67130 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

Dated: October 31, 2005. 

Kenneth L. Marcus, 

Staff Director/Acting General Counsel. 

[FR Doc. 05–21986 Filed 11–3–05; 8:45 am] 

BILLING CODE 6335–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 040525161–5274–05; I.D. No. 

052104F] 

RIN No. 0648–AR93 

Endangered and Threatened Species: 

Request for Comment on Alternative 

Approach to Delineating 10 

Evolutionarily Significant Units of West 

Coast Oncorhynchus mykiss 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comment. 

SUMMARY: In June 2004, we (NMFS) 

proposed that 10 Evolutionarily 

Significant Units (ESUs) of West Coast 

Oncorhynchus mykiss be listed as 

endangered or threatened species under 

the Endangered Species Act (ESA). We 

have reconsidered the preliminary 

decision to apply the Pacific salmon 

ESU Policy to these stocks and seek 

comment on our proposed application 

of the joint NMFS/U.S. Fish and 

Wildlife Service (FWS) ‘‘Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments under 

the ESA’’ (DPS Policy) to the 

delineation of Oncorhynchus mykiss 

distinct population segments (DPSs). 

DATES: All comments must be received 

no later than 5 p.m. Pacific standard 

time on December 5, 2005. 

ADDRESSES: You may submit comments 

and information by any of the following 

methods. Please identify submittals as 

pertaining to the ‘‘Proposed Steelhead 

DPSs and Listings.’’

• E-mail: 

SteelheadDPS.nwr@noaa.gov. Include 

‘‘Proposed Steelhead DPSs and 

Listings’’ in the subject line of the 

message. 

• Internet: Comments may also be 

submitted electronically through the 

Federal e-Rulemaking portal at: http:// 

www.regulations.gov. 

• Mail: Submit written comments and 

information to Chief, NMFS, Protected 

Resources Division, 1201 NE Lloyd 

Boulevard, Suite 1100, Portland, Oregon 

97232. 

• Hand Delivery/Courier: You may 

hand-deliver written comments to our 

office during normal business hours at 

the street address given above. 

• Fax: 503–230–5441 

FOR FURTHER INFORMATION CONTACT: 

Craig Wingert, NMFS, Southwest 

Region, (562) 980–4021, Dr. Scott 

Rumsey, NMFS, Northwest Region, 

(503) 872–2791, or Marta Nammack, 

NMFS, Office of Protected Resources, 

(301) 713–1401. Copies of the Federal 

Register notices, additional steelheadrelated documents, and a list of all the 

references cited in this notice are 

available on the Internet at http:// 

www.nwr.noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Policies for Delineating Species under 

the ESA 

Section 3 of the ESA defines the term 

species to include ‘‘any subspecies of 

fish or wildlife or plants, and any 

distinct population segment of any 

species of vertebrate fish or wildlife 

which interbreeds when mature’’

[emphasis added]. In 1991 we issued a 

policy for making species 

determinations for Pacific salmon (‘‘ESU 

Policy;’’ 56 FR 58612; November 20, 

1991). Under this policy a group of 

Pacific salmon populations is 

considered an ESU if it is substantially 

reproductively isolated from other 

conspecific populations, and it 

represents an important component in 

the evolutionary legacy of the biological 

species. Under that policy, the 

biological ESU is considered to be a 

‘‘distinct population segment’’ and thus 

a ‘‘species’’ under the ESA. In 1996, we 

and FWS adopted a joint policy for 

recognizing DPSs under the ESA (DPS 

Policy; 61 FR 4722; February 7, 1996). 

The DPS Policy adopts similar but 

slightly different criteria from the ESU 

Policy for determining when a group of 

organisms constitutes a DPS: it must be 

discrete from other populations, and it 

must be significant to its taxon. A group 

of organisms is discrete if it is 

‘‘markedly separated from other 

populations of the same taxon as a 

consequence of physical, physiological, 

ecological, and behavioral factors.’’

Although the ESU Policy does not 

specifically apply to steelhead, the DPS 

Policy states that NMFS will continue to 

implement the ESU Policy with respect 

to Pacific salmonids (inclusive of O. 

mykiss). 

