadequacy of Existing Regulations'' 
section.

Disease or Predation

    The status report identified predation as a threat to each species 
(Drake et al., 2010). Rockfish are important prey items of lingcod 
(Beaudreau and Essington, 2007). Populations of lingcod have been low 
in the Puget Sound region, but are increasing in recent years (Palsson 
et al., 2009). Predation by pinnipeds may be locally significant. Four 
pinniped species are found in the waters of the State of Washington: 
Harbor seals, California sea lions, Steller sea lions, and northern 
elephant seals. Harbor seal populations have increased to more than 
10,000 (Jeffries et al., 2003). The harbor seal is the only pinniped 
species that breeds in Washington waters, and is the only pinniped with 
known haul-out sites in the San Juan Islands (Jeffries et al., 2000). 
In the Puget Sound region, harbor seals are opportunistic feeders that 
consume seasonally and locally abundant prey (Olesiuk et al., 1990; 
London et al., 2001). About 2,000 Steller sea lions occur seasonally in 
Washington waters, with dozens found in the Puget Sound region, 
particularly in the San Juan Islands (Palsson et al., 2009). About 8 
percent of the Steller sea lion diet is rockfish (Lance and Jeffries, 
2007). Though not abundant, their large size and aggregated 
distribution suggest that their local impact on rockfish could be 
significant. Fifteen species of marine birds breed along the Washington 
coast; seven of these have historically been found breeding in the 
Puget Sound region (Speich and Wahl, 1989). The predominant breeding 
marine birds in the San Juan Islands are pigeon guillemots, double-
crested cormorants, pelagic cormorants, and members of the western 
gull/glaucous-winged gull complex (Speich and Wahl, 1989). The first 
three species are locally abundant. Although these avian predators can 
consume juvenile rockfish, whether they have a significant impact on 
rockfish populations is unknown.
    Rockfish are susceptible to diseases and parasites (Love et al., 
2002), but the extent and population consequences of disease and 
parasite impacts on the yelloweye rockfish, canary rockfish and 
bocaccio DPSs are not known. Palsson et al. (2009) suggest that stress 
associated with poor water quality may exacerbate the incidence and 
severity of naturally occurring diseases to the point of directly or 
indirectly decreasing survivorship of rockfish.

The Inadequacy of Existing Regulatory Mechanisms

Sport and Commercial Fishing Regulations
    Significant efforts to protect rockfish in the Puget Sound region 
from overharvest began in 1982 when the Washington Department of 
Fisheries

[[Page 22285]]

(now the WDFW) published the Puget Sound Groundfish Management Plan. 
This plan identified rockfish as an important commercial and 
recreational resource in the Sound and established acceptable 
biological catch levels to control harvest (Palsson et al., 2009). The 
acceptable biological catch levels were based on recent average catches 
and initially set at 304,360 kg (671,000 total pounds) of rockfish for 
the Puget Sound region. This plan emphasized recreational fisheries for 
rockfish while limiting the degree of commercial fishing. During the 
1980s, the WDFW continued to collect information on rockfish harvest 
with an emphasis on increasing the amount of information available on 
rockfish bycatch in non-targeted fisheries (e.g., salmon fishery). In 
response to a reduction in catches, rockfish recreational harvest 
limits were reduced from 15 fish to 10 fish in North Puget Sound and to 
5 fish in South Puget Sound in 1983. The 1982 Groundfish Management 
Plan was updated in 1986 and extended the preference for recreational 
fisheries over commercial fishing for rockfish to the San Juan Islands 
and the Strait of Juan de Fuca (Palsson et al., 2009). During this same 
time, the WDFW received a Federal grant to monitor recreational catches 
of rockfish and collect biological data on rockfish populations in the 
Sound. Information was collected, and new management scenarios for 
rockfish were d