[Federal Register Volume 84, Number 77 (Monday, April 22, 2019)]
[Proposed Rules]
[Pages 16632-16636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07995]



National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 190130032-9324-01]
RIN 0648-XG758

Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Summer-Run Steelhead in Northern California as Threatened or 
Endangered Under the Endangered Species Act

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

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


SUMMARY: We, NMFS, announce a 90-day finding on a petition to list 
Northern California (NC) summer-run steelhead (Oncorhynchus mykiss) as 
an Endangered distinct population segment (DPS) under the Endangered 
Species Act (ESA). We find that the petition presents substantial 
scientific information indicating the petitioned action may be 
warranted. We will conduct a status review of NC summer-run steelhead 
to determine if the petitioned action is warranted. To ensure that the 
status review is comprehensive, we are soliciting scientific and 
commercial information pertaining to this species from any interested 

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by June 21, 2019.

ADDRESSES: You may submit comments on this document, identified by 
``Northern California summer-run steelhead Petition (NOAA-NMFS-2019-
0003),'' by either of the following methods:
     Federal eRulemaking Portal: Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0003, click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Mail or hand-delivery: Protected Resources Division, West 
Coast Region, NMFS, 1201 NE Lloyd Blvd., Suite #1100, Portland, OR 
97232. Attn: Gary Rule.
    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

[[Page 16633]]

received are a part of the public record and will generally be posted 
for public viewing on http://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).
    Electronic copies of the petition and other materials are available 
on the NMFS West Coast Region website at 

[email protected], (503) 230-5424; or Heather Austin, NMFS Office of 
Protected Resources, at [email protected], (301) 427-8422.



    On November 15, 2018, the Secretary of Commerce received a petition 
from the Friends of the Eel River (hereafter, the Petitioner) to list 
NC summer-run steelhead as an endangered DPS under the ESA. Currently, 
NC summer-run steelhead are part of the NC steelhead DPS that combines 
winter-run and summer-run steelhead and is listed as threatened under 
the ESA (71 FR 833; January 5, 2006). The Petitioner is requesting that 
NC summer-run steelhead be considered as a separate DPS and listed as 
endangered. Copies of the petition are available as described above 

ESA Statutory, Regulatory, 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 list a species as threatened or 
endangered, 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 such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates 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 during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the review with a 
finding as to whether, in fact, the petitioned action is warranted 
within 12 months of receipt of the petition. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a positive 90-day finding does not prejudge the outcome of the 
status review.
    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 
NMFS-U.S. Fish and Wildlife Service (USFWS) (jointly, ``the Services'') 
policy clarifies the Services' interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying a species under the ESA (DPS Policy; 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)). 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 the 
species' habitat or range; overutilization for commercial, 
recreational, scientific, or educational purposes; disease or 
predation; the inadequacy of existing regulatory mechanisms; or other 
natural or manmade factors affecting the species' continued existence 
(16 U.S.C. 1533(a)(1)(A)-(E), 50 CFR 424.11(c)(1)-(5)).
    ESA-implementing regulations issued jointly by NMFS and USFWS (50 
CFR 424.14(h)(1)(i)) define ``substantial scientific or commercial 
information'' in the context of reviewing a petition to list, delist, 
or reclassify a species as ``credible scientific or commercial 
information in support of the petition's claims such that a reasonable 
person conducting an impartial scientific review would conclude that 
the action proposed in the petition may be warranted.'' Conclusions 
drawn in the petition without the support of credible scientific or 
commercial information will not be considered ``substantial 
information.'' In reaching the initial 90-day finding on the petition, 
we consider the information described in sections 50 CFR 424.14(c), 
(d), and (g) (if applicable).
    Our determination as to whether the petition provides substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted depends in part on the degree to which the 
petition includes the following types of information: (1) Information 
on current population status and trends and estimates of current 
population sizes and distributions, both in captivity and the wild, if 
available; (2) identification of the factors under section 4(a)(1) of 
the ESA that may affect the species and where these factors are acting 
upon the species; (3) whether and to what extent any or all of the 
factors alone or in combination identified in section 4(a)(1) of the 
ESA may cause the species to be an endangered species or threatened 
species (i.e., the species is currently in danger of extinction or is 
likely to become so within the foreseeable future), and, if so, how 
high in magnitude and how imminent the threats to the species and its 
habitat are; (4) information on the adequacy of regulatory protections 
and effectiveness of conservation activities by States as well as other 
parties, that have been initiated or that are ongoing, that may protect 
the species or its habitat; and (5) a complete, balanced representation 
of the relevant facts, including information that may contradict claims 
in the petition. See 50 CFR 424.14(d).
    If the petitioner provides supplemental information before the 
initial finding is made and states that it is part of the petition, the 
new information, along with the previously submitted information, is 
treated as a new petition that supersedes the original petition, and 
the statutory timeframes will begin when such supplemental information 
is received. See 50 CFR 424.14(g).
    We also consider information readily available at the time the 
determination is made. We are not required to consider any supporting 
materials cited by the petitioner if the petitioner does not provide 
electronic or hard copies, to the extent permitted by U.S. copyright 
law, or appropriate excerpts or quotations from those materials (e.g., 
publications, maps, reports, and letters from authorities). See 50 CFR 
    The ``substantial scientific or commercial information'' standard 
must be applied in light of any prior reviews or findings we have made 
on the listing status of the species that is the subject of the 
petition. Where we have already conducted a finding on, or review of, 
the listing status of that species (whether in response to a petition 
or on

