Endangered and Threatened Wildlife and Plants; Threatened Status for the Southern Distinct Population Segment of the Spotted Seal, 65239-65248 [2010-26764]

Download as PDF Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 65239 REDESIGNATION TABLE—Continued Amended sections: Remove cross-reference citations: § 36.4303(f) ......................................................... § 36.4303(l)(1)(i)(A) ............................................ § 36.4303(l)(1)(i)(B) ............................................ § 36.4303(l)(1)(ii)(D) ........................................... § 36.4306(a) ........................................................ § 36.4306(a)(2) ................................................... § 36.4306(g)(4) ................................................... § 36.4306(g)(4) ................................................... § 36.4306(g)(5) ................................................... § 36.4307(a)(3) ................................................... § 36.4307(a)(3) ................................................... § 36.4307(a)(4)(i) 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........................................................ § 36.4320(a) ........................................................ § 36.4322(b)(2) ................................................... § 36.4322(c) ........................................................ § 36.4322(f)(1)(iv) ............................................... § 36.4323(c) ........................................................ § 36.4323(d)(5)(ii) ............................................... § 36.4323(d)(5)(ii)(B) .......................................... § 36.4323(e) ........................................................ § 36.4853 .......................................................... § 36.4813(e)(2) ................................................. § 36.4813(d)(8) ................................................. § 36.4813(d)(8) ................................................. § 36.4802(a) ..................................................... § 36.4813(d)(7)(i) .............................................. § 36.4813(d)(6) ................................................. § 36.4813 .......................................................... § 36.4802(a) ..................................................... § 36.4839(a)(4) ................................................. § 36.4840 .......................................................... § 36.4813(d) ..................................................... § 36.4839(a)(4) ................................................. § 36.4840 .......................................................... § 36.4802(a) ..................................................... § 36.4802(h) ..................................................... § 36.4854 .......................................................... § 36.4826 .......................................................... § 36.4850(i)(2) .................................................. § 36.4815 .......................................................... § 36.4837 .......................................................... § 36.4813(d)(6) and (d)(7) ................................ § 36.4815 .......................................................... § 36.4829 .......................................................... §§ 36.4860 through 36.4865 ............................ § 36.4859 .......................................................... § 36.4801 .......................................................... § 36.4845(b) ..................................................... § 36.4824(a) ..................................................... § 36.4845(b) ..................................................... § 36.4822(a) ..................................................... § 36.4840 .......................................................... § 36.4801 .......................................................... § 36.4828(b) ..................................................... § 36.4827 .......................................................... § 36.4850(g)(1)(iv) ............................................ § 36.4817(c) ..................................................... § 36.4801 .......................................................... § 36.4801 .......................................................... § 36.4817 .......................................................... § 36.4828 .......................................................... 38 CFR 36.4848 .............................................. § 36.4801 .......................................................... § 36.4823 .......................................................... § 36.4814 .......................................................... § 36.4854(b) ..................................................... § 36.4827 .......................................................... § 36.4828 .......................................................... BILLING CODE 8320–01–P ACTION: SUMMARY: [Docket No. 0909171277–0491–02] RIN 0648–XR74 emcdonald on DSK2BSOYB1PROD with RULES Final rule. DEPARTMENT OF COMMERCE 50 CFR Part 223 Endangered and Threatened Wildlife and Plants; Threatened Status for the Southern Distinct Population Segment of the Spotted Seal National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: 16:27 Oct 21, 2010 § 36.4353. § 36.4313(e)(2). § 36.4313(d)(8). § 36.4313(d)(8). § 36.4302(a). § 36.4313(d)(7)(i). § 36.4313(d)(6). § 36.4313. § 36.4302(a). § 36.4339(a)(4). § 36.4340. § 36.4313(d). § 36.4339(a)(4). § 36.4340. § 36.4302(a). § 36.4302(h). § 36.4354. § 36.4326. § 36.4350(i)(2). § 36.4315. § 36.4337. § 36.4313(d)(6) and (d)(7). § 36.4315. § 36.4329. §§ 36.4360 through 36.4365. § 36.4359. § 36.4301. § 36.4345(b). § 36.4324(a). § 36.4345(b). § 36.4322(a). § 36.4340. § 36.4301. § 36.4328(b). § 36.4327. § 36.4350(g)(1)(iv). § 36.4317(c). § 36.4301. § 36.4301. § 36.4317. § 36.4328. 38 CFR 36.4348. § 36.4301. § 36.4323. § 36.4314. § 36.4354(b). § 36.4327. § 36.4328. National Oceanic and Atmospheric Administration [FR Doc. 2010–26580 Filed 10–21–10; 8:45 am] VerDate Mar<15>2010 Add, in its place, new cross-reference citations: Jkt 223001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 We, NMFS, issue a final determination to list the southern distinct population segment (DPS) of the spotted seal (Phoca largha) as a threatened species under the Endangered Species Act (ESA). Because the southern DPS occurs outside the United States, no critical habitat is proposed for designation. DATES: This final rule is effective on November 22, 2010. ADDRESSES: NMFS, Protected Resources Division, Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK 99802. FOR FURTHER INFORMATION CONTACT: Kaja Brix at the address above or at (907) E:\FR\FM\22OCR1.SGM 22OCR1 65240 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 586–7235, or Marta Nammack, Office of Protected Resources, Silver Spring, MD (301) 713–1401. The final rule, status review, and other materials supporting this final rule can be found on our Web site at http://www.fakr.noaa.gov/. SUPPLEMENTARY INFORMATION: emcdonald on DSK2BSOYB1PROD with RULES Background On March 28, 2008, we initiated a status review of the spotted seal under the ESA (73 FR 16617). On May 28, 2008, we received a petition from the Center for Biological Diversity to list the spotted seal as a threatened or endangered species under the ESA, primarily due to concern about threats to this species’ habitat from climate warming and loss of sea ice. The Petitioner also requested that critical habitat be designated for spotted seals concurrent with listing under the ESA. In response to this petition, we published a 90-day finding that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted (73 FR 51615; September 4, 2008). Accordingly, we proceeded with the ongoing status review of spotted seals and solicited information pertaining to the species. After the status review report was completed by the Biological Review Team (BRT), on October 20, 2009 (Boveng et al., 2009), we made a 12month petition finding and proposed to list the southern DPS of the spotted seal as threatened under the ESA (74 FR 53683). In the proposed rule we announced a 60-day public comment period that closed December 21, 2009. We also initiated independent peer review of the proposed listing determination. We fully considered all comments received from peer reviewers and the public in developing this final rule and finalizing the spotted seal status review (all DPSs). ESA Statutory, Regulatory, and Policy Provisions The ESA defines the term ‘‘endangered species’’ as ‘‘any species which is in danger of extinction throughout all or a significant portion of its range’’ and the term ‘‘threatened species’’ as ‘‘any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.’’ The ESA’s definition of a species includes subspecies and distinct population segments. The term ‘‘distinct population segment’’ (DPS) is not commonly used in scientific discourse, so the U.S. Fish and Wildlife Service (USFWS) and NMFS developed the ‘‘Policy Regarding the Recognition of Distinct Vertebrate VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 Population Segments Under the Endangered Species Act’’ to provide a consistent interpretation of this term for the purposes of listing, delisting, and reclassifying vertebrates under the ESA (61 FR 4722; February 7, 1996). We describe and use this policy in delineating the southern DPS as one of three DPSs of spotted seals. In conducting the spotted seal status review, we endeavored to assess the threats to the species to the extent such threats can be forecast into the future, keeping in mind that there is greater uncertainty the farther out the analysis extends. The potential consequences of the key threat of climate change have been projected through 2050 and the end of the 21st century. The status review report considered the climate projections through the end of the 21st century in assessing the threats stemming from climate change, noting that there was less variation in the time period leading up to 2050 compared to the period between 2050 and 2100. We used a similar approach to assess the extinction risks from other threats. This review is similar and consistent with the one prepared for the ribbon seal. We have not determined here that 2100 constitutes ‘‘the foreseeable future.’’ There is too much variability beyond 2050 to make that determination. As a result, we examined the best scientific and commercial data available out to 2100, all of which recognize these inherent uncertainties. Because there is little or no information to support a quantitative assessment of the primary threats to spotted seals, our risk assessment was primarily qualitative and based upon expert opinion of the BRT members. This is a common procedure that we have used in numerous other ESA listing determinations (e.g., Pacific salmon, rockfishes, etc.). Basic Species Biology A review of the life history and ecology of the spotted seal is presented in the status review report (Boveng et al., 2009). The spotted seal (also known as the largha seal) is a close relative of the harbor seal (Phoca vitulina). Little information is published on the biological characteristics of spotted seal populations. Spotted seals have a lifespan of about 30 to 35 years. They become sexually mature at 3 to 5 years of age, varying over regions and time, and adult females usually give birth every year to a single pup which is nursed for 2 to 4 weeks and then left to fend for itself. Spotted seals are widely distributed on the continental shelf of the Beaufort, Chukchi, southeastern East Siberian, PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 Bering and Okhotsk seas, and to the south throughout the Sea of Japan and into the northern Yellow Sea. Their range extends over about 40 degrees of latitude from Point Barrow, Alaska, in the north (71° N. lat.) to the Yangtse River, China, in the south (31° N. lat.). The distribution of spotted seals is seasonally related to specific life history events that can be broadly divided into two periods: late fall through spring, when whelping, nursing, breeding, and molting all take place in association with the presence of sea ice on which the seals haul out, and summer through fall, when the sea ice has melted and spotted seals remain closer to shore to use land for hauling out. The annual timing of spotted seals’ reproduction has evolved to coincide with the average period of maximum extent and stability of the seasonal sea ice, which varies latitudinally across their range. From late fall through spring, spotted seal habitat-use is closely associated with the distribution and characteristics of the seasonal sea ice. The ice provides a dry platform away from land predators during the whelping, nursing, breeding, and molting periods. When sea ice begins to form in the fall, spotted seals start to occupy it immediately, concentrating in large numbers on the early ice that forms near river mouths and estuaries. In winter, as the ice thickens and becomes shorefast along the coasts, spotted seals move seaward to areas near the ice front with broken ice floes. Spotted seals can only make and maintain holes in fairly thin ice and have been known to travel 10 kilometers (km) or more over solid ice in search of cracks or open patches of water. Spotted seals usually avoid very dense, compacted ice and stay near the ice front. Recent research has also shown that, unlike spotted seals in more northerly latitudes, a portion of spotted seals in the Peter the Great Bay and the northern Yellow Sea uses shore lands as haul-out sites for whelping, nursing, breeding, and molting (Wang, 1986; Trukhin, 2005; Nesterenko and Katin, 2008; Nesterenko and Katin, 2009). Spotted seal terrestrial haul-out sites are usually remote and located on isolated mud, sand, or gravel beaches, or on rocks close to shore. Spotted seals appear to be generalist feeders with a varied diet. Most studies have found that fish are the spotted seal’s primary prey. Diet and regional and seasonal differences in foods of spotted seals are related to the seasonal distribution and abundance of their principal prey species. E:\FR\FM\22OCR1.SGM 22OCR1 emcdonald on DSK2BSOYB1PROD with RULES Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations Summary of Comments Received in Response to the Proposed Rule We received written comments on the proposed rule from nine commenters during the 60-day comment period (74 FR 53683; October 20, 2009): five from non-profit groups and private individuals, three from oil and gas companies and trade associations, and one from the Marine Mammal Commission. We did not receive a request for a public hearing on the proposed rule. In all, five commenters supported listing the southern DPS of the spotted seal, two opposed the listing, and two commenters stated neither support nor opposition for the ruling. A joint NMFS/U.S. Fish and Wildlife Service policy requires us to solicit independent expert review from at least three qualified specialists (59 FR 34270; July 1, 1994). Further, in December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106–554), is intended to enhance the quality and credibility of the Federal Government’s scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. Pursuant to our 1994 policy and the OMB Bulletin, we solicited four independent specialists with expertise in marine mammalogy and with specific knowledge of spotted seals to review our proposed listing determination. We received comments from all four peer reviewers. Three of these reviewers were supportive of our conclusions, and the fourth reviewer had comments and questions regarding certain aspects of the proposed listing. We fully considered comments received from the public and peer reviewers on the proposed rule in developing this final listing of the southern DPS of the spotted seal. Summaries of the substantive public and peer review comments received regarding our listing determination for the southern DPS, and our responses to all of the significant issues they raise, are provided below. Some peer reviewers also provided helpful comments of an editorial nature that noted inadvertent errors in the proposed rule and offered non-substantive but clarifying changes to wording. We have incorporated these editorial comments in this final rule. Because these VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 comments did not result in substantive changes to the final rule, we have not detailed them here. We also received comments addressing our final decision regarding the Bering and Okhotsk DPSs. Since that decision is now final and this rulemaking concerns the listing of the southern DPS, we have not provided specific responses to those comments, though some of them are identical to comments on the southern DPS and therefore are addressed in our responses. Although this final rule incorporates clarifications to our proposed listing based on these comments, as discussed below, none of these clarifications changed our proposed listing determination. This final rule lists the southern DPS of the spotted seal as threatened under the ESA and extends section 9 prohibitions to this DPS. Independent Peer Reviewer Comments Comment 1: The peer reviewers varied in their assessments of whether the southern population segment of the spotted seal satisfies the discreteness and significance elements of our DPS policy. Two peer reviewers generally agreed with the conclusion that the southern population segment is both discrete and ecologically significant. Another peer reviewer suggested that emphasizing the unique ecology, behavior, and likely physiological differences between spotted seals in the southern DPS and other populations might provide stronger evidence to support discreteness and significance for the DPS than the emphasis placed in the status review report on limited genetic information. This reviewer also noted that differences between the Peter the Great Bay and Liaodong Bay spotted seal concentrations may be substantial enough to consider them as separate DPSs, but that this possibility was not discussed. Finally, the fourth peer reviewer suggested that given the Peter the Great Bay population appears to be near historical levels and stable, and that Russia has established the Far Eastern Marine Reserve in this bay, an argument could be made that the proposed listing be limited to the Liaodong Bay population. Response: We agree that there are some distinctive aspects to the ecology and behavior of the southern DPS, and we considered them in evaluating the significance of the DPS to the spotted seal population as a whole. However, these characteristics may reflect adaptations to local conditions and do not necessarily relate directly to population discreteness. We are also unaware of any available information PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 65241 about spotted seal physiology that is relevant to delineating the southern DPS. Therefore, we continue to distinguish the southern DPS based primarily on the available genetic information because we find that these data likely provide stronger direct evidence of spotted seal population structure. Regarding designation of DPSs, Congress directed the Services to use the authority to list them ‘‘sparingly,’’ while encouraging the conservation of genetic diversity (61 FR 4722; February 7, 1996). We believe that our decision to include both the Liaodong Bay and Peter the Great Bay concentrations within the southern DPS, rather than to designate them as separate DPSs, is most consistent with this guidance and is supported by the best available data. Moreover, after further review of the available abundance information on the Peter the Great Bay population discussed in the status review report, we conclude that this population has been reduced from historical numbers, as opposed to our characterization in the proposed rule that it is near historical levels. Overall, the available information indicates a long-term decline in abundance. Some growth of this population may have occurred following establishment of the Far Eastern Marine Reserve in 1978. However, recent apparent population stability has been ascribed to limitation by mortality of spotted seals incidental to fishery activities. Comment 2: Two peer reviewers noted that there were very limited data presented to support the description of the present range of the southern DPS. One of these reviewers characterized the proposed northern extent of the southern DPS (splitting the north coast of Hokkaido) as arbitrary given the lack of data for Tatar Strait and the suggestion by researchers that there may be movement of seals between the southern Okhotsk Sea and Sea of Japan. This reviewer asked whether there are any other data available to support the delineation of the northern extent of the southern DPS, including from any tracking studies on spotted seals in the southern DPS that could provide information on movement patterns. In addition, this reviewer commented that a more formal involvement of scientists working on spotted seals outside U.S. waters would have greatly benefitted delineation of spotted seal DPSs and assessment of their extinction risk. Response: We acknowledge that additional movement and genetics data, in particular for the Tatar Strait population, might help to resolve some areas of uncertainty in describing the range of the southern DPS. But we are E:\FR\FM\22OCR1.SGM 22OCR1 emcdonald on DSK2BSOYB1PROD with RULES 65242 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations not aware of any available spotted seal tracking data that could inform our delineation of the DPS. Therefore, as discussed in this final rule, we continue to describe the northern extent of this DPS based on the best available genetic data. We also note that the BRT solicited reviews of the spotted seal status review report from several scientists involved in spotted seal research outside U.S. waters, but it received no responses. The ESA requires that our determinations be based upon the best scientific and commercial data available at the time a decision is made. Comment 3: One peer reviewer noted that given the limited amount of available data for the southern DPS, it is reasonable there is no quantitative evaluation of extinction risk. Another peer reviewer stated that no information was presented on extinction risk relating to small population size or declines in abundance in the southern DPS. This reviewer also noted that no reasons were given for the marked decline of the Liaodong Bay population since 1940, nor were data provided on whether the decline is continuing. Response: Overall, the southern DPS exists at reduced abundance levels where additional loss would