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not contain an information collection 91. It is further ordered the The Commission will resolve automatic subject to the Paperwork Reduction Act Commission’s Consumer and roaming disputes on a case-by-case of 1995 (PRA), Public Law 104–13. Governmental Affairs Bureau, Reference basis, taking into consideration the Therefore, it does not contain any new Information Center, SHALL SEND a totality of the circumstances presented or modified ‘‘information collection copy of this Order on Reconsideration in each case. burden for small business concerns with and Second Further Notice of Proposed [FR Doc. 2010–9832 Filed 4–27–10; 8:45 am] fewer than 25 employees,’’ pursuant to Rulemaking, including the Initial BILLING CODE 6712–01–P the Small Business Paperwork Relief Regulatory Flexibility Analysis and Act of 2002, Public Law 107–198. Final Regulatory Flexibility Analysis, to 85. Concerning the Second FNPRM, the Chief Counsel for Advocacy of the DEPARTMENT OF COMMERCE this document does not contain an Small Business Administration. information collection subject to the List of Subjects in 47 CFR Part 20 National Oceanic and Atmospheric Paperwork Reduction Act of 1995 Administration (PRA), Public Law 104–13. Therefore, it Communications common carriers, does not contain any new or modified Communications equipment, and Radio. 50 CFR Parts 223 and 224 ‘‘information collection burden for small Marlene H. Dortch, [Docket No. 080229341–0108–03] business concerns with fewer than 25 Secretary, Federal Communications RIN 0648–XF89 employees,’’ pursuant to the Small Commission. Business Paperwork Relief Act of 2002, Public Law 107–198. Final Rules Endangered and Threatened Wildlife and Plants: Threatened Status for the C. Congressional Review Act ■ For the reason discussed in the Puget Sound/Georgia Basin Distinct preamble, the Federal Communications Population Segments of Yelloweye and 86. The Commission will send a copy Commission amends 47 CFR part 20 as of this Order on Reconsideration and Canary Rockfish and Endangered follows: Status for the Puget Sound/Georgia Second Further Notice of Proposed Basin Distinct Population Segment of Rulemaking in a report to be sent to PART 20—COMMERCIAL MOBILE Bocaccio Rockfish Congress and the Government RADIO SERVICES Accountability Office, pursuant to the AGENCY: National Marine Fisheries ■ 1. Authority: 47 U.S.C. 154, 160, 201, Congressional Review Act. Service (NMFS), National Oceanic and 251–254, 303, and 332 unless otherwise Atmospheric Administration (NOAA), D. Contact Persons noted. ■ Commerce. 87. For further information 2. In § 20.3 remove the definitions ‘‘ ’’ ‘‘ ’’ ACTION: Final rule. concerning this proceeding, please Home Carrier and Home Market and ‘‘ ’’ contact Peter Trachtenberg, Spectrum revise the definition of Host Carrier to SUMMARY: We, the NMFS, issue a final and Competition Policy Division at 202– read as follows: determination to list the Puget Sound/ 418–7369, Christina Clearwater, § 20.3 Definitions. Georgia Basin Distinct Population Spectrum and Competition Policy Segments (DPSs) of yelloweye rockfish * * * * * (Sebastes ruberrimus) and canary Division at 202–418–1893 or Nese Host Carrier. For automatic roaming, rockfish (Sebastes pinniger) as Guendelsberger, Spectrum and the host carrier is a facilities-based threatened, and bocaccio rockfish Competition Policy Division at 202– CMRS carrier on whose system another (Sebastes paucispinis) as endangered 418–0634. carrier’s subscriber roams. A facilities- under the Endangered Species Act based CMRS carrier may, on behalf of its IV. Ordering Clauses (ESA). We intend to propose protective subscribers, request automatic roaming regulations for yelloweye and canary 88. Accordingly, it is ordered, service from a host carrier. pursuant to the authority contained in rockfish under ESA section 4(d) and * * * * * Sections 1, 4(i), 201, 202, 251(a), 253, critical habitat for all three species in ■ 3. In § 20.12 revise paragraph (d) to separate rulemakings, and will solicit 303(r), and 332(c)(1)(B) of the read as follows: Communications Act of 1934, as public comments for these rulemakings amended, 47 U.S.C. 151, 154(i), 201, § 20.12 Resale and roaming. separately. DATES: 202, 251(a), 253, 303(r), and * * * * * This final rule is effective on July 332(c)(1)(B), and Section 1.429 of the (d) Automatic Roaming. Upon a 27, 2010. Commission’s rules, 47 CFR 1.429, this reasonable request, it shall be the duty ADDRESSES: NMFS, Protected Resources Order on Reconsideration and Second of each host carrier subject to paragraph Division, 7600 Sandpoint Way, NE., Further Notice of Proposed Rulemaking (a)(2) of this section to provide Building #1, Seattle, WA 98115. is hereby adopted. automatic roaming to any FOR FURTHER INFORMATION CONTACT: Dan 89. It is further ordered Section 20.12 technologically compatible, facilities- Tonnes at the address above or at (206) of the Commission’s rules is amended as based CMRS carrier on reasonable and 526–4643, or Dwayne Meadows, Office specified in the Final Rules, and such not unreasonably discriminatory terms of Protected Resources, Silver Spring, rule amendments shall be effective May and conditions, pursuant to Sections MD (301) 713–1401. The final rule, 28, 2010. 201 and 202 of the Communications references and other materials relating 90. It is further ordered the Petitions Act, 47 U.S.C. 201 and 202. The to this determination can be found on for Reconsiderations filed by Leap Commission shall presume that a our Web site at http:// Wireless International, Inc., MetroPCS request by a technologically compatible www.nwr.noaa.gov. Communications, Inc., Spectrum Co., CMRS carrier for automatic roaming is SUPPLEMENTARY INFORMATION: LLC, Sprint Nextel, and T–Mobile USA, reasonable pursuant to Sections 201 and Inc. are hereby granted in part and 202 of the Communications Act, 47 Background denied in part to the extent expressed U.S.C. 201 and 202. This presumption On April 9, 2007, we received a herein. may be rebutted on a case by case basis. petition from Mr. Sam Wright of

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Olympia, Washington, to list stocks of (61 FR 4722; February 7, 1996). We also for 60 days. We did not receive a request greenstriped rockfish, redstripe rockfish, asked the BRT to assess the level of for, nor did we hold, a public hearing yelloweye rockfish, canary rockfish, and extinction risk facing each species and on the proposal. Public comments were bocaccio, in Puget Sound as endangered to describe their confidence that the received from four separate or threatened species under the ESA species is at high risk, moderate risk, or commenters, and copies of all public and to designate critical habitat. Puget neither. We described a species with comments received are available online Sound is part of a larger inland system, high risk as one that is at or near a level at: http://www.regulations.gov/search/ the Georgia Basin, situated between of abundance, productivity, and/or Regs/. Summaries of the substantive southern Vancouver Island and the spatial structure that places its technical comments received, and our mainland coasts of Washington State persistence in question. We described a responses, are provided below, and British Columbia. We declined to species at moderate risk as one that organized by category. initiate a review of the species’ status exhibits a trajectory indicating that it is In December 2004, the Office of under the ESA, finding that the petition more likely than not to be at a high level Management and Budget (OMB) issued failed to present substantial scientific or of extinction risk in the foreseeable a Final Information Quality Bulletin for commercial information to suggest that future, with the appropriate time Peer Review establishing minimum peer the petitioned actions may be warranted horizon depending on the nature of the review standards, a transparent process (72 FR 56986; October 5, 2007). On threats facing the species and the for public disclosure, and opportunities October 29, 2007, we received a letter species’ life history characteristics. The for public input. Similarly, a joint from Sam Wright presenting report of the BRT deliberations (Drake et NMFS/FWS policy requires us to solicit information that was not included in the al., 2010) (hereafter ‘‘status report’’) independent expert review from at least April 2007 petition, and requesting that thoroughly describes yelloweye three qualified specialists, concurrent we reconsider our October 5, 2007, rockfish, canary rockfish, and bocaccio with the public comment period (59 FR decision not to initiate a review of the biology and natural history, and 34270; July 1, 1994). In accordance with species’ status. We considered the assesses demographic risks, threats, these policies, we solicited technical supplemental information provided in limiting factors, and overall extinction review of the draft status report (Drake the letter and the information submitted risk. et al., 2008) from six independent previously in the April 2007 petition as On April 23, 2009, we proposed to list experts selected from the academic and a new petition to list these species and the Puget Sound/Georgia Basin DPSs of scientific community. Each of these to designate critical habitat. The yelloweye rockfish and canary rockfish reviewers is an expert in rockfish supplemental information included as threatened and bocaccio rockfish as biology or extinction risk assessment additional details on the life histories of endangered species under the ESA (74 methodology. Comments were received rockfish supporting the case that FR 18516). We solicited comments and from four of the six independent experts individuals of these species occurring in suggestions from all interested parties from whom we requested technical Puget Sound may be unique and including the public, other review. The reviewers were generally additional information on recreational governmental agencies, the Government supportive of the scientific principles harvest levels suggesting significant of Canada, the scientific community, underlying the DPS determination and declines of rockfish abundance. We industry, and environmental groups. proposed listing determination for each determined that greenstriped rockfish Specifically, we requested information species. and redstripe rockfish did not warrant regarding: (1) Population structure of There was substantial overlap listing under the ESA, but that the yelloweye rockfish, canary rockfish, and between the comments from the bocaccio, yelloweye and canary bocaccio; (2) biological or other relevant independent expert reviewers and the rockfishes may warrant listing under the data concerning any threats to the substantive public comments. The ESA; and we therefore initiated status rockfish DPSs we propose for listing; (3) comments were sufficiently similar that reviews of these three species (73 FR the range, distribution, and abundance we have responded to the peer 14195; March 17, 2008). of these rockfish DPSs; (4) current or reviewer’s comments through our The overall steps we follow when planned activities within the range of general responses, which have been evaluating the ESA status of a species the rockfish DPSs we propose for listing placed in three general categories below. are to: (1) Delineate the species under and their possible impact on these The comments received concerning consideration; (2) review the status of DPSs; and (5) efforts being made to critical habitat are not germane to this the species; (3) consider the ESA section protect rockfish DPSs we propose to list. listing decision and will not be 4(a)(1) factors to identify threats facing Subsequent to the proposed rule (74 FR addressed in this final rule. Those the species; (4) assess whether certain 18516, April 23, 2009), the BRT comments will be addressed during any protective efforts mitigate these threats; produced an updated status report subsequent rulemaking on critical and (5) predict the species’ future (Drake et al., 2010) that summarizes habitat for each rockfish DPS. persistence. We provide more detailed new and additional information that has Delineation of Distinct Population information and findings regarding each become available since release of the Segments of these steps later in this notice. draft status report (Drake et al., 2008), To ensure that this assessment was responds to substantive peer review and Comment 1: One commenter based on the best available scientific public comments on the draft status questioned the BRTs interpretation of and commercial information, we formed report and the proposed rule and the strong 1999 year class of coastal a Biological Review Team (BRT) presents the final BRT conclusions on bocaccio, and the lack of a strong year comprised of Federal scientists from our the status of the Puget Sound/Georgia class the same year in the Georgia Basin, Northwest and Southwest Fisheries Basin DPSs of yelloweye rockfish, as additional evidence that the two Science Centers. We asked the BRT to canary rockfish, and bocaccio. populations were not highly connected first determine whether yelloweye and thus consisted of two discrete units. rockfish, canary rockfish and bocaccio Summary of Comments Received in The commenter stated that ‘‘The warrant delineation into DPSs, using the Response to the Proposed Rule documented 1999 strong year class was criteria in the joint NMFS—U.S. Fish We solicited public comment on the evident in the southern portion of the and Wildlife Service (FWS) DPS policy proposed listing of each rockfish DPS California Current System. The presence

