[Federal Register Volume 66, Number 6 (Tuesday, January 9, 2001)]
[Proposed Rules]
[Pages 1628-1632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-500]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH68


Endangered and Threatened Wildlife and Plants; Proposed Rule To 
List the Dolly Varden as Threatened in Washington Due to Similarity of 
Appearance to Bull Trout

AGENCY: Fish and Wildlife Service, Interior.

[[Page 1629]]


ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Dolly Varden (Salvelinus malma) as threatened under the 
``Similarity of Appearance'' provisions of the Endangered Species Act 
of 1973, as amended. In Washington, the Dolly Varden, an anadromous 
char and a member of the family Salmonidae, occurs in several river 
drainages within the Coastal-Puget Sound distinct population segment of 
the bull trout (Salvelinus confluentus), which is listed as a 
threatened species under the Act. Because of the close resemblance in 
appearance between bull trout and Dolly Varden, law enforcement 
personnel have substantial difficulty in differentiating between the 
two species. The determination of threatened status due to similarity 
of appearance for Dolly Varden will extend to this species the 
prohibitions against take that apply to bull trout, and will 
substantially facilitate law enforcement actions to protect bull trout. 
Actions that result in take of Dolly Varden may include capture as a 
result of fishing and actions that degrade or destroy habitat.

DATES: Comments from all interested parties must be received by March 
12, 2001. Public hearing requests must be received by February 23, 
2001.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    (1) You may submit written comments to Gerry Jackson, Manager, U.S. 
Fish and Wildlife Service, Western Washington Office, 510 Desmond Drive 
SE, Suite 102, Lacey, Washington 98503.
    (2) You may send comments by e-mail to <a href="/cdn-cgi/l/email-protection#afcbc0c3c3d6f0d9ceddcbcac1efc9d8dc81c8c0d9"><span class="__cf_email__" data-cfemail="73171c1f1f0a2c05120117161d331504005d141c05">[email protected]</span></a>. Please 
submit these comments as an ASCII file and avoid the use of special 
characters and any form of encryption. Please also include ``Attn: [RIN 
1018-AH68]'' and your name and return address in your e-mail message. 
If you do not receive a confirmation from the system that we have 
received your e-mail message, contact us directly by calling our 
Western Washington Office at phone number 360-753-9440. Please note 
that the e-mail address ``<a href="/cdn-cgi/l/email-protection#492d26252530163f283b2d2c27092f3e3a672e263f"><span class="__cf_email__" data-cfemail="4c2823202035133a2d3e2829220c2a3b3f622b233a">[email protected]</span></a>'' will be closed out at 
the termination of the public comment period.
    (3) You may hand-deliver comments to our Western Washington Office 
at 510 Desmond Drive SE, Suite 102, Lacey, Washington.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Gerry Jackson, Manager, Western 
Washington Office (see ADDRESSES section) (telephone 360/753-9440; 
facsimile 360/753-9008).

SUPPLEMENTARY INFORMATION:

