[Federal Register Volume 65, Number 76 (Wednesday, April 19, 2000)]
[Rules and Regulations]
[Pages 20915-20918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9842]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 224 and 226

[Docket No. 000404093-0093-01; I.D. 121198A]
RIN 0648-AN90


Endangered and Threatened Species; Final Rule to Remove Umpqua 
River Cutthroat Trout From the Federal List of Endangered and 
Threatened Species

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

ACTION: Final rule.

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SUMMARY: NMFS has determined that the Umpqua River cutthroat trout 
(Oncorhynchus clarki clarki) population, formerly identified as an 
Evolutionarily Significant Unit (ESU) of the species, is part of a 
larger population segment that previously was determined to be neither 
endangered nor threatened

[[Page 20916]]

as defined by the Endangered Species Act (ESA). Therefore, NMFS 
determines that the Umpqua River cutthroat trout should be removed from 
the Federal List of Endangered and Threatened species. This action will 
remove all ESA protections, including critical habitat designated for 
this species in the Umpqua River basin. The U.S. Fish and Wildlife 
Service (FWS) concurs with this action and has recently obtained sole 
jurisdiction over this species. In the future, FWS will be responsible 
for ESA actions pertaining to all cutthroat trout.

DATES: This rule is effective April 19, 2000.

FOR FURTHER INFORMATION CONTACT: Garth Griffin at (503) 231-2005 or 
Christopher Mobley at (301) 713-1401 of NMFS, or Catrina Martin (503) 
231-6131 of FWS. Reference materials regarding this determination can 
also be obtained via the internet at www.nwr.noaa.gov.

SUPPLEMENTARY INFORMATION:

Species Background

    The coastal cutthroat trout subspecies (Oncorhynchus clarki clarki) 
is native to western North America and is found in the coastal 
temperate rainforests from southeast Alaska to northern California 
(Trotter, 1989). The populations addressed in this document inhabit the 
Umpqua River basin of coastal Oregon. Details of the coastal cutthroat 
trout's life history and ecology, including particular aspects of the 
various resident and migratory life forms, can be found in published 
reviews by Pauley et al. (1989), Trotter (1989), Behnke (1992), Johnson 
et al. (1994), and Johnson et al. (1999).

Previous Federal ESA Actions Related to Coastal Cutthroat Trout

    Descriptions of previous Federal ESA actions pertaining to coastal 
cutthroat trout are summarized in the proposed rule (64 FR 16397, April 
5, 1999) and the initial listing determination (61 FR 41514, August 9, 
1996). In response to an ESA petition, NMFS proposed to list the Umpqua 
River cutthroat trout ESU as endangered on July 8, 1994 (59 FR 35089), 
and made the listing final on August 9, 1996 (61 FR 41514). The listing 
was followed by a critical habitat designation on January 9, 1998 (63 
FR 1388).
    After making these findings, NMFS conducted an expanded ESA review 
of coastal cutthroat trout that identified six ESUs in Washington, 
Oregon, and California (Johnson, 1999). One of the conclusions of this 
more comprehensive review was that the Umpqua River cutthroat trout 
populations are part of a larger Oregon Coast ESU bounded by Cape 
Blanco in the south and the Columbia River mouth in the north. 
Moreover, NMFS determined that the larger ESU did not warrant listing 
under the ESA. In light of these findings, NMFS and FWS proposed to 
delist the Umpqua River ESU on April 5, 1999 (64 FR 16397).
    This proposal was announced jointly with FWS because section 
4(a)(2)(B) of the ESA requires its concurrence on any NMFS delisting 
action. The proposal also noted that a determination would be made 
regarding which of the two agencies should have sole ESA jurisdiction 
over this species. On [insert publication date of ``cutthroat 
jurisdiction'' FRN], the agencies published a notice announcing that 
FWS would retain this authority but that NMFS would complete the final 
determination on the Umpqua delisting proposal. FWS will deal with 
other elements of the April 5, 1999, proposed rule (e.g., the proposed 
listing of cutthroat trout populations from Southwestern Washington and 
the lower Columbia River) in a separate rulemaking. It should be noted 
that FWS does not employ the phrase ``ESU'' to describe a Distinct 
Population Segment (DPS) under the ESA. In addition, NMFS' April 1999 
classification of the Oregon Coast ESU as a ``candidate species'' may 
no longer apply because FWS' definition of candidates differs from 
NMFS' definition (see 61 FR 7596, February 28, 1996, and 64 FR 33466, 
June 23, 1999).
    The agencies requested informatin on all aspects of the April 1999 
proposal, and NMFS held public hearings on May 25-26, 1999, to solicit 
additional comments (64 FR 20248, April 26, 1999). In accordance with a 
July 1, 1994, interagency policy (59 FR 34270), NMFS also solicited 
scientific peer review on the proposal from 12 species experts and 
received three responses. Government agencies, non-government 
organizations, the scientific community, and other individuals 
submitted a total of 26 comments on the proposal. Many respondents 
offered similar comments, hence these are addressed together in this 
document. NMFS has evaluated only those comments specific to ESU 
delineations for cutthroat trout in Oregon coastal basins. FWS will 
address comments on other issues (e.g., population status, efficacy of 
conservation efforts, factors contributing to the species' decline, 
etc.) in future determinations relating to coastal cutthroat trout.