threaten this DPS through demographic stochasticity (variation in population growth arising from chance events in individual survival and reproductive success) or small population effects. Risks related to small population size are discussed in more detail in the spotted seal status review (Boveng et al., 2009). The decline in the Liaodong Bay population in the 20th century has been attributed to over-hunting and habitat destruction. The most recent available abundance estimate for the Liaodong Bay population (2007) is 800 animals. Comment 4: One peer reviewer stated that the assessment of risks posed by oil and gas development to the southern DPS appears inadequate and cursory, and that the conclusion in the proposed rule that ‘‘such activities will not place or contribute to placing the spotted seal in danger of extinction in the foreseeable future’’ does not appear supportable for this DPS, given population numbers and trends in Peter the Great Bay and Liaodong Bay. A similar public comment was received. Response: The most significant issue associated with oil and gas exploration and development would be potential oil spills produced by these activities. A large oil spill in the Yellow Sea at the port of Dalian, China, in July 2010 illustrates the potential for spills in this region. We conclude that the risk posed to the southern DPS from oil and gas activities is high given the very low VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 abundance of this DPS and the possible consequences of a large oil spill on these seals, particularly from an oil spill in the Bohai Sea. We also acknowledge that inadequacy or lack of stringency of mechanisms to regulate oil and gas activities in the Yellow Sea could contribute to the cumulative risk faced by the southern DPS, and we have revised the final rule to reflect this. Public Comments Comment 5: One commenter stated that the potential effects of pollution on the spotted seal were underestimated. Response: Most spotted seal contaminant research has been conducted in the Bering Sea and coastal areas around Hokkaido, Japan. Information about pollutants in waters and sediments in the range of the southern DPS were used for inference about potential risk from contaminants. We do not have any information at this time to conclude that there are population-level effects from contaminant exposure. A more detailed discussion of the subject can be found in the status review report (Boveng et al., 2009). Comment 6: One commenter stated that the lack of regulatory mechanisms to address loss of sea ice habitat due to global warming poses a significant threat to the spotted seal, and so inadequacy of existing regulatory mechanisms should have been included as a significant factor contributing to the extinction risk for the species. Response: We acknowledge that there are currently no effective mechanisms to regulate global greenhouse gas (GHG) emissions, which are contributing to global climate change and associated loss of sea ice. The risk posed to the southern DPS by the lack of mechanisms to regulate GHG emissions is directly correlated to and difficult to distinguish from the risk posed by the effects of these emissions. The projections we used to assess risks from GHG emissions were based on the assumption that no regulation will take place (the underlying IPCC emissions scenarios were all ‘‘non-mitigated’’ scenarios). Therefore, the lack of mechanisms to regulate GHG emissions is already included in our risk assessment. We have clarified this final rule to acknowledge that the lack of effective mechanisms to regulate global GHG emissions is contributing to the cumulative risk faced by the southern DPS. We also note that the long persistence of CO2 in the atmosphere would complicate the effectiveness of any regulatory action. Consequently, the ability of any GHG regulations to PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 effectively counter the climate-change related threats to the species likely would not be discernable until the latter half of the century, when projected conditions are very uncertain regardless of potential regulations. Comment 7: One commenter disputed our conclusion that the nature and timing of ocean acidification impacts are highly uncertain. Response: We acknowledge that ocean acidification may affect spotted seal survival and recruitment through disruption of food webs and ecosystem processes. However, the possible ecological outcomes of ocean acidification are complex, are expected to manifest over a timescale of uncertain length, and rely on interaction of numerous variables. While the ocean chemistry changes associated with ocean acidification are predictable, the ultimate effects within the foreseeable future specific to spotted seal viability are much less clear. For example, we do not have sufficient understanding of lower trophic level organisms upon which spotted seal prey depend, including information on the baseline geographic distributions of these organisms, to evaluate the potential impact of ocean acidification on seal prey species. Given the apparent diet flexibility of the spotted seal, we do not believe that ocean acidification is a significant factor causing the southern DPS to become endangered in the foreseeable future. Comment 8: Two commenters noted that loss of sea ice habitat was identified as a significant risk factor for the southern DPS even though spotted seals have shown the ability to adapt to using terrestrial sites. Response: The status of the southern DPS of the spotted seal is likely to be maintained or worsened by the cumulative effects of multiple stressors, which include loss of sea ice habitat. As discussed in the spotted seal status review report (Boveng et al., 2009) and this final rule, although spotted seals have shown some capability to adapt to terrestrial breeding and molting sites, they are more vulnerable to predation, disturbance, and disease while hauled out on shore. It is likely that this is why seals that breed ashore select sites such as offshore rocks and uninhabited islands that are relatively inaccessible to predators. In addition, the viability of terrestrial site use may be limited by the relative scarcity of suitable habitat, especially because a portion of the southern DPS already uses terrestrial sites. Thus, we conclude that loss of sea ice habitat is a significant risk factor for the southern DPS. E:\FR\FM\22OCR1.SGM 22OCR1 emcdonald on DSK2BSOYB1PROD with RULES Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations Comment 9: Two commenters expressed concern about data gaps revealed in the status review report and cited the need for additional research to fill these gaps. One of these commenters also cited the need for strengthened international collaborative efforts to assess the status of spotted seal populations throughout their range, and to identify any need for protective measures. Response: We acknowledge that there is currently little or no information available to support a quantitative assessment of the primary threats to spotted seals. We agree that additional research and international collaborative efforts may help resolve areas of uncertainty and could add to the ecological knowledge of this species. Our determination to list the southern DPS is supported by the best scientific and commercial data currently available. Comment 10: Two commenters questioned the timeframe considered in assessing the risk posed to the spotted seal from global climate change, and suggested the possibility that future intervening actions might reduce GHG emissions. Response: Because the mostly widely accepted climate change projections (which currently form the best available information about future conditions) have been made through the end of the 21st century, we considered climate projections through both 2050 and the end of the 21st century, while keeping in mind that there is greater uncertainty the farther out that projections extend (i.e., beyond 2050). The effect of increased GHG emissions since the preindustrial era has been widespread warming of the climate (IPCC, 2007). A net result of this warming is loss of sea ice. The best available information indicates that sea ice will continue to be affected by climate change, and that even if actions are taken to mitigate GHG emissions, a continued warming trend would be expected through midcentury and beyond (IPCC, 2007). The southern DPS is currently being affected by sea ice loss, and it is expected that by about the middle of the 21st century seasonal sea ice will rarely form within the range of this DPS. Although the uncertainty associated with climate projections is greater the farther out that projections extend, it is clear that loss of sea ice habitat is a significant risk factor for the southern DPS within the foreseeable future. Therefore, we continue to conclude that the timeframes considered in our assessment of the risks posed to this DPS from global climate change are VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 appropriate and are supported by best available scientific data. Comment 11: One commenter suggested that listing the spotted seal under the ESA may be an avenue toward regulating GHG emissions, and that if the southern DPS is listed as ‘‘threatened,’’ a special rule should be implemented for this DPS under ESA section 4(d) to exclude application of ESA take restrictions to GHG-emitting projects. This commenter also stated that in determining whether to list the spotted seal under the ESA, a causal connection must be established between factors suggested as affecting the health of spotted seal populations and NMFS’ determinations concerning their status. In addition, this commenter requested that any final rule explicitly acknowledge the lack of scientific data to draw a causal link between GHG emissions from specific projects and effects on the spotted seal or any other species. Response: NMFS was petitioned to evaluate the status of the spotted seal under the ESA. The mandate of the statute is to determine, on the basis of the best available scientific and commercial data, ‘‘whether any species is an endangered species or a threatened species’’ because of ‘‘any’’ of the factors listed in Section 4(a)(1) of the ESA. The statute thus places emphasis on determining the status of the species, and does not require that the Service attempt to prove causal linkages between particular factors and the resultant status. This final rule fully meets the ESA’s standard. Attempting to establish casual linkages between specific GHG emission sources and effects on spotted seals is not necessary to draw conclusions as to whether the southern DPS meets the definition of a ‘‘threatened species’’ under the ESA. We previously proposed and are now issuing a final rule under section 4(d) of the ESA. In that rule, we extend the section 9 prohibitions to the southern DPS because we conclude that such action is necessary and advisable to provide for the conservation of the southern DPS. We have not excluded from the section 9 prohibitions any specific GHG-emitting project or such projects generally because we do not believe that that type of exclusion is necessary for the implementation of the 4(d) rule or necessary and advisable for the conservation of the species. Species Delineation To be considered for listing under the ESA, a group of organisms must constitute a ‘‘species,’’ which Section 3(16) of the ESA defines as ‘‘any subspecies of fish or wildlife or plants, PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 65243 and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.’’ Our DPS policy (61 FR 4722; February 7, 1996) describes two elements to be considered in deciding whether a population segment can be identified as a DPS under the ESA: (1) Discreteness of the population segment in relation to the remainder of the species to which it belongs; and (2) significance of the population segment in relation to the remainder of the species to which it belongs. The southern segment of spotted seals was found to be discrete primarily on the basis of its genetic composition (Boveng et al., 2009; 74 FR 53683, October 20, 2009). Genetic data on population structure exist from four studies of spotted seals. The preliminary conclusions drawn from examination of mitochondrial (mtDNA) from 247 spotted seals and 18 micro-satellite loci for 207 spotted seals support a phylogeographic break between seals of the Yellow Sea-Sea of Japan region and seals of the Okhotsk, Bering, and Chukchi seas (O’Correy-Crowe and Bonin, 2009). Another study found low nuclear genetic variability among 176 spotted seals from Liaodong Bay, the primary breeding area in the Yellow Sea (Han et al., 2010), a finding consistent with a previous report of low diversity in mtDNA haplotypes (Han et al., 2007). Moreover, a distinctive genetic marker (consisting of a single base-pair insertion in the threonine transfer RNA gene) was reported as present in all seals from Liaodong Bay but not in samples tested from the Sea of Japan and Sea of Okhotsk, indicative of little or no immigration of females into the Yellow Sea population. A fourth study found no phylogenetic structure in mtDNA from 66 spotted seals sampled along the northern coast of Hokkaido in the far northeastern portion of the Sea of Japan, and could not dismiss the possibility that spotted seals on the northwest Hokkaido coast during winter are part of the southern Sea of Okhotsk breeding population (Mizuno et al., 2003). This is currently the only information available on where in the Sea of Japan to place a population dividing line corresponding to the genetic break suggested by the multiregion DNA study described above. Because no samples from the Tatar Strait (northwest of Hokkaido) have been included in genetic studies, and the samples from Hokkaido are not obviously distinct from the Sea of Okhotsk samples, the population division with the most support from the available genetic data is a line along 43° N. latitude that divides the spotted seal E:\FR\FM\22OCR1.SGM 22OCR1 65244 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations emcdonald on DSK2BSOYB1PROD with RULES range to include a southern segment composed of the breeding concentrations of the Yellow Sea and Peter the Great Bay in the Sea of Japan. We assessed the existence and implications of international governmental boundaries between breeding populations, and determined that considerations of cross-boundary management and regulatory mechanisms do not outweigh or contradict this division. The southern segment was also determined to be significant relative to the spotted seal species as a whole based on (1) its persistence in an ecological setting that is unique; and (2) whether the loss of the discrete population segment would result in a significant gap in the range of the species. In the southern DPS some unknown portion of the Yellow Sea breeding concentration (Liaodong Bay) and all or nearly all seals breeding in Peter the Great Bay whelp and nurse on shore. In Peter the Great Bay, pups born ashore have been observed to enter the water prior to weaning, a behavior that is not typical among pups born on ice. Although it is not clear how long these behaviors have been occurring within the southern segment of the species’ range, they may reflect responses or adaptations to changing conditions at the range extremes, and their uniqueness may provide insights about the resilience of the species to the effects of climate warming. In addition, the spotted seal is the only phocid (true seal) species inhabiting the waters of the Yellow Sea and Sea of Japan; whereas, four to five phocid species overlap within the remainder of the range of the spotted seal. Finally, the southern DPS extends over a vast area that includes two concentration areas of spotted seal breeding. Loss of this population segment would result in a substantial contraction of the overall extent of the range of the spotted seal. In summary, given the best scientific and commercial data available, we conclude that the southern population segment of the spotted seal is both discrete and biologically and ecologically significant and should therefore be considered a DPS under the ESA. We refer to this population segment as the southern DPS throughout this final rule. Status of the Southern DPS of the Spotted Seal Several factors make it difficult to accurately assess spotted seals’ abundance and trends. The remoteness and dynamic nature of their sea ice habitat along with their broad distribution and seasonal movements VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 make surveying spotted seals expensive, highly unpredictable, and logistically challenging. Additionally, the species’ range crosses political boundaries, and there has been limited international cooperation to conduct range-wide surveys. Details of survey methods and data are often limited or have not been published, making it difficult to judge the reliability of the reported numbers. Logistical challenges also make it difficult to collect the necessary behavioral data to make proper refinements to seal counts. Survey data were often inappropriately extrapolated to the entire survey area based on seal densities and ice concentration estimates without behavioral research to determine factors affecting habitat selection. For example, no suitable behavioral data have been available to correct for the proportion of seals in the water at the time of surveys. Spotted seal haul-out behavior likely varies based on many factors such as time of year and time of day, daily weather conditions, age and sex. With these limitations in mind, the best scientific and commercial data available indicate that the population size of spotted seals in the Yellow Sea (Liaodong Bay) increased from about 7,100 in 1930 to a maximum of 8,137 in 1940. The population then declined over the next 4 decades to a minimum of 2,269 in 1979, before increasing again to about 4,500 in 1990. Despite conservation efforts by the Chinese and South Korean Governments, the Liaodong Bay population continued to decline to around 800 individuals by 2007, which is the current estimate for this population. The decline in the population during the 20th century has been attributed to over-hunting and habitat destruction (Won and Yoo, 2004). Historical harvest records suggest that there were probably several thousand spotted seals in Peter the Great Bay in the Sea of Japan at the end of the 19th century. Abundance likely decreased considerably until the 1930s as the human population and hunting increased in this region. Shipboard surveys conducted in 1968 placed the spotted seal population at roughly several hundred individuals. Recent year-round studies have placed the most current estimate at about 2,500 spotted seals that inhabit Peter the Great Bay in the spring, producing about 300 pups annually, and now reproducing on shore rather than on ice. Summary of Factors Affecting the DPS Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 424) set forth procedures for listing species. We PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 must determine, through the regulatory process, if a species is endangered or threatened because of any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence. In making this finding, we considered the best scientific and commercial data available regarding the status and trends of the southern DPS. These factors are discussed below. As mentioned above, because there is little or no information to support a quantitative assessment of the primary threats to spotted seals, our risk assessment was primarily qualitative and based upon expert opinion of the BRT members. Present or Threatened Destruction, Modification, or Curtailment of the Species’ Habitat or Range The main concern about the conservation status of the southern DPS stems from observed changes in its sea ice habitat which are likely the result of the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming and sea ice decline in the foreseeable future. A second related concern is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem. A reliable assessment of the future conservation status of the southern DPS requires a focus on projections of specific regional conditions, especially sea ice. For the Sea of Japan and Yellow Sea, current global climate models for sea ice do not perform satisfactorily due to model deficiencies and the small size of the region compared to the spatial resolution of the climate models (Boveng et al., 2009). As a result, inferences about future ice conditions in these areas were drawn indirectly from projections of air or sea surface temperatures, and thus have greater associated uncertainties than sea ice projections. In the BoHai Sea and Peter the Great Bay, ice thickness is likely to depend more on the thickness of in situ ice formation than in the Bering Sea and Sea of Okhotsk because smaller wind fetches and shorter durations of ice cover would be expected to cause less ridging and rafting. Projected warming in this region indicates that reliable annual ice formation is likely to cease by the latter half of the 21st century. E:\FR\FM\22OCR1.SGM 22OCR1 emcdonald on DSK2BSOYB1PROD with RULES Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations The southern DPS appears to have some capability to accomplish reproduction and molting on shore when ice is not available. However, pinnipeds are generally not well protected from predation when they are constrained by the necessity of maintaining a mother-pup bond; that is, when escape to the water may disrupt the bond or poses thermoregulation problems for the pup. Therefore, suitable space to reproduce on land is likely limited to offshore rocks and small islands without human habitation, which appear to be relatively scarce in the southern DPS. We conclude that the loss of sea ice habitat is a significant factor in our classification of the southern DPS as threatened. Ocean acidification, a result of increased greenhouse gases such as carbon dioxide in the atmosphere, may impact spotted seal survival and recruitment through disruption of trophic regimes that are dependent on calcifying organisms. The nature and timing of such impacts are extremely uncertain. Because of spotted seals’ apparent dietary flexibility, and acknowledging our present inability to predict the extent and consequences of acidification, we find this to be a threat with potential to have serious effects, but conclude that it does not contribute significantly to the status of the species for the foreseeable future. It is thus not significant to our conclusion to list the southern DPS of the spotted seal as threatened under the ESA. Changes in spotted seal prey, anticipated in