Previous Federal ESA Actions Related to 

West Coast Steelhead 

In 1996, we completed a 

comprehensive status review of West 

Coast steelhead (Busby et al., 1996) that 

resulted in proposed listing 

determinations for 10 steelhead ESUs, 5 

as endangered and 5 as threatened 

species (61 FR 41541; August 9, 1996). 

On August 18, 1997, we listed five of 

the ESUs, two as endangered and three 

as threatened (62 FR 43937) and 

announced a 6–month extension of final 

listing determinations for the other five 

ESUs, pursuant to section 4(b)(6)(B)(I) of 

the ESA (62 FR 43974). On March 10, 

1998, we proposed to list two additional 

steelhead ESUs as threatened (63 FR 

11798). On March 19, 1998, we listed as 

threatened two of the steelhead ESUs 

that were deferred in August 1997 and 

designated the other three proposed 

ESUs as candidate species (63 FR 

13347). On March 25, 1999, we listed as 

threatened the two ESUs proposed in 

March 1998 (64 FR 14517). On February 

11, 2000, we proposed to list the 

Northern California steelhead ESU as 

threatened (65 FR 6960) and listed that 

ESU as threatened on June 7, 2000 (65 

FR 36074). Under these listing 

decisions, there are currently 10 listed 

steelhead ESUs, two endangered 

(Southern California and Upper 

Columbia River) and eight threatened 

(South-Central California, Central 

California Coast, California Central 

Valley, Northern California, Upper 

Willamette River, Lower Columbia 

River, Middle Columbia River, and 

Snake River Basin). 

In our 1997 steelhead listings (62 FR 

43937), we noted uncertainties about 

the relationship of resident and 

anadromous O. mykiss, yet concluded 

that the two forms are part of a single 

ESU where the resident and 

anadromous O. mykiss have the 

opportunity to interbreed. FWS 

disagreed that resident O. mykiss should 

be included in the steelhead ESUs and 

advised that the resident fish not be 

listed. Accordingly, we decided to list 

only the anadromous O. mykiss at that 

time. That decision was followed in 

each of the subsequent steelhead listings 

described in the preceding paragraph. 

In 2001, the U.S. District Court in 

Eugene, Oregon, set aside the 1998 

threatened listing of the Oregon Coast 

coho ESU (Alsea Valley Alliance v. 

Evans, 161 F. Supp. 2d 1154 (D. Or. 

2001)) (Alsea decision). In the Oregon 

Coast coho listing (63 FR 42587; August 

10, 1998), we did not include in the 

listing 10 hatchery stocks determined to 

be part of the Oregon Coast coho ESU. 

The court upheld our policy of 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 67131 

considering an ESU to be a DPS, but 

ruled that once we had delineated a 

DPS, the ESA did not allow listing a 

subset of that DPS. In response to the 

Alsea decision and several listing and 

delisting petitions, we announced we 

would conduct an updated status 

review of 27 West Coast salmonid ESUs, 

including the 10 listed steelhead ESUs 

(67 FR 6215, February 11, 2002; 67 FR 

48601, July 25, 2002; 67 FR 79898, 

December 31, 2002). 

On June 14, 2004, we proposed to 

continue applying our ESU Policy to the 

delineation of DPSs of O. mykiss, and to 

list the 10 O. mykiss ESUs including the 

resident fish that co-occur with the 

anadromous form (69 FR 33102). We 

proposed to list one ESU in California 

as endangered (Southern California), 

and nine ESUs in California, Oregon, 

Washington, and Idaho as threatened 

(South-Central California, Central 

California Coast, California Central 

Valley, Northern California, Upper 

Willamette River, Lower Columbia 

River, Middle Columbia River, Snake 

River Basin, and Upper Columbia). In 

the proposed rule, we noted that the 

Alsea decision required listing of an 

entire ESU/DPS, in contrast to our prior 

steelhead-only listings, and stated the 

scientific principles and working 

assumptions that we used to determine 

whether particular resident groups were 

part of an O. mykiss ESU that included 

anadromous steelhead (69 FR 33102). 

We proposed that where resident 

(rainbow trout) and anadromous 

(steelhead) O. mykiss occur in the same 

stream, they are not ‘‘substantially 

reproductively isolated’’ from one 

another and are therefore part of the 

same ESU. 

