Endangered and Threatened Species; Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish From the Federal List of Threatened and Endangered Species and Removal of Designated Critical Habitat, and Update and Amendment to the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS, 7711-7731 [2017-00559]

Download as PDF Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Estimated Total Hour Burden: 23,304 hours; the total number of new respondents is 60. Estimated Total Hour Burden Cost: $798,395 for gathering information required to support an application, which may include preparation of an Eagle Conservation Plan (ECP). This amount includes 650 hours for preconstruction monitoring surveys of eagle use of the project site and 700 hours of postconstruction monitoring for each respondent. Preparation of the application, which may include preparation of an ECP, will take approximately 200 hours per respondent. These burden hours apply only to those seeking a long-term eagle take permit. In addition, those that receive a permit are required to report take of eagles and threatened or endangered species within 48 hours of discovery of the take. It is estimated that of the 15 projects permitted to take eagles each year, 10 will actually take eagles, requiring 2 hours per respondent to report. Take of threatened or endangered species is expected to be a rare event, and occur at only 1 of the 15 projects permitted each year, requiring only 2 hours to report. The burden hours also include the costs for the 5year permit review. We estimate 8 hours per respondent to complete the requirements of the permit review for a total of 32 hours. Estimated New Total Nonhour Burden Cost: $359,200 for administration fees and application fees associated with changes implemented by this rule. This amount does not include the nonhour cost burden for eagle or eagle nest take permits approved under OMB Control No. 1018–0022. States, local governments, and tribal governments are exempt from paying these fees. An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. Dated: January 12, 2017. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2017–01284 Filed 1–19–17; 8:45 am] mstockstill on DSK3G9T082PROD with RULES BILLING CODE 4333–15–P VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 223, 224, and 226 [Docket No. 160524463–7001–02] Endangered and Threatened Species; Removal of the Puget Sound/Georgia Basin Distinct Population Segment of Canary Rockfish From the Federal List of Threatened and Endangered Species and Removal of Designated Critical Habitat, and Update and Amendment to the Listing Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: We, NMFS, are issuing a final rule to remove the Puget Sound/Georgia Basin canary rockfish (Sebastes pinniger) Distinct Population Segment (DPS) from the Federal List of Threatened and Endangered Species and remove its critical habitat designation. We proposed these actions based on newly obtained samples and genetic analysis that demonstrates that the Puget Sound/Georgia Basin canary rockfish population does not meet the DPS criteria and therefore does not qualify for listing under the Endangered Species Act (ESA). Following public and peer review of the proposed rule and supporting scientific information, this final rule implements the changes to the listing and critical habitat for canary rockfish. We also update and amend the listing description for the Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS based on a geographic description to include fish within specified boundaries. Further, although the current listing description is not based on boundaries, with this final rule we are also correcting a descriptive boundary for the DPS depicted on maps to include an area in the northern Johnstone Strait and Queen Charlotte Channel in waters of Canada consistent with newly obtained genetic information on yelloweye rockfish population grouping. We also update and amend the listing description for the bocaccio DPS based on a geographic description and to include fish within specified boundaries. SUMMARY: Frm 00081 Fmt 4700 This final rule is effective on March 24, 2017. FOR FURTHER INFORMATION CONTACT: Dan Tonnes, NMFS, West Coast Region, Protected Resources Division, 206–526– 4643; or Chelsey Young, NMFS, Office of Protected Resources, 301–427–8491. SUPPLEMENTARY INFORMATION: DATES: Background RIN 0648–XE657 PO 00000 7711 Sfmt 4700 On April 9, 2007, we received a petition from Mr. Sam Wright (Olympia, Washington) to list DPSs of five rockfish species (yelloweye, canary, bocaccio, greenstriped and redstripe) in Puget Sound, as endangered or threatened species under the ESA and to designate critical habitat. We found that this petition did not 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 Mr. Wright presenting information that was not included in the April 2007 petition, and requesting reconsideration of the decision not to initiate a review of the species’ status. We considered the supplemental information as a new petition and concluded that there was enough information in this new petition to warrant conducting status reviews of these five rockfish species. The status review was initiated on March 17, 2008 (73 FR 14195) and completed in 2010 (Drake et al., 2010). In the 2010 status review, the Biological Review Team (BRT) used the best scientific and commercial data available at that time, including environmental and ecological features of the Puget Sound/Georgia Basin, but noted that the limited genetic and demographic data for the five petitioned rockfish species populations created some uncertainty in the DPS determinations (Drake et al., 2010). The BRT assessed genetic data from the Strait of Georgia (inside waters of eastern Vancouver Island) for yelloweye rockfish (Yamanaka et al., 2006) that indicated a distinct genetic cluster that differed consistently from coastal samples of yelloweye rockfish, but also observed that genetic data from Puget Sound were not available for this species. The BRT also noted there was genetic information for canary rockfish (Wishard et al., 1980) and bocaccio (Matala et al., 2004, Field et al., 2009) in coastal waters, but no genetic data for either species from inland Puget Sound waters. The BRT found that in spite of these data limitations there was other evidence to conclude that each noted population of rockfish within inland waters of the Puget Sound/Georgia E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES 7712 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Basin was discrete from its coastal counterpart. Specifically, the BRT noted similar life histories of rockfish and based their determinations, in part, on the status review of brown rockfish, copper rockfish, and quillback rockfish (Stout et al., 2001) and the genetic information for those species that supported separate DPSs for inland compared to coastal populations (Drake et al., 2010). Thus, based on information related to rockfish life history, genetic variation among populations, and the environmental and ecological features of Puget Sound and the Georgia Basin, the BRT identified Puget Sound/Georgia Basin DPSs for yelloweye rockfish, canary rockfish, and bocaccio, and a Puget Sound proper DPS for greenstriped rockfish and redstripe rockfish (Drake et al., 2010). Informed by the BRT recommendations and our interpretation of best available scientific and commercial data, on April 28, 2010, we listed the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary rockfish as threatened under the ESA, and the Puget Sound/Georgia Basin DPS of bocaccio as endangered (75 FR 22276). The final critical habitat rule for the listed DPSs of rockfishes was published in the Federal Register on November 1, 2014 (79 FR 68041). We determined that greenstriped rockfish (S. elongatus) and redstripe rockfish (S. proriger) within Puget Sound proper each qualified as a DPS, but these DPSs were not at risk of extinction throughout all or a significant portion of their ranges (Drake et al., 2010). In 2013, we appointed a recovery team and initiated recovery planning for the listed rockfish species. Through the process of recovery planning, priority research and recovery actions emerged. One such action was to seek specific genetic data for each of these rockfish species to better evaluate and determine whether differences exist in the genetic structure of the listed species’ populations between inland basins where the DPSs occur and the outer coast. Analysis of the geographical distribution of genetic variation is a powerful method of identifying discrete populations (Drake et al., 2010); thus, genetic analysis provides useful information to address the uncertainties associated with the limited information that informed our initial discreteness determinations for yelloweye rockfish, canary rockfish and bocaccio. In 2014 and 2015, we partnered with the Washington Department of Fish and Wildlife (WDFW), several local fishing guides, and Puget Sound Anglers to collect samples between the different basins of the Puget Sound/Georgia Basin VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 DPSs area and the outer coast. We collected biological samples for genetic analysis several ways. Over the course of 74 fishing trips, biological samples were gathered from listed rockfishes using hook-and-line recreational fishing methods in Puget Sound and the Strait of Juan de Fuca. Additional samples were gathered from archived sources from Fisheries and Oceans Canada, the NMFS Southwest Fisheries Science Center’s Fisheries Resource Division, and the NMFS Northwest Fisheries Science Center’s West Coast groundfish bottom trawl survey. Samples collected from these sources were used to examine the population structure for each species. Population structure was examined using three methods: Principal components analysis (PCA), calculation of FST (fixation index—which is a measure of population differentiation) among geographic groups, and a population genetics based model clustering analysis (termed STRUCTURE) (NMFS 2016a). In 2015, we announced a 5-year review (80 FR 6695; February 6, 2015) for the three rockfish DPSs. The 5-year review was completed on May 5, 2016 (NMFS 2016a), and is available at: http://www.westcoast.fisheries.noaa. gov/publications/protected_species/ other/rockfish/5.5.2016_5yr_review_ report_rockfish.pdf. To complete the review, we collected, evaluated, and incorporated all information on the species that has become available since April 2010, the date of the listing, including the 2014 final critical habitat designation and newly obtained samples and analysis of genetic information (Ford 2015, NMFS 2016a). NMFS’ Puget Sound/Georgia Basin rockfish BRT reviewed the results from the new genetic information. Their recommendations (Ford 2015) informed and were further evaluated during the five-year review (NMFS 2016a) which confirmed the DPS identity and listing status for yelloweye rockfish and bocaccio but concluded that the canary rockfish of the Puget Sound/Georgia Basin do not meet the criteria to be considered a DPS. Policies for Delineating and Listing Species Under the ESA Under the ESA, the term ‘‘species’’ means a species, a subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS–USFWS policy clarifies the Services’ interpretation of the phrase ‘‘Distinct Population Segment,’’ or DPS (61 FR 4722; February 7, 1996). The DPS Policy requires the consideration of two elements when evaluating whether a vertebrate population segment qualifies as a DPS PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 under the ESA: (1) Discreteness of the population segment in relation to the remainder of the species/taxon; and, if discrete, (2) the significance of the population segment to the species/taxon to which it belongs. Thus, under the DPS policy a population segment is considered a DPS if it is both discrete from other populations within its taxon and significant to its taxon. A population 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; 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 (61 FR 4722; February 7, 1996). According to the policy, quantitative measures of genetic or morphological discontinuity can be used to provide evidence for item (1) above. Consideration of the significance of a discrete population may include, but is not limited to the following conditions: (1) Persistence of the discrete segment in an ecological setting unusual or unique for the taxon; (2) evidence that loss of the discrete segment would result in a significant gap in the range of the taxon; (3) evidence that the discrete segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or (4) evidence that the discrete segment differs markedly from other populations of the species in its genetic characteristics. The ESA gives us clear authority to make listing determinations and to revise the Federal list of endangered and threatened species to reflect these determinations. Section 4(a)(1) of the ESA authorizes us to determine by regulation whether ‘‘any species,’’ which is defined to include species, subspecies, and DPSs, is an endangered species or a threatened species based on certain factors. Review of a species’ status may be commenced at any time, either on the Services’ own initiative— through a status review or in connection with a five-year review under Section 4(c)(2)—or in response to a petition. Because a DPS is not a scientifically recognized entity, but rather one created under the language of the ESA and effectuated through our DPS Policy (61 FR 4722; February 7, 1996), we have some discretion to determine whether populations of a species should be E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations identified as DPSs, and, based upon their range and propensity for movement, what boundaries should be recognized for a DPS. Section 4(c)(1) of the ESA gives us authority to update the Federal list of threatened and endangered species to reflect these determinations. This can include revising the list to remove a species or reclassify the listed entity. Under sections 4(c)(1) and 4(a)(1) of the ESA the Secretary shall undertake a five-year review of a listed species and consider, among other things, whether a species’ listing status should be continued. Pursuant to implementing regulations at 50 CFR 424.11(d), a species shall be removed from the list if the Secretary of Commerce determines, based on the best scientific and commercial data available after conducting a review of the species’ status, that the species is no longer threatened or endangered because of one or a combination of the section 4(a)(1) factors. A species may be delisted only if such data substantiate that it is neither endangered nor threatened for one or more of the following reasons: (1) Extinction. Unless all individuals of the listed species had been previously identified and located, and were later found to be extirpated from their previous range, a sufficient period of time must be allowed before delisting to indicate clearly that the species is extinct. (2) Recovery. The principal goal of the Services is to return listed species to a point at which protection under the ESA is no longer required. A species may be delisted on the basis of recovery only if the best scientific and commercial data available indicate that it is no longer endangered or threatened. (3) Original data for classification in error. Subsequent investigations may show that the best scientific or commercial data available when the species was listed, or the interpretation of such data, were in error (50 CFR 424.11(d)). To make our final listing determinations, we reviewed all information provided during the 60-day public comment period on the proposed rule. Additionally we reviewed additional genetic analysis developed by the Northwest Fisheries Science Center (NWFSC) after the proposed rule (Andrews and Nichols 2016). This additional information supplemented, and supported, the information presented in the proposed rule. Where new information was received we have reviewed it and presented our evaluation in this final rule. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 Proposed Rule Informed by the BRT recommendations (Ford 2015), our interpretation of best available scientific and commercial data, and the conclusions of the five-year review, on July 6, 2016 we issued a proposed rule (81 FR 43979) to remove the Puget Sound/Georgia Basin canary rockfish (Sebastes pinniger) which included the following findings for each listed rockfish species. Yelloweye Rockfish Several different analytical methods indicated significant genetic differentiation between the inland and coastal samples of yelloweye rockfish at a level consistent with the limited genetic data for this species (Yamanaka et al., 2006) that were available at the time of the 2010 status review. The BRT concluded that this new genetic information represents the best available scientific and commercial data and are consistent with and confirm the existence of an inland population of Puget Sound/Georgia Basin yelloweye rockfish that is discrete from coastal yelloweye rockfish (Ford 2015, NMFS 2016a). In addition, this genetic information demonstrates that yelloweye rockfish from Hood Canal are genetically differentiated from other Puget Sound/Georgia Basin fish, indicating a previously unknown degree of population differentiation within the DPS (Ford 2015, NMFS 2016a). The BRT also found that new genetic information from Canada demonstrates that yelloweye rockfish occurring in the northern Johnstone Strait and Queen Charlotte Channel clustered genetically with yelloweye rockfish occurring in the northern Strait of Georgia, the San Juan Islands, and Puget Sound (Ford 2015). This is consistent with additional genetic analysis identifying a population of yelloweye rockfish inside the waters of eastern Vancouver Island (Yamanaka et. al. 2006, COSEWIC 2008, Yamanaka et al., 2012, Siegle et al., 2013). Based on this information and the five-year review, we proposed to correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS to include this area. We also proposed to update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada). We proposed this change because this description better aligns with yelloweye rockfish lifehistory and their sedentary behavior as adults, rather than the current PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 7713 description of fish originating from the Puget Sound/Georgia Basin. In the five-year review, our analysis of the ESA section 4(a)(1) factors found that the collective risk to the persistence of the Puget Sound/Georgia Basin DPS of yelloweye rockfish has not changed significantly since our final listing determination in 2010 (75 FR 22276; April 28, 2010), and they remain listed as threatened (NMFS 2016a). Canary Rockfish The same analytical methods (described in Ford 2015, NMFS 2016a and Andrews and Nichols 2016) as used for yelloweye rockfish were used to analyze population structure in canary rockfish. These analyses indicate a lack of genetic differentiation of canary rockfish between coastal and inland Puget Sound/Georgia Basin samples. FST values, a metric of population differentiation, among groups were not significantly different from zero among geographic regions, and STRUCTURE analysis did not provide evidence supporting population structure in the data. None of these analyses provided any evidence of genetic differentiation between canary rockfish along the coast from the canary rockfish within the boundaries of the Puget Sound/Georgia Basin DPS (Ford 2015, NMFS 2016a, Andrews and Nichols 2016). The BRT noted that the very large number of loci provided considerable power to detect differentiation among sample groups and concluded that the lack of such differentiation indicated that it is unlikely the inland Puget Sound/Georgia Basin samples are discrete from coastal areas (Ford 2015). In the context of this newly obtained genetic information, the BRT considered whether other factors that supported the original discreteness determination, such as oceanography and ecological differences among locations, continue to support a finding of discreteness for this population (Ford 2015). In considering this newly obtained genetic data in the context of the other evidence, the BRT found that their original interpretation of the scientific data informing discreteness is no longer supported (Ford 2015). Rather, they concluded that the lack of genetic differentiation indicates sufficient dispersal to render a discreteness determination based on environmental factors implausible. The BRT found that current genetic data evaluated and interpreted in the context of all available scientific information now provides strong evidence that canary rockfish of the Puget Sound/ Georgia Basin are not discrete from coastal area canary rockfish. Based on the BRT findings, the five-year review, E:\FR\FM\23JAR1.SGM 23JAR1 7714 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES and best available science and commercial information, and in accordance with the DPS policy, we determined that the canary rockfish of the Puget Sound/Georgia Basin did not meet the criteria to be considered a DPS. Rather, the new genetic data reveal that canary rockfish of the Puget Sound/ Georgia Basin are part of the larger population occupying the Pacific coast (Ford 2015, NMFS 2016a, Andrews and Nichols 2016). Canary rockfish of the Pacific coast was declared overfished in 2000 and a rebuilding plan under the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act) was put in place in 2001. NMFS determined the stock to be ‘‘rebuilt’’ in 2015 (Thorson and Wetzel 2015, NMFS 2016b). Based on the discussion above and the recommendation of the five-year review, we proposed to remove Puget Sound/Georgia Basin canary rockfish from the Federal List of Threatened and Endangered Species because the new genetic data evaluated and interpreted in the context of all best available science indicate they are not a discrete population (81 FR 43979; July 6, 2016). Under section 4(c)(1) of the ESA and the implementing regulations at 50 CFR 424.11(d)(3), we may delist canary rockfish if, among other things, subsequent investigation demonstrates that our interpretation of best scientific or commercial information was in error. After considering this newly obtained genetic data in the context of the other evidence supporting discreteness, we determined that our original interpretation of discreteness for Puget Sound/Georgia Basin canary rockfish is no longer supported and was in error. Based on this reasoning, there is no need for a post-delisting monitoring plan. Bocaccio Bocaccio were also evaluated by the BRT (Ford 2015) and during the fiveyear review (NMFS 2016a). Bocaccio are particularly rare within the DPS area and thus the NWFSC was only able to obtain three samples from within the DPS area for the genetic analysis. The BRT determined that this is not sufficient information to support a change to our prior status review and listing determination that Puget Sound/ Georgia Basin bocaccio are discrete from coastal fish (Ford 2015). The BRT noted that bocaccio have a propensity for greater adult movement than more benthic rockfish species, similar to the case for canary rockfish. The BRT considered that the lack of genetic differentiation between coastal VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 and Puget Sound/Georgia Basin canary rockfish might suggest a similar lack of genetic differentiation for bocaccio because of similarities in the life history of the two species. Nevertheless, the BRT concluded that the new information was not sufficient to change the conclusions of the previous BRT documented in Drake et al., (2010) or suggest a change in listing status (Ford 2015). This is consistent with the fiveyear review recommendation (NMFS 2016a) and is based upon best available scientific data and commercial information. However, similarly to yelloweye rockfish, we proposed to update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/ Georgia Basin. In the five-year review, our analysis of the ESA section 4(a)(1) factors found that the collective risk to the persistence of the Puget Sound/Georgia Basin DPS of bocaccio has not changed significantly since our final listing determination in 2010 (75 FR 22276; April 28, 2010), and they remain listed as endangered (NMFS 2016a). Peer Review and Public Comment The scientific information considered by the BRT and summarized in our fiveyear review (NMFS 2016a) was peer reviewed and the proposed rule was subject to public comment. Following those reviews, there are no changes to the actions as proposed. Summary of Comments On July 6, 2016, we solicited comments during a 60-day public comment period from all interested parties including the public, other concerned governments and agencies, the scientific community, industry, and other interested parties on the proposed rule (81 FR 43979). We received four public comments, and three peer reviews on the proposed rule. Summaries of the substantive comments received, and our responses, are provided below and organized by topic. Comments on Sampling and Genetic Analysis Two of the three peer reviewers had questions and observations about the genetic analyses for both canary rockfish and yelloweye rockfish provided in the five-year review. NOAA’s Northwest Fisheries Science Center (NWFSC) reviewed the genetic and sampling questions and provided responses within a memorandum (Andrews and PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 Nichols 2016). This memorandum also reported on additional genetic analysis of samples collected in 2014 and 2015 that had not yet been analyzed and available in the five-year review (NMFS 2016a) or by the BRT (2015). The results of the updated genetic analysis are consistent with and did not change the outcome of the genetic assessment presented to the Biological Review Team in November 2015 (Ford 2015) and in the five-year review (NMFS 2016a) that informed the proposed rule. The information from the new analysis (Andrews and Nichols 2016) is included in the responses below. Comment 1: Two of the three scientific peer reviewers and two commenters agreed that canary rockfish sampled from the Puget Sound/Georgia Basin are not genetically differentiated from canary rockfish sampled outside of this area. Response: We agree. Comment 2: One peer reviewer did not agree that there was sufficient evidence to support our finding that canary rockfish are not genetically differentiated. Response: We disagree with the peer reviewer based on the analysis provided in the five-year review (NMFS 2016a) and BRT report (Ford 2015) in addition to the supplemental analysis provided by Andrews and Nichols (2016) and elaborated in this final rule. The best available information provides strong evidence that canary rockfish sampled in the Puget Sound/Georgia Basin are not genetically differentiated from coastal canary rockfish. Comment 3: Regarding the yelloweye rockfish and canary rockfish genetic analysis, one reviewer suggested that analytical methods conducted by the NWFSC (such as FST and STRUCTURE) should be described in our final rule. Response: We agree. While additional information on these analyses was included in documents supporting the proposed rule (81 FR 43979; July 6, 2016), we include clarifying information in this final rule as well (and as detailed in Andrews and Nichols 2016). The NWFSC conducted Principal Component Analysis (PCA), STRUCTURE, and FST analyses for yelloweye rockfish and canary rockfish, which are detailed in Andrews and Nichols (2016). These analyses for yelloweye rockfish support our findings that fish collected in the Puget Sound/ Georgia Basin DPS are discrete from yelloweye rockfish collected on the outer coast. Similar analyses for canary rockfish support our findings that there is no discrete Puget Sound/Georgia E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Basin population (Andrews and Nichols 2016). Comment 4: One peer reviewer questioned the relatively low proportion of overall variation explained by PCA one and PCA two described in our fiveyear review and the proposed rule. Response: For yelloweye rockfish, the NWFSC used over 5,000 Restriction Site Associated DNA Sequencing loci in the analyses presented in the five-year review and over 7,000 loci in its final dataset (Andrews and Nichols 2016). There is a large amount of variation possible among this many loci leading to a relatively low proportion of the variance explained by the first two principal component scores. Comment 5: One reviewer questioned how the number of samples collected and analyzed by the NWFSC affects the estimate of statistical power and the ability to detect genetic differentiation for yelloweye rockfish and canary rockfish. Response: The NWFS did not conduct power analyses. Andrews and Nichols (2016) state that ‘‘. . . the magnitude of the FST confidence intervals, and the upper bound of those confidence intervals provide compelling evidence that differentiation among the sampled regions for canary rockfish is not significantly different from zero, and in many cases orders of magnitude lower than that observed for yelloweye rockfish.’’ This analysis bolsters the conclusion that canary rockfish are not genetically differentiated between the Puget Sound and the outer coast. Comment 6: One peer reviewer suggested that we provide details about the PCA scores, and which loci loaded most prominently onto those principal components. Response: The three analyses conducted by the NWFSC used this information to inform the integrative comparisons among individuals (PCA), population assignments (STRUCTURE) and statistical comparisons of FST values as documented in the five-year review and updated in Andrews and Nichols (2016). These integrative comparisons further support the evidence of genetic differentiation for yelloweye rockfish, and the lack thereof for canary rockfish. Comment 7: One peer reviewer stated that our proposal to delist canary rockfish should have taken into account environmental and/or life history characteristics that would ‘‘produce’’ a seemingly genetically homogeneous population, and questioned whether it is logical that yelloweye constitute a DPS but canary do not. Response: Our proposal to delist canary rockfish (81 FR 43979; July 6, 2016), in addition to the five-year VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 review (NMFS 2016a), did discuss the known life-history characteristics of canary rockfish and yelloweye rockfish. Yelloweye rockfish have been found to have limited movements as adults (Hannah and Rankin 2011), while canary rockfish are known to move over large distances at both short and long time scales (DeMott 1983, Lea et al., 1999, Love et al., 2002, Hannah and Rankin 2011). This life-history characteristic suggests that there is limited probability of adult yelloweye from Puget Sound/Georgia Basin reproducing with adults from the outer coast, and therefore providing the necessary conditions for genetic differentiation to develop over time. The relatively quick and long-range movements of some adult canary rockfish suggest the high potential for breeding among individuals throughout their range and thus leading to a panmictic population (Andrews and Nichols 2016). A second relevant life-history trait supporting discreteness and identification of yelloweye rockfish as a DPS, in contrast to canary rockfish, is the timing of larval release. In waters off British Columbia, yelloweye rockfish release larvae from April to September with peaks in May and June. This timing of larval release could significantly affect the dispersal and/or retention of larval rockfish depending on the prevailing oceanographic currents and freshwater flows into and out of the Puget Sound/Georgia Basin (Andrews and Nichols 2016). Canary rockfish experience peak release of larvae from February to March (Love et. al. 2002) and thus this different release period may influence dispersal of larvae because of different oceanic and current conditions. Comment 8: A peer reviewer asked if there was any information regarding where canary rockfish reproduction takes place, whether canary rockfish spawn in aggregates, and if they have philopatric tendencies (a behavior where individuals return to their birthplace to breed). Response: We are not aware of information regarding where canary rockfish spawn on the Pacific coast or Puget Sound, but note that in locations where they are observed as gravid, it is logical that they release larvae nearby. Similarly, we are not aware of information regarding if canary rockfish mate or release larvae in aggregates. Comment 9: One peer reviewer asked if our proposal to delist canary rockfish accounted for the possibility that they were historically depleted in local waters, as documented in the 2010 Status Review (Drake et al., 2010), and PO 00000 Frm 00085 Fmt 4700 Sfmt 4700 7715 replaced by the immigration of canary rockfish from the Pacific coast. Response: We do not have samples of canary rockfish from within the Puget Sound/Georgia Basin prior to their listing in 2010—thus it is not possible to test the scenario hypothesized by the reviewer genetically. However, it is unlikely that the process of recruitment or immigration of individual canary rockfish to/from the Puget Sound/ Georgia Basin would have changed as theorized by the peer reviewer (Andrews and Nichols 2016). If recruitment or immigration of canary rockfish from the outer coast to the Puget Sound/Georgia Basin occurs today, which the genetic analysis suggests (see Figs. 2b, 4c and 6 and Table 2 in Andrews and Nichols 2016), it was very likely happening historically. The historical overfishing of canary rockfish in Puget Sound/ Georgia Basin would not have altered the process of adults or larval dispersal of canary rockfish from the Pacific Coast into Puget Sound. If larval/juvenile canary rockfish dispersal among the two regions occurred historically, it is unlikely that canary rockfish in Puget Sound/Georgia Basin would have been genetically differentiated and yet the sampling would have missed these fish (Andrews and Nichols 2016). Comment 10: One peer reviewer asked how much genetic exchange is going on between the outer coast and the Puget Sound, and speculated that if canary rockfish are extirpated from the Puget Sound/Georgia Basin, that the population may not rebuild if there is limited movement of fish from the Pacific coast. Response: The genetic analysis indicates that genetic exchange of canary rockfish in the Pacific coast and the Puget Sound/Georgia Basin occurs frequently enough to develop one population across these areas (Andrews and Nichols 2016). For these reasons, it is unlikely that a hypothesized extirpation of canary rockfish within the Puget Sound/Georgia Basin would occur so long as there are canary rockfish outside of the Puget Sound/Georgia Basin that move amongst these areas. Comment 11: One peer reviewer disagreed that genetic information for canary rockfish, as detailed in the fiveyear review (NMFS 2016a) and BRT memo (Ford 2015), indicate ‘‘strong’’ evidence that fish sampled from the Puget Sound/Georgia Basin are not discrete from coastal fish. The reviewer questioned this characterization because of sample size, sample integrity, and sample representativeness of canary rockfish collected in this research. In addition, the reviewer questioned the E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES 7716 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations reliance on principal coordinate cluster plots to portray genetic similarity because of the potential for misinterpretation of the results. The reviewer questioned why STRUCTURE plots and analysis of molecular variance results were not provided in the fiveyear review and asked what the average magnitude of FST values for canary rockfish were compared to yelloweye rockfish. Response: The STRUCTURE and FST information was included in supporting documents, and we agree that additional information would be useful to further explain the genetic data. Updated genetic analysis (based on an analysis of additional samples) and additional explanatory text are now documented in Andrews and Nichols (2016). The BRT considered not only the PCA, but also results from STRUCTURE and tests for pairwise population differentiation based on FST (Andrews and Nichols 2016). Those analyses were conducted on the number of samples outlined in the status review published in May 2016, but have since also been extended to additional samples with the same conclusions (see Andrews and Nichols 2016). All of these analyses show clear evidence for population structure in yelloweye rockfish, but not in the canary rockfish samples. Comment 12: One peer reviewer stated that a primary reason the yelloweye rockfish genetic analysis shows significant differentiation relative to canary rockfish is because we were able to collect samples of yelloweye rockfish samples in Canada and Hood Canal, in addition to the Central Puget Sound and from the Georgia Basin. The reviewer noted that the NWFSC was not able to collect canary rockfish samples from Canada (the Georgia Basin) and Hood Canal, and asked what the genetic analysis may have shown if samples could have been collected from these areas. Response: We were unable to collect canary rockfish samples in Hood Canal. We also searched for existing canary rockfish samples by contacting the Department of Fisheries and Oceans Canada, but were not able to find any from Canadian waters. Based on the lack of genetic differentiation between more geographically disparate locations such as the Central Puget Sound (where the NWFSC was able to collect samples) and the outer Pacific Coast, we would not expect genetic differentiation of canary rockfish if samples from Canadian coastal or inland waters were included (Andrews and Nichols 2016). As previously noted, canary rockfish have been documented to travel long distances, thus we would also not VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 expect canary rockfish collected in Hood Canal to be genetically different even though there is a large sill at the entrance of Hood Canal (Drake et al., 2010) that may restrict dispersal due to restricted water movement into and out of this water body (Andrews and Nichols 2016). As suggested by this reviewer, the NWFSC examined the results from the PCA analysis for yelloweye rockfish as if we did not have the samples from Hood Canal and Canada (Fig. 7 in Andrews and Nichols 2016) and this analysis gives the same conclusion—that Puget Sound is significantly differentiated from the coastal collections in yelloweye rockfish. This conclusion is also supported by other genetic analyses, including pairwise differentiation of collections from these more limited regions. Therefore it is likely that if there were significant genetic differentiation for canary rockfish, the NWFSC would have detected it from the samples in Puget Sound and the Pacific coast as for yelloweye rockfish sampled in these regions. Comment 13: One peer reviewer stated that the absence of observed structure in the canary rockfish sample does not necessarily equate to the absence of structure in the population and questioned whether or not the sampled fish are actually representative of the population. Response: There are two reasons we believe the sampled canary rockfish are representative of the population. First, the sampling design consisted of 74 days of fishing across four regions of the DPS (South Puget Sound, Central Puget Sound, Hood Canal and the San Juan Islands) and one region outside the DPS (Strait of Juan de Fuca including locations near Neah Bay and Sekiu, WA). The sampling locations within these regions were derived from the knowledge of recreational charter boat captains, recent and past Remotely Operated Vehicle (ROV) surveys, and historical recreational catch information to target habitats where canary rockfish had been observed. This information and the number of sampling days provided ample effort to target canary rockfish in each of these regions, and we indeed collected canary rockfish from three of these five regions, including 50 from within the DPS (47 of these samples had sufficient readings during sequencing to be used in subsequent analyses) (Andrews and Nichols 2016). Second, the genetic sequencing methods used by the NWFSC allowed for detailed examination of the genome of each individual fish—increasing the power of these analyses to detect PO 00000 Frm 00086 Fmt 4700 Sfmt 4700 differences between individuals and differences among regions as compared to traditional analyses (Andrews and Nichols 2016). Comment 14: One peer reviewer suggested we collect larval canary rockfish for additional genetic analysis. Response: Given the strength of the genetic analysis we do not believe that additional samples from larval rockfish (or any other life-stage of canary rockfish) are needed to clarify the lack of structure of canary rockfish sampled within the Puget Sound/Georgia Basin and the Pacific coast. The samples collected from canary rockfish provide ample sample size to support the overall conclusion regarding the lack of genetic differentiation discussed in the five-year review and the proposal to delist canary rockfish (81 FR 43979; July 6, 2016), Ford (2015) and Andrews and Nichols (2016). Comment 15: One peer reviewer questioned whether our genetic analysis and proposal to delist canary rockfish was potentially influenced by potential misidentification of canary rockfish and yelloweye rockfish, including misidentification by scuba-divers. The reviewer was concerned that canary rockfish used in the genetics samples may have actually been yelloweye rockfish, (and vice versa). Response: All fish sampled in the genetic study were collected by professional fishing charter guides, biologists with NOAA Fisheries and the Washington State Department of Fish and Wildlife, thus we are confident that all canary rockfish and yelloweye rockfish sampled were identified to species correctly. The peer reviewer is correct, however, that yelloweye rockfish and canary rockfish look similar and the identification of rockfish to species can be difficult (Sawchuk et al., 2015). If such an incorrect species labeling were to occur within the genetic analysis, the analysis itself would have indicated this. Comments on Species Status and Protections Comment 16: Two peer reviewers observed that available information indicates that the number of canary rockfish individuals in the Puget Sound/Georgia Basin is relatively small. One reviewer acknowledged that canary rockfish in the Puget Sound/Georgia Basin do not appear to be a DPS, but expressed concern that fish in this area may nonetheless become extirpated. Another reviewer stated our decision to propose delisting should have been more precautionary because of the ‘‘. . . dearth of information for canary rockfish and scarcity of available data’’ E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations regarding their abundance. Similarly, in the five-year review we noted that six canary rockfish were observed during recent ROV surveys, and one peer reviewer asked in how many years of surveys these six fish were observed. Response: We agree that there is little data regarding canary rockfish abundance in the Puget Sound/Georgia Basin, as described in our five-year review, and that it appears that canary rockfish in this area declined significantly in the latter half of the 20th century (as described in Drake et al., 2010). However, the determination to delist canary rockfish is based not on abundance information, but rather on determining if canary rockfish in the Puget Sound/Georgia Basin meet the criteria of a DPS (61 FR 4722; February 7, 1996), which allows them to be listed under the ESA. Though we are not required to implement a post-delisting monitoring plan for canary rockfish, there are research projects underway that will help us understand the numbers and distribution of rockfish in the Puget Sound, including canary rockfish. We have contracted with the Washington State Department of Wildlife to conduct an ROV survey within the Puget Sound. This two-year survey will be completed in early 2017 and data analysis and report writing will likely take a year or two after the completion date. This research will eventually provide additional data about rockfish abundance and distribution. In our fiveyear review we reported that this ROV survey had documented six canary rockfish; most of these fish were documented in the first year of the survey (2015) because the data from the second year of the survey is not yet fully available. In addition to the ROV survey, we have begun to seek information on where recreational divers observe juvenile yelloweye rockfish, canary rockfish and bocaccio. Similarly, the NWFSC is developing a young-of-the-year rockfish monitoring plan for the Puget Sound. As this monitoring plan is implemented we will gather additional information regarding the abundance and recruitment of rockfish, including canary rockfish. Comment 17: One peer reviewer stated that the declaration of the canary rockfish stock as ‘‘rebuilt’’ under the Magnuson-Stevens Act, as documented in Thorson and Wetzel (2015) and NMFS (2016b), was a ‘‘major consideration for the recommendation to delist’’ the Puget Sound/Georgia Basin DPS. Response: The reviewer is incorrect. Our removal of canary rockfish of the Puget Sound/Georgia Basin from the VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 Federal List of Threatened and Endangered Species is based on the best available science and commercial information. In accordance with the DPS Policy (61 FR 4722; February 7, 1996), we have determined that the canary rockfish of the Puget Sound/ Georgia Basin do not meet the criteria to be considered a DPS based on genetic information documented in the five-year review (NMFS 2016a), Ford (2015) and Andrews and Nichols (2016). Comment 18: One peer reviewer stated that information in the five-year review indicated that canary rockfish are rare in Puget Sound, and questioned how they could be declared ‘‘rebuilt’’ under the authority of the MagnusonStevens Act. Response: The peer reviewers were not tasked with evaluating the previous agency decision to declare canary rockfish of the Pacific coast as ‘‘rebuilt’’ subject to the criteria defined in the Magnuson-Stevens Act. Federal canary rockfish stock assessments performed pursuant to the Magnuson-Stevens Act do not include data regarding canary rockfish in Puget Sound waters within the Puget Sound/Georgia Basin. Rather the 2015 canary rockfish stock assessment under the MagnusonStevens Act was conducted with data collected along the Pacific coast (outside of the Puget Sound/Georgia Basin). Comment 19: One peer reviewer asked how canary rockfish in the Puget Sound/Georgia Basin are going to be protected if they are removed from the ESA. Response: Since the listing of yelloweye rockfish, canary rockfish and bocaccio in 2010, WDFW has changed fisheries regulations for several nontribal commercial fisheries in Puget Sound in order to protect rockfish populations. The WDFW closed the active set net, set line, and bottom trawl fisheries, and the inactive pelagic trawl and bottomfish pot fishery. As a precautionary measure, WDFW closed the above commercial fisheries westward of the ESA-listed rockfish DPSs’ boundary to Cape Flattery. WDFW extended the closure west of the rockfish DPSs’ boundary to prevent applicable commercial fishers from concentrating gear in that area. The WDFW also implemented a rule that recreational anglers targeting bottomfish not fish deeper than 120 feet. These fisheries regulations are unlikely to change, and will benefit canary rockfish and nearly all rockfish species within the Puget Sound. On August 16, 2016, we released a Draft Recovery Plan for yelloweye rockfish and bocaccio (listed rockfish) of the Puget Sound/Georgia Basin (81 FR PO 00000 Frm 00087 Fmt 4700 Sfmt 4700 7717 54556). The Draft Recovery Plan identifies approximately 45 research and recovery actions for listed rockfish, and though these actions are not specifically designed for canary rockfish, they would nonetheless benefit from Plan implementation because of the similarity of habitats occupied for each species. We expect the Plan to inform section 7 consultations with Federal agencies under the ESA and to support other ESA decisions, such as considering permits under section 10. Mitigation incorporated into section 7 and section 10 actions to reduce impacts on listed rockfish will also likely reduce impacts to canary and other rockfish species. We have already begun implementation of several actions as described in the Plan, such as partnering with the WDFW to conduct ROV surveys to assess listed rockfish abundance, distribution, and habitat use. After the adoption of the Final Recovery Plan, we will continue to implement actions for which we have authority, work cooperatively on implementation of other actions, and encourage other Federal and state agencies to implement recovery actions for which they have responsibility and authority. Collectively, the management of fisheries, section 7 and 10 actions, and implementation of the listedrockfish Recovery Plan will also benefit many species of non-listed rockfish of the Puget Sound/Georgia Basin, including canary rockfish. Summary of Changes From the Proposed Listing Rule We reviewed the best available scientific and commercial information, including the information in the peer reviews of the proposed rule (81 FR 43979; July 6, 2016), public comments, and information and analysis (Andrews and Nichols 2016) that have become available since the publication of the proposed rule. Based on this information, we have made no changes in this final rule. Final DPS and Status Determinations As proposed on July 6, 2016 (81 FR 43979), in this final rule we: (1) Correct the previous description of the northern boundary of the threatened Puget Sound/Georgia Basin yelloweye rockfish DPS to include an area farther north of the Johnstone Strait in Canada. We also update and amend the description of the DPS as fish residing within certain boundaries (including this geographic area farther north in the Strait of Georgia waters in Canada); (2) we remove Puget Sound/Georgia Basin canary rockfish DPS from the Federal List of Threatened E:\FR\FM\23JAR1.SGM 23JAR1 7718 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations change to the spatial area that was originally designated. Maps of critical habitat can be found on our Web site at http://www.westcoast.fisheries.noaa.gov and in the final critical habitat rule (79 FR 68041; November 13, 2014). Additionally, we correct the listing description of the yelloweye rockfish DPS to define geographical boundaries including an area farther north of the Johnstone Strait in Canada (Figure 1). This boundary would not have an effect on critical habitat, because we do not designate critical habitat outside U.S. territory. With the Puget Sound/Georgia Basin canary rockfish DPS delisting, the requirements under section 7 of the ESA no longer apply. Federal agencies are relieved of the need to consult with us on their actions that may affect Puget Sound/Georgia Basin canary rockfish and their designated critical habitat and to insure that any action they authorize, mstockstill on DSK3G9T082PROD with RULES VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00088 Fmt 4700 Sfmt 4700 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.002</GPH> Effects of the New Determinations Based on the new information and the BRT’s determination, and consideration of public and peer review comments, we are removing canary rockfish of the Puget Sound/Georgia Basin from the Federal List of Threatened and Endangered Species. The Puget Sound/ Georgia Basin yelloweye rockfish DPS shall remain threatened under the ESA, and the Puget Sound/Georgia Basin bocaccio DPS shall remain endangered. We are also removing designated critical habitat for canary rockfish. The critical habitat designation for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs remain in place. The area removed as designated critical habitat for canary rockfish will continue to be designated critical habitat for bocaccio and, thus, there will be no and Endangered Species and their critical habitat, and (3) similar to yelloweye rockfish, we update and amend the listing description of the bocaccio DPS to describe boundaries to include fish residing within the Puget Sound/Georgia Basin rather than fish originating from the Puget Sound/ Georgia Basin. Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations fund, or carry out is not likely to jeopardize the continued existence of canary rockfish or adversely modify their critical habitat. ESA section 7 consultation requirements remain in place for the Puget Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs. Recovery planning efforts will continue for these listed DPSs and a Draft Recovery Plan was released on August 16, 2016 (81 FR 54556). References Cited The complete citations for the references used in this document can be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER INFORMATION CONTACT) or on our Web page at: http:// www.westcoast.fisheries.noaa.gov. Information Quality Act and Peer Review In December 2004, OMB issued a Final Information Quality Bulletin for Peer Review pursuant to the Information Quality Act. The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664). The Bulletin established minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation with regard to certain types of information disseminated by the Federal Government. Peer review under the OMB Peer Review Bulletin ensures that our listing determinations are based on the best available scientific and commercial information. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the proposed rule and underlying scientific information by three independent scientists with expertise in rockfish biology and/or genetics. All peer review comments were addressed in this final rule (see the Summary of Comments heading in this preamble). Classification mstockstill on DSK3G9T082PROD with RULES National Environmental Policy Act (NEPA) The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 7719 information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions. (See NOAA Administrative Order 216–6.). United States toward Indian Tribes. E.O. 13175—Consultation and Coordination with Indian Tribal Governments— outlines the responsibilities of the Federal Government in matters affecting tribal interests. We have coordinated with tribal governments that may be affected by the action. Executive Order 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 Executive Order 12866. This final rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act. List of Subjects Executive Order 13122, Federalism In accordance with E.O. 13132, we determined that this final rule does not have significant federalism effects and that a federalism assessment is not required. In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, this final rule will be shared with the relevant state agencies in Washington state. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the PO 00000 Frm 00089 Fmt 4700 Sfmt 4700 50 CFR Part 223 Endangered and threatened species, Exports, Imports, Transportation. 50 CFR Part 224 Endangered and threatened species. 50 CFR Part 226 Designated Critical Habitat. Dated: January 9, 2017. Samuel D Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 223. 224, and 226 are amended as follows: PART 223—THREATENED MARINE AND 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). 2. In § 223.102, in the table in paragraph (e), under the subheading ‘‘Fishes,’’ remove the entry for ‘‘Rockfish, canary (Puget Sound/Georgia Basin DPS)’’; and revise the table entries for ‘‘Rockfish, yelloweye (Puget Sound/ Georgia Basin DPS).’’ The revision reads as follows: ■ § 223.102 Enumeration of threatened marine and anadromous species. * * * (e) * * * E:\FR\FM\23JAR1.SGM 23JAR1 * * 7720 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Species 1 Common name Scientific name Citation(s) for listing determination(s) Description of listed entity Critical habitat * 75 FR 22276, Apr 28, 2010. * ESA rules Fishes * Rockfish, yelloweye (Puget Sound/ Georgia Basin DPS). * Sebastes ruberrimus. * * * Yelloweye rockfish residing within the Puget Sound/Georgia Basin, inclusive of the Queen Charlotte Channel to Malcom Island, in a straight line between the western shores of Numas and Malcom Islands—N 50 50′46″, W 127 5′55″ and N 50 36′49″, W 127 10′17″. The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N 48 7′16″, W123 17′15″ in a straight line to the Canadian side at N 48 24′40″, 123 17′38″. * * * * * 226.224 * NA * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 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. In § 224.101, paragraph (h), under the subheading ‘‘Fishes,’’ revise the table entry for ‘‘Bocaccio (Puget Sound/ Georgia Basin DPS)’’ to read as follows: PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES. * ■ 3. The authority citation for part 224 continues to read as follows: ■ Species 1 Common name Scientific name * * (h) * * * * * Citation(s) for listing determination(s) Description of listed entity Critical habitat * 75 FR 22276, Apr 28, 2010. * ESA rules Fishes * Bocaccio (Puget Sound/Georgia Basin DPS). * Sebastes paucispinis. * * * Bocaccio residing within the Puget Sound/Georgia Basin to the Northern Boundary of the Northern Strait of Georgia along the southern contours of Quadra Island, Maurelle Island and Sonora Island, all of Bute Inlet. The Western Boundary of the U.S. side in the Strait of Juan de Fuca is N 48 7′16″, W123 17′15″ in a straight line to the Canadian side at N 48 24′40″, 123 17′38″. * * * * * 226.224 * NA * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). PART 226—DESIGNATED CRITICAL HABITAT 5. The authority citation for Part 226 continues to read as follows: ■ mstockstill on DSK3G9T082PROD with RULES Authority: 16 U.S.C. 1533. 6. In § 226.224: a. Revise the section heading; b. Remove the entry for canary rockfish in the table in paragraph (a); and ■ c. Revise paragraphs (b), (c), and (d). The revisions read as follows: ■ ■ ■ VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 § 226.224 Critical habitat for the Puget Sound/Georgia Basin DPS of yelloweye rockfish (Sebastes ruberrimus), and Bocaccio (S. paucispinus). * * * * * (b) Critical habitat boundaries. In delineating nearshore (shallower than 30 m (98 ft)) areas in Puget Sound, we define critical habitat for bocaccio, as depicted in the maps below, as occurring from the shoreline from extreme high water out to a depth no greater than 30 m (98 ft) relative to mean lower low water. Deepwater critical PO 00000 Frm 00090 Fmt 4700 Sfmt 4700 habitat for yelloweye rockfish and bocaccio occurs in some areas, as depicted in the maps below, from depths greater than 30 m (98 ft). The critical habitat designation includes the marine waters above (the entire water column) the nearshore and deepwater areas depicted in the maps in this section. (c) Essential features for juvenile bocaccio. (1) Juvenile settlement habitats located in the nearshore with substrates such as sand, rock and/or E:\FR\FM\23JAR1.SGM 23JAR1 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES cobble compositions that also support kelp are essential for conservation because these features enable forage opportunities and refuge from predators and enable behavioral and physiological changes needed for juveniles to occupy deeper adult habitats. Several attributes of these sites determine the quality of the area and are useful in considering the conservation value of the associated feature and in determining whether the feature may require special management considerations or protection. These features also are relevant to evaluating the effects of an action in an ESA section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include: (i) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities; and VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 (ii) Water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities. (2) Nearshore areas are contiguous with the shoreline from the line of extreme high water out to a depth no greater than 30 meters (98 ft) relative to mean lower low water. (d) Essential features for adult bocaccio and adult and juvenile yelloweye rockfish. Benthic habitats and sites deeper than 30 m (98 ft) that possess or are adjacent to areas of complex bathymetry consisting of rock and or highly rugose habitat are essential to conservation because these features support growth, survival, reproduction, and feeding opportunities by providing the structure for rockfish to avoid predation, seek food and persist for decades. Several attributes of these sites determine the quality of the habitat PO 00000 Frm 00091 Fmt 4700 Sfmt 4700 7721 and are useful in considering the conservation value of the associated feature, and whether the feature may require special management considerations or protection. These attributes are also relevant in the evaluation of the effects of a proposed action in an ESA section 7 consultation if the specific area containing the site is designated as critical habitat. These attributes include: (1) Quantity, quality, and availability of prey species to support individual growth, survival, reproduction, and feeding opportunities; (2) Water quality and sufficient levels of dissolved oxygen to support growth, survival, reproduction, and feeding opportunities; and (3) The type and amount of structure and rugosity that supports feeding opportunities and predator avoidance. BILLING CODE 3510–22–P E:\FR\FM\23JAR1.SGM 23JAR1 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockflsh DPSs Strait of Georgia Area u.s. This map does not si!CMI' Department Df Defense (DOD) sites detennlned to be Ineligible lbr designation ""'-- Shoreline Final Dilepwllfer CH (Bocacclo and Yellowaye Rockfish) ~ Final Nevllhofe CH (Bocacclo) mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 na excluded erees essociated wllll Indian lands end certain additional DOD slles; see !he reguleiDry text fer • deKriplklll oflhesellnel exduded B!MS. A11111dcan Indian ReHmttlon 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00092 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.003</GPH> 7722 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7723 Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockfish DPSs 0 1.25 2.5 I I I I I I I I I 0 0.751.6 ~sharellne - lbis map does nat show u.s. Depanment of Defense (DOD) sites determined to be Ineligible for deslgnallon nor excluded areas associllled willllndilln lands and certain addilional COD sites; see the regulatory text far a deserlpllon Qf these final excluded lllell$. u.s. 1 canadian Boundary American Indian Reservation ~ Flnat Nea...hore CH (Bocacclo) mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 Final Deepwater CH (Bocacclo and Yelloweye Rockflah) 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00093 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.004</GPH> = 7724 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocacclo and Yelloweye Rockftsh DPSs Bellingham and Samlah Bay Area 1bls map does not show u.s. Depalfment of Defense (000) sites determinod to be Ineligible dft!gnlllion nor excluded areas associated wilh Indian lands and certain addillonal DOD sites: saalhe regulalay text fer a deSCI\)IIon of lhasa final excluded areas. ..,.__ Shoreline mstockstill on DSK3G9T082PROD with RULES American Indian Reservation Final Deepwater CH (Bocacclo and Yelloweye Rockfish) fZ!2J Final Nea1'8hore CH (Bocacclo) VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00094 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.005</GPH> m - Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7725 Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockfish DPSs ... . • • 411•15'N Strait ofJuan de Fuca \.1 . tl . • • • .• ""-- Shoreline = u.s. I Canadian Boundary Amtrlcan Indian RaNtVatlon This map does not show u.s. Department of Defense (000) $lies dotermiled to be ileligible br design lllioo mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 Final Deepwater CH (Bocacclo and Yelloweye Rockfish) 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00095 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.006</GPH> nor excluded areas associated with Indian lands and cenail addlllonal 000 sites; see Ill e regulatory text for a description of lllese final excluded areas. ~Final Nearsho~e CH (Bocacclo) Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocaccioand Yelloweye RockFISh DPSs North Whidbey Area This map does not si!CMI' u.s. Department Df Defense (DOD) sites detennlned to be Ineligible lbr designation ....,__ Shoreline American Indian Reservation ~ Final Nearahcmt CH (Bocacclo) • Final Deepwater CH (Bocacclo and Yeltoweye Rockfleh) mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00096 Fmt 4700 na excluded arees associated wllll Indian lands and certain additional DOD sites; see !he reguleiDry text fer e deKriplkln Dflhesellnel exduded - · Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.007</GPH> 7726 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7727 Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockfish DPSs North ....-------..... Central Puget Sound Area mstockstill on DSK3G9T082PROD with RULES VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00097 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.008</GPH> This map does not show u.s. Depanment of Defense (DOD) sites determined to be Ineligible for designation nor excluded areas associated wilh Indian lands and certain addlllcnal DOD sites; see the regulatory text b" a dosmpllon of these fimll exduded .ees. '"""--Shoreline -American Indian Renrvatlon ~ Final NeanJhore CH (Bocacclo) Final Deepwater CH (Bacacclo and Yelloweye Rocktlsh} 7728 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockfish DPSs South central Puget SOUnd Area mstockstill on DSK3G9T082PROD with RULES VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00098 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.009</GPH> This map does not show u.s. Depanment of Defense (DOD) Giles determined to be ineligible for de6ignalion nor excluded 8lfi8S associated with Indian lands and certain additional DOD shes; see lhe ll!lgulatmy leo<! for a description of lhese final excluded areas. -..-- Shoreline American Indian ReMrYation ~Final Nearshore CH (Bocacclol -Final Deepwater CH (Bocacc:io and Yelloweye Rockfish) Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocaccioand Yelloweye Rockfish DPSs North Hood Canal Anta ""-- Shoreline lbls map does not shw U.S. Depallment of Defense (DOD) sibls datennined tD be ineligible far designlllion American Indian Reurvatlon ~ Final Nearshore CH (Bocacclo) Final Deepwater CH (Bocacclo and Yelloweye Rockfish) 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00099 Fmt 4700 nor excluded erees essoclab!d wilh Indian iands and celtain additional DOD sites; see tile regulatory text ror a description oflll- final excluded aRias. Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.010</GPH> mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 7729 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Final Critical Habitat (CH) for the Bocaccio and Yelloweye Rockfish DPSs South Hood Canal Anta This map does not show u.s. Department of Defense (DOD) si1es determined ID be Ineligible br deslgndon nor excluded 11r11115 -lilted wilh lndilln illnds 11nd cenaln addlllonal DOD sites; see llle regulatary text far a descr~Piicln of !IIese final excluded area ..,__Shoreline - Amertcan Indian Reservation ~ Final Ne81'8horv CH (Bocacclo) mstockstill on DSK3G9T082PROD with RULES - VerDate Sep<11>2014 Final Deepwater CH (Bocaccloand Yelloweye Rockfl8h) 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00100 Fmt 4700 Sfmt 4725 E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.011</GPH> 7730 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations 7731 mstockstill on DSK3G9T082PROD with RULES Atmospheric Administration (NOAA), Commerce. ACTION: Notification of lobster harvest guideline. 50 CFR Part 665 BILLING CODE 3510–22–C SUMMARY: DEPARTMENT OF COMMERCE RIN 0648–XF155 Pacific Island Fisheries; 2017 Northwestern Hawaiian Islands Lobster Harvest Guideline National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00101 Fmt 4700 Sfmt 4700 NMFS establishes the annual harvest guideline for the commercial lobster fishery in the Northwestern Hawaiian Islands for calendar year 2017 at zero lobsters. DATES: January 23, 2017. FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR Sustainable Fisheries, telephone: 808–725–5170. E:\FR\FM\23JAR1.SGM 23JAR1 ER23JA17.012</GPH> National Oceanic and Atmospheric Administration [FR Doc. 2017–00559 Filed 1–19–17; 8:45 am]