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of a strong year class in northern counterpart. Regarding bocaccio, we 2008) show differentiation between the portions of their range has not been continue to conclude that the best two groups. Several other lines of documented.’’ The commenter also interpretation of all the available evidence support a conclusion that stated that the bocaccio length- scientific information is that bocaccio in yelloweye rockfish in the Georgia Basin frequency data reported in Drake et al. the Georgia Basin are discrete from are discrete from coastal populations of (2008) do not support the conclusion coastal bocaccio. Although adult yelloweye rockfish. Two aspects of the that successful recruitment is occurring bocaccio have a greater ability to move life history of yelloweye rockfish in the Puget Sound and that the over long distances than some other suggest genetic and potentially presence of mature individuals and rockfish species, in general, bocaccio demographic isolation from coastal many size (age) classes supports a viable life history mirrors the life histories of populations: (1) Both as adults and population in the region. the four species for which we do have juveniles, yelloweye rockfish are most Response: We agree with the genetic information—live-bearing of abundant near rocky substrata. Rocky commenter that the bocaccio young, pelagic larval and juvenile substrates are infrequent and patchy in recruitment event documented in 1999 stages, and eventual settlement to distribution in North Puget Sound and was for the California portion of the benthic habitats. Though larval bocaccio the Georgia Strait, and are very rare in stock. Thus it could be problematic to do remain in the pelagic environment Puget Sound proper (waters east of conclude that the bocaccio 1999 year longer than some other rockfish species, Admiralty Inlet); (2) yelloweye rockfish class was also strong off the coast of they are subjected to the same show very limited movement as adults. Washington and British Columbia. We environmental factors within the These two aspects of their life history, therefore do not rely on this factor to Georgia Basin that generally limit combined with the retentive patterns of conclude that Georgia Basin bocaccio dispersal as other rockfish species. The circulation of the Georgia Basin, support are discrete from coastal bocaccio. retentive circulation patterns of currents a conclusion that yelloweye rockfish in In response to the comment regarding within the Puget Sound make it likely the Georgia Basin are discrete from length-frequency data for bocaccio, the that a significant fraction of larvae coastal populations of yelloweye BRT conducted an additional analysis to released by bocaccio (especially in more rockfish. include an examination of the inland portions of the Sound) are Comment 3: One commenter noted a coherence of other year-classes and retained within the Sound. Other recent report by Field et al. (2009) modified the status report to show the evidence that Georgia Basin bocaccio which showed evidence that bocaccio results of this analysis (Drake et al., populations are discrete from coastal do not show strong population structure 2010). Overall, there appears to be little populations includes: The difference in within coastal waters, which could correspondence between age structure age structure between coastal and serve as evidence that bocaccio within of bocaccio inside and outside of the inland populations, which suggests the the Puget Sound are likely to be a Puget Sound region (referring to the San two groups are demographically component of coastal stocks instead of Juan, Eastern Straits of Juan de Fuca, independent, and the size frequency a Puget Sound/Georgia Basin DPS. North Sound, Central Sound, South data from bocaccio in the Puget Sound, Response: We agree that studies of Sound and Hood Canal regions). This which reveals the presence of coastal bocaccio populations have found distinction in age structure suggests individuals large enough to be sexually little genetic differentiation over large demographic isolation, which provides mature. additional evidence of discreteness for Regarding canary rockfish, we geographic distances, as reported in the Puget Sound/Georgia Basin DPS continue to conclude that the best Field et al. (2009). The report by Field designation. interpretation of all of the available et al. (2009) did not conduct genetic Comment 2: One reviewer stated that scientific information is that fish within analysis of bocaccio from the Georgia the genetic data from other rockfish the Puget Sound/Georgia Basin are Basin. Field et al. (2009) did conclude, species in Puget Sound provide a discrete from coastal canary rockfish. however, that despite an apparent lack reasonable template for the possible Although adult canary rockfish have a of genetic differentiation, there are genetic structure of yelloweye rockfish, greater ability to move over long sufficient demographic differences canary rockfish and bocaccio, while distances than some other rockfish between northern and southern another reviewer and one commenter species, in general, canary rockfish life populations of Pacific coastal bocaccio stated that a finding of discreteness was history mirrors the life histories of the to suggest they are demographically questionable for each species given the four species for which we do have independent. This demographic lack of genetic data. One of the genetic information—live-bearing of independence of southern and northern commenters also noted that bocaccio young, pelagic larval and juvenile coastal bocaccio provides further have unique larval characteristics, and stages, and eventual settlement to evidence of population structure, and canary rockfish and bocaccio have adult benthic habitats. Larval canary rockfish also supports an inference that Georgia characteristics that distinguish them are subjected to the same environmental Basin bocaccio populations are discrete from the four rockfish species for which factors within the Puget Sound/Georgia from coastal populations. we do have genetic information, making Basin that generally limit dispersal as Comment 4: One commenter stated it inappropriate to draw inferences from other rockfish species. The retentive ‘‘* * *whether [Puget Sound/Georgia the genetic information for those four circulation patterns of currents within Basin] bocaccio and canary rockfish species. the Puget Sound make it likely that a constitute self-sustaining populations Response: While we lack genetic data significant fraction of larvae released by may be questionable. Their early life for yelloweye rockfish, canary rockfish canary rockfish (especially in more stages have not been confirmed in Puget and bocaccio within each DPS, there is inland portions of the Sound) are Sound (Garrison and Miller, 1982) and substantial additional evidence for each retained within the Sound. their documented occurrence in Puget species to support a conclusion, in For yelloweye rockfish unpublished Sound proper is restricted to less than conjunction with inferences from genetic studies comparing fish from 24 locations compared to hundred of genetic data available for other rockfish coastal waters and the waters between records for copper, quillback, and species, that each population in the Vancouver Island and British Columbia brown rockfish (Washington, 1977; Georgia Basin is discrete from its coastal (Withler, personal communication, July Miller and Borton, 1980).

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Response: We agree that juvenile that the lack of data was further Evolutionary Significant Units (such as bocaccio rockfish have not been confounded by an overall lack of Good et al., 2005) as well as reviews of documented within the Puget Sound abundance numbers from fishery killer whales (Krahn et al., 2002; 2004) region, but note that a small number of independent sources. Another and herring (Gustafson et al., 2006). juvenile canary rockfish were reported commenter stated that ‘‘Given the data Despite the general lack of population by Weispfenning (2006) near the San gaps identified in the proposed listing data from non-fishery sources, the Juan Islands. Most surveys were rule, it does not seem certain here that weight of evidence demonstrates that conducted after the bocaccio population the threshold for listing has been met.’’ these DPSs abundances have been size was already very low. Given the Response: The analysis of extinction greatly reduced from historic levels and extremely episodic nature of bocaccio risk for yelloweye rockfish, canary abundance trends are negative. The recruitment (Tolimieri and Levin, 2005) rockfish and bocaccio was based upon analysis of each species status was, in and their apparently very low a host of considerations in addition to part, determined by available data that population size, the probability of species abundance. In assessing risk, it shows the relative decline of yelloweye, seeing a juvenile bocaccio is extremely is often important to include both canary and bocaccio rockfish catch in low. Habitats that feature rock and qualitative and quantitative information. fishery statistics over the past several microalgae (kelp species) are most In previous NMFS status reviews, we decades (FR 18516; April 23, 2009). The readily used by juvenile bocaccio (Love have used a ‘‘risk matrix’’ as a method analysis of fishery catch data show each et al., 1991), and relatively few studies to organize and summarize the species declining at rates faster than the have assessed fish assemblages within professional judgment of a panel of overall rockfish populations in the these habitats within the region. Thus, knowledgeable scientists. This approach Puget Sound region. In the case of it is difficult to draw conclusions from is described in detail by Wainright and bocaccio, no fish have been observed in the absence of post-settlement bocaccio Kope (1999) and has been used in fishery catch statistics since the late in surveys. Pacific salmonid status reviews (e.g., 1990s. We agree that fishery We acknowledge that bocaccio and Good et al., 2005; Hard et al., 2007), as independent data for each species, such canary rockfish have been documented well as in reviews of Pacific hake, as the use of drop cameras and remotely in fewer areas of the Georgia Basin walleye pollock, and Pacific cod operated video surveys, provide compared to other rockfish species. (Gustafson et al., 2000), Puget Sound important information regarding However, as an example of their past rockfishes (Stout et al., 2001b), Pacific rockfish status. In particular, fishery distribution we note that Moulton and herring (Stout et al., 2001a; Gustafson et independent data from each of the major Miller (1987) reported that 222 bocaccio al., 2006), and black abalone (Butler et regions of the DPSs would enhance our rockfish were recorded in recreational al., 2008). The BRT used this approach understanding of abundance, spatial fisheries in 1975, and 327 in 1985. The here as well. structure, and demographic profiles precise locations where these fish were In this risk matrix approach, the (such as the size and relative age caught were not reported by Moulton collective condition of individual structure) of each species. However the and Miller, though they did identify that populations is summarized at the DPS available data—including genetic all fish were caught in the eastern Strait level according to four demographic risk studies from other rockfish and fish of Juan de Fuca, the Central Sound, and criteria: Abundance, growth rate/ species, strong evidence of decline from South Sound. Moulton and Miller productivity, spatial structure/ fisheries data, and unique (1987) also report that 1,035 canary connectivity, and diversity. These environmental conditions within the rockfish were recorded in recreational viability criteria, outlined in McElhany Georgia Basin as viewed through the fisheries in 1975 and 934 in 1985. These et al. (2000), reflect concepts that are methodologies and assessments utilized fish were caught in the Gulf/ well founded in conservation biology by the BRT (Drake et al., 2010), support Bellingham, San Juan Islands, Hood and are generally applicable to a wide the extinction risk assessments that Canal, Central Puget Sound, South variety of species. These criteria inform this final rule. Puget Sound and the eastern Strait of describe demographic risks that Comment 6: Several reviewers and Juan de Fuca regions. In addition, individually and collectively provide commenters questioned our assessment canary rockfish have been reported as strong indicators of extinction risk. The and conclusions of the overall bycatch from salmon and bottom summary of demographic risks and abundance trends of rockfish within the fishermen in 2004 to 2007 catch other pertinent information obtained by Puget Sound region as they relate to statistics in 6 of the 9 Marine Catch this approach is then considered in fishery catch statistics and catch Areas within the DPS (WDFW, determining the species’ overall level of frequencies for yelloweye rockfish, unpublished data). Similarly, canary extinction risk. canary rockfish and bocaccio. They also rockfish have been documented as part When making ESA listing remarked that this assessment was of the assemblage of fishes in the Puget determinations, we must use the best further confounded by fishing Sound region for as long as there have available scientific and commercial data regulation changes that may have been formal fisheries surveys, dating available. The BRT employed the Forest obscured recent catch statistics. One back to at least the 1930s (Williams et Ecosystem Management Team (FEMAT) reviewer stated that ‘‘Changes in gear al., in press). voting methodology to address any and switches in the targeted species uncertainties about the subject rockfish should tend to prolong elevated catch Appropriateness of the Scope of the DPSs. The FEMAT methodology allows levels in a multispecies time series, so Proposed Rule and Assessment each BRT member to distribute 10 an observed decline in overall catch Comment 5: Several reviewers and likelihood points among DPSs probably reflects steeper declines in the commenters discussed our assessment scenarios, reflecting their view of the actual abundance of individual fishes.’’ of extinction risk as it related to rockfish probability that the particular category The reviewer stated that the BRT’s abundance data. One reviewer stated correctly reflects the true DPS status. analysis of fishery catch data ‘‘should that ‘‘* * * abundance data for the This method has also been used in all produce a conservative estimate of the individual species are not sufficient for recent status review updates for trend for each species (i.e., the actual independent [extinction] analysis federally listed Pacific salmon and trend is probably more negative than ***’’. The same reviewer also noted steelhead (Oncorhynchus mykiss) identified).’’ One commenter concurred

