9808 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

References Cited

A complete list of all references cited

in this document is available upon

request from the Asheville Field Office

(see ADDRESSES section).

Author

The primary author of this document

is John A. Fridell (see ADDRESSES

section).

Authority The authority for this action is

the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.).

Dated: January 18, 2001.

H. Dale Hall,

Acting Regional Director, Fish and Wildlife

Service.

[FR Doc. 01–2270 Filed 2–9–01; 8:45 am]

BILLING CODE 4310–55–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 223

[Docket No. 010118020-1020-01; I.D.

010801A]

RIN 0648-AO86

Endangered and Threatened Species:

Threatened Status for One

Evolutionarily Significant Unit of

Steelhead in California and Oregon

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: NMFS’ completed

Endangered Species Act (ESA) status

reviews for steelhead (Oncorhynchus

mykiss) populations in Washington,

Oregon, Idaho, and California resulted

in proposed listings for several

steelhead Evolutionarily Significant

Units (ESUs), including a Klamath

Mountains Province (KMP) steelhead

ESU. Steelhead in this ESU inhabit

coastal river basins between the Elk

River in Oregon and the Klamath River

in California, inclusive. After reviewing

additional information, including

biological data on the species’ status

and an assessment of protective efforts,

NMFS concluded in 1998 that this ESU

did not warrant listing. However, the

U.S. District Court for the Northern

District of California (Court) recently

overturned that decision and remanded

the rule to the agency. The District

Court concluded that NMFS erred in

relying on the expected effects of future

conservation measures when making its

final listing determination. In light of

the Court’s order and of the need to

formally solicit any new information

regarding the status of KMP steelhead,

the agency now re-proposes to list the

KMP steelhead ESU as a threatened

species under the ESA.

DATES: Public hearings on this proposal

will be held on February 22, 2001, in

Gold Beach, OR, and Eureka, CA.

Comments on this proposal must be

received no later than 5 p.m. Pacific

time, on March 5, 2001. Comments will

not be accepted if submitted via e-mail

or the Internet.

ADDRESSES: Two public hearings on this

proposal will be held: (1) on Thursday,

February 22, 2001, from 6:30 p.m. to 9

p.m at the Gold Beach City Hall, City

Council Chambers, 29592 Ellensburg

Avenue, Gold Beach, OR; and (2) on

Thursday, February 22, 2001, from 6:30

p.m. to 9 p.m. at the Eureka Inn, 518 7th

Street, Eureka, CA.

Comments on this proposed rule and

requests for reference materials should

be sent to the Chief, Protected Resources

Division, NMFS, Northwest Region, 525

NE Oregon Street, Suite 500, Portland,

OR 97232-2737. Comments may also be

sent via facsimile (fax) to (503) 230-

5435, but will not be accepted if

submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT:

Garth Griffin, 503-231-2005, Craig

Wingert, 562-980-4021, or Chris Mobley,

301-713-1401.

SUPPLEMENTARY INFORMATION:

Previous Federal ESA Actions Related

to West Coast Steelhead

The first petition to address steelhead

in the Klamath Mountains Province or

‘‘KMP’’ (named after a geological

province in southwest Oregon and

northwest California) was received on

May 5, 1992, and dealt with winter

steelhead in the Illinois River, a

tributary to Oregon’s Rogue River. The

agency conducted a status review of this

population (NMFS, 1993) and published

a May 20, 1993, determination (58 FR

29390) wherein NMFS concluded that

Illinois River winter steelhead did not

warrant listing because they did not

represent a ‘‘species’’ under the ESA.

However, NMFS recognized that this

population was part of a larger ESU

whose extent had not yet been

determined, but whose status might

warrant listing because of declining

trends in steelhead abundance observed

in several southern Oregon streams.

In its May 20, 1993, finding regarding

Illinois River winter steelhead, NMFS

announced that it would conduct an

expanded status review to identify all

coastal steelhead ESUs within

California, Oregon, and Washington and

to determine whether any identified

ESUs warranted listing under the ESA

(58 FR 29390). Subsequently, on

February 16, 1994, NMFS received a

petition from the Oregon Natural

Resources Council and from 15 copetitioners to list all steelhead (or

specific ESUs, races, or stocks) within

the States of California, Oregon,

Washington, and Idaho. In response to

this petition, NMFS announced the

expansion of its status review of

steelhead to include inland steelhead

populations occurring in eastern

Washington and Oregon and the State of

Idaho (59 FR 27527, May 27, 1994).

On March 16, 1995, NMFS identified

a KMP steelhead ESU and published a

proposed rule to list it as a threatened

species under the ESA (60 FR 14253).

