[Federal Register Volume 76, Number 70 (Tuesday, April 12, 2011)]
[Proposed Rules]
[Pages 20302-20304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8736]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 110328226-1228-02]
RIN 0648-XA272


Listing Endangered and Threatened Species; 90-Day Finding on a 
Petition To List Chinook Salmon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of 90-day petition finding; request for information.

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SUMMARY: We, NMFS, announce a 90-day finding for a petition to list the 
Chinook salmon (Oncorhynchus tshawytscha) in the Upper Klamath and 
Trinity Rivers Basin as threatened or endangered and designate critical 
habitat under the Endangered Species Act (ESA). We find that the 
petition presents substantial scientific information indicating the 
petitioned actions may be warranted. We will conduct a status review of 
the Chinook salmon in the Upper Klamath and Trinity Rivers Basin to 
determine if the petitioned actions are warranted. To ensure that the 
review is comprehensive, we solicit information pertaining to this 
species and its habitat from all interested parties.

DATES: Information related to this petition finding must be received by 
June 13, 2011.

ADDRESSES: You may submit comments, identified by RIN 0648-XA272, by 
any of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http//www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail or hand-delivery: Assistant Regional Administrator, 
Protected Resources Division, Attn: Rosalie del Rosario, National 
Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov shortly 
after receipt. All personal identifying information (e.g., name, 
address, etc.) voluntarily submitted by the commenter may be publically 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. We will accept anonymous 
comments (if you wish to remain anonymous enter N/A in the required 
fields). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. If 
your submission is made via hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this information from public review to the extent consistent 
with applicable law. However, we cannot guarantee that we will be able 
to do so. The petition and other pertinent information are also 
available electronically at the NMFS Southwest Region Web site at 
http://swr.nmfs.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Rosalie del Rosario, NMFS, Southwest 
Region Office, (562) 980-4085; or Lisa Manning, NMFS, Office of 
Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On January 28, 2011, the Secretary of Commerce received a petition 
from the Center for Biological Diversity, Oregon Wild, Environmental 
Protection Information Center, and The Larch Company (hereafter, the 
Petitioners), requesting that we list Chinook salmon (Oncorhynchus 
tshawytscha) in the Upper Klamath Basin under the Endangered Species 
Act (ESA) (16 U.S.C. 1531 et seq.). In their petition, the Petitioners 
used various phrases as well as ``Upper Klamath Basin'' to describe the 
area in which they are requesting that we list Chinook salmon. Because 
their request is generally made in reference to the Upper Klamath and 
Trinity Rivers evolutionarily significant unit (ESU) of Chinook salmon, 
we will use the description of the currently defined ESU to describe 
the area in which they are requesting that we list Chinook salmon, and 
we will hereinafter refer to that area as the Upper Klamath and Trinity 
Rivers Basin. NMFS described all Klamath River Basin populations of 
Chinook salmon from the Trinity River and Klamath River upstream from 
the confluence of the Trinity River as the Upper Klamath and Trinity 
Rivers ESU, which includes both spring-run and fall-run fish (63 FR 
11487; March 9, 1998).
    The Petitioners recommend three alternatives for listing Chinook 
salmon: (1) List spring-run only as a separate ESU; (2) list spring-run 
as a distinct population segment (DPS) within the Upper Klamath and 
Trinity Rivers ESU; or (3) list the currently defined Upper Klamath and 
Trinity Rivers ESU, which includes both spring-run and fall-run. The 
petitioners also request designation of critical habitat for the 
Chinook salmon populations that are found to warrant listing.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires 
that we make a finding as to whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating the petitioned action may be warranted. ESA 
implementing regulations define substantial information as the amount 
of information that would lead a reasonable person to believe the 
measure proposed in the petition may be warranted (50 CFR 
424.14(b)(1)). In determining whether substantial information exists 
for a petition to list a species, we take into account several factors, 
including information submitted with, and referenced in, the petition 
and all other information readily available in our files. To the 
maximum extent practicable, this finding is to be made within 90 days 
of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the 
finding is to be published promptly in the Federal Register. If we find 
that a petition presents substantial information indicating that the 
requested action may be warranted, section 4(b)(3)(A) of the ESA (16 
U.S.C. 1533(b)(3)(A)) requires the Secretary of Commerce (Secretary) to 
conduct a status review of the species. Section 4(b)(3)(B) (16 U.S.C. 
1533(b)(3)(B)) requires the Secretary to make a finding as to whether 
or not the petitioned action is warranted within 12 months of receipt 
of the petition (12-month finding). The Secretary has delegated the 
authority for these actions to the NOAA Assistant Administrator for 
Fisheries.
    Under the ESA, a listing determination can address a species, 
subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532(16)). In 
1991, we issued the Policy on Applying the Definition of Species Under 
the Endangered Species Act to Pacific Salmon (ESU Policy; 56 FR 58612; 
November 20, 1991), which explains that Pacific salmon populations will 
be considered a DPS, and hence a ``species'' under the ESA, if it 
represents an ``evolutionarily significant unit'' of the biological 
species. The two criteria for delineating an ESU are: It is 
substantially reproductively isolated from other conspecific 
populations, and it represents an important component in the 
evolutionary legacy of the species. The ESU Policy was used to define 
the Upper Klamath and Trinity Rivers Chinook salmon ESU in 1998 (63 FR