Following an initial public comment 

period of 90 days, we twice extended 

the public comment period for an 

additional 36 and 22 days (69 FR 53031, 

August 31, 2004; 69 FR 61348, October 

18, 2004), respectively. During the 

comment period, we received numerous 

comments disagreeing with our 

proposal to include resident 

populations in the subject O. mykiss 

ESUs (in general and for specific 

resident populations) and criticizing 

how we considered resident O. mykiss 

in evaluating the risk to the continued 

existence of the whole ESU. 

On June 7, 2005, FWS wrote to NMFS 

(FWS, 2005), stating its concerns about 

the factual and legal bases for our 

proposed listing determinations for 10 

O. mykiss ESUs, specifying issues of 

substantial disagreement regarding the 

relationship between anadromous and 

resident O. mykiss. On June 28, 2005, 

we published a notice in the Federal 

Register announcing the ESA statutory 

6–month extension of the final listing 

determinations for the subject O. mykiss 

ESUs to resolve the substantial 

disagreement regarding the sufficiency 

or accuracy of the available data 

relevant to the determinations (70 FR 

37219). As a result of these comments, 

we are re-opening the comment period 

to consider whether the final rule 

should delineate 10 steelhead-only 

DPSs, list one DPS in California as 

endangered (Southern California), and 

list the remaining nine DPSs in 

California, Oregon, Washington, and 

Idaho as threatened (South-Central 

California, Central California Coast, 

California Central Valley, Northern 

California, Upper Willamette River, 

Lower Columbia River, Middle 

Columbia River, Snake River Basin, and 

Upper Columbia). 

Application of the Joint DPS Policy for 

Determination of Species 

In its June 7, 2005, letter 

recommending that the final listing 

determinations for the 10 O. mykiss 

ESUs under review be extended, FWS 

suggested that we ensure that our 

delineation of O. mykiss ESUs complies 

with the DPS Policy. We agree, in this 

case, that it is appropriate that we 

consider departing from our past 

practice of applying the ESU Policy to 

O. mykiss stocks, and instead apply the 

DPS Policy in determining ‘‘species’’ of 

O. mykiss for listing consideration. Such 

an approach would also be consistent 

with use of the DPS Policy by the 

agencies in defining DPSs of Atlantic 

salmon (Salmo salar; 65 FR 69459; 

November 17, 2000). The primary 

difference in the application of the two 

policies is that the ESU Policy relies on 

‘‘substantial reproductive isolation’’ as 

the primary factor in delineating a group 

of organisms, while the DPS Policy 

relies on ‘‘marked separation’’ to 

delineate the group. Within a discrete 

group of O. mykiss populations, the 

resident and anadromous life forms of 

O. mykiss remain ‘‘markedly separated’’

as a consequence of physical, 

physiological, ecological, and 

behavioral factors. Despite the apparent 

lack of reproductive isolation between 

the two forms within a given population 

or group of populations, under the DPS 

Policy anadromous and resident O. 

mykiss may not warrant delineation as 

part of the same DPS. 

In order to provide sufficient notice to 

the public to allow for informed 

comment, we provide the following 

analysis of how the proposed 

application of the DPS Policy to O. 

mykiss stocks would affect the proposed 

listings. 

Proposed Evaluation of Discreteness 

under the DPS Policy 

Under the DPS Policy a population 

segment may be considered discrete if it 

satisfies either one of the following 

conditions: 

(1) It is markedly separated from other 

populations of the same biological taxon 

as a consequence of physical, 

physiological, ecological, or behavioral 

factors; or 

(2) It is delimited by international 

governmental boundaries across which 

there is a significant difference in 

exploitation control, habitat 

management or conservation status. 

The discreteness of the 10 West Coast 

steelhead DPSs under consideration 

relative to other population groups of 

the O. mykiss species is well 

documented by the previous NMFS 

status reviews that delineated steelhead 

ESUs (e.g., NMFS, 1997; Busby et al., 

1996, 1997, 1999; Adams, 2000; Good et 

al., 2005). These reviews concluded that 

the ESUs respectively are substantially 

reproductively isolated based on 

established phylogenetic groupings, 

available population genetic data, 

differences in migration and spawn 

timing, patterns in the duration of 

freshwater and marine residence, and 

geographic separation of populations. 