Summary of Comments

    Comment 1: Some commenters questioned the sufficiency and accuracy 
of the data NMFS employed in the de-listing proposal. In contrast, the 
peer reviewers generally found that NMFS' status review was 
comprehensive and credible even though they may have not concurred with 
all of the conclusions. Two peer reviewers cited additional data and 
reports that the agencies should assess before making a risk assessment 
and noted an apparent omission in NMFS' status review document (Johnson 
et al., 1999).
    Response: Section 4(b)(1)(A) of the ESA requires that NMFS make its 
listing determinations solely on the basis of the best available 
scientific and commercial data, after reviewing a species' status and 
taking into account any efforts being made to protect it. NMFS believes 
that information contained in the agency's status reviews (Johnson et 
al., 1994; Johnson et al., 1999), together with more recent information 
obtained in response to the proposed rule, represent the best 
scientific and commercial information presently available for the 
Umpqua River cutthroat trout populations addressed in this final rule. 
NMFS has made every effort to conduct an exhaustive review of all 
available information, solicited information and opinion from all 
interested parties, and subjected the conclusions to peer reviewers.
    With respect to the data/reports cited by peer reviewers, NMFS 
agrees that these and other data sets may be helpful in determining the 
degree of risk the species currently faces. However, for this final 
rule the agency has focused solely on information that relates to 
identifying ESUs along the Oregon coast (specifically whether any new 
data would contradict the agency's proposal to include the Umpqua River 
populations as part of a larger Oregon Coast ESU). Much of the data 
provided by reviewers specifically focused on abundance data that were 
not directly relevant to delineating ESU boundaries. As previously 
described in this document, FWS will be responsible for making any 
future risk assessments for coastal cutthroat trout. NMFS has 
transmitted all relevant information and data sets to FWS.
    NMFS recognizes the omission that two peer reviewers cited in the 
status review's description of average annual river flows (Figure 8, 
page 26 of Johnson et al., 1999). The agency notes that a 
representation of the correct figure can be found in NMFS' status 
review for West Coast chinook salmon (Figure 5, page 16 of Myers et 
al., 1998).

[[Page 20917]]

