2006 Federal Register, 71 FR 40657; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: July 18, 2006 (Volume 71, Number 137)]
[Rules and Regulations]
[Page 40657-40674]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy06-12]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH57

Endangered and Threatened Wildlife and Plants; Reclassification
of the Gila Trout (Oncorhynchus gilae) From Endangered to Threatened;
Special Rule for Gila Trout in New Mexico and Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying the federally endangered Gila trout (Oncorhynchus gilae)
to threatened status under the authority of the Endangered Species Act
of 1973, as amended (Act). We are also finalizing a special rule under
section 4(d) of the Act that would apply to Gila trout found in New
Mexico and Arizona. This special rule will enable the New Mexico
Department of Game and Fish (NMDGF) and the Arizona Game and Fish
Department (AGFD) to promulgate special regulations in collaboration
with the Service, allowing recreational fishing of Gila trout.

DATES: This final rule is effective on August 17, 2006.

ADDRESSES: Comments and materials received, as well as supporting
documentation used in preparation of this final rule, are available for
public inspection, by appointment, during normal business hours, at the
New Mexico Ecological Services Field Office, 2105 Osuna Road NE,
Albuquerque, New Mexico 87113.
You may obtain copies of this final rule from the New Mexico
Ecological Services Field Office at the address provided above, by
calling (505) 346-2525, or from our Web site at http://www.fws.gov/ifw2es/NewMexico/
.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, New Mexico
Ecological Services Field Office (see ADDRESSES) (telephone 505/346-
2525, facsimile 505/346-2542).

SUPPLEMENTARY INFORMATION:

Background

The purposes of the Act (16 U.S.C. 1531 et seq.) are to provide a
means whereby the ecosystems upon which endangered and threatened
species depend may be conserved and to provide a program for the
conservation of those species. A species can be listed as threatened or
endangered for any of the following factors: (1) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (2) overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; and (5) other natural or manmade
factors affecting its continued existence. When we determine that
protection of a species under the Act is no longer warranted, we take
steps to remove (delist) the species from the Federal list. If a
species is listed as endangered, we may reclassify it to threatened
status as an intermediate step before eventual delisting; however,
reclassification to threatened status is not required in order to
delist.
Section 3 of the Act defines terms that are relevant to this final
rule. An endangered species is any species that is in danger of
extinction throughout all or a significant portion of its range. A
threatened species is any species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. A species includes any subspecies of
fish or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife that interbreeds when mature.

Previous Federal Action

The Gila trout was originally recognized as endangered under the
Federal Endangered Species Preservation Act of 1966 (March 11, 1967; 32
FR 4001), and Federal designation of the species as endangered
continued under the Act (1973). In 1987, the Service proposed to
reclassify the Gila trout as threatened (October 6, 1987; 52 FR 37424).
However, we withdrew our proposal for reclassification on September 12,
1991 (56 FR 46400) (see ``Recovery Plans and Accomplishments'' section
below for further information). On November 11, 1996, Mr. Gerald Burton
submitted a petition to us to downlist the species from endangered to
threatened. We acknowledged receipt of the petition by letter on
January 13, 1997. On May 11, 2005, we published a proposed rule to
downlist the species, which constituted our 90-day and 12-month
findings on the November 11, 1996, petition (70 FR 24750).
In the May 11, 2005, proposed rule (70 FR 24750), we requested all
interested parties to submit comments or information concerning the
proposed reclassification of the Gila trout from endangered to
threatened. We published notices, announcing the proposal and inviting
public comment, in the Albuquerque Journal and the Arizona Republic. In
addition, we contacted interested parties (including elected officials,
Federal and State agencies, local governments, scientific
organizations, and interest groups) through a press release and related
fact sheets, faxes, mailed announcements, telephone calls, and e-mails.
The public comment period on the proposal closed on July 15, 2005.

Systematics

The Gila trout is a member of the salmon and trout family
(Salmonidae). Gila trout was not formally described until 1950, using
fish collected in Main Diamond Creek in 1939 (Miller 1950). It is most
closely related to Apache trout (Oncorhynchus apache), which is endemic
to the upper Salt and Little Colorado River drainages in east-central
Arizona. Gila trout and Apache trout are more closely related to
rainbow trout (O. mykiss) than to cutthroat trout (O. clarki),
suggesting that Gila and Apache

[[Page 40658]]

trouts were derived from an ancestral form that also gave rise to
rainbow trout (Behnke 1992, 2002; Dowling and Childs 1992; Utter and
Allendorf 1994; Nielsen et al. 1998; Riddle et al. 1998).

Biological Information

Biological information (i.e., physical description, distribution
and threats, life history, and habitat characteristics) on the Gila
trout can be found in our proposal for reclassification of the Gila
trout with a special rule, published in the Federal Register on May 11,
2005 (70 FR 24750), and in the Gila Trout Recovery Plan (USFWS 2003).
That information is incorporated by reference into this final rule.

Recovery Plans and Accomplishments

The original Recovery Plan for Gila trout was completed in 1979.
The main objective of this Recovery Plan was ``To improve the status of
Gila trout to the point that its survival is secured and viable
populations of all morphotypes are maintained in the wild'' (Service
1979). The Gila Trout Recovery Plan was revised in 1984, with the same
objective as the original plan. Downlisting criteria in the plan stated
that ``The species could be considered for downlisting from its present
endangered status to a threatened status when survival of the four
original ancestral populations is secured and when all morphotypes are
successfully replicated or their status otherwise appreciably
improved'' (Service 1984). Replication involves either moving
individuals from a successfully reproducing original pure or replicated
population or taking hatchery-propagated fish and releasing them into a
renovated stream. On October 6, 1987, we proposed that Gila trout be
reclassified from endangered to threatened with a special rule to allow
sport fishing (52 FR 37424). At that time, Gila trout populations were
deemed sufficiently secure to meet criteria for reclassification to
threatened as identified in the Recovery Plan (October 6, 1987; 52 FR
37424). However, the proposed rule to downlist Gila trout was withdrawn
on September 12, 1991 (56 FR 46400), for the following reasons:
(1) Severe flooding in 1988 reduced the Gila trout populations in
McKnight Creek by about 80 percent;
(2) Wild fires in 1989 eliminated Gila trout from Main Diamond
Creek and all of the South Diamond drainage except Burnt Canyon, a
small headwater stream;
(3) Propagation activities at hatcheries had not proceeded as
planned, and fish were not available to replenish wild stocks; and
(4) Brown trout, a predator, was present in Iron Creek, which at
the time was thought to harbor one of the original pure populations of
Gila trout.
The Gila Trout Recovery Plan was revised in 1993, to incorporate
new information about ecology of the species and recovery methods.
Criteria for downlisting remained essentially the same as in the 1984
revision but were more specific. The 1993 plan specified that
downlisting would be considered ``when all known indigenous lineages
are replicated in the wild'' and when Gila trout were ``established in
a sufficient number of drainages such that no natural or human-caused
event may eliminate a lineage.'' The Act only protects species (i.e.,
Gila trout is the listed entity). The lineages identified in the
Recovery Plan do not have separate listed status under the Act.
However, by conserving these lineages and their associated genetic
diversity, we provide for the conservation of the listed species, Gila
trout.
The Recovery Plan was revised again in 2003 (Service 2003). The
criteria for downlisting in the 2003 Recovery Plan include the
following: (1) The four known non-hybridized indigenous lineages are
protected and replicated in the wild in at least 85 kilometers (km) (53
miles (mi)) of streams; (2) each known non-hybridized lineage is
replicated in a stream geographically separate from its remnant
population such that no natural or human-caused event may eliminate a
lineage; and (3) an Emergency Evacuation Procedures Plan for Gila Trout
(Emergency Evacuation Plan) to address wildfire impacts and discovery
of nonnative salmonid invasion in Gila trout streams has been developed
and implemented.
Today all four original pure populations (Main Diamond, South
Diamond, Spruce, and Whiskey Creeks) are replicated at least once. Main
Diamond has been replicated four times, South Diamond and Whiskey once,
and Spruce Creek three times. The Service believes three of the four
replicated populations are secure (Main Diamond, South Diamond, and
Spruce Creek), and the viability of the Gila trout is sufficiently
protected through these populations. The species is no longer in danger
of extinction. Whiskey Creek, the fourth pure population, had not been
replicated at the time of the proposed rule. The Service completed the
replication of the Whiskey Creek population into Langstroth Canyon on
June 21, 2006, and will continue to monitor that population. A
broodstock management plan and an Emergency Evacuation Plan have been
completed (Kincaid and Reisenbichler 2002; Service 2004). Recovery
actions have included chemically treating streams within the historic
range of the species to remove nonnative fish species, removing
nonnative trout by electrofishing, and constructing physical barriers
to prevent movement of nonnatives into renovated reaches (Service
2003).
Surveys of the 12 existing populations (excluding the recent
replicate; Langstroth Canyon) indicate that the recovery efforts to
remove nonnative fish and prevent their return to the renovated areas
have been successful (Service 2003). Replicated populations in New
Mexico are successfully reproducing, indicating that suitable spawning
and rearing habitats are available. Replicated populations in Arizona
exist in Raspberry Creek. Young of the year were planted in Raspberry
Creek in Arizona in 2000. In 2004, Gila trout in Raspberry Creek were
found in mixed size classes, indicating that the fish spawned and
successfully recruited. Although some fish were removed from Raspberry
Creek due to the threat of wildfire, some of these fish were restocked
in November 2004 into the uppermost portions of Raspberry Creek, which
survived the impacts caused by the fire and which still support Gila
trout. Spawning was not documented in Raspberry Creek in 2005. Young of
the year were planted in Dude Creek in 1999; however, due to a lack of
recruitment, Dude Creek is no longer considered a viable population.
Overall, there has been an increase in the total wild population of
Gila trout. In 1992, the wild populations of Gila trout were estimated
to be less than 10,000 fish greater than age 1. In 2001, the population
in New Mexico was estimated to be 37,000 fish (Brown et. al. 2001). As
noted above, Gila trout were more recently replicated in Arizona; as
such, we do not have estimated numbers of fish at this time. The stream
renovation and transplantation efforts have been accomplished jointly
by the Service, Forest Service, NMDGF, AGFD, and New Mexico State
University. Original pure populations and their replicates are
summarized in Table 1.

[[Page 40659]]

Table 1.--Summary and Status of Streams Inhabited by Gila Trout as of January 2001
[Original pure population (i.e., relict) lineages in bold]
----------------------------------------------------------------------------------------------------------------
km (mi) of
State County Stream name Drainage stream Origin
inhabited
----------------------------------------------------------------------------------------------------------------
NM........... Sierra.................. Main Diamond East Fork Gila 6.1 Relict Lineage
Creek. River. (3.8) Eliminated in
1989, re-
established in
1994.
NM........... Grant................... McKnight Creek... Mimbres River.... 8.5 Replicate of Main
(5.3) Diamond, est.
1970.
NM........... Grant................... Black Canyon..... East Fork Gila 18.2 Replicate of Main
River. (11.3) Diamond, est.
1998.
NM........... Catron.................. Lower Little West Fork Gila 6.0 Replicate of Main
Creek. River. (3.7) Diamond, est.
2000.
NM........... Catron.................. Upper White Creek West Fork Gila 8.8 Replicate of Main
River. (5.5) Diamond, est.
2000.
NM........... Sierra.................. South Diamond East Fork Gila 6.7 Relict Lineage
Creek \1\. River. (4.2) Eliminated in
1995, re-
established in
1997.
NM........... Catron (Grant).......... Mogollon Creek Gila River....... 28.8 Replicate of
\2\. (17.9) South Diamond
Creek, est.
1987.
NM........... Catron.................. Spruce Creek..... San Francisco 3.7 Relict Lineage.
River. (2.3)
NM........... Catron.................. Big Dry Creek.... San Francisco 1.9 Replicate of
River. (1.2) Spruce Creek,
est. 1985.
AZ........... Gila.................... Dude Creek....... Verde River...... 3.2 Replicate of
(2.0) Spruce Creek,
est. 1999.
AZ........... Greenlee................ Raspberry Creek.. Blue River....... 6.0 Replicate of
(3.7) Spruce Creek,
est. 2000.
NM........... Catron.................. Whiskey Creek.... West Fork Gila 2.6 Relict Lineage.
River. (1.6)
NM........... Catron.................. Langstroth Canyon West Fork Gila 9.0 Replicate of
River. (5.6) Whiskey Creek
est. 2006.
----------------------------------------------------------------------------------------------------------------
\1\ South Diamond Creek includes Burnt Canyon.
\2\ Mogollon Creek includes Trail Canyon, Woodrow Canyon, Corral Canyon, and South Fork Mogollon Creek. Portions
of the drainage are in Grant County, New Mexico.