These traits that established the 

substantial reproductive isolation of the 

respective steelhead ESUs under the 

ESU Policy also satisfy the 

‘‘discreteness’’ criterion of the DPS 

Policy. In the following paragraphs we 

address the question of whether the cooccurring anadromous and resident life 

forms within these proposed steelhead 

DPSs are themselves discrete or warrant 

inclusion in the same DPS. 

Under the ESU Policy we have 

previously determined that where 

resident and anadromous O. mykiss cooccur there is likely to be interbreeding 

between the two life-history forms, and 

that co-occurring resident and 

anadromous O. mykiss below longstanding impassable barriers are part of 

the same ESU. This conclusion was 

based on empirical studies that show 

that resident and anadromous O. mykiss 

are similar genetically when they cooccur with no physical barriers to 

migration or interbreeding (Chilcote, 

1976; Currens et al., 1987; Leider et al., 

1995; Busby et al., 1996; Pearsons et al., 

1998), and the observation that 

individuals can occasionally produce 

progeny of the alternate life-history form 

(Shapovalov and Taft, 1954; Burgner et 

al., 1992; Mullan et al., 1992; 

Zimmerman and Reeves, 2000; Kostow, 

2003; Ardren, 200; Blouin, 200; 

Pearsons et al., 2003; Marshal and 

67132 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

Foley, 2004; Narum et al., 2004; 

Seamons et al., 2004). 

The discreteness criterion of the DPS 

Policy, however, does not rely on 

reproductive isolation but on the 

marked separation of population groups 

as a consequence of biological factors. 

Despite the apparent reproductive 

exchange between resident and 

anadromous O. mykiss, the two life 

forms remain markedly separated 

physically, physiologically, 

ecologically, and behaviorally. 

Steelhead differ from resident rainbow 

trout physically in adult size and 

fecundity, physiologically by 

undergoing smoltification, ecologically 

in their preferred prey and principal 

predators, and behaviorally in their 

migratory strategy. Where the two life 

forms co-occur, adult steelhead 

typically range in size from 40–72 cm in 

length and 2–5 kg body mass, while 

adult rainbow trout typically range in 

size from 25–46 cm in length and 0.5–

2 kg body mass (Shapovalov and Taft, 

1954; Wydoski and Whitney, 1979; 

Jones, 1984). Steelhead females produce 

approximately 2,500 to 10,000 eggs, and 

rainbow trout fecundity ranges from 700 

to 4,000 eggs per female (Shapovalov 

and Taft, 1954; Buckley, 1967; Moyle, 

1976; McGregor, 1986; Pauley et al., 

1986), with steelhead eggs being 

approximately twice the diameter of 

rainbow trout eggs or larger (Scott and 

Crossman, 1973; Wang, 1986; Tyler et 

al., 1996). Steelhead undergo a complex 

physiological change that enables them 

to make the transition from freshwater 

to saltwater (smoltification), while 

rainbow trout reside in freshwater 

throughout their entire life cycle. While 

juvenile and adult steelhead prey on 

euphausiid crustaceans, squid, herring, 

and other small fishes in the marine 

environment, the diet of adult rainbow 

trout is primarily aquatic and terrestrial 

insects and their larvae, mollusks, 

amphipod crustaceans, fish eggs, and 

minnows (LeBrasseur, 1966; Scott and 

Crossman, 1973; Wydoski and Whitney, 

1979). Finally, steelhead migrate several 

to hundreds of miles from their natal 

streams to the ocean, and spend up to 

3 years in the ocean migrating 

thousands of miles before returning to 

freshwater to spawn (Busby et al., 1996). 

Rainbow trout, in contrast, may exhibit 

seasonal migrations of tens of kilometers 

but generally remain associated with 

their natal drainages (Meka et al., 1999). 

Given the marked separation between 

the anadromous and resident lifehistory forms in physical, physiological, 

ecological, and behavioral factors, we 

may conclude that the anadromous 

steelhead populations are discrete from 

the resident rainbow trout populations 

within the DPSs under consideration. If 

so, we would conclude that the 

Southern California, South-Central 

California, Central California Coast, 

California Central Valley, Northern 

California, Upper Willamette River, 

Lower Columbia River, Middle 

Columbia River, Upper Columbia River, 

and Snake River Basin steelhead DPSs 

under consideration satisfy the 

‘‘discreteness’’ criterion under the DPS 

Policy. 

