[Federal Register Volume 60, Number 189 (Friday, September 29, 1995)]
[Proposed Rules]
[Pages 50530-50539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24319]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 227 and 425
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17 and 425
RIN 1018-AD 12
Endangered and Threatened Species; Proposed Threatened Status for
a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo
salar) in Seven Maine Rivers
AGENCIES: National Marine Fisheries Service (NMFS), National Oceanic
and Atmospheric Administration (NOAA), Commerce; and Fish and Wildlife
Service (FWS), Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The NMFS and the FWS (collectively, the Services) have
completed a status review of U.S. Atlantic salmon populations and
identified a distinct population segment (DPS) in seven Maine rivers.
Atlantic salmon in these rivers are likely to become endangered in the
foreseeable future and therefore are being proposed for listing as
threatened pursuant to the Endangered Species Act of 1973 (Act). This
proposed rule includes joint regulations which apply all prohibitions
of 50 CFR 17.31 to the DPS, but allows exceptions for incidental take
under sections 4(d) and 10 of the Act. The special rule allows for a
state plan, approved by the Services, to define the manner in which
certain activities could be conducted without violating the Act. If
this proposed listing is finalized, the protective measures of the Act
will extend to the Atlantic salmon in the seven rivers, and a recovery
plan will be prepared and implemented.
DATES: Comments from all interested parties must be received by
December 28, 1995. Public hearing requests must be received by November
13, 1995.
ADDRESSES: Comments and materials concerning this proposed rule and
requests for public hearings should be sent to the Chief, Division of
Endangered Species, FWS, 300 Westgate Center Drive, Hadley,
Massachusetts 01035, or the Chief, Habitat and Protected Resources
Division, NMFS, 1 Blackburn Drive, Gloucester, Massachusetts 01930.
FOR FURTHER INFORMATION CONTACT: Paul Nickerson at 413-253-8615 or Mary
Colligan at 508-281-9116.
SUPPLEMENTARY INFORMATION:
Background
In October and November 1993, the Services received a petition
under the Act to list anadromous Atlantic salmon as endangered. The
Services published a notice of finding on January 20, 1994 (59 FR
3067), stating that the petition presented substantial information
indicating that the requested action may be warranted. The notice also
requested information from the public. A biological review team (Team)
comprised of staff from the Services compiled and analyzed all
available scientific information pertaining to the status of anadromous
Atlantic salmon in the United States. The Team prepared a report
entitled ``Status Review for Anadromous Atlantic Salmon in the United
States, January 1995'' (Status Review). The Status Review provides
detailed information and references used as the basis for this proposed
rule. This Status Review was summarized in a March 17, 1995, finding
(60 FR 14410) and is available upon request (see ADDRESSES). Further
details from the Status Review are provided below. In the March 17,
1995, finding, the Services stated that they would promptly publish a
proposed rule with appropriate listing actions.
Life History
Anadromous Atlantic salmon have a relatively complex life history
that extends from spawning and juvenile rearing in freshwater rivers to
extensive feeding migration in the high seas. As a result, Atlantic
salmon have several distinct phases in their life history that are
identified by specific behavioral and physiological changes. Adult
Atlantic salmon ascend the rivers of New England beginning in spring, a
migration that peaks in June and continues into fall. Spawning occurs
in late October through November. Good spawning habitat has a gravel
substrate and adequate water circulation to keep the eggs well
oxygenated. Female anadromous Atlantic salmon produce between 1,500 and
1,800 eggs per kilogram (2.2 pounds) of body weight; on average each
female Maine Atlantic salmon produces 7,200 eggs. Eggs hatch in late
March or April and the resulting alevins remain in the redd for about
six weeks and are nourished by their yolk sac. When the alevins emerge
from the gravel about mid-May and begin feeding, they are referred to
as fry. Fry become parr as vertical bars become visible on the sides of
their bodies. In spring, when the parr are two or three years of age
and 12.5 centimeters (cm) to 15 cm (5 to 6 inches) long, they undergo
smoltification, a process where morphological and physiological changes
prepare the smolt for the transition from fresh to salt water. Most
smolts in New England rivers migrate to sea in May and begin their
ocean feeding migration.
The marine life history of Atlantic salmon of U.S. origin is not as
well understood as the freshwater phase. Scientists have discovered
correlations between natural mortality in the marine environment and
abiotic factors, particularly sea surface temperature. Atlantic salmon
of U.S. origin are highly migratory, undertaking long marine migrations
from the mouths of U.S. rivers to the northwest Atlantic Ocean where
they are distributed seasonally over much of the region. Upon entry
into the nearshore waters of Canada, the U.S. post-smolts become part
of a mixture of stocks of Atlantic salmon from various North American
streams. Data from commercial harvest indicate that post-smolts
overwinter in the southern Labrador Sea and in the Bay of Fundy. Direct
sampling during the winter months is needed to better understand post-
smolt Atlantic salmon distribution in the North Atlantic. Most Atlantic
salmon of U.S. origin spend two winters in the ocean before returning
to fresh water for spawning. Those that return after only one year at
sea are called grilse.
Consideration as a ``Species'' Under the Act
The Act defines species as ``any species of fish or wildlife or
plants, and any distinct population segment of any species of
vertebrate fish or wildlife that interbreeds when mature.'' This
definition allows for the recognition of distinct population segments
at levels below taxonomically recognized species or subspecies. To
qualify as a DPS, a population (or group of populations) of indigenous
Atlantic salmon must be reproductively isolated from conspecific
[[Page 50531]]
populations and must be biologically significant.
The Team determined that the Atlantic salmon populations in the
Sheepscot, Ducktrap, Narraguagus, Pleasant, Machias, East Machias, and
Dennys rivers, are, as a group, reproductively isolated, and therefore,
discrete. These populations are also, as a group, biologically
significant. The Services are proposing that these seven populations be
listed as one DPS but that management be conducted on a watershed
basis. Since the persistence of Atlantic salmon in the Kennebec River,
Penobscot River, Tunk Stream, and St. Croix River and their link to
native populations warrant further study, these populations were
designated as category 2 candidate species by FWS and candidate species
by NMFS (60 FR 14410, March 17, 1995). Since that time, the FWS has
clarified that only species for which it has sufficient information on
biological vulnerability and threat(s) to support issuance of a
proposed listing are designated as candidate species. This definition
is synonymous with the FWS' former category 1 candidate species. Former
category 2 species are regarded by the FWS as species of concern, and
are not, at present, candidates for listing. NMFS maintains its
candidate species list, however, NMFS and FWS plan to issue joint
guidance on candidate species soon. Specific information needs for
these four rivers are identified below under Available Conservation
Measures.