The proposed ESU included steelhead

populations inhabiting coastal river

basins between the Elk River in Oregon

and the Klamath River in California,

inclusive. Subsequent to this proposal,

the agency completed a coastwide status

review of steelhead (NMFS, 1996a) that

identified a total of 15 steelhead ESUs

in the states of Washington, Oregon,

Idaho, and California. By August 9,

1996, the agency had proposed 10

steelhead ESUs, including KMP

steelhead, for listing as threatened or

endangered under the ESA (61 FR

41541). While the agency had proposed

listing KMP steelhead prior to the other

ESUs, unresolved issues and practical

considerations made it more prudent to

consider a final determination on KMP

steelhead in the context of final listing

decisions for all West Coast steelhead

ESUs.

On August 18, 1997, NMFS published

a final rule listing five ESUs as

threatened and endangered under the

ESA (62 FR 43937). In a separate

document published on the same day,

NMFS determined that substantial

scientific disagreement remained for

five proposed ESUs, including the KMP

steelhead ESU (62 FR 43974, August 18,

1997). In accordance with section

4(b)(6)(B)(i) of the ESA, NMFS deferred

its decision on these five steelhead

ESUs for 6 months for the purpose of

soliciting additional data. During this 6-

month period of deferral, NMFS’

scientist evaluated new information

regarding the status of these proposed

steelhead ESUs. This new information

resulted in the updating of status review

documents for these five ESUs (NMFS,

1997; NMFS, 1998).

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9809

Based on a review of the updated

information for these ESUs and of a

review and evaluation of Federal, state,

and local conservation efforts being

made to reduce the threats to these

ESUs, NMFS issued a final rule on

March 19, 1998 (63 FR 13347) listing

two ESUs as threatened (Lower

Columbia River and Central Valley

California) and a notice of

determination that three ESUs (KMP,

Oregon Coast, and Northern California)

did not warrant listing. The latter

determination was based on the best

available scientific and commercial data

that these ESUs had been at a lower risk

of extinction than they were at the time

of the proposed listing determinations.

Even though the risks confronting these

ESUs had been reduced to a point at

which listing was not warranted, NMFS

still expressed concerns about the status

of these three ESUs in the notice of

determination and, therefore, identified

them as candidate species, which the

agency would continue to monitor and

re-assess by 2002.

The Recent District Court Ruling

On October 25, 2000, the U.S. District

Court for the Northern District of

California (Court) issued a finding that

NMFS’ March 19, 1998, determination

regarding the KMP steelhead ESU was

arbitrary and capricious (Federation of

Fly Fishers v. Daley, Civ. No. C-99-0981-

SI). The Court vacated NMFS’ ‘‘not

warranted’’ determination and

remanded the case to NMFS for further

consideration. In vacating the agency’s

decision, the Court held that the ESA

does not allow NMFS to consider the

expected effects of future conservation

actions or to rely exclusively on

voluntary conservation efforts. Hence,

the Court’s finding essentially reinstates NMFS’ original proposal to list

KMP steelhead as a threatened species

under the ESA. Due to time constraints

imposed by the Court, NMFS will be

able to accept public comments only

until March 5, 2001, on this listing reproposal so that new information can be

efficiently evaluated and a final agency

determination be promulgated by March

31, 2001.

Life History of KMP Steelhead

Biological information for West Coast

steelhead and the KMP ESU, in

particular, can be found in agency

assessments conducted by NMFS

(NMFS, 1993, 1994, 1996a, 1997, 1998)

and in previous Federal Register

documents (60 FR 14253, March 16,

1995; 61 FR 41541, August 9, 1996).

Steelhead exhibit one of the most

complex suites of life history traits of

any salmonid species. Individuals may

exhibit anadromy (meaning they migrate

as juveniles from fresh water to the

ocean, and then return to spawn in fresh

water) or freshwater residency (meaning

they reside their entire life in fresh

water). Resident forms are usually

referred to as ‘‘rainbow’’ or ‘‘redband’’

trout, while anadromous life forms are

termed ‘‘steelhead.’’ Few detailed

studies have been conducted regarding

the relationship between resident and

anadromous O. mykiss, and, as a result,

the relationship between these two life

forms is poorly understood. The

scientific name for the biological species

that includes both steelhead and

rainbow trout has been changed from

Salmo gairdneri to O. mykiss. This

change reflects the premise that all

trouts from western North America

share a common lineage with Pacific

salmon. Nonanadromous O. mykiss may

co-occur with the anadromous form.

The KMP steelhead ESU includes both

life forms. However, only the

anadromous form is under the

jurisdiction of NMFS; the U.S. Fish and

Wildlife Service (USFWS) maintains

ESA authority over resident life forms.

