Endangered and Threatened Species; Proposed Threatened Status for a Distinct Population Segment of Anadromous Atlantic Salmon (Salmo salar) in Seven Maine Rivers

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.

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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

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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