A critical factor in determining the significance of the river
populations of U.S. Atlantic salmon is the continuous persistence of a
substantial component of native stock reproduction. If the documented
absence of wild Atlantic salmon from natal habitat were to occur for at
least two generations (12 years), this would suggest the total loss of
the river's native population even under the most conservative
approach. Such a gap has not occurred in the DPS rivers. While it is
unlikely that U.S. Atlantic salmon exist in a genetically pure native
form in any of the DPS rivers, these stocks represent a significant
component of the species' genetic legacy.
Naturally reproducing populations of Atlantic salmon in U.S. rivers
are substantially reproductively isolated from those in Canada. Within
the United States, Atlantic salmon populations exhibit strong fidelity
to natal streams. Although there is some evidence of straying,
recolonization from adjacent watersheds appears to be minimal. Gene
flow between wild populations, or stock transfers, was determined not
to have been sufficient to have eliminated all historic differences. As
a group, the seven populations composing the DPS meet the criterion of
reproductive isolation.
In salmonids, adaptations to local ecosystems are important to the
survival of populations and the survival of the species throughout its
range. An examination of U.S. populations of Atlantic salmon provides
evidence of their distinctness from stocks in Canada and northern
Europe. Historically, adult spawners in U.S. rivers have been
predominantly 2-sea-winter fish, whereas many Canadian and European
stocks return predominantly after 1 year at sea. The riverine habitat
occupied by U.S. Atlantic salmon is distinctive in that it is located
at the southern extent of the range of the species in North America.
U.S. rivers produce smolts that are younger than those produced in
rivers at the northern extreme of the range. Atlantic salmon have
persisted in the Sheepscot, Ducktrap, Narraguagus, Pleasant, Machias,
East Machias, and Dennys rivers, and, consequently, represent the last
known wild remnant of U.S. Atlantic salmon. All of these factors
indicate that the DPS is discrete and biologically significant.
Distribution and Abundance
The original range of Atlantic salmon in the United States was from
the Housatonic River in Connecticut, north to U.S. tributaries of the
St. Johns River in New Brunswick, Canada. The historic Atlantic salmon
run in the United States has been estimated to have approached 500,000
fish.
The species began to disappear from U.S. rivers 150 years ago and
currently only remnant populations occur in a limited number of rivers
in Maine. Construction of hundreds of dams blocked salmon migration and
reduced spawning habitat to a fraction of that available historically.
Water pollution and overexploitation further reduced the abundance of
Atlantic salmon. Indigenous Atlantic salmon in rivers south of the
Kennebec River were extirpated by the mid-1800's. In addition, some
populations north of the Kennebec River were also extirpated; most of
these were in small rivers with less than 1 hectare (2.5 acres) of
available nursery habitat. Beginning in the mid-1800's and continuing
to the present time, numerous restoration efforts were undertaken. The
Connecticut and Merrimack rivers provided nearly 40 percent of historic
U.S. Atlantic salmon habitat. These rivers are currently the focus of
restoration efforts using nonindigenous stocks, and extensive efforts
are being undertaken to provide access to historic habitat.
The North American Salmon Working Group's method for estimating the
escapement goal for adequate egg deposition for each river was used.
Thus, an escapement goal was determined for each river and the return
calculated as a percentage of the escapement goal. Throughout the past
24 years, the Dennys and Narraguagas rivers have had the best returns
relative to available habitat, averaging 20 percent of escapement goal.
The Pleasant, Sheepscot, and Machias rivers have had returns that
averaged between 10 and 12 percent of escapement goal. However, recent
downward trends in abundance have put most rivers at less than 10
percent of their respective escapement goals. Only the Narraguagas
River has exceeded 10 percent in the past seven years.
The combination of low relative abundance and low numbers relative
to spawning requirements demonstrates that the DPS is likely to become
endangered within the foreseeable future throughout all or a
significant portion of its range.
Summary of Factors Affecting the Species
Section 4 of the Act and regulations promulgated to implement the
listing provisions of the Act (50 CFR part 424) set forth the
procedures for adding species to the Federal list. Section 4 also
requires that listing determinations be based solely on the best
scientific and commercial data available, without reference to possible
economic or other impacts of such determinations. A species may be
determined to be endangered or threatened due to one or more of the
five factors described in section 4(a)(1) of the Act. These factors and
their application to the Atlantic salmon DPS are:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
The construction of dams with either inefficient or non-existent
fishways was a major cause for the decline of U.S. Atlantic salmon.
Dams adversely impact Atlantic salmon by impeding both their upstream
and downstream migration, increasing predation, altering the chemistry
and flow pattern of rivers, increasing water temperature, and reducing
available flow downstream. Currently, there are no dams on rivers in
the DPS that have the potential to adversely impact the species. The
Machias and Dennys rivers have natural falls that may partially bar
salmon migration at certain flows. Beaver dams
[[Page 50532]]
and debris dams have been documented on many of the rivers within the
DPS. Typically, these are partial obstructions and are ephemeral in
nature.
One of the predominant land uses of central and northern coastal
Maine watersheds is the growth and harvest of forest products. Forest
management practices can cause numerous short- and long-term negative
impacts to Atlantic salmon. Deforestation alters the water retention of
watersheds resulting in high seasonal runoff followed by inadequate
river flows. The removal of riparian vegetation reduces shading and
increases water temperature. Poor logging practices and road
construction adjacent to streams results in the deposition of
substantial loads of woody debris and silt into waterways. Insecticides
used to control insect infestations and herbicides used to manage
competing vegetation enter waterways and adversely affect salmon. While
historic forest practices have had harmful effects on Atlantic salmon
in certain watersheds, numerous state and Federal laws now exist to
prevent adverse impacts to Atlantic salmon and other aquatic species.
Current forest practices are not considered a major threat to Atlantic
salmon.
Another significant land use in eastern Maine watersheds is lowbush
blueberry agriculture. Water extraction and diversion from rivers and
streams for blueberry cultivation can make habitat unsuitable for
Atlantic salmon. The herbicide hexazinone (velpar) is applied to
blueberry fields to control competing vegetation. Blueberry barrens are
also treated with fungicides and insecticides to prevent disease and
control insect pests. Such chemical spraying can cause direct mortality
of juvenile Atlantic salmon or adversely affect salmon if chemicals
drain into waterways and reduce populations of aquatic insects, an
important food source for salmon. With assistance from the Cooperative
Extension Services of the University of Maine and the Natural Resource
Conservation Service, numerous measures are being implemented to reduce
the potential for contamination of waterways from blueberry
cultivation. Current agricultural practices are not considered a major
threat to Atlantic salmon.
