[Federal Register Volume 80, Number 77 (Wednesday, April 22, 2015)]
[Proposed Rules]
[Pages 22468-22472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09358]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 150211136-5136-01]
RIN 0648-XD769


Listing Endangered or Threatened Species; 90-Day Finding on a 
Petition To Delist the Snake River Fall-Run Chinook Salmon 
Evolutionarily Significant Unit

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

ACTION: 90-Day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
90-day finding on a petition to delist the Snake River fall-run Chinook 
salmon (Oncorhynchus tshawytscha) (Snake River fall-run Chinook) 
Evolutionarily Significant Unit (ESU) under the Endangered Species Act 
(ESA). The Snake River fall-run Chinook ESU was listed as threatened 
under the ESA in 1992. We reviewed the status of the ESU in 2005 and 
again in 2011 and concluded that the ESU's classification as a 
threatened species remained appropriate. We find that the petition 
presents substantial scientific information indicating that the 
petitioned action may be warranted. We hereby initiate a status review 
of the Snake River fall-run Chinook ESU to determine whether the 
petitioned action is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
pertaining to this species.

DATES: Comments must be received by June 22, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2015-0039, by either of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal.
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0039.
    2. Click the ``Comment Now!'' icon, complete the required fields.
    3. Enter or attach your comments.

--OR--

     MAIL or Hand Delivery: Submit written comments to: 
Protected Resources Division, West Coast Region, NMFS, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802-4213.

Instructions

    Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered by NMFS. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Elizabeth Holmes Gaar, NMFS West Coast 
Region at (503) 230-5434; or

[[Page 22469]]

Dwayne Meadows, NMFS Office of Protected Resources at (301) 427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    The Snake River fall-run Chinook ESU was listed as threatened under 
the ESA in 1992 (57 FR 14658; April 22, 1992). Section 4(c)(2) of the 
ESA requires that we conduct a review of listed species at least once 
every 5 years (5-year review). On the basis of such 5-year reviews, we 
determine under section 4(c)(2)(B) whether a species should be delisted 
or reclassified from endangered to threatened or from threatened to 
endangered. We conducted 5-year reviews for the Snake River fall-run 
Chinook ESU in 2005 (70 FR 37160; June 28, 2005) and again in 2011 (76 
FR 50448; August 15, 2011) and determined that the ESU should remain 
classified as ``threatened.''
    On January 16, 2015, we received a petition from the Chinook 
Futures Coalition to delist the Snake River fall-run Chinook ESU under 
the ESA. Copies of the petition are available upon request (see 
ADDRESSES). Separately, on February 6, 2015, we published a notice of 
initiation of 5-year reviews for 32 species, including Snake River 
fall-run Chinook salmon (80 FR 6695; February 6, 2015).
    Historically, the Snake River fall-run Chinook ESU consisted of 
three large populations: The extant Lower Mainstem Snake River 
population, and two currently extirpated populations (Marsing Reach and 
Salmon Falls) that spawned in the upper mainstem Snake River above the 
current Hells Canyon Dam complex. The listed Snake River fall-run 
Chinook salmon ESU consists of one population, the extant Lower 
Mainstem Snake population, which includes all natural-origin fall-run 
Chinook salmon originating from the mainstem Snake River below Hells 
Canyon Dam (the lowest of three impassable dams that form the Hells 
Canyon Complex), and from the Tucannon River, Grande Ronde River, 
Imnaha River, Salmon River, and Clearwater River subbasins. The ESU 
also includes four artificial propagation programs: The Lyons Ferry 
Hatchery Program, Fall Chinook Acclimation Ponds Program, Nez Perce 
Tribal Hatchery Program, and Oxbow Hatchery Program.

