20302 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Proposed Rules 

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. 

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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• 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 fallrun 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 springrun 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 springrun 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 springrun 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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20304 Federal Register / Vol. 76, No. 70 / Tuesday, April 12, 2011 / Proposed Rules 

(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 


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