Many of the eastern Maine rivers have deposits of peat within their
watersheds. Commercial peat mining has the potential to adversely
affect salmon habitat through the release of peat fibers, arsenic, and
other chemical residues present in peat deposits. Further study is
necessary to determine the impacts, if any, of peat mining on Atlantic
salmon and Atlantic salmon habitat.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Historically, the marine exploitation of U.S.-origin Atlantic
salmon occurred primarily in foreign fisheries. U.S.-origin Atlantic
salmon have been documented in the harvests of West Greenland, New
Brunswick, Nova Scotia, Newfoundland, and Labrador fisheries. The
Newfoundland and Labrador fisheries constituted the majority of the
harvest and intercepted the highest percentages of U.S.-origin Atlantic
salmon. In the absence of West Greenland and Canadian interception
fisheries, returns of U.S. Atlantic salmon could potentially increase
two-fold. In Canada, a 5-year moratorium is in place in Newfoundland
and licenses are being purchased by the government. The Labrador
fishery is now managed by quotas, and the 1993 quota represents a
reduction of 92 percent from that of the 1990 quota level. In 1982, the
North Atlantic Salmon Conservation Organization (NASCO) was formed for
the purpose of managing salmon through a cooperative program of
conservation, restoration and enhancement of North Atlantic stocks.
NASCO accepted an agreement in 1993 that set quotas on the harvest off
West Greenland with the goal of reaching target spawning escapements
for North American stocks. During the next three years of the
management plan, the number of spawners needed to sustain North
American stocks of Atlantic salmon (194,000) will be protected by
adjusting the West Greenland quota.
In 1987 the New England Fishery Management Council prepared a
Fishery Management Plan (FMP) to establish explicit U.S. management
authority over all Atlantic salmon of U.S. origin in Federal waters.
The FMP prohibits the possession of Atlantic salmon in the exclusive
economic zone, the area between 3 and 200 miles off the U.S. coastline.
During the 1970s, recreational fishermen were harvesting as much as 15
to 25 percent of the Atlantic salmon returning annually to home waters.
Currently state law allows only a catch and release fishery for
Atlantic salmon, and no salmon fishing is authorized on the Pleasant
River. Multi-sea-winter salmon incur some mortality from catch-and-
release fishing and parr are vulnerable to incidental hooking mortality
or illegal harvest by trout anglers. Poaching also poses a serious
threat to depressed populations of Atlantic salmon in New England
rivers.
C. Disease or Predation
During their various life stages, Atlantic salmon are preyed upon
by numerous species of fish, birds, and mammals and also compete with
other species of fish. Major freshwater predators on Atlantic salmon
include brook trout, brown trout, eel, burbot, northern pike, chain
pickerel, smallmouth bass, belted kingfisher, heron, common and red-
breasted merganser, osprey, herring and greater black-backed gull,
otter and mink. Documented predators in the estuarine and marine
environments include striped bass, shark, skate, ling and Atlantic cod,
pollock, whiting, garfish, double-crested cormorant, European
cormorant, harbor seal, gray seal, harp seal, and ringed seal. The
effects and magnitude of competition and predation in the riverine,
estuarine, and marine environments are not known.
Atlantic salmon are susceptible to a number of diseases and
parasites that can result in high mortality. Freshwater external
parasites of Atlantic salmon are the gill maggot, freshwater louse,
leaches, and the skin parasite Gyrodactylus salaris, while internal
parasites include flukes, tapeworms, spiny-headed worms and roundworms.
Ocean parasites include the sea louse and sea lamprey. Atlantic salmon
are susceptible to numerous bacterial, viral and fungal diseases,
including furunculosis, bacterial kidney disease and vibriosis.
Disease-related mortality is primarily documented for hatcheries and
aquaculture facilities. Disease epizootics in wild salmon are uncommon.
In New England, furunculosis is the only known source of disease-
related mortality in wild Atlantic salmon.
D. Inadequacy of Existing Regulatory Mechanisms
Many Federal and state laws and programs have affected the
abundance, health and survival of anadromous Atlantic salmon
populations in the United States. However, they have not prevented the
decline of the species. The effectiveness of certain existing laws and
regulations, which are summarized in the status review, could be
strengthened by more stringent implementation and enforcement.
Aquaculture facilities are located within 20 kilometers (km) (12 miles)
of the mouths of five of the rivers within the DPS. Atlantic salmon
that have been released or that have escaped from aquaculture pens are
known to have entered some of these rivers. The escape of fish from
Atlantic salmon aquaculture operations could pose a threat to the
[[Page 50533]]
genetic integrity of Atlantic salmon within the DPS. In addition,
concentrations of aquaculture salmon increase the vulnerability of wild
stocks to disease. Also, escape of juvenile Atlantic salmon from nearby
fish hatcheries may cause a genetic or disease threat to wild salmon.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Scientific evidence suggests that low natural survival in the
marine environment is a major factor contributing to the decline of
Atlantic salmon throughout North America. Recent research indicates
that major seasonal events influence post-smolt survival of Atlantic
salmon. It appears that survival of the North American stock complex of
Atlantic salmon is at least partly explained by sea surface water
temperature, during the period when Atlantic salmon concentrate in
winter months in habitat at the mouth of the Labrador Sea and east of
Greenland. Until more direct observation can be made on the marine
ecology of post-smolts during the winter, the exact mode of mortality
will be unknown. Currently, researchers speculate that a combination of
factors related to slow growth and increased predation contribute to
marine mortality.
Potential genetic impacts of hatchery practices include inbreeding
depression, outbreeding depression and domestication. Potential
ecological impacts of hatchery practices include competition and
predation, displacement of wild fish, altered migratory and spawning
behavior, and disease transfer. The practice of stocking fry
transferred from other rivers may have exacerbated the decline of the
wild population by displacing wild fish. For six of the seven rivers,
the average percentage of the run that was of natural origin (wild) was
higher during years not influenced by the stocking of fry transferred
from other rivers. However, the Services do not believe that stock
transfers in the DPS rivers have eliminated all historic
characteristics of wild Atlantic salmon. Although past stocking
practices may have contributed to the decline of Atlantic salmon in the
seven rivers, the Services are committed to ensuring that future
hatchery practices contribute to recovery of each river population. Use
of river-specific fry stocking on the Penobscot River has boosted the
percentage of natural origin fish and is a tool for recovery of the DPS
rivers.
In summary, there are basically three major factors which continue
to threaten the continued survival of Atlantic salmon within the DPS--
poaching, low natural survival of fish during the first winter at sea,
and potential impacts from Atlantic salmon aquaculture operations and
fish hatcheries to the genetic integrity and disease vulnerability of
the DPS.
Basis for Determination
Section 4(b)(1)(A) of the Act states that determinations required
by the Act will be made 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 those efforts, if any, being
made by any State or foreign nation, or any political subdivision of a
State or foreign nation, to protect such species, whether by predator
control, protection of habitat and food supply, or other conservation
practices, within any area under its jurisdiction, or on the high seas.
The status of the populations of Atlantic salmon in these seven rivers
was analyzed by looking at historic and current angler catch, trap
data, and redd counts, all of which are experiencing a downward trend.
