[Federal Register Volume 76, Number 195 (Friday, October 7, 2011)]
[Notices]
[Pages 62375-62376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26017]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 110921597-1591-01]
RIN 0648-XA636


Endangered and Threatened Species; 90-Day Finding on Petitions To 
Delist Coho Salmon Under the Endangered Species Act

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

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, NMFS, announce a 90-day finding on three petitions to 
delist coho salmon (Oncorhynchus kisutch) under the Endangered Species 
Act (ESA). We find that the petitions do not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted.

ADDRESSES: Copies of the petitions and related materials are available 
upon request from the Assistant Regional Administrator, Protected 
Resources Division, NMFS, Southwest Regional Office, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802.

FOR FURTHER INFORMATION CONTACT: Rosalie del Rosario, NMFS, Southwest 
Region Office, (562) 980-4085; or Dwayne Meadows and Kristy Beard, 
NMFS, Office of Protected Resources, (301) 427-8403.

SUPPLEMENTARY INFORMATION:

Background

    Section 4 of the ESA (16 U.S.C. 1533) contains provisions allowing 
interested persons to petition the Secretary of Commerce (Secretary) to 
add a species to, or remove a species from, the List of Endangered and 
Threatened Wildlife and to designate critical habitat. The Secretary 
has delegated the authority for these actions to the NOAA Assistant 
Administrator for Fisheries.
    On May 9, 2011, we received a petition from Dr. Richard Gierak 
requesting that we delist coho salmon under the ESA. We also received 
two similar petitions from the Siskiyou County Water Users Association 
on June 9 and June 28, 2011, requesting that we delist coho salmon. The 
June 28 petition cites Dr. Gierak as a preparer. Both the June 9th and 
June 28th petitions include text that is the same as some of the text 
in the May 9th petition. Because we received three petitions that 
requested the same action within a short period of time, we are 
considering all three petitions jointly in making our 90-day finding.

ESA Statutory and Regulatory Provisions and Evaluation Framework

    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 a petition presents substantial 
scientific or commercial information to list or delist a species, we 
take into account 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, and the finding is to be published 
promptly in the Federal Register (16 U.S.C. 1533(b)(3)(A)). In 
evaluating a petition and making a 90-day finding, our regulations 
require that we consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)). 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 to conduct a status review 
of the species.
    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 
``any species which 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) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (2) over-utilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) the 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence. Regulations 
implementing the ESA instruct us to consider these same factors when 
determining whether to delist a species, a subspecies, or a distinct 
population segment (including Evolutionarily Significant Units (ESUs)) 
(50 CFR 424.11(d)). 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. In 
addition to considering the factors listed above, the ESA implementing 
regulations state that a species may be delisted only if such data 
substantiate that it is neither endangered nor threatened for one or 
more of the following reasons: the species is extinct; the species is 
recovered; or subsequent investigations show the best scientific or 
commercial data available when the species was listed, or the 
interpretation of such data, were in error (50 CFR 424.11(d)).

Analysis of the Petitions

    The contents of the three petitions are largely similar and our 
analysis is based on a consideration of the four regulatory criteria 
for the minimum requirements for determining whether a petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted (50 CFR 424.14(b)). Our 
analysis of the petitions with regard to these criteria is as follows:
    (1) The petitions do not clearly indicate the administrative 
measure recommended, and contain

[[Page 62376]]