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with the general population trend rockfish and bocaccio in all or portions indicator, which is the overall condition analysis that shows that each species of the Puget Sound/Georgia Basin DPSs. of the Puget Sound shoreline, also had was more common in early time series The final status report was clarified to no clear trend (PSP 2010). of species compositions and that catch more explicitly discuss the risk from Washington State has a variety of rates and relative abundances of each Allee effects (Drake et al., 2010). marine protected areas managed by species have declined. The same Comment 8: Three commenters asked eleven Federal, state, and local agencies commenter noted that early time series that we assess in more detail existing (Van Cleve et al., 2009), though some of data may be obscured by the difficulty regulatory programs that may serve to these areas are outside of the range of of correctly identifying rockfish by protect rockfish, including habitat the rockfish DPSs. The WDFW has untrained samplers. protection and fishery management. established 25 marine reserves within Response: We recognize that the trend Response: In the proposed rule we the DPS, and 16 host rockfish (Palsson in the aggregate rockfish population described our consideration of the et al., 2009), though most of these does not equate to species specific effects of existing programs on reserves are within waters shallower trends of yelloweye rockfish, canary extinction risk of the three species (FR than those typically used by adult rockfish and bocaccio. Additionally, the 18516; April 23, 2009). In response to yelloweye rockfish, canary rockfish, or early time series species’ compositions these comments, we describe the bocaccio. The WDFW reserves total were likely obscured by the difficulty of following additional details about these 2,120.7 acres of intertidal and subtidal correctly identifying rockfish to species. programs. A number of agencies within habitat. Aside from the WDFW reserves, Because of the lack of time series data, Washington State have regulatory the Washington State Department of we focused on total rockfish trends and authority over actions that affect Natural Resources operates an Aquatic trends in the species composition of the rockfish habitat. The Washington State Reserve Program that is intended to total rockfish assemblage, but also Departments of Ecology, Natural protect habitat through their statutory considered information on trends Resources, Fish and Wildlife, and the ownership authority. during discrete time periods for each Puget Sound Partnership (PSP) are Management objectives and allowed species. Total rockfish abundance has agencies that collectively have various activities within the reserves in the declined and yelloweye rockfish, canary authorities to prevent habitat Puget Sound region and along the rockfish and bocaccio have become a degradation and loss from a variety of Pacific coast are diverse (Van Cleve et smaller proportion of the total rockfish activities, manage aquatic lands, al., 2009) and there is no comprehensive assemblage. This analysis allowed the provide technical and planning monitoring program to assess the BRT to use the trends in total rockfish assistance, fund restoration efforts, and collective effects of existing protected as an upper bound on the trends for conduct monitoring. The Department of areas within the Puget Sound region. A each species. We agree that this Ecology oversees the State Shoreline recent report identified several approach should produce a conservative Management Act that mandates that impediments to implementing effective estimate of the overall trend for each each County develop and update monitoring of existing marine protected species because over time there have policies on the use and protection of the areas including large areas of the been changes in fishing gear and shoreline. Assessing the effectiveness of environment to cover, expenses to locations (in response to localized regulatory programs designed to protect conduct survey work, insufficient depletion of stocks), which may have water quality and habitat for rockfish is funding for data management and prolonged harvest rates for each species. complicated by the general lack of analysis, the challenge of avoiding harm In other words, when local rockfish systematic monitoring that occurs to species or habitats while conducting aggregations were fished out, anglers related to specific development and research, and narrow agency mandates would move to new locations and permitting activities. From 2006 to (Van Cleve et al., 2009). The total fishery statistics will not necessarily 2008, an additional five miles of percentage of the Puget Sound region show these localized depletions bulkheads were constructed along Puget within reserve status is unknown, (Yamanaka and Lacko, 2001). The Sound shorelines (Cornwall and Mayo, though Van Cleve et al. (2009) estimate available fisheries data do show a 2008). These types of shoreline that one to five percent of the Puget reduction of the proportion of yelloweye developments can impact nearshore Sound region is within a reserve. rockfish, canary rockfish and bocaccio habitat conditions for macroalgae used Compared to fished areas, studies have compared to the overall rockfish catch by juvenile rockfish, and degrade forage found higher fish densities, sizes, or data, and we agree with the reviewer fish spawning habitat (Rice, 2006), reproductive activity in the assessed that the reduction in overall abundance potentially decreasing food sources of WDFW marine reserves (Palsson and may be greater than reflected in the rockfish. Pacunski, 1995; Palsson, 1998; available data. Recently, the PSP released a ‘‘State of Eisenhardt, 2001; 2002; Palsson, 2004). Comment 7: A commenter stated that the Sound’’ report (PSP 2010) that, in However, since they were established the draft status report (Drake et al., part, assessed the status of the Puget over several decades with unique and 2008) did not ‘‘evaluate potential Sound ecosystem through a series of somewhat unrelated ecological goals, adverse impacts to low abundance indicators. Of the indicators most and encompass relatively small areas rockfish populations due to closely related to rockfish, their habitat (average of 23 acres), the net effect of depensation, especially the sub-set of and prey, herring spawn biomass and existing reserves to yelloweye rockfish, depensatory mortality factors commonly eelgrass coverage each declined, while canary rockfish and bocaccio known as Allee effects.’’ the amount of flame retardant chemicals abundance, productivity and spatial Response: Allee effects, as applied by within herring (and harbor seals) structure are probably very small. In the commenter to rockfish populations, showed an increasing trend. One water general, the characteristics of a network is a term to characterize additional quality indicator (polycyclic aromatic of reserves that are relevant to viability risks when populations are at hydrocarbons levels in Elliot Bay) enhancing populations of yelloweye very low abundance and cannot find improved, while another (extent of rockfish, canary rockfish and bocaccio mates (Courchamp et al., 2008). We dissolved oxygen in the Puget Sound) include sites in each of the major agree that Allee effects are likely a risk had no clear trend. Additionally the regions of the DPS, and sites that factor for yelloweye rockfish, canary report stated that the ‘‘shoreform’’ provide some connectivity to each other