Then, the escapement goal for each river was calculated by estimating
the total number of adults that would be required to fully seed the
potential habitat. The documented return to these seven rivers was then
compared to the escapement goal to arrive at a comparable measure of
the status of the stock. Recent downward trends in abundance have
placed all of the rivers at less than 10 percent of their escapement
goals, with the exception of the Narraguagus which in recent years has
ranged from 6 to 19 percent. The combination of low relative abundance
and the low numbers relative to escapement goals indicates that these
populations are in peril.
The second step was then to examine efforts currently being
undertaken on behalf of the species. There are numerous measures
underway to prevent the loss of any of the river populations of
Atlantic salmon within the DPS. Collectively, these measures have the
potential to reduce the likelihood of extinction and enable the
Services to propose listing the DPS as threatened rather than
endangered. This designation includes all wild and river specific
hatchery stock of DPS origin. For purposes of delisting, the DPS is
composed of wild fish and hatchery-reared fish that have returned to
spawn naturally and successfully in their river of origin. If these
measures are not continued or recent downward trends in abundance are
not reversed, then the DPS may reach the point of being in danger of
extinction and the designation would have to be changed to endangered.
Actions underway include the following:
1. Continued development of river specific populations for
broodstock and stocking in subsequent years. Currently stocks exist for
five of the seven rivers at the Craig Brook National Fish Hatchery.
2. Progeny are being outplanted to specific rivers. In 1995, over
100,000 fry will be stocked into the Dennys, Narraguagus, and Machias
rivers.
3. The National Biological Service is conducting a comprehensive
genetic study of Atlantic salmon populations throughout North America
to identify differences in river populations and to compare wild and
hatchery stock.
4. In 1993, the West Greenland Commission of the NASCO accepted the
West Greenland Fishery Regulatory Measure. This agreement resulted in
the setting of quotas with the goal of reaching target spawning
escapements for North American stocks.
5. A private-State-Federal task force has been established to make
recommendations on how to reduce threats to wild Atlantic salmon posed
by nearby aquaculture operations.
6. An intensive study of the population dynamics and the condition
of the freshwater habitat of Atlantic salmon in the Narraguagus River
is ongoing. Key objectives include the following: estimate the number
of adults returning to the river; determine the level of effort
necessary to estimate the number of parr; inventory habitat; determine
the abundance and diversity of macroinvertebrates; and monitor trends
in water quality.
7. NMFS is conducting research on the early marine life history of
Atlantic salmon populations in the State of Maine's nearshore and
marine waters. The key objective of the study is to better understand
the behavior and feeding relationships of post-smolts during their
first few weeks at sea.
8. Recent research conducted by the NMFS Northeast Fisheries
Science Center in coordination and participation with the International
Council for the Exploration of the Seas, indicates that major seasonal
events influence post-smolt survival. Additional research is ongoing to
identify the processes involved.
9. A number of private land management agencies in Downeast Maine
have formed a non-profit entity called Project SHARE (Salmon Habitat
and River Enhancement). The group, which includes major forest and
agriculture industry representatives, is committed to improving
freshwater habitat for the Atlantic salmon in eastern Maine.
[[Page 50534]]
10. The State of Maine, FWS, and the National Fish and Wildlife
Foundation have joined to fund habitat monitoring and improvement
projects in the rivers, including spawning barrier removal, replacement
of water control structures, temperature and water quality monitoring,
and riparian zone protection and rehabilitation.
Proposed Determination
The Act defines an endangered species as any species in danger of
extinction throughout all or a significant portion of its range, and a
threatened species as any species likely to become an endangered
species within the foreseeable future throughout all or a significant
portion of its range. Section 4(b)(1)(a) of the Act requires that
determinations regarding whether any species is threatened or
endangered be based solely on the best scientific and commercial
information available after conducting a review of the status of the
species and after taking into account those efforts, if any, being made
to protect such species.
The Services propose to list the populations of anadromous Atlantic
salmon in the Sheepscot, Ducktrap, Narraguagus, Pleasant, Machias, East
Machias and Dennys rivers as threatened under the Act. Both the
naturally reproducing populations of Atlantic salmon in these seven
rivers and the river specific hatchery populations for these seven
rivers are included in the DPS.
Prohibitions and Proposed Protective Measures
With respect to the seven populations of Atlantic salmon proposed
for listing, the Services propose to adopt joint regulations which
apply all prohibitions of 50 CFR 17.31 to the DPS, allowing exceptions
for incidental take under sections 4(d) and 10 of the Act. This
regulation applies most section 9 prohibitions and exceptions to
threatened species, including protective measures to prohibit taking,
interstate commerce, and other Act prohibitions applicable to
endangered species, with the exceptions provided under section 10 of
the Act. The Services also propose to adopt specific regulations under
section 4(d) that will apply to the DPS of Atlantic salmon identified
as threatened (see Special Rule).
These prohibitions apply to all individuals, organizations, and
agencies subject to U.S. jurisdiction. The Act and implementing
regulations set forth a series of general prohibitions and exceptions
that apply to all endangered wildlife. The prohibitions (codified at 50
CFR 17.21 for endangered fish or wildlife), in part, make it illegal
for any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect; or to attempt any of these), import or export,
ship in interstate commerce in the course of commercial activity, or
sell or offer for sale in interstate or foreign commerce any listed
species. It also is illegal to possess, sell, deliver, carry,
transport, or ship any such wildlife that has been taken illegally.
Section 17.31 of 50 CFR prohibits certain activities that directly or
indirectly affect threatened species. The proposed rule provides that
any violation of applicable State law or regulation concerning the
taking of Atlantic Salmon will also be a violation of Federal law. By
including this provision, the Services intend to notify the public that
any State law or regulation concerning the ``take'' of Atlantic Salmon
which is more specific or more protective of a listed species than
existing federal law, may be enforced as if it were Federal law
pursuant to the Act.
As announced in a recent joint policy (59 FR 34272, July 1, 1994),
the Services will identify at the time a final rule is published, to
the maximum extent practicable, those activities that would or would
not constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of the listing on
proposed and ongoing activities within the range of a species.
Activities that the Services believe could result in ``take'' of
anadromous Atlantic salmon within the DPS include, but are not limited
to, the following:
(1) Targeted recreational and commercial fishing, bycatch
associated with commercial and recreational fisheries, and poaching;
(2) Introduction of non-indigenous Atlantic salmon stock or other
species not indigenous to the DPS rivers;
(3) Discharges (point and non-point sources) or dumping of toxic
chemicals, silt, fertilizers, pesticides, herbicides, heavy metals,
oil, organic wastes or other pollutants into waters supporting the
species;
(4) Blockage of migration routes;
(5) Destruction/alteration of the species' habitat (i.e. instream
dredging, rock removal, channelization, discharge of fill material,
operation of heavy equipment within the stream channel, manipulation of
river flow, etc.);
(6) Hatchery practices that are likely to cause genetic, disease,
or ecological impacts to the DPS.