Historically, steelhead were

distributed throughout the North Pacific

Ocean from the Kamchatka Peninsula in

Asia to the northern Baja California

Peninsula. Presently, the species

distribution extends from the

Kamchatka Peninsula, east and south

along the Pacific coast of North

America, to at least Malibu Creek in

southern California. Within the KMP

ESU, the species inhabits coastal river

basins between the Elk River in Oregon

and the Klamath River in California,

inclusive.

Steelhead typically migrate to marine

waters after spending 2 years in fresh

water. They then reside in marine

waters for typically 2 or 3 years prior to

returning to their natal stream to spawn

as 4- or 5-year-olds. Unlike other Pacific

salmon, steelhead are iteroparous,

meaning they are capable of spawning

more than once before they die.

However, it is rare for steelhead to

spawn more than twice before dying;

most that do so are females.

Biologically, steelhead can be divided

into two reproductive ecotypes, based

on their state of sexual maturity at the

time of river entry and the duration of

their spawning migration. These two

ecotypes are termed ‘‘stream maturing’’

and ‘‘ocean maturing.’’ Stream maturing

steelhead enter fresh water in a sexually

immature condition and require several

months to mature and spawn. Ocean

maturing steelhead enter fresh water

with well developed gonads and spawn

shortly after river entry. These two

reproductive ecotypes are more

commonly referred to by their season of

freshwater entry (i.e., summer (stream

maturing) and winter steelhead (ocean

maturing)). The KMP steelhead ESU

contains populations of both winter and

summer steelhead. In addition, the

Rogue and Klamath River Basins are

distinctive in that they are two of the

few basins producing ‘‘half-pounder’’

steelhead. This life history type refers to

immature steelhead that return to fresh

water after only 2-4 months in the

ocean, generally overwinter in fresh

water, then outmigrate again the

following spring (Snyder, 1925; Kesner

and Barnhart, 1972; Everest, 1973;

Barnhart, 1986).

Consideration as a ‘‘Species’’ Under the

ESA

To qualify for listing as a threatened

or endangered species, the identified

populations of steelhead must be

considered ‘‘species’’ under the ESA.

The ESA defines ‘‘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.’’ NMFS published a policy (56

FR 58612, November 20, 1991)

describing how the agency will apply

the ESA definition of ‘‘species’’ to

Pacific salmonid species. This policy

provides that a salmonid population

will be considered distinct, and hence a

species, under the ESA, if it represents

an ESU of the biological species. A

population must satisfy two criteria to

be considered an ESU: (1) It must be

reproductively isolated from other

conspecific population units and (2) it

must represent an important component

in the evolutionary legacy of the

biological species. The first criterion,

reproductive isolation, needs not be

absolute, but must be strong enough to

permit evolutionarily important

differences to accrue in different

population units. The second criterion

is met if the population contributes

substantially to the ecological/genetic

diversity of the species as a whole.

Guidance on the application of this

policy is contained in Waples (1991), a

NOAA Technical Memorandum entitled

‘‘Definition of ‘Species’ Under the

Endangered Species Act: Application to

Pacific Salmon,’’ which is available

upon request (see ADDRESSES). The

genetic, ecological, and life history

characteristics, as well as humaninduced genetic changes that NMFS

assessed to identify the number and

geographic extent of steelhead ESUs on

the West Coast, including the KMP

steelhead ESU, are discussed in detail in

NMFS’ steelhead status reviews (NMFS,

1993, 1994, 1996a, 1997, 1998) and in

9810 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

listing proposals (60 FR 14253, March

16, 1995; 61 FR 41541, August 9, 1996).

KMP Steelhead ESU Determination

The KMP steelhead ESU has been

described in NMFS’ status review

documents and Federal Register notices

cited earlier; no new scientific

information has been received to

indicate that the ESU should be

redefined. This ESU includes both

winter and summer steelhead inhabiting

coastal river basins between the Elk

River in Oregon and the Klamath River

in California, inclusive. Half-pounder

juveniles (described previously under

‘‘Life History of KMP Steelhead’’) also

occur in this geographic area.

Geologically, this region includes the

Klamath Mountains Geological

Province, which is not as erosive as the

Franciscan formation terrains south of

the Klamath River Basin. Dominant

vegetation along the coast is redwood

forest, while some interior basins are

much drier than the surrounding areas.

The region is characterized by many

endemic plant species. Elevated stream

temperatures are a factor affecting

steelhead and other species in some of

the larger river basins. With the

exception of major river basins, such as

the Rogue and Klamath, most rivers in

this region have a short duration of peak

flows. Strong and consistent coastal

upwelling begins at about Cape Blanco

and continues south into the central

California coast, resulting in a relatively

productive nearshore marine

environment. Protein electrophoretic

analyses of coastal steelhead have

indicated genetic discontinuities

between the steelhead of this region and

those to the north and south (Hatch,

1990; NMFS, 1993 and 1994).