The four original pure population lineages are currently protected
and replicated in 109 km (67 mi) of stream. Each replicate is
geographically separate from its original pure population with one
exception. The Spruce Creek replicate in Big Dry Creek is proximal;
however, the additional replicate in Raspberry Creek is located more
than 75 km (47 mi) to the northwest. An Emergency Evacuation Plan has
been developed and it has been successfully implemented twice. The plan
addresses emergency-related impacts (including floods) and discovery of
nonnative salmonid invasions (Service 2004). In 2002, the Emergency
Evacuation Plan (Service 2004) was implemented during the Cub Fire to
evacuate fish from Whiskey Creek (Brooks 2002), and in 2003, the plan
was implemented during the Dry Lakes Fire to remove fish from Mogollon
Creek (J. Brooks, U.S. Fish and Wildlife Service, in litt. 2003b).

Summary of Comments and Responses

Peer Review

In conformance with our policy on peer review, published on July 1,
1994 (59 FR 34270), we solicited the expert opinions of seven
appropriate and independent experts following publication of the
proposed rule. We received responses from three of these reviewers. Two
of the reviewers were in support of the reclassification with special
rule and provided no further comments. One of the reviewers did not
support the proposal. His comments are included in the summary below.
(1) Comment: Dude and Raspberry Creeks in Arizona do not qualify as
successful transplants because there is no Gila trout reproduction in
the former and not enough time has passed to determine the
establishment of a self-sustaining population in the latter. Thus, the
plan criterion of 85 stream km of occupied habitat has not been met.
Our Response: Dude Creek (replicate of Spruce Creek) is no longer
considered a viable population due to lack of recruitment. However,
there was documentation of reproduction and successful recruitment in
Raspberry Creek (also a replicate of Spruce Creek) in 2004. In
addition, the Raspberry Creek population survived a fire in 2004, and
evacuated fish were returned to the upper portion of the creek later in
the year. The four original pure population lineages are currently
protected and replicated in 109 km (67 mi) of stream. Thus, we have
exceeded the recovery criteria of establishing 85 stream km (53 mi) of
occupied habitat. We completed the replication of Whiskey Creek into
Langstroth Canyon on June 21, 2006. Subsequent monitoring will be done
to ensure the viability of the replicate.
(2) Comment: The proposed reclassification and special rule should
be rejected on the basis that they do not meet the intent of the Act,
and do not promote recovery of Gila trout.
Our Response: We believe that the special rule promotes the
conservation and recovery of Gila trout by relieving population
pressures as described under the ``Description of Special Rule''
section below. More specifically, we anticipate that implementation of
the special rule will benefit the Gila trout by providing a means
whereby excess Gila trout from captive rearing may be placed in streams
for recreational benefit rather than destroyed. Furthermore,
recreational management for Gila trout will be consistent with the
goals of the Recovery Plan for the species (Service 2003).
Additionally, the special rule contributes to the conservation of
the Gila trout through: (1) Eligibility for

[[Page 40660]]

Federal sport fishing funds; (2) increase in the number of wild
populations; (3) enhanced ability to monitor populations (e.g., creel
censuses) for use in future management strategies; and (4) creation of
goodwill and support in the local community. Each of these topics is
discussed in detail in the ``Description of Special Rule'' section
below.
(3) Comment: Replicates of Main Diamond Creek are less than 10
years old and do not have enough generations to determine whether they
can support self-sustaining populations of Gila trout. South Diamond
Creek and its replicate Mogollon Creek also have a history of less than
10 years.
Our Response: The Main Diamond Creek lineage is the most replicated
of all the lineages (see Table 1 above). The Mogollon Creek population
was established in 1998, and is well established. Currently it supports
more than five different age classes (Jim Brooks, NMFRO, pers. comm.
2006). Self-sustaining populations are a component of the criteria for
delisting, not a component of the criteria for downlisting. See our
response to Comment 11 below.
(4) Comment: McKnight Creek is in the Mimbres River drainage and
not within the historical range of the Gila trout, and should not be
considered as contributing to recovery.
Our Response: While McKnight Creek is not within the historical
range of Gila trout, it has played an important role in the improved
status of the species. The McKnight Creek population was established in
1972, when there was no direction for conservation and recovery actions
in the native range of species. When a fire burned through Main Diamond
Creek in 1989, McKnight Creek maintained the Main Diamond Creek
lineage. Currently, due to its large population size, it is used to
provide and maintain genetic variability of the captive broodstock at
the Mora Fish Hatchery and Technology Center.
(5) Comment: Dry Creek is not geographically separate from Spruce
Creek and has extremely limited habitat.
Our Response: It is true that Dry Creek is not geographically
separate from Spruce Creek. However, Spruce Creek is also replicated by
Raspberry Creek, which is geographically separate.
(6) Comment: Although Gila trout may be rescued from a stream
threatened by wildfire, it takes years to many decades for a stream
ravaged by wildfire to recover to a point that it can sustain a trout
population.
Our Response: Although it may take decades for a stream to recover
from a devastating wildfire, not all wildfires are devastating, and
recovery for less intense fires can occur within a few years. The
effects to the streams can range anywhere from mild to extreme, and
likewise the timeline for returning fish to those streams can be of
short or long duration. Emergency evacuated fish are held at the Mora
Fish Hatchery until a post-fire evaluation determines that the fish can
be returned to the stream. Gila trout evacuated from Raspberry Creek in
2004 were returned within the same season after an evaluation
determined the effects of the fire on the upper portions of the stream
were minimal. In addition, Gila trout evacuated from Mogollon Creek
were used to supplement the captive broodstock for additional recovery
efforts.
(7) Comment: There is no provision in the Emergency Evacuation Plan
to rescue Gila trout populations threatened by flood or drought. The
proposed reclassification and Emergency Evacuation Plan address the
threat of predation from brown trout but do not address the threat of
hybridization with rainbow trout.
Our Response: The Emergency Evacuation Plan specifically addresses
the rescue of Gila trout due to wildfire, flooding, drought, and
invasion by nonnative salmonids. Both the proposed rule and the
Emergency Evacuation Plan refer to nonnative salmonids, which include
rainbow trout.
(8) Comment: The proposed rule dismisses whirling disease as a
potential threat to Gila trout because the species is found only in
high elevation streams with low water temperatures. However, Gila trout
occur in streams as low as 6,500 feet (ft) and in water temperature
between 60 to 70 degrees Fahrenheit ([deg]F). In addition, you do not
address the threat of bacterial kidney disease (BKD), which occurs in
Gila trout streams.
Our Response: Whirling disease and BKD are minor potential threats
to Gila trout. Whirling disease is unlikely to threaten Gila trout
because: (1) There has never been a detection of the intermediate host
(Tubifex tubifex) from the many benthic samples taken; (2) there is no
source for infection (rainbow trout have not been stocked in the Gila
Basin since the early 1970s, and the NMDGF no longer stocks brown
trout); and (3) despite many years of monitoring and sampling of Gila
trout populations, the disease has never been detected.
Gila trout from Whiskey Creek tested positive for antigens of BKD,
indicating that there was past exposure to BKD, but fish in Whiskey
Creek developed an antibody to resist the disease. However, we have no
information documenting that BKD is currently present in Whiskey Creek
or other streams where Gila trout are extant. We believe that the
Whiskey Creek population was exposed to BKD prior to the listing of the
Gila trout (Jim Brooks, NMFRO, pers. comm 2006). Please refer to
discussion under ``Factor C. Disease and Predation'' below.
(9) Comment: Considering recent events (wildfires, drought, floods,
and invasion by nonnative trout), most recovery actions have been
undertaken to replace or rescue populations that were lost rather than
establish new ones. The present proposal assumes that history will not
repeat itself.
Our Response: The threats from wildfire, drought, flood, and
invasion by nonnative trout exist, but we have successfully used our
Emergency Evacuation Plan to minimize those threats. We have a highly
successful collaborative recovery program with participation from the
Forest Service, Service, NMDGF, and AGFD. Cooperative recovery actions
have increased the number of populations from 4 at the time of listing
to 13 today. In addition, the West Fork Gila River Restoration Project
is ongoing and will add a total of 34 km (21 mi) to occupied range
including the Whiskey Creek replication.
(10) Comment: The Emergency Evacuation Plan has been invoked three
times in three years, indicating that extraordinary efforts must
continue to prevent extirpation of the species from a significant
portion of its range. Therefore, the reclassification is premature.
Our Response: The Emergency Evacuation Plan has been used several
times in the past few years to rescue populations that may otherwise be
lost. The plan was developed specifically for the purpose of minimizing
threats from natural events. These examples demonstrate the usefulness
and success of the emergency response process. Please refer to Comment
6 above.
(11) Comment: The benefit to Gila trout from implementation of the
special rule is speculative. There is no guarantee that sport fish
money will be spent on Gila trout. The number of wild populations of
Gila trout will not increase because hatchery fish will be stocked into
streams containing nonnative trout, where a few will be removed by
anglers or predation and the rest will hybridize with the nonnatives.
Creel census will add nothing to information regarding the viability of
the populations. Demographic monitoring is already in place and being
accomplished.
Our Response: Funds generated by sport fishing activity are already
being

[[Page 40661]]

spent on Gila trout for conservation. Although there is no guarantee
that additional monies will be spent on Gila trout, allowing for
angling would contribute to sport fish money. This would create an
opportunity for generating revenue from Gila trout angling and then
using that revenue to supplement Gila trout conservation activities.
Although increases in the number of wild populations of Gila trout
will not be immediate, we believe that over time, stocking of nonnative
trout would be discontinued in favor of efforts to restore Gila trout.
In addition, we will have the ability to utilize Gila trout derived
from the large numbers of fish produced under the genetic broodstock
management guidelines and excess to recovery needs. Currently, the
hatchery is producing fish beyond what we are using for recovery. These
excess fish can be used to support angling programs in non-recovery
streams and lakes.
Although the details of the creel survey programs have yet to be
worked out by the States, the programs will likely include monitoring
of angling impacts on Gila trout by gathering information such as
population data (size of fish, number caught, and released), data
concerning the survival of released fish, and angler-related data.

