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2. Does Executive Order 13175 Apply to I. National Technology Transfer and List of Subjects in 40 CFR Part 300 This Proposed Rule? Advancement Act Environmental protection, Air This action does not have tribal 1. What Is the National Technology pollution control, Chemicals, Hazardous implications, as specified in Executive Transfer and Advancement Act? substances, Hazardous waste, Order 13175 (65 FR 67249, November 9, Intergovernmental relations, Natural 2000). Proposing a site to the NPL does Section 12(d) of the National resources, Oil pollution, Penalties, not impose any costs on a tribe or Technology Transfer and Advancement Reporting and recordkeeping require a tribe to take remedial action. Act of 1995 (NTTAA), Public Law 104– requirements, Superfund, Water Thus, Executive Order 13175 does not 113, section 12(d) (15 U.S.C. 272 note), pollution control, Water supply. directs EPA to use voluntary consensus apply to this proposed rule. Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. standards in its regulatory activities 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, G. Executive Order 13045: Protection of unless to do so would be inconsistent Children From Environmental Health 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, with applicable law or otherwise 3 CFR, 1987 Comp., p. 193. and Safety Risks impractical. Voluntary consensus Dated: April 1, 2009. 1. What Is Executive Order 13045? standards are technical standards (e.g., materials specifications, test methods, Barry N. Breen, Executive Order 13045: ‘‘Protection of sampling procedures, and business Acting Assistant Administrator, Office of Children from Environmental Health practices) that are developed or adopted Solid Waste and Emergency Response. Risks and Safety Risks’’ (62 FR 19885, by voluntary consensus standards [FR Doc. E9–7824 Filed 4–7–09; 8:45 am] April 23, 1997) applies to any rule that: bodies. The NTTAA directs EPA to BILLING CODE 6560–50–P (1) Is determined to be ‘‘economically provide Congress, through OMB, significant’’ as defined under Executive explanations when the Agency decides Order 12866, and (2) concerns an not to use available and applicable DEPARTMENT OF THE INTERIOR environmental health or safety risk that voluntary consensus standards. EPA has reason to believe may have a Fish and Wildlife Service disproportionate effect on children. If 2. Does the National Technology the regulatory action meets both criteria, Transfer and Advancement Act Apply 50 CFR Part 17 the Agency must evaluate the to This Proposed Rule? environmental health or safety effects of [FWS-R8-ES-2008-0045; MO 922105 0083- No. This proposed rulemaking does the planned rule on children, and B2] not involve technical standards. explain why the planned regulation is Therefore, EPA did not consider the use Endangered and Threatened Wildlife preferable to other potentially effective of any voluntary consensus standards. and Plants; 12-Month Finding on a and reasonably feasible alternatives Petition to List the San Francisco Bay- considered by the Agency. J. Executive Order 12898: Federal Delta Population of the Longfin Actions To Address Environmental 2. Does Executive Order 13045 Apply to ( thaleichthys) as Justice in Minority Populations and This Proposed Rule? Endangered Low-Income Populations This proposed rule is not subject to AGENCY: Fish and Wildlife Service, 1. What Is Executive Order 12898? Executive Order 13045 because it is not Interior. an economically significant rule as Executive Order (EO) 12898 (59 FR ACTION: Notice of 12–month petition defined by Executive Order 12866, and 7629 (Feb. 16, 1994)) establishes federal finding. because the Agency does not have executive policy on environmental reason to believe the environmental justice. Its main provision directs SUMMARY: We, the U.S. Fish and health or safety risks addressed by this federal agencies, to the greatest extent Wildlife Service (Service), announce a proposed rule present a practicable and permitted by law, to 12–month finding on a petition to list disproportionate risk to children. make environmental justice part of their the San Francisco Bay-Delta population of the longfin smelt (Spirinchus H. Executive Order 13211: Actions That mission by identifying and addressing, thaleichthys) as endangered with Significantly Affect Energy Supply, as appropriate, disproportionately high critical habitat under the Endangered Distribution, or Usage and adverse human health or environmental effects of their programs, Species Act of 1973, as amended (Act). Is This Rule Subject to Executive Order policies, and activities on minority After a thorough review of all available 13211? populations and low-income scientific and commercial information, This action is not a ‘‘significant populations in the United States. we find that the San Francisco Bay- energy action’’ as defined in Executive Delta population of the longfin smelt 2. Does Executive Order 12898 Apply to does not meet our definition of a Order 13211 (66 FR 28355 (May 22, This Rule? 2001)), because it is not likely to have distinct population segment (DPS), as a significant adverse effect on the EPA has determined that this identified in our DPS policy (61 FR supply, distribution, or use of energy. proposed rule will not have 4721, February 7, 1996). As a result, Further, we have concluded that this disproportionately high and adverse listing the species as a DPS is not rule is not likely to have any adverse human