Proposed Evaluation of Significance 

under the DPS Policy 

Under the DPS Policy, if a population 

group is determined to be discrete, the 

agency must then consider whether it is 

significant to the taxon to which it 

belongs. Considerations in evaluating 

the significance of a discrete population 

include: (1) persistence of the discrete 

population in an unusual or unique 

ecological setting for the taxon; (2) 

evidence that the loss of the discrete 

population segment would cause a 

significant gap in the taxon’s range; (3) 

evidence that the discrete population 

segment represents the only surviving 

natural occurrence of a taxon that may 

be more abundant elsewhere outside its 

historical geographic range; or (4) 

evidence that the discrete population 

has marked genetic differences from 

other populations of the species. 

The significance of the 10 West Coast 

steelhead DPSs under consideration to 

the O. mykiss species is well 

documented by the previous NMFS 

status reviews that delineated steelhead 

ESUs (e.g., NMFS, 1997; Busby et al., 

1996, 1997, 1999; Adams, 2000; Good et 

al., 2005). These reviews concluded that 

the steelhead population groups 

respectively represent an important 

component in the evolutionary legacy of 

the species based on unique or unusual 

life-history, genetic, and ecological 

characteristics and occupied 

ecoregion(s) (i.e., unique geographic 

regions defined by climatic, geologic, 

hydrologic, and floral composition 

characteristics; Donley et al., 1979; 

Jackson, 1993; Omernik, 1987). These 

traits that established the evolutionary 

importance of the respective steelhead 

population groups under the ESU Policy 

also satisfy the ‘‘significance’’ criterion 

of the DPS Policy. These proposed 

steelhead DPSs, if lost, would represent: 

the loss of unusual or unique habitats 

and ecosystems occupied by the species; 

a significant gap in the species’ range; 

and/or a significant loss to the 

ecological, life-history, and genetic 

diversity of the taxon. We may 

conclude, based on our previous ESU 

determinations, that the Southern 

California, South-Central California, 

Central California Coast, California 

Central Valley, Northern California, 

Upper Willamette River, Lower 

Columbia River, Middle Columbia 

River, Upper Columbia River, and Snake 

River Basin steelhead DPSs under 

consideration satisfy the ‘‘significance’’

criterion under the DPS Policy. 

Proposed Alternative Species 

Determinations for Steelhead DPSs 

If we were to apply the DPS Policy to 

West Coast O. mykiss, based on the 

considerations discussed above, the 

previously proposed species 

determinations for 10 West Coast O. 

mykiss ESUs (see 69 FR 33102; June 14, 

2004) may be revised to consist of these 

steelhead-only DPSs. As noted above, 

the consideration of substantial 

reproductive isolation for the previously 

defined steelhead ESUs directly informs 

the delineation of discrete steelheadonly population units under the DPS 

Policy. Under this alternative approach 

the geographic boundaries for the 

steelhead-only DPSs would not change 

from those previously delineated for the 

steelhead or O. mykiss ESUs. The 

steelhead-only DPSs under 

consideration would include ‘‘all 

naturally spawned populations of 

anadromous O. mykiss (steelhead)’’

within the geographic boundaries of a 

given DPS. 

On June 28, 2005, we finalized a new 

policy for the consideration of hatcheryorigin fish in ESA listing determinations 

(‘‘Hatchery Listing Policy;’’ 70 FR 

37204). Under the Hatchery Listing 

Policy hatchery stocks are considered 

part of an ESU if they exhibit a level of 

genetic divergence relative to the local 

natural population(s) that is no more 

than what occurs within the ESU (70 FR 

at 37215; June 28, 2005). Consistent 

with the June 14, 2004, proposed listing 

determinations (69 FR 33102; June 14, 

2004) and the recent final listing 

determinations for 16 West Coast 

salmon ESUs (70 FR 37160; June 28, 

2005), hatchery stocks would be 

included in a steelhead DPS if they are 

no more than moderately diverged from 

local, native populations in the 

watershed(s) in which they are released. 

The level of divergence for hatchery 

programs associated with the subject 

steelhead DPSs is reviewed in the 2003 

Salmon and Steelhead Hatchery 

Assessment Group Report (NMFS, 

2003), and the 2004 Salmonid Hatchery 

Assessment and Inventory Report 

(NMFS, 2004b). Were we to apply the 

DPS Policy, the DPS membership of 

hatchery programs included in the 

steelhead DPSs would be unchanged 

from that proposed for the 10 O. mykiss 

Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 67133 

ESUs (see Table 2, 69 FR at 33120; June 

14, 2004). 