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(for larvae). Finally the sites would need Biological or Other Relevant Data rates of rockfish. For example, Palsson to be large enough to collectively Concerning Any Threats to Each DPS et al. (2009) describe a case in which encompass diverse habitats that Comment 10: Two commenters male rockfish have lower growth rates facilitate productivity of individual fish discussed the role of water quality as it than females—an unusual pattern for and reserve resiliency to outside relates to the status of yelloweye rockfish since males typically grow disturbances and stressors (Sobel and rockfish, canary rockfish and bocaccio. faster than females. The explanation Dahlgren, 2004). Referring to our proposed listing, one may be that male rockfish tend to In 2007, the Canadian government commenter stated that ‘‘* * * the accumulate PCBs, while female’s body designated approximately 135 rockfish characterization of nutrient issues and burden does not increase with time conservation areas that encompasses 30 dissolved oxygen problems in Puget since they lower their toxin level when percent of the area of the inside waters Sound is exceedingly broad’’ One they release eggs. Thus, the observed of Vancouver Island. These reserves do commenter stated that ‘‘The impact of difference in growth rate may result not allow directed commercial or hypoxia as a risk to the petitioned from the higher contaminant recreational harvest for any species of rockfish in southern Puget Sound may concentration in males versus females. rockfish, nor do they allow harvest of be overstated in that historical The full effect of contaminants on marine species that may incidentally documented occurrences of canary, rockfish remains unknown, but there is catch rockfish. Since the Canadian bocaccio, and yelloweye rockfish do not clearly a potential for impact and that reserves were recently established, the correspond to areas of poor water warrants further research efforts. effects to rockfish populations are quality in southern Puget Sound.’’ Comment 12: One commenter unknown. However, the attributes of Response: We agree that elevated questioned whether rocky habitat loss these reserves that include the overall nutrient levels and low dissolved has occurred as stated in the proposed size of the network, which encompass a oxygen levels (causing hypoxia) are not rule (74 FR 18516, April 23, 2009). variety of habitats distributed uniformly distributed across the DPS, Instead, the commenter stated that throughout the northern portion of the and that some areas of rockfish habitat ‘‘habitat may be degraded due to derelict DPS, will likely provide substantial are more likely to be affected than fishing gear or impaired water quality.’’ benefit to rockfish populations. others. Specifically, periods of low Response: We agree that rocky habitat However, the lack of an analogous dissolved oxygen are becoming more loss is rare, and other factors have likely network in the southern portion of the widespread in portions of Hood Canal reduced rocky habitat suitability in Georgia Basin still leaves a possible gap and south of the Tacoma Narrows. some areas, but note that the loss of in the survival and recovery potential of Comment 11: Two commenters rocky habitat has occurred near the yelloweye rockfish, canary rockfish and discussed contaminants. One Skagit River delta as a result of bocaccio. commenter noted that our proposed sedimentation from the Skagit Consideration of these additional listing adequately characterized what is watershed (Grossman et al., in review). details did not change our extinction known and not known regarding the We also concur that lost commercial risk analysis for yelloweye rockfish, impact or threat of toxic contaminants fishing nets and commercial and canary rockfish and bocaccio within this on each species, and added that ‘‘If recreational crab pots (collectively final listing determination. The pelagic prey dominate the diet of a referred to as derelict fishing gear) may programs and protective efforts petitioned species it may experience be having a large impact on rockfish described about do not alter the risk greater exposure to persistent habitat suitability. Lost gear generally factors identified by Drake et al. (2010), bioaccumulative toxins (PBTs) across a catches on bottom structure such as and discussed in the proposed rule (74 greater spatial range (not just urban rocky reefs and large boulders that are FR 18516, April 23, 2009). areas). Pelagic prey such as herring in also attractive to rockfish (NRC, 2007). Comment 9: One commenter Puget Sound have unusually high body Derelict nets trap fine sediments out of questioned how future recovery burdens of PBTs * * * If petitioned the water column, making a layer of soft planning could occur given the general species consume herring or similar sediment over rocky areas that changes lack of precise abundance data, stating pelagic prey, we believe that PBT habitat quality and suitability for ‘‘listing these three species at this stage contamination may have played a role benthic organisms (NRC, 2007). This will make it difficult, if not impossible, in their decline, and is a risk factor for gear covers habitats used by rockfish for to establish accurate delisting and their recovery.’’ shelter and pursuit of food and likely recovery criteria.’’ One commenter asked that we causes a depletion of food sources. For Response: Future recovery planning provide additional detail regarding ‘‘the instance, a study of several derelict nets efforts for yelloweye rockfish, canary level of scientific consensus on the in the San Juan Islands reported an rockfish and bocaccio will incorporate emerging topics of reproductive estimated 107 invertebrates and 16 fish the best available information regarding dysfunction and other sub-lethal affects (of various species) entangled per day each species’ abundance and spatial as a result of contaminant exposure.’’ (NRC, 2008). One net had been in place structure within the DPS. For instance, Response: We agree that contaminants for 15 years, entangling an estimated we expect that additional abundance within forage fish such as herring 16,500 invertebrates and 2,340 fish data for each species will be available distribute contaminants across a greater (NRC, 2008). Though these estimates are from studies by the WDFW prior to the spatial range than just urban areas. The coarse, they illustrate the potential development of the recovery plan. In long life span and residency of rockfish impacts of derelict gear within the DPS. addition, the recovery plan itself will in the Georgia Basin increase the risk of In shallower waters used by juvenile identify data gaps that warrant further exposure and bioaccumulation in rockfish, this gear can reduce kelp research. Beyond just identifying individual fish. Although risks from overstory coverage and growth. delisting criteria, we expect that the contaminants can affect all life history Comment 13: One commenter recovery plan for each species will also stages of rockfish, few studies have requested ‘‘* * * that the listing identify specific management actions investigated the effects of toxins on decision process incorporate direct necessary to achieve recovery of the rockfish ecology or physiology. characterization and consideration of species. Contaminants may influence growth climate change effects on rockfish.’’

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Response: The draft and final status (16 U.S.C. 1532(16)). The FWS and purposes; (3) disease or predation; (4) report analyzed the effects of climate NMFS have adopted a joint policy inadequacy of existing regulatory variability and change on the extinction describing what constitutes a DPS of a mechanisms; or (5) other natural or risk of yelloweye rockfish, canary taxonomic species (61 FR 4722; man-made factors affecting its rockfish and bocaccio rockfish (Drake et February 7, 1996). The joint DPS policy continued existence. We are to make al., 2008; 2010). In general, variable identifies two criteria for making DPS this determination based solely on the ocean conditions (exacerbated by determinations: (1) The population must best available scientific and commercial climate change) may increase extinction be discrete in relation to the remainder information after conducting a review of risk for each species. Marine, estuarine, of the taxon (species or subspecies) to the status of the species and taking into and freshwater habitat in the Pacific which it belongs; and (2) the population account any efforts being made by states Northwest has been influenced by must be significant to the remainder of or foreign governments to protect the climate change over the past 50 to100 the taxon to which it belongs. species. years and global patterns suggest the A population segment of a vertebrate Summary of Factors Affecting the Puget long-term trend is for a warmer, less species may be considered discrete if it Sound/Georgia Basin DPSs productive ocean regime in the satisfies either one of the following California Current and the Transitional conditions: (1) ‘‘It is markedly separated The primary factors responsible for Pacific. Projections for the consequences from other populations of the same the decline of the three DPSs of of climate change in the Georgia Basin taxon as a consequence of physical, rockfishes are overutilization for include: Continued rise of air and physiological, ecological, or behavioral commercial and recreational purposes, marine water temperatures, altered river factors. Quantitative measures of genetic habitat degradation, water quality and stream flows, increase of winter or morphological discontinuity may problems including low dissolved runoff with decrease in water stored as provide evidence of this separation’’; or oxygen and elevated contaminant levels, snow pack, increased river flooding, and (2) ‘‘It is delimited by international and inadequacy of existing regulatory continued sea level rise (NMFS, 2007). governmental boundaries within which mechanisms. The factors for decline are Related consequences to the Georgia differences in control of exploitation, addressed collectively in the following Basin will likely consist of changes to management of habitat, conservation section due to their similarity for each water quality, circulation patterns, status, or regulatory mechanisms exist species. This section briefly summarizes biological productivity, habitat that are significant in light of section findings regarding threats to the three distributions, populations of sensitive 4(a)(1)(D)’’ of the ESA. DPSs of rockfishes. More details can be species, rates of harmful algal blooms, If a population segment is found to be found in the status report (Drake et al., surface wind patterns, and coastal discrete under one or both of the above 2010), Palsson et al., (2009), and the upwelling regimes. In addition, ocean conditions, its biological and ecological proposed listing determination (74 FR acidification harms invertebrate significance to the taxon to which it 18516; April 23, 2009). belongs is evaluated. This consideration calcification, photosynthesis, nitrogen The Present or Threatened Destruction, may include, but is not limited to: (1) fixation and reproduction (Doney et al., Modification, or Curtailment of Its ‘‘Persistence of the discrete population 2009). These types of impacts could Habitat or Range fundamentally change food web segment in an ecological setting unusual dynamics that cascade to upper-level or unique for the taxon; (2) evidence The BRT identified habitat predators such as rockfish. These types that the loss of the discrete population degradation as a threat to these rockfish. of changes, collectively, could alter segment would result in a significant In particular, degradation of rocky habitat conditions that are necessary for gap in the range of a taxon; (3) evidence habitat, loss of eelgrass and kelp, rockfish persistence. that the discrete population segment introduction of non-native species that Comment 14: A commenter stated that represents the only surviving natural modify habitat, and degradation of ‘‘By a wide margin, the highest bycatch occurrence of a taxon that may be more water quality were identified as specific mortality for rockfish occurs in the abundant elsewhere as an introduced threats to rockfish habitat in the Georgia Puget Sound recreational fishery for the population outside its historic range; Basin. Though each species has been winter Puget Sound blackmouth and (4) evidence that the discrete documented along areas of high relief [immature Chinook salmon]’’ and not population segment differs markedly and non-rocky substrates such as sand, within the lingcod fishery, as stated in from other populations of the species in mud and other unconsolidated Drake et al. (2008). its genetic characteristics.’’ sediments (Washington, 1977; Miller Response: The most recent fishery The ESA defines an endangered and Borton, 1980), it is very likely that catch statistics do not show that species as one that is ‘‘in danger of densities of bocaccio, canary rockfish, yelloweye rockfish, canary rockfish and extinction throughout all or a significant and yelloweye rockfish are highest near bocaccio bycatch from fishers targeting portion of its range,’’ and a threatened rocky habitats. Such habitat is extremely blackmouth (Chinook) salmon during species as one that is ‘‘likely to become limited in Puget Sound, with only 10 the winter is high relative to other an endangered species in the foreseeable km2 (3.8 sq miles) of such habitat in seasons. Rockfish catch data from 2004 future throughout all or a significant Puget Sound Proper, and 207 km2 (80 sq to 2007 provided by the WDFW show portion of its range’’ (Sections 3(6) and miles) in North Puget Sound (Palsson et that 100 percent of yelloweye rockfish (20) of the ESA). Section 4(a)(1) of the al., 2009). Rocky habitat is threatened and 95 percent of the canary rockfish ESA and NMFS’s implementing by, or has been impacted by, derelict bycatch associated with salmon fishing regulations (50 CFR 424) state that we fishing gear, construction of bridges, occurs within the May through August must determine whether a species is sewer lines and other structures, time periods (WDFW unpublished data). endangered or threatened because of deployment of cables and pipelines, and any one or a combination of the burying from dredge spoils and natural Determination of Species Under the following factors: (1) The present or subtidal slope movement (Palsson et al., ESA threatened destruction, modification, or 2009). The ESA defines species to include curtailment of its habitat or range; (2) Juvenile bocaccio and canary rockfish subspecies or a DPS of any vertebrate overutilization for commercial, utilize nearshore waters with substrates species which interbreeds when mature recreational, scientific, or educational of rock or cobble compositions, and/or