Agencies

[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Rules and Regulations]
[Pages 7711-7731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00559]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223, 224, and 226

[Docket No. 160524463-7001-02]
RIN 0648-XE657


Endangered and Threatened Species; Removal of the Puget Sound/
Georgia Basin Distinct Population Segment of Canary Rockfish From the 
Federal List of Threatened and Endangered Species and Removal of 
Designated Critical Habitat, and Update and Amendment to the Listing 
Descriptions for the Yelloweye Rockfish DPS and Bocaccio DPS

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

ACTION: Final rule.

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SUMMARY: We, NMFS, are issuing a final rule to remove the Puget Sound/
Georgia Basin canary rockfish (Sebastes pinniger) Distinct Population 
Segment (DPS) from the Federal List of Threatened and Endangered 
Species and remove its critical habitat designation. We proposed these 
actions based on newly obtained samples and genetic analysis that 
demonstrates that the Puget Sound/Georgia Basin canary rockfish 
population does not meet the DPS criteria and therefore does not 
qualify for listing under the Endangered Species Act (ESA). Following 
public and peer review of the proposed rule and supporting scientific 
information, this final rule implements the changes to the listing and 
critical habitat for canary rockfish.
    We also update and amend the listing description for the Puget 
Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) DPS based on a 
geographic description to include fish within specified boundaries. 
Further, although the current listing description is not based on 
boundaries, with this final rule we are also correcting a descriptive 
boundary for the DPS depicted on maps to include an area in the 
northern Johnstone Strait and Queen Charlotte Channel in waters of 
Canada consistent with newly obtained genetic information on yelloweye 
rockfish population grouping.
    We also update and amend the listing description for the bocaccio 
DPS based on a geographic description and to include fish within 
specified boundaries.

DATES: This final rule is effective on March 24, 2017.

FOR FURTHER INFORMATION CONTACT: Dan Tonnes, NMFS, West Coast Region, 
Protected Resources Division, 206-526-4643; or Chelsey Young, NMFS, 
Office of Protected Resources, 301-427-8491.

SUPPLEMENTARY INFORMATION: 

Background

    On April 9, 2007, we received a petition from Mr. Sam Wright 
(Olympia, Washington) to list DPSs of five rockfish species (yelloweye, 
canary, bocaccio, greenstriped and redstripe) in Puget Sound, as 
endangered or threatened species under the ESA and to designate 
critical habitat. We found that this petition did not 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 Mr. Wright presenting 
information that was not included in the April 2007 petition, and 
requesting reconsideration of the decision not to initiate a review of 
the species' status. We considered the supplemental information as a 
new petition and concluded that there was enough information in this 
new petition to warrant conducting status reviews of these five 
rockfish species. The status review was initiated on March 17, 2008 (73 
FR 14195) and completed in 2010 (Drake et al., 2010).
    In the 2010 status review, the Biological Review Team (BRT) used 
the best scientific and commercial data available at that time, 
including environmental and ecological features of the Puget Sound/
Georgia Basin, but noted that the limited genetic and demographic data 
for the five petitioned rockfish species populations created some 
uncertainty in the DPS determinations (Drake et al., 2010). The BRT 
assessed genetic data from the Strait of Georgia (inside waters of 
eastern Vancouver Island) for yelloweye rockfish (Yamanaka et al., 
2006) that indicated a distinct genetic cluster that differed 
consistently from coastal samples of yelloweye rockfish, but also 
observed that genetic data from Puget Sound were not available for this 
species. The BRT also noted there was genetic information for canary 
rockfish (Wishard et al., 1980) and bocaccio (Matala et al., 2004, 
Field et al., 2009) in coastal waters, but no genetic data for either 
species from inland Puget Sound waters. The BRT found that in spite of 
these data limitations there was other evidence to conclude that each 
noted population of rockfish within inland waters of the Puget Sound/
Georgia

[[Page 7712]]

Basin was discrete from its coastal counterpart.
    Specifically, the BRT noted similar life histories of rockfish and 
based their determinations, in part, on the status review of brown 
rockfish, copper rockfish, and quillback rockfish (Stout et al., 2001) 
and the genetic information for those species that supported separate 
DPSs for inland compared to coastal populations (Drake et al., 2010). 
Thus, based on information related to rockfish life history, genetic 
variation among populations, and the environmental and ecological 
features of Puget Sound and the Georgia Basin, the BRT identified Puget 
Sound/Georgia Basin DPSs for yelloweye rockfish, canary rockfish, and 
bocaccio, and a Puget Sound proper DPS for greenstriped rockfish and 
redstripe rockfish (Drake et al., 2010).
    Informed by the BRT recommendations and our interpretation of best 
available scientific and commercial data, on April 28, 2010, we listed 
the Puget Sound/Georgia Basin DPSs of yelloweye rockfish and canary 
rockfish as threatened under the ESA, and the Puget Sound/Georgia Basin 
DPS of bocaccio as endangered (75 FR 22276). The final critical habitat 
rule for the listed DPSs of rockfishes was published in the Federal 
Register on November 1, 2014 (79 FR 68041). We determined that 
greenstriped rockfish (S. elongatus) and redstripe rockfish (S. 
proriger) within Puget Sound proper each qualified as a DPS, but these 
DPSs were not at risk of extinction throughout all or a significant 
portion of their ranges (Drake et al., 2010).
    In 2013, we appointed a recovery team and initiated recovery 
planning for the listed rockfish species. Through the process of 
recovery planning, priority research and recovery actions emerged. One 
such action was to seek specific genetic data for each of these 
rockfish species to better evaluate and determine whether differences 
exist in the genetic structure of the listed species' populations 
between inland basins where the DPSs occur and the outer coast. 
Analysis of the geographical distribution of genetic variation is a 
powerful method of identifying discrete populations (Drake et al., 
2010); thus, genetic analysis provides useful information to address 
the uncertainties associated with the limited information that informed 
our initial discreteness determinations for yelloweye rockfish, canary 
rockfish and bocaccio.
    In 2014 and 2015, we partnered with the Washington Department of 
Fish and Wildlife (WDFW), several local fishing guides, and Puget Sound 
Anglers to collect samples between the different basins of the Puget 
Sound/Georgia Basin DPSs area and the outer coast. We collected 
biological samples for genetic analysis several ways. Over the course 
of 74 fishing trips, biological samples were gathered from listed 
rockfishes using hook-and-line recreational fishing methods in Puget 
Sound and the Strait of Juan de Fuca. Additional samples were gathered 
from archived sources from Fisheries and Oceans Canada, the NMFS 
Southwest Fisheries Science Center's Fisheries Resource Division, and 
the NMFS Northwest Fisheries Science Center's West Coast groundfish 
bottom trawl survey.
    Samples collected from these sources were used to examine the 
population structure for each species. Population structure was 
examined using three methods: Principal components analysis (PCA), 
calculation of FST (fixation index--which is a measure of 
population differentiation) among geographic groups, and a population 
genetics based model clustering analysis (termed STRUCTURE) (NMFS 
2016a).
    In 2015, we announced a 5-year review (80 FR 6695; February 6, 
2015) for the three rockfish DPSs. The 5-year review was completed on 
May 5, 2016 (NMFS 2016a), and is available at: http://www.westcoast.fisheries.noaa.gov/publications/protected_species/other/rockfish/5.5.2016_5yr_review_report_rockfish.pdf. To complete the 
review, we collected, evaluated, and incorporated all information on 
the species that has become available since April 2010, the date of the 
listing, including the 2014 final critical habitat designation and 
newly obtained samples and analysis of genetic information (Ford 2015, 
NMFS 2016a).
    NMFS' Puget Sound/Georgia Basin rockfish BRT reviewed the results 
from the new genetic information. Their recommendations (Ford 2015) 
informed and were further evaluated during the five-year review (NMFS 
2016a) which confirmed the DPS identity and listing status for 
yelloweye rockfish and bocaccio but concluded that the canary rockfish 
of the Puget Sound/Georgia Basin do not meet the criteria to be 
considered a DPS.

Policies for Delineating and Listing Species Under the ESA

    Under the ESA, the term ``species'' means a species, a subspecies, 
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-
USFWS policy clarifies the Services' interpretation of the phrase 
``Distinct Population Segment,'' or DPS (61 FR 4722; February 7, 1996). 
The DPS Policy requires the consideration of two elements when 
evaluating whether a vertebrate population segment qualifies as a DPS 
under the ESA: (1) Discreteness of the population segment in relation 
to the remainder of the species/taxon; and, if discrete, (2) the 
significance of the population segment to the species/taxon to which it 
belongs. Thus, under the DPS policy a population segment is considered 
a DPS if it is both discrete from other populations within its taxon 
and significant to its taxon.
    A population 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; 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 (61 FR 4722; 
February 7, 1996). According to the policy, quantitative measures of 
genetic or morphological discontinuity can be used to provide evidence 
for item (1) above.
    Consideration of the significance of a discrete population may 
include, but is not limited to the following conditions: (1) 
Persistence of the discrete segment in an ecological setting unusual or 
unique for the taxon; (2) evidence that loss of the discrete segment 
would result in a significant gap in the range of the taxon; (3) 
evidence that the discrete segment represents the only surviving 
natural occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historical range; or (4) evidence 
that the discrete segment differs markedly from other populations of 
the species in its genetic characteristics.
    The ESA gives us clear authority to make listing determinations and 
to revise the Federal list of endangered and threatened species to 
reflect these determinations. Section 4(a)(1) of the ESA authorizes us 
to determine by regulation whether ``any species,'' which is defined to 
include species, subspecies, and DPSs, is an endangered species or a 
threatened species based on certain factors. Review of a species' 
status may be commenced at any time, either on the Services' own 
initiative--through a status review or in connection with a five-year 
review under Section 4(c)(2)--or in response to a petition. Because a 
DPS is not a scientifically recognized entity, but rather one created 
under the language of the ESA and effectuated through our DPS Policy 
(61 FR 4722; February 7, 1996), we have some discretion to determine 
whether populations of a species should be

[[Page 7713]]

identified as DPSs, and, based upon their range and propensity for 
movement, what boundaries should be recognized for a DPS. Section 
4(c)(1) of the ESA gives us authority to update the Federal list of 
threatened and endangered species to reflect these determinations. This 
can include revising the list to remove a species or reclassify the 
listed entity.
    Under sections 4(c)(1) and 4(a)(1) of the ESA the Secretary shall 
undertake a five-year review of a listed species and consider, among 
other things, whether a species' listing status should be continued. 
Pursuant to implementing regulations at 50 CFR 424.11(d), a species 
shall be removed from the list if the Secretary of Commerce determines, 
based on the best scientific and commercial data available after 
conducting a review of the species' status, that the species is no 
longer threatened or endangered because of one or a combination of the 
section 4(a)(1) factors. A species may be delisted only if such data 
substantiate that it is neither endangered nor threatened for one or 
more of the following reasons:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the Services is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error (50 CFR 424.11(d)).
    To make our final listing determinations, we reviewed all 
information provided during the 60-day public comment period on the 
proposed rule. Additionally we reviewed additional genetic analysis 
developed by the Northwest Fisheries Science Center (NWFSC) after the 
proposed rule (Andrews and Nichols 2016). This additional information 
supplemented, and supported, the information presented in the proposed 
rule. Where new information was received we have reviewed it and 
presented our evaluation in this final rule.