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to remove a species from the list of 
threatened or endangered species, the Secretary of Commerce make a 
finding on whether that petition presents substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted, and to promptly publish the finding in the Federal Register 
(16 U.S.C. 1533(b)(3)(A)). When we find that substantial scientific or 
commercial information in a petition indicates that the petitioned 
action may be warranted (a ``positive 90-day finding''), we are 
required to promptly commence a review of the status of the species 
concerned, which includes conducting a comprehensive review of the best 
available scientific and commercial information. Within 12 months of 
receiving the petition, we must conclude the review with a finding as 
to whether, in fact, the petitioned action is warranted. Because the 
finding at the 12-month stage is based on a significantly more thorough 
review of the available information, a ``may be warranted'' finding at 
the 90-day stage does not prejudge the outcome of the status review.
    ESA-implementing regulations at 50 CFR 424.14(b) issued jointly by 
NMFS and the U.S. Fish and Wildlife Service (USFWS) (jointly ``the 
Services'') define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. When 
evaluating whether substantial information is contained in a petition, 
we must 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)).
    To make a 90-day finding on a petition to list, delist or 
reclassify a species, we evaluate the petitioner's request based upon 
the information in the petition including its references, and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioner's sources and characterizations of the 
information presented, if they appear to be based on accepted 
scientific principles, unless we have specific information in our files 
that indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude that it supports the petitioner's assertions. 
Conclusive information indicating that the species may meet the ESA's 
requirements for delisting is not required to make a positive 90-day 
finding. We will not conclude that a lack of specific information alone 
negates a positive 90-day finding, if a reasonable person would 
conclude that the lack of information itself suggests a particular 
extinction risk conclusion for the species at issue.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union for 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but such classification alone may 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source of information that the 
classification is based upon in light of the standards on extinction 
risk and impacts or threats discussed above.
    Under the ESA, a listing determination may address a species, which 
is defined to also include subspecies and, for any vertebrate species, 
any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint

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Services policy (DPS Policy) clarifies the agencies' interpretation of 
the phrase ``distinct population segment'' for the purposes of listing, 
delisting, and reclassifying a species under the ESA (61 FR 4722; 
February 7, 1996). A species, subspecies, or DPS is ``endangered'' if 
it is in danger of extinction throughout all or a significant portion 
of its range, and ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 
1532(6) and (20)). For identifying stocks of Pacific salmon for listing 
under the ESA, we use our Policy on Applying the Definition of Species 
under the ESA to Pacific Salmon (ESU Policy) (56 FR 58612; November 20, 
1991). Under this policy, populations of salmon that are substantially 
reproductively isolated from other conspecific populations and that 
represent an important component in the evolutionary legacy of the 
biological species are considered to be an ESU. In our listing 
determinations for Pacific salmon under the ESA, we have treated an ESU 
as constituting a DPS, and hence a ``species,'' under the ESA.
    NMFS assesses viability for Pacific salmon ESUs based on a common 
set of biological principles described in NMFS' technical memorandum, 
Viable Salmonid Populations and the Recovery of Evolutionarily 
Significant Units (McElhany et al. 2000). Viable salmonid populations 
(VSPs) are defined in terms of four population parameters: Abundance, 
population productivity or growth rate, population spatial structure, 
and diversity. Abundance and productivity need to be sufficient to 
provide for population-level persistence in the face of year-to-year 
variations in environmental influences. Spatial structure of 
populations should provide for resilience to the potential impact of 
catastrophic events, and diversity should provide for patterns of 
phenotypic, genotypic, and life history diversity that sustains natural 
production across a range of conditions, allowing for adaptation to 
changing environmental conditions.
    Pursuant to the ESA and our implementing regulations, we determine 
whether species are threatened or endangered based on any one or a 
combination of the following five ESA section 4(a)(1) factors: The 
present or threatened destruction, modification, or curtailment of 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and any other natural or manmade 
factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    Under section 4(a)(1) of the ESA and our implementing regulations 
at 50 CFR 424.11(d), a species may be removed from the list if the 
Secretary of Commerce determines, based on the best scientific and 
commercial data available and after conducting a review of the species' 
status, that the species is no longer threatened or endangered because 
of one or a combination of the section 4(a)(1) factors. Pursuant to our 
regulations at 50 CFR 424.11(d), 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:
    (1) Extinction. Unless all individuals of the listed species had 
been previously identified and located, and were later found to be 
extirpated from their previous range, a sufficient period of time must 
be allowed before delisting to indicate clearly that the species is 
extinct.
    (2) Recovery. The principal goal of the Services is to return 
listed species to a point at which protection under the ESA is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.
    (3) Original data for classification in error. Subsequent 
investigations may show that the best scientific or commercial data 
available when the species was listed, or the interpretation of such 
data, were in error.
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination whether a petitioned action may be 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is or is not either threatened or endangered to support 
a positive 90-day finding.