[[Page 16634]]

our own initiative), we will evaluate any petition received thereafter 
seeking to list, delist, or reclassify that species to determine 
whether a reasonable person conducting an impartial scientific review 
would conclude that the action proposed in the petition may be 
warranted despite the previous review or finding. Where the prior 
review resulted in a final agency action--such as a final listing 
determination, 90-day not-substantial finding, or 12-month not-
warranted finding--a petitioned action will generally not be considered 
to present substantial scientific and commercial information indicating 
that the action may be warranted unless the petition provides new 
information or analyses not previously considered.
    At the 90-day finding stage, 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 conducting an impartial 
scientific review would conclude it supports the petitioner's 
assertions. In other words, conclusive information indicating the 
species may meet the ESA's requirements for listing is not required to 
make a positive 90- day finding. We will not conclude that a lack of 
specific information alone necessitates a negative 90-day finding if a 
reasonable person conducting an impartial scientific review would 
conclude that the unknown information itself suggests the species may 
be at risk of extinction presently or within the foreseeable future.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, in light of the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk such that listing, delisting, or 
reclassification may be warranted; this may be indicated in information 
expressly discussing the species' status and trends, or in information 
describing impacts and threats to the species. We evaluate any 
information on specific demographic factors pertinent to evaluating 
extinction risk for the species (e.g., population abundance and trends, 
productivity, spatial structure, age structure, sex ratio, diversity, 
current and historical range, habitat integrity or fragmentation), and 
the potential contribution of identified demographic risks to 
extinction risk for the species. We then evaluate the potential links 
between these demographic risks and the causative impacts and threats 
identified in section 4(a)(1) of the ESA.
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.