Proposed Rule

    Informed by the BRT recommendations (Ford 2015), our interpretation 
of best available scientific and commercial data, and the conclusions 
of the five-year review, on July 6, 2016 we issued a proposed rule (81 
FR 43979) to remove the Puget Sound/Georgia Basin canary rockfish 
(Sebastes pinniger) which included the following findings for each 
listed rockfish species.

Yelloweye Rockfish

    Several different analytical methods indicated significant genetic 
differentiation between the inland and coastal samples of yelloweye 
rockfish at a level consistent with the limited genetic data for this 
species (Yamanaka et al., 2006) that were available at the time of the 
2010 status review. The BRT concluded that this new genetic information 
represents the best available scientific and commercial data and are 
consistent with and confirm the existence of an inland population of 
Puget Sound/Georgia Basin yelloweye rockfish that is discrete from 
coastal yelloweye rockfish (Ford 2015, NMFS 2016a). In addition, this 
genetic information demonstrates that yelloweye rockfish from Hood 
Canal are genetically differentiated from other Puget Sound/Georgia 
Basin fish, indicating a previously unknown degree of population 
differentiation within the DPS (Ford 2015, NMFS 2016a).
    The BRT also found that new genetic information from Canada 
demonstrates that yelloweye rockfish occurring in the northern 
Johnstone Strait and Queen Charlotte Channel clustered genetically with 
yelloweye rockfish occurring in the northern Strait of Georgia, the San 
Juan Islands, and Puget Sound (Ford 2015). This is consistent with 
additional genetic analysis identifying a population of yelloweye 
rockfish inside the waters of eastern Vancouver Island (Yamanaka et. 
al. 2006, COSEWIC 2008, Yamanaka et al., 2012, Siegle et al., 2013). 
Based on this information and the five-year review, we proposed to 
correct the previous description of the northern boundary of the 
threatened Puget Sound/Georgia Basin yelloweye rockfish (S. ruberrimus) 
DPS to include this area. We also proposed to update and amend the 
description of the DPS as fish residing within certain boundaries 
(including this geographic area farther north in the Strait of Georgia 
waters in Canada). We proposed this change because this description 
better aligns with yelloweye rockfish life-history and their sedentary 
behavior as adults, rather than the current description of fish 
originating from the Puget Sound/Georgia Basin.
    In the five-year review, our analysis of the ESA section 4(a)(1) 
factors found that the collective risk to the persistence of the Puget 
Sound/Georgia Basin DPS of yelloweye rockfish has not changed 
significantly since our final listing determination in 2010 (75 FR 
22276; April 28, 2010), and they remain listed as threatened (NMFS 
2016a).

Canary Rockfish

    The same analytical methods (described in Ford 2015, NMFS 2016a and 
Andrews and Nichols 2016) as used for yelloweye rockfish were used to 
analyze population structure in canary rockfish. These analyses 
indicate a lack of genetic differentiation of canary rockfish between 
coastal and inland Puget Sound/Georgia Basin samples. FST 
values, a metric of population differentiation, among groups were not 
significantly different from zero among geographic regions, and 
STRUCTURE analysis did not provide evidence supporting population 
structure in the data. None of these analyses provided any evidence of 
genetic differentiation between canary rockfish along the coast from 
the canary rockfish within the boundaries of the Puget Sound/Georgia 
Basin DPS (Ford 2015, NMFS 2016a, Andrews and Nichols 2016).
    The BRT noted that the very large number of loci provided 
considerable power to detect differentiation among sample groups and 
concluded that the lack of such differentiation indicated that it is 
unlikely the inland Puget Sound/Georgia Basin samples are discrete from 
coastal areas (Ford 2015). In the context of this newly obtained 
genetic information, the BRT considered whether other factors that 
supported the original discreteness determination, such as oceanography 
and ecological differences among locations, continue to support a 
finding of discreteness for this population (Ford 2015). In considering 
this newly obtained genetic data in the context of the other evidence, 
the BRT found that their original interpretation of the scientific data 
informing discreteness is no longer supported (Ford 2015). Rather, they 
concluded that the lack of genetic differentiation indicates sufficient 
dispersal to render a discreteness determination based on environmental 
factors implausible. The BRT found that current genetic data evaluated 
and interpreted in the context of all available scientific information 
now provides strong evidence that canary rockfish of the Puget Sound/
Georgia Basin are not discrete from coastal area canary rockfish. Based 
on the BRT findings, the five-year review,

[[Page 7714]]

and best available science and commercial information, and in 
accordance with the DPS policy, we determined that the canary rockfish 
of the Puget Sound/Georgia Basin did not meet the criteria to be 
considered a DPS. Rather, the new genetic data reveal that canary 
rockfish of the Puget Sound/Georgia Basin are part of the larger 
population occupying the Pacific coast (Ford 2015, NMFS 2016a, Andrews 
and Nichols 2016).
    Canary rockfish of the Pacific coast was declared overfished in 
2000 and a rebuilding plan under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) was put in place 
in 2001. NMFS determined the stock to be ``rebuilt'' in 2015 (Thorson 
and Wetzel 2015, NMFS 2016b).
    Based on the discussion above and the recommendation of the five-
year review, we proposed to remove Puget Sound/Georgia Basin canary 
rockfish from the Federal List of Threatened and Endangered Species 
because the new genetic data evaluated and interpreted in the context 
of all best available science indicate they are not a discrete 
population (81 FR 43979; July 6, 2016). Under section 4(c)(1) of the 
ESA and the implementing regulations at 50 CFR 424.11(d)(3), we may 
delist canary rockfish if, among other things, subsequent investigation 
demonstrates that our interpretation of best scientific or commercial 
information was in error. After considering this newly obtained genetic 
data in the context of the other evidence supporting discreteness, we 
determined that our original interpretation of discreteness for Puget 
Sound/Georgia Basin canary rockfish is no longer supported and was in 
error. Based on this reasoning, there is no need for a post-delisting 
monitoring plan.

Bocaccio

    Bocaccio were also evaluated by the BRT (Ford 2015) and during the 
five-year review (NMFS 2016a). Bocaccio are particularly rare within 
the DPS area and thus the NWFSC was only able to obtain three samples 
from within the DPS area for the genetic analysis. The BRT determined 
that this is not sufficient information to support a change to our 
prior status review and listing determination that Puget Sound/Georgia 
Basin bocaccio are discrete from coastal fish (Ford 2015).
    The BRT noted that bocaccio have a propensity for greater adult 
movement than more benthic rockfish species, similar to the case for 
canary rockfish. The BRT considered that the lack of genetic 
differentiation between coastal and Puget Sound/Georgia Basin canary 
rockfish might suggest a similar lack of genetic differentiation for 
bocaccio because of similarities in the life history of the two 
species. Nevertheless, the BRT concluded that the new information was 
not sufficient to change the conclusions of the previous BRT documented 
in Drake et al., (2010) or suggest a change in listing status (Ford 
2015). This is consistent with the five-year review recommendation 
(NMFS 2016a) and is based upon best available scientific data and 
commercial information.
    However, similarly to yelloweye rockfish, we proposed to update and 
amend the listing description of the bocaccio DPS to describe 
boundaries to include fish residing within the Puget Sound/Georgia 
Basin rather than fish originating from the Puget Sound/Georgia Basin.
    In the five-year review, our analysis of the ESA section 4(a)(1) 
factors found that the collective risk to the persistence of the Puget 
Sound/Georgia Basin DPS of bocaccio has not changed significantly since 
our final listing determination in 2010 (75 FR 22276; April 28, 2010), 
and they remain listed as endangered (NMFS 2016a).

Peer Review and Public Comment

    The scientific information considered by the BRT and summarized in 
our five-year review (NMFS 2016a) was peer reviewed and the proposed 
rule was subject to public comment. Following those reviews, there are 
no changes to the actions as proposed.

Summary of Comments

    On July 6, 2016, we solicited comments during a 60-day public 
comment period from all interested parties including the public, other 
concerned governments and agencies, the scientific community, industry, 
and other interested parties on the proposed rule (81 FR 43979).
    We received four public comments, and three peer reviews on the 
proposed rule. Summaries of the substantive comments received, and our 
responses, are provided below and organized by topic.

Comments on Sampling and Genetic Analysis

    Two of the three peer reviewers had questions and observations 
about the genetic analyses for both canary rockfish and yelloweye 
rockfish provided in the five-year review. NOAA's Northwest Fisheries 
Science Center (NWFSC) reviewed the genetic and sampling questions and 
provided responses within a memorandum (Andrews and Nichols 2016). This 
memorandum also reported on additional genetic analysis of samples 
collected in 2014 and 2015 that had not yet been analyzed and available 
in the five-year review (NMFS 2016a) or by the BRT (2015).
    The results of the updated genetic analysis are consistent with and 
did not change the outcome of the genetic assessment presented to the 
Biological Review Team in November 2015 (Ford 2015) and in the five-
year review (NMFS 2016a) that informed the proposed rule. The 
information from the new analysis (Andrews and Nichols 2016) is 
included in the responses below.
    Comment 1: Two of the three scientific peer reviewers and two 
commenters agreed that canary rockfish sampled from the Puget Sound/
Georgia Basin are not genetically differentiated from canary rockfish 
sampled outside of this area.
    Response: We agree.
    Comment 2: One peer reviewer did not agree that there was 
sufficient evidence to support our finding that canary rockfish are not 
genetically differentiated.
    Response: We disagree with the peer reviewer based on the analysis 
provided in the five-year review (NMFS 2016a) and BRT report (Ford 
2015) in addition to the supplemental analysis provided by Andrews and 
Nichols (2016) and elaborated in this final rule. The best available 
information provides strong evidence that canary rockfish sampled in 
the Puget Sound/Georgia Basin are not genetically differentiated from 
coastal canary rockfish.
    Comment 3: Regarding the yelloweye rockfish and canary rockfish 
genetic analysis, one reviewer suggested that analytical methods 
conducted by the NWFSC (such as FST and STRUCTURE) should be described 
in our final rule.
    Response: We agree. While additional information on these analyses 
was included in documents supporting the proposed rule (81 FR 43979; 
July 6, 2016), we include clarifying information in this final rule as 
well (and as detailed in Andrews and Nichols 2016). The NWFSC conducted 
Principal Component Analysis (PCA), STRUCTURE, and FST 
analyses for yelloweye rockfish and canary rockfish, which are detailed 
in Andrews and Nichols (2016). These analyses for yelloweye rockfish 
support our findings that fish collected in the Puget Sound/Georgia 
Basin DPS are discrete from yelloweye rockfish collected on the outer 
coast. Similar analyses for canary rockfish support our findings that 
there is no discrete Puget Sound/Georgia

[[Page 7715]]

