[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Notices]
[Pages 16745-16747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7493]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 00323162-0165-01]
RIN 0648-XV30


Endangered and Threatened Species; 90-Day Finding on a Petition 
to Delist Coho Salmon South of San Francisco Bay

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, the National Marine Fisheries Service (NMFS), are 
accepting a 2003 petition to delist coho salmon (Oncorhynchus kisutch) 
in coastal counties south of the ocean entrance to San Francisco Bay, 
California, from the Federal List of Endangered and Threatened Wildlife 
under the Endangered Species Act (ESA) of 1973, as amended. Coho salmon 
populations in this region are currently listed under the ESA as part 
of the Central California Coast (CCC) Evolutionarily Significant Unit 
(ESU). This action is being taken in response to a February 8, 2010, 
U.S. District Court decision that our previous rejection of the 
petition in 2006 was arbitrary and capricious. To ensure a 
comprehensive review, we are soliciting scientific and commercial data 
and other information relevant to the status of coho salmon in the 
coastal counties south of San Francisco Bay. We will publish the 
results of that review and will make a finding as to whether the 
petitioned action is or is not warranted on or before February 8, 2011.

DATES:  Written comments, data and information related to this petition 
finding must be received no later than 5 p.m. local time on June 1, 
2010.

ADDRESSES:  You may submit comments, identified by the RIN 0648-XV30, 
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.
     Facsimile (fax): 562-980-4027, Attn: Craig Wingert
     Mail: Submit written comments to the Assistant Regional 
Administrator, Protected Resources Division, Attn: Craig Wingert, 
Southwest Region, National Marine Fisheries Service, 501 W. Ocean 
Blvd., Suite 5200, 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 without 
change. All personal identifying information (for example, 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.
    A copy of the petition and related information may be obtained by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, Attn: Craig Wingert, Southwest Region, National 
Marine Fisheries Service, 501 W. Ocean Blvd., Suite 5200, Long Beach, 
CA, 90802-4213 or from the internet at: http://swr.nmfs.noaa.gov/.

FOR FURTHER INFORMATION CONTACT:  Craig Wingert, NMFS, Southwest 
Region, (562) 980-4021; or Marta Nammack, NMFS, HQ, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Coho salmon in Santa Cruz and coastal San Mateo counties south of 
San Francisco Bay are part of the larger CCC coho salmon ESU. The CCC 
coho salmon ESU was listed as a threatened species on October 31, 1996 
(61 FR 56138), and subsequently reclassified as an endangered species 
on June 28, 2005 (70 FR 37160). For more information on the status, 
biology, and habitat of this coho salmon ESU, please refer to 
``Endangered and Threatened Species: Proposed Listing Determinations 
for 27 ESUs of West Coast Salmonids; Proposed Rule'' (69 FR 33102; June 
14, 2004) or ``Final Rule Endangered and Threatened Species; Threatened 
Status for Central California Coast Coho Salmon Evolutionarily 
Significant Unit (ESU)'' (61 FR 56138; October 31, 1996).
    On November 25, 2003, we received a petition from Mr. Homer T. 
McCrary, a Santa Cruz County forestland owner, to redefine the southern 
extent of the CCC coho salmon ESU by excluding coastal populations of 
coho salmon south of San Francisco Bay, California, from the ESU. An 
addendum to the petition (dated February 6, 2004) was received on 
February 9, 2004, that provided additional information to clarify the 
original petition and respond to new information regarding museum 
specimens of coho salmon from the area south of San Francisco Bay. The 
ESA authorizes an interested person to petition for the listing or 
delisting of a species, subspecies, or Distinct Population Segment 
(DPS)(16 U.S.C.1533(b)(3)(A). The ESA implementing regulations contain 
the factors to consider for delisting a species (50 CFR 424.11(d)). A 
species may be delisted for one or more of the following reasons: the 
species is extinct or has been extirpated from its previous range; the 
species has recovered and is no longer endangered or threatened; or 
investigations show the best scientific or commercial data available 
when the species was listed, or the interpretation of such data, were 
in error.
    Section 4(b)(3)(A) of the ESA requires that, to the maximum extent 
practicable, within 90 days after receiving a petition, the Secretary 
shall make a finding whether the petition presents substantial 
scientific information indicating that the petitioned action may be 
warranted (90-day finding). The ESA implementing regulations for NMFS 
define ``substantial information'' as the amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted (50 CFR 424.14(b)(1)). If a positive 90-
day finding is made, then NMFS must promptly conduct a status review of 
the species concerned and publish a finding indicating whether the 
petitioned action is or is not warranted within one year (1-year 
finding).

[[Page 16746]]

    On March 23, 2006, we published a 90-day finding in the Federal 
Register (71 FR 14683) stating that the petition did not present 
substantial information indicating that delisting coho salmon south of 
San Francisco Bay may be warranted. On March 31, 2006, the petitioner 
challenged that finding, alleging violations of the ESA and the 
Administrative Procedure Act. Homer T. McCrary v. Carlos Gutierrez, et 
al., No. 06-cv-86-MCE (E.D. Cal.)). The venue for the case was 
subsequently transferred to the Northern District Court in San Jose, 
California, No. C-08-01592-RMW (N.D. Cal.).
    On February 8, 2010, the court issued an order stating that our 
decision to deny the petition was arbitrary and capricious. The court 
found that we failed to follow the proper statutory procedures for 
reviewing petitions under the ESA, by using information beyond the four 
corners of the petition, and in applying the 1-year standard of whether 
the petitioned action ``is or is not warranted,'' rather than the 90-
day standard of whether the petitioned action ``may be warranted.'' The 
court vacated our March 23, 2006, finding and remanded the petition to 
NMFS for review in accordance with 16 U.S.C. 1533(b)(3)(A).

