[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Proposed Rules]
[Pages 45815-45818]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11381]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 240520-0140; RTID 0648-XR135]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Gulf of Alaska Chinook Salmon as Threatened or Endangered Under 
the Endangered Species Act

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, NMFS, announce a 90-day finding on a petition to list Gulf 
of Alaska (GOA) Chinook salmon (Oncorhynchus tshawytscha), or any 
evolutionarily significant unit (ESU) that may exist in the petitioned 
area, as a threatened or endangered species under the Endangered 
Species Act (ESA) and to designate critical habitat concurrent with the 
listing. We find that the petition, viewed in the context of 
information readily available in our files, presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. Therefore, we are commencing a review of the 
status of Gulf of Alaska Chinook salmon to determine whether listing 
under the ESA is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial information 
regarding this species from any interested party.

DATES:  Scientific and commercial data pertinent to the petitioned 
action must be received by July 23, 2024.

ADDRESSES: You may submit data and information relevant to our review 
of the status of GOA Chinook salmon, identified by ``Gulf of Alaska 
Chinook salmon Petition'' or by the docket number, NOAA-NMFS-2024-0042, 
by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2024-0042 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Submit written comments to Anne Marie Eich, 
Assistant Regional Administrator, Protected Resources Division, Alaska 
Region NMFS, Attn. Susan Meyer. Mail comments to P.O. Box 21668, 
Juneau, AK 99802.
    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 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).
    The petition is available on the NMFS website at: https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act.

FOR FURTHER INFORMATION CONTACT: Julie Scheurer, NMFS Alaska Region, 
[email protected], (907) 586-7111; or Heather Austin, NMFS Office 
of Protected Resources, [email protected], (301) 427-8422.

SUPPLEMENTARY INFORMATION:

Background

    On January 11, 2024, we received a petition from the Wild Fish 
Conservancy (petitioner) to delineate and list one or more ESUs of 
Chinook salmon in southern Alaska--which the petition states 
``encompasses all Chinook populations that enter the marine environment 
of the Gulf of Alaska''--as threatened or endangered under the ESA, and 
to designate critical habitat concurrently with the listing. The 
petition indicates that this ``includes all populations on the southern 
side of the Aleutian Peninsula, Cook Inlet, and the coast of Alaska 
south of Cook Inlet to the southern end of the Alaska/British Columbia 
border.'' The petition asserts that GOA Chinook salmon are threatened 
by all of the ESA section 4(a)(1) factors: (1) the present or 
threatened destruction, modification, or curtailment of habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms to address identified threats; and (5) 
other natural or manmade factors affecting its continued existence (16 
U.S.C. 1533(a)(1), 50 CFR 424.11(c)). The petition is available online 
(see ADDRESSES).

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 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)). 
If NMFS finds 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 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 distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). In 1991, NMFS 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). Under this policy, 
a Pacific salmon population is 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 (1) it is substantially reproductively isolated 
from other conspecific populations; and (2) it represents an important 
component in the evolutionary legacy of the species. NMFS has not yet 
used the ESU Policy to define ESUs of Chinook salmon in the petitioned 
area of Alaska.
    In 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS) 
(together, ``the Services'') adopted a joint policy that clarifies the 
Services' interpretation of the phrase ``distinct population segment'' 
for the purposes of listing, delisting, and reclassifying a species

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under the ESA (61 FR 4722; February 7, 1996). In announcing this 
policy, the Services 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.
    A species, subspecies, DPS, or ESU 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 five section 4(a)(1) factors noted above.
    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 will consider the information included in the petition as 
required by 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 will depend 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 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).
    We may 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, letters from authorities). See 50 CFR 
424.14(c)(6).
    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 evaluate the petition. We will accept the petitioners' 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 petitioners' 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 first 
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 may face an extinction risk such that listing 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.
    Many petitions identify risk classifications made by 
nongovernmental organizations, such as the International Union on the 
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 (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species 
classifications under IUCN and the ESA are not equivalent; data 
standards, criteria used to evaluate species, and treatment of 
uncertainty are not necessarily the

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same. 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.