Background

    Section 4(e) of the Endangered Species Act (Act) of 1973, as 
amended (16 U.S.C., 1531 et seq., and implementing regulations (50 CFR 
17.50-17.52), authorize the treatment of a species (subspecies or 
population segment) as endangered or threatened if (a) The species so 
closely resembles in appearance a listed endangered or threatened 
species that law enforcement personnel would have substantial 
difficulty in attempting to differentiate between the listed and 
unlisted species; (b) the effect of this substantial difficulty is an 
additional threat to an endangered or threatened species; and (c) such 
treatment of an unlisted species will substantially facilitate the 
enforcement and further the purposes of the Act. Listing a species as 
endangered or threatened under the similarity-of-appearance provisions 
of the Act extends the take prohibitions of section 9 to cover the 
species. A designation of endangered or threatened due to similarity of 
appearance under section 4(e) of the Act, however, does not extend 
other protections of the Act, such as the consultation requirements for 
Federal agencies under section 7 and the recovery planning provisions 
under section 4(f), that apply to species that are listed as endangered 
or threatened under section 4(a).
    Bull trout (Salvelinus confluentus), members of the family 
Salmonidae, are char (trout in the genus Salvelinus) that are native to 
the Pacific Northwest and western Canada. On November 1, 1999, we added 
the bull trout to the List of Endangered and Threatened Wildlife (50 
CFR 17.11) as a threatened species throughout its range in the 
coterminous United States (64 FR 58910). This determination was based 
on our finding that the Coastal-Puget Sound and St. Mary-Belly River 
distinct population segments of bull trout are threatened, coupled with 
our earlier findings of threatened status for the Klamath River, 
Columbia River, and Jarbidge River distinct population segments (63 FR 
31647; 64 FR 17110).
    Bull trout and Dolly Varden (Salvelinus malma) occur together only 
within the area occupied by the Coastal-Puget Sound bull trout distinct 
population segment. This area of overlap includes western Washington 
(west of the Cascades) and the Olympic Peninsula (64 FR 58910). 
Although these two species of ``native char'' were previously 
considered a single species, the bull trout and the Dolly Varden are 
now formally recognized as two separate species (Cavender 1978; Robins 
et al. 1980; Bond 1992). Specific distinctions between bull trout and 
Dolly Varden are based on morphometrics (measurements), meristic 
variation (variation in characters that can be counted), osteological 
characteristics (bone structure), and distributional evidence (Cavender 
1978). Currently, genetic analyses can distinguish between the two 
species (Crane et al. 1994; Baxter et al. 1997; Leary and Allendorf 
1997). Bull trout and Dolly Varden, however, are virtually impossible 
to differentiate visually, and misidentifications occur even using an 
established morphometric field identification procedure. In a study of 
the errors in, and problems with species identification, bull trout 
were misidentified as Dolly Varden 48 percent of the time, and the 
error rate was 2.5 percent for Dolly Varden misidentified as bull trout 
(Haas and McPhail 2000). Washington Department of Fish and Wildlife 
(WDFW) currently manages the two species together as ``native char.'' 
Consequently, we delineated 34 subpopulations of ``native char'' (bull 
trout, Dolly Varden, or both species) within the Coastal-Puget Sound 
distinct population segment (64 FR 58910).
    Fifteen of the thirty-four subpopulations had been analyzed when 
the bull trout was listed as threatened. Bull trout likely occur in the 
majority of the remaining 19 subpopulations. Genetic analyses 
determined that three of the tested ``native char'' subpopulations 
within the Coastal-Puget Sound distinct population segment contained 
only Dolly Varden (64 FR 58910). Because of the limited sample sizes 
used in the analyses, however, and evidence that bull trout and Dolly 
Varden frequently co-occur, we considered it premature to conclude that 
bull trout do not exist in these subpopulations. The proposal to list 
the Dolly Varden due to similarity of appearance to bull trout includes 
all 34 ``native char'' subpopulations described in the bull trout rule 
(64 FR 58910).
    We did not include the similarity-of-appearance designation for 
Dolly Varden in the listing for bull trout based on WDFW's management 
strategies for these two species. We considered that, for fisheries 
regulations, WDFW manages the two species together as

[[Page 1630]]

``native char.'' For conservation management, WDFW has combined the two 
species into common inventory stock units (spawning populations) that 
represent composites of both bull trout and Dolly Varden char within 
specific areas (WDFW 1998). After further consideration, however, we 
have determined that law enforcement personnel will have substantial 
difficulty in attempting to differentiate between bull trout and Dolly 
Varden because of their close resemblance in appearance. The effect of 
such a close resemblance between the two species will be an additional 
threat to bull trout because of the difficulty in prosecuting cases of 
illegal take of bull trout.
    Designating Dolly Varden as threatened due to similarity of 
appearance will extend take prohibitions to this species in the 34 
``native char'' subpopulations in the Coastal-Puget Sound area. The 
term ``take'' as defined in section 3 of the Act means to ``harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
to attempt to engage in any such conduct.'' In the definition of take, 
the term ``harass'' is defined (50 CFR 17.3) as ``an intentional or 
negligent act or omission which creates the likelihood of injury to 
wildlife by annoying it to such an extent as to significantly disrupt 
normal behavioral patterns which include, but are not limited to, 
breeding, feeding, or sheltering.'' The term ``harm'' is further 
defined (50 CFR 17.3) as meaning, in the definition of take, an act 
which actually kills or injures wildlife. Such actions may include 
``significant habitat modification or degradation where it actually 
kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding, or sheltering.'' 
Because Dolly Varden and bull trout cannot easily be distinguished 
visually, take prohibitions against any actions that may result in harm 
or harassment to bull trout will also apply to Dolly Varden where 
individuals cannot readily be identified as to species. Such actions 
may include not only capture as a result of fishing, but any actions 
that might result in habitat degradation or destruction.