Public Comments

In the proposal to reclassify the Gila trout from endangered to
threatened with a special rule, we requested that all interested
parties submit comments on the proposed reclassification and special
4(d) rule enabling NMDGF and AGFD to promulgate special regulations in
collaboration with the Service allowing recreational fishing for Gila
trout. In addition, we also requested information concerning angling
opportunities that may be affected by this action in New Mexico or
Arizona and how the special rule might affect these uses and further
the conservation of the Gila trout beyond what we have discussed. We
requested this information in order to make a final listing
determination based on the best scientific and commercial data
currently available. During the public comment period, we received 16
written comments (2 written comments were identical, in the form of
automatically generated letters), and 7 speakers gave verbal comments
at the public hearings. All substantive information provided during the
public comment period, written and verbal, either has been incorporated
directly into this final determination or is addressed below. Similar
comments are grouped together by issue.
Issue 1: Procedural and Legal Compliance
(12) Comment: It is premature to downlist the Gila trout from
endangered to threatened at this time. The Service has not yet met its
own Emergency Recovery Plan standard of replicating the Gila trout's
four original genetic lineages, inclusive of Whiskey Creek. Given the
fact that the Gila trout population remains small and fragile, and the
long-term recovery strategy for the Gila trout is still problematic due
to fire, flood, drought, or other natural disaster dangers, a
downlisting could severely endanger or even destroy the species. The
Service is setting a precedent by downlisting a species that has not
met current recovery criteria and relying on future anticipated
progress as a basis for reclassification.
Our Response: We have met every component of the downlisting
criteria recommended in the Recovery Plan, with the replication of all
of the four known, non-hybridized lineages. The replication of the
Whiskey Creek lineage into Langstroth Canyon was completed on June 21,
2006. Additional efforts will be pursued to expand the Whiskey Creek
population to its confluence with the upper West Fork Gila River in
2007. The Forest Service has evaluated the effects of this action under
the National Environmental Policy Act (42 U.S.C. 4321-4347) and section
7 of the Act. The New Mexico Game Commission approved the use of
Antimycin to remove nonnatives in the renovation of Langstroth Canyon.
With the completion of the Whiskey Creek replication into Langstroth
Canyon, we currently have Gila trout in 109 km (67 mi) of stream. Thus,
we have exceeded the recovery criteria of establishing 85 stream km (53
mi) of occupied habitat.
We also have an Emergency Evacuation Plan in place that has proven
to be successful to minimize impacts on Gila trout that are threatened
by wildfire and other potential threats such as floods and drought. The
plan can be implemented through the emergency consultation provisions
under section 7 of the Act during emergency events (e.g., flood, fire,
drought).
Recovery plans are not regulatory documents and are instead
intended to provide guidance to the Service, States, and other partners
on methods of minimizing threats to listed species and on criteria that
may be used to determine when recovery is achieved. There are many
paths to accomplishing recovery of a species and recovery may be
achieved without all criteria being fully met. For example, one or more
criteria may have been exceeded while other criteria may not have been
accomplished. In that instance, the Service may judge that over all
criteria, the threats have been minimized sufficiently, and the species
is robust enough, to reclassify the species from endangered to
threatened or perhaps delist the species. In other cases, recovery
opportunities may have be recognized that were not known at the time
the recovery plan was finalized. These opportunities may be used
instead of methods identified in the recovery plan. Likewise,
information on the species may be learned that was not known at the
time the recovery plan was finalized. The new information may change
the extent that criteria need to be met for recognizing recovery of the
species. Overall, recovery of species is a dynamic process requiring
adaptive management and judging the degree of recovery of a species is
also an adaptive management process that may, or may not, fully follow
the guidance provided in a recovery plan.
Endangered status is no longer appropriate because we have
increased the number of Gila trout populations from 4 at the time of
listing to 13 today. In addition, abundance has increased significantly
over the last 10 years (Brown et al. 2001). Major threats to Gila trout
have been reduced (e.g., nonnative salmonids are not in the streams
that currently support Gila trout), and we have measures in place to
minimize remaining threats (see discussion in ``Summary of Factors
Affecting the Species'' below). Additionally, reclassifying Gila trout
as a threatened species does not diminish any of the protections it
currently receives as an endangered species, except that the special
rule will allow take in accordance with fishing regulations enacted by
New Mexico and Arizona.
(13) Comment: Some forms of recreational fishing for Gila trout are
not yet appropriate because populations remain fragile. Not all of the
genetic strains in Gila trout streams are recovered or are self-
sustaining and able to withstand fishing pressure. Despite the fact
that there has been no fishing of Gila trout for more than 50 years in
New Mexico, the population is still limited. This action could threaten
the fish and reverse years of trout preservation.
Our Response: We do not expect a high level of angling pressure on
Gila trout streams because: (1) Not every stream occupied by Gila trout
will be opened to fishing, e.g., as stated elsewhere in this rule, the
four relict populations will not be opened for angling; (2) these
streams are high

[[Page 40662]]

elevation, remote, and difficult to access; and (3) it is likely that
additional ``non-recovery'' or ``enhancement'' streams will be stocked
with surplus hatchery-raised fish. We expect that the State agencies,
in collaboration with the Service, will determine which streams will be
opened to fishing, to what degree, and the types of angling that will
be allowed (e.g., catch and release using artificial flies and lures
with single barbless hooks). In general, establishment of recreational
opportunities can be developed in recovery waters that have stable or
increasing numbers of individuals (as measured by population surveys)
and where habitat conditions are of sufficient quality to support
viable populations of Gila trout (populations having annual
recruitment, size structure indicating multiple ages, and individuals
attaining sufficient sizes to indicate 3 to 7 years of survival). In
addition, recreational opportunities may be developed in non-recovery
or enhancement waters. According to NMDGF, the process by which a
stream is designated a fishery involves: (1) Carefully evaluating the
Gila trout population (e.g., size structure, density, distribution, and
recruitment) in each stream; (2) determining whether the stream can
sustain angling and how much (this evaluates a suite of different
angling pressures); (3) making a recommendation to designate the stream
a fishery; and (4) monitoring to insure there are no detrimental
effects to the population from angling. If monitoring indicates a
negative effect on the conservation of Gila trout, the fishing
regulations can be amended, and the stream withdrawn as a fishery. The
process by which AGFD designates a fishery is very similar and can be
found on the AGFD Web site at http://www.azgfd.gov/inside_azgfd/rulemaking_process.shtml
.

(14) Comment: The Emergency Evacuation Plan should be fully
implemented before there is any discussion of removal of the Gila trout
from the Endangered Species list. Although there has been an increase
in the number of Gila trout populations, those populations are still
not capable of fishing pressure since the Gila Trout Emergency Plan has
not been complied with by the Service and the Service concedes that
``drought, wildfire, and floods remain as threats'' to stable fish
populations.
Our Response: The Emergency Evacuation Plan is in place and has
been implemented in 2002, 2003, and 2004, and will continue to be
implemented as needed. The Emergency Evacuation Plan was developed to
protect against losses of Gila trout populations due to wildfire-
related effects (including floods), nonnative salmonid invasion, and
drought. In addition, the plan is currently under review to update
personnel contact information and, where appropriate, revise and
improve evacuation procedures.
(15) Comment: Gila trout is a critically imperiled species whose
future is not secure and for which the conservation benefits of sport
fish designation are unclear. Individual Gila trout of suitable size to
interest anglers are a small proportion of existing populations. From a
population dynamics perspective, these larger fish are among the most
important. Their intentional or inadvertent removal (via angling stress
and mortality) would be detrimental, especially where populations are
small. This was the case for the roundtail chub (Gila robusta) in
Arizona that was designated a sport fish in lieu of listing. The
roundtail chub's status continued to deteriorate despite the
accompanying assurances that sport fish dollars would provide a
conservation benefit. In addition, Gila trout fishing regulations have
yet to be developed, thus there is no opportunity to assess what
protections will actually be provided.
Our Response: Sport fishing for Gila trout will only be allowed
through the 4(d) rule and subsequent State regulations promulgated by
Arizona and New Mexico in collaboration with the Service. The Gila
trout will be considered a threatened species under the Act and
continue to receive recovery funding. Therefore it will not rely solely
on monies generated through the Federal Aid in Sport Fish Restoration
Act (Dingell-Johnson Act) (16 U.S.C 777-777l of 1950, as amended) or
other sport fish-related revenue. Contributions from the Dingell-
Johnson Act have been used in the past and are currently being used to
fund conservation actions for this species, and therefore it is
anticipated that those monies and any other sport fish-related revenue
will continue to be utilized in the future. As noted, individual
streams will only be opened to sport fishing after each State conducts
a thorough analysis and determines that a fishery is supportable. We
anticipate that the State Game Commission's meetings to amend the
fishing regulations to allow sportfishing of Gila trout will be open to
the public and comments will be solicited. Thus, we expect the public
will have ample opportunity to evaluate proposals from the States. It
is likely that most of the angling opportunities would be offered in
non-recovery streams stocked with surplus hatchery fish.
The roundtail chub is not a federally-listed species and as such
cannot be compared to the Gila trout, which still receives the Act's
protection and associated funding.
(16) Comment: Substantial take is occurring from illegal fishing
activities.
Our Response: We did not receive any information during the public
comment period that documents illegal fishing as a widespread threat to
the species. There is limited evidence that illegal fishing activity
has taken place (e.g., fishing tackle has been found on a few
occasions). Still, we believe the amount of take is small. Please refer
to our discussion below under ``Factor B. Overutilization for
commercial, recreational, scientific, or educational purposes.''
(17) Comment: The Service issues too many research permits
resulting in a negative effect to fish species.
Our Response: We have only issued 13 recovery permits for Gila
trout since August 2002. The majority of these permits are issued to
the Forest Service, the State Game and Fish Agencies, and the Service
for survey and monitoring work. In addition, to minimize potential
impacts, the Service insures that permits issued for research purposes
do not overlap.
(18) Comment: In the current proposal, there are no restrictions on
the States to prevent opening of streams that contain relict or
replicated populations to angling. A draft of proposed State
regulations should be included in the proposal for public analysis.
Our Response: As stated in the ``Description of Special Rule''
section, this final rule will allow recreational fishing of Gila trout
only in specified waters. Areas open to fishing would not include the
four relict populations identified in Table 1.
The States need the flexibility to adjust how a fishery is
regulated on a case-by-case basis. The States can amend their fishing
regulations in a manner of months, whereas the Federal rulemaking
process typically takes much longer. The general process to amend
fishing regulations includes a State Game and Fish Agency (NMDGF or
AGFD) making a recommendation to their State Game Commission. The State
Game Commission considers the recommendations and can either finalize
the proposed regulations or postpone a final action until a future
date. We anticipate that the State Game Commission's meetings to amend
the fishing regulations to allow sportfishing of Gila trout will be
open to the public and comments will be solicited. Thus, we expect the
public will have ample opportunity to evaluate proposals from

[[Page 40663]]

the States. For these reasons, we believe it is prudent to allow the
States to develop Gila trout regulations apart from the Federal
rulemaking process.
(19) Comment: Critical habitat for Gila trout should be designated
for at least those streams containing relict populations and, ideally,
all those streams that contribute to recovery of the species.
Our Response: The Gila trout was originally recognized as
endangered under the Federal Endangered Species Preservation Act of
1966 (March 11, 1967; 32 FR 4001), prior to critical habitat being
formalized in the 1978 and 1982 amendments to the Act. One of the
applicability provisions in the 1982 amendments to the Act indicates
that the provision for designating critical habitat, section 4(a)(3)(A)
of the Act, shall not apply with respect to any species which was
listed as an endangered species or a threatened species before November
10, 1978 (section 4(b)(6)(A)(i)(II) of the Endangered Species Act of
1973, as amended, (16 U.S.C. 1533(b)(6)(A)(i)(II)), Pub. L. 95-632, at
2(2), 92 Stat. 3751 (November 10, 1978), and Pub. L. 97-304, at
2(b)(2), 2(b)(4), 96 Stat. 1411, 1416 (October 13, 1982). Therefore, we
are not required to designate critical habitat for the Gila trout.
Furthermore, we do not believe it is necessary to designate
critical habitat for the Gila trout due to existing protections and the
progress being made towards species recovery (as discussed throughout
this rule). For example, 10 of 11 populations in New Mexico exist in
the Aldo Leopold Wilderness or Gila Wilderness, and the population in
Raspberry Creek in Arizona occurs in the Blue Range Primitive Area.
Thus, a majority of the extant populations are protected by these
special designations on Forest Service lands. We provide a further
discussion of the existing regulatory protections for the Gila trout in
``Factor D: The inadequacy of existing regulatory mechanisms'' below.
(20) Comment: Because the Recovery Plan criteria have not been met,
the size and diversity of Gila trout populations remain inadequate, and
significant risks to the species are still present. Seven populations
have been lost to fire since 1989. The Iron and McKenna Creek
populations are hybridized with rainbow trout, indicating they cannot
be used for recovery. The abundance of Gila trout numbers in the Spruce
Creek population remains low.
Our Response: We agree that fire is still one of the most
significant threats to Gila trout. The Emergency Evacuation Plan was
developed to allow for the emergency removal of Gila trout from a
stream that is immediately threatened and for the transport of removed
Gila trout to a facility where they will be held until conditions allow
the fish to be successfully placed back into the original stream. We
have utilized the plan in the last several years and it has been
successful. (Please refer to ``Recovery Plans and Accomplishments''
section above.)
In 1998, it was determined that the McKenna and Iron Creek
populations had hybridized with rainbow trout and, therefore, did not
contribute to the recovery of the species because they are not pure
(Leary and Allendorf 1998; Service 2003). In 2002, three age classes
(age 0 to age 3) of Gila trout were abundant in Spruce Creek (USFWS
2003).
(21) Comment: How will the 4(d) rule be implemented? What will be
the role of the States in conserving Gila Trout?
Our Response: As noted in response to Comment 13 above, the States,
in collaboration with the Service, will determine whether a Gila trout
stream will be designated as a fishery. See also our response to
Comment 19 above for further information.
(22) Comment: Only when the Gila trout population is self-
sustaining in the wild should the Service consider reclassification.
Our Response: We have evaluated the threats to the Gila trout (see
``Summary of Factors Affecting the Species'' section), and are
reclassifying this animal as threatened (i.e., one that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range). Based on the information
available, we believe the Gila trout is no longer in danger of
extinction throughout all or a significant portion of its range (i.e.,
it does not meet the definition of an endangered species). The criteria
for downlisting the Gila trout to a threatened species, outlined above
in the ``Recovery Plans and Accomplishments'' section, refers, in part,
to replicating the indigenous lineages in 85 km (53 mi) of stream. The
reference to establishment of self-sustaining populations is only
discussed in the Recovery Plan criteria for delisting (i.e., fully
recovered and removed from the list of endangered species). Thus, since
we are not proposing to ``delist'' the Gila trout at this time, the
reference to self-sustaining populations is not pertinent to our
current action.
(23) Comment: If fishing for Gila trout is allowed, it will be
abused, and there will be no chance for the population to recover.
Our Response: Both States have a long and successful history in the
management of recreational fisheries. Regulations implemented for Gila
trout along with increased law enforcement attention will insure that
protections are adequate for the conservation of the species. In
addition, as stated previously, the populations will be monitored to
ensure that they can withstand fishing pressure while contributing to
the conservation of the species. If monitoring indicates that a Gila
trout population is being adversely affected, the fishery may be
closed. See also our responses to Comments 12 and 15 above.
Issue 2: Biological Concerns
(24) Comment: Factors that threaten the security of Gila trout have
not been removed and remain so severe that the species could be
eliminated from a significant portion of the remnant habitat it now
occupies within its historic range. These factors include, but are not
limited to, hybridization with other fish species, stream flooding or
desiccation, direct or indirect effects of fire, disease, parasites,
and predation. Many of these threats cannot be eliminated but their
impacts can be mitigated by ensuring that viable Gila trout populations
occupy a suite of suitable streams across a broad regional landscape,
which currently is not the case. For example, recent fires that have
resulted in emergency evacuations or eliminated Gila trout from several
streams demonstrate that the species is in a precarious state and
deserves the continued protection afforded by endangered status.
Our Response: As discussed in the ``Summary of Factors Affecting
the Species'' section below, we recognize that some threats to Gila
trout still exist. However, based upon our analysis, threatened status
is the appropriate classification for the Gila trout. For this reason,
we are reclassifying the species from endangered to threatened. Refer
to the ``Available Conservation Measures'' section below for a
discussion of the protections afforded the Gila trout as a threatened
species. In addition we have an Emergency Evacuation Plan in place to
minimize effects from fire, drought, floods, and nonnative salmonid
invasion.
(25) Comment: Given the current ban on piscicide use by the New
Mexico Game Commission, it is unlikely that the Whiskey Creek Gila
trout population can be securely replicated.
Our Response: The replication of Whiskey Creek was completed on
June 21, 2006. The New Mexico Game Commission recently gave their