response to ocean warming and loss of sea ice and, potentially, ocean acidification, have the potential for negative impacts on spotted seals, but the possibilities are complex. Some changes already documented in the Bering Sea and the North Atlantic Ocean are of a nature that could be beneficial to spotted seals. For example, several fish species, including walleye pollock (Theragra chalcogramma), a common spotted seal prey, have shown northward distribution shifts and increased recruitment in response to warming, at least initially. These ecosystem responses may have very long lags as they propagate through trophic webs. Apparent flexibility in spotted seal foraging locations and habits may make these threats a lower risk than the more direct impacts from changes in sea ice. The above analyses of the threats associated with impacts of the warming climate on the habitat of the southern DPS, to the extent that they may pose risks to these seals, are expected to manifest throughout the current breeding and molting range (for sea ice VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 related threats) or throughout the entire range (for ocean warming and acidification) of the DPS, since the finer scale spatial distribution of these threats is not currently well understood. Over-Utilization for Commercial, Subsistence, Recreational, Scientific, or Educational Purposes Recreational, scientific, and educational utilization of the southern DPS is currently at low levels and is not projected to increase to significant threat levels in the foreseeable future. The establishment of the Far Eastern Marine Reserve in Peter the Great Bay in 1978 prohibited hunting of spotted seals within the reserve, but it is unknown what level of hunting (if any) occurs outside the reserve’s boundaries. Currently, there is not believed to be any commercial or subsistence take of spotted seals in the Yellow or Bohai seas, and the incidence of poaching is believed to be decreasing due to strengthened monitoring and enforcement. We therefore find that this factor does not contribute significantly to the status of the southern DPS or to our conclusion to list the southern DPS of the spotted seal as threatened under the ESA. Diseases, Parasites, and Predation A variety of pathogens (or antibodies), diseases, helminths, cestodes, and nematodes have been found in spotted seals. The prevalence of these agents is not unusual among seals, but whether there is an associated population-level impact is unknown. There has been speculation about increased risk of outbreaks of novel pathogens or parasites in marine systems as climaterelated shifts in species distributions lead to new modes of transmission. However, no examples directly relating climate change to increased severity or prevalence of disease have been documented. Some types of diseases may decrease in severity or prevalence with increasing temperature. Therefore, it is not currently possible to predict the consequences of climate warming on disease or pathogen biodiversity in general or on spotted seal viability in particular. There is little or no direct evidence of significant predation on spotted seals, and they are not thought to be a primary prey of any predators. However, predation risk could increase if loss of sea ice requires spotted seals to spend more time in the water or more time on shore, but predator distributions and behavior patterns may also be subject to climate-related changes, and the net impact to spotted seals cannot be predicted. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 65245 Inadequacy of Existing Regulatory Mechanisms There are currently no effective mechanisms to regulate global GHG emissions, which are contributing to global climate change and associated modifications to spotted seal habitat. The risk posed to the southern DPS due to the lack of mechanisms to regulate GHG emissions is directly correlated to and difficult to distinguish from the risk posed by the effects of these emissions. The projections we used to assess risks from GHG emissions were based on the assumption that no regulation will take place (the underlying IPCC emissions scenarios were all ‘‘non-mitigated’’ scenarios). Therefore, the lack of mechanisms to regulate GHG emissions is already included in our risk assessment. Still, we recognize that the lack of effective mechanisms to regulate global GHG emissions is contributing to the risks posed to the southern DPS by these emissions. Inadequacy or lack of stringency of mechanisms to regulate oil and gas activities in the Yellow Sea may be a similarly relevant factor regarding the cumulative risk faced by the southern DPS. However, large oil spill events are infrequent, and the ability to respond to them depends on a variety of factors, including timing, location and weather. Other Natural or Human Factors Affecting the Species’ Continued Existence Spotted seals may be adversely affected by exposure to certain pollutants. Pollutants such as organochlorine compounds and heavy metals have been found in high concentrations in some Arctic phocids. Butyltin (BT) compounds are used as antifouling agents in ship bottom paints. They are retained in all tissues, though largely in the liver rather than the blubber where polychlorinated biphenyls (PCBs) and dichlorodiphenyl-trichloroethane (DDT) accumulate. BTs have been found in spotted seals, and some studies suggest marine mammals may have difficulty metabolizing these compounds. Research has also found persistent organochlorine pollutants (POPs), including flame retardant compounds like PBDEs as well as DDTs, PCBs, and perfluorinated contaminants (PFCs) in spotted seals. We do not believe organochlorine levels are affecting ice seal populations at this time. We have no data or model predictions of levels expected in the foreseeable future. However, current levels should be used as a baseline for future research as concentrations in E:\FR\FM\22OCR1.SGM 22OCR1 emcdonald on DSK2BSOYB1PROD with RULES 65246 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations surrounding Arctic regions continue to rise. Climate change has the potential to increase the transport of pollutants from lower latitudes to the Arctic through changes in ocean current patterns, highlighting the importance of continuing to monitor spotted seal contaminant levels. We note that most spotted seal contaminant research has been done in the Bering Sea and coastal areas around Hokkaido, Japan. Information about pollutants in water and sediments in the range of the southern DPS was used to draw inferences about potential risk from contaminants. Due to low water exchange and continued exposure to pollution, it is likely that high levels of contaminants would be found in seals of the Yellow Sea. However, we do not have any information to conclude that there are any population-level effects from contaminant exposure. As discussed above, oil and gas activities have the potential to adversely affect spotted seals. As far as is known, spotted seals have not been affected by oil spilled as a result of industrial activities even though such spills have occurred in spotted seal habitat. Oil and gas development in the Sea of Okhotsk resulted in an oil spill in 1999, which released about 3.5 tons of oil. Also, in December 2007 approximately 10,500 tons of crude oil spilled into the Yellow Sea offshore of South Korea’s Taean Peninsula from a tanker. The size of the oil spill was about one-fourth that of the Exxon Valdez spill in 1989, and was the largest in Korean history. It is unknown how many seals may have been affected by this spill. Incidences of oil spills are expected to increase with the on-going increase in oil and natural gas exploration/development activities in the Bohai and Yellow seas. Accompanying growth in tanker and shipping traffic could further add to the oil spill potential. According to experts in China, the threat of future oil spills remains high. Though the probability of an oil spill affecting a significant portion of the southern DPS in the foreseeable future is low, the potential impacts from such a spill could be significant. The potential impacts would be greatest when spotted seals are relatively aggregated. Such an event in the Bohai Sea could be particularly devastating to the southern DPS of spotted seals. Given the very low abundance of the southern DPS and the possible consequences of a large oil spill to these seals, we considered this factor to be significant in our classification of the southern DPS as threatened. Potentially significant interactions with commercial fisheries may pose VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 significant risks, as well. Mortality of spotted seals incidental to fishery activities has been reported in both the Yellow Sea and Peter the Great Bay. The estimated level of fishery bycatch reported by researchers for spotted seals in Peter the Great Bay would be unsustainable for this population, and has been implicated as possibly limiting its growth. Conservation Efforts When considering the listing of a species, section 4(b)(1)(A) of the ESA requires us to consider efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect the species. Such efforts would include measures by Native American tribes and organizations, local governments, and private organizations. Also, Federal, tribal, state, and foreign recovery actions (16 U.S.C. 1533(f)), and Federal consultation requirements (16 U.S.C. 1536) constitute conservation measures. In addition to identifying these efforts, under the ESA and our Policy on the Evaluation of Conservation Efforts (PECE) (68 FR 15100; March 28, 2003), we must evaluate the certainty of an effort’s effectiveness on the basis of whether the effort or plan: Establishes specific conservation objectives; identifies the necessary steps to reduce threats or factors for decline; includes quantifiable performance measures for the monitoring of compliance and effectiveness; incorporates the principles of adaptive management; is likely to be implemented; and is likely to improve the species’ viability at the time of the listing determination. Several conservation efforts have been undertaken by foreign nations specifically to protect spotted seals within the southern DPS. These include: (1) Russia has established the Far Eastern Marine Reserve in Russia’s Peter the Great Bay, and the islands of the Reserve provide protection from human disturbance and suitable haul-out sites for spotted seals; (2) China’s Liaoning provincial government has banned the hunting of spotted seals, and established two national protected areas for the protection of spotted seals in the Liaodong Bay area, including the Dalian National Spotted Seal Nature Reserve (though, in 2006, the Dalian Nature Reserve’s boundaries were adjusted to accommodate industrial development); (3) spotted seals are listed in the Second Category (II) of the ‘‘State Key Protected Wildlife List’’ in China and listed as Vulnerable (V) in the ‘‘China Red Data Book of Endangered Animals’’; (4) the spotted seal is designated a vulnerable species under the Wildlife Conservation PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 Act of China (though, as of 2004, no conservation action, public awareness, or education programs have been carried out for the species in this region); and (5) in 2000, spotted seals were afforded protected status under the Wildlife Conservation Act of South Korea. Despite this protection, the Liaodong Gulf population, shared between China and Korea, continues to decline. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is a treaty aimed at protecting species at risk from international trade. CITES regulates international trade in animals and plants by listing species in one of its three appendices. Spotted seals are not listed under CITES. The International Union for the Conservation of Nature (IUCN) Red List identifies and documents those species believed by its reviewers to be in need of conservation attention if global extinction rates are to be reduced, and is widely recognized as the most comprehensive, apolitical, global approach for evaluating the conservation status of plant and animal species. In order to produce Red Lists of threatened species worldwide, the IUCN Species Survival Commission draws on a network of scientists and partner organizations, which uses a standardized process to determine species’ risks of extinction. However, the IUCN Red List criteria differ from the listing criteria provided by the ESA. Because current abundance and population trends are unknown, the spotted seal is currently classified as ‘‘Data Deficient’’ on the IUCN Red List. There are no known regulatory mechanisms that effectively address the factors believed to be contributing to reductions in sea ice habitat at this time. The primary international regulatory mechanisms addressing GHG emissions and global warming are the United Nations Framework Convention on Climate Change and the Kyoto Protocol. However, the Kyoto Protocol’s first commitment period only sets targets for action through 2012. There is no regulatory mechanism governing GHG emissions in the years beyond 2012. The United States, although a signatory to the Kyoto Protocol, has not ratified it; therefore, the Kyoto Protocol is nonbinding on the United States. We are not aware of any formalized conservation efforts for spotted seals that have yet to be implemented, or which have recently been implemented, but have yet to show their effectiveness in removing threats to the species. There is no certainty that the conservation efforts analyzed will be effective in E:\FR\FM\22OCR1.SGM 22OCR1 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations emcdonald on DSK2BSOYB1PROD with RULES altering the status of the southern DPS. Therefore, our analysis of the efforts to protect the spotted seal does not affect our determination regarding the threatened status of the southern DPS. Based on the best scientific and commercial data available, including the status review report, and consideration of section 4(a)(1) of the ESA and the listing regulations, we find that the southern DPS is likely to become an endangered species within the foreseeable future and should be listed as a threatened species. Final Listing Determination We have reviewed the status of the southern DPS of the spotted seal, considering the best scientific and commercial data available. We have reviewed threats to the southern DPS, as well as other factors, and given consideration to conservation efforts and special designations for spotted seals by states and foreign nations. In consideration of all of the threats and potential threats identified above, the assessment of the risks posed by those threats, the possible cumulative impacts, and the uncertainty associated with all of these, we draw the following conclusions: (1) Abundance estimates indicate the Liaodong Bay spotted seals have been significantly reduced from historical numbers, while the Peter the Great population appears to be below historical numbers though stable, possibly limited by fishery bycatch; (2) projected warming by mid-century indicates reliable ice formation will cease to occur in this region by the latter half of the 21st century; (3) there already is significant use of terrestrial habitat for whelping and nursing by the southern DPS of spotted seals; (4) overall, the southern DPS has been significantly reduced in number and now exists at abundance levels where additional loss would threaten this DPS through ‘‘small population’’ or demographic stochasticity effects; and (5) the continued viability of using terrestrial sites is unknown, but may be limited in area or predispose spotted seals to predation and other natural and anthropogenic effects. Therefore, we conclude that the southern DPS of the spotted seal is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, and list it as threatened under the ESA. Prohibitions and Protective Measures Section 9 of the ESA prohibits certain activities that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 U.S. jurisdiction. Section 4(d) of the ESA directs the Secretary of Commerce (Secretary) to implement regulations ‘‘to provide for the conservation of [threatened] species’’ that may include extending any or all of the prohibitions of section 9 to threatened species. Section 9(a)(1)(g) also prohibits violations of protective regulations for threatened species implemented under section 4(d). Although China, South Korea, and Russia have designated special conservation status for spotted seal populations and portions of their range within the southern DPS, it is uncertain whether these and other conservation measures analyzed will be effective in altering the status of this DPS. Therefore, based on the status of the southern DPS and its conservation needs, we conclude that the ESA section 9 prohibitions are necessary and advisable to provide for its conservation. NMFS is promulgating, by way of this final rule, protective regulations pursuant to section 4(d) for the southern DPS of the spotted seal to include all of the prohibitions in Section 9(a)(1). Sections 7(a)(2) and (4) of the ESA require Federal agencies to consult with us to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or a species proposed for listing, or to adversely modify critical habitat or proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Sections 10(a)(1)(A) and (B) of the ESA provide us with authority to grant exceptions to the ESA’s Section 9 ‘‘take’’ prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. The type of activities potentially requiring a section 10(a)(1)(A) research/ enhancement permit include scientific research that targets spotted seals. Section 10(a)(1)(B) incidental take permits are required for non-Federal activities that may incidentally take a listed species in the course of an otherwise lawful activity. Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA On July 1, 1994, we and the USFWS published a series of policies regarding listings under the ESA, including a policy to identify, to the maximum extent possible, those activities that would or would not constitute a PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 65247 violation of section 9 of the ESA (59 FR 34272). The intent of this policy is to increase public awareness of the effect of our ESA listing on proposed and ongoing activities within the species’ range. We identify, to the extent known, specific activities that will be considered likely to result in violation of section 9, as well as activities that will not be considered likely to result in violation. Because the southern DPS occurs outside the jurisdiction of the United States, we are presently unaware of any activities that could result in violation of section 9 of the ESA; however, because the possibility for violations exists we will maintain the section 9 protection. Critical Habitat Critical habitat is not to be designated within foreign countries or in other areas outside U.S. jurisdiction (50 CFR 424.12(h)). Because the known distribution of the southern DPS occurs in areas outside the jurisdiction of the United States, no critical habitat will be designated as part of the listing action. Classification National Environmental Policy Act (NEPA) The 1982 amendments to the ESA in section 4(b)(1)(A) restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v Andrus, 657 F. 2d 829 (6th Cir. 1981), we have concluded that NEPA does not apply to ESA listing actions (see also NOAA Administrative Order 216–6.). Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork Reduction Act As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analyses required by the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act. Executive Order 13132, Federalism E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations where a regulation will preempt State law or impose substantial direct compliance E:\FR\FM\22OCR1.SGM 22OCR1 65248 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations costs on State and local governments (unless required by statute). Neither of those circumstances is applicable to this final rule. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and co-management agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. E.O. 13175—Consultation and Coordination with Indian Tribal Governments—outlines the responsibilities of the Federal Government in matters affecting tribal interests. Section 161 of Public Law 108–199 (188 Stat. 452), as amended by section 518 of Public Law 108–447 (118 Stat. 3267), directs all Federal agencies to consult with Alaska Native corporations on the same basis as Indian tribes under E.O. 13175. We have determined the listing action will not have tribal implications or affect any tribal governments or issues. The southern DPS does not occur within Alaska, and therefore is not hunted by Alaskan Natives for traditional use or subsistence purposes. References Cited A complete list of all references cited in this rulemaking can be found on our Web site at http://www.fakr.noaa.gov/ and is available upon request from the NMFS office in Juneau, Alaska (see ADDRESSES). List of Subjects in 50 CFR Part 223 Endangered and threatened species, Exports, Imports, Transportation. Species 1 Dated: October 14, 2010. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 223 is amended as follows: ■ PART 223—THREATENED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 223 continues to read as follows: ■ Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for § 223.206(d)(9). 2. In § 223.102, in the table, add paragraph (a)(3) to read as follows: ■ § 223.102 Enumeration of threatened marine and anadromous species. * * * * Where listed Common name (a) * * * (3) Southern DPS—Spotted Seal. Phoca largha ...... Citation(s) for listing determination(s) The southern DPS includes all breeding populations of spotted seals south of 43 degrees north latitude in the Pacific Ocean. [Insert FEDERAL REGISTER page citation]; 10/22/2010. Scientific name * * * * * * Citation(s) for critical habitat designation(s) NA. * * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement; see 61 FR4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement; see 56 FR 58612, November 20, 1991). * * * * ■ 3. In Subpart B of part 223, add § 223.211 to read as follows: emcdonald on DSK2BSOYB1PROD with RULES * VerDate Mar<15>2010 16:27 Oct 21, 2010 Jkt 223001 § 223.211 Southern DPS of spotted seal. The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species shall apply to the Southern Distinct PO 00000 Frm 00036 Fmt 4700 Sfmt 9990 Population Segment of the spotted seal listed in § 223.102(a)(3). [FR Doc. 2010–26764 Filed 10–21–10; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\22OCR1.SGM 22OCR1