The Services believe that, based on the best available information,
the following actions will not result in a violation of section 9,
provided these activities are carried out in accordance with existing
regulations and permit requirements:
(1) Fishing for other species if conducted in conformance with the
Atlantic salmon conservation plan required by the special rule and
approved by the Services;
(2) Harvest of landlocked Atlantic salmon at locations delineated
by the Maine Department of Inland Fisheries and Wildlife; and
(3) Unavoidable losses in river specific hatchery stocks due to
standard culture techniques.
(4) Federally approved projects that involve activities, such as
instream dredging, rock removal, channelization, discharge of fill
material, operation of heavy equipment within the stream channel, or
manipulation of river flow, when such activity is conducted in
accordance with any reasonable and prudent measures given by the
Services in accordance with section 7 of the Act.
Permits may be issued, under section 10 of the Act, to carry out
otherwise prohibited activities involving endangered or threatened
wildlife under certain circumstances. Regulations governing permits are
codified at 50 CFR 17.22, 17.23, 17.31, 222.22, and 222.23 for
threatened and endangered fish and wildlife. Such permits are available
for scientific purposes, to enhance the propagation or survival of the
species, for educational purposes, and/or for incidental take in the
course of otherwise lawful activities. Questions regarding whether
specific activities will constitute a violation of section 9 should be
directed to the Chief, Division of Endangered Species in the FWS
Hadley, Massachusetts, office, or the Chief, Protected Resources
Division, in the NMFS Gloucester, Massachusetts, office (see
ADDRESSES).
Special Rule
The implementing regulations for threatened wildlife under the Act
incorporate the section 9 prohibitions for endangered wildlife (50 CFR
17.31 and 50 CFR 222.21), except when a special rule promulgated
pursuant to section 4(d) applies (50 CFR 17.31 (c)). Section 4(d) of
the Act provides that whenever a species is listed as a threatened
species, the Services shall issue regulations deemed necessary and
advisable to provide for the conservation of the species. Conservation
means the use of all methods and procedures necessary to bring the
species to the point at which the protections of the Act are no longer
necessary. Section 4(d) also states that the Services may, by
regulation, extend
[[Page 50535]]
to threatened species all prohibitions provided for endangered species
under section 9(a) of the Act.
Pursuant to section 4(d) of the Act and 50 CFR 17.31(c), the
Services propose to define the conditions under which the incidental
take of Atlantic salmon resulting from activities regulated by State
and local governments would not violate section 9 of the Act. Under the
special rule, incidental take of Atlantic salmon when conducting
otherwise lawful activities addressed in an Atlantic salmon
conservation plan prepared by the State of Maine and approved by the
Services, would not be considered a violation of section 9 of the Act,
provided the Services determine that such a plan is consistent with the
criteria for an ``incidental take'' permit pursuant to section
10(a)(2)(B) of the Act, 50 CFR 17.32(b)(2), and 50 CFR 222.22(c)(2).
The intent of the special rule is to provide the State of Maine an
opportunity to maintain the lead role in the management of activities
that could impact Atlantic salmon in the DPS. The Services are
encouraging the State to identify such activities and include them in a
conservation plan to be submitted to the Services any time after the
publication of this notice. Once the plan is received, the Services
will publish a notice of availability and accept public comments on
that plan. The Services will consider public comments and the criteria
outlined in this section to determine whether the plan will reduce
threats and promote the conservation of Atlantic salmon in the DPS. The
Services will work closely with Maine officials to revise or strengthen
sections of the plan as may be necessary prior to plan approval.
The Services recommend that the Atlantic salmon conservation plan
contain, but not be limited to, the following sections--(1) a
discussion of the lawful activities having the potential to
incidentally take Atlantic salmon, (2) activities such as recreational
fishing targeting species other than Atlantic salmon, habitat
modification, and aquaculture, and (3) the potential impacts to the DPS
and provisions to minimize those impacts.
Using recreational fishing as an example, the State could identify
various ongoing fishing activities in the seven rivers (bass, trout,
etc.) and the likelihood of each to incidentally catch an Atlantic
salmon adult or juvenile. The plan would address the time of year of
each fishery, location, and gear used. The plan should identify
acceptable levels of incidental take, measures that will be implemented
to monitor incidental take, and measures to further restrict the
fishing activity should such take exceed that allowed. State law
enforcement activities to protect Atlantic salmon in the seven rivers
should be identified. In addition, the plan should include outreach
activities that will be conducted to enlist angler support and educate
anglers on the proper method for releasing incidentally caught Atlantic
salmon.
If aquaculture is included in the plan, then the plan should
include an evaluation of the potential for incidental take to occur. A
take could result, for example, from the interbreeding of escaped net-
pen reared salmon and DPS salmon, the transfer of disease, or the
disruption of wild redds. An assessment of the likelihood of
interaction should include information on past escapement of Atlantic
salmon either from cages or hatcheries, and any documentation as to the
presence of the aquaculture fish in the seven rivers identified.
Measures that will be required by the State to minimize interactions
between DPS and net-pen reared Atlantic salmon should be identified and
could include such provisions as cage monitoring and reporting of
escapees and the subsequent monitoring of rivers, improved cage design,
placement of weirs in the seven rivers, disease certification, siting
constraints, broodstock selection, sterilization, marking of net-pen
fish, and law enforcement activities.
Although the Status Review does not identify habitat modification
in the seven rivers in the DPS as a major threat to Atlantic salmon,
the State prepared conservation plan should discuss state authorized
activities that could potentially modify habitat and incidentally take
Atlantic salmon. This discussion should address impacts of water
withdrawals and land use practices on spawning habitat, along with
State efforts, both existing and planned, to reduce such impacts. This
section might include a brief summary of existing regulations, permit
review procedures, water quality monitoring activities, public outreach
activities, and voluntary landowner efforts such as Project SHARE,
which focus on habitat protection and improvement. Finally, the plan
should include provisions for identifying and correcting any situations
which are likely to be causing incidental take and monitoring the
effects of such corrective actions. The conservation of the DPS must be
the basis for all provisions of the plan.
The standards the Services will use to evaluate the State plan are
consistent with those set forth in 50 CFR 17.32(b)(2) and 50 CFR
222.22(c)(2), which define the issuance criteria for obtaining a permit
to incidentally take listed wildlife species under section 10(a)(1)(B)
of the Act. The six criteria are:
(1) Any taking will be incidental to otherwise lawful activities
and not the purpose of such activities. Any taking of Atlantic salmon
in the seven rivers as described in the plan would have to occur
inadvertently while conducting an activity whose purpose was not to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or
collect Atlantic salmon from the seven river populations. The taking
must not be deliberate and purposeful. The plan must include an
analysis of alternatives that would not result in take and an
explanation of why these are not being used. The plan should include
the State regulations that govern these fisheries as well as
information on how those regulations are promulgated, enforced, and
modified.