[[Page 40664]]

approval to use Antimycin on the West Fork Gila River once they
concluded that the use of Antimycin would aid in the downlisting of
Gila trout (New Mexico Game Commission 2005).
(26) Comment: Federal agencies routinely use pesticides,
herbicides, and other chemicals that are lethal to macroinvertebrates,
thereby depleting the food supply for Gila trout. Grazing is
detrimental to Gila trout. Moreover, prescribed burning is a threat to
Gila trout because the fine particulate matter from prescribed burning
suffocates fish.
Our Response: We acknowledge that these are all potential threats
to the Gila trout. However, Federal agencies considering an action that
may affect a threatened or endangered species are subject to section 7
of the Act. Under section 7, Federal agencies must consult with the
Service to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of any endangered or
threatened species or adversely modify its habitat. Please see Comment
27 below for discussion of piscicides and macroinvertebrates. As
discussed in the ``Factor A. The present or threatened destruction,
modification, or curtailment of its habitat or range'' section below,
livestock grazing is carefully managed now, and on creeks occupied by
Gila trout, grazing has either been suspended or cattle are excluded.
Also described under ``Factor A'' below, prescribed fire is closely
managed and analyzed under section 7 of the Act to minimize adverse
effects to the Gila trout and its habitat. Threats of wide-scale
habitat loss due to wildfire are real and immediate on many public
lands. Reducing fuels in these areas may help to protect habitat for
threatened and endangered species. Forest thinning, often in
conjunction with prescribed fires, is extremely important as a
management tool needed to enhance, and often to restore, many of the
ecosystem functions and processes. These types of projects may result
in long-term benefits to listed species, including the Gila trout, but
may also contribute, in the short term, to certain adverse effects to
the species. Nevertheless, we believe it is important to address
adverse impacts by minimizing, to the greatest extent practical, those
short-term adverse effects and move forward with proactive land
management to restore ecosystem functions and community dynamics.
(27) Comment: Using piscicides to remove nonnative fish ultimately
hurts all fish species and ruins water quality.
Our Response: At the levels used to kill trout, Antimycin has been
demonstrated to have no effect on amphibians, mammals, and birds, and
only minimal effects on some insects (Finlayson et al. 2002). In
addition, Antimycin alone appears to have little short-term effect on
invertebrates in high elevation streams (Cerreto et al. 2003).
Antimycin breaks down rapidly, and can be contained easily because it
naturally detoxifies quickly. Numerous researchers have found that
organic substances in a streambed act as a filter to naturally detoxify
Antimycin-treated water. Additionally, it can be neutralized by 20
minutes of contact with potassium permanganate (Q&A Fact Sheet,
Westslope Cutthroat Trout Conservation Program).

Summary of Factors Affecting the Species

Section 4 of the Act and regulations issued to implement the
listing provisions of the Act (50 CFR part 424) set forth the
procedures for listing, reclassifying, and delisting species. Species
may be listed as threatened or endangered if one or more of the five
factors described in section 4(a)(1) of the Act threaten the continued
existence of the species. A species may be reclassified, according to
50 CFR 424.11(c), if the best scientific and commercial data available
provide a basis for determining that the species' current status is no
longer correct. This analysis must be based upon the five categories of
threats specified in section 4(a)(1).
For species that are already listed as threatened or endangered,
this analysis of threats is primarily an evaluation of the threats that
could potentially affect the species in the foreseeable future
following the delisting or downlisting, and the associated removal or
reduction of the Act's protections. Our evaluation of the future
threats to the Gila trout that would occur after reclassification to
threatened status is partially based on the protection provided by the
Gila and Aldo Leopold Wilderness areas, the Emergency Evacuation Plan,
and the broodstock management plan, and on limitations on take that
would be determined by the States in collaboration with us.
Discussion of the five listing factors and their application to
reclassification of the Gila trout are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range

In the past, Gila trout populations were threatened by habitat
degradation and watershed disturbances (52 FR 37424). These factors
compounded the threats posed by nonnative salmonids (see Factors C and
E below for discussions of nonnative salmonids). We discuss habitat
degradation from livestock grazing, timber harvest, and wildfires
below.
Livestock Grazing
Intensive livestock grazing has been shown to increase soil
compaction, decrease infiltration rates, increase runoff, change
vegetative species composition, decrease riparian vegetation, increase
stream sedimentation, increase stream water temperature, decrease fish
populations, and change channel form (Meehan and Platts 1978; Kaufman
and Kruger 1984; Schulz and Leininger 1990; Platts 1991; Fleischner
1994; Ohmart 1996). Although direct impacts to the riparian zone and
stream can be the most obvious sign of intensive livestock grazing,
upland watershed condition is also important because changes in soil
compaction, percent cover, and vegetative type influence the timing and
amount of water delivered to stream channels (Platts 1991). Increased
soil compaction, decreased vegetative cover, and a decrease in
grasslands lead to faster delivery of water to stream channels,
increased peak flows, and lower summer base flow (Platts 1991; Ohmart
1996; Belsky and Blumenthal 1997). As a consequence, streams are more
likely to experience flood events during monsoons (water runs off
quickly instead of soaking into the ground) that negatively affect the
riparian and aquatic habitats and are more likely to become
intermittent or dry in September and October (groundwater recharge is
less when water runs off quickly) (Platts 1991; Ohmart 1996).
Livestock grazing practices that degrade riparian and aquatic
habitats generally cause decreased production of trout (Platts 1991).
Livestock affect riparian vegetation directly by eating grasses,
shrubs, and trees; by trampling the vegetation; and by compacting the
soil. Riparian vegetation benefits streams and trout by providing
insulation (cooler summer water temperatures, warmer winter water
temperatures), by filtering sediments so that they do not enter the
stream (sediment clogs spawning gravel and reduces the survival of
salmonid eggs), by providing a source of nutrients to the stream from
leaf litter (increases stream productivity), and by providing root
wads, large woody debris, and small woody debris to the stream
(provides cover for the fish) (Kauffman and Krueger 1984; Platts 1991;
Ohmart 1996). Poor livestock grazing practices can increase
sedimentation through

[[Page 40665]]