Chromosomal studies have also

identified a distinctive karyotype that

has been reported only from

populations within this ESU.

The relationship between hatchery

steelhead populations and naturally

spawned steelhead within this ESU was

also assessed in a NMFS’ status review

update (NMFS, 1998). Based on this

assessment, NMFS’ steelhead Biological

Review Team (BRT) concluded that

seven steelhead hatchery stocks are part

of this ESU because they were

established from indigenous natural

populations. In Oregon these stocks are

Applegate River, Oregon Department of

Fish and Wildlife (ODFW) stock ι62

(winter run); Upper Rogue River, ODFW

stock ι52 (winter run); Upper Rogue

River, ODFW stock ι52 (summer run);

and Chetco River, ODFW stock ι96

(winter run). In California, the stocks are

Iron Gate Hatchery stock (winter run);

Trinity River Hatchery stock (winter

run); and Rowdy Creek Hatchery stock.

The majority of the BRT also concluded

that these hatchery stocks were not

likely to be essential for the recovery of

the ESU (i.e., if the ESU were listed).

Status of the KMP Steelhead ESU

Section 3 of the ESA defines the term

‘‘endangered species’’ as ‘‘any species

that is in danger of extinction

throughout all or a significant portion of

its range.’’ The term ‘‘threatened

species’’ is defined as ‘‘any species that

is likely to become an endangered

species within the foreseeable future

throughout all or a significant portion of

its range.’’ In its previous status reviews

for West Coast salmon and steelhead,

NMFS has identified a number of factors

that should be considered in evaluating

the level of risk faced by an ESU,

including (1) absolute numbers of fish

and their spatial and temporal

distribution, (2) current abundance in

relation to historical abundance and

current carrying capacity of the habitat,

(3) trends in abundance, (4) natural and

human-influenced factors that cause

variability in survival and abundance,

(5) possible threats to genetic integrity

(e.g., from strays or outplants from

hatchery programs), and (6) recent

events (e.g., a drought or changes in

harvest management) that have

predictable short-term consequences for

abundance of the ESU.

Based on these factors and on the best

available scientific information, NMFS’

BRT first reviewed the status of the

KMP steelhead in 1994 (NMFS, 1994)

and determined that it was likely to

become endangered in the foreseeable

future. The agency subsequently

proposed this ESU for listing as a

threatened species (60 FR 14253, March

16, 1995), noting that available

information indicated that most of the

steelhead populations in the KMP ESU

were in significant decline and not selfsustaining. After completing a

coastwide status review in 1996, the

agency restated its proposal to list the

ESU as threatened and highlighted

concerns for summer steelhead as well

as the apparent replacement of natural

fish with hatchery-produced fish. The

status of the ESU was last reassessed in

a 1997 status review update (NMFS,

1997), wherein the NMFS’ BRT

analyzed new information and once

again concluded that the KMP ESU was

likely to become endangered in the

foreseeable future. The BRT expressed

concern about the lack of reliable and

recent data for many populations and

the almost universal decline of native

summer steelhead populations in this

ESU. Although the percentage of

naturally spawning hatchery fish was

considered low to moderate in Oregon

streams in the ESU, the BRT had major

concerns regarding stray hatchery fish

in the Klamath and Trinity River Basins.

In addition, the BRT cited significant

risks resulting from habitat loss and

degradation (e.g., due to dams, logging,

water withdrawals, and mining) within

the range of this ESU.

In addition to the BRT’s assessment,

the agency also considered existing and

recently implemented conservation

efforts focused on KMP steelhead.

Significant state efforts in Oregon and

California (including harvest

restrictions, monitoring, and habitat

improvements) appeared to have

reduced threats to this species. In

addition, NMFS believed that biological

risks associated with habitat

modification and degradation on

Federal lands had decreased as a result

of the Northwest Forest Plan (Forest

Ecosystem Management Assessment

Team (FEMAT), 1993). While NMFS

remained concerned about habitat

conditions on non-Federal lands within

the range of the ESU, the agency noted

that the majority of lands were actually

under Federal ownership. After

reviewing all of the available types of

information, NMFS concluded in March

1998 that the KMP steelhead ESU did

not warrant listing as a threatened

species but instead should be classified

as a candidate species and its status reevaluated by 2002. However, the recent

ruling by the Court on October 25, 2000,

states that NMFS erred in arriving at

this determination and requires the

agency to re-assess this ESU.