(2) The plan should, to the maximum extent practicable, minimize
and mitigate the impacts of any proposed incidental take. Compliance
with this standard involves a planning strategy that emphasizes
avoidance of impacts to Atlantic salmon, provides measures to minimize
potential impacts by modifying practices (e.g. in the case of
aquaculture it could include improved cage design, increased monitoring
and reporting of escapees, etc.), and details compensation measures
needed to offset unavoidable impacts (e.g., weirs or other means to
recapture escapees).
(3) The plan should be adequately funded and contain provisions to
deal with unforeseen circumstances. A summary of the funding that will
be available to implement provisions of the plan, including enforcement
and monitoring, should be provided. The plan should outline how it will
be determined that there is an unforeseen problem and should include
the specific steps that will be taken to correct that problem.
(4) Any taking allowed under the plan should not appreciably reduce
the likelihood of survival and recovery of Atlantic salmon in the wild.
This criterion is equivalent to the regulatory definition of
``jeopardy'' under section 7(a)(2) of the Act and means to engage in
any activity that reasonably would be expected, directly or indirectly,
to reduce appreciably the likelihood of both the survival and recovery
of the DPS. In the case of incidental catch of Atlantic salmon, the
plan must include an assessment of the potential for Atlantic salmon to
be incidentally caught by anglers targeting other species, the
likelihood of mortality to the Atlantic salmon that is caught and
[[Page 50536]]
released (including the potential for it to be caught more than once),
and the resulting impact to the river population of Atlantic salmon. In
the case of aquaculture, the plan must include an assessment of the
potential for Atlantic salmon to be taken as a result of ongoing
aquaculture operations and an assessment of the possible impacts to the
affected river population of Atlantic salmon.
(5) The plan should ensure that other measures that the Services
may require as being necessary or appropriate will be provided. These
measures should become apparent during plan development through
coordination among the Services, the State and any other plan
participants and will likely include terms and conditions for
monitoring implementation of the plan to ensure that its requirements
and the requirements of the Act are met.
(6) The Services are assured that the plan will be implemented. The
plan should specify how the State agencies will exercise their existing
authorities to adhere to the commitments made in the plan. Any
violations could be a basis for revocation of the Services' concurrence
with the plan.
Once approved by the Services, the conditions contained in the
approved plan will be the conditions, pursuant to section 4(d), under
which the incidental take of Atlantic salmon in the seven rivers would
not be a violation of section 9.
The Services and the State will monitor the implementation of the
plan and will conduct annual reviews to assess progress, identify
problems and recommend corrective action. If the Services determine
that the plan is not being effectively implemented, they will discuss
their concerns with appropriate State officials and jointly determine
the nature and timing of corrective action. If corrective action is not
taken within 90 days of such discussion, plan approval may be revoked
either partially or completely. The Services will publish the findings
for such revocation in the Federal Register and provide for a 30-day
public comment period prior to revocation. Such revocation would result
in reinstatement of the take prohibitions made applicable through 50
CFR 425.21(a)(1).
At this time, different procedures exist between the Services for
authorizing the incidental take of listed species. The FWS provides
such authorization through its Cooperative Agreement with the State of
Maine under section 6 of the Act. The NMFS provides such authorization
directly under section 10 of the Act. The language of the proposed rule
at 50 CFR 425.21(b)(1) reflects the existing differences. It is the
intent of the Services to ensure that these procedures are streamlined
and to provide the public with a ``one-stop'' authorization process
should this proposal be made final and an approved State Atlantic
salmon conservation plan be implemented.
Available Conservation Measures
Conservation measures provided for species listed as endangered or
threatened under the Act include recovery actions, Federal agency
consultation requirements, and prohibitions on taking. Recognition
through listing promotes conservation actions by Federal and State
agencies and private groups and individuals.
Section 7(a)(4) of the Act requires that Federal agencies confer
with the Services on any actions likely to jeopardize the continued
existence of a species proposed for listing and on actions resulting in
destruction or adverse modification of proposed critical habitat. For
listed species, section 7(a)(2) requires Federal agencies to ensure
that activities they authorize, fund, or conduct are not likely to
jeopardize the continued existence of a listed species or to destroy or
adversely modify its critical habitat. If a Federal action may
adversely affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Services. Consultations will be conducted on a river-specific basis
pursuant to identification of river specific recovery units within the
DPS.
Examples of Federal actions that may be affected by this proposal
include U.S. Army Corps of Engineers (COE) section 404 permitting
activities under the Clean Water Act, and COE section 10 permitting
activities under the Rivers and Harbors Act.
In addition to the actions identified under Basis for
Determination, the following general conservation measures could be
implemented to help conserve the species. This list does not constitute
the Services' interpretation of the entire scope of a recovery plan
under section 4(f) of the Act.
(1) Further efforts could be made to ensure that water extractions
and diversions for agriculture do not adversely affect habitat of DPS
Atlantic salmon. In addition, all water diversion intake structures
available to downstream migrating Atlantic salmon could be screened.
(2) Atlantic salmon aquaculture facilities located less than 20 km
(12 miles) from the mouths of the Narraguagus, Pleasant, Machias, East
Machias and Dennys rivers could be encouraged to implement stringent
disease protocols, sterilize fish, change broodstock origin, mark net
pen reared fish, install and maintain weirs at the mouths of rivers to
exclude escaped aquaculture fish, and/or develop and implement plans to
safeguard against the accidental release (escape) of aquaculture fish.
(3) Predator species could be controlled.
(4) For candidate species, or species of concern for FWS (see 60 FR
14410, March 17, 1995), restoration efforts will continue on the
Penobscot and St. Croix rivers. Studies will be conducted to determine
the presence, origin, and genetic composition of wild Atlantic salmon
in the Kennebec, Penobscot, and St. Croix rivers, and Tunk Stream. An
intensive survey of the Tunk Stream watershed is needed to determine if
Atlantic salmon are still present. Better documentation of wild
abundance and natural reproduction of Atlantic salmon is required for
all four rivers.
Should the proposed listing be made final, protective regulations
under the Act would be put into effect and a recovery program would be
implemented. The Services recognize that to be successful, protective
regulations and recovery programs for Atlantic salmon will need to be
developed in the context of conserving aquatic ecosystem health. The
Services, the State of Maine, and the private sector must cooperate to
conserve the listed populations and the ecosystems upon which they
depend. The Services encourage non-federal landowners to assess the
impacts of their actions on Atlantic salmon. In particular, the
Services acknowledge and fully support the ongoing efforts to involve
stakeholders (industry representatives, landowner representatives,
local and state governments and Federal biologists) through Project
SHARE and the ad hoc task force to address aquaculture and wild stock
interactions.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (1) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (2) specific areas outside the
geographical area occupied by a species at that time it is listed upon
a determination that such areas are essential for the conservation of
the species.