trampling of the stream banks (loss of vegetative cover), by removal of
riparian vegetation (filters sediment), and through soil compaction
(decreases infiltration rates, increases runoff, causes increased
erosion). Sediment is detrimental to trout because it decreases the
survival of their eggs (Bjornn and Reiser 1991), and because of its
negative impact on aquatic invertebrates, a food source for trout
(Wiederholm 1984).
In the late 1800s and early 1900s, livestock grazing was
uncontrolled and unmanaged over many of the watersheds that contain
Gila trout, and much of the landscape was denuded of vegetation (Rixon
1905; Duce 1918; Leopold 1921; Leopold 1924; Ohmart 1996). Livestock
grazing is more carefully managed now, which has resulted in less
impact to streams occupied by Gila trout. Improved grazing management
practices (e.g., fencing) have reduced livestock access to streams. Six
of the 12 streams currently occupied by Gila trout are within Forest
Service grazing allotments. However, as described below, on the six
creeks occupied by Gila trout within Forest Service lands, grazing has
either been suspended or cattle are typically excluded.
Mogollon Creek is within the Rain Creek/74 Mountain Allotment. This
allotment receives only winter use, and much of the riparian habitat is
inaccessible to livestock. Riparian vegetation along Mogollon Creek is
in good condition (A. Telles, U.S. Forest Service, Gila National
Forest, in litt. 2003c). Main Diamond Creek and the adjacent riparian
zone, located in the South Fork Allotment, are excluded from grazing.
The Forest Service is implementing a fencing project along Turkey Run
Creek to prevent livestock trespass into Main Diamond Creek (A. Telles,
U.S. Forest Service, Gila National Forest, in litt. 2003c).
Spruce Creek and Big Dry Creek are within the northern portion of
the Dry Creek Allotment within the Gila Wilderness and have not been
grazed in several years. Although the allotment is not closed to
grazing, topography essentially excludes livestock from grazing in the
Spruce Creek Drainage and within the occupied reach of Big Dry Creek
(J. Monzingo, U.S. Forest Service, Gila National Forest, pers. comm
2006). McKnight Creek is within the Powder Horn Allotment managed by
the Headwaters Ranch. The Headwaters Ranch is a partnership that
includes The Nature Conservancy and other partners. Grazing has been
excluded upstream of occupied habitat as well as from the entire
occupied reach of McKnight Creek (J. Monzingo, U.S. Forest Service,
Gila National Forest, pers. comm 2006).
South Diamond Creek and Black Canyon are within the Diamond Bar
Allotment, where grazing was suspended in 1996. This has resulted in
marked improvements in the condition of riparian and aquatic habitat in
these areas (A. Telles, U.S. Forest Service, Gila National Forest, in
litt. 2003c).
Lower Little Creek, Upper White Creek, and Whiskey Creek do not
occur within grazing allotments. The area of the Gila Wilderness where
these streams are located was closed to grazing in the 1950s when the
NMDGF acquired the private property associated with the Glenn
Allotment, which included these streams (J. Monzingo, U.S. Forest
Service, Gila National Forest, pers. comm 2006). The NMDGF and FS have
since signed an agreement excluding livestock from the area and
allowing the State to utilize the area for elk introduction (J.
Monzingo, U.S. Forest Service, Gila National Forest, pers. comm 2006).
In Arizona on the Apache-Sitgreaves National Forest, Raspberry
Creek, which is located in the Blue Range Primitive Area, includes two
grazing allotments, Strayhorse and Raspberry. The Strayhorse Allotment
includes about 75 percent of the watershed above the fish barrier. The
allotment was evaluated in July 1998, and determined to be in ``Proper
Functioning Condition'' (D. Bills, U.S. Fish and Wildlife Service, in
litt. 2003d). It has a well-developed riparian plant community and no
adverse impacts from ongoing livestock grazing (Service 2000).
Evaluation of the Raspberry Allotment occurred twice in 1998, and
concluded that the allotment was ``Functional--At Risk'' and in a
``Downward'' trend (Service 2000). The report noted an incised channel
(eroded downward), and concluded that upland watershed conditions were
contributing to the riparian degradation. Significant changes were made
to the Raspberry Allotment in 2000 (Service 2000). Specifically, the
Forest Service required a reduction in livestock numbers to 46 cattle
from November 1 to June 14 (or removal of cattle prior to June 14 if
utilization standards are reached). Prior to this, 225 cattle were
permitted on the Allotment yearlong, and 160 cattle were permitted from
January 1 to May 15.
Dude Creek, on the Tonto National Forest, is within the East Verde
Pasture of the Cross V Allotment. Current management techniques are
designed to protect the stream banks and riparian vegetation, thereby
reducing sedimentation and increasing river insulation (and thereby
maintaining cooler summer and warmer winter water temperatures).
Riparian conditions on Dude Creek continue to improve; however, the
Gila trout population has not done well. This is most likely to due to
other stressors such as drought.
Timber Harvest
Logging activities in the early to mid 1900s likely caused major
changes in watershed characteristics and stream morphology (Chamberlin
et al. 1991). Rixon (1905) reported the occurrence of small timber
mills in numerous canyons of the upper Gila River drainage. Early
logging efforts were concentrated along canyon bottoms, often those
with perennial streams. Tree removal along perennial streams within the
historical range of Gila trout likely altered water temperature
regimes, sediment loading, bank stability, and availability of large
woody debris (Chamberlin et al. 1991). Nine of 10 populations in New
Mexico exist in the Aldo Leopold Wilderness or Gila Wilderness. Of the
two populations in Arizona, Raspberry Creek occurs in the Blue Range
Primitive Area. Timber harvest is not allowed in wilderness or
primitive areas. There are no plans for timber harvest near the other
streams that have Gila trout (A. Telles, U.S. Forest Service, Gila
National Forest, in litt. 2003c). If timber harvest were to be proposed
in the future in the two areas located outside of a wilderness or
primitive area, the Forest Service would need to consider the effects
of the proposed action under section 7 of the Act.
Fire
High-severity wildfires, and subsequent floods and ash flows, have
caused the extirpation of three populations of Gila trout since 1989:
Main Diamond (1989), South Diamond including Burnt Canyon (1995), and
Upper Little Creek (2003). In addition, Trail Canyon and Woodrow Canyon
(both subpopulations of the Mogollon Creek population) were lost in
1996. In addition, Sacaton Creek was lost in 1996. However, Sacaton
Creek was a replicate of Iron Creek, which was determined to be a
hybridized population and is no longer considered a legitimate
replicate (Propst et al. 1992; Brown et al. 2001; J. Brooks, Service,
pers. comm. 2003). Lesser impacts were experienced in 2002, when ash
flows following the Cub Fire affected the lower reach of Whiskey Creek.
However, lower Whiskey Creek is frequently intermittent and typically
contains few fish (Brooks 2002). Upper Whiskey Creek, where the
majority of the fish occur, was not affected by the Cub Fire. The Cub
Fire also impacted the upper

[[Page 40666]]

West Fork Gila and may have eliminated nonnative trout from the
watershed upstream of Turkey Feather Creek (Brooks 2002). In 2003, fire
retardant was dropped on Black Canyon, affecting approximately 200
meters (m) (218 yards) of stream (J. Monzingo, U.S. Forest Service,
Gila National Forest, in litt. 2003e). Although some Gila trout were
killed, the number of mortalities is unknown (J. Monzingo, U.S. Forest
Service, Gila National Forest, in litt. 2003e) because dead fish were
carried by the current out of the area by the time fire crews arrived.
However, a week after the retardant drop, live Gila trout were observed
about 400 m (438 yards) below the drop site (J. Monzingo, U.S. Forest
Service, Gila National Forest, in litt. 2003e).
Severe wildfires capable of extirpating or decimating fish
populations are a relatively recent phenomenon. They result from the
cumulative effects of historical or overly intensive grazing (can
result in the removal of fine fuels needed to carry fire) and fire
suppression (Madany and West 1983; Savage and Swetnam 1990; Swetnam
1990; Touchan et al. 1995; Swetnam and Baisan 1996; Belsky and
Blumenthal 1997; Gresswell 1999), as well as the failure to use good
forestry management practices to reduce fuel loads. Historic wildfires
were primarily cool-burning understory fires with return intervals of 3
to 7 years in ponderosa pine and 5 to 20 years in mixed conifer
(Swetnam and Dieterich 1985). Cooper (1960) concluded that prior to the
1950s, crown fires were extremely rare or nonexistent in the region. In
2003, over 200,000 acres burned in the Gila National Forest (S.
Gonzales, U.S. Fish and Wildlife Service, in litt. 2004). The
watersheds of Little Creek, Black Canyon, White Creek, and Mogollon
Creek were affected. Because Gila trout are found primarily in
isolated, small streams, avoidance of ash flows is impossible, and
opportunities for natural recolonization usually do not exist (Brown et
al. 2001). Persistence of Gila trout in streams affected by fire and
subsequent ash flows is problematic. In some instances, evacuation of
Gila trout from streams in watersheds that have burned is necessary
(Service 2004).
Effects of fire may be direct and immediate or indirect and
sustained over time (Gresswell 1999). The cause of direct fire-related
fish mortalities has not been clearly established (Gresswell 1999).
Fatalities are most likely during intense fires in small, headwater
streams with low flows (less insulation and less water for dilution).
In these situations, water temperatures can become elevated or changes
in pH may cause immediate death (Cushing and Olson 1963). Spencer and
Hauer (1991) documented 40-fold increases in ammonium concentrations
during an intense fire in Montana. Ammonia is very toxic to fish
(Wetzel 1975). The inadvertent dropping of fire retardant in streams is
another source of direct mortality during fires (J. Monzingo, U.S.
Forest Service, Gila National Forest, in litt. 2003e).
Indirect effects of fire include ash and debris flows, increases in
water temperature, increased nutrient inputs, and sedimentation
(Swanston 1991; Bozek and Young 1994; Gresswell 1999). Ash and debris
flows can cause mortality months after fires occur when barren soils
are eroded during monsoonal rain storms (Bozek and Young 1994; Brown et
al. 2001). Fish suffocate when their gills are coated with fine
particulate matter, they can be physically injured by rocks and debris,
or they can be displaced downstream below impassable barriers into
habitat occupied by nonnative trout. Ash and debris flows or severe
flash flooding can also decimate aquatic invertebrate populations that
the fish depend on for food (Molles 1985; Rinne 1996; Lytle 2000). In
larger streams, refugia are typically available where fish can
withstand the short-term adverse conditions; small headwater streams
are usually more confined, concentrating the force of water and debris
(Pearsons et al. 1992; Brown et al. 2001).
Increases in water temperature occur when the riparian canopy is
eliminated by fire and the stream is directly exposed to sunlight.
After fires in Yellowstone National Park, Minshall et al. (1997)
reported that maximum water temperatures were significantly higher in
headwater streams affected by fire than temperatures in reference
(unburned) streams; these maximum temperatures often exceeded tolerance
levels of salmonids. Warm water is stressful for salmonids and can lead
to increases in disease and lowered reproductive potential (Bjornn and
Reiser 1991). Salmonids need clean, loose gravel for spawning sites
(Bjornn and Reiser 1991). Ash and fine particulate matter created by
fire can fill the interstitial spaces between gravel particles and
eliminate spawning habitat or, depending on the timing, suffocate eggs
that are in the gravel. Increases in water temperature and
sedimentation can also impact aquatic invertebrates, changing species
composition and reducing population numbers (Minshall 1984; Wiederholm
1984; Roy et al. 2003), consequently affecting the food supply of
trout.
As discussed above, in the ``Timber harvest'' and ``Livestock
grazing'' sections, we have determined that the threats to Gila trout
habitat from livestock grazing and timber harvest have been greatly
reduced over time. It is expected that the livestock management
practices (e.g., exclusion from riparian zones, reduction in numbers,
suspension of grazing in some allotments) that have been implemented
will remain in place (A. Telles, U.S. Forest Service, Gila National
Forest, in litt. 2003c). Additionally, the Forest Service will continue
to consider the effects of grazing on Gila trout under section 7 of the
Act. Presently, 9 of the 10 streams that contain Gila trout occur in
the Aldo Leopold Wilderness Area or the Gila Wilderness within the Gila
National Forest, New Mexico. Timber harvest, roads, and mechanized
vehicles are not allowed in wilderness areas, providing further
protection to the habitat of Gila trout. Dispersed recreation does
occur in wilderness areas but because of the inaccessibility of most of
the streams (not near roads, hiking or backpacking is required),
dispersed recreation has very little impact on the habitat. By
practice, the NMDGF and AGFD do not stock nonnative trout within
wilderness areas or above any barrier that protects a population of
Gila trout. The NMDGF has not stocked nonnative fish in wilderness
areas for more than 20 years (Mike Sloan, NMDGF, pers. comm. 2004).
AGFD seasonally stock the East Verde River, within 3 miles of Dude
Creek, with rainbow trout. Dude Creek has one manmade and at least one
natural barrier separating it from the East Verde River (K. Young,
AGFD, pers. comm. 2006). Downlisting of the Gila trout with the special
4(d) rule will allow AGFD to stock Gila trout into the East Verde River
instead of rainbow trout (K. Young, AGFD, pers. comm. 2006). Rainbow
trout have not been stocked into the Blue River (Raspberry is a
tributary) since 1990 (K. Young, AGFD, pers. comm. 2006).
High-severity forest fires remain a threat to isolated populations
because natural repopulation is not possible. However, populations have
been reestablished after forest fires (Main Diamond and South Diamond
creeks), there is an Emergency Evacuation Plan (Service 2004) that
outlines procedures to be taken in case of a high-severity forest fire,
and most populations are sufficiently disjunct (e.g., separated by
mountain ridges), thereby ensuring that one fire would not affect all
populations simultaneously. Additionally, as discussed in this rule,
fires have

[[Page 40667]]

occurred in recent times in many areas occupied by Gila trout. Thus,
the risk of fire in these areas, especially one that would affect all
populations, is reduced due to an overall reduction in fuel loads.
Populations may still be extirpated because of forest fires, but
through management activities (rescue of fish, reestablishment of
populations, hatchery management) populations can be, and have been,
reestablished successfully once the habitat recovers.

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

All stream reaches that contain Gila trout have been closed to
sport fishing since the fish was listed in 1967. Main Diamond Creek was
closed to angling in the 1930s for the protection of an undescribed
fish species, later identified as Gila trout (Dave Propst, NMDGF, pers.
comm. 2006). While some illegal fishing may take place, we believe that
the amount of take is small. These are remote high-elevation streams
located away from roads and difficult to access. NMDGF usually visits
the recovery streams annually and has found limited evidence of illegal
fishing activity (e.g., fishing tackle has been found on a few
occasions). Also, because NMDGF makes periodic visits to these streams,
we believe their possible presence at unpredictable times serves as a
deterrent to illegal angling activities.
The special rule (see ``Description of Special Rule'' section
below) being finalized with this reclassification will enable NMDGF and
the AGFD to promulgate special regulations allowing recreational
fishing of Gila trout in specified waters, not including the four
relict populations identified in Table 1 above. Any changes to the
recreational fishing regulations will be made by the States in
collaboration with the Service. Management as a recreational species
will be conducted similar to Apache trout, with angling allowed only in
selected waters. Recreational management for Gila trout will be
consistent with the goals of the Recovery Plan for the species (Service
2003). It is anticipated that implementation of the special rule will
benefit the Gila trout by providing a means whereby Gila trout excess
to recovery needs may be placed in non-recovery streams, thereby
avoiding a choice between potential overcrowding in the designated
recovery streams or euthanizing of excess fish. Additionally, the
special rule contributes to the conservation of the Gila trout through:
(1) Eligibility for Federal sport fishing funds; (2) increase in the
number of wild populations; (3) enhanced ability to monitor populations
(e.g., creel surveys) for use in future management strategies; and (4)
creation of goodwill and support in the local community. Each of these
topics is discussed in detail in the ``Description of Special Rule''
section below.
A few Gila trout are removed from the wild for propagation, and
some are taken for scientific or educational purposes, but the take is
small and controlled through Federal and State permitting. Federal and
State permitting will continue. Because of the remoteness of current
and proposed recovery streams, the special regulations that will be
imposed on angling, and the small amount of Gila trout collected for
scientific and educational purposes, we determine that overutilization
for commercial, recreational, scientific, or educational purposes is
not a threat to Gila trout.

