[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]
[[Page 20302]]
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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:
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 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
[[Page 20303]]
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
[[Page 20304]]
(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