NMFS scientists have recently

conducted a preliminary survey of new

information on KMP steelhead

populations that has become available

since the BRT last reviewed the species

in December 1997 (NMFS, 2000).

Available new data for Oregon

populations in the KMP steelhead ESU

are concentrated in the Rogue River

Basin and show no major changes since

the last assessment. New information on

California steelhead populations in

NMFS’ possession is also very limited

and consist primarily of short-term data

from creel and snorkel surveys. This

paucity of available data compels the

agency to re-propose the ESU as a

threatened species at this time.

However, the agency is hopeful that

data sets currently being compiled in

Oregon and California, as well as any

new information received in response to

this listing proposal, will permit a more

rigorous assessment prior to a final

listing determination.

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9811

Summary of Factors Affecting the

Species

Section 4(a)(1) of the ESA and NMFS’

implementing regulations (50 CFR part

424) set forth procedures for listing

species. The Secretary of Commerce

(Secretary) must determine, through the

regulatory process, whether a species is

endangered or threatened based upon

any one or a combination of the

following factors: (1) The present or

threatened destruction, modification, or

curtailment of its habitat or range; (2)

overutilization for commercial,

recreational, scientific, or education

purposes; (3) disease or predation; (4)

inadequacy of existing regulatory

mechanisms; or (5) other natural or

human-made factors affecting its

continued existence. The factors

threatening naturally reproducing

steelhead are numerous and varied. For

KMP steelhead populations, the present

depressed condition is the result of

longstanding, human-induced factors

that serve to exacerbate the adverse

effects of natural environmental

variability from such factors as drought,

floods, and poor ocean conditions.

NMFS has prepared a report that

summarizes the factors leading to the

decline of steelhead on the West Coast

(NMFS, 1996b). This report, available

upon request (see ADDRESSES section),

concludes that all of the factors

identified in section 4(a)(1) of the ESA

have played a role in the decline of

West Coast steelhead. The report further

identifies several factors that were

considered to have contributed to the

decline of the KMP steelhead ESU,

including: hatchery introgression,

logging, water diversion/extraction,

habitat blockages, poaching, agriculture,

hydropower development, historic

flooding, and mining. As a result of

previous listing proposals (60 FR 14253,

March 16, 1995; 61 FR 41541, August 9,

1996), NMFS has received numerous

comments regarding the relative

importance of various factors

contributing to the decline of KMP

steelhead. These comments will be

considered along with any new

information resulting from the current

listing proposal prior to the agency

making a final listing determination for

this ESU.

Efforts Being Made to Protect West

Coast Steelhead

Section 4(b)(1)(A) of the ESA requires

the Secretary of Commerce to make

listing determinations solely on the

basis of the best scientific and

commercial data available after

conducting a review of the status of the

species and after taking into account

efforts being made to protect the

species. Therefore, in making its listing

determinations, NMFS first assesses the

status of the species and identifies

factors that have led to the decline of

the species. NMFS then assesses

conservation measures to determine

whether they ameliorate risks to the

species. In judging the efficacy of

existing conservation efforts, NMFS

considers the following: (1) The

substantive, protective, and

conservation elements of such efforts;

(2) the degree of certainty such efforts

will be reliably implemented; (3) the

degree of certainty such efforts will be

effective; and (4) the presence of

monitoring provisions that determine

effectiveness and that permit adaptive

management. In some cases,

conservation efforts may be relatively

new and may not have had time to

demonstrate their biological benefit. In

such cases, provisions for adequate

monitoring and funding of conservation

efforts are essential to ensure that

intended conservation benefits are

realized.

As part of its West Coast steelhead

status review, NMFS reviewed an array

of protective efforts for steelhead and

other salmonids, ranging in scope from

regional strategies to local watershed

initiatives. NMFS has summarized some

of the major efforts in a supplement to

the earlier status reviews (NMFS,

1996c). NMFS also reviewed steelhead

conservation measures being

implemented by the states of California

and Oregon at the time of its March 19,

1998, listing determination for the KMP

steelhead ESU (63 FR 13347). During

the next two months, NMFS will seek to

update the current status of

conservation efforts affecting KMP

steelhead and, in keeping with the

recent Court order, will take into

account appropriate conservation efforts

when assessing the final ESA status of

KMP steelhead. NMFS encourages all

parties to submit information on such

efforts, on particularly existing

conservation efforts, or on those that

have only recently been implemented

(e.g., since 1997) but will likely

ameliorate risks faced by KMP

steelhead.