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kelp species (Love et al., 1991; Love et the prey that support them. Several with dissolved oxygen less than 2 mg/ al., 2002). Habitats with these features urban embayments in the Sound have l; however, when low dissolved oxygen likely offer a beneficial mix of warmer high levels of heavy metals and organic waters were quickly upwelled to the temperatures, food and refuge from compounds (Palsson et al., 2009). About surface in 2003, about 26 percent of the predators (Love et al., 1991). Areas with 32 percent of the sediments in the Puget rockfish population was killed (Palsson floating and submerged kelp species Sound region are considered to be et al., 2009). In addition to Hood Canal, (Families Chordaceace, Alariaceae, moderately or highly contaminated periods of low dissolved oxygen are Lessoniacea, and Costariaceae, and (Puget Sound Action Team, 2007). becoming more widespread in waters Laminaricea) support the highest Organisms that live in or eat these south of Tacoma Narrows (Palsson et densities of most juvenile rockfish sediments are consumed, thus al., 2009). species (Carr, 1983; Halderson and transferring contaminants up the food Overutilization for Commercial, Richards, 1987; Matthews, 1989; web to higher level predators like Recreational, Scientific or Educational Hayden-Spear, 2006). Kelp cover is rockfishes, and to a wider geographic Purposes highly variable and has shown long- area. term declines in some regions, while Not surprisingly, contaminants such Our status report (Drake et al., 2010) kelp beds have increased in areas where as polychlorinated biphenyls (PCBs), and the WDFW (Palsson et al., 2009) artificial substrate provides additional chlorinated pesticides (e.g., DDT), and identify overutilization for commercial kelp habitat (Palsson et al., 2009). polybrominated diphenyl ethers and recreational purposes as the leading Threats to kelp communities include (PBDEs) appear in rockfish collected in cause of decline to yelloweye rockfish, toxins such as petroleum products urban areas (Palsson et al., 2009). While canary rockfish and bocaccio in the which lower photosynthesis and the highest levels of contamination Puget Sound/Georgia Basin. The respiration, activities associated with occur in urban areas, toxins can be evidence is clear that historic oyster culture and boat operations, and found in the tissues of fish in all regions overfishing has played a major role in harvest (Mumford, 2007). Indirect of the sound (Puget Sound Action Team, the declines of rockfish in the Puget stressors to kelp include low dissolved 2007). Rockfish collected in rural areas Sound region (Palsson et al., 2009; oxygen, eutrophication, and changes in of the San Juan Islands revealed high Drake et al., 2010; Williams et al., in trophic structure resulting from harvest levels of mercury and hydrocarbons press). Moreover, the life histories of of organisms that feed upon kelp (West et al., 2002). yelloweye rockfish, canary rockfish and (Mumford, 2007). Although few studies have bocaccio make them highly susceptible Shoreline development has occurred investigated the effects of toxins on to overfishing and, once populations are along approximately 30 percent of the rockfish ecology or physiology, other at a low level, recovery can require Puget Sound (Broadhurst, 1998), and fish in the Puget Sound region that have decades (Parker et al., 2000; Love et al., has increased in recent years (Cornwall been studied do show a substantial 2002). In particular, rockfish grow and Mayo, 2008). Development along impact. As an example English sole is slowly, have a long life span and low the shoreline has been linked to reduced a demersal fish in the Puget Sound that natural mortality rates, mature late in invertebrate abundance and species taxa lives in somewhat similar habitats as life, often have sporadic reproductive diversity (Dugan et al., 2003), and rockfish, and reproductive impairment success from year to year, may display reduced forage fish egg viability (Rice, has been documented in individuals high fidelity to specific habitats and 2006). These are examples of food web from contaminated areas. This reduction locations, and require a diverse genetic changes that may alter forage fish prey effectively decreases the productivity of and age structure to maintain healthy composition or abundance for these the species (Landahl et al., 1997). populations (Love et al., 2002). rockfish. Reproductive function of rockfish is also Estimates of rockfish harvest in the Non-indigenous species are an likely affected by contaminants (Palsson Puget Sound region are available for the emerging threat to biotic habitat in the et al., 2009), and other life history stages last 87 years (Palsson et al., 2009). Puget Sound region. Sargassum may be as well (Drake et al., 2010). Commercial harvest was very low prior muiticum is an introduced brown alga Some areas with good habitat structure to World War II, rose during the War, that is now common throughout much for rockfish are also located in areas that and then averaged 125,000 pounds of the Sound (Drake et al., 2010). The are now subject to high levels of (56,700 kg) between 1945 and 1970. In degree to which Sargassum influences contaminants. This is evidenced by the the 1970s, harvest increased native macroalgae, eelgrass, or rockfish fact that rockfish were historically dramatically, peaking in 1980 at 880,000 themselves is not presently understood. captured in great numbers in these areas pounds (399,200 kg). Catches remained Several species of non-indigenous (Palsson et al., 2009 and Puget Sound high until the early 1990s and then tunicates have been identified in the Action Team, 2007). declined dramatically (Palsson et al., Puget Sound region. For example, Ciona In addition to chemical 2009). From 1921 to 1970 a total of savignyi was initially seen in one contamination, water quality in the 3,812,000 pounds (1,729,000 kg) of location in 2004, but within two years Puget Sound region is also influenced rockfish were landed in the Puget spread to 86 percent of sites surveyed in by sewage, animal waste, and nutrient Sound region, while nearly this same Hood Canal (Puget Sound Action Team, inputs. The Washington Department of level of harvest (3,968,000 pounds; 2007). The exact impact of invasive Ecology has been monitoring water 1,800,000 kg) was achieved in only 7 tunicates on rockfish or their habitats is quality in the Puget Sound region for years (from 1977 to 1983). The average unknown, but results in other regions several decades. Monitoring includes annual harvest from 1977 to 1990 was (e.g., Levin et al., 2002) suggest the fecal coliform, nitrogen, ammonium, nearly four times pre–1970 levels. potential for introduced invertebrates to and dissolved oxygen. In 2005, of the 39 Palsson et al. (2009) provide a rough have widespread impacts on rocky-reef sites sampled, eight were classified as estimate of the total rockfish biomass in fish populations. highest concern, and 10 were classified the Puget Sound region during the 1999 Over the last century, human as high concern. Hood Canal has seen to 2004 time period of 3,205,521 pounds activities have introduced a variety of persistent and increasing areas of low (1,454,000 kg), less than the total toxins into the Georgia Basin at levels dissolved oxygen since the mid 1990s. harvest from 1977 to 1983. For that may affect rockfish populations or Typically, rockfish move out of areas comparison, exploitation rates for

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canary rockfish during the 1980s and timing of parturition (giving birth) can items of lingcod (Beaudreau and 1990s along the U.S. Pacific Coast be crucial in terms of matching Essington, 2007). Populations of lingcod ranged from 5 to 19 percent (Stewart, favorable oceanographic conditions for have been low in the Puget Sound 2007), bocaccio ranged from 5 to 31 larvae. Larger or older females release region, but are increasing in recent years percent (MacCall, 2008), and yelloweye larvae earlier in the season compared to (Palsson et al., 2009). Predation by rockfish ranged from less than 5 percent smaller or younger females in black, pinnipeds may be locally significant. to about 17 percent (Wallace, 2007). In blue, yellowtail, kelp, and darkblotched Four pinniped species are found in the each of these cases, these high rockfish (Nichol and Pikitch, 1994; waters of the State of Washington: exploitation rates were followed by Sogard et al., 2008). Maternal effects on Harbor seals, California sea lions, Steller dramatic declines in population size larval quality have been documented for sea lions, and northern elephant seals. (Stewart, 2007; Wallace, 2007; MacCall, black, blue, gopher, and yellowtail Harbor seal populations have increased 2008). rockfish (Berkeley et al., 2004; Sogard et to more than 10,000 (Jeffries et al., Fishery removals can affect both the al., 2008). The mechanism for maternal 2003). The harbor seal is the only absolute abundance of rockfish as well effects on larval quality across species is pinniped species that breeds in as the relative abundance of larger fish. the size of the oil globule provided to Washington waters, and is the only Palsson et al. (2009) examined studies larvae at parturition, which provides the pinniped with known haul-out sites in comparing rockfish populations in developing larvae with energy insurance the San Juan Islands (Jeffries et al., marine reserves in the Puget Sound against the risks of starvation (Berkeley 2000). In the Puget Sound region, harbor region to populations outside reserves, et al., 2004; Fisher et al., 2007), and in seals are opportunistic feeders that and related this information to long- black rockfish enhances early growth consume seasonally and locally term trends in rockfish catch data, to rates (Berkeley et al., 2004). An abundant prey (Olesiuk et al., 1990; draw conclusions about the effects of additional maternal effect in black London et al., 2001). About 2,000 Steller fishing on rockfish in the Puget Sound rockfish indicates that older females are sea lions occur seasonally in region. They noted that rockfish in more successful in producing progeny Washington waters, with dozens found marine reserves in the Puget Sound that recruit from primary oocyte to fully in the Puget Sound region, particularly region generally are at higher densities developed larvae (Bobko and Berkeley, in the San Juan Islands (Palsson et al., than rockfish outside reserves. They 2004). In a broad span of species, there 2009). About 8 percent of the Steller sea considered this information in the is evidence that age or size truncation is lion diet is rockfish (Lance and Jeffries, context of steep declines in the catch of associated with increased variability in 2007). Though not abundant, their large rockfish after the early 1980s to recruitment. Examples include Icelandic size and aggregated distribution suggest conclude that the current low cod (Marteinsdottir and Thorarinsson, that their local impact on rockfish could abundance of rockfish in the Puget 1998), striped bass (Secor, 2000), Baltic be significant. Fifteen species of marine Sound region is likely the result of cod (Wieland et al., 2000), and many birds breed along the Washington coast; overfishing. They further noted that species of California Current fishes seven of these have historically been rockfish in marine reserves in the Puget (Hsieh et al., 2006). For long-lived found breeding in the Puget Sound Sound region are larger than rockfish species, reproduction over a span of region (Speich and Wahl, 1989). The outside the reserves. many years is considered a bet-hedging predominant breeding marine birds in Coupled with information that the strategy that has a buffering effect at the the San Juan Islands are pigeon size of rockfish in the Puget Sound population level, increasing the guillemots, double-crested cormorants, region has declined in recent decades, likelihood of some successful pelagic cormorants, and members of the they concluded that fishing has also reproduction over a period of variable western gull/glaucous-winged gull likely altered the age structure of environmental conditions (Longhurst, complex (Speich and Wahl, 1989). The rockfish populations by removing larger 2002). When reproductive effort is older individuals. Age truncation (the first three species are locally abundant. limited to younger ages, this buffering Although these avian predators can removal of older fish) can occur at even capacity is lost and populations more moderate levels of fishing for rockfish consume juvenile rockfish, whether closely follow short-term fluctuations in they have a significant impact on (Berkeley et al., 2004). Age truncation the environment (Hsieh et al., 2006). rockfish populations is unknown. has been widely demonstrated for In summary, it is likely that past Rockfish are susceptible to diseases rockfish populations all along the west overfishing has reduced the abundance and parasites (Love et al., 2002), but the coast (Mason, 1998; Harvey et al., 2006), of the yelloweye rockfish, canary extent and population consequences of even for species not currently rockfish and bocaccio DPSs, leading to disease and parasite impacts on the categorized as overfished by the Pacific the current low abundance levels that yelloweye rockfish, canary rockfish and Fishery Management Council. It can place their future viability at risk. In bocaccio DPSs are not known. Palsson have ‘‘catastrophic’’ effects for long-lived addition, it is likely that past et al. (2009) suggest that stress species such as rockfish (Longhurst, overfishing has reduced the proportion associated with poor water quality may 2002). For yelloweye rockfish, canary of large females in yelloweye rockfish, exacerbate the incidence and severity of rockfish and bocaccio in the Georgia canary rockfish and bocaccio, harming naturally occurring diseases to the point Basin, it is likely that the age truncation the productivity of the populations and of directly or indirectly decreasing effects of past overfishing are long- affecting their ability to recover from survivorship of rockfish. lasting and constitute an ongoing threat, current low levels of abundance. particularly because older and larger Ongoing fisheries also create risks for The Inadequacy of Existing Regulatory females are likely to be more fecund and these DPSs, and are discussed below Mechanisms their offspring may have higher survival under the ‘‘Inadequacy of Existing Sport and Commercial Fishing rates. In addition, fishing can have Regulations’’ section. dramatic impacts on the size or age Regulations structure of the population, with effects Disease or Predation Significant efforts to protect rockfish that can influence ongoing productivity. The status report identified predation in the Puget Sound region from Because most rockfish females release as a threat to each species (Drake et al., overharvest began in 1982 when the larvae on only one day each year, the 2010). Rockfish are important prey Washington Department of Fisheries