Chinook Salmon Species Description

    The following species description is summarized primarily from 
Groot and Margolis (1991). Chinook salmon (also called ``king'' salmon) 
are the largest species of the Pacific salmon. Like all species in the 
genus Oncorhynchus, Chinook salmon are anadromous (meaning they are 
born in freshwater, migrate to saltwater to feed and grow, and return 
to freshwater to reproduce or ``spawn'') and semelparous (meaning they 
die after spawning once). Chinook salmon naturally range throughout the 
North Pacific Ocean from northern Hokkaido to the Anadyr River on the 
Asian coast and from central California to Kotzebue Sound, Alaska, on 
the North American coast.
    Within their general anadromous life history, Chinook exhibit 
remarkable variation within populations and across their range. Chinook 
salmon are typically 3 or 4 years old when they return to spawn; 
however, age at sexual maturity ranges from 2 to 7 years. Two 
behavioral forms predominate within the Chinook salmon life history. 
``Stream type'' populations spend one or more years as juveniles in 
freshwater before migrating to the sea, often making extensive ocean 
migrations, and return to their natal river in spring or summer to 
spawn. ``Ocean type'' Chinook salmon migrate to sea during their first 
year, often within months of hatching, spend most of their marine phase 
in coastal waters, and return to their natal rivers in the fall to 
spawn. In Alaska, most Chinook salmon demonstrate the stream type 
behavioral form, except for a few ocean type populations in rivers of 
southern Southeast Alaska near the United States border with Canada.

Evaluation of the Petition and Information Readily Available in NMFS's 
Files

    The petitioners request that NMFS delineate and list one or more 
ESUs of Chinook salmon in southern Alaska as threatened or endangered 
under the ESA, and designate critical habitat concurrently with the 
listing. The petition indicates that this ``includes all populations on 
the southern side of the Aleutian Peninsula, Cook Inlet, and the coast 
of Alaska south of Cook Inlet to the southern end of the Alaska/British 
Columbia border.'' We interpret the petitioner's request as asking NMFS 
to consider populations of Chinook salmon on the southern side of the 
Alaska Peninsula, including Kodiak Island, Cook Inlet, Prince William 
Sound, and the GOA coastline and inside waters of Southeast Alaska to 
the United States/Canada border at approximately 54[deg]45' N latitude. 
The petition is accompanied by literature citations and electronic 
copies of supporting material, including published scientific 
literature and unpublished reports.
    In the sections that follow, we provide a synopsis of the 
assertions made in the petition for the population status and trends 
and each of the factors identified in section 4(a)(1) of the ESA, 
followed by our analysis and conclusions that support the 90-day 
finding.

Population Status and Trends

    The petition asserts that since at least 2007, all populations of 
GOA Chinook salmon have experienced significant declines in abundance 
compared to levels exhibited in the previous two or more decades. The 
petition provides as evidence examples of missed escapement goals for 
some stocks. Additionally, the petition asserts that size and age at 
maturity have been decreasing across most populations for more than two 
decades. The petition notes that seven stocks have action plans 
developed in response to their designations by the State of Alaska as 
stocks of management concern.

Analysis of ESA Section 4(a)(1) Factors for GOA Chinook Salmon

    The petition asserts that GOA Chinook salmon is experiencing 
threats under each of the categories listed below and under section 
4(a)(1) of the ESA.

The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    The petition asserts that GOA Chinook salmon habitat is degraded by 
clear-cut logging, erosion and sedimentation, elevated stream 
temperatures, habitat fragmentation, chemical run-off, road building, 
fish passage barriers, and mining.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition asserts that overharvest by directed commercial 
fisheries and bycatch in other commercial fisheries threatens the 
continued existence of GOA Chinook salmon and cites missed escapement 
goals in recent years to support this assertion. The petition asserts 
that reduced recreational harvest in 2021 relative to harvest levels in 
2005 and 2006 indicates overharvest by the recreational sector.

Disease or Predation

    The petition asserts that diseases originating in hatcheries (e.g., 
furunculosis, piscine reovirus, bacterial gill and kidney disease) have 
been transmitted to wild populations, driving mortality of all life 
stages of GOA Chinook salmon.
    The petition asserts that predation pressure on adult GOA Chinook 
salmon is increasing as a result of growing populations of killer 
whales (Orcinus orca), and that humpback whales (Megaptera 
novaeangliae) may be learning to target hatchery releases of Chinook 
salmon in Southeast Alaska.