Northern California Steelhead

    Following completion of a comprehensive status review of West Coast 
steelhead (O. mykiss) populations in Washington, Oregon, Idaho, and 
California, NMFS published a proposed rule to list 10 Evolutionarily 
Significant Units (ESUs) as threatened or endangered under the ESA on 
August 9, 1996 (61 FR 41541). One of these steelhead ESUs, the NC ESU, 
was proposed for listing as a threatened species. Because of scientific 
disagreements, NMFS deferred its final listing determination for five 
of these steelhead ESUs, including the NC ESU, on August 18, 1997 (62 
FR 43937). After soliciting and reviewing additional information to 
resolve these disagreements, NMFS published a final determination on 
March 19, 1998 (63 FR 13347), that the NC ESU did not warrant listing 
under the ESA because available scientific information and conservation 
measures indicated the ESU was at a lower risk of extinction than at 
the time of the proposed rule. Because the State of California did not 
implement conservation measures that NMFS considered critically 
important in its decision to not list the NC steelhead ESU, NMFS 
completed an updated status review for the ESU and reassessed the State 
and Federal conservation measures that were in place to protect the 
ESU. Based on this reconsideration, NMFS proposed to list the NC 
steelhead ESU as a threatened species under the ESA on February 11, 
2000 (65 FR 6960). After considering public comments on the proposed 
determination, NMFS issued a final rule to list the NC ESU of steelhead 
as a threatened species on June 7, 2000 (65 FR 36074). Within the NC 
ESU, only naturally spawned anadromous populations of steelhead (and 
their progeny) residing below naturally occurring and man-made 
impassable barriers (e.g., impassable waterfalls and dams) were listed.
    A court ruling in 2001 (Alsea Valley Alliance v. Evans, 161 F. 
Supp. 2d 1154 (D. Or. 2001)) determined that listing only a subset of a 
species or ESU/DPS, such as the anadromous portion of O. mykiss, was 
not allowed under the ESA. Because of this court ruling, NMFS conducted 
updated status reviews for all West Coast steelhead ESUs that took into 
account those non-anadromous populations below dams and other major 
migration barriers that were considered to be part of the steelhead 
ESUs (Good et al. 2005). Subsequently, NMFS used the joint USFWS-NMFS 
DPS Policy to delineate steelhead-only DPSs rather than ESUs that 
included both steelhead and the related non-anadromous forms. Using 
this DPS Policy, NMFS redefined the NC steelhead ESU as a steelhead-
only DPS and reaffirmed that the NC steelhead DPS was a threatened 
species under the ESA (71 FR 834; January 5, 2006). The DPS includes 
both summer-run and winter-run steelhead. Since 2006, NMFS has 
conducted two status reviews (76 FR 50447; August 15, 2011 and 81 FR 
33468; May 26, 2016) to evaluate whether the listing classification of 
NC steelhead remains accurate or should be changed. In both instances, 
after reviewing the best available scientific and commercial data, we 
concluded that no change in ESA-listing status for NC steelhead was 
    Section 4(d) of the ESA directs NMFS to issue regulations deemed 
necessary and advisable to conserve species listed as threatened. Under 
section 4(d), NMFS may prohibit ``take,'' which would include any act 
that kills or injures fish, and could include habitat modification. 
NMFS originally promulgated 4(d) protective regulations for NC 
steelhead in 2002 (67 FR 1116) and then subsequently modified those 
regulations in 2005 (70 FR 37160).

[[Page 16635]]

    The ESA requires NMFS to designate critical habitat for any species 
it lists under the ESA. Critical habitat is defined as: (i) The 
specific areas within the geographical area occupied by the species, at 
the time it is listed . . . , on which are found those physical or 
biological features (I) essential to the conservation of the species, 
and (II) which may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed . . . that . . . are 
essential for the conservation of the species. 16 U.S.C. 1532(5)(A)(i)-
(ii). NMFS designated critical habitat for NC steelhead DPS in 2005 (70 
FR 52488).