Agencies

[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Rules and Regulations]
[Pages 65239-65248]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26764]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 0909171277-0491-02]
RIN 0648-XR74


Endangered and Threatened Wildlife and Plants; Threatened Status 
for the Southern Distinct Population Segment of the Spotted Seal

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final determination to list the southern 
distinct population segment (DPS) of the spotted seal (Phoca largha) as 
a threatened species under the Endangered Species Act (ESA). Because 
the southern DPS occurs outside the United States, no critical habitat 
is proposed for designation.

DATES: This final rule is effective on November 22, 2010.

ADDRESSES: NMFS, Protected Resources Division, Alaska Region, 709 West 
9th Street, Room 420A, Juneau, AK 99802.

FOR FURTHER INFORMATION CONTACT: Kaja Brix at the address above or at 
(907)

[[Page 65240]]

586-7235, or Marta Nammack, Office of Protected Resources, Silver 
Spring, MD (301) 713-1401. The final rule, status review, and other 
materials supporting this final rule can be found on our Web site at 
http://www.fakr.noaa.gov/.

SUPPLEMENTARY INFORMATION:

Background

    On March 28, 2008, we initiated a status review of the spotted seal 
under the ESA (73 FR 16617). On May 28, 2008, we received a petition 
from the Center for Biological Diversity to list the spotted seal as a 
threatened or endangered species under the ESA, primarily due to 
concern about threats to this species' habitat from climate warming and 
loss of sea ice. The Petitioner also requested that critical habitat be 
designated for spotted seals concurrent with listing under the ESA. In 
response to this petition, we published a 90-day finding that the 
petition presented substantial scientific or commercial information 
indicating that the petitioned action may be warranted (73 FR 51615; 
September 4, 2008). Accordingly, we proceeded with the ongoing status 
review of spotted seals and solicited information pertaining to the 
species.
    After the status review report was completed by the Biological 
Review Team (BRT), on October 20, 2009 (Boveng et al., 2009), we made a 
12-month petition finding and proposed to list the southern DPS of the 
spotted seal as threatened under the ESA (74 FR 53683). In the proposed 
rule we announced a 60-day public comment period that closed December 
21, 2009. We also initiated independent peer review of the proposed 
listing determination. We fully considered all comments received from 
peer reviewers and the public in developing this final rule and 
finalizing the spotted seal status review (all DPSs).

ESA Statutory, Regulatory, and Policy Provisions

    The ESA defines the term ``endangered species'' as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and the term ``threatened species'' as ``any 
species which is likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range.'' The 
ESA's definition of a species includes subspecies and distinct 
population segments. The term ``distinct population segment'' (DPS) is 
not commonly used in scientific discourse, so the U.S. Fish and 
Wildlife Service (USFWS) and NMFS developed the ``Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments Under the 
Endangered Species Act'' to provide a consistent interpretation of this 
term for the purposes of listing, delisting, and reclassifying 
vertebrates under the ESA (61 FR 4722; February 7, 1996). We describe 
and use this policy in delineating the southern DPS as one of three 
DPSs of spotted seals.
    In conducting the spotted seal status review, we endeavored to 
assess the threats to the species to the extent such threats can be 
forecast into the future, keeping in mind that there is greater 
uncertainty the farther out the analysis extends. The potential 
consequences of the key threat of climate change have been projected 
through 2050 and the end of the 21st century. The status review report 
considered the climate projections through the end of the 21st century 
in assessing the threats stemming from climate change, noting that 
there was less variation in the time period leading up to 2050 compared 
to the period between 2050 and 2100. We used a similar approach to 
assess the extinction risks from other threats. This review is similar 
and consistent with the one prepared for the ribbon seal. We have not 
determined here that 2100 constitutes ``the foreseeable future.'' There 
is too much variability beyond 2050 to make that determination. As a 
result, we examined the best scientific and commercial data available 
out to 2100, all of which recognize these inherent uncertainties.
    Because there is little or no information to support a quantitative 
assessment of the primary threats to spotted seals, our risk assessment 
was primarily qualitative and based upon expert opinion of the BRT 
members. This is a common procedure that we have used in numerous other 
ESA listing determinations (e.g., Pacific salmon, rockfishes, etc.).