Inadequacy of Existing Regulatory Mechanisms

    The petition asserts that Federal regulatory mechanisms such as the 
National Environmental Policy Act, ESA, National Forest Management Act, 
and Clean Water Act are failing to provide adequate protection to GOA 
Chinook salmon. The petition broadly states that the State of Alaska's 
management of salmon fisheries has been inadequate and that the state 
has not implemented sufficient corrective actions to address missed 
escapement goals.

Other Natural or Manmade Factors Affecting Its Continued Existence

    The petition asserts that artificial propagation of pink salmon 
increases competition for prey with wild Chinook salmon and has led to 
decreased rates of growth and survival of Chinook salmon.
    The petition asserts that changes in patterns of ocean productivity 
combined with climate change may be threatening GOA Chinook salmon.
    The petition lists numerous potential effects of climate change to 
freshwater, estuarine, and marine habitats, and assumes that nearly all 
will have negative effects on GOA Chinook salmon.

Petition Finding

    We have reviewed the petition, the literature cited in the 
petition, and other literature and information available in our files. 
We identified numerous factual errors, omissions, incomplete 
references, and unsupported assertions and conclusions within the 
petition. For example, the petition only presents escapement data 
through 2021, but in 2022 and 2023, some GOA Chinook salmon populations 
have shown improvements toward meeting their escapement goals. The 
petition also makes vague references to threats from

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logging, road building, mining, overharvest, and competition from 
hatchery salmon without providing specific examples. Nonetheless, we 
find that some of the information in the petition, in particular the 
missed escapement goals in recent years for many stocks in the 
petitioned area, and evidence of decreasing size and age at maturity, 
would lead a reasonable person to believe that the petitioned action 
may be warranted. Additionally, it is likely that more than one ESU 
exists within the petitioned area and, without knowing the boundaries 
of those ESUs, it is challenging to assess the status and trends of 
subpopulations. In light of this uncertainty and the low statutory 
standard at the 90-day stage, we conclude that the petitioned action 
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 GOA Chinook salmon 
constitute one or more ESUs, and if so, whether any such ESU of GOA 
Chinook salmon is in danger of extinction (endangered) throughout all 
or a significant portion of its range, or is likely to become so within 
the foreseeable future (threatened). The petition stated that 
``overharvest'' should be considered as a factor for listing under the 
ESA. Potential overharvest of some populations of Chinook salmon and 
missed escapement targets are not necessarily sufficient to indicate 
that the species may warrant listing under the ESA. Our status review 
will examine recent harvest levels and escapement targets along with 
all of the best available information on the status of the species and 
potential threats. As required by section 4(b)(3)(B) of the ESA, within 
12 months of the receipt of the petition, we will make a finding as to 
whether listing any GOA Chinook salmon ESU as an endangered or 
threatened species is warranted. If listing is warranted, we will 
publish a proposed rule and solicit public comments before developing 
and publishing a final rule.

Information Solicited

    To ensure that our status review is informed by the best available 
scientific and commercial data, we are opening a 60-day public comment 
period to solicit information on GOA Chinook salmon. We request 
information from the public, government agencies, Alaska Native 
organizations, the scientific community, industry, conservation groups, 
fishing groups, or any other interested parties concerning the current 
and/or historical status of GOA Chinook salmon. Specifically, we 
request information regarding:
    (1) species abundance;
    (2) species freshwater and saltwater 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) information on the adequacy of existing regulatory mechanisms, 
whether protections are being implemented, and whether they are proving 
effective in conserving the species;
    (7) data concerning the status and trends of identified limiting 
factors or threats to population persistence;
    (8) information on targeted harvest (commercial and non-commercial) 
and bycatch of the species;
    (9) information to evaluate the ESU factors, specifically,
     whether any populations are substantially reproductively 
isolated from other conspecific populations; and
     whether any population represents an important component 
in the evolutionary legacy 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, growth, age, fecundity, 
recruitment, distribution, and/or extinction risk.
    Please send any comments in accordance with the instructions 
provided in the ADDRESSES section above. 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, and any association, institution, or 
business that the person represents. We will base our findings on a 
review of the best scientific and commercial data available, including 
relevant information received during the public comment period.

References Cited

    A complete list of all references cited herein is available upon 
request (See FOR FURTHER INFORMATION CONTACT).

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

    Dated: May 20, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2024-11381 Filed 5-23-24; 8:45 am]
BILLING CODE 3510-22-P