Evaluation of Petition and Information Readily Available in NMFS Files

    The petition contains information and arguments in support of 
listing NC summer-run steelhead as an endangered DPS under the ESA. 
Based on biological, genetic, and ecological information compiled and 
reviewed as part of previous NC steelhead status reviews (Busby et al. 
1996; NMFS 1997; Adams 2000), we included all summer-run and winter-run 
steelhead populations in river basins from Redwood Creek in Humboldt 
County, California, south to the Gualala River, inclusive, in the NC 
steelhead DPS (65 FR 36074; June 7, 2000). Busby et al. (1996) found 
that the few genetic analyses that had considered this issue indicated 
that summer-run and winter-run steelhead from the same river basin are 
more genetically similar to each other than to the same run type in 
another river basin. In our 1997 status review update (NMFS 1997), we 
examined additional genetic data and reconfirmed that summer-run and 
winter-run steelhead from the same geographic area typically are more 
genetically similar to one another compared to populations with similar 
run timing in different geographic areas.
    The Petitioner presents new genetic evidence to suggest the summer-
run steelhead populations may qualify as a separate DPS from the 
winter-run populations. The Petitioner contends the findings from 
recently published articles on the evolutionary basis of premature 
migration in Pacific salmon (Prince et al. 2017; Thompson et al. 2018) 
indicate that summer-run steelhead in the NC steelhead DPS should be 
considered a separate DPS. Prince et al. (2017) reported on a survey of 
genetic variation between mature- and premature-migrating populations 
of steelhead and Chinook salmon from California, Oregon, and 
Washington. Thompson et al. (2018) provide additional information about 
genetic differentiation between mature- and premature-migrating Chinook 
salmon in the Rogue River, Oregon. The authors of these studies suggest 
that their results indicate that premature migration (e.g., summer-run 
steelhead) arose from a single evolutionary event within the species 
and, if lost, are not likely to re-evolve in time frames relevant to 
conservation planning. The Petitioner also asserts that Moyle et al. 
(2017) provides arguments in support of delineating NC summer-run 
steelhead as a DPS. Moyle et al. (2017) maintains that winter-run and 
summer-run are genetically discrete and separate units of migrating 
populations. Moyle et al. (2017) further asserts that NC summer-run 
steelhead are distinctive in their genetic makeup, behavior, and 
reproductive biology and require different conservation frameworks than 
winter-run steelhead. Therefore, the Petitioner contends that the new 
genetic information indicates that summer-run steelhead in the NC 
steelhead DPS satisfy the criteria for a species to be considered a DPS 
because it is: (1) Discrete in relation to the remainder of the species 
to which it belongs; and (2) significant to the species to which it 
    The Petitioner asserts that all five ESA section 4(a)(1) factors 
contribute to the need to list the NC summer-run steelhead as an 
endangered DPS. In support of this assertion, the Petitioner presents 
information from three sources: (1) The 2016 5-Year Review: Summary & 
Evaluation of California Coastal Chinook Salmon and Northern California 
Steelhead (NMFS 2016b); (2) the Coastal Multispecies Recovery Plan 
(CMP) (NMFS 2016a); and (3) State of Salmonids: Status of California's 
Emblematic Fishes (Moyle et al. 2017). Our status review and recovery 
plan describe the current status and threats facing the NC steelhead 
DPS. Moyle et al. (2017) presents additional scientific and technical 
information about the status of the NC summer-run steelhead 

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
presents substantial scientific information indicating that the 
petitioned action to delineate a NC summer-run steelhead DPS may be 
warranted. Therefore, in accordance with section 4(b)(3)(A) of the ESA 
and NMFS' implementing regulations (50 CFR 424.14(h)(2)), we will 
commence a status review to determine whether the summer-run 
populations of steelhead constitute a DPS, and, if so, whether the NC 
summer-run steelhead DPS is in danger of extinction throughout all or a 
significant portion of its range, or likely to become so within the 
foreseeable future throughout all or a significant portion of its 
range. After the conclusion of the status review, we will make a 
finding as to whether listing the NC summer-run steelhead DPS as 
endangered or threatened is warranted as required by section 4(b)(3)(B) 
of the ESA.

Information Solicited

    To ensure that our status review is informed by the best available 
scientific and commercial information, we are opening a 60-day public 
comment period to solicit information on summer- and winter-run 
steelhead in the NC steelhead DPS. We request information from the 
public, concerned governmental agencies, Native American tribes, the 
scientific community, agricultural and forestry groups, conservation 
groups, fishing groups, industry, or any other interested parties 
concerning the current and/or historical status of summer- and winter-
run steelhead in the NC steelhead DPS. Specifically, we request 
information regarding: (1) Species abundance; (2) species productivity; 
(3) species distribution or population spatial structure; (4) patterns 
of phenotypic, genotypic, and life history diversity; (5) habitat 
conditions and associated limiting factors and threats; (6) ongoing or 
planned efforts to protect and restore the species and their habitats; 
(7) information on the adequacy of existing regulatory mechanisms, 
whether protections are being implemented, and whether they are proving 
effective in conserving the species; (8) data concerning the status and 
trends of identified limiting factors or threats; (9) information on 
targeted harvest (commercial and recreational) and bycatch of the 
species; (10) other new information, data, or corrections including, 
but not limited to, taxonomic or nomenclatural changes; and (11) 
information concerning the impacts of environmental variability and 
climate change on survival, recruitment, distribution, and/or 
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.

[[Page 16636]]

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See FOR FURTHER INFORMATION CONTACT) or 
on our web page at: www.westcoast.fisheries.noaa.gov.

    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, 2019.
Patricia A. Montanio,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2019-07995 Filed 4-19-19; 8:45 am]