Special Rule

    In the final listing for bull trout, we included a special rule, as 
provided by section 4(d) of the Act, exempting certain activities from 
the take prohibition. This special rule exempts from the take 
prohibition fishing activities authorized under State, National Park 
Service, or Native American Tribal laws and regulations and take for 
educational purposes, scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes consistent with the Act (64 FR 58910). We 
propose to extend the same take prohibitions to Dolly Varden as are in 
place to protect bull trout and, if this proposed rule is made final, 
this special regulation will also apply to the Dolly Varden in the 34 
``native char'' populations in the Coastal-Puget Sound area.
    Actions that would and would not likely be considered a violation 
of section 9 that apply to bull trout were included in the final rule 
to list the bull trout (64 FR 58910). These also would apply to Dolly 
Varden in the 34 ``native char'' subpopulations in the Coastal-Puget 
Sound area if this rule is made final. Actions that, without a permit 
or other authorization from us, are likely to be considered a violation 
of section 9 include:
    (1) Take of Dolly Varden without a permit or other incidental take 
authorization from us. Take includes harassing, harming, pursuing, 
hunting, shooting, wounding, killing, trapping, capturing, or 
collecting, or attempting any of these actions, except in accordance 
with applicable State, National Park Service, and Tribal fish and 
wildlife conservation laws and regulations;
    (2) Possessing, selling, delivering, carrying, transporting, or 
shipping illegally taken Dolly Varden;
    (3) Unauthorized interstate and foreign commerce (commerce across 
State and international boundaries) and import/export of Dolly Varden;
    (4) International introduction of nonnative fish species that 
compete or hybridize with Dolly Varden;
    (5) Destruction or alteration of Dolly Varden habitat by dredging, 
channelization, diversion, instream vehicle operation or rock removal, 
grading of unimproved roads, stormwater and contaminant runoff from 
roads, failing road culverts, and road culverts that block fish 
migration or other activities that result in the destruction or 
significant degradation of cover, channel stability, substrate 
composition, turbidity, temperature, and migratory corridors used for 
foraging, cover, migration, and spawning;
    (6) Discharges or dumping of toxic chemicals, silt, or other 
pollutants into waters supporting Dolly Varden that result in death or 
injury of this species; and
    (7) Destruction or alteration of riparian or lakeshore habitat and 
adjoining uplands of waters supporting Dolly Varden by timber harvest, 
grazing, mining, hydropower development, road construction, or other 
developmental activities that result in destruction or significant 
degradation of cover, channel stability, substrate composition, 
temperature, and migratory corridors used by these species for 
foraging, cover, migration, and spawning.
    We will review other activities not identified above on a case-by-
case basis to determine if a violation of section 9 of the Act may be 
likely to result from such activity. We do not consider this list to be 
exhaustive and provide it as information to the public.
    The designation of Dolly Varden as threatened due to similarity of 
appearance will substantially facilitate law enforcement protection of 
bull trout and further the purposes of the Act. Therefore, we are 
proposing to list the Dolly Varden as threatened under section 4(e), 
``Similarity of Appearance'' provisions, of the Act.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we are 
soliciting comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule. Any final regulation 
concerning the listing of this species will take into consideration the 
comments and any additional information received by us, and such 
communications may lead to a final regulation that differs from this 
proposal.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    The Act provides for a public hearing on this proposal, if 
requested. Requests must be received within 45 days of the date of 
publication of the proposal in

[[Page 1631]]

the Federal Register. Such requests must be made in writing and 
addressed to Manager, U.S. Fish and Wildlife Service, Western 
Washington Office, 510 Desmond Dr. SE., Suite 102, Lacey, Washington 
98503.