health or environmental effects warranted. However, we are initiating a energy impacts because proposing a site on minority or low-income populations status assessment of the longfin smelt, to the NPL does not require an entity to because it does not affect the level of and we solicit information on the status conduct any action that would require protection provided to human health or of the species range wide. energy use, let alone that which would the environment. As this rule does not DATES: The finding announced in the significantly affect energy supply, impose any enforceable duty upon document was made on April 9, 2009. distribution, or usage. Thus, Executive State, tribal or local governments, this ADDRESSES: This finding is available on Order 13175 does not apply to this rule will neither increase nor decrease the Internet at http:// action. environmental protection. www.regulations.gov and http://

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www.fws.gov/sacramento. Supporting signatures, and addresses of the of allozymes (proteins used as genetic documentation we used in preparing requesting parties. On May 6, 2008, we markers because DNA contains this finding are available for public published a 90–day finding (73 FR information that is used by cells to build inspection, by appointment, during 24911) in which we concluded that the proteins) showed that populations from normal business hours at the U.S. Fish petition provided substantial Lake Washington near Seattle, and Wildlife Service, Sacramento Fish information indicating that listing San Washington, and the Sacramento-San and Wildlife Office, 2800 Cottage Way, Francisco Bay-Delta Population of the Joaquin Delta in California are similar Room W-2605, Sacramento, CA 95825; longfin smelt as a DPS may be genetically (Stanley et al. 1995, p. 390). telephone 916-414-6600; or facsimile warranted, and we initiated a status The study did, however, find that the 916-414-6712. Please submit any new review. However, in that notice, we did Sacramento-San Joaquin Delta information, materials, comments, or not make a final determination that the population of longfin smelt differs in questions concerning this finding to the San Francisco Bay-Delta Population of allele (alternative form of a gene) above street address or fax. the longfin smelt was a DPS; we only frequencies from the population in Lake FOR FURTHER INFORMATION CONTACT: For stated that the petition presented Washington (Stanley et al. 1995, p. 390). information on this finding, contact substantial information indicating that Delta smelt and longfin smelt hybrids Susan Moore, Field Supervisor, or listing as a DPS may be warranted and have been observed in the San Francisco Arnold Roessler, Listing Program that we would finalize our Bay-Delta estuary, although these Coordinator, of the Sacramento Fish and determination in our status review. This offspring are not thought to be fertile Wildlife Office (see ADDRESSES). If you notice constitutes the 12–month finding because delta smelt and longfin smelt use a telecommunications device for the on the August 8, 2007, petition to list are not closely related taxonomically or deaf (TDD), call the Federal Information the San Francisco Bay-Delta population genetically (California Department of Relay Service (FIRS) at 1-800-877-8339. of the longfin smelt as a DPS and Fish and Game (CDFG) 2001, p. 473). designate critical habitat for the species Biology SUPPLEMENTARY INFORMATION: concurrent with the listing. Background The longfin smelt is a euryhaline Species Description (tolerant of variable salinities) pelagic Section 4(b)(3)(B) of the Act (16 The following species description is fish that inhabits various depths of the U.S.C. 1531 et seq.) requires that, for taken from U.S. Fish and Wildlife water column depending on the any petition containing substantial Service 1995, p. 47, except where cited individual’s life stage. Longfin smelt scientific and commercial information otherwise. Longfin smelt is a pelagic have been found throughout the year in indicating that listing may be warranted, (lives in open water), estuarine fish that fresh and brackish waters with salinities we make a finding within 12 months of typically measures 3.5 to 4.3 inches (in) ranging from 14 to 28 parts per the date of our receipt of the petition on (90-110 millimeters (mm)) standard thousand (ppt) (CDFG 2001, p. 477). whether the petitioned action is: (a) not length, although third-year females may Adults can typically be found in the warranted, (b) warranted, or (c) grow up to 5.9 in (150 mm) (Moyle middle or lower part of the water warranted, but the immediate proposal 2002, p. 236). The sides and lining of column (Moyle 2002, p. 236), while of a regulation implementing the the gut cavity appear translucent silver, larvae maintain position in the upper petitioned action is precluded by other the back has an olive to iridescent part of the water column, where they are pending proposals to determine whether pinkish hue, and mature males are usually found. Longfin smelt reportedly any species is threatened or endangered, usually darker in color than females. cannot tolerate water temperatures and expeditious progress is being made Longfin smelt can be distinguished from greater than 68 degrees Fahrenheit (°F) to add or remove qualified species from other smelts in California by their long (20 degrees Celsius (°C)) (Moyle 2002, p. the Lists of Endangered and Threatened pectoral fins, incomplete lateral line, 236), and