Below we discuss proposed clarifying 

changes to the proposed Central 

California Coast and Northern California 

steelhead DPSs. These proposed 

clarifying changes are relevant whether 

we continue to use O. mykiss ESUs 

inclusive of anadromous and resident 

life forms, or instead we take action on 

steelhead-only DPSs. 

Proposed Central California Coast 

Steelhead DPS 

The Central California Coast steelhead 

ESU previously included all naturally 

spawned populations of steelhead in 

California streams from the Russian 

River to Aptos Creek, and the drainages 

of San Francisco and San Pablo Bays 

eastward to the Napa River (inclusive), 

excluding the Sacramento-San Joaquin 

River Basin (62 FR 43937; August 18, 

1997). Recent information, however, 

indicates that those portions of the ESU 

in San Francisco Bay and eastward 

towards the Central Valley were 

incorrectly described in the 1997 listing 

notice and need to be clarified. 

Accordingly, the specification of a 

proposed Central California Coast 

steelhead DPS would include all 

naturally spawned populations of 

anadromous O. mykiss (steelhead) in 

coastal streams from the Russian River 

(inclusive) to Aptos Creek (inclusive), 

and the drainages of San Francisco, San 

Pablo, and Suisun Bays eastward to 

Chipps Island at the confluence of the 

Sacramento and San Joaquin Rivers and 

in tributary streams to Suisun Marsh 

including Suisun Creek, Green Valley 

Creek, and an unnamed tributary to 

Cordelia Slough (commonly referred to 

as Red Top Creek), exclusive of the 

Sacramento-San Joaquin River Basin of 

the California Central Valley. 

Proposed Northern California Steelhead 

DPS 

The Northern California O. mykiss 

ESU previously included all naturally 

spawned steelhead in California coastal 

river basins from Redwood Creek south 

to the Gualala River (inclusive) (65 FR 

36074; June 7, 2000). Recently, however, 

we have discovered that there is a 

coastal section between the southern 

boundary of the proposed Northern 

California DPS (the Gualala River) and 

the northern boundary of the proposed 

Central California Coast steelhead DPS 

(the Russian River) that contains several 

small streams that support steelhead. No 

genetic or other information is currently 

available for determining which 

proposed DPS includes these small 

streams. We believe that the geographic 

proximity and similarity in 

environmental and ecological 

conditions of these small streams 

suggests that they would be placed in 

the Northern California steelhead DPS. 

Accordingly, we would clarify the 

geographic boundaries of the Northern 

California steelhead DPS to include all 

naturally spawned populations of 

anadromous O. mykiss (steelhead) in 

California coastal river basins from 

Redwood Creek southward to, but not 

including, the Russian River. 

Evaluation of Species’ Status 

NMFS’ Pacific Salmonid Biological 

Review Team (BRT) (an expert panel of 

scientists from several Federal agencies 

including NMFS, FWS, and the U.S. 

Geological Survey) reviewed the 

viability and extinction risk of naturally 

spawning populations in the 10 

steelhead ESUs that were the subject of 

our June 2004 proposed rule (Good et 

al., 2005). The BRT evaluated the risk of 

extinction faced by naturally spawning 

populations in the 10 O. mykiss ESUs 

corresponding to the steelhead DPSs 

addressed in this request for comment 

(Good et al., 2005). Although the ESUs 

reviewed by the BRT included cooccurring populations of resident O. 

mykiss, little or no population data are 

available for most resident O. mykiss 

populations. The BRT’s findings 

regarding extinction risk are based on 

the status of the steelhead populations 

in the ESUs reviewed. Where available, 

the BRT incorporated information about 

resident populations into their analyses 

of extinction risk. For the Southern 

California, South-Central California 

Coast, Central California Coast, 

California Central Valley, Middle 

Columbia River, Upper Columbia River, 

and Snake River Basin O. mykiss ESUs 

the BRT noted that the presence of 

qualitatively abundant resident 

populations reduced risks to the ESU’s 

abundance (see NMFS, 2004a; Good et 

al., 2005). However, the BRT concluded 

for all the O. mykiss ESUs reviewed that 

the contribution of the resident lifehistory form to the viability of an O. 

mykiss ESU in-total is unknown, and 

may not substantially reduce the ESU’s 

level of extinction risk. Therefore, the 

BRT’s extinction risk findings may 

directly inform evaluations of extinction 

risk for the steelhead DPSs under 

consideration. 