Basic Species Biology

    A review of the life history and ecology of the spotted seal is 
presented in the status review report (Boveng et al., 2009). The 
spotted seal (also known as the largha seal) is a close relative of the 
harbor seal (Phoca vitulina). Little information is published on the 
biological characteristics of spotted seal populations. Spotted seals 
have a lifespan of about 30 to 35 years. They become sexually mature at 
3 to 5 years of age, varying over regions and time, and adult females 
usually give birth every year to a single pup which is nursed for 2 to 
4 weeks and then left to fend for itself.
    Spotted seals are widely distributed on the continental shelf of 
the Beaufort, Chukchi, southeastern East Siberian, Bering and Okhotsk 
seas, and to the south throughout the Sea of Japan and into the 
northern Yellow Sea. Their range extends over about 40 degrees of 
latitude from Point Barrow, Alaska, in the north (71[deg] N. lat.) to 
the Yangtse River, China, in the south (31[deg] N. lat.). The 
distribution of spotted seals is seasonally related to specific life 
history events that can be broadly divided into two periods: late fall 
through spring, when whelping, nursing, breeding, and molting all take 
place in association with the presence of sea ice on which the seals 
haul out, and summer through fall, when the sea ice has melted and 
spotted seals remain closer to shore to use land for hauling out.
    The annual timing of spotted seals' reproduction has evolved to 
coincide with the average period of maximum extent and stability of the 
seasonal sea ice, which varies latitudinally across their range. From 
late fall through spring, spotted seal habitat-use is closely 
associated with the distribution and characteristics of the seasonal 
sea ice. The ice provides a dry platform away from land predators 
during the whelping, nursing, breeding, and molting periods. When sea 
ice begins to form in the fall, spotted seals start to occupy it 
immediately, concentrating in large numbers on the early ice that forms 
near river mouths and estuaries. In winter, as the ice thickens and 
becomes shorefast along the coasts, spotted seals move seaward to areas 
near the ice front with broken ice floes. Spotted seals can only make 
and maintain holes in fairly thin ice and have been known to travel 10 
kilometers (km) or more over solid ice in search of cracks or open 
patches of water. Spotted seals usually avoid very dense, compacted ice 
and stay near the ice front. Recent research has also shown that, 
unlike spotted seals in more northerly latitudes, a portion of spotted 
seals in the Peter the Great Bay and the northern Yellow Sea uses shore 
lands as haul-out sites for whelping, nursing, breeding, and molting 
(Wang, 1986; Trukhin, 2005; Nesterenko and Katin, 2008; Nesterenko and 
Katin, 2009). Spotted seal terrestrial haul-out sites are usually 
remote and located on isolated mud, sand, or gravel beaches, or on 
rocks close to shore.
    Spotted seals appear to be generalist feeders with a varied diet. 
Most studies have found that fish are the spotted seal's primary prey. 
Diet and regional and seasonal differences in foods of spotted seals 
are related to the seasonal distribution and abundance of their 
principal prey species.

[[Page 65241]]

Summary of Comments Received in Response to the Proposed Rule

    We received written comments on the proposed rule from nine 
commenters during the 60-day comment period (74 FR 53683; October 20, 
2009): five from non-profit groups and private individuals, three from 
oil and gas companies and trade associations, and one from the Marine 
Mammal Commission. We did not receive a request for a public hearing on 
the proposed rule. In all, five commenters supported listing the 
southern DPS of the spotted seal, two opposed the listing, and two 
commenters stated neither support nor opposition for the ruling.
    A joint NMFS/U.S. Fish and Wildlife Service policy requires us to 
solicit independent expert review from at least three qualified 
specialists (59 FR 34270; July 1, 1994). Further, in December 2004, the 
Office of Management and Budget (OMB) issued a Final Information 
Quality Bulletin for Peer Review establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The OMB Bulletin, 
implemented under the Information Quality Act (Pub. L. 106-554), is 
intended to enhance the quality and credibility of the Federal 
Government's scientific information, and applies to influential or 
highly influential scientific information disseminated on or after June 
16, 2005. Pursuant to our 1994 policy and the OMB Bulletin, we 
solicited four independent specialists with expertise in marine 
mammalogy and with specific knowledge of spotted seals to review our 
proposed listing determination. We received comments from all four peer 
reviewers. Three of these reviewers were supportive of our conclusions, 
and the fourth reviewer had comments and questions regarding certain 
aspects of the proposed listing.
    We fully considered comments received from the public and peer 
reviewers on the proposed rule in developing this final listing of the 
southern DPS of the spotted seal. Summaries of the substantive public 
and peer review comments received regarding our listing determination 
for the southern DPS, and our responses to all of the significant 
issues they raise, are provided below. Some peer reviewers also 
provided helpful comments of an editorial nature that noted inadvertent 
errors in the proposed rule and offered non-substantive but clarifying 
changes to wording. We have incorporated these editorial comments in 
this final rule. Because these comments did not result in substantive 
changes to the final rule, we have not detailed them here.
    We also received comments addressing our final decision regarding 
the Bering and Okhotsk DPSs. Since that decision is now final and this 
rulemaking concerns the listing of the southern DPS, we have not 
provided specific responses to those comments, though some of them are 
identical to comments on the southern DPS and therefore are addressed 
in our responses.
    Although this final rule incorporates clarifications to our 
proposed listing based on these comments, as discussed below, none of 
these clarifications changed our proposed listing determination. This 
final rule lists the southern DPS of the spotted seal as threatened 
under the ESA and extends section 9 prohibitions to this DPS.

Independent Peer Reviewer Comments

    Comment 1: The peer reviewers varied in their assessments of 
whether the southern population segment of the spotted seal satisfies 
the discreteness and significance elements of our DPS policy. Two peer 
reviewers generally agreed with the conclusion that the southern 
population segment is both discrete and ecologically significant. 
Another peer reviewer suggested that emphasizing the unique ecology, 
behavior, and likely physiological differences between spotted seals in 
the southern DPS and other populations might provide stronger evidence 
to support discreteness and significance for the DPS than the emphasis 
placed in the status review report on limited genetic information. This 
reviewer also noted that differences between the Peter the Great Bay 
and Liaodong Bay spotted seal concentrations may be substantial enough 
to consider them as separate DPSs, but that this possibility was not 
discussed. Finally, the fourth peer reviewer suggested that given the 
Peter the Great Bay population appears to be near historical levels and 
stable, and that Russia has established the Far Eastern Marine Reserve 
in this bay, an argument could be made that the proposed listing be 
limited to the Liaodong Bay population.
    Response: We agree that there are some distinctive aspects to the 
ecology and behavior of the southern DPS, and we considered them in 
evaluating the significance of the DPS to the spotted seal population 
as a whole. However, these characteristics may reflect adaptations to 
local conditions and do not necessarily relate directly to population 
discreteness. We are also unaware of any available information about 
spotted seal physiology that is relevant to delineating the southern 
DPS. Therefore, we continue to distinguish the southern DPS based 
primarily on the available genetic information because we find that 
these data likely provide stronger direct evidence of spotted seal 
population structure. Regarding designation of DPSs, Congress directed 
the Services to use the authority to list them ``sparingly,'' while 
encouraging the conservation of genetic diversity (61 FR 4722; February 
7, 1996). We believe that our decision to include both the Liaodong Bay 
and Peter the Great Bay concentrations within the southern DPS, rather 
than to designate them as separate DPSs, is most consistent with this 
guidance and is supported by the best available data. Moreover, after 
further review of the available abundance information on the Peter the 
Great Bay population discussed in the status review report, we conclude 
that this population has been reduced from historical numbers, as 
opposed to our characterization in the proposed rule that it is near 
historical levels. Overall, the available information indicates a long-
term decline in abundance. Some growth of this population may have 
occurred following establishment of the Far Eastern Marine Reserve in 
1978. However, recent apparent population stability has been ascribed 
to limitation by mortality of spotted seals incidental to fishery 
activities.
    Comment 2: Two peer reviewers noted that there were very limited 
data presented to support the description of the present range of the 
southern DPS. One of these reviewers characterized the proposed 
northern extent of the southern DPS (splitting the north coast of 
Hokkaido) as arbitrary given the lack of data for Tatar Strait and the 
suggestion by researchers that there may be movement of seals between 
the southern Okhotsk Sea and Sea of Japan. This reviewer asked whether 
there are any other data available to support the delineation of the 
northern extent of the southern DPS, including from any tracking 
studies on spotted seals in the southern DPS that could provide 
information on movement patterns. In addition, this reviewer commented 
that a more formal involvement of scientists working on spotted seals 
outside U.S. waters would have greatly benefitted delineation of 
spotted seal DPSs and assessment of their extinction risk.
    Response: We acknowledge that additional movement and genetics 
data, in particular for the Tatar Strait population, might help to 
resolve some areas of uncertainty in describing the range of the 
southern DPS. But we are

[[Page 65242]]

not aware of any available spotted seal tracking data that could inform 
our delineation of the DPS. Therefore, as discussed