will move farther downstream Wildlife and Plants. Such 12–month weak or absent striations on their (west) during the summer months when findings are to be published promptly in opercular (covering the gills) bones, low water temperatures in the Delta are the Federal Register. This finding is numbers of scales in the lateral series higher. Adult longfin smelt occupy based on our determination, based on (54 to 65), and long maxillary bones (in water at temperatures from 61 to 68 °F the limited evidence available, that the adults, these bones extend just short of (16 to 20 °C), with spawning probably San Francisco Bay-Delta population of the posterior margin of the eye). occurring in water with temperatures longfin smelt is not a valid distinct between 44.5 to 58 °F (7.0 to 14.5 °C) population segment (DPS) under our (Wang 1986, pp. 6-9). Distinct Population Segment Policy (61 The longfin smelt belongs to the true Longfin smelt prey primarily on FR 4721, February 7, 1996), and, smelt family Osmeridae, and is one of opossum shrimp (Neomysis mercedis) therefore, cannot be considered a three species in its genus; the night and other small crustaceans listable entity under section 3(16) of the smelt (Spirinchus starksi) co-occurs in ( sp.), although Act. California and the shishamo (S. such as the calanoid lanceolatus) occurs in northern Japan (Pseudodiatomus forbesi) and cyclopoid Previous Federal Actions (McAllister 1963, pp. 10 and 15). copepod (Acanthocyclops vernalis) On August 8, 2007, we received a Because of its distinctive characteristics, (Hobbs et al. 2006, p. 907) and other petition from the Bay Institute, the the San Francisco Bay-Delta population crustaceans are also preyed upon, Center for Biological Diversity, and the of longfin smelt was once described as especially by smaller fish (Moyle 2002, Natural Resources Defense Council to a species separate from more northern p. 236). Longfin smelt are preyed upon list the San Francisco Bay-Delta populations (Moyle 2002, p. 235). by fishes, birds, and mammals (Barnhart population of the longfin smelt as a McAllister (1963, p. 12) merged the two et al. 1992, p. 44) and are a major prey distinct population segment (DPS) and species, S. thaleichthys and S. dilatus, item of harbor seals (Phoca vitulina) in designate critical habitat for the species because the difference in morphological the Columbia River (Service 1995, p. concurrent with the listing. The petition characters represented a north-south 51). Predation of longfin smelt in the was clearly identified as a petition for cline rather than a discrete set; a San Francisco Bay Estuary is known to a listing rule and contained the names, subsequent study using electrophoresis occur by both striped bass (Morone

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saxatilis) and inland silversides miles (mi) (1,029 kilometers (km)) north Distinct Population Segment (Menidia beryllina), but the effects of of the San Francisco Bay-Delta (Randall We consider a species for listing predation on the population are not well Baxter, CDFG, pers. comm. 2008). In under the Act if available information understood (Moyle 2002, p. 238). In the California, longfin smelt are known indicates such an action might be ocean, longfin smelt feed primarily on from (north to south) the Klamath River, warranted. ‘‘Species’’ is defined in small crustaceans, but may also feed on Humboldt Bay and its tributaries, the section 3 of the Act to include any jellyfish and larval fish (Barnhart et al. Eel River, the Van Duzen River, the subspecies of fish or wildlife or plants, 1992, p. 44). Russian River, and the San Francisco and any distinct vertebrate population Reproduction Bay-Delta (Moyle 2002, p. 235). The segment of fish or wildlife that species was previously described as Longfin smelt may spawn as early as interbreeds when mature (16 U.S.C. ‘‘weakly anadromous’’ (Fry 1973, p. 88); November and as late as June, although 1532(16)). We, along with the National however, new research has found that at typically spawning occurs from Marine Fisheries Service (now the least part of the San Francisco Bay-Delta February to April (Moyle 2002, p. 236). National Oceanic and Atmospheric However, longfin smelt at various life population is anadromous (living Administration–Fisheries (NOAA – stages are detected in the San Francisco mostly in the ocean and spawning in Fisheries)), developed the Policy Bay estuary trawl surveys in numerous fresh water) (Rosenfield and Baxter Regarding the Recognition of Distinct months of the year (Rosenfield and 2007, p. 1590). Non-anadromous land- Vertebrate Population Segments (DPS Baxter 2007, p. 1578), suggesting that locked populations occur in Lakes Policy) (February 7, 1996; 61 FR 4721) the spawning period may not be Harrison and Pit in British Columbia, to help us in determining what restricted to November to June or that and Lakes Washington and Union in constitutes a DPS. Under our DPS growth and development between Washington (Page and Burr 1991, p. 57). policy, we consider three elements in a individuals varies. Spawning occurs in Longfin smelt are dispersed broadly decision regarding the status of a areas of relatively low salinity, which in the San Francisco Bay-Delta estuary possible DPS as endangered or are considered essential nursery habitat by high outflows and currents, which threatened under the Act. These for estuarine organisms (Jassby et al. could transport larvae or small juveniles elements include: (1) The discreteness 1995, p. 284). Spawning