The Petition

    Mr. McCrary's petition requests that we redefine the southern 
boundary of the CCC coho salmon ESU. The petition clearly identified 
itself as a petition and included the identification information for 
the petitioner, as required in 50 CFR 424.14(a). The petition claims 
coho salmon were introduced into Santa Cruz County, California, in 1906 
and until that time, aside from possible occasional strays, no self-
sustaining native coho salmon populations existed in the streams south 
of San Francisco Bay, California. The petition asserts the legal and 
factual criteria supporting the listing of coho salmon under the ESA, 
as amended, were in error based on historical and scientific data 
presented in the petition. The petition argues coho salmon populations 
currently present in the coastal watersheds south of San Francisco Bay, 
California, are most likely non-native and persist there only due to 
artificial propagation, and for this reason do not constitute an 
important component in the evolutionary legacy of the species. 
Additionally, through the initial petition and subsequent written 
correspondence between NMFS' Southwest Fisheries Science Center (SWFSC) 
in Santa Cruz, California, and Southwest Regional Office in Long Beach, 
California, the petitioner asserted coho salmon in the area should be 
delisted because they are not evolutionarily significant populations 
and their inclusion in the CCC coho salmon ESU is inconsistent with 
NMFS' ESU policy for Pacific salmon (Waples, 1991). Based on this and 
other information detailed in the petition and addendums, the 
petitioner has requested that NMFS delist populations of CCC ESU coho 
salmon south of San Francisco Bay and redefine the southern boundary of 
CCC ESU coho salmon to north of San Francisco Bay.
    Information used to support the petitioner's assertion that coho 
salmon are not native south of San Francisco Bay, and therefore, 
erroneously listed, is predicated on: (1) early scientific and 
historical accounts indicating that the entrance to San Francisco Bay 
is the southern boundary for coho salmon; (2) the absence of coho 
salmon in the archeological record; (3) differences in geology, 
climate, and hydrology between regions north and south of San Francisco 
Bay; and (4) human intervention through out-of-area (i.e., non-native) 
coho salmon plantings to streams in coastal San Mateo and Santa Cruz 
counties which resulted in the establishment of coho salmon in the 
area.
    We considered all additional information provided by the petitioner 
and individuals providing supplemental information on his behalf to 
NMFS and our SWFSC from 2004 2005 to be addendums to the original 
November 23, 2003, petition.

Petition Finding

    In order to address errors in the previous handling of the 
petition, we are accepting the petition and initiating a review of the 
status of CCC coho populations south of San Francisco Bay.

Information Solicited

    To ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information concerning coho salmon in coastal streams south of San 
Francisco Bay in San Mateo and Santa Cruz counties. We request 
information from the public, concerned governmental agencies, Native 
American tribes, the scientific community, agricultural and forestry 
groups, conservation groups, industry, or any other interested parties 
concerning the current and/or historical status of coho salmon in 
coastal streams south of San Francisco Bay. Specifically, we request 
information on: (1) published accounts from historical or scientific 
sources regarding the presence, absence, and distribution of coho 
salmon in streams south of San Francisco Bay prior to 1906; (2) 
archeological evidence regarding presence or absence of coho salmon in 
streams south of San Francisco Bay; (3) genetic information comparing 
coho salmon in the streams south of San Francisco Bay with coho salmon 
in streams north of San Francisco Bay within the range of the CCC coho 
salmon ESU, and in other coho salmon ESUs; (4) differences or 
similarities in climate, geology, and hydrology of watersheds in Santa 
Cruz and coastal San Mateo counties compared with watersheds in the 
northern portion of the CCC coho salmon ESU range (coastal Marin County 
to Punta Gorda in southern coastal Humboldt County), and the effects of 
these habitat differences on coho salmon; and (5) the reproductive 
isolation of coho salmon in coastal San Mateo and Santa Cruz counties 
and the importance of these populations to the evolutionary legacy of 
the CCC coho salmon ESU in light of NMFS' ESU policy (56 FR 58612; 
November 20, 1991).
    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. Section 4(b)(1)(A) of the ESA directs that a 
determination must be made ``solely on the basis of the best scientific 
and commercial data available.'' On or before February 8, 2011, we will 
issue a 1-year finding based on a review of the best scientific and 
commercial data available, including all relevant information received 
from the public in response to this 90-day finding.
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. Please note that we may 
not consider comments we receive after the date specified in the DATES 
section in our final determination. If you submit your information via 
http//www.regulations.gov, your entire submission including personal 
identifying information will be posted on the website. 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. However, we cannot 
guarantee that we will be able to do so. We will post all hard copy 
submissions on http//www.regulations.gov. Information and materials we 
receive, as well as supporting documentation we used in preparing this 
finding, will be available for public inspection, by appointment, 
during normal business

[[Page 16747]]

hours at NMFS' Southwest Region Office.

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

    Dated: March 30, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-7493 Filed 4-1-10; 8:45 am]
BILLING CODE 3510-22-S