Proposed Determination

In keeping with an October 25, 2000,

order by the U.S. District Court for the

Northern District of California, NMFS is

re-proposing to list the KMP steelhead

ESU as a threatened species under the

ESA. This proposal is supported by

previous agency listing proposals (60 FR

14253, March 16, 1995; 61 FR 41541,

August 9, 1996) and BRT reports

(NMFS, 1994; NMFS, 1997), which

concluded that steelhead in the KMP

ESU are likely to become endangered in

the foreseeable future. Also, a

preliminary review of updated

abundance and trend information

available for this ESU indicates that the

current biological status of the ESU has

changed little since it was last evaluated

by the NMFS BRT. The agency believes

that many conservation efforts have

helped reduced the risks faced by KMP

steelhead. However, the recent Court

ruling will require that NMFS

reconsider the manner in which these

efforts factor into a final listing

determination for this ESU.

As described in agency status reviews

and in the proposed listing

determination cited above, NMFS

defines the KMP steelhead ESU to

include all native, naturally spawned

populations of steelhead (and their

progeny) residing in streams between

the Elk River (Oregon) and Klamath

River Basins (California), inclusive.

NMFS scientists have previously

examined the relationship between

hatchery and natural populations of

steelhead in this ESU and also assessed

whether any hatchery populations are

essential for their recovery (NMFS,

1998). At this time, NMFS does not

believe any specific hatchery

populations warrant listing. Also, NMFS

is proposing to list only the anadromous

life forms of O. mykiss.

Prohibitions and Protective Measures

Section 4(d) of the ESA requires

NMFS to issue protective regulations it

finds necessary and advisable to provide

for the conservation of threatened

species. Section 9 of the ESA prohibits

violations of protective regulations for

threatened species promulgated under

section 4(d). The 4(d) protective

regulations may prohibit, with respect

to the threatened species, some or all of

the acts which section 9 of the ESA

prohibits with respect to endangered

species. These section 9 prohibitions

and 4(d) regulations apply to all

individuals, organizations, and agencies

subject to U.S. jurisdiction. If NMFS

determines that the KMP steelhead ESU

warrants listing as a threatened species,

then the agency will develop and

promulgate a 4(d) protective regulation

for the ESU in a separate rulemaking.

The process for completing the 4(d) rule

will provide the opportunity for public

comment on the proposed protective

regulations.

In the case of threatened species,

NMFS has flexibility under section 4(d)

to tailor the protective regulations to

provide for the conservation of the

species. NMFS has recently published

4(d) regulations for 14 threatened ESUs

9812 Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules

of salmon and steelhead (65 FR 42422,

July 10, 2000) that adopt an array of

limits on take prohibitions. Some of the

broad categories of activities addressed

by these limits include: scientific

research; fish harvest; artificial

propagation; habitat restoration;

screening water diversions; routine road

maintenance; and municipal,

residential, commercial, and industrial

development and redevelopment. By

receiving NMFS approval under a limit,

governments and individuals obtain

assurance that their activities, when

implemented in accordance with the

criteria in the 4(d) rule, do not violate

ESA ‘‘take’’ prohibitions and will not be

subject to enforcement actions.

Section 7(a)(2) of the ESA requires

Federal agencies to consult with NMFS

to ensure that activities they authorize,

fund, or conduct are not likely to

jeopardize the continued existence of a

listed species or adversely modify

critical habitat. Examples of Federal

actions likely to affect steelhead in the

KMP steelhead ESU include authorized

land management activities (e.g., timber

sales and harvest, and livestock grazing)

of the U.S. Forest Service and Bureau of

Land Management, operation of

hydroelectric and storage projects

permitted by the Federal Energy

Regulatory Commission, and activities

permitted by the U.S. Army Corps of

Engineers under the Clean Water Act

and River and Harbors Act.

Sections 10(a)(1)(A) and 10(a)(1)(B) of

the ESA provide NMFS with authority

to grant exceptions to the ESA’s ‘‘take’’

prohibitions. Section 10(a)(1)(A)

scientific research and enhancement

permits may be issued to entities

(Federal and non-Federal) for scientific

purposes or to enhance the propagation

or survival of a listed species. NMFS has

issued section 10(a)(1)(A) research/

enhancement permits for listed salmon

and steelhead for a number of activities,

including trapping and tagging,

electroshocking to determine population

presence and abundance, removal of

fish from irrigation ditches, and

collection of adult fish for artificial

propagation programs.

Section 10(a)(1)(B) of the ESA

incidental take permits may be issued to

non-Federal entities performing

activities which may incidentally take

listed species, so long as the taking is

incidental to, and not the purpose of,

the carrying out of an otherwise lawful

activity. The types of activities

potentially requiring a section

10(a)(1)(B) incidental take permit

include the operation and release of

artificially propagated fish by state or

privately operated and funded

hatcheries, state or academic research

not receiving Federal authorization or

funding, logging, road building, grazing,

and diverting water onto private lands.