    Comment 2: Some commenters contended that the ESUs were delineated 
in an arbitrary manner and they questioned NMFS' analyses and 
interpretation of genetic results. One peer reviewer suggested that 
NMFS should de-emphasize the genetic data when determining ESUs and 
give more consideration to other types of information, e.g., life 
history traits and ecological data.
    Response: NMFS disagrees with the contention that cutthroat trout 
ESUs were delineated in an arbitrary manner and believes that available 
genetic and ecological data do support NMFS' ESU delineations for this 
species. For example, the status review (Johnson et al., 1999) 
describes the marked genetic differences between cutthroat trout 
populations from the Washington and Oregon coasts. These differences, 
coupled with a significant migrational barrier at the mouth of the 
Columbia River and a major biogeographic boundary for marine and 
terrestrial species at Cape Blanco, provide substantial evidence of a 
distinct population segment along the Oregon coast. Similar findings 
using both genetic and ecological data formed the basis for other ESU 
delineations.
    Since the beginning of the coastal cutthroat trout status review in 
1993, NMFS has continually sought and evaluated input from the public, 
comanagers, and species experts regarding how best to characterize the 
population structure and status of O. clarki clarki. The agency has 
made every attempt to conduct a rigorous scientific assessment of this 
species and document the rationale for the resultant ESA decisions. In 
comparison with ESA status reviews for other salmonids, these decisions 
were more difficult to make because key data were often scarce or 
nonexistent. In particular, while genetic and life history data 
suggested that cutthroat trout populations may be structured 
differently than other Pacific salmon species, it was not clear how 
these differences should be interpreted in terms of ESU delineations.
    NMFS has published a policy describing how it will apply the ESA 
definition of ``species'' to anadromous salmonid species (56 FR 58612, 
November 20, 1991). More recently, NMFS and FWS published a joint 
policy, which is consistent with NMFS' policy, regarding the definition 
of ``distinct population segments'' (61 FR 4722, February 7, 1996). 
NMFS' policy states that one or more naturally reproducing salmonid 
populations will be considered to be distinct and, hence, species under 
the ESA, if they represent an ESU of the biological species. To be 
considered an ESU, a population must satisfy two criteria: (1) It must 
be reproductively isolated from other population units of the same 
species; and (2) it must represent an important component in the 
evolutionary legacy of the biological species. The first criterion, 
reproductive isolation, need not be absolute but must have been strong 
enough to permit evolutionarily important differences to occur in 
different population units. The second criterion is met if the 
population contributes substantially to the ecological or genetic 
diversity of the species as a whole. Guidance for applying this policy 
is contained in a scientific paper entitled ``Pacific Salmon 
(Oncorhynchus spp.) and the Definition of `Species' Under the 
Endangered Species Act'' (Waples, 1991a) and in a NOAA Technical 
Memorandum: ``Definition of `Species' Under the Endangered Species Act: 
Application to Pacific Salmon'' (Waples, 1991b).
    NMFS continues to believe that genetic analyses are an essential 
component of ESA status reviews. These analyses, in conjunction with 
life history and ecological assessments, provide an important view into 
the population structure of a species while helping to discern whether 
a species faces a genetically-based conservation risk. During the past 
year, NMFS has compiled additional genetic data relevant to the Oregon 
Coast/Umpqua ESU determination. Preliminary analyses of these new data 
(including 16 samples from the Oregon coast) do not change any of the 
major relationships observed among coastal cutthroat trout populations 
during the coastwide status review (NMFS, 2000). As was the case before 
the proposed delisting, genetic samples for the Umpqua River 
populations are loosely clustered within a group encompassing the 
Oregon and Northern California coasts.
    While some commenters provided independent interpretations of the 
existing data, none provided substantial new information regarding ESU 
configurations along the Oregon coast. NMFS concurs with comments by 
several reviewers that unique ecological conditions in the Umpqua River 
basin could make these cutthroat trout populations adaptively different 
from populations in other coastal basins. As Johnson et al. (1999) 
describe, there was considerable uncertainty about how best to 
characterize ESUs for this species. NMFS scientists evaluated several 
alternative ESU scenarios (ranging from a single subspecies ESU to 
numerous basin-sized ESUs) and ultimately identified six ESUs for the 
species. A considerable part of these deliberations focused on the 
Umpqua River basin and its cutthroat trout populations. In the end, 
NMFS scientists concluded that ``new information that has become 
available since completion of the status review does not materially 
change our understanding of any factors that contribute to ESU 
determinations for coastal Oregon cutthroat trout'' (NMFS, 2000).
    Comment 3: Some commenters stated that Umpqua River cutthroat trout 
should be removed from endangered species status only when the 
population actually recovers, not when it is redefined as part of a 
larger ESU. Many were concerned that removing ESA protections could 
cause the Umpqua River populations to become extinct. One commenter 
suggested that NMFS should establish measurable delisting criteria.
    Response: NMFS believes that ESA determinations should reflect the 
best available information on a species' status and population 
structure and that Sec. 3(15) of the ESA requires that listing 
decisions be made at a scale no smaller than a DPS. According to 
criteria at 50 CFR 424.11(d), NMFS may delist a species if information 
shows that the species is no longer endangered or threatened because of 
(1) extinction, (2) recovery, or (3) the original data for classifying 
the species were in error. NMFS believes that the latter case applies 
to this delisting, i.e., new information indicates that the original 
listing was in error and that the Umpqua River populations should be 
considered part of a larger DPS.
    As described in Comment #2, NMFS' policy states that a DPS of 
Pacific salmon must represent an ESU of the biological species (56 FR 
58612, November 20, 1991). When appropriate, NMFS will revise the 
boundaries of an ESU (e.g., the recent cases of chum salmon (64 FR 
14508, March 25, 1999) and chinook salmon (64 FR 50394, September 16, 
1999)). In the case of the Umpqua River cutthroat trout, this revision 
resulted in a revised risk assessment wherein NMFS concluded that the 
larger Oregon Coast ESU was neither threatened nor endangered under the 
ESA (64 FR 16397, April 5, 1999). NMFS shares many of the concerns 
expressed about the health of the Umpqua River populations, in 
particular the precarious status of the anadromous (sea-run) life form. 
It is unclear whether de-listing the Umpqua River cutthroat trout will 
lead to a local extinction, but the agency anticipates that local, 
state, and Federal conservation efforts will continue to progress. Key 
among these will be the Northwest Forest Plan (overarching

