[Federal Register: October 31, 2002 (Volume 67, Number 211)]
[Rules and Regulations]               
[Page 66344-66346]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH73

Endangered and Threatened Wildlife and Plants; Listing the 
Sacramento Splittail as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; reopening of comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the comment period for the

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final rule on the Sacramento splittail (Pogonichthys macrolepidotus). 
Comments previously submitted need not be resubmitted as they will be 
incorporated into the public record as part of this reopened comment 
period, and will be fully considered in the final rule. We are 
reopening the comment period to solicit comments on the revised 
statistical analysis we have done to examine the available splittail 
abundance data, as described in our March 21, 2002 document, which also 
reopened the comment period to seek comments on this analysis. The 
statistical analyses published on January 12, 2001, May 8, 2001, and 
August 17, 2001 have been superseded by the March 21, 2002 analysis, on 
which we are now seeking additional comments.
    In addition, we invite any additional comments on the status of the 
species and the factors affecting the species, as described in our 
prior documents of January 12, 2001, May 8, 2001, August 17, 2001, and 
March 21, 2002. Lastly, we point out that our March 21, 2002, document 
stated a comment period extending to October 15, 2002; this was revised 
to May 20, 2002, in a correction document published April 1, 2002.

DATES: We will accept public comments until December 2, 2002.

ADDRESSES: Comment Submission: If you wish to comment, you may submit 
your comments and materials concerning this proposal by any one of 
several methods:
    1. You may submit written comments and information by mail to the 
Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825.
    2. You may hand-deliver comments to our Sacramento Fish and 
Wildlife Office, during normal business hours, at the address given 
    3. You may send comments by electronic mail (e-mail) to: 
fw1splittail@fws.gov. See the Public Comments Solicited section below 
for file format and other information about electronic filing.
    Comments and materials received will be available for inspection, 
by appointment, during normal business hours at the address under (1) 

FOR FURTHER INFORMATION CONTACT: For general information, Susan Moore, 
at the above address (telephone 916/414-6600; facsimile 916/414-6713).