C. Disease or Predation

The carrier of bacterial kidney disease (BKD) is known to occur in
trout in the upper West Fork drainage. The carrier, a bacterium
(Renibacterium salmoninarum), occurs in very low amounts in brown trout
populations in the upper West Fork Gila River drainage and in the
Whiskey Creek population of Gila trout. The bacterium was also detected
in rainbow x Gila trout hybrid populations in Iron, McKenna, and White
creeks. Although the carrier bacterium is present, there were no signs
of BKD in any Gila trout populations (Service 2003). Trout populations
in the Mogollon Creek drainage, McKnight Creek, and Spruce Creek tested
negative for BKD.
Whirling disease (WD) was first detected in Pennsylvania in 1956,
and was transmitted here from fish brought from Europe (Thompson et al.
1995). Myxobolus cerebralis is a parasite that penetrates through the
skin or digestive tract of young fish and migrates to the spinal
cartilage, where it multiplies very rapidly, putting pressure on the
organ of equilibrium. This causes the fish to swim erratically (whirl)
and have difficulty feeding and avoiding predators. In severe
infections, the disease can cause high rates of mortality in young-of-
the-year fish. Water temperature, fish species and age, and dose of
exposure are critical factors influencing whether infection will occur
and its severity (Hedrick et al. 1999). Fish that survive until the
cartilage hardens to bone can live a normal life span, but have
skeletal deformities. Once a fish reaches 3 to 4 inches in length,
cartilage forms into bone, and the fish is no longer susceptible to
effects from whirling disease. Fish can reproduce without passing the
parasite to their offspring; however, when an infected fish dies, many
thousands to millions of the parasite spores are released into the
water. The spores can withstand freezing, desiccation, and passage
through the gut of mallard ducks, and they can survive in a stream for
many years (El-Matbouli and Hoffmann 1991). Eventually, the spore is
ingested by its alternate host, the common aquatic worm, Tubifex
tubifex. After about 3.5 months in the gut of the worms, the spores
transform into a Triactinomyon (TAM). The TAMs leave the worm and
attach to the fish, or they are ingested when the fish eats the worm.
The spores are easily transported by animals, birds, and humans.
Salmonids native to the United States did not evolve with WD.
Consequently, most native species have little or no natural resistance.
Colorado River cutthroat trout and rainbow trout are very susceptible
to the disease, with 85 percent mortality within 4 months of exposure
to ambient levels of infectivity in the Colorado River (Thompson et al.
1999). Brown trout, native to Europe, evolved with M. cerebralis, and
they become infected but rarely suffer clinical disease. At the study
site on the Colorado River, brown trout thrive, but there has been
little survival beyond 1 year of age of rainbow trout since 1992
(Thompson et al. 1999). Gila trout are also vulnerable to WD (D.
Shroufe, Arizona Game and Fish Department, in litt. 2003a)
There have been no documented cases of WD in the Gila River
drainage in New Mexico or Arizona. Wild and hatchery populations of
Gila trout tested have been negative for WD (Service 2003). Although WD
is a potential threat to Gila trout, high infection rates would
probably only occur where water temperatures are relatively warm and
where T. tubifex is abundant. T. tubifex is the secondary host for the
parasite; when T. tubifex numbers are low, the number of TAMs produced
will be low, and consequently, the infection rate of Gila trout will be
low. T. tubifiex is a ubiquitous aquatic oligochaete (worm); however,
it is most abundant in degraded aquatic habitats, particularly in areas
with high sedimentation, warm water temperatures, and low dissolved
oxygen. In clear coldwater streams (typical Gila trout habitat), it is
present but seldom abundant. Infection rate is low at temperatures less
than 10 [deg]C (50 [deg]F) (Thompson et al. 1999).
We determine that BKD is not a likely threat to the 4 original pure
populations nor to the 11 replicated populations because of its limited
distribution, low occurrence within trout populations,

[[Page 40668]]

and lack of any clinical evidence of the disease in Gila trout.
Likewise, we determine that WD is not a likely threat to Gila trout
because most Gila trout are located in high-elevation headwater streams
that typically have cold water and low levels of sedimentation, which
limit T. tubifex populations and infection rates from TAMs. T. tubifex
has never been detected in benthic samples collected. Although Gila
trout may be susceptible to infection, there has not been a documented
occurrence of WD in a wild Gila trout population. Mora National Fish
Hatchery and Technology Center, where Gila trout have been held, has
tested negative for WD. In addition, NMDGF and AGFD are educating the
public about how to prevent the spread of WD (e.g., through educational
brochures and information provided with fishing regulations). In
summary, no hatchery that stocks Gila trout has a history of whirling
disease. In such hatcheries, we control the stocking, source fish, and
fish health testing. Further, there will be no stocking of trout in
private waters in proximity to Gila trout. Therefore, it is unlikely
that Gila trout populations would be exposed to whirling disease.
Predation of Gila trout by brown trout has been a serious problem,
and continues to be a problem for fish below stream barriers. Brown
trout, a nonnative salmonid, prey on Gila trout and are able to
severely depress Gila trout populations. Predation threats have been
addressed by chemically removing all nonnative fish and reintroducing
only native species. The specific locations and timing of the potential
use of chemicals in any future stream restoration projects would be
made by the States, in coordination with the Gila Trout Recovery Team,
and with the approval of their State Game Commissions. Additionally,
the Gila Trout Recovery Plan provides a list of potential stream
reaches that may be used for recovery purposes. Physical stream
barriers, either natural waterfalls or constructed waterfalls (e.g.,
either composite concrete/rock or basket-type gabion) built by
cooperating agencies, prevent brown trout from moving upstream and
preying on Gila trout. Barrier failure is generally not considered a
threat to existing Gila trout populations in New Mexico because most
existing barriers are natural waterfalls. However, human-made barriers
exist on lower Little Creek, McKnight Creek, and Black Canyon. Failure
of human-made barriers would most likely result from catastrophic
flooding and include scouring around barriers, undercutting, or
complete removal. Brown trout and other nonnative species downstream
from these barriers remain a threat.
The threat of predation by brown trout has been reduced by
eliminating brown trout from streams with Gila trout populations, and
by creating barriers that prevent the upstream dispersal of brown trout
into areas occupied by Gila trout. Field monitoring by the Service,
Forest Service, AGFD, and the NMDGF of Gila trout provides a means to
detect the introduction of brown trout into a Gila trout population,
and, once detected, the nonnatives are removed (Service 2004). Each
population is monitored at least once every 3 years. Monitoring may
occur more often depending upon the situation, including additional
surveys due to the occurrence of wildfire. Annual monitoring using
electrofishing is not undertaken due to potential sampling impacts from
electrofishing. The Emergency Evacuation Plan provides further
information on the procedures for detecting and addressing the threat
of nonnatives (Service 2004).

D. The Inadequacy of Existing Regulatory Mechanisms

Before the Gila trout was federally listed as endangered (1967),
the species was protected by New Mexico. NMDGF had closed angling to
all streams known to contain pure populations of Gila trout. Upon being
listed under the Act, the Gila trout immediately benefited from a
Federal regulatory framework that provided protection and enhancement
of the populations in three ways. First, take was prohibited. Take is
defined under the Act to include killing, harassing, harming, pursuing,
hunting, shooting, wounding, trapping, capturing, or collecting
individuals, or attempting to do any of these things. Habitat
destruction or degradation is also prohibited if such activities harm
individuals of the species. Second, section 7 of the Act requires that
Federal agencies consult with the Service to ensure that actions they
carry out, fund, or authorize will not likely jeopardize the continued
existence of the species or adversely modify its habitat. Third, once a
species is listed, the Service is required to complete a recovery plan
and make timely revisions, if needed. Thus, listing the species
provided recognition, protection, and prohibitions against certain
practices (such as take), facilitated habitat protection, and
stimulated recovery actions.
Subsequent to the Federal listing action, the States of New Mexico
and Arizona officially recognized the declining status of the species.
In 1988, Arizona designated the Gila trout as an endangered species,
which includes species that are known or suspected to have been
extirpated from Arizona but that still exist elsewhere. New Mexico
designated the Gila trout as an endangered species (Group 1) on January
24, 1975 (NM State Game Commission Regulation No. 663) under authority
of the Wildlife Conservation Act. Group 1 species are those whose
prospects of survival or recruitment in New Mexico are in jeopardy. The
designation provides the protection of the New Mexico Wildlife
Conservation Act (Sections 17-2-37 through 17-2-18, NMSA 1978) and
prohibits taking of such species except under a scientific collecting
permit. In 1989, New Mexico downlisted Gila trout to threatened in
response to a petition to downlist Gila trout in the ESA. Although the
Service did not proceed to downlist the species at that time, the State
went forward with the downlisting. New Mexico also has a limited
ability to protect the species' habitat through the Habitat Protection
Act (Sections 17-3-1 through 17-3-11) through water pollution
legislation, and tangentially through a provision that makes it illegal
to dewater areas used by game fish (Section 17-1-14). Take of Gila
trout in Arizona is prohibited through State statute (Arizona Revised
Statute Title 17) and Commission Order (Commission Order 40). With the
promulgation of the special rule, we expect that the States of Arizona
and New Mexico will likely adopt regulations to allow for recreational
fishing as described in the ``Description of Special Rule'' section
below.
We determine that because of the protection that would be provided
from Federal listing as a threatened species, along with the special
rule, State regulatory protection, and habitat protection provided by
the National Forests, there are adequate regulatory mechanisms to
protect and enhance Gila trout populations and their habitat. Many of
these protective regulations, conservation measures, and recovery
actions have substantially improved the status of the Gila trout.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

When the Gila trout was listed as endangered, the most important
reason for the species' decline was hybridization and competition with
and/or predation by nonnative salmonids (52 FR 37424). Uncontrolled
angling depleted some populations of Gila trout, which in turn
encouraged stocking of hatchery-raised, nonnative species (Miller 1950;
Propst 1994). Due to declining native fish populations, the

[[Page 40669]]

NMDGF propagated and stocked Gila trout, rainbow trout, cutthroat
trout, and brown trout during the early 1900s to improve angler
success. Gila trout were propagated from 1923 to 1935 at the Jenks
Cabin Hatchery in the Gila Wilderness, and through 1947 at the Glenwood
Hatchery, but these programs were abandoned because of the hatcheries'
poor accessibility and low productivity (Service 1984). After early
stocking programs were discontinued, the nonnative trout species
persisted and seriously threatened the genetic purity and survival of
the few remaining populations of Gila trout. Recent efforts to recover
the species have included eliminating nonnative salmonids from the
species' historic habitat through piscicide (fish-killing), mechanical
removal, and construction of waterfall barriers to prevent nonnative
reinvasion. Currently, 12 viable populations of Gila trout exist in the
absence of nonnative salmonids.
We have determined that the threats posed by nonnative fish are
reduced because nonnative trout are not present in the streams with
original pure or replicated populations of Gila trout. Barriers are
present to prevent nonnative trout from dispersing into areas occupied
by pure Gila trout populations. Drought, wildfire, and floods remain as
threats. However, conditions are monitored, and fish can be rescued
from streams threatened by drying, fires, floods, or barrier failure,
if necessary (Service 2004). As explained in the Emergency Evacuation
Plan, these remote areas may be accessed through helicopter or use of
horses and mules, depending upon the urgency of the situation. Flooding
that occurs in an undisturbed watershed is not considered a threat to
Gila trout. However, flooding that occurs after a severe fire is a
threat. In a multi-agency effort, Forest Service personnel monitor
fires and the potential for flooding in coordination with NMDGF and
Service personnel, and then a decision is made whether to rescue fish
from streams that are in danger of flash floods (Service 2004). Rescued
fish may be used in broodstock development, introduced into other
suitable streams, or placed back into their stream of origin once the
habitat conditions are suitable. However, it may take many years for
the habitat to recover to the point that it is again suitable for
trout.