usually occurs long distances before they mature and of the population segment in relation to over rocky or gravelly substrates and become demersal (living near the the remainder of the species to which it aquatic plants (Moyle 2002, p. 236). bottom of the water column) (Baxter belongs; (2) the significance of the Female longfin smelt produce between 2008, p. 1). Unverified reports exist of population segment to the species to 5,000 to 24,000 eggs which stick to the longfin smelt being captured 3 to 4 mi which it belongs; and (3) the population substrate, and hatch within 40 days (5 to 6 km) offshore in northern segment’s conservation status in relation to the Act’s standards for listing. If we depending on the water temperature California (Service 1994, p. 3), but the determine that a population segment (CDFG 2001, p. 477). Newly hatched ecology and behavior of longfin smelt in meets the discreteness and significance embryos are transported in the upper the open ocean remains largely standards, then the level of threat to that portion of the water column unstudied. We are unaware of any population segment is evaluated based downstream (west) into more brackish studies assessing the swimming abilities on the five listing factors established by parts of the San Francisco Bay-Delta of longfin smelt, but they may be system (Moyle 2002, p. 236). Longfin the Act to determine whether listing the comparable to juvenile salmon with the smelt usually live for 2 years, although DPS as either threatened or endangered capability of swimming back into some individuals may spawn as 1- or 3– is warranted. estuaries from the ocean (Moyle 2008, p. year-old fish (Moyle 2002, p. 236), and 1). We believe it is likely that Discreteness die soon after spawning. individuals from the San Francisco Bay- The DPS policy states that a Range and Extant Distribution Delta estuary population could be population may be considered discrete The historical and current range of the transported via ocean currents, north to if it satisfies either one of the following longfin smelt is from Alaska southward the Russian River, Eel River/Humboldt conditions: (1) It is markedly separated to the San Francisco Bay-Delta in Bay, and Klamath River estuaries, from other populations of the same California, which includes the Delta, particularly during high outflow years, taxon as a consequence of physical, Suisun Marsh, San Pablo Bay, and the which are associated with northward physiological, ecological, or behavioral San Francisco Bay to the Golden Gate. ocean currents in the winter. It is also factors (quantitative measures of genetic One fish was found in the Monterey Bay likely that individuals from northern or morphological discontinuity may (south of the San Francisco Bay-Delta) estuaries may be transported to the San provide evidence of this separation); or in California (Eschmeyer 1983, p. 82; Francisco Bay-Delta estuary via (2) it is delimited by international Wang 1986, pp. 6-10). In Alaska, longfin southward (summer) currents, although governmental boundaries within which smelt are known from Hinchinbrook the main southern current (the differences in control of exploitation, Island, Prince William Sound, Dixon California current) is farther offshore management of habitat, conservation Entrance, Yakutat Bay, and Cook Inlet than the northern current (the Davidson status, or regulatory mechanisms exist (Alaska Natural Heritage Program current). Humboldt Bay and the that are significant in light of section (ANHP) 2006, p. 3). In Washington, the Klamath River are more than 260 mi 4(a)(1)(D) of the Act. range includes Willapa Bay, Skagit Bay, (418 km) and 320 mi (515 km) away by Columbia River, Grays Harbor, and sea, respectively, from the San Significance Puget Sound; in Oregon, the range Francisco Bay. It is impossible to Under our DPS Policy, once we have includes Coos Bay and Yaquina Bay reliably approximate how many determined that a population segment is (ANHP 2006, p. 3). Relative to longfin individuals as a proportion of the discrete, we consider its biological and smelt in the San Francisco Bay-Delta, population may be transported by ecological significance to the larger the nearest confirmed breeding currents or swim between the San taxon to which it belongs. This population of longfin smelt occurs in Francisco Bay-Delta and the other consideration may include, but is not the Columbia River, approximately 640 estuaries. limited to: (1) Persistence of the discrete

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population segment in an ecological present there. See Range and Extant 260 mi (418 km) by sea north of the San setting that is unusual or unique for the Distribution for more information. Francisco Bay-Delta. A total of 12 taxon; (2) evidence that loss of the longfin smelt were caught in north Geographical Isolation discrete population segment would Humboldt Bay during surveys using a result in a significant gap in the range The petitioners assert that the San variety of gear types from 2003 to 2005 of the taxon; (3) evidence that the Francisco Bay-Delta population is (Pinnix et al. 2005, p. 11), and one adult discrete population segment represents geographically isolated from all other was netted in Freshwater Creek (a the only surviving natural occurrence of populations, that there is no evidence of tributary to Humboldt Bay) in February a taxon that may be more abundant large numbers of longfin smelt migrating 2008 (Justin Garwood 2008, p. 1). elsewhere as an introduced