    The Sacramento splittail (hereafter splittail) represents the only 
extant species in its genus in North America. For a detailed 
description of the species, see the Recovery Plan for the Sacramento/
San Joaquin Delta Native Fishes (Service 1996), references within that 
plan, and Moyle et al. (2001 in prep.).
    Splittail are endemic to certain waterways in California's Central 
Valley, where they were once widely distributed (Moyle 1976, Moyle 
2002). Splittail presently occur in Suisun Bay, Suisun Marsh, the San 
Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary), the 
Estuary's tributaries (primarily the Sacramento and San Joaquin 
rivers), the Cosumnes River, the Napa River and Marsh, and the Petaluma 
River and Marsh. The splittail no longer occurs throughout a 
significant portion of its former range.
    Pursuant to the Endangered Species Act of 1973, as amended (Act), 
the splittail was listed as a threatened species on February 8, 1999 
(64 FR 5963). In this previous listing determination, we found that 
changes in water flows and water quality resulting from export of water 
from the Sacramento and San Joaquin rivers, periodic prolonged drought, 
loss of shallow water habitat, and the effects of agricultural and 
industrial pollutants were significant factors in the splittail's 
    Subsequent to the publication of the final rule, plaintiffs in the 
cases San Luis & Delta-Mendota Water Authority v. Anne Badgley, et al. 
and State Water Contractors, et al. v. Michael Spear, et al. commenced 
action in Federal Eastern District Court of California, challenging the 
listing of the splittail as threatened, alleging various violations of 
the Act and of the Administrative Procedure Act (5 U.S.C 551 et seq.). 
We, as directed by the court, and pursuant to the Act, provided notice 
of the opening of a comment period regarding the threatened status for 
the splittail, from January 12, 2001, to February 12, 2001 (66 FR 
2828). In addition, we reopened the comment period on three additional 
occasions; from May 8, 2001, to June 7, 2001 (66 FR 23181); from August 
17, 2001, to October 1, 2001 (66 FR 43145); and from March 21, 2002, to 
October 15, 2002 (67 FR 13095). The October 15, 2002, comment period 
closing date stated in 67 FR 13095 was corrected to May 20, 2002, via a 
correction document published on April 1, 2002 (67 FR 15337).
    We are now reopening the comment period to solicit comments on the 
factors affecting the splittail (as first solicited in 66 FR 2828) and 
on the revised statistical analysis used to analyze the abundance data 
available for splittail, and to seek public comment on the status of 
the species (as solicited in 67 FR 13095). Upon the close of this 
comment period, we will make our determination whether the splittail 
warrants the continued protection of the Act.
    The approach currently used by us to analyze the best 
scientifically and commercially available splittail abundance data 
differs from methods employed previously. In the February 8, 1999, 
final rule and the January 12, 2001, and May 8, 2001, reopenings of the 
comment periods, we relied primarily on the unstratified Mann-Whitney 
U-test approach utilized by Meng and Moyle (1995), first published in 
the Transactions of the American Fisheries Society. See 66 FR 2828 for 
a complete description of the Meng and Moyle (1995) method.
    In the August 17, 2001, reopening of the comment period, we 
employed permutation-based exact calculations of p-values for 
stratified Mann-Whitney U-tests to analyze data derived from the Meng 
and Moyle (1995), Sommer et al. (1997), and California Department of 
Fish and Game (CDFG) methodologies. We also employed a polynomial 
regression model and a crude exponential decay analysis in the August 
17, 2001, comment period. See 66 FR 2828 for a complete description of 
the permutation-based exact calculations of p-values for stratified 
Mann-Whitney U-tests method.
    In the March 21, 2002, reopening, we employed a statistical 
analysis of an abundance index and Multiple Linear Regression (MLR) 
model jointly developed and submitted by the CDFG (Rempel 2001) and the 
United States Bureau of Reclamation (USBR) (Michny 2001). The model, 
hereafter referred to as the CDFG/USBR MLR model and described in 
detail in 67 FR 13095, was used to analyze data from: (1) CDFG's Fall 
Midwater Trawl (Fall MWT) survey; (2) CDFG's San Francisco Bay Midwater 
Trawl (Bay Study MW); (3) CDFG's San Francisco Bay Otter Trawl (Bay 
Study OT); (4) the University of California (UC) Davis Suisun Marsh 
Otter Trawl (Suisun Marsh OT); (5) our Chipps Island Trawl survey 
(Chipps Is. Trawl); (6) fish salvage operations (which repatriate fish 
taken from water intake screens) at the CVP Tracy Fish Collection 
Facility (CVP); and (7) fish salvage at the State Water Project (SWP) 
Skinner Delta Fish Protective Facility in the south Delta. See Moyle et 
al. 2001 in prep.; Meng and Moyle 1995; and Sommer et al. 1997, for 
descriptions of surveys.
    The CDFG/USBR MLR model's four highest, statistically significant 
(at traditional levels) probabilities of a

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nonzero downward splittail population trend are exhibited by the Suisun 
Marsh survey (Age-0 and adult) and in the data collected via fish 
salvage operations at the SWP (Age-1, and Age-2 and greater). The 
decline evident in the Chipps Island Trawl (Age-2 and greater) is 
nearly-statistically significant at traditional levels (94.3 percent 
probability). Two additional probabilities of a nonzero downward 
splittail population trend are evident at the 80 percent probability 
level; Chipps Island Trawl (Age-1) and SWP salvage (Age-0). See 67 FR 
13095 for a complete description of the CDFG/USBR MLR model and our 
statistical analysis of its results.
    We believe that all of the abundance monitoring data for splittail 
have methodological weaknesses of one sort or another; none of the 
surveys were designed specifically to rigorously estimate splittail 
population numbers. However, we believe that these existing data sets 
constitute the best available scientific information for the species.

Public Comments Solicited

    We will accept written comments during this reopened comment 
period, and comments should be submitted to the Sacramento Fish and 
Wildlife Office as found in the ADDRESSES section.
    You may send comments by electronic mail (e-mail) to: 
fw1splittail@fws.gov. If you submit comments by e-mail, please submit 
them as an ASCII file and avoid the use of special characters and any 
form of encryption. Please also include ``Attn: [RIN AH73]'' and return 
address in your e-mail message. If you do not receive a confirmation 
from the system that we have received your e-mail message, contact us 
directly by calling our Sacramento Fish and Wildlife Office at 
telephone number 916/414-6600, during normal business hours.


    The primary author of this notice is Jason Douglas (see ADDRESSES 


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: October 21, 2002.
Marshall P. Jones Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-27648 Filed 10-30-02; 8:45 am]