Policies on Endangered and Threatened

Fish and Wildlife

On July 1, 1994, NMFS, jointly with

USFWS, published a series of policies

regarding listings under the ESA,

including: (1) a policy regarding peer

review of scientific data (59 FR 34270)

and (2) a policy to identify, to the

maximum extent possible, those

activities that would or would not

constitute a violation of section 9 of the

ESA (59 FR 34272). The intent of the

first policy is to ensure that listings are

based on the best scientific and

commercial data available. Prior to a

final listing and concurrent with the

public comment period, NMFS will

solicit the expert opinions of at least

three qualified specialists. Independent

peer reviewers will be selected from the

academic and scientific community,

Native American tribal groups, Federal

and state agencies, and the private

sector. The intent of the second policy

is to increase public awareness of the

effect of this listing on proposed and

ongoing activities within the species’

range. If NMFS determines that the KMP

steelhead ESU warrants listing as a

threatened species, the agency will

identify activities that will be

considered likely to result in section 9

violations as well as specific activities

(to the extent known) that will not be

considered likely to result in section 9

violations once a 4(d) rule has been

adopted.

Critical Habitat

Section 4(a)(3)(A) of the ESA requires

that, to the maximum extent prudent

and determinable, NMFS designate

critical habitat concurrently with a

determination that a species is

endangered or threatened. While NMFS

has completed an initial analysis of the

biological status of steelhead in the

KMP steelhead ESU, it has not

performed the full analysis necessary for

designating critical habitat at this time.

If this ESU is listed under ESA, it is

NMFS’ intent to develop a critical

habitat proposal as soon as the analysis

can be completed.

Public Comments Solicited

NMFS has exercised its best

professional judgement in developing

this proposal to list the KMP steelhead

ESU. To ensure that the final action

resulting from this proposal will be as

accurate and effective as possible,

NMFS is soliciting data, comments, and

suggestions from the public, other

governmental agencies, the scientific

community, industry, and any other

interested parties. NMFS is interested in

any additional information concerning:

(1) biological or other relevant data

concerning any threats to steelhead in

this ESU; (2) the range, distribution, and

population size of steelhead in this ESU;

(3) current or planned activities in the

range of the ESU and their possible

impact on KMP steelhead; (4) steelhead

escapement, particularly recent

escapement data partitioned into natural

and hatchery components; (5) the

proportion of naturally reproducing fish

that were reared as juveniles in a

hatchery; (6) homing and straying of

natural and hatchery fish; (7) the

reproductive success of naturally

reproducing hatchery fish (i.e.,

hatchery-produced fish that spawn in

natural habitat) and their relationship to

the proposed ESU; (8) efforts being

made to protect native, naturally

reproducing populations of steelhead in

this ESU; and (9) suggestions for

specific regulations under section 4(d)

of the ESA that should apply to

steelhead in this ESU. Suggested

regulations may address activities,

plans, or guidelines that, despite their

potential to result in the take of listed

fish, will ultimately promote the

conservation and recovery of threatened

steelhead. NMFS will review all public

comments and any additional

information regarding the status of the

KMP steelhead ESU and will complete

a final rule by March 31, 2001, as

required under the recent Court order.

Joint Commerce-Interior ESA

implementing regulations state that the

Secretary ‘‘shall promptly hold at least

one public hearing if any person so

requests within 45 days of publication

of a proposed regulation to list ... or to

designate or revise critical habitat.’’ (see

50 CFR 424.16(c)(3)). A public hearing

schedule on this proposal is contained

in this notice. Public hearings will

provide the opportunity for the public

to give comments and to permit an

exchange of information and opinion

among interested parties. NMFS

encourages the public’s involvement in

such ESA matters. Written comments on

the proposed rule should be submitted

to NMFS by March 5, 2001.(see

ADDRESSES and DATES).

Special Accommodations

These hearings are physically

accessible to people with disabilities.

Requests for sign language

interpretation or other aids should be

directed to Garth Griffin or Craig

Wingert (see ADDRESSES).

Federal Register / Vol. 66, No. 29 / Monday, February 12, 2001 / Proposed Rules 9813

References

A complete list of all cited references

is available upon request (see

ADDRESSES).

Classification

National Environmental Policy Act

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 has

concluded that ESA listing actions are

not subject to the environmental

assessment requirements of the National

Environmental Policy Act (NEPA). See

NOAA Administrative Order 216–6.

Executive Order 12866 and Regulatory

Flexibility Act

As noted in the Conference Report on

the 1982 amendments to the ESA,

economic impacts cannot be considered

when assessing the status of species.