Application of the Hatchery Listing Policy

    On June 28, 2005, we announced a final policy addressing the role 
of artificially propagated (hatchery produced) Pacific salmon and 
steelhead in listing determinations under the ESA (70 FR 37204; June 
28, 2005) (Hatchery Listing Policy). The Hatchery Listing Policy's 
purpose is to provide direction to NMFS staff for considering hatchery-
origin fish in making listing determinations for Pacific salmon and 
steelhead. Among other things, the Hatchery Listing Policy: (1) 
Establishes criteria for including hatchery stocks in ESUs and DPSs; 
(2) provides direction for considering hatchery fish in extinction risk 
assessments of ESUs and DPSs; and (3) provides that hatchery fish 
determined to be part of an ESU will be included in any listing of the 
ESU.
    The Hatchery Listing Policy also provides that status 
determinations for Pacific salmon ESUs and steelhead DPSs will be based 
on the status of the entire ESU or DPS and that in assessing the status 
of an ESU/DPS, NMFS will apply the policy in support of the 
conservation of naturally-spawning salmon and the ecosystems upon which 
they depend, consistent with section 2(b) of the ESA. Finally, the 
Hatchery Listing Policy provides that hatchery fish will be included in 
assessing an ESU's or DPS's status in the context of their 
contributions to conserving natural self-sustaining populations.

Biology of Snake River Fall-Run Chinook Salmon

    Snake River fall-run Chinook spend 1 to 4 years in the Pacific 
Ocean, depending on gender and age at the time of ocean entry. Most 
Snake River fall-run Chinook salmon return for reproduction to the 
lower Columbia River in August and September, and the adults enter the 
Snake River between early September and mid-October. There are 
presently five recognized major spawning areas for Snake River fall-run 
Chinook salmon: The Snake River upper reach (from the Hells Canyon Dam 
complex to the mouth of the Salmon River), the Snake River lower reach 
(from mouth of the Salmon River to Lower Granite dam Reservoir), and 
the lower Grande Ronde, lower Clearwater, and lower Tucannon Rivers. 
Adults spawn in nests (redds) from late October through early December. 
Emergence of young fall-run Chinook from redds typically occurs in the 
following April through early June. Juvenile Snake River fall-run 
Chinook salmon exhibit different early life history timing and growth 
traits in riverine habitat, depending on growth opportunity, which is 
often largely related to water temperature. Relatively warm 
temperatures produce juveniles that migrate seaward as subyearlings in 
May and June, whereas reaches with cooler temperatures produce 
juveniles that grow more slowly, over-winter and migrate seaward as 
yearlings.

Summary of Petition

    The petition contains three parts. Part I asserts that hatchery 
fish must be counted when assessing the status of the ESU and must be 
considered in any

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delisting decision where hatchery fish are part of the ESU, as is the 
case for Snake River fall-run Chinook salmon. The petitioner refers to 
NMFS' Hatchery Listing Policy and points out its requirement that 
status determinations for Pacific salmon ESUs will be based on the 
status of the entire ESU. The petitioner disagrees with NMFS' approach 
used in the most recent Snake River fall-run Chinook 5-year review 
(NMFS 2011) to base viability criteria on natural fish.
    Part II of the petition asserts that Snake River fall-run Chinook 
meet the standards for delisting under the ESA and presents information 
on the ESU's recent status and trends. It asserts that Snake River 
fall-run Chinook have met the four VSP criteria, and consequently that 
the ESU's short-term extinction risk is zero and its long-term 
extinction risk is less than 1 percent. The petitioner asserts that the 
recovery standards articulated in the last 5-year review arbitrarily 
redefined the ESU to exclude hatchery fish. The petitioner also reviews 
the 5-year review's consideration of the VSP parameters of abundance, 
productivity, spatial structure, and diversity. The 5-year review's VSP 
criteria were recommended by the Interior Columbia River Technical 
Recovery Team (ICTRT 2007; Ford et al. 2011). The petitioner asserts 
that Snake River fall-run Chinook salmon have met the abundance and 
productivity criteria set forth in the 2011 5-year review, and the 
petitioner presents abundance and productivity data made available 
since the 2011 5-year review, for the years 2010 through 2014. The 
petitioner cites data sources for updated abundance and productivity 
from the Pacific Fishery Management Council (PFMC 2014), Arnsberg et 
al. (2013, 2014) and a powerpoint presentation given in 2013 by a 
scientist from NMFS' Northwest Fisheries Science Center (Cooney 2013).
    The petitioner asserts that the Snake River fall-run Chinook salmon 
ESU also meets criteria from the 5-year review for spatial distribution 
and diversity. For spatial distribution, the Interior Columbia 
Technical Recovery Team recommended that for the Snake River fall-run 
Chinook ESU to be considered at low extinction risk, there should be 
another population, in addition to the extant Lower Mainstem Snake 
River population. We included that criterion in the 2011 5-year review. 
The petitioner points to redd count data in the Clearwater River from 
Arnsberg et al. (2014) and concludes that the spawning aggregation in 
the Clearwater River satisfies the spatial structure criterion for a 
second population of Snake River fall-run Chinook. The petitioner 
further asserts, however, that establishing another population of Snake 
River fall-run Chinook salmon to lower the risk of extinction is not 
relevant when all other delisting criteria have been met. The 
petitioner disagrees with NMFS' approach to diversity criteria, which 
evaluates diversity within the ESU. The petitioner asserts that Pacific 
salmon are diverse because they are composed of two or more ESUs, and 
that the only means for increasing diversity is to increase the 
abundance of spawners in an ESU. The petitioner points out that this 
increase in abundance has happened for the Snake River fall Chinook 
ESU.
    Part III of the petition evaluates the statutory standards for 
delisting and asserts that the extinction risk of Snake River fall-run 
Chinook is at or approaching zero, and that the delisting standards are 
met individually and collectively. The petitioner also provides an 
evaluation of each of the five ESA section 4(a)(1) listing factors. The 
petitioner concludes that: (1) There is no destruction, modification, 
or curtailment of the Snake River fall-run Chinook habitat or range 
that justifies continued listing; (2) that there is no overutilization 
of Snake River fall-run Chinook; (3) predation and disease are not 
present factors, and predation is less of a factor today than when the 
species was listed; (4) existing regulatory mechanisms are adequate as 
evidenced by the demonstrated increasing numbers of Snake River fall-
run Chinook; and (5) while drought might be a consideration for other 
natural or manmade factors, the operation of the Federal Columbia River 
Power System, the Hells Canyon Dam Complex, and Dworshak Dam ensures 
that sufficient waters will be available for Snake River fall-run 
Chinook in the future.