Executive Order 12866

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand including answers to the following: (1) 
Are the requirements of the rule clear? (2) Is the discussion of the 
rule in the Supplementary Information section of the preamble helpful 
in understanding the rule? What else could we do to make the rule 
easier to understand?
    Send any comments that would help us improve the readability of 
this proposed rule to the Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may also e-mail the comments to this address: <a href="/cdn-cgi/l/email-protection#b6f3cec5d3d5f6dfd9c598d2d9df98d1d9c0"><span class="__cf_email__" data-cfemail="c88db0bbadab88a1a7bbe6aca7a1e6afa7be">[email protected]</span></a>.

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.) and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered species, see 50 CFR 17.22.

National Environmental Policy Act

    We have determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to Section 4 of the Act. 
We published a notice outlining our reasons for this determination in 
the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

Baxter, J.S., E.B. Taylor, R.H. Devlin, J. Hagen, and J.D. McPhail. 
1997. Evidence for natural hybridization between Dolly Varden 
(Salvelinus malma) and bull trout (Salvelinus confluentus) in a 
northcentral British Columbia watershed. Canadian Journal of 
Fisheries and Aquatic Sciences 54:421-429.
Bond, C.E. 1992. Notes on the nomenclature and distribution of the 
bull trout and the effects of human activity on the species. Pages 
1-4 in Howell, P.J. and D.V. Buchanan, editors. Proceedings of the 
Gearhart Mountain bull trout workshop. Oregon Chapter of the 
American Fisheries Society.
Cavender, T.M. 1978. Taxonomy and distribution of the bull trout, 
Salvelinus confluentus (Suckley) from the American Northwest. 
California Fish and Game 3:139-174.
Crane, P.A., L.W. Seeb, and J.E. Seeb. 1994. Genetic relationships 
among Salvelinus species inferred from allozyme data. Canadian 
Journal of Fisheries and Aquatic Sciences 51(Suppl. 1):182-197.
Haas, G.R., and J.D. McPhail. 2000. Errors and problems with species 
identification: general comments and the specific test case of bull 
trout (Salvelinus confluentus) and Dolly Varden (S. malma). British 
Columbia Ministry of Fishes, Research Section, University of British 
Columbia, Vancouver, Canada. 26 pp.
Leary, R.F., and F.W. Allendorf. 1997. Genetic confirmation of 
sympatric bull trout and Dolly Varden in Western Washington. 
Transactions of the American Fisheries Society 126:715-720.
Robins, C.R., R.M. Bailey, C.E. Bond, J.R. Brooker, E.H. Lachner, 
R.N. Lea, and W.B. Scott. 1980. A list of common and scientific 
names of fishes from the United States and Canada. American 
Fisheries Society Special Publication 12, Bethesda, Maryland. Pages 
19, 73.
Washington Department of Fish and Wildlife. 1998. 1998 Washington 
salmonid stock inventory. Bull trout and Dolly Varden appendix. 
Washington Dept. of Fish and Wildlife, Olympia. 437 pp.

Author

    The primary author of this document is Dr. L. Karolee Owens (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. Law. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under ``FISHES,'' to the List of Endangered and Threatened 
Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                              Veterbrate population
------------------------------------------------------   Historic range      where endangered  or       Status     When listed    Critical     Special
           Common name              Scientific name                               threatened                                      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Dolly Varden (char).............  Salvelinus malma...  U.S.A. (OR, WA,     Coastal-Puget Sound      T(S/A)                               NA     17.44(w)
                                                        AK), Canada, E.     (U.S.A-WA) all Pacific
                                                        Asia.               Coast drainages north
                                                                            of Columbia R.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 1632]]

    Dated: December 13, 2000.
Kenneth L. Smith,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-500 Filed 1-8-01; 8:45 am]
BILLING CODE 4310-55-U


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