[[Page 50537]]
Section 4(a)(3)(a) of the Act requires that, to the extent prudent
and determinable, critical habitat be designated concurrently with the
listing of a species. Designations of critical habitat must be based on
the best scientific data available and must take into consideration the
economic and other relevant impacts of specifying any particular area
as critical habitat. While the Team has completed its analysis of the
biological status of anadromous Atlantic salmon in the United States,
it has not been able to address either the prudency or determinability
of critical habitat designation. Therefore, during the comment period
for this listing proposal the Services will seek additional agency and
public input on critical habitat, along with information on the
proposed listing of Atlantic salmon in the DPS rivers. The Services
will use this and other information in formulating a decision on
critical habitat designation for the Atlantic salmon.
Public Comments Solicited
To ensure that the final action resulting from this proposal will
be as accurate and effective as possible, the Services are soliciting
comments and information from the public, other concerned governmental
agencies, the scientific community, industry, and any other interested
parties. Specifically, the Services are soliciting information
regarding: (1) Biological, commercial trade, or other relevant data
concerning any threat (or lack thereof) to this species; (2) the
reasons why any habitat should or should not be determined to be
critical habitat pursuant to section 4 of the Act; (3) additional
information concerning the range, distribution, and population size of
this species; (4) current or planned activities in the subject area and
their possible impacts on this species; (5) additional efforts being
made to protect native, naturally-reproducing populations of Atlantic
salmon; (6) relationship of existing hatchery populations to natural
populations within the DPS and in the four river populations designated
as candidate species (60 FR 14410, March 17, 1995), or species of
concern, for FWS; (7) the development of a special section 4(d)
regulation to allow incidental take of Atlantic salmon in accordance
with an approved State conservation plan; and (8) additional
information on the status and threats to the anadromous Atlantic salmon
in the Penobscot, Kennebec, and St. Croix rivers and Tunk Stream.
The Services are also requesting information on areas that may
qualify as critical habitat for the identified DPS of Atlantic salmon.
Areas that include the physical and biological features essential to
the recovery of the species should be identified. Areas outside the
present range should also be identified if such areas are essential for
the conservation of the species. Essential features should include, but
are not limited to: (1) Space for individual and population growth; (2)
food, water, air, light, minerals, or other nutritional or
physiological requirements; (3) cover or shelter; (4) sites for
reproduction and rearing of offspring; and (5) habitats that are
protected from disturbance or are representative of the historic
geographical and ecological distributions of the species.
For areas potentially qualifying as critical habitat, the Services
are requesting information describing: (1) The activities that affect
the area or could be affected by the designation, and (2) the economic
costs and benefits of restrictions on Federal activities that are
likely to result from the designation.
The economic cost to be considered in the critical habitat
designation under the Act is the probable economic impact ``of the
(critical habitat) designation upon proposed or ongoing activities''
(50 CFR 424.19). The Services must consider the incremental costs
specifically resulting from a critical habitat designation that are
above the economic effects attributable to listing the species.
Economic effects attributable to listing include actions resulting from
section 7 consultations under the Act to avoid jeopardy to the species
and from the taking prohibitions under section 9 of the Act. Comments
concerning economic impacts should distinguish between the costs of
listing from the incremental costs that can be directly attributable to
the designation of specific areas as critical habitat.
Final promulgation of the regulation(s) on this species will take
into consideration the comments and any additional information received
by the Services, and such communications may lead to a final regulation
that differs from this proposal.
National Environmental Policy Act
The FWS has determined that an Environmental Assessment, as defined
under the authority of the National Environmental Policy Act of 1969
(NEPA), need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Act. The notice for this determination
was published in the Federal Register on October 25, 1983 (48 FR
49244). Sections 4(b)(1) of the Act restricts the information that may
be considered when assessing species for listing. Based on this
limitation and the opinion in Pacific Legal Foundation v. Andrus, 657
F.2d 829 (6 Cir. 1981), the NMFS has determined that listing actions
under the Act are excluded from the normal requirements of the NEPA.
Classification
The Conference Report on the 1982 amendments to the Act notes that
economic considerations have no relevance to determinations regarding
the status of species, and that the Regulatory Flexibility Act and the
Paperwork Reduction Act are not applicable to the listing process.
Similarly, listing actions are not subject to the requirements of
Executive Order 12612 and are exempt from review under Executive Order
12866.
The proposed special rule in 50 CFR part 425 was reviewed under
Executive Order 12866. The Services certify that the proposed revisions
to 50 CFR 425 will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Significant adverse impacts are not
expected as a result of the proposed rule because the rule is intended
to reduce the likelihood of persons conducting otherwise lawful
activities being in violation of section 9 of the Act. No direct costs,
enforcement costs, information collection, or recordkeeping
requirements are required by this proposed rule beyond those already
required by existing regulations. The proposed rule does not contain
any recordkeeping requirements as defined by the Paperwork Reduction
Act of 1980 (44 U.S.C. 3501 et seq.) and does not require a Federalism
assessment under Executive Order 12612 because it would have no
significant Federalism effects described in that order. Finally, the
Services have determined that the proposed regulation does not require
the preparation of a Takings Implication Assessment under the
requirements of Executive Order 12630, ``Government Actions and
Interference with Constitutionally Protected Property Rights.''
Authors
Authors of this document are Mary Colligan of the NMFS and Paul
Nickerson of the FWS.
List of Subjects in
50 CFR Part 17
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
and Transportation.
[[Page 50538]]
50 CFR Part 227
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
and Transportation.
50 CFR Part 425
Administrative practice and procedure, and Endangered and
threatened species.
Proposed Regulation Promulgation
Accordingly, the Services hereby propose to amend part 17,
subchapter B of chapter I and part 227, subchapter C; to add part 425,
subchapter B, title 50 of the Code of Federal Regulations, as set forth
below. The FWS amendments to part 17 are listed first, followed by the
NMFS amendments to part 227. The new part 425 is listed last.
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. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under FISHES, to the List of Endangered and
Threatened Wildlife to read as follows:
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------- population where When Critical
Historic range endangered or Status listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES
* * * * * * *
Salmon, Atlantic.... Salmo salar......... U.S.A., Canada, U.S.A. (ME) Natural T NA NA 17.44(v), 227.13, 425.21
Greenland, western and river-specific
Europe. hatchery
populations in the
Dennys, East
Machias, Machias,
Pleasant,
Narraguagus,
Sheepscot,
Ducktrap Rivers.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.44 a new paragraph (v) is added to read as follows:
Sec. 17.44 Special rules--fishes.