Basin population (Andrews and Nichols 2016).
    Comment 4: One peer reviewer questioned the relatively low 
proportion of overall variation explained by PCA one and PCA two 
described in our five-year review and the proposed rule.
    Response: For yelloweye rockfish, the NWFSC used over 5,000 
Restriction Site Associated DNA Sequencing loci in the analyses 
presented in the five-year review and over 7,000 loci in its final 
dataset (Andrews and Nichols 2016). There is a large amount of 
variation possible among this many loci leading to a relatively low 
proportion of the variance explained by the first two principal 
component scores.
    Comment 5: One reviewer questioned how the number of samples 
collected and analyzed by the NWFSC affects the estimate of statistical 
power and the ability to detect genetic differentiation for yelloweye 
rockfish and canary rockfish.
    Response: The NWFS did not conduct power analyses. Andrews and 
Nichols (2016) state that ``. . . the magnitude of the FST confidence 
intervals, and the upper bound of those confidence intervals provide 
compelling evidence that differentiation among the sampled regions for 
canary rockfish is not significantly different from zero, and in many 
cases orders of magnitude lower than that observed for yelloweye 
rockfish.'' This analysis bolsters the conclusion that canary rockfish 
are not genetically differentiated between the Puget Sound and the 
outer coast.
    Comment 6: One peer reviewer suggested that we provide details 
about the PCA scores, and which loci loaded most prominently onto those 
principal components.
    Response: The three analyses conducted by the NWFSC used this 
information to inform the integrative comparisons among individuals 
(PCA), population assignments (STRUCTURE) and statistical comparisons 
of FST values as documented in the five-year review and 
updated in Andrews and Nichols (2016). These integrative comparisons 
further support the evidence of genetic differentiation for yelloweye 
rockfish, and the lack thereof for canary rockfish.
    Comment 7: One peer reviewer stated that our proposal to delist 
canary rockfish should have taken into account environmental and/or 
life history characteristics that would ``produce'' a seemingly 
genetically homogeneous population, and questioned whether it is 
logical that yelloweye constitute a DPS but canary do not.
    Response: Our proposal to delist canary rockfish (81 FR 43979; July 
6, 2016), in addition to the five-year review (NMFS 2016a), did discuss 
the known life-history characteristics of canary rockfish and yelloweye 
rockfish. Yelloweye rockfish have been found to have limited movements 
as adults (Hannah and Rankin 2011), while canary rockfish are known to 
move over large distances at both short and long time scales (DeMott 
1983, Lea et al., 1999, Love et al., 2002, Hannah and Rankin 2011). 
This life-history characteristic suggests that there is limited 
probability of adult yelloweye from Puget Sound/Georgia Basin 
reproducing with adults from the outer coast, and therefore providing 
the necessary conditions for genetic differentiation to develop over 
time. The relatively quick and long-range movements of some adult 
canary rockfish suggest the high potential for breeding among 
individuals throughout their range and thus leading to a panmictic 
population (Andrews and Nichols 2016).
    A second relevant life-history trait supporting discreteness and 
identification of yelloweye rockfish as a DPS, in contrast to canary 
rockfish, is the timing of larval release. In waters off British 
Columbia, yelloweye rockfish release larvae from April to September 
with peaks in May and June. This timing of larval release could 
significantly affect the dispersal and/or retention of larval rockfish 
depending on the prevailing oceanographic currents and freshwater flows 
into and out of the Puget Sound/Georgia Basin (Andrews and Nichols 
2016). Canary rockfish experience peak release of larvae from February 
to March (Love et. al. 2002) and thus this different release period may 
influence dispersal of larvae because of different oceanic and current 
conditions.
    Comment 8: A peer reviewer asked if there was any information 
regarding where canary rockfish reproduction takes place, whether 
canary rockfish spawn in aggregates, and if they have philopatric 
tendencies (a behavior where individuals return to their birthplace to 
breed).
    Response: We are not aware of information regarding where canary 
rockfish spawn on the Pacific coast or Puget Sound, but note that in 
locations where they are observed as gravid, it is logical that they 
release larvae nearby. Similarly, we are not aware of information 
regarding if canary rockfish mate or release larvae in aggregates.
    Comment 9: One peer reviewer asked if our proposal to delist canary 
rockfish accounted for the possibility that they were historically 
depleted in local waters, as documented in the 2010 Status Review 
(Drake et al., 2010), and replaced by the immigration of canary 
rockfish from the Pacific coast.
    Response: We do not have samples of canary rockfish from within the 
Puget Sound/Georgia Basin prior to their listing in 2010--thus it is 
not possible to test the scenario hypothesized by the reviewer 
genetically. However, it is unlikely that the process of recruitment or 
immigration of individual canary rockfish to/from the Puget Sound/
Georgia Basin would have changed as theorized by the peer reviewer 
(Andrews and Nichols 2016). If recruitment or immigration of canary 
rockfish from the outer coast to the Puget Sound/Georgia Basin occurs 
today, which the genetic analysis suggests (see Figs. 2b, 4c and 6 and 
Table 2 in Andrews and Nichols 2016), it was very likely happening 
historically. The historical overfishing of canary rockfish in Puget 
Sound/Georgia Basin would not have altered the process of adults or 
larval dispersal of canary rockfish from the Pacific Coast into Puget 
Sound. If larval/juvenile canary rockfish dispersal among the two 
regions occurred historically, it is unlikely that canary rockfish in 
Puget Sound/Georgia Basin would have been genetically differentiated 
and yet the sampling would have missed these fish (Andrews and Nichols 
2016).
    Comment 10: One peer reviewer asked how much genetic exchange is 
going on between the outer coast and the Puget Sound, and speculated 
that if canary rockfish are extirpated from the Puget Sound/Georgia 
Basin, that the population may not rebuild if there is limited movement 
of fish from the Pacific coast.
    Response: The genetic analysis indicates that genetic exchange of 
canary rockfish in the Pacific coast and the Puget Sound/Georgia Basin 
occurs frequently enough to develop one population across these areas 
(Andrews and Nichols 2016). For these reasons, it is unlikely that a 
hypothesized extirpation of canary rockfish within the Puget Sound/
Georgia Basin would occur so long as there are canary rockfish outside 
of the Puget Sound/Georgia Basin that move amongst these areas.
    Comment 11: One peer reviewer disagreed that genetic information 
for canary rockfish, as detailed in the five-year review (NMFS 2016a) 
and BRT memo (Ford 2015), indicate ``strong'' evidence that fish 
sampled from the Puget Sound/Georgia Basin are not discrete from 
coastal fish. The reviewer questioned this characterization because of 
sample size, sample integrity, and sample representativeness of canary 
rockfish collected in this research. In addition, the reviewer 
questioned the

[[Page 7716]]

reliance on principal coordinate cluster plots to portray genetic 
similarity because of the potential for misinterpretation of the 
results. The reviewer questioned why STRUCTURE plots and analysis of 
molecular variance results were not provided in the five-year review 
and asked what the average magnitude of FST values for 
canary rockfish were compared to yelloweye rockfish.
    Response: The STRUCTURE and FST information was included 
in supporting documents, and we agree that additional information would 
be useful to further explain the genetic data. Updated genetic analysis 
(based on an analysis of additional samples) and additional explanatory 
text are now documented in Andrews and Nichols (2016). The BRT 
considered not only the PCA, but also results from STRUCTURE and tests 
for pairwise population differentiation based on FST 
(Andrews and Nichols 2016). Those analyses were conducted on the number 
of samples outlined in the status review published in May 2016, but 
have since also been extended to additional samples with the same 
conclusions (see Andrews and Nichols 2016). All of these analyses show 
clear evidence for population structure in yelloweye rockfish, but not 
in the canary rockfish samples.
    Comment 12: One peer reviewer stated that a primary reason the 
yelloweye rockfish genetic analysis shows significant differentiation 
relative to canary rockfish is because we were able to collect samples 
of yelloweye rockfish samples in Canada and Hood Canal, in addition to 
the Central Puget Sound and from the Georgia Basin. The reviewer noted 
that the NWFSC was not able to collect canary rockfish samples from 
Canada (the Georgia Basin) and Hood Canal, and asked what the genetic 
analysis may have shown if samples could have been collected from these 
areas.
    Response: We were unable to collect canary rockfish samples in Hood 
Canal. We also searched for existing canary rockfish samples by 
contacting the Department of Fisheries and Oceans Canada, but were not 
able to find any from Canadian waters. Based on the lack of genetic 
differentiation between more geographically disparate locations such as 
the Central Puget Sound (where the NWFSC was able to collect samples) 
and the outer Pacific Coast, we would not expect genetic 
differentiation of canary rockfish if samples from Canadian coastal or 
inland waters were included (Andrews and Nichols 2016).
    As previously noted, canary rockfish have been documented to travel 
long distances, thus we would also not expect canary rockfish collected 
in Hood Canal to be genetically different even though there is a large 
sill at the entrance of Hood Canal (Drake et al., 2010) that may 
restrict dispersal due to restricted water movement into and out of 
this water body (Andrews and Nichols 2016). As suggested by this 
reviewer, the NWFSC examined the results from the PCA analysis for 
yelloweye rockfish as if we did not have the samples from Hood Canal 
and Canada (Fig. 7 in Andrews and Nichols 2016) and this analysis gives 
the same conclusion--that Puget Sound is significantly differentiated 
from the coastal collections in yelloweye rockfish.
    This conclusion is also supported by other genetic analyses, 
including pairwise differentiation of collections from these more 
limited regions. Therefore it is likely that if there were significant 
genetic differentiation for canary rockfish, the NWFSC would have 
detected it from the samples in Puget Sound and the Pacific coast as 
for yelloweye rockfish sampled in these regions.
    Comment 13: One peer reviewer stated that the absence of observed 
structure in the canary rockfish sample does not necessarily equate to 
the absence of structure in the population and questioned whether or 
not the sampled fish are actually representative of the population.
    Response: There are two reasons we believe the sampled canary 
rockfish are representative of the population. First, the sampling 
design consisted of 74 days of fishing across four regions of the DPS 
(South Puget Sound, Central Puget Sound, Hood Canal and the San Juan 
Islands) and one region outside the DPS (Strait of Juan de Fuca 
including locations near Neah Bay and Sekiu, WA). The sampling 
locations within these regions were derived from the knowledge of 
recreational charter boat captains, recent and past Remotely Operated 
Vehicle (ROV) surveys, and historical recreational catch information to 
target habitats where canary rockfish had been observed. This 
information and the number of sampling days provided ample effort to 
target canary rockfish in each of these regions, and we indeed 
collected canary rockfish from three of these five regions, including 
50 from within the DPS (47 of these samples had sufficient readings 
during sequencing to be used in subsequent analyses) (Andrews and 
Nichols 2016). Second, the genetic sequencing methods used by the NWFSC 
allowed for detailed examination of the genome of each individual 
fish--increasing the power of these analyses to detect differences 
between individuals and differences among regions as compared to 
traditional analyses (Andrews and Nichols 2016).
    Comment 14: One peer reviewer suggested we collect larval canary 
rockfish for additional genetic analysis.
    Response: Given the strength of the genetic analysis we do not 
believe that additional samples from larval rockfish (or any other 
life-stage of canary rockfish) are needed to clarify the lack of 
structure of canary rockfish sampled within the Puget Sound/Georgia 
Basin and the Pacific coast. The samples collected from canary rockfish 
provide ample sample size to support the overall conclusion regarding 
the lack of genetic differentiation discussed in the five-year review 
and the proposal to delist canary rockfish (81 FR 43979; July 6, 2016), 
Ford (2015) and Andrews and Nichols (2016).
    Comment 15: One peer reviewer questioned whether our genetic 
analysis and proposal to delist canary rockfish was potentially 
influenced by potential misidentification of canary rockfish and 
yelloweye rockfish, including misidentification by scuba-divers. The 
reviewer was concerned that canary rockfish used in the genetics 
samples may have actually been yelloweye rockfish, (and vice versa).
    Response: All fish sampled in the genetic study were collected by 
professional fishing charter guides, biologists with NOAA Fisheries and 
the Washington State Department of Fish and Wildlife, thus we are 
confident that all canary rockfish and yelloweye rockfish sampled were 
identified to species correctly. The peer reviewer is correct, however, 
that yelloweye rockfish and canary rockfish look similar and the 
identification of rockfish to species can be difficult (Sawchuk et al., 
2015). If such an incorrect species labeling were to occur within the 
genetic analysis, the analysis itself would have indicated this.

Comments on Species Status and Protections

    Comment 16: Two peer reviewers observed that available information 
indicates that the number of canary rockfish individuals in the Puget 
Sound/Georgia Basin is relatively small. One reviewer acknowledged that 
canary rockfish in the Puget Sound/Georgia Basin do not appear to be a 
DPS, but expressed concern that fish in this area may nonetheless 
become extirpated. Another reviewer stated our decision to propose 
delisting should have been more precautionary because of the ``. . . 
dearth of information for canary rockfish and scarcity of available 
data''

[[Page 7717]]