Therefore, the economic analysis

requirements of the Regulatory

Flexibility Act (RFA) are not applicable

to the listing process. In addition, this

proposed rule is exempt from review

under Executive Order 12866.

Executive Order 13132–Federalism

In keeping with the intent of the

Administration and Congress to provide

continuing and meaningful dialogue on

issues of mutual state and Federal

interest, NMFS has conferred with state

and local government agencies in the

course of assessing the status of the

KMP steelhead ESU and considered,

among other things, state and local

conservation measures. State and local

governments have expressed support for

the conservation of KMP steelhead and

made efforts to reduce risks faced by the

ESU. The history and content of this

dialogue, as well as the basis for this

proposed action, are described in the

SUPPLEMENTARY INFORMATION section of

this document and in other Federal

Register documents preceding this

proposed action. (See 61 FR 41541,

August 9, 1996; 62 FR 43974, August 18,

1997; and 63 FR 13347, March 19,

1998). NMFS’ staff have had numerous

discussions with various governmental

agency representatives regarding the

status of this ESU and have sought

working relationships with agencies and

others in order to promote salmonid

restoration efforts. In addition, NMFS’

staff have given presentations to

interagency forums and other interested

groups considering conservation

measures. As the process continues,

NMFS intends to continue engaging in

informal and formal contacts with

affected state, local, or regional entities,

giving careful consideration to all

written or oral comments received. As

one part of that continued process,

NMFS has scheduled public hearings on

this proposed action. NMFS also

intends to consult with appropriate

elected officials in consideration of a

final rule.

Executive Order 13175–Consultation

and Coordination With Indian Tribal

Governments

NMFS has consulted with affected

tribes throughout the course of the West

Coast steelhead status review. These

consultations have included numerous

presentations and discussions with

tribal officials and representatives, in

particular, the Klamath River Basin

tribes, regarding the status of the KMP

steelhead and conservation efforts

directed at this ESU. NMFS will

continue to actively engage the affected

tribes and will seek their assistance and

expertise to complete the agency’s KMP

steelhead status review. Moreover, the

agency will carry out its responsibilities

under the Act in a manner that

recognizes tribal sovereignty and

harmonizes the agency’s statutory

missions with Federal trust

responsibilities to tribes and that strives

to ensure that Indian tribes do not bear

a disproportionate burden for the

conservation of listed species. In

keeping with E.O. 13175, NMFS will

summarize the history of consultations

with affected tribes and describe the

manner in which tribal concerns were

addressed at the time of the final listing

determination for KMP steelhead.

List of Subjects in 50 CFR Part 223

Endangered and threatened species,

Exports, Imports, Marine mammals,

Transportation.

Dated: February 7, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set forth in the

preamble, 50 CFR part 223 is proposed

to be 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 et seq.; 16 U.S.C.

742a et seq.; 31 U.S.C. 9701.

2. In § 223.102, paragraph (a)(23) is

added to read as follows:

§ 223.102 Enumeration of threatened

species.

* * * * *

(a) * * *

(23) Klamath Mountains Province

steelhead (Oncorhynchus mykiss).

Includes all naturally spawned

populations of steelhead (and their

progeny) in coastal river basins ranging

from the Elk River in Curry County,

Oregon, to the Klamath River, inclusive,

in Del Norte County, California.

* * * * *

[FR Doc. 01–3545 Filed 2–9–01; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 622

[I.D. 013001A]

Fisheries of the Caribbean, Gulf of

Mexico, and South Atlantic; SnapperGrouper Fishery of the South Atlantic;

Public Hearings

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration,

Commerce.

ACTION: Notice of public hearing; request

for comments.

SUMMARY: The South Atlantic Fishery

Management Council (Council) will

hold a public hearing to address issues

regarding the use of powerhead gear (or

‘‘bangsticks’’) by recreational and

commercial divers fishing in the

Exclusive Economic Zone off the east

coast of Florida, within the Council’s

area of jurisdiction, for reef fish species

in the management unit of the Fishery

Management Plan for the SnapperGrouper Fishery of the South Atlantic

Region (FMP).

DATES: Written comments will be

accepted until 12 noon, February 26,

2001. For the specific date and time of

the hearing see SUPPLEMENTARY

INFORMATION.

ADDRESSES: Written comments should

be sent to Bob Mahood, Executive

Director, South Atlantic Fishery

Management Council, One Southpark

Circle, Suite 306, Charleston, SC 29407-

4699; telephone: (843) 571-4366; FAX

(843) 769-4520; email address:

safmc@noaa.gov. Copies of the Options

Paper addressing powerhead gear issues

are available from the Council at the

same address. The meeting will be held

in Atlantic Beach, FL.