* * * * *
(v) Atlantic salmon (Salmo salar). All prohibitions and exceptions
thereto regarding the distinct population segment of Atlantic salmon
listed at 50 CFR 17.11 and 50 CFR 227.4(m) are specified in regulations
jointly promulgated by the Fish and Wildlife Service and the National
Marine Fisheries Service at 50 CFR 425.21.
PART 227--THREATENED FISH AND WILDLIFE
1. The authority citation for part 227 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.
2. In Sec. 227.4 a new paragraph (m) is added to read as follows:
Sec. 227.4 Enumeration of threatened species.
* * * * *
(m) Natural and river-specific hatchery populations of Atlantic
salmon (Salmo salar) in the Dennys, Ducktrap, E. Machias, Machias,
Narraguagus, Pleasant and Sheepscot rivers, Maine.
3. In part 227 a new Sec. 227.13 is added to read as follows:
Sec. 227.13 Atlantic Salmon.
All prohibitions and exceptions thereto regarding the distinct
population segment of Atlantic salmon listed at 50 CFR 17.11 and 50 CFR
227.4(m) are specified in regulations jointly promulgated by the Fish
and Wildlife Service and National Marine Fisheries Service at 50 CFR
425.21.
1. Part 425 is added to read as follows:
PART 425--JOINT REGULATIONS FOR ENDANGERED AND THREATENED SPECIES
Subpart A--General Provisions
Sec.
425.1 Purpose.
425.2 Scope.
425.3 Definitions.
425.4 Enumeration of jointly listed endangered and threatened
species.
Subpart B--[Reserved]
Subpart C--Joint Regulations Governing Jointly Listed Threatened
Species
425.21 Atlantic salmon.
Authority: The Endangered Species Act of 1973, 16 U.S.C. 1531 et
seq., as amended.
Subpart A--General Provisions
Sec. 425.1 Purpose.
The regulations contained in this part identify the species under
the joint jurisdiction of the Secretary of Commerce and the Secretary
of the Interior which have been determined to be endangered or
threatened species under the Endangered Species Act of 1973 and
establish rules and procedures to govern activities involving the
species.
Sec. 425.2 Scope.
(a) The regulations contained in this part apply only to the
endangered and threatened species enumerated in Sec. 425.4.
(b) The provisions of this part are in addition to, and not in lieu
of, other applicable regulations of Chapters I and II (title 50).
Sec. 425.3 Definitions.
(a) Act means the Endangered Species Act of 1973, as amended, 16
U.S.C. 1531 et seq.
(b) Atlantic salmon means the distinct population segment of
Atlantic salmon listed in Sec. 425.4(b).
(c) The Services means the Director of the Fish and Wildlife
Service and the
[[Page 50539]]
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
Sec. 425.4 Enumeration of jointly listed endangered and threatened
species.
(a) [Reserved]
(b) Threatened species--A distinct population segment of Atlantic
salmon composed of natural and river-specific hatchery populations from
the Dennys, Ducktrap, East Machias, Machias, Narraguagus, Pleasant, and
Sheepscot rivers, Maine.
Subpart B--[Reserved]
Subpart C--Joint Regulations Governing Jointly Listed Threatened
Species
Sec. 425.21 Atlantic salmon.
The following provisions shall govern the activities involving
Atlantic salmon:
(a) Prohibitions. (1) Except as provided in paragraph (b) of this
section, all provisions of 50 CFR 17.31(a-b) shall apply to the
distinct population segment of Atlantic salmon enumerated at 50 CFR
425.4(b). For the purposes of this section, any reference to the
``Director'' or the Fish and Wildlife Service shall mean ``Services''
as defined at 50 CFR 425.3(c). Reports required under Sec. 17.21(c)(4)
should also be sent to National Marine Fisheries Service, 1 Blackburn
Drive, Gloucester, MA 01930.
(2) Any violation of applicable State fish and wildlife
conservation laws or regulations with respect to the taking of the
species will also be a violation of the Act.
(3) No person shall possess, sell, deliver, carry, transport, ship,
import or export, by any means whatsoever, any such species taken in
violation of applicable State fish and wildlife laws or regulations.
(4) No person shall attempt to commit, solicit another to commit,
or cause to be committed, any offense defined in paragraphs (a) (1)
through (3) of this section.
(b) Exceptions. (1) The Services may issue incidental take permits
or permits authorizing activities which would otherwise be unlawful
under paragraphs (a) (1) through (4) of this section for education
purposes, scientific purposes, the enhancement or propagation for
survival of Atlantic salmon, zoological exhibition, and other
conservation purposes consistent with the Act in accordance with 50 CFR
17.32 and 50 CFR part 222, subpart C, Endangered Fish and Wildlife
Permits, and pursuant to a section 6 Cooperative Agreement with the
State of Maine, if applicable.
(2) Incidental take of Atlantic salmon will not be considered
unlawful under paragraphs (a) (1) through (4) if it results from
activities conducted in accordance with:
(i) A State plan to conserve Atlantic salmon that is approved by
the Services pursuant to paragraph (b)(3) of this section, and
(ii) Implementing State regulations specified in paragraph
(b)(3)(iii) of this section.
(3) State plan.
(i) Upon receipt of a State plan, the Services will publish a
notice of availability and allow for a 60-day comment period.
(ii) In determining whether to approve a State plan to conserve the
Atlantic salmon, the Services shall consider public comments received
and evaluate whether the plan meets the criteria in Sec. 17.32(b)(2)
and 50 CFR Part 222, subpart C, Endangered Fish and Wildlife Permits
for determining whether to issue an incidental take permit. At a
minimum, the plan should contain the following information:
(A) Description of the legal activities having a potential to
incidentally take Atlantic salmon;
(B) Description of the potential impact of these activities to
Atlantic salmon;
(C) Provisions for minimizing the potential impact on and for
promoting the conservation of Atlantic salmon;
(D) Necessary oversight requirements; and
(E) Conditions or criteria that would trigger the immediate
cessation of such activities because of the potential negative impact
on Atlantic salmon.
(iii) The Services will not approve the plan until activities which
are authorized and activities which are prohibited are codified into
the State's fish and wildlife regulations.
(iv) The Services will monitor the implementation of the plan and
will conduct annual reviews to assess progress, identify problems, and
recommend corrective action. If the Services determine that the plan is
not being effectively implemented, the concerns will be discussed with
appropriate State officials and the nature and timing of corrective
action will be jointly determined. If corrective action is not being
implemented within 90 days of such discussions, plan approval and
authorization for any exceptions to prohibitions on the taking of
Atlantic salmon may be revoked either partially or completely. The
Services will publish the findings for such revocation in the Federal
Register and provide for a 30-day public comment period prior to
revocation.
Dated: September 26, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
Dated: September 21, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-24319 Filed 9-28-95; 8:45 am]
BILLING CODE 4310-55-P