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(now the WDFW) published the Puget health of the resource. During the next 2009). No bocaccio were reported in the Sound Groundfish Management Plan. two years, the WDFW developed a 2004 to 2007 time period (WDFW This plan identified rockfish as an groundfish management plan (Palsson et unpublished data), though a number of important commercial and recreational al., 1998) that identified specific goals rockfish were reported as unknown resource in the Sound and established and objectives to achieve the species. The status report assessed acceptable biological catch levels to commission’s precautionary approach recreational and commercial fisheries as control harvest (Palsson et al., 2009). (Palsson et al., 2009). The plan also a ‘‘high’’ or ‘‘very high’’ threat to each The acceptable biological catch levels called for the development of species- species (Drake et al., 2010). were based on recent average catches specific (including many rockfishes) Fishers targeting other species of and initially set at 304,360 kg (671,000 conservation and use plans. The WDFW rockfish or other types of popular fishes total pounds) of rockfish for the Puget is currently developing a Rockfish such as salmon and lingcod are likely to Sound region. This plan emphasized Conservation Plan, which is designed as hook the occasional yelloweye rockfish, recreational fisheries for rockfish while a comprehensive management plan for canary rockfish or bocaccio. This is limiting the degree of commercial all rockfish species within the Puget because all of the aforementioned fishes’ fishing. During the 1980s, the WDFW Sound and Strait of Juan de Fuca distributions overlap within the Georgia continued to collect information on regions. The plan provides policy-level Basin. They also consume similar or rockfish harvest with an emphasis on directions for future recovery efforts, identical prey items, making them increasing the amount of information monitoring, fisheries management, vulnerable to fishing lures or baits available on rockfish bycatch in non- habitat protection and enhancement and imitating these prey items. Although fishers may return rockfish to the water, targeted fisheries (e.g., salmon fishery). research. The plan also notably calls for the mortality rate of these fish is In response to a reduction in catches, the designation of rockfish reserves extremely high (Parker et al., 2006). rockfish recreational harvest limits were within the region. In response to dwindling rockfish There are some methods available that reduced from 15 fish to 10 fish in North populations, in 2000, the WDFW could lower the mortality rates of Puget Sound and to 5 fish in South established a one rockfish daily bag discarded rockfish (summarized by Puget Sound in 1983. The 1982 limit for the entire Puget Sound region, Palsson et al., 2009), though application Groundfish Management Plan was and in 2002 and 2003, prohibited the of these methods in the Puget Sound updated in 1986 and extended the retention of canary and yelloweye region fishery would be difficult preference for recreational fisheries over rockfishes. Though these series of bag (Palsson et al., 2009). The WDFW commercial fishing for rockfish to the limit restrictions improved protective considers bycatch of rockfish to be a San Juan Islands and the Strait of Juan efforts for rockfish, they nonetheless ‘‘high impact stressor’’ on rockfish de Fuca (Palsson et al., 2009). During were enacted after a large drop in populations (Palsson et al., 2009). this same time, the WDFW received a rockfish abundance that occurred prior Recently the State of Washington Federal grant to monitor recreational to the 1980s. In retrospect, they did not adopted regulations that ban the catches of rockfish and collect biological prevent the severe reduction of rockfish retention of all rockfish species within data on rockfish populations in the abundance within the Georgia Basin. Marine Catch Areas 6 to 13, which Sound. Information was collected, and In 2004, the WDFW promulgated roughly overlap with the rockfish DPSs. new management scenarios for rockfish additional protective regulations In addition, a prohibition of fishing for were developed but never implemented. limiting harvest of rockfish to the open bottomfish (except halibut) in waters In 1991, the WDFW adopted a salmon and lingcod seasons, prohibiting deeper than 120 feet (36.6 m) was significant change in strategy for spearfishing for rockfish east of Sekiu, adopted. Because most yelloweye rockfish management in Puget Sound. and only allowing the retention of the rockfish, canary rockfish and bocaccio The strategy, called ‘‘passive first rockfish captured. Monitoring of reside in waters between 40 to 250 management,’’ ended all monitoring of recreational fisheries has also increased, meters (Love et al., 2002), the 120-foot commercial fisheries for groundfish and with estimates of total rockfish catches rule will likely reduce the numbers of collection of biological data and by boat-based anglers now available. incidentally caught rockfish by fishers increased their reliance on anecdotal Bycatch and subsequent discarding of targeting bottomfish. Bycatch will still information (Palsson et al., 2009). The rockfish is currently thought to be quite occur in the bottomfish fishery in waters switch in strategy was at least partially high in the recreational fishery (Palsson shallower than 120 feet (36.6 m), and in due to the closing by the State et al., 2009). The WDFW reported the halibut fishery. Bycatch will also legislature of commercial bottom fishing bycatch rates of greater than 20 percent continue to occur in recreational salmon in Puget Sound south of Foulweather (20 percent of rockfish caught are fisheries because anglers targeting Bluff. The termination of monitoring released) prior to the 1980s, but in salmon are not subject to the 120-foot created a data gap in rockfish biological recent years bycatch rates are in excess (36.6 m) depth restriction and also data for the 1990s. In 1994, the of 50 percent. The recent increase is incidentally catch yelloweye rockfish, recreational daily bag limit for rockfish likely the outcome of the reduction in canary rockfish, and bocaccio. Though was reduced to five fish in North Puget the allowable daily catch of rockfish the state law requires all rockfish to be Sound and three fish in South Puget (Palsson et al. 2009). Palsson et al. released, most are killed by the effects Sound. In addition, the WDFW adopted (2009) reports that for every rockfish of barotrauma. Thus, bycatch remains regulations to close remaining trawl landed in the Puget Sound region, 1.5 an ongoing threat to each species. fisheries in Admiralty Inlet. In 1996, the are released. From 2004 to 2007 canary Commercial catch data do not include Washington State Fish and Wildlife and yelloweye rockfish were reported as information on bycatch, and there is no Commission established a new policy bycatch in recreational salmon and effective program to make direct for Puget Sound groundfish bottomfish fisheries in each of the major observations of bycatch aboard fishing management. The policy stated that the regions of the Puget Sound (WDFW vessels operating in Puget Sound region. commission would manage Puget Sound unpublished data). The vast majority of Given the very high mortality rate of groundfish in a conservative manner in these fish were released, though the discarded rockfish (Parker et al., 2006), order to minimize the risk of mortality levels of these fish were likely and the low resiliency of rockfish overharvest and to ensure the long-term high due to barotrauma (Palsson et al., populations to exploitation, recent