population between populations, and that it is Eleven longfin smelt were found at a outside its historic range; or (4) highly unlikely that the San Francisco total of four sites in Humboldt Bay evidence that the discrete population Bay-Delta population is supplemented between 2000 to 2001 (Cole 2004, p. 20). segment differs markedly from other by populations from other areas. The Survey efforts conducted by California populations of the species in its genetic petitioners requested the Service list the State University at Humboldt caught characteristics. San Francisco Bay-Delta population of only about half a dozen longfin smelt in the longfin smelt as a DPS. We note that If a population is considered both Humboldt Bay in the past 10 years of standard set forth in the DPS policy is non-target sampling using both trawls discrete and significant (i.e., it is a that a DPS be ‘‘markedly separated’’ distinct population segment) its and beach seines (Mulligan 2008, p. 1). from other populations—thus, while In addition, non-target sampling around evaluation for endangered or threatened absolute separation is not required, a dredge disposal site about 2 mi (3.2 status will be based on the Act’s neither are ‘‘large numbers’’ of km) offshore from Humboldt Bay yields definitions of those terms and a five- individuals migrating between an average of a few dozen longfin smelt factor analysis will be completed. populations. every year (Mulligan 2008, p. 1). Distinct Population Segment Analysis Although the range of longfin smelt The Humboldt Bay tributaries of extends into Canada, the San Francisco Hookton Slough, Salmon Creek, and Elk Discreteness Bay-Delta population is not separated River Slough were sampled from 2005 The petitioners claim the San from all other populations by an to 2006, and Freshwater/Eureka Slough international border. Therefore, the San Francisco Bay-Delta population of and its tributaries were sampled from Francisco Bay-Delta population cannot longfin smelt is discrete because there is 2003 to 2006. Longfin smelt were found be discrete due to be delimiting by an no evidence that large numbers of in very low numbers during these years international border. in all of these tributaries (Mike Wallace, longfin smelt migrate between We are unaware of any targeted populations within their range in the 2008, p. 1). Spawning longfin smelt sampling efforts for longfin smelt, so the have been recorded in the Van Duzen eastern Pacific or along the California information we have about their coast. Additionally, they cite survey River and in the Eel River drainage in distribution and numbers and our Humboldt County (Moyle 2002, p. 235), data indicating longfin smelt conclusions outlined below have been populations within several hundred but the current status of longfin smelt gleaned from past and ongoing sampling and sampling efforts in these rivers is miles of the San Francisco Bay-Delta are efforts that target other aquatic small and possibly declining, which unknown. Humboldt Bay and the organisms. The following outlines the Klamath River estuaries may also leads the petitioners to conclude that it survey efforts and detections of longfin is unlikely that longfin smelt in the San support small but self-sustaining smelt in California north of San populations of longfin smelt. Pre-spawn Francisco Bay-Delta are supplemented Francisco Bay as a result of these non- by immigration from other areas. and spent (post-spawn) adults have target sampling efforts. been detected in the Klamath River Additionally, the petitioners cite Moyle In the Klamath River, longfin smelt (2002, p. 235) who concluded the estuary as recently as 2001, and adult were found in low numbers in the early and juvenile longfin smelt have been longfin smelt in the San Francisco Bay- 1990s using electrofishing techniques detected in recent years in Humboldt Delta are reproductively isolated from from river mile 2 to river mile 4 (river Bay, suggesting spawning and other population units. km 3.2 to 6.4). The Klamath River is recruitment may be occurring in these The range of the longfin smelt extends located approximately 320 mi (515 km) estuaries (Baxter 2008, p. 1). from Prince William Sound in Alaska, by sea north of the San Francisco Bay- In the Russian River in Sonoma south to the San Francisco Bay-Delta. In Delta. Additional sampling by the Yurok County, California (from the river mouth California, longfin smelt have been Tribe in the Klamath River in recent to approximately 10 mi (16 km) found in the lower reaches and estuaries years did not identify any longfin smelt; upriver), low numbers of longfin smelt of the Klamath, Eel, Van Duzen (a however, this sampling targeted were caught using otter trawls from tributary to the Eel River), and Russian salmonids and, as a result, any osmerids 1997 to 2000 (Sonoma County Water Rivers, but populations in these areas that may have been inadvertently Agency (SCWA) 1999, Appendices B-4 are currently considered relatively captured were not documented (Gale and B-8; SCWA 2000, Appendices B-8, small. We are unaware of historical 2008, p. 1). Also, because standard B-10, B-11, and B-12; SCWA 2001, pp. numbers in these areas. Longfin smelt sampling methods for salmonids are 18-19). The Russian River estuary is were historically abundant in Humboldt likely highly inefficient for collecting approximately 75 mi (120 km) by sea Bay, but this population is in decline longfin smelt, their presence or absence north of the San Francisco Bay-Delta. (The Bay Institute et al. 2007, p. 1). The in the Klamath River cannot be No longfin smelt were caught in the San Francisco Bay-Delta population is determined based on the Yurok Tribe Russian River using beach seines the southernmost self-sustaining sampling data. between 2003 and 2007 (SCWA 2004, p. population of longfin smelt (The Bay In Humboldt Bay in Humboldt 7; SCWA 2005, pp. 7-8; SCWA 2006, pp. Institute et al. 2007, p. ii). One County, California, longfin smelt 10-11; Cook 2008, p. 1). However, it is individual was found in Monterey Bay population numbers have likely always likely that beach seining is an (Moyle 2002, p. 236), but a self- been small (Moyle 2002, p. 237). ineffective method for determining sustaining population is not considered Humboldt Bay is located approximately presence or absence of longfin smelt,