Were we to apply the DPS Policy, we 

would assess the effects of hatchery 

programs on the extinction risk of a DPS 

in-total (i.e., the collective extinction 

risk of natural- and hatchery origin 

components within the DPS) on the 

basis of the factors that the BRT 

determined are currently limiting the 

DPS (e.g., abundance, productivity, 

spatial structure, and diversity), and 

how artificial propagation efforts within 

the DPS affect those factors. The 

Artificial Propagation Evaluation 

Workshop (NMFS, 2004c) reviewed the 

BRT’s findings (NMFS, 2003; Good et 

al., 2005), evaluated the Salmonid 

Hatchery Inventory and Effects 

Evaluation Report (NMFS, 2004b), and 

assessed the overall extinction risk of 

DPSs with associated hatchery stocks. 

The reader is referred to the BRT’s 

report (Good et al., 2005), the Salmonid 

Hatchery Inventory and Effects 

Evaluation Report (NMFS, 2004b), and 

the Workshop Report (NMFS, 2004c) for 

more detailed descriptions of the 

viability of individual natural 

populations and hatchery stocks within 

these DPSs. 

Analysis of Efforts Being Made to 

Protect Proposed West Coast Steelhead 

DPSs 

In the proposed rule addressing 10 O. 

mykiss ESUs we reviewed protective 

efforts ranging in scope from regional 

conservation strategies to local 

watershed initiatives (see 69 FR 33102; 

June 14, 2004). We preliminarily 

concluded that protective efforts 

collectively do not provide sufficient 

certainty of implementation and 

effectiveness to substantially ameliorate 

the level of assessed extinction risk for 

all but one of the steelhead ESUs under 

consideration (see the June 14, 2004, 

proposed rule for a summary of the 

relevant protective efforts (69 FR 33102) 

benefitting the California Central Valley 

ESU and a description of the proposed 

finding that these efforts mitigate the 

ESU’s level of extinction risk (69 FR 

33102)). While we acknowledge that 

many of the ongoing protective efforts 

are likely to promote the conservation of 

listed salmonids, most efforts are 

relatively recent and have yet to 

indicate their effectiveness. Also, few 

address conservation needs at scales 

sufficient to conserve entire ESUs. 

Under our proposed approach to apply 

the DPS Policy, we would likely 

conclude that existing protective efforts 

lack the certainty of implementation 

and effectiveness to substantially 

ameliorate the extinction risk of the 

steelhead DPSs under consideration (but 

for the proposed California Central 

Valley steelhead DPS, as noted above). 

Proposed Listing Determinations 

Under our proposed approach to 

apply the DPS Policy, we would likely 

conclude that the steelhead DPSs under 

consideration warrant listing under the 

ESA, based on the BRT’s findings, our 

analysis of the contributions of artificial 

propagation, and our evaluation of 

protective efforts. We likely would list 

67134 Federal Register / Vol. 70, No. 213 / Friday, November 4, 2005 / Proposed Rules 

the proposed Southern California 

steelhead DPS as an endangered species 

and list the proposed South-Central 

California, Central California Coast, 

California Central Valley, Northern 

California, Upper Willamette River, 

Lower Columbia River, Middle 

Columbia River, Upper Columbia River, 

and Snake River Basin steelhead DPSs 

as threatened species. The reader is 

referred to the final BRT report (Good et 

al., 2005) and the previous proposed 

rule (69 FR 33102; June 14, 2004) for a 

more detailed description of a given 

DPS’s status. 

Prohibitions and Protective Regulations 

In the case of threatened species, 

section 4(d) of the ESA leaves it to the 

Secretary’s discretion whether and to 

what extent to extend the statutory 9(a) 

‘‘take’’ prohibitions for endangered 

species, and directs the agency to issue 

regulations it considers necessary and 

advisable for the conservation of the 

species. On June 28, 2005, as part of the 

final listing determinations for 16 West 

Coast salmon ESUs (70 FR 37160), we 

amended and streamlined the 

previously promulgated 4(d) protective 

regulations for threatened salmon and 

steelhead. (The reader is referred to the 

June 2005 final rule for information on 

the specific changes promulgated). 