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11482, 11493; March 9, 1998), and we use it exclusively for defining 
distinct population segments of Pacific salmon. In 1996, the U.S. Fish 
and Wildlife Service (USFWS) and NMFS published the Policy Regarding 
the Recognition of Distinct Vertebrate Population Segments Under the 
Endangered Species Act (DPS Policy; 61 FR 4722; February 7, 1996) to 
clarify the interpretation of the phrase ``distinct population 
segment.'' This policy provides two criteria for identifying DPSs: 
Discreteness from other populations and significance to its taxon. In 
announcing this policy, USFWS and NMFS indicated that the ESU Policy 
for Pacific salmon was consistent with the DPS Policy and that NMFS 
would continue to use the ESU Policy for Pacific salmon.
    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range'' (16 U.S.C. 1532(6)). A threatened species is defined as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range'' (16 U.S.C. 1532(20)). Under section 4(a)(1) of the ESA (16 
U.S.C. 1533(a)(1)), a species may be determined to be threatened or 
endangered as a result of any of the following factors: (1) Present or 
threatened destruction, modification, or curtailment of habitat or 
range; (2) over-utilization for commercial, recreational, scientific, 
or educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence. Listing determinations are made 
solely on the basis of the best scientific and commercial data 
available after conducting a review of the status of the species and 
taking into account efforts made by any state or foreign nation to 
protect such species.

Upper Klamath and Trinity Rivers Chinook Salmon ESU

    In 1998, we completed a status review of west coast Chinook salmon 
populations that defined the Upper Klamath and Trinity Rivers Chinook 
salmon ESU as including all spring-run and fall-run populations from 
the Trinity River and the Klamath River upstream from the confluence of 
the Trinity River (NMFS, 1998). Based on the health of the fall-run 
populations within the ESU, we concluded the ESU was not at significant 
risk of extinction nor likely to become endangered in the foreseeable 
future, and therefore, did not warrant listing under the ESA (63 FR 
11482, 11493; March 9, 1998). The Petitioners essentially request NMFS 
to revisit our previous conclusion based on more recent information and 
the current status of this ESU.