regarding their abundance. Similarly, in the five-year review we noted 
that six canary rockfish were observed during recent ROV surveys, and 
one peer reviewer asked in how many years of surveys these six fish 
were observed.
    Response: We agree that there is little data regarding canary 
rockfish abundance in the Puget Sound/Georgia Basin, as described in 
our five-year review, and that it appears that canary rockfish in this 
area declined significantly in the latter half of the 20th century (as 
described in Drake et al., 2010). However, the determination to delist 
canary rockfish is based not on abundance information, but rather on 
determining if canary rockfish in the Puget Sound/Georgia Basin meet 
the criteria of a DPS (61 FR 4722; February 7, 1996), which allows them 
to be listed under the ESA.
    Though we are not required to implement a post-delisting monitoring 
plan for canary rockfish, there are research projects underway that 
will help us understand the numbers and distribution of rockfish in the 
Puget Sound, including canary rockfish. We have contracted with the 
Washington State Department of Wildlife to conduct an ROV survey within 
the Puget Sound. This two-year survey will be completed in early 2017 
and data analysis and report writing will likely take a year or two 
after the completion date. This research will eventually provide 
additional data about rockfish abundance and distribution. In our five-
year review we reported that this ROV survey had documented six canary 
rockfish; most of these fish were documented in the first year of the 
survey (2015) because the data from the second year of the survey is 
not yet fully available. In addition to the ROV survey, we have begun 
to seek information on where recreational divers observe juvenile 
yelloweye rockfish, canary rockfish and bocaccio. Similarly, the NWFSC 
is developing a young-of-the-year rockfish monitoring plan for the 
Puget Sound. As this monitoring plan is implemented we will gather 
additional information regarding the abundance and recruitment of 
rockfish, including canary rockfish.
    Comment 17: One peer reviewer stated that the declaration of the 
canary rockfish stock as ``rebuilt'' under the Magnuson-Stevens Act, as 
documented in Thorson and Wetzel (2015) and NMFS (2016b), was a ``major 
consideration for the recommendation to delist'' the Puget Sound/
Georgia Basin DPS.
    Response: The reviewer is incorrect. Our removal of canary rockfish 
of the Puget Sound/Georgia Basin from the Federal List of Threatened 
and Endangered Species is based on the best available science and 
commercial information. In accordance with the DPS Policy (61 FR 4722; 
February 7, 1996), we have determined that the canary rockfish of the 
Puget Sound/Georgia Basin do not meet the criteria to be considered a 
DPS based on genetic information documented in the five-year review 
(NMFS 2016a), Ford (2015) and Andrews and Nichols (2016).
    Comment 18: One peer reviewer stated that information in the five-
year review indicated that canary rockfish are rare in Puget Sound, and 
questioned how they could be declared ``rebuilt'' under the authority 
of the Magnuson-Stevens Act.
    Response: The peer reviewers were not tasked with evaluating the 
previous agency decision to declare canary rockfish of the Pacific 
coast as ``rebuilt'' subject to the criteria defined in the Magnuson-
Stevens Act. Federal canary rockfish stock assessments performed 
pursuant to the Magnuson-Stevens Act do not include data regarding 
canary rockfish in Puget Sound waters within the Puget Sound/Georgia 
Basin. Rather the 2015 canary rockfish stock assessment under the 
Magnuson-Stevens Act was conducted with data collected along the 
Pacific coast (outside of the Puget Sound/Georgia Basin).
    Comment 19: One peer reviewer asked how canary rockfish in the 
Puget Sound/Georgia Basin are going to be protected if they are removed 
from the ESA.
    Response: Since the listing of yelloweye rockfish, canary rockfish 
and bocaccio in 2010, WDFW has changed fisheries regulations for 
several non-tribal commercial fisheries in Puget Sound in order to 
protect rockfish populations. The WDFW closed the active set net, set 
line, and bottom trawl fisheries, and the inactive pelagic trawl and 
bottomfish pot fishery. As a precautionary measure, WDFW closed the 
above commercial fisheries westward of the ESA-listed rockfish DPSs' 
boundary to Cape Flattery. WDFW extended the closure west of the 
rockfish DPSs' boundary to prevent applicable commercial fishers from 
concentrating gear in that area. The WDFW also implemented a rule that 
recreational anglers targeting bottomfish not fish deeper than 120 
feet. These fisheries regulations are unlikely to change, and will 
benefit canary rockfish and nearly all rockfish species within the 
Puget Sound.
    On August 16, 2016, we released a Draft Recovery Plan for yelloweye 
rockfish and bocaccio (listed rockfish) of the Puget Sound/Georgia 
Basin (81 FR 54556). The Draft Recovery Plan identifies approximately 
45 research and recovery actions for listed rockfish, and though these 
actions are not specifically designed for canary rockfish, they would 
nonetheless benefit from Plan implementation because of the similarity 
of habitats occupied for each species.
    We expect the Plan to inform section 7 consultations with Federal 
agencies under the ESA and to support other ESA decisions, such as 
considering permits under section 10. Mitigation incorporated into 
section 7 and section 10 actions to reduce impacts on listed rockfish 
will also likely reduce impacts to canary and other rockfish species. 
We have already begun implementation of several actions as described in 
the Plan, such as partnering with the WDFW to conduct ROV surveys to 
assess listed rockfish abundance, distribution, and habitat use.
    After the adoption of the Final Recovery Plan, we will continue to 
implement actions for which we have authority, work cooperatively on 
implementation of other actions, and encourage other Federal and state 
agencies to implement recovery actions for which they have 
responsibility and authority. Collectively, the management of 
fisheries, section 7 and 10 actions, and implementation of the listed-
rockfish Recovery Plan will also benefit many species of non-listed 
rockfish of the Puget Sound/Georgia Basin, including canary rockfish.

Summary of Changes From the Proposed Listing Rule

    We reviewed the best available scientific and commercial 
information, including the information in the peer reviews of the 
proposed rule (81 FR 43979; July 6, 2016), public comments, and 
information and analysis (Andrews and Nichols 2016) that have become 
available since the publication of the proposed rule. Based on this 
information, we have made no changes in this final rule.

Final DPS and Status Determinations

    As proposed on July 6, 2016 (81 FR 43979), in this final rule we: 
(1) Correct the previous description of the northern boundary of the 
threatened Puget Sound/Georgia Basin yelloweye rockfish DPS to include 
an area farther north of the Johnstone Strait in Canada. We also update 
and amend the description of the DPS as fish residing within certain 
boundaries (including this geographic area farther north in the Strait 
of Georgia waters in Canada); (2) we remove Puget Sound/Georgia Basin 
canary rockfish DPS from the Federal List of Threatened

[[Page 7718]]

and Endangered Species and their critical habitat, and (3) similar to 
yelloweye rockfish, we update and amend the listing description of the 
bocaccio DPS to describe boundaries to include fish residing within the 
Puget Sound/Georgia Basin rather than fish originating from the Puget 
Sound/Georgia Basin.

Effects of the New Determinations

    Based on the new information and the BRT's determination, and 
consideration of public and peer review comments, we are removing 
canary rockfish of the Puget Sound/Georgia Basin from the Federal List 
of Threatened and Endangered Species. The Puget Sound/Georgia Basin 
yelloweye rockfish DPS shall remain threatened under the ESA, and the 
Puget Sound/Georgia Basin bocaccio DPS shall remain endangered.
    We are also removing designated critical habitat for canary 
rockfish. The critical habitat designation for the Puget Sound/Georgia 
Basin yelloweye rockfish and bocaccio DPSs remain in place. The area 
removed as designated critical habitat for canary rockfish will 
continue to be designated critical habitat for bocaccio and, thus, 
there will be no change to the spatial area that was originally 
designated. Maps of critical habitat can be found on our Web site at 
http://www.westcoast.fisheries.noaa.gov and in the final critical 
habitat rule (79 FR 68041; November 13, 2014).
    Additionally, we correct the listing description of the yelloweye 
rockfish DPS to define geographical boundaries including an area 
farther north of the Johnstone Strait in Canada (Figure 1). This 
boundary would not have an effect on critical habitat, because we do 
not designate critical habitat outside U.S. territory.
[GRAPHIC] [TIFF OMITTED] TR23JA17.002

    With the Puget Sound/Georgia Basin canary rockfish DPS delisting, 
the requirements under section 7 of the ESA no longer apply. Federal 
agencies are relieved of the need to consult with us on their actions 
that may affect Puget Sound/Georgia Basin canary rockfish and their 
designated critical habitat and to insure that any action they 
authorize,

[[Page 7719]]

fund, or carry out is not likely to jeopardize the continued existence 
of canary rockfish or adversely modify their critical habitat. ESA 
section 7 consultation requirements remain in place for the Puget 
Sound/Georgia Basin yelloweye rockfish and bocaccio DPSs. Recovery 
planning efforts will continue for these listed DPSs and a Draft 
Recovery Plan was released on August 16, 2016 (81 FR 54556).

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov.

Information Quality Act and Peer Review

    In December 2004, OMB issued a Final Information Quality Bulletin 
for Peer Review pursuant to the Information Quality Act. The Bulletin 
was published in the Federal Register on January 14, 2005 (70 FR 2664). 
The Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. Peer review under 
the OMB Peer Review Bulletin ensures that our listing determinations 
are based on the best available scientific and commercial information. 
To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the proposed rule and underlying scientific 
information by three independent scientists with expertise in rockfish 
biology and/or genetics. All peer review comments were addressed in 
this final rule (see the Summary of Comments heading in this preamble).

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6.).

Executive Order 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 Executive 
Order 12866. This final rule does not contain a collection of 
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13122, Federalism

    In accordance with E.O. 13132, we determined that this final rule 
does not have significant federalism effects and that a federalism 
assessment is not required. In keeping with the intent of the 
Administration and Congress to provide continuing and meaningful 
dialogue on issues of mutual state and Federal interest, this final 
rule will be shared with the relevant state agencies in Washington 
state.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes. E.O. 13175--Consultation and Coordination with Indian 
Tribal Governments--outlines the responsibilities of the Federal 
Government in matters affecting tribal interests.
    We have coordinated with tribal governments that may be affected by 
the action.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Endangered and threatened species.

50 CFR Part 226

    Designated Critical Habitat.

    Dated: January 9, 2017.
Samuel D Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223. 224, and 
226 are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, in the table in paragraph (e), under the 
subheading ``Fishes,'' remove the entry for ``Rockfish, canary (Puget 
Sound/Georgia Basin DPS)''; and revise the table entries for 
``Rockfish, yelloweye (Puget Sound/Georgia Basin DPS).''
    The revision reads as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

[[Page 7720]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species \1\
---------------------------------------------------------------------------------------------  Citation(s) for listing      Critical        ESA rules
             Common name                   Scientific name      Description of listed entity      determination(s)          habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Rockfish, yelloweye (Puget Sound/      Sebastes ruberrimus....  Yelloweye rockfish residing   75 FR 22276, Apr 28,             226.224               NA
 Georgia Basin DPS).                                             within the Puget Sound/       2010.
                                                                 Georgia Basin, inclusive of
                                                                 the Queen Charlotte Channel
                                                                 to Malcom Island, in a
                                                                 straight line between the
                                                                 western shores of Numas and
                                                                 Malcom Islands--N 50
                                                                 50'46'', W 127 5'55'' and N
                                                                 50 36'49'', W 127 10'17''.
                                                                The Western Boundary of the
                                                                 U.S. side in the Strait of
                                                                 Juan de Fuca is N 48
                                                                 7'16'', W123 17'15'' in a
                                                                 straight line to the
                                                                 Canadian side at N 48
                                                                 24'40'', 123 17'38''.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES.

0
 3. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.


0
4. In Sec.  224.101, paragraph (h), under the subheading ``Fishes,'' 
revise the table entry for ``Bocaccio (Puget Sound/Georgia Basin DPS)'' 
to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                         Species \1\
---------------------------------------------------------------------------------------------  Citation(s) for listing      Critical        ESA rules
             Common name                   Scientific name      Description of listed entity      determination(s)          habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Fishes
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Bocaccio (Puget Sound/Georgia Basin    Sebastes paucispinis...  Bocaccio residing within the  75 FR 22276, Apr 28,             226.224               NA
 DPS).                                                           Puget Sound/Georgia Basin     2010.
                                                                 to the Northern Boundary of
                                                                 the Northern Strait of
                                                                 Georgia along the southern
                                                                 contours of Quadra Island,
                                                                 Maurelle Island and Sonora
                                                                 Island, all of Bute Inlet.
                                                                The Western Boundary of the
                                                                 U.S. side in the Strait of
                                                                 Juan de Fuca is N 48
                                                                 7'16'', W123 17'15'' in a
                                                                 straight line to the
                                                                 Canadian side at N 48
                                                                 24'40'', 123 17'38''.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

PART 226--DESIGNATED CRITICAL HABITAT

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5. The authority citation for Part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.

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6. In Sec.  226.224:
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a. Revise the section heading;
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b. Remove the entry for canary rockfish in the table in paragraph (a); 
and
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c. Revise paragraphs (b), (c), and (d).
    The revisions read as follows:


Sec.  226.224  Critical habitat for the Puget Sound/Georgia Basin DPS 
of yelloweye rockfish (Sebastes ruberrimus), and Bocaccio (S. 
paucispinus).

* * * * *
    (b) Critical habitat boundaries. In delineating nearshore 
(shallower than 30 m (98 ft)) areas in Puget Sound, we define critical 
habitat for bocaccio, as depicted in the maps below, as occurring from 
the shoreline from extreme high water out to a depth no greater than 30 
m (98 ft) relative to mean lower low water. Deepwater critical habitat 
for yelloweye rockfish and bocaccio occurs in some areas, as depicted 
in the maps below, from depths greater than 30 m (98 ft). The critical 
habitat designation includes the marine waters above (the entire water 
column) the nearshore and deepwater areas depicted in the maps in this 
section.
    (c) Essential features for juvenile bocaccio. (1) Juvenile 
settlement habitats located in the nearshore with substrates such as 
sand, rock and/or

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cobble compositions that also support kelp are essential for 
conservation because these features enable forage opportunities and 
refuge from predators and enable behavioral and physiological changes 
needed for juveniles to occupy deeper adult habitats. Several 
attributes of these sites determine the quality of the area and are 
useful in considering the conservation value of the associated feature 
and in determining whether the feature may require special management 
considerations or protection. These features also are relevant to 
evaluating the effects of an action in an ESA section 7 consultation if 
the specific area containing the site is designated as critical 
habitat. These attributes include:
    (i) Quantity, quality, and availability of prey species to support 
individual growth, survival, reproduction, and feeding opportunities; 
and
    (ii) Water quality and sufficient levels of dissolved oxygen to 
support growth, survival, reproduction, and feeding opportunities.
    (2) Nearshore areas are contiguous with the shoreline from the line 
of extreme high water out to a depth no greater than 30 meters (98 ft) 
relative to mean lower low water.
    (d) Essential features for adult bocaccio and adult and juvenile 
yelloweye rockfish. Benthic habitats and sites deeper than 30 m (98 ft) 
that possess or are adjacent to areas of complex bathymetry consisting 
of rock and or highly rugose habitat are essential to conservation 
because these features support growth, survival, reproduction, and 
feeding opportunities by providing the structure for rockfish to avoid 
predation, seek food and persist for decades. Several attributes of 
these sites determine the quality of the habitat and are useful in 
considering the conservation value of the associated feature, and 
whether the feature may require special management considerations or 
protection. These attributes are also relevant in the evaluation of the 
effects of a proposed action in an ESA section 7 consultation if the 
specific area containing the site is designated as critical habitat. 
These attributes include:
    (1) Quantity, quality, and availability of prey species to support 
individual growth, survival, reproduction, and feeding opportunities;
    (2) Water quality and sufficient levels of dissolved oxygen to 
support growth, survival, reproduction, and feeding opportunities; and
    (3) The type and amount of structure and rugosity that supports 
feeding opportunities and predator avoidance.

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[FR Doc. 2017-00559 Filed 1-19-17; 8:45 am]
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