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levels of bycatch are an important threat an ongoing program run by the specific sets of climate patterns. Given to yelloweye rockfish, canary rockfish Northwest Straits Initiative to remove the general importance of climate to the and bocaccio (Drake et al., 2010). derelict gear throughout the Puget Georgia Basin and to rockfish, it is likely Though there are some marine Sound region, mostly concentrated in that climate influences the dynamics of reserves within the Puget Sound region, waters less than 100 feet (33 meters) each species. Any future changes in as previously discussed, they cover a deep. Nets and other gear in waters climate patterns could affect the ability relatively small area, and not all deeper than 100 feet have been of yelloweye rockfish, canary rockfish encompass rockfish habitat. While incidentally encountered in habitat and bocaccio within the Puget Sound/ existing reserves support localized surveys, though the overall extent and Georgia Basin DPSs to recover. increased biomass of rockfish (Palsson, impact of nets in deeper waters is 2004), they were not established to serve Efforts Being Made To Protect the unknown. In addition, during removal Rockfish DPSs as a regional network and do not alter efforts nets have been documented to our conclusions regarding extinction drape over slopes deeper than 100 feet, Section 4(b)(1)(A) of the ESA requires risk for each species. but current guidelines require the net to the Secretary to make listing determinations solely on the basis of the Tribal Fishing be cut off at 100 feet. Current guidelines also do not allow ‘‘mechanical best scientific and commercial data Several species of rockfish have been advantage,’’ such as grappling hooks available after taking into account historically harvested by Native attached to vessel hydraulic systems, to efforts being made to protect a species. Americans. Since 1991, rockfishes remove nets that are too entangled in Therefore, in making ESA listing harvested by tribal fishers have bottom substrate or rock for hand determinations, we first identify factors represented less than two percent of the removal. Because habitats deeper than that have led to a species’ decline and total Puget Sound region rockfish 100 feet are most readily used by adult assess the level of extinction risk. We harvest (Palsson et al., 2009). yelloweye rockfish, canary rockfish and then assess efforts being made to protect Information from the Northwest Indian bocaccio, there is an unknown but the species to determine if those Fisheries Commission indicates that potentially large impact from deepwater measures ameliorate the risks faced by total reported rockfish catches by derelict gear on each population within the DPS(s). To do this, we follow the member tribes from 2000 to 2005 ranged the DPS. Approximately 20 percent of guidance in the joint NMFS—FWS ‘‘ between 10.9 and 368 kg (24 and 811 lost nets reported by fishermen are not Policy for Evaluation of Conservation Efforts When Making Listing Decisions’’ pounds). Tribal regulations in the Puget recovered because the net drifts away (68 FR 15100, 28 March 2003). This Sound region vary by tribe from a ban and becomes submerged before section summarizes the protective on commercial harvest of rockfish to a responders arrive (J. June, Natural efforts described in the proposed rule 15 fish bag limit for personal use. The Resource Consultants, personal currently low rockfish abundance in (FR 18516; April 23, 2009). communication, November 2009). There Yelloweye rockfish, canary rockfish this area has significantly decreased the are no devices installed on nets to track interest in harvest of rockfish by tribal and bocaccio indirectly benefit from their location after they are lost, further many Federal, state and tribal regulatory fishers (W. Beattie, Northwest Indian complicating the recovery effort. Fisheries Commission, personal and voluntary aquatic habitat communication). As previously discussed, climate improvement programs aimed at other change could alter habitats within the species. Rockfish require water quality Other Natural or Manmade Factors Georgia Basin. Patterns of circulation that facilitates their growth, movement Affecting Its Continued Existence and productivity in the Puget Sound and reproductive potential. Federal Rockfishes are known to compete region are influenced by climate programs carried out under laws such as interspecifically for resources (Larson, conditions. Changes in the timing of the Federal Clean Water Act (CWA) of 1980). Harvey et al. (2006) documented freshwater input affect stratification and 1972 help to ensure that water quality the decline of bocaccio in the California mixing in the Sound, while changes in is maintained or improved and that Current, and used bioenergetic models wind pattern influence the amount of discharge of fill material into waterways to suggest that recovery of coastal biologically important upwelled water is regulated. Several sections of this law, populations of bocaccio may be that enters the Strait of Juan de Fuca such as section 404 (discharge of fill inhibited by other more common from the coast (Snover et al., 2005). into wetlands), section 402 (discharge of rockfishes. In the Puget Sound region, Direct studies on the effect of climate pollutants into water bodies), and more abundant species such as copper variability on rockfish are rare, but all section 404(d) (designation of water and quillback rockfish likely eat some the studies performed to date suggest quality limited areas), regulate activities juvenile yelloweye rockfish, canary that climate plays an extremely that might degrade rockfish habitat. rockfish and bocaccio and may compete important role in population dynamics Although programs carried out under for food sources. These interactions (Drake et al., 2010). The negative effect the CWA are well funded and could limit the ability of the petitioned of the warm water conditions associated enforcement of this law occurs, the species to recover. with El Nin˜ o appear to be common Puget Sound region nonetheless Chinook and coho salmon consume across rockfishes (Moser et al., 2000). continues to receive daily input of water larval and juvenile rockfish, and they Field and Ralston (2005) noted that quality pollutants from a variety of also compete for prey with small size recruitment of all species of rockfish sources (PSP, 2010). The Washington classes of rockfish (Buckley, 1997). appeared to be correlated at large scales State Department of Ecology (Ecology) Although it is uncertain how and hypothesized that such synchrony estimates that Puget Sound receives detrimental the effect may be, releases was the result of large-scale climate between 14 and 94 million pounds of of hatchery salmon have the potential to forcing. Exactly how climate influences toxic pollutants per year, which include influence the population dynamics of the yelloweye rockfish, canary rockfish oil and grease, PCBs, phthalates, PBDEs, the petitioned species. and bocaccio in the Georgia Basin is and heavy metals that include zinc, Derelict fishing gear can continue unknown; however, Tolimieri and Levin copper and lead (Ecology 2010). This ‘‘ghost’’ fishing and is known to kill (2005) report that bocaccio recruitment level of pollutant loading has been rockfish (Palsson et al., 2009). There is off of California is correlated with documented to bioaccumulate in many

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fishes and marine mammals in the Puget yelloweye rockfish, canary rockfish and differences between rockfish inhabiting Sound (Collier et al., 2007). Forecasted bocaccio, their cumulative impacts are coastal waters and inland marine waters population growth are likely to not sufficient to ensure survival and of Vancouver Island; (2) yelloweye exacerbate these toxic inputs (Collier et recovery of each species within the rockfish generally remain sedentary as al., 2007). This indicates that although range of the Puget Sound/Georgia Basin adults, limiting gene flow between current programs provide some DPSs (74 FR 18516; April 23, 2009). populations and regions; and (3) given protection, they are not sufficient to the unique habitat conditions and Final Listing Determination fully protect rockfish habitat. retentive circulation patterns of Puget Section 10 of the Rivers and Harbors Section 4(b)(1) of the ESA requires Sound, a significant fraction of larvae Act prohibits placement of any structure that the listing determination be based released by yelloweye rockfish in any navigable waterway of the United solely on the best scientific and (especially the more inland portions of States without approval from the Army commercial data available, after the Sound), could be retained within the Corps of Engineers. Most or all rockfish conducting a review of the status of the Sound. habitat in the United States is species and after taking into account Canary rockfish occurring in the considered to be navigable, and it is not those efforts, if any, being made by any Georgia Basin are discrete from other expected that any major obstructions to state or foreign nation to protect and members of their species based on the migration would be constructed within conserve the species. We have reviewed following: (1) Canary rockfish exhibit their range. the petition, the draft and final reports similar larval and juvenile life histories The Coastal Zone Management Act of the BRT (Drake et al., 2008; 2010), co- as all other rockfish species that and Coastal Zone Act Reauthorization manager comments, peer review demonstrate significant genetic Amendments of 1990 encourage states comments, public comments and other differences between populations and tribes to preserve, protect, develop, available published and unpublished inhabiting coastal waters and inland and where possible, restore or enhance information, and we have consulted marine waters of the Pacific Northwest; valuable natural coastal resources such with species experts and other and (2) given the unique habitat as wetlands, floodplains, estuaries, individuals familiar with yelloweye conditions and retentive circulation beaches, dunes, barrier islands, and rockfish, canary rockfish and bocaccio. patterns of Puget Sound, a significant coral reefs, as well as the fish and For the reasons stated above, and as fraction of larvae released by canary wildlife using those habitats. Despite summarized below, we conclude: (1) rockfish (especially the more inland these provisions, the status of rockfishes Yelloweye rockfish, canary rockfish and portions of the Sound), could be and other species continues to decline. bocaccio inhabiting the Georgia Basin retained within the Sound. In the Puget Sound region and based on marked separation meet the These DPSs meet the significance elsewhere along the west coast, discreteness and significance criteria for criterion because they occupy the governments and non-governmental DPSs; (2) Georgia Basin bocaccio are in unique ecological setting of the Georgia organizations are working to restore danger of extinction throughout their Basin. The current patterns of the inland depressed salmon stocks. Rockfish in range; and (3) Georgia Basin canary marine waters, interactions between the Puget Sound region benefit from rockfish and yelloweye rockfish are fresh and saltwater, the protection these efforts indirectly, primarily likely to become endangered throughout afforded by the land features of the through improved water quality in their ranges in the foreseeable future. Olympic Peninsula and Vancouver streams that flow into the Puget Sound Bocaccio occurring in the Georgia Island, and sill-dominated bathymetry region. As part of these efforts, the State Basin are discrete from other members make the Georgia Basin different from of Washington established the Puget of their species based on marked other coastal areas occupied by these Sound Partnership in 2007, a new separation evidenced by the following: species and likely lead to unique agency consisting of an executive (1) Bocaccio exhibit similar larval and adaptations in these species. director, an ecosystem coordination juvenile life history as all other rockfish Some ongoing efforts to protect board, and a Puget Sound science panel. species that demonstrate significant Pacific salmonids, as described in the The Partnership was created to oversee genetic differences between populations previous section, are likely to also the restoration of the environmental inhabiting coastal waters and inland benefit these rockfish species. However, health of Puget Sound by 2020, and in marine waters of the Pacific Northwest; these efforts do not comprehensively 2008 created a long-term plan called the (2) the differences in age structure address the threats from degradation of 2020 Action Agenda (PSP, 2010). between coastal and inland stocks benthic and nearshore habitats, fishery Throughout the Puget Sound/Georgia indicates that the two are bycatch and degraded water quality. Basin DPS, an array of Federal, State, demographically independent; and (3) Based on the best scientific and tribal, and local entities carry out given the unique habitat conditions and commercial information available, aquatic habitat restoration programs. retentive circulation patterns of Puget including the preliminary and final BRT These programs are generally intended Sound, a significant fraction of larvae reports, we have determined that the to benefit other fish species such as released by bocaccio (especially the Puget Sound/Georgia Basin DPS of salmon, but rockfish may also benefit more inland portions of the Sound), bocaccio is currently in danger of from some projects, particularly those could be retained within the Sound. extinction throughout all of its range. that occur within the nearshore Yelloweye rockfish occurring in the Factors supporting this conclusion environment (which could benefit Georgia Basin are discrete from other include: (1) Reduced abundance, to the juvenile rockfishes). Although these members of their species based on the point where the species is undetected in programs are too numerous to list following: (1) All other rockfish species recent fishery surveys, thus raising individually, they include the Pacific for which genetic information are concerns about successful reproduction Coast Salmon Recovery Fund and the available have significant genetic and persistence; (2) infrequent Northwest Straits Commission, which differences between populations recruitment events dependent on rare organizes removal of derelict fishing inhabiting coastal waters and inland weather and ocean conditions; (3) high gear. marine waters of the Pacific Northwest. susceptibility to overfishing; (4) high Though these existing efforts and Similarly, information from yelloweye mortality rate associated with any programs do ameliorate some risks to rockfish studies show genetic incidental capture in fisheries, despite