Summary

We believe that reclassifying the Gila trout from endangered to
threatened status with a special rule is consistent with the Act, and
that the special rule will further the conservation and recovery of
this species. See the ``Description of Special Rule'' section below for
an explanation of the conservation benefits of the special rule.
Threatened status is appropriate because the number of populations has
increased from 4 to 12 since recovery efforts began, and all of the
threats affecting the species have been reduced and some have been
eliminated. Additionally, as noted above, the wild populations of Gila
trout were estimated to be fewer than 10,000 fish greater than age 1 in
1992. In 2001, almost 10 years later, the population in New Mexico had
increased significantly and was estimated to be 37,000 fish (Brown et
al. 2001). The four remnant, genetically pure, populations are
protected and replicated in 109 km (67 mi) of stream, and each
replicate is geographically separate from its remnant population,
thereby exceeding the mileage recommended in the Recovery Plan. The
Service recently completed the replication of the Whiskey Creek lineage
into Langstroth Canyon on June 21, 2006. An Emergency Evacuation Plan
was developed and has been implemented in 2002 and 2003 (Service 2004),
and will continue to be implemented as necessary. A copy of the
Emergency Evacuation Plan is available by contacting the New Mexico
Ecological Services Field Office (see ADDRESSES section). We have
determined that the Gila trout is no longer in danger of extinction
throughout all or a significant portion of its range and therefore no
longer meets the Act's definition of endangered.
Threatened status is appropriate for the Gila trout because
although the major threats have been reduced by recovery efforts and
its status has improved, threats to the species still exist. Nonnative
salmonids, which were the major threat to the species, do not occur in
the 13 Gila trout recovery streams. We will continue to work with the
States to manage nonnative salmonids. Current State and Federal
regulations prohibit the take of Gila trout and few Gila trout are
taken for scientific or educational purposes, in accordance with State
and Federal permits under section 10(a)(1)(A) of the Act. State and
Federal regulations governing take will continue after downlisting
because the special rule prohibits take, except for take related to
recreational fishing activities in accordance with State law. Threats
due to natural disasters remain, but are mitigated by the Emergency
Evacuation Plan that addresses wildfire- and drought-related impacts
and discovery of nonnative salmonid invasions (Service 2004) (see
``Recovery Plans and Accomplishments'' section for a discussion of past
successes). Therefore, we believe that given continued careful
management, reclassification to a threatened status is appropriate.

Description of Special Rule

While the Gila trout was listed as endangered, the prohibitions
described in section 9(a)(1) of the Act applied. Upon reclassification
to threatened status, we have the opportunity to use the special
regulations provisions of section 4(d) of the Act. When we establish a
special regulation (alternatively known as a special rule), the general
prohibitions in 50 CFR 17.31 for threatened species do not apply to the
subject species, and the special rule contains all the prohibitions and
exceptions that do apply. Typically, such special rules incorporate
some of the prohibitions contained in 50 CFR 17.31, with exceptions for
certain activities.
In 1978, we finalized regulations applying most of the take
prohibition provisions to threatened wildlife (50 CFR 17.31). These
procedures were established on April 28, 1978 (43 FR 18181), and
amended on May 31, 1979 (44 FR 31580) and on March 4, 2005 (70 FR
10493). Reclassifying the species will have no effect on the
regulations regarding protection and recovery of Gila trout, except for
take related to recreational fishing as provided in the special rule.
Beginning on the effective date of this reclassification rule, the
special rule will enable the States of Arizona and New Mexico to
promulgate regulations to allow recreational fishing for Gila trout;
however, actual angling for Gila trout will not be allowed until those
State regulations are in effect.
The special rule will apply to Gila trout found in New Mexico and
Arizona and will allow recreational fishing of Gila trout in specified
waters, not including the four remnant populations identified in Table
1 above. As noted elsewhere, changes to the recreational fishing
regulations will be made by the States in collaboration with the
Service. Management as a recreational species will be conducted similar
to Apache trout and consistent with the goals of the Recovery Plan for
the species (Service 2003). For the reasons explained herein, it is no
longer necessary or advisable for the conservation of the Gila trout to
prohibit take caused by regulated fishing. In general, establishment of
recreational opportunities can be developed in recovery waters that
have stable or increasing numbers of individuals (as measured by
population surveys) and

[[Page 40670]]

where habitat conditions are of sufficient quality to support viable
populations of Gila trout (populations having annual recruitment, size
structure indicating multiple ages, and individuals attaining
sufficient sizes to indicate 3 to 7 years of survival). In addition,
recreational opportunities may be developed in non-recovery waters.
According to NMDGF the process by which a stream is designated a
fishery involves: (1) Carefully evaluating each stream; (2) determining
whether the stream can sustain angling and how much (this evaluates a
suite of different angling pressures); (3) making a recommendation to
designate the stream a fishery; and (4) monitoring to insure there are
no detrimental effects to the population from angling. If monitoring
indicates a negative effect on the conservation of Gila trout, the
fishing regulations can be amended or the fishery can be closed. The
process by which AGFD designates a fishery is very similar and can be
found on the AGFD Web site at http://www.azgfd.gov/inside_azgfd/rulemaking_process.shtml.
The principal effect of the special rule is

to allow take in accordance with fishing regulations enacted by New
Mexico and Arizona. We will collaborate with the States to develop
fishing regulations that are adequate to protect and conserve Gila
trout. We anticipate New Mexico and Arizona will institute special
regulations to allow recreational fishing of Gila trout in certain
waters.
This rule is not an irreversible action on our part. Reclassifying
the Gila trout back to endangered status is possible and may be done
through an emergency rule if a significant risk to the well-being of
the Gila trout is determined to exist, or through a proposed rule
should changes occur that alter the species' status or significantly
increase the threats to its survival. Because changes in status or
increases in threats (e.g., wildland fire effects, nonnative salmonid
invasion, barrier failure, drought) might occur in a number of ways,
criteria that would trigger another reclassification proposal cannot be
specified at this time.
The special 4(d) rule for recreational fishing is based on the best
available science. We anticipate that over time, as a result of
additional studies and as the analyses of monitoring data become
available, some changes to these regulations may be required (e.g.,
closure of areas previously permitted for fishing, or opening of new
areas). Changes to the recreational fishing regulations will be made by
the States in collaboration with the Service. Management of Gila trout
as a recreational species will be consistent with the goals of the
Recovery Plan for the species (Service 2003). These changes could
result in an increase or decrease in restrictions on recreational
fishing as determined by State and Service personnel in collaboration.

Conservation of the Gila Trout

As noted above, a special rule for a threatened species shall be
issued by the Secretary when it is deemed necessary and advisable to
provide for the ``conservation'' of the species. The term conservation,
as defined in section 3(3) of the Act, means to use and the use of all
methods and procedures necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Such methods and procedures
include, but are not limited to, all activities associated with
scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
The authority to take endangered or threatened species to relieve
population pressures is applicable to our recovery efforts for Gila
trout. We currently have active captive propagation of Gila trout at
the Mora National Fish Hatchery and Technology Center, guided by a
genetic broodstock management plan. Within the near future, recovery
augmentation and broodstock management needs for these two lineages
will likely require the production of up to 20,000 fish. Ensuring the
genetic diversity of these 20,000 fish through implementation of the
broodstock management plan will result in the simultaneous production
of about 100,000 excess Gila trout. These excess Gila trout are
produced as a result of the specific controlled propagation techniques
required to ensure the genetic quality of the Gila trout needed for
recovery. Currently, hatchery-reared and rescued Gila trout are stocked
only in streams designated for recovery that are closed to angling. If
the excess Gila trout were to be stocked into the designated recovery
streams, this might cause overcrowding and attendant problems. The
streams designated for recovery are small, high-elevation streams,
which do not support great numbers of fish (i.e., they have a low
carrying capacity). While the numbers of Gila trout stocked into
recovery streams would vary each year, depending on circumstances such
as wildfire, we expect that the number of Gila trout produced would
greatly exceed the carrying capacity of the recovery streams. We
believe that placing excess Gila trout in streams (e.g., lower West
Fork Gila River downstream of the falls near White Creek confluence,
and throughout the Middle Fork Gila River) and lakes (e.g., Bill Evans
Lake, Lake Roberts, Snow Lake) that are currently not identified for
use as part of the long-term Gila trout recovery strategy would avoid
any potential overcrowding in the designated recovery streams. Without
a 4(d) rule in place that allows for recreational fishing, Gila trout
could not be stocked in nonrecovery streams that are open to angling
due to the take prohibitions of the Act that apply to endangered and
threatened species. In summary, this final 4(d) rule for Gila trout
will avoid overcrowding in the designated recovery streams by allowing
excess Gila trout to be placed in streams open to angling. If excess
Gila trout are not used for stocking in nonrecovery streams, we would
be required to euthanize all genetically pure, excess Gila trout
because of limited space and resources to maintain them at captive
propagation facilities.
Below we provide additional reasons why the 4(d) rule provides for
the conservation of the Gila trout beyond that of relieving potential
population pressures due to overcrowding. Specifically, this special
4(d) rule contributes to the conservation of the Gila trout through:
(1) Providing eligibility for Federal sport fishing funds, (2)
increasing the number of wild populations, (3) enhancing the ability to
monitor populations, and (4) creating goodwill and support in the local
community. Each of these topics is discussed in detail below.

Expansion of the Population

There are several benefits to stocking fish in streams and lakes.
First, having Gila trout in additional stream miles and lakes will
increase the overall security of the species. If Gila trout are
introduced into larger, higher order streams that are less subject to
catastrophic events and where refugia are more abundant, these fish are
likely to persist even if a large-scale disturbance, such as fire, were
to occur. Despite these benefits, it is probable that some Gila x
rainbow trout hybrids would be produced and that Gila trout might also
be lost to predation by brown trout; however, the benefits far outweigh
any potential negative aspects of this action. Second, areas directly
below existing barriers could also be targeted for stocking. These
reaches of stream would then act as ``buffers'' between

[[Page 40671]]

pure Gila trout populations and stream reaches contaminated with
nonnative trout.
Finally, if Gila trout were stocked in additional waters, the
angling public would be exposed to, and become more familiar with, Gila
trout's natural beauty and value as a sport fish, thereby increasing
public support for the program. As noted above, there are several lakes
(e.g., Bill Evans Lake, Lake Roberts, Snow Lake) and stream segments
(e.g., lower West Fork Gila River downstream of the falls near White
Creek confluence, and throughout the Middle Fork Gila River) that are
not currently identified in long-term recovery strategies and that
could provide quality angling opportunities for Gila trout. Within
Arizona, Verde River, Oak Creek, Wet Beaver Creek, and West Clear Creek
have potential for developing angling opportunities for Gila trout.
Reservoirs include Watson, Willow, Mingus, and Deadhorse.

Eligibility for Funds

Once a stream or lake occupied by Gila trout is opened to angling,
the trout can be designated as a ``sport fish'' and the potential
funding available to Gila trout restoration projects may increase. For
example, as a sport fish, the Gila trout would be eligible for funding
through the Sport Fish Restoration Program (SFRP) for management
activities, including hatchery production associated with the Gila
trout. In fiscal year 2004, NMDGF received $3,258,275, and AGFD
received $3,556,597, through the SFRP. The specific amount that would
be spent on the Gila trout using these funds would depend on the
priorities of the NMDGF and the AGFD; however, with Gila trout
recognized as a sport fish, the States would have this additional

funding source available for restoration projects (P. Mullane, U.S.
Fish and Wildlife Service, in litt. 2005). In contrast, the amount of
Service money spent on Gila trout in 2004 is estimated at $137,500.
In Arizona, approximately $2.1 million dollars (including matching
dollars) are available to sport fishing projects (L. Riley, ADGF, pers.
comm. 2004). In addition, about $1.7 million dollars are available for
the culture (hatchery production) of sport fish (L. Riley, ADGF, pers.
comm. 2004). With increased hatchery production and establishment of
new populations in additional waters, recovery goals could be reached
sooner and more angling opportunities could be provided to the public.
An increase in the amount of money available for nonnative trout
removal, barrier construction, habitat restoration, and hatchery
production would aid in recovery and delisting of the Gila trout.