The amended June 2005 4(d) rule 

applies to the eight steelhead-only ESUs 

currently listed as threatened under the 

ESA. Were we to apply the DPS Policy, 

the amended 4(d) rule would apply to 

eight of the steelhead DPSs under 

consideration: the South-Central 

California, Central California Coast, 

California Central Valley, Northern 

California, Upper Willamette River, 

Lower Columbia River, Middle 

Columbia River, and Snake River Basin 

steelhead DPSs. We would not make 

any changes in the protective 

regulations for these proposed 

threatened steelhead DPSs. 

The Upper Columbia River steelhead 

ESU is currently listed as endangered 

and subject to the section 9(a) take 

prohibitions. As part of the June 2004 

proposed listing determinations, we 

proposed to list the Upper Columbia 

River O. mykiss ESU as threatened, and 

to extend to it the amended 4(d) 

protective regulations for threatened 

species (69 FR 33102; June 14, 2004). 

Were we to apply the DPS Policy and 

list an Upper Columbia River steelhead 

DPS as threatened, we would extend to 

it the June 2005 amended 4(d) 

protective regulations. We believe that 

extending the amended 4(d) protective 

regulations would be necessary and 

advisable for the conservation of the 

steelhead in the Upper Columbia River. 

Such an extension of the 4(d) protective 

regulations would result in a reduction 

of the regulatory burden as the various 

4(d) limits were not previously available 

for activities affecting the endangered 

Upper Columbia River steelhead ESU. 

In the June 2005 amendments to the 

4(d) protective regulations we amended 

the 4(d) limit that provides a temporary 

exemption for ongoing research and 

enhancement activities with pending 

applications (limit § 223.203(b)(2)). The 

existing deadline associated with this 

limit will expire December 28, 2005. We 

believe that ongoing research and 

enhancement activities that are 

important to the conservation and 

recovery of listed salmon and steelhead 

should not be interrupted. Were we to 

apply the DPS Policy and list nine 

steelhead-only DPSs as threatened, we 

would amend limit § 223.203(b)(2) to 

again provide a temporary exemption 

for ongoing research and enhancement 

activities affecting the subject steelhead 

DPSs. 

Information Solicited 

After considering information 

provided by the FWS and several public 

commenters, we have reconsidered the 

preliminary decision to apply the ESU 

Policy to these stocks and seek comment 

on the proposed application of the DPS 

Policy to the delineation of O. mykiss 

DPSs. To ensure that the final action 

resulting from the proposed rule to list 

10 species of West Coast O. mykiss will 

be as accurate and effective as possible, 

and informed by the best available 

scientific and commercial information, 

we are re-opening the public comment 

period to solicit additional information, 

comments, and suggestions from the 

public, other governmental agencies, the 

scientific community, industry, and any 

other interested parties. We are 

particularly interested in receiving 

comment on the alternative approach to 

delineate and list steelhead-only DPSs 

of O. mykiss. Specifically, we seek 

comment on: the use of the DPS Policy 

as the basis for listing determinations 

with respect to O. mykiss; our proposed 

determination under the joint DPS 

Policy that the proposed steelhead DPSs 

are discrete from other such population 

groups of O. mykiss, and within these 

proposed DPSs that the anadromous and 

resident life forms are discrete and 

would not warrant delineation within 

the same DPS; our proposed 

determination under the DPS Policy that 

the proposed steelhead DPSs are 

significant to the O. mykiss species; our 

proposed conclusion that the BRT’s risk 

assessments for O. mykiss ESUs directly 

inform the assessment of extinction risk 

for steelhead DPSs; and the proposed 

ESA listing determinations for the 

steelhead DPSs under consideration. 

Additionally, we seek comment on the 

clarifying changes to the proposed 

Central California Coast and Northern 

California steelhead DPSs. 

References 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES), or can be obtained from the 

Internet at: http://www.nwr.noaa.gov. 

Authority: 16 U.S.C. 1531 et seq. 

Dated: November 1, 2005. 

James W. Balsiger, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 05–22043 Filed 11–3–05; 8:45 am] 

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