inconsistencies and errors in the administrative measure being 
recommended (see 50 CFR 424.14(b)(2)(i)). In all three petitions, the 
title and a section entitled ``Statement identifying the taxon'' refer 
to the entire species of coho salmon; the petitions focus much 
discussion on coho salmon in the Klamath River, yet also variously 
discuss information about coho salmon in other parts of California and 
throughout the Western United States. It is unclear whether the 
petitioners recognize that coho salmon in the Klamath River basin are 
part of the larger Southern Oregon/Northern California Coast (SONCC) 
coho salmon ESU, which is listed as threatened (70 FR 37160; June 28, 
2005), and that there are three other ESUs of coho salmon on the west 
coast that are listed as threatened or endangered under the ESA. The 
SONCC coho salmon ESU includes all naturally spawned populations of 
coho salmon in coastal streams between Cape Blanco, Oregon, and Punta 
Gorda, California, and coho salmon in three artificial propagation 
programs: the Cole Rivers Hatchery (ODFW stock 52), Trinity 
River Hatchery, and Iron Gate Hatchery coho hatchery programs (70 FR 
37160; June 28, 2005). It is thus also unclear whether the petitioners 
are requesting that we delist the portion of the SONCC coho salmon ESU 
that is in the Klamath River basin, delist the entire SONCC coho salmon 
ESU, or delist coho salmon from one or more additional ESUs throughout 
some wider area. In addition, the petitions request removing the 
listing of coho salmon under the California Endangered Species Act, 
which we have no authority to do, and removing the proposed Federal ESA 
listing of coho salmon, even though the listing of the SONCC coho 
salmon ESU is final and not proposed (nor is there any other proposed 
listing of coho salmon by NMFS at the current time).
    (2) The petitions do not contain detailed narrative justifications 
for the recommended measure of delisting, except as specifically 
discussed below regarding the claim that coho salmon are not native to 
the Klamath River basin or to various other parts of California. This 
is true regardless of what ESU or ESUs the petitioners might have 
intended to request we delist. The petitions generally argue the 
extinction of coho is unavoidable due to a variety of threats, the 
decline of ``coho can be directly attributed to Nature's whim,'' the 
Marine Mammal Protection Act is one of the major human activities 
destroying the coho population through allowing increased predation, 
and NMFS did not properly consider hatchery origin coho salmon in 
listing the SONCC coho salmon ESU. However, the information is not 
presented or synthesized in a manner to indicate the petitioned action 
may be warranted because of any of the criteria described in 50 CFR 
424.11(c) and (d) (see 50 CFR 424.14(b)(2)(ii)). In fact, the 
petitioners describe a number of current threats to coho salmon that 
negatively affect the status of the species. The petitioners' argument 
that extinction is unavoidable is not a consideration in delisting 
decisions under the ESA or our implementing regulations. The 
petitioners' arguments that we did not properly consider hatchery 
origin coho salmon in listing the SONCC coho salmon ESU are incorrect 
as we addressed these issues in a final rule issued on June 28, 2005 
(70 FR 37160). In that final rule, we concluded that the SONCC coho 
salmon ESU includes the three above mentioned artificial propagation 
programs because the available information indicated they were no more 
than slightly divergent from natural populations in their respective 
watersheds. In making these determinations, we applied our ``Policy on 
the Consideration of Hatchery-Origin Fish in Endangered Species Act 
Listing Determinations for Pacific Salmon and Steelhead'' (70 FR 37204; 
June 28, 2005).
    One particular claim of the petitions deserves additional 
consideration here. The petitions all make the claim that coho salmon 
are not native to the Klamath River basin or to various other parts of 
California. For the Klamath River Basin, they cite the Karuk Tribal 
Council meeting from 2001 and California Fish and Game documents from 
1913 and 2002. For other parts of California, specifically south of San 
Francisco, they cite a variety of references. They have a narrative 
justification for this claim that discusses the status of coho salmon 
in the relevant areas and include the references described above. 
Although the petitioners do not specifically cite the portion of our 
regulations dealing with an error at the original time of listing, 
which would be a factor for consideration of delisting (see 50 CFR 
424.11(d)), we nevertheless consider the information they present on 
this claim. Here we evaluate whether the information provided by the 
petitioners presents substantial scientific or commercial information 
that this claim may be warranted. The petitioners cite a Web site as 
the source of the quotes provided from the Karuk Tribal Council 
meeting. The Web site does not contain the minutes of said meeting for 
us to evaluate and the quotes themselves do not provide scientific or 
anecdotal information on presence of coho salmon in the Klamath River 
Basin. The quotes that the petitioners provided from the 2002 
California Department of Fish and Game report, taken from the 1913 
California Fish and Game Commission report, are taken out of context. 
The 2002 report actually concludes the opposite of the petitioners: 
that coho salmon are native to the upper Klamath River system, and 
historically occurred there prior to hatchery stocking. The 
petitioners' arguments regarding coho salmon not being native to other 
parts of California, specifically south of San Francisco, were 
addressed in our 12-month finding and associated status review 
regarding the endangered Central California Coast ESU of coho salmon 
(76 FR 6383; February 4, 2011). Based on this analysis, these petitions 
fail to provide substantial scientific or commercial information that 
even this limited claim may be warranted under the ESA.
    (3) The presentation of information does not provide information 
regarding the status of listed coho salmon over all or a significant 
portion of their range, except as specifically discussed above 
regarding the claim that coho salmon are not native to the Klamath 
River basin or to various other parts of California (see 50 CFR 
424.14(b)(2)(iii)). Again this is true no matter what ESU or ESUs the 
petitioners intended to request we delist.
    (4) Although the petitioners cite some published reports and 
provide links to some supporting documentation, some of the citations 
to referenced materials are incomplete (see 50 CFR 424.14(b)(2)(iv)).

Petition Finding

    After reviewing all three petitions, as well as information readily 
available in our files, we have determined that the petitions do not 
present substantial scientific or commercial information indicating the 
petitioned action may be warranted.

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

    Dated: October 3, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-26017 Filed 10-6-11; 8:45 am]
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