[[Page 20918]]

management strategy for Federal lands in the basin) and the state and 
locally driven Oregon Plan for Salmon and Watersheds. NMFS will 
encourage, and where possible support these and other efforts to help 
Umpqua Basin cutthroat trout.

Determinations

    Based on an assessment of the available scientific and commercial 
information, and after taking into account public and peer review 
comments, NMFS finds that the Umpqua River cutthroat trout is no longer 
a ``species'' as defined by the ESA. New information collected during 
the coastwide status review indicate that the Umpqua River populations 
are part of a larger Oregon Coast ESU that previously was determined to 
be neither threatened nor endangered under the ESA (64 FR 16397, April 
5, 1999). Therefore, NMFS concludes that the Umpqua River cutthroat 
trout should be removed from the Federal List of Endangered and 
Threatened species, thereby removing all protections provided by the 
ESA. FWS concurs with this action in accordance with 4(a)(2)(B) of the 
ESA.
    As a result of this delisting, the taking, interstate commerce, 
import, and export of Umpqua River cutthroat trout will no longer be 
prohibited by the ESA. In addition, Federal agencies will no longer be 
required to consult with NMFS under section 7 of the ESA in the event 
activities they authorize, fund, or carry out adversely affect Umpqua 
River cutthroat trout.
    In accordance with 5 U.S.C. 553(d), NMFS has determined that this 
rule relieves an existing restriction and that there is good cause to 
make the effective date of this delisting immediate. Delaying the 
delisting would keep the ESA's take prohibitions in place (as well as 
the resultant ESA consultation and permitting requirements) and result 
in needless expenditures of time and money. An immediate delisting will 
provide prompt public notification and allow NMFS and other Federal 
agencies to focus limited resources on actions affecting listed 
species.

Critical Habitat

    Critical habitat for the Umpqua River cutthroat trout was 
designated on January 9, 1998 (63 FR 1388). It includes all estuarine 
areas and river reaches accessible to the species in the Umpqua River 
basin, except areas above longstanding, naturally impassable barriers. 
The ESA defines critical habitat as ``specific areas within the 
geographical area occupied by the species, at the time it is listed on 
which are found those physical or biological features essential to the 
conservation of the species and which may require special management 
considerations or protection.'' Because critical habitat can be 
designated only for species listed as endangered or threatened under 
the ESA, there will be no designated critical habitat for the Umpqua 
River cutthroat trout upon publication of this final rule.

Classification

    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, 675 F.2d 825 (6th Cir. 
1981), NMFS concluded that all ESA listing actions are not subject to 
environmental assessment requirements of the National Environmental 
Policy Act. See NOAA Administrative Order 216-6 (see ADDRESSEES).
    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered in determinations regarding 
the status of species. Therefore, the economic analysis requirements of 
the Regulatory Flexibility Act are not applicable to the listing 
process. In addition, this proposed rule is exempt from review under 
Executive Order 12866.
    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES) and can also be obtained from the internet at 
www.nwr.noaa.gov.

List of Subjects

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and record keeping requirements, 
Transportation.

50 CFR Part 226

    Endangered and threatened species.

    Dated: April 14, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. 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.


Sec. 224.101  [Amended]

    2. In Sec. 224.101, in paragraph (a), remove the words ``Umpqua 
River cutthroat trout (Oncorhynchus clarki clarki)''.

PART 226--DESIGNATED CRITICAL HABITAT

    3. The authority citation for part 226 continues to read as 
follows:

    Authority: 16 U.S.C. 1533.


Sec. 226.206  [Removed and reserved]

    4. Remove and reserve Sec. 226.206.


Table 4 to Part 226  [Removed and reserved]

    5. Remove and reserve Table 4 to part 226.

[FR Doc. 00-9842 Filed 4-18-00; 8:45 am]
BILLING CODE 3510-22-F