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 Department of the Interior Fish and Wildlife Service 50 CFR Part 17
RIN 1018-AH68
 AGENCY: Fish and Wildlife Service, Interior.
 ACTION: Proposed rule.
 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 dolly_varden@fws.gov. 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 “dolly_varden@fws.gov” 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 
                    ( print 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 
                    ( print 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: Exsec@ios.doi.gov. 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 § 17.11(h) by adding the following, in alphabetical order under “FISHES,” to the List of Endangered and Threatened Wildlife to read as follows: § 17.11
  
 (h) * * * Species
Historic range
Veterbrate population 
                                     where endangered  
                                     or threatened
Status
When listed
Critical 
                                     habitat
Special 
                                     rulesCommon name
Scientific name*         *         *         *         *         *         ***Fishes***         *         *         *         *         *         *Dolly Varden (char)
*Salvelinus malma*
U.S.A. (OR, WA, AK), Canada, E. Asia
Coastal-Puget Sound (U.S.A-WA) all Pacific Coast drainages north of Columbia R
T(S/A)

NA
17.44(w)*         *         *         *         *         *         *
 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