Analysis of Petition

    The Petition contains information and arguments in support of 
listing Chinook salmon under the three alternatives recommended by the 
Petitioners. The Petitioners also include information on spring-run and 
fall-run Chinook salmon, including life history and physiology, diet, 
associated fish species, habitat requirements, historic and current 
distribution, and population status and trends.
    Under the first recommended alternative, the Petitioners present 
new genetic evidence to suggest the spring-run Chinook salmon 
populations in the Upper Klamath and Trinity Rivers ESU may qualify as 
a separate ESU from the fall-run populations. They also present 
information indicating the spring-run Chinook salmon may meet the ESU 
criteria: (1) They are substantially reproductively isolated, and (2) 
represent an important component in the evolutionary legacy of the 
species. The Petitioners also argue that the genetic differentiation in 
the Upper Klamath and Trinity Rivers ESU runs is scaled similarly to 
the Central Valley Chinook salmon runs, and that the designation of 
Central Valley spring and fall runs as separate ESUs sets a precedent 
for the Upper Klamath and Trinity Rivers ESU Chinook salmon runs to be 
managed separately.
    Under the second recommended listing alternative, the Petitioners 
present arguments that spring-run Chinook salmon in the Upper Klamath 
and Trinity Rivers ESU meet the two criteria to be considered a DPS: 
Discreteness and significance. As we described above, NMFS' policy is 
to list Pacific salmon stocks, such as Chinook salmon, as an ESU under 
the criteria described in the ESU Policy (56 FR 58612; November 20, 
1991) rather than a DPS under the criteria described in the DPS Policy 
(61 FR 4722; February 7, 1996).
    Under the third recommended listing alternative, the Petitioners 
argue spring-run populations are important to the overall viability of 
the Upper Klamath and Trinity Rivers Chinook salmon ESU and their 
status justifies listing the entire ESU.
    The Petitioners also present substantial information on the status 
of spring-run and fall-run Chinook salmon populations in the Upper 
Klamath and Trinity Rivers Basin. They cite numerous reports describing 
the significant decline and low numbers in the populations of the two 
runs of fish that additionally are increasingly dominated by hatchery 
fall-run Chinook salmon (e.g., Moyle et al. 2008; National Research 
Council 2004). The Petitioners also provide a detailed description and 
an analysis of the five listing factors in support of their contention 
that spring-run or the entire Upper Klamath and Trinity Rivers Chinook 
salmon ESU warrants listing. According to the petition, a history of 
dams, mining, water diversions, habitat degradation, disease, and 
fisheries, among other factors, have played a key role in the decline 
of the populations.

Petition Finding

    Based on the information contained in the petition, which is 
summarized above, and the criteria specified in 50 CFR 424.14(b)(2), we 
find that the petition presents substantial scientific and commercial 
information indicating that the petitioned actions concerning listing 
spring-run Chinook salmon in the Upper Klamath and Trinity Rivers Basin 
as a separate ESU or listing the entire Upper Klamath and Trinity 
Rivers Chinook salmon ESU may be warranted. Accordingly, we will 
convene a biological review team (BRT) to assess the status of Upper 
Klamath and Trinity Rivers Chinook salmon and evaluate the petitioned 
actions. The BRT will: (1) Compile and evaluate biological and 
ecological information necessary to assess whether the spring-run 
component of the currently defined ESU should be a separate ESU, and if 
so, compile and evaluate biological information necessary to assess its 
status; and (2) if the spring-run component does not warrant 
delineation as a separate ESU, it will compile and evaluate biological 
and ecological information necessary to assess the status of the 
currently defined ESU. In addition, the BRT will evaluate Chinook 
salmon hatchery stocks and programs in the Upper Klamath and Trinity 
Rivers Basin to assess the level of divergence between hatchery and 
naturally spawning stocks. We will use the results of this status 
review in making a determination as to whether or not the petitioned 
actions are warranted.
    Under section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)), this 
finding requires NMFS to commence a status review of the species. We 
are now initiating this review, and thus, the Upper Klamath and Trinity 
Rivers Chinook salmon ESU is considered a candidate species (50 CFR 
424.02(b)). Within 12 months of the receipt of the petition (by January 
28, 2012), we will make a finding as to whether the petitioned actions 
are warranted as required by section 4(b)(3)(B) of the ESA

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(16 U.S.C. 1533(b)(3)(B)). If any of the petitioned actions are 
warranted, we will publish a proposed rule and solicit public comments 
before preparing a final rule.