Petition Analysis and Finding

    As described above, the standard for determining whether a petition 
includes substantial information is whether the amount of information 
presented provides a basis for us to find that it would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted. We find the analysis of additional data presented and 
referenced in the petition regarding the abundance and productivity of 
Snake River fall-run Chinook since the last status review in 2011 meets 
this standard, and that it presents substantial scientific evidence 
indicating that the petitioned action may be warranted.

Information Solicited

    As a result of this 90-day finding, we will commence a status 
review of the Snake River fall-run Chinook ESU to determine whether 
delisting the species is warranted. To ensure that our review of Snake 
River fall-run Chinook is informed by the best available scientific and 
commercial information, we are opening a 60-day public comment period 
to solicit information to support our 12-month finding on this 
petition. We note that on February 6, 2015, we announced the initiation 
of 5-year reviews of 32 species, including Snake River fall-run 
Chinook, and requested information that has become available since the 
species' statuses were last updated. In the case of Snake River fall-
run Chinook, the last update was in 2011 (NMFS 2011). We will consider 
all information submitted through that solicitation, as well as 
information submitted in response to this finding and request for 
information, to inform our status review and 12-month finding. There is 
no need to resubmit information that has already been submitted in 
response to our 5-year review solicitation notice. We are opening a 60-
day public comment period to solicit additional information beyond that 
provided for the 5-year review process in response to our finding on 
this petition.
    Specifically, we request new information that has become available 
since the 2011 5-year status review of Snake River fall-run Chinook 
salmon regarding: (1) Population abundance; (2) population 
productivity; (3) changes in species distribution or population spatial 
structure; (4) patterns of phenotypic, genotypic, and life history 
diversity; (5) changes in habitat conditions and associated limiting 
factors and threats; (6) conservation measures that have been 
implemented that benefit the species, including monitoring data 
demonstrating the effectiveness of such measures in addressing 
identified limiting factors or threats; (7) information on the adequacy 
of regulatory mechanisms to conserve the species in the event it were 
delisted; (8) data concerning the status and trends of identified 
limiting factors or threats; (9) information that may affect 
determinations regarding the composition of the ESU; (10) information 
on changes to hatchery programs that may affect determinations 
regarding the ESU membership or contribution to recovery of natural 
populations; (11) information on targeted harvest (commercial, tribal, 
and recreational) and bycatch of the species; and (12) other new 
information, data, or

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corrections including, but not limited to, taxonomic or nomenclatural 
changes, identification of erroneous information in the previous 
listing determination, and improved analytical methods for evaluating 
extinction risk.
    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.

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov/protected_species/salmon_steelhead/salmon_and_steelhead_listings/chinook/snake_river_fall/snake_river_fall_run_chinook.html.

    Authority:  The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 17, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-09358 Filed 4-21-15; 8:45 am]
 BILLING CODE 3510-22-P