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because it does not sample the depths assessing swimming ability of longfin that can be screened (Parker et al. 1998, (typically 15 to 22 feet (ft) (4 to 7 meters smelt, it may be comparable to juvenile pp. 362-363) and the fact that they often (m)) or the middle of the river channel salmon, which have the capability to detect little variability (Haig 1998, p. where longfin smelt were previously swim back into estuaries from the ocean 419). It is not uncommon for population found in the Russian River using otter (Moyle 2008, p. 1). Based on the recent biologists to encounter species for trawls. information that a portion of the San which allozymes cannot be used as One individual longfin smelt was Francisco Bay-Delta population of genetic markers because they lack found in Abbotts Lagoon at Point Reyes longfin smelt are anadromous and able variation (Parker et al. 1998, pp. 362- National Seashore in 1999 (Saiki and to swim into and out of the San 363). Martin 2001, p. 128), and near-shore Francisco Bay-Delta, it is likely that Stanley et al. (1995, p. 395) found the midwater trawl surveys conducted by individuals have the ability to swim San Francisco Bay-Delta population and the NOAA – Fisheries in the spring for into and out of ocean currents and into Lake Washington populations of longfin juvenile rockfish also detected longfin and between estuaries, including smelt were significantly different in smelt and other smelt not identified to estuaries outside of the San Francisco allele frequencies at several loci (gene species at several locations from Cyprus Bay-Delta estuary. In addition, other locations). However, the authors also Point near Monterey Bay to Point Reyes individuals may be transported by other stated the overall genetic dissimilarity near Bodega Bay in 1984, 1994, and mechanisms, such as high outflows and was within the range of other 2001 (Baltz, 2008, pp. 1-32). Although ocean currents (see Range and Extant conspecific fish species (Stanley et al. sampling continues, smelts caught have Distribution section). The distance that 1995, p. 395) and concluded their not been identified to species since longfin smelt could swim or be research indicates longfin smelt from 2001, and many of the stations where transported from the San Francisco Bay- Lake Washington and the San Francisco longfin smelt were identified in the Delta is unknown. It is possible that the Bay-Delta are conspecific (of the same 1980s and 1990s near the Gulf of the San Francisco Bay-Delta population is species) despite the large geographic Farallones have not been sampled since supplementing smaller nearby estuaries separation. We believe that this study is 1996 (Sakuma, 2008, p. 1). (such as the Russian River); therefore, not well suited to address whether the The City of San Francisco detected Moyle’s (2002, p. 235) conclusion that San Francisco Bay-Delta longfin smelt longfin smelt a few miles offshore in the longfin smelt in the San Francisco Bay- population is markedly separated from Pacific Ocean in 1983 and 1984, Delta being reproductively isolated is other populations of longfin smelt (the suggesting that individuals from the San questionable. Additionally, it is possible criterion of the DPS policy) because Francisco estuary disperse beyond the that other self-sustaining estuaries (such only two locations were sampled. These Golden Gate Bridge (City of San as Humboldt Bay, Coos Bay, Columbia two locations are ecologically different Francisco 1985, pp. 5-8; Rosenfield and River) may be supplementing smaller from one another and widely separated Baxter 2007, p. 1590). Additional estuaries in their vicinities. Therefore, geographically. The life history and surveys conducted between 1987 and we have determined the San Francisco ecology of the landlocked Lake 2007 were not examined for pelagic fish Bay-Delta population of longfin smelt is Washington longfin smelt population is species, so it is possible that longfin not geographically isolated from other different than other estuary populations, smelt were captured but not identified longfin smelt populations. and may have been geographically during these surveys (Kellogg 2008, p. separated for many years from other 1). Genetic Separation populations with access to the open The petitioner states that the San Summary of Geographic Isolation ocean. A more appropriate comparison Francisco Bay-Delta population of would have been to analyze longfin Although no physical barriers exist longfin smelt differs genetically from a smelt from a series of locations with between the San Francisco Bay-Delta population in Lake Washington in access to the open ocean (e.g., Columbia and estuarine habitat to the north, the Washington State (Stanley et al. 1995, River to Humboldt Bay) to assess the distance that longfin smelt are able to pp. 390-396). The petitioners conclude potential of genetic relatedness of travel out into the open ocean or from the single study that the San longfin smelt from the San Francisco northward along the coast to reach these Francisco Bay-Delta population differs Bay-Delta and other populations. While areas is unknown. The 1995 markedly from other populations the study indicates that Lake Sacramento/San Joaquin Delta Native genetically and that additional genetic Washington and San Francisco Bay- Fishes Recovery Plan (Service 1995, pp. analysis will confirm that the San Delta longfin smelt differ significantly at 47-65) states that the San Francisco Francisco Bay-Delta population some allozyme loci, it does not evaluate estuary population ‘‘is isolated from represents an evolutionarily the genetic relationship between these other populations.’’ However, as independent lineage of this species and populations and intervening described above in the Range and Extant qualifies as a DPS. populations along the Pacific coast. Distribution section, it is likely that Only one genetic study has addressed Furthermore, at the time of their longfin smelt are moving or being longfin smelt. Stanley et al. (1995, pp. study, the authors believed the longfin transported via currents between the 390-396) used electrophoresis of smelt in Humboldt Bay to be rare or San Francisco Bay-Delta estuary and allozymes to examine genetic variation extinct but did acknowledge the other estuaries to the north. A recent within and between two populations of existence of longfin smelt from the review of the abundance and longfin smelt. Allozymes are proteins Klamath River, approximately 124 mi distribution of longfin smelt within the used as genetic markers and have been (200 km) north of Humboldt Bay. San Francisco Bay-Delta concluded that used to assess genetic variation for Stanley et al. (1995, p. 395) surmised at least a portion of the longfin smelt many years. Allozyme studies have the that if the Humboldt Bay population population within the San Francisco advantage of being relatively was extinct, then genetic exchange Bay-Delta is anadromous and routinely inexpensive and straightforward, once between the Delta and Klamath River disperses outside the San Francisco the basic technique is developed for a would be extremely unlikely. This line Bay-Delta estuary and into the Pacific group. However, drawbacks of using of reasoning appears to imply Ocean (Rosenfield and Baxter 2007, p. electrophoretic allozyme studies geographic isolation. However, based on 1590). Although we know of no studies include the limited number of proteins more recent occurrence information, as

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we have outlined above, longfin smelt population is considered discrete then Finding are found in estuaries north of the San we would consider the biological and We have carefully assessed the best Francisco Bay-Delta, including the ecological significance of the scientific and commercial information Russian River, Humboldt Bay, and the population. To be considered a DPS available regarding whether the San Klamath River. Also taking into account under our policy, the population must Francisco Bay-Delta population of the recent confirmation that a portion of the meet both the discreteness and longfin smelt is a distinct population San Francisco Bay-Delta population of significance aspects of the policy. segment. We have reviewed the petition, longfin smelt is fully anadromous and We have determined that, based on information available in our files, and able to swim into and out of the San the best scientific and commercial all information submitted to us Francisco Bay-Delta, and that it is likely information available, the San Francisco following our 90–day petition finding that individuals have the ability to swim Bay-Delta population of the longfin (73 FR 24911, May 6, 2008). We also into and out of ocean currents and into smelt is not markedly separated from consulted with recognized smelt and between estuaries, including experts, including State and Federal estuaries outside of the San Francisco the other populations of longfin smelt. agency biologists, academics, and Bay-Delta estuary, we believe the The only available data to address the individuals involved in sampling and potential for genetic interchange exists. markedly separate standard for longfin As mentioned above, research to smelt relate to geographic isolation and surveying efforts for the longfin smelt. We find the San Francisco Bay-Delta evaluate any genetic differences genetic uniqueness, and we do not find population of the longfin smelt does not between the San Francisco Bay-Delta that these data indicate longfin smelt meet the discreteness criterion of our longfin smelt and other coastal longfin from the San Francisco Bay-Delta are DPS policy (and therefore we did not smelt populations has not yet been markedly separated from other longfin undertake a significance review) and completed. There is also no indication smelt found elsewhere. Recent studies therefore is not a valid DPS. As a result, that longfin smelt differ indicate that at least part of the San morphologically between the San Francisco Bay-Delta population is the San Francisco Bay-Delta population Francisco Bay-Delta population and anadromous and able to swim into and of the longfin smelt is not a listable other populations. Researchers from out of estuaries. Individuals may also be entity under the Act and we will not University of California at Davis have carried by currents from the San complete a 5-factor analysis of the San undertaken a study using more modern Francisco Bay-Delta to other estuaries Francisco Bay-Delta population of the molecular techniques, which examines outside the San Francisco Bay-Delta longfin smelt in response to the August DNA directly rather than looking at the which leads us to the conclusion that 8, 2007, petition. This finding is based product derived from DNA (i.e., longfin smelt may be able to disperse on information obtained on the proteins) to determine genetic between populations. Although it is potential for dispersal via ocean variability within and among impossible without further study to currents, and on information that a populations in Northern California, reliably approximate how many portion of the longfin smelt within the Oregon, and Washington (May 2008, p. individuals are being transported or San Francisco Bay-Delta regularly 1). Additional study should provide swimming between the San Francisco disperse out to the Pacific Ocean and more information on the distribution of Bay-Delta and the other estuaries, ‘‘large are fully anadromous. Once individuals genetic variation within the species and numbers’’ of migrating individuals are emigrate from the San Francisco Bay determine if longfin smelt from different not required to rule out populations Estuary they are likely transported by locations are intermixing. We believe being markedly separated. Nor is ocean currents and able to occupy that while this additional study is absolute isolation required for estuaries outside of the San Francisco Bay-Delta for an undetermined amount needed, at this time we can not populations to be markedly separated. of time. conclude that San Francisco Bay-Delta On balance, the limited data available However, given the demonstrated longfin smelt differ markedly from other do not suggest that the San Francisco anadromy of the San Francisco Bay populations in its genetic Bay-Delta population of the longfin Estuary population of longfin smelt and characteristics. Therefore, we have smelt is markedly separate from determined that, based on the best its potential for dispersal, we are populations outside the San Francisco initiating a range wide status assessment scientific and commercial information Bay-Delta. In addition, the only genetic available, the San Francisco Bay-Delta of the longfin smelt and are seeking study conducted to date examined only information regarding: taxonomy, population is not genetically distinct Lake Washington and San Francisco from other populations of longfin smelt. genetics, distribution, habitat selection, Bay-Delta longfin smelt, a sampling population density and trends, habitat Determination of Discreteness scheme too limited to reasonably trends, effects of management, dispersal Our DPS policy requires that when address whether longfin smelt in the and migratory capabilities or patterns of determining whether a population San Francisco Bay-Delta differ dispersal, and potential threats to the meets the definition of being a DPS, we genetically from other locations along longfin smelt throughout its range in must first consider discreteness of the the Pacific coast. Therefore, we have Alaska, Canada, Washington, Oregon, population segment in relation to the determined that the San Francisco Bay- and California. Upon completion of this remainder of the species to which it Delta population of longfin smelt is not review, we will also evaluate whether belongs. The population must be discrete as defined under our DPS the best available scientific information markedly separated from other policy. suggests that the San Francisco Bay- population of the taxon as a Significance Delta population of the longfin smelt consequence of physical, physiological, may be considered to occupy a ecological, behavioral, genetic or Since the San Francisco Bay-Delta significant portion of the range (SPR), morphological factors or as a result of population of longfin smelt is not and institute appropriate action. We international boundaries where discrete as defined under our DPS encourage interested parties to continue significant differences in exploitation, policy, we do not need to evaluate the to gather data that will assist in management, conservation status, or significance of the population to the determining the status of the longfin regulatory mechanisms exist. If a species as a whole. smelt. New information should be

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submitted to the Field Supervisor, Author Authority Sacramento Fish and Wildlife Office The authority for this action is the (see ADDRESSES). The primary authors of this notice are staff members of the Sacramento Fish Endangered Species Act of 1973, as References Cited and Wildlife Office, U.S. Fish and amended (16 U.S.C. 1531 et seq.). A complete list of all references cited Wildlife Service, 2800 Cottage Way, Dated: March 31, 2009. in this proposal is available upon Sacramento, CA 95825. Rowan W. Gould, request. You may request a list of all Acting Director, U.S. Fish and Wildlife references cited in this document from Service. the Supervisor, Sacramento Fish and [FR Doc. E9–8087 Filed 4–8–09; 8:45 am] Wildlife Office (see ADDRESSES). BILLING CODE 4310-55-S

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