Information Solicited for Status Review

    To ensure the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
Chinook salmon in the Upper Klamath and Trinity Rivers Basin. We 
request information from the public, concerned governmental agencies, 
Native American Tribes, the scientific community, agricultural and 
forestry groups, conservation groups, fishing groups, industry, and any 
other interested parties concerning the current and/or historical 
status of Chinook salmon in the Upper Klamath and Trinity Rivers Basin. 
Specifically, we request information on: (1) Historic and current 
distribution, presence, and abundance of this species throughout its 
range; (2) historic and current life history traits of spring-run and 
fall-run populations; (3) historic and current Chinook salmon habitat 
conditions; (4) population status and trends; (5) genetic population 
structure of spring-run and fall-run; (6) reproductive isolation of 
spring-run and fall-run; (7) information on any current or planned 
activities that may adversely impact the species, including but not 
limited to commercial, recreational, and Tribal harvest, especially as 
related to the five factors specified in section 4(a)(1) of the ESA (16 
U.S.C. 1533(a)(1)) and listed above; and (8) ongoing efforts to protect 
and restore the species and its habitat.
    We request that all information be accompanied by: (1) Supporting 
documentation such as maps, bibliographic references, or reprints of 
pertinent publications; and (2) the submitter's name, address, and any 
association, institution, or business that the person represents. 
Please note that submissions merely stating support for or opposition 
to the action under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination based on the best available scientific and commercial 
data.

Critical Habitat

    Section 3(5) of the ESA (16 U.S.C. 1532(5)) defines critical 
habitat as: (1) Specific areas within the geographical area occupied by 
the species at the time of listing, on which are found those physical 
or biological features that are essential to the conservation of the 
listed species and that may require special management considerations 
or protection; and (2) specific areas outside the geographical area 
occupied by the species at the time of listing that are essential for 
the conservation of a listed species. Critical habitat shall be 
specified to the maximum extent prudent and determinable at the time 
the species is proposed for listing. If designation of critical habitat 
is not prudent or determinable, the reasons will be stated in the 12-
month finding.
    We also request information on areas that may qualify as critical 
habitat for Chinook salmon in the Upper Klamath and Trinity Rivers 
Basin. Areas that include the physical and biological features 
essential to the conservation of the species should be identified. 
Areas outside the present range should also be identified if such areas 
are essential to the conservation of the species. Essential features 
may include, but are not limited to: (1) Space for individual and 
population growth and for normal behavior; (2) food, water, air, light, 
minerals, or other nutritional and physiological requirements; (3) 
cover or shelter; (4) sites for breeding, reproduction, or rearing of 
offspring; and (5) habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of the species (50 CFR 424.12(b)).
    For areas having physical and biological features that may be 
essential to conservation, We request information describing: (1) The 
activities that affect the essential features or that could be affected 
by the designation; and (2) the economic costs and benefits of 
management measures likely to result from the designation. NMFS is 
required to consider the probable economic and other impacts on 
proposed or ongoing activities in making a final critical habitat 
designation (50 CFR 424.19).

Peer Review

    On July 1, 1994, NMFS and USFWS (the Services) jointly published a 
series of policies regarding listings under the ESA, including a policy 
for peer review of scientific data (59 FR 34270). In addition, on 
January 14, 2005, the Office of Management and Budget (OMB) published 
its Final Information Quality Bulletin for Peer Review (70 FR 2664). 
The purpose of the Services' peer review policy is to ensure listings 
are based on the best scientific and commercial data available. The 
purpose of the OMB Bulletin is to enhance the quality and credibility 
of the government's scientific information. We are soliciting the names 
of recognized experts in the field that could take part in the peer 
review process for this status review. Independent peer reviewers can 
be selected from the academic and scientific community, Tribal and 
other Native American groups, Federal and State agencies, the private 
sector, and public interest groups.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: April 6, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-8736 Filed 4-11-11; 8:45 am]
BILLING CODE 3510-22-P