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improvements (summarized in the extend the section 9(a) ‘‘take’’ research that targets yelloweye rockfish, previous sections) in current prohibitions to the species, and canary rockfish or bocaccio. recreational fishing regulations; and (5) authorizes us to issue regulations Section 10(a)(1)(B) incidental take exposure to degraded water quality and necessary and advisable for the permits may be issued to non-Federal other habitat perturbations within the conservation of the species. Thus, we entities performing activities that may Georgia Basin. Therefore, we are listing have flexibility under section 4(d) to incidentally take listed species, as long the Puget Sound/Georgia Basin DPS of tailor protective regulations, taking into as the taking is incidental to, and not bocaccio as endangered. account the effectiveness of available the purpose of, the carrying out of an We have determined that the Puget conservation measures. The 4(d) otherwise lawful activity. Sound/Georgia Basin DPSs of canary protective regulations may prohibit, Effective Date of the Final Listing and yelloweye rockfish are not presently with respect to threatened species, some Determination in danger of extinction, but are likely to or all of the acts which section 9(a) of become so in the foreseeable future the ESA prohibits with respect to We recognize that numerous parties throughout all of their range. Factors endangered species. These 9(a) may be affected by the listing of the supporting a conclusion that these DPSs prohibitions apply to all individuals, Puget Sound/Georgia Basin DPSs of are not presently in danger of extinction organizations, and agencies subject to yelloweye rockfish, canary rockfish, and include: (1) These DPSs’ abundances U.S. jurisdiction. We will evaluate bocaccio. To permit an orderly have been greatly reduced from historic protective regulations pursuant to implementation of the consultation levels, but fish are still present in section 4(d) for the DPSs of yelloweye requirements applicable to threatened significant enough numbers to be caught and canary rockfish, and issue proposed and endangered species, the final listing in recreational fisheries and research regulations in forthcoming rules that will take effect on July 27, 2010. trawls; (2) large female members of will be published in the Federal Critical Habitat these species are highly fecund and, if Register. allowed to survive and reproduce Section 7(a)(2) of the ESA requires Section 3(5)(A) of the ESA defines successfully, can produce large numbers Federal agencies to confer with us on critical habitat as ‘‘(i) the specific areas of offspring; and (3) the WDFW fishing actions likely to jeopardize the within the geographical area occupied regulations reduce potential for bycatch continued existence of species proposed by the species, at the time it is listed associated with bottomfishing. Factors for listing or result in the destruction or * * * on which are found those supporting a conclusion that these DPSs adverse modification of proposed physical or biological features (I) are likely to become in danger of critical habitat. Once a species is listed essential to the conservation of the extinction in the foreseeable future as threatened or endangered, section species and (II) which may require include: (1) These DPSs’ abundances 7(a)(2) requires Federal agencies to special management considerations or have greatly decreased from historic ensure that any actions they fund, protection; and (ii) specific areas levels and abundance trends are authorize, or carry out do not jeopardize outside the geographical area occupied negative; (2) individuals of these species the continued existence of the species. by the species at the time it is listed appear to be absent in areas where they Once critical habitat is designated, * * * upon a determination by the were formerly abundant; (3) although section 7(a)(2) also requires Federal Secretary that such areas are essential these species were formerly abundant in agencies to ensure that they do not fund, for the conservation of the species.’’ the catch, they are less frequent now; (4) authorize, or carry out any actions that Section 4(a)(3) of the ESA requires although current recreational fishing are likely to destroy or adversely modify that, to the extent practicable and regulations have been changed to offer that habitat. Our section 7 regulations determinable, critical habitat be more protection to these DPSs, they are require the responsible Federal agency designated concurrently with the listing still vulnerable to being hooked in to initiate formal consultation if a of a species. Designation of critical fisheries in the Georgia Basin and often Federal action may affect a listed habitat must be based on the best die after release, further reducing species or its critical habitat (50 CFR scientific data available and must take population productivity and abundance; 402.14(a)). Examples of Federal actions into consideration the economic, and (5) current protective measures for that may affect the yelloweye rockfish, national security, and other relevant habitat in the Puget Sound region are canary rockfish and bocaccio DPSs impacts of specifying any particular area not yet sufficient to ameliorate the include shoreline development, cable as critical habitat. threats to these species as evidenced by laying, tidal energy projects, dredging, In determining what areas qualify as continuing water quality and nearshore dredge disposal, point and non-point critical habitat, 50 CFR 424.12(b) and benthic habitat degradation. We are source discharge of persistent requires that we consider those physical therefore listing the Puget Sound/ contaminants, adoption of water quality or biological features that are essential Georgia Basin DPSs of yelloweye and standards, regulation of newly emerging to the conservation of a given species canary rockfish as threatened. chemical contaminants, research and including ‘‘space for individual and monitoring, and fishery harvest and population growth and for normal Prohibitions and Protective Measures management practices. behavior; food, water, air, light, Section 9 of the ESA prohibits the Sections 10(a)(1)(A) and (B) of the minerals, or other nutritional or take of endangered species. The term ESA provide us with authority to grant physiological requirements; cover or ‘‘take’’ means to harass, harm, pursue, exceptions to the ESA’s Section 9 ‘‘take’’ shelter; sites for breeding, reproduction, hunt, shoot, wound, kill, trap, capture, prohibitions. Section 10(a)(1)(A) and rearing of offspring; and habitats or collect, or to attempt to engage in any scientific research and enhancement that are protected from disturbance or such conduct (16 U.S.C. 1532(19)). Take permits may be issued to entities are representative of the historical of Puget Sound/Georgia Basin DPS of (Federal and non-Federal) for scientific geographical and ecological distribution bocaccio would be prohibited when this purposes or to enhance the propagation of a species.’’ The regulations further listing takes effect (see DATES section). or survival of a listed species. The type direct NMFS to ‘‘focus on the principal In the case of threatened species, ESA of activities potentially requiring a biological or physical constituent section 4(d) leaves it to the Secretary’s section 10(a)(1)(A) research/ elements * * * that are essential to the discretion whether, and to what extent, enhancement permit include scientific conservation of the species,’’ and specify

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that the ‘‘Known primary constituent economic impacts cannot be considered state in which the species is believed to elements shall be listed with the critical when assessing the status of a species. occur, and these agencies were invited habitat description.’’ The regulations Therefore, the economic analysis to comment. We have conferred with identify physical and biological features requirements of the Regulatory the State of Washington and their as including, but not limited to: ‘‘Roost Flexibility Act are not applicable to the comments and recommendations have sites, nesting grounds, spawning sites, listing process. In addition, this final been considered and incorporated into feeding sites, seasonal wetland or dry rule is exempt from review under E.O. this final determination where land, water quality or quantity, host 12866. This final rule does not contain applicable. species or plant pollinator, geological a collection-of-information requirement References formation, vegetation type, tide, and for the purposes of the Paperwork specific soil types.’’ Reduction Act. A list of references cited in this In our proposal to list yelloweye E.O. 13084—Consultation and document is available upon request (see rockfish, canary rockfish and bocaccio, ADDRESSES) or via the Internet at we requested information on the Coordination With Indian Tribal Governments http://www.nwr.noaa.gov. Additional identification of specific areas that meet information, including agency reports the definition of critical habitat defined E.O. 13084 requires that if NMFS and written comments, is also available above. We also solicited biological and issues a regulation that significantly or at this Internet address. economic information relevant to uniquely affects the communities of making a critical habitat designation for Indian tribal governments and imposes List of Subjects each species. We have reviewed the substantial direct compliance costs on 50 CFR Part 223 comments provided and the best those communities, NMFS must consult available scientific information. We with those governments or the Federal Endangered and threatened species, conclude that critical habitat is not government must provide the funds Exports, Imports, Transportation. determinable at this time for the necessary to pay the direct compliance 50 CFR Part 224 following reasons: (1) Information is not costs incurred by the tribal currently available to assess impacts of governments. This final rule does not Endangered and threatened species, designation, (2) information is not impose substantial direct compliance Exports, Reporting and recordkeeping currently available regarding the costs on Indian tribal governments or requirements. physical and biological features communities. Accordingly, the Dated: April 23, 2010. essential to conservation. requirements of section 3(b) of E.O. Samuel D. Rauch III, Classification 13084 do not apply to this final rule. Deputy Assistant Administrator for Nonetheless, we will continue to inform Regulatory Programs, National Marine National Environmental Policy Act potentially affected tribal governments, Fisheries Service. (NEPA) solicit their input, and coordinate on ■ For the reasons set out in the ESA listing decisions are exempt from future management actions. preamble, 50 CFR part 223 is amended the requirements to prepare an E.O. 13132—Federalism as follows: environmental assessment or environmental impact statement under E.O. 13132 requires agencies to take into account any federalism impacts of PART 223—THREATENED the NEPA (see NOAA Administrative MARINEAND ANADROMOUS SPECIES Order 216–6.03(e)(1) and Pacific Legal regulations under development. It Foundation v. Andrus, 657 F. 2d 829 includes specific directives for ■ 1. The authority citation for part 223 (6th Cir. 1981)). Thus, we have consultation in situations where a continues to read as follows: regulation will preempt state law or determined that this final listing Authority: 16 U.S.C. 1531 1543; subpart B, determination for the Puget Sound/ impose substantial direct compliance costs on state and local governments § 223.201–202 also issued under 16 U.S.C. Georgia Basin DPSs of yelloweye 1361 et seq.; 16 U.S.C. 5503(d) for rockfish, canary rockfish, and bocaccio (unless required by statute). Neither of § 223.206(d)(9) et seq. is exempt from the requirements of those circumstances is applicable to this NEPA. final rule. In keeping with the intent of ■ 2. In § 223.102, in the table, amend the Administration and Congress to Executive Order (E.O.) 12866, paragraph (c) by adding paragraphs provide continuing and meaningful (c)(26)), and (c)(27) to read as follows: Regulatory Flexibility Act and dialogue on issues of mutual state and Paperwork Reduction Act Federal interest, the proposed rule (74 § 223.102 Enumeration of threatened As noted in the Conference Report on FR 18516, April 23, 2009) was provided marine and anadromous species. the 1982 amendments to the ESA, to the relevant state agencies in each * * * * *

Species 1 Where listed Citation(s) for listing deter- Citation(s) for critical habi- Common name Scientific name mination(s) tat designation(s)

******* (c) * * * ...... (26) Rockfish, Yelloweye— Sebastes ruberrimus ...... U.S.A.-Washington, and [Insert FEDERAL REG- [Insert FEDERAL REG- Puget Sound/Georgia British Columbia, includ- ISTER page and date ISTER page and date Basin DPS. ing Puget Sound and citation]. citation]. Georgia Basin. (27) Rockfish, Canary— Sebastes pinniger ...... U.S.A.-Washington, and [Insert FEDERAL REG- [Insert FEDERAL REG- Puget Sound/Georgia British Columbia, includ- ISTER page and date ISTER page and date Basin DPS. ing Puget Sound and citation]. citation]. Georgia Basin.

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Species 1 Where listed Citation(s) for listing deter- Citation(s) for critical habi- Common name Scientific name mination(s) tat designation(s)

*******

PART 224—ENDANGERED MARINE Authority: 16 U.S.C. 1531–1543 and 16 § 224.101 Enumeration of endangered AND ANADROMOUS SPECIES U.S.C. 1361 et seq. marine and anadromous species. ■ 4. Amend the table in § 224.101(a), by * * * * * ■ 3. The authority citation for part 224 adding an entry for ‘‘Puget Sound/ (a) * * * continues to read as follows: Georgia Basin- Bocaccio’’ at the end to read as follows:

Species 1 Where listed Citation(s) for listing deter- Citation(s) for critical habi- Common name Scientific name mination(s) tat designation(s)

******* Puget Sound/Georgia Sebastes paucispinis ...... U.S.A., Washington, and [Insert FEDERAL REG- [Insert FEDERAL REG- Basin DPS—Bocaccio. British Columbia, includ- ISTER page and date ISTER page and date ing Puget Sound and citation]. citation]. Georgia Basin.

* * * * * [FR Doc. 2010–9847 Filed 4–27–10; 8:45 am] BILLING CODE 3510–22–P

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