Monitoring and Education

Monitoring is critical to the successful conservation of the Gila
trout. We will work closely with the States of New Mexico and Arizona
to develop evaluation and assessment programs to gather population data
(e.g., size of fish caught, number caught and released), data on the
survival of released fish, and angler-related data (e.g., time spent
fishing, streams fished, catch rate, hooking and handling mortality) on
streams and lakes. Our ability to evaluate these data is essential to
the development of management strategies to ensure the long-term
conservation of Gila trout. Using a population viability model that
examined mortality from various sources, Brown et al. (2001) found that
up to a 15 percent angling mortality of adult Gila trout per year had
no effect on population viability. Although models never perfectly
incorporate the complexity of natural systems and are only an
approximation based on many assumptions (Schamberger and O'Neil 1986),
they are useful tools that can be used by managers to improve recovery
strategies. With information gathered from streams and lakes open to
angling, the impact of angling on population dynamics could be tested
directly, leading to better management of the populations, especially
as the species moves closer to recovery.
Education is also critical to the successful conservation of the
Gila trout because once the Gila trout is recovered and delisted, it
will need to be properly managed to maintain adequate populations. We
will work with the States to develop public education programs and
materials on proper handling and release of Gila trout to reduce
hooking and handling mortality in catch-and-release areas, and on
species identification for educational purposes. Educating the public
on the uniqueness of the Gila trout, its limited distributional range,
and its value as one of New Mexico and Arizona's few native trout is
expected to build support for the conservation of the species.

Public Support

As mentioned above, community support is essential to the recovery
of Gila trout. Some members of the public have opposed Gila trout
recovery efforts because of the loss of angling opportunities for
nonnative trout through the renovation of streams (Brooks et al. 2000;
Blue Earth Ecological Consultants 2001). As stated earlier, we believe
that adequate regulatory mechanisms are in place; however, illegal
angling has occurred in streams officially closed to angling (NMDGF
1997a, b), and unauthorized stocking of nonnative salmonids into
streams either currently occupied by Gila trout or proposed for
reintroductions have been documented in recent years (NMDGF 1998;
Brooks et al. 2000). It is likely that because Gila trout evolved in
this ecosystem and are adapted to it, they will produce more stable
populations and a more dependable fishery than nonnative trout (Turner
1986). There is also a demonstrated high public interest in the future
angling opportunities for Gila trout (NMDGF 1997a, b). Therefore, we
believe that the availability of recreational fishing for Gila trout
will increase public support for the conservation and recovery of the
species (NMDGF 1997a).
In the 1996 Policy for Conserving Species Listed or Proposed for
Listing Under the Endangered Species Act While Providing and Enhancing
Recreational Fisheries Opportunities (June 3, 1996; 61 FR 27978), we
note that fishery resources and aquatic ecosystems are integral
components of our heritage and play an important role in the Nation's
social, cultural, and economic well being. Accordingly, and to
implement Executive Order 12962, we are aggressively working to promote
compatibility and reduce conflict between administration of the Act and
recreational fisheries. Carefully regulated recreational fishing is not
likely to impact Gila trout populations, and can promote awareness and
conservation of the species by maintaining public support for
conservation.
In conclusion, Gila trout will continue to be protected under the
Act, but reclassification from endangered to threatened with a special
4(d) rule will allow recreational fishing opportunities to be developed
in recovery streams, provide an outlet for fish excess to recovery
needs, and increase public awareness and appreciation of Gila trout.
Additionally, the 4(d) rule will provide New Mexico and Arizona greater
flexibility in the management of Gila trout, increase the potential
funding for population expansion and habitat restoration, allow for the
expansion and greater security of populations, enhance our ability to
monitor and manage populations, and increase the public's knowledge and
appreciation of this native trout. On the basis of our experience with
Gila trout recovery, we expect an increase in public acceptance and
greater

[[Page 40672]]

opportunity for us to work with local agencies and the public to find
innovative solutions to potential conflicts between endangered species'
conservation and humans. We believe this special rule is consistent
with the conservation of the species and that it will speed recovery of
the Gila trout. Therefore, this special rule is necessary and advisable
to provide for the conservation of the Gila trout.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, and
groups and individuals. The Act provides for possible land acquisition
and cooperation with the States and requires that recovery plans be
developed and implemented for the conservation of the species, unless a
finding is made that such a plan will not promote the conservation of
the species. Most of these measures have already been successfully
applied to Gila trout.
Under this rule, the Act will continue to apply to the Gila trout.
However, this rule would change the classification of the Gila trout
from endangered to threatened, and allow New Mexico and Arizona to
promulgate special regulations allowing recreational fishing of Gila
trout in designated streams. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed
above in the Summary of Factors Affecting the Species section, Factor
D, the inadequacy of existing regulatory mechanisms.
Section 7(a) of the Act requires Federal agencies to evaluate
actions they fund, authorize, or carry out with respect to any species
that is listed as endangered or threatened and with respect to its
critical habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of any species listed as endangered
or threatened, or to destroy or adversely modify its critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency must enter into consultation
with us. If a Federal action is likely to jeopardize a species proposed
to be listed as threatened or endangered or destroy or adversely modify
proposed critical habitat, the responsible Federal agency must confer
with us.
It is our policy, published in the Federal Register on July 1, 1994
(59 FR 34272), to identify to the maximum extent practicable at the
time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of the listing on
proposed and ongoing activities within the species' range. We believe
that, based on the best available information, the following actions
are not likely to result in a violation of section 9, provided these
actions are carried out in accordance with existing regulations and
permit requirements:
(1) In accordance with section 9(b)(1) of the Act, the possession,
delivery, or movement, including interstate transport and import into
or export from the United States, involving no commercial activity, of
specimens of this taxon that were collected prior to the listing of
this species (December 28, 1973);
(2) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing management, recreational trail or forest road
development or use, road construction, prescribed burns, timber
harvest, or piscicide application (fish-killing agent)), when such
activities are conducted in accordance with a biological opinion from
us on a proposed Federal action;
(3) Activities that may result in take of Gila trout when the
action is conducted in accordance with a valid permit issued by us
pursuant to section 10 of the Act;
(4) Recreational activities such as sightseeing, hiking, camping,
and hunting in the vicinity of Gila trout populations that do not
destroy or significantly degrade Gila trout habitat as further defined
in the Forest Service and State management strategies for the occupied
areas; and
(5) Angling activities in accordance with authorized fishing
regulations for Gila trout in New Mexico and Arizona.
We believe that the following actions involving Gila trout could
result in a violation of section 9; however, possible violations are
not limited to these actions alone:
(1) Take of Gila trout without a valid permit or other incidental
take authorization issued by us pursuant to section 10 of the Act. Take
includes harassing, harming, pursuing, hunting, shooting, wounding,
killing, trapping, capturing, or collecting, or attempting any of these
actions, except in accordance with applicable State fish and wildlife
conservation laws and regulations;
(2) Possessing, selling, delivering, carrying, transporting, or
shipping illegally taken Gila trout;
(3) Use of piscicides, pesticides, or herbicides that are not in
accordance with a biological opinion issued by us pursuant to section 7
of the Act, or a valid permit or other incidental take authorization
issued by us pursuant to section 10 of the Act;
(4) Intentional introduction of nonnative fish species (e.g.,
rainbow and brown trout) that compete or hybridize with or prey upon
Gila trout;
(5) Destruction or alteration of Gila trout habitat that results in
the destruction or significant degradation of cover, channel stability,
substrate composition, increased turbidity, or temperature that results
in death of or injury to any life history stage of Gila trout through
impairment of the species' essential breeding, foraging, sheltering, or
other essential life functions; and
(6) Destruction or alteration of riparian and adjoining uplands of
waters supporting Gila trout by timber harvest, fire, poor livestock
grazing practices, road development or maintenance, or other activities
that result in the destruction or significant degradation of cover,
channel stability, or substrate composition, or in increased turbidity
or temperature, that results in death of or injury to any life history
stage of Gila trout through impairment of the species' essential
breeding, foraging, sheltering, or other essential life functions.
Questions regarding whether specific activities will constitute a
violation of section 9 of the Act should be directed to the Field
Supervisor of the New Mexico Ecological Services Field Office (see
ADDRESSES section).
Requests for copies of the regulations concerning listed wildlife
or inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Ecological Services, Endangered Species
Permits, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505/
248-6649; facsimile 505/248-6922).

Summary of Changes From the Proposed Rule

The final rule includes two changes from the proposed rule to
clarify some issues that were discussed in the preamble to the proposed
rule but not included in the actual rule language. These clarify that
the four relict populations will not be opened to fishing and any
changes to State recreational fishing regulations will be

[[Page 40673]]

made by the States in collaboration with the Service.

Required Determinations

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

The Office of Management and Budget has approved our information
collection associated with the issuance of permits for the take of Gila
trout, and assigned OMB Control Number 1018-0094, which expires
September 30, 2007. This rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. This rule will not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

We have analyzed this rule making in accordance with the criteria
of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D).
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4 of the Act. A notice
outlining our reasons for this determination was published in the
Federal Register on October 25, 1983 (48 FR 49244).

Section 7 Consultation

The Service is not required to consult on this rule under section
7(a)(2) of the Act. The development of protective regulations for a
threatened species are an inherent part of the section 4 listing
process. The Service must make this determination considering only the
``best scientific and commercial data available.'' A necessary part of
this listing decision is also determining what protective regulations
are ``necessary and advisable to provide for the conservation of [the]
species.'' Determining what prohibitions and authorizations are
necessary to conserve the species, like the listing determination of
whether the species meets the definition of threatened or endangered,
is not a decision that Congress intended to undergo section 7
consultation.

Government-to-Government Relationship With Indian Pueblos and Tribes

In accordance with the Secretarial Order 3206, American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act (June 5, 1997); the President's memorandum of
April 29, 1994, Government-to-Government Relations with Native American
Tribal Governments (59 FR 22951); Executive Order 13175; and the
Department of the Interior's requirement at 512 DM 2, we understand
that we must conduct relations with recognized Federal Indian Pueblos
and Tribes on a Government-to-Government basis. There were no tribal
lands affected by this rulemaking.

References Cited

A complete list of all references cited in this rule is available
upon request from the New Mexico Ecological Services Field Office (see
ADDRESSES section).

Authors

The primary authors of this notice are the New Mexico Ecological
Services Field Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. Amend Sec. 17.11(h) by revising the entry for ``Trout, Gila'' under
``FISHES'' in the List of Endangered and Threatened Wildlife to read as
follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------------ population where Special
Historic range endangered or Status When listed Critical habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Trout, Gila..................... Oncorhynchus gilae. U.S.A. (AZ, NM)... Entire............ T 1,757 NA 17.44(z)

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.44 by adding a new paragraph (z) to read as follows:

Sec. 17.44 Special rules--fishes.

* * * * *
(z) Gila trout (Oncorhynchus gilae).
(1) Except as noted in paragraph (z)(2) of this section, all
prohibitions of 50 CFR 17.31 and exemptions of 50 CFR 17.32 apply to
the Gila trout.
(i) No person may possess, sell, deliver, carry, transport, ship,
import, or export, by any means whatsoever, any such species taken in
violation of this section or in violation of applicable fish and
conservation laws and regulations promulgated by the States of New
Mexico or Arizona.
(ii) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed any offense listed in
paragraph (z)(1)(i) of this section.
(2) In the following instances you may take Gila trout in
accordance with applicable State fish and wildlife conservation laws
and regulations to protect this species in the States of New Mexico or
Arizona:
(i) Fishing activities authorized under New Mexico or Arizona laws
and regulations; and
(ii) Educational purposes, scientific purposes, the enhancement of
propagation or survival of the species, zoological exhibition, and
other

[[Page 40674]]

conservation purposes consistent with the Endangered Species Act.
(3) The four relict populations of Gila trout (Main Diamond Creek,
South Diamond Creek, Spruce Creek, and Whiskey Creek) will not be
opened to fishing.
(4) Any changes to State recreational fishing regulations will be
made by the States in collaboration with the Service.
(5) Any violation of State applicable fish and wildlife
conservation laws or regulations with respect to the taking of this
species is also a violation of the Endangered Species Act of 1973, as
amended.

Dated: July 6, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6215 Filed 7-17-06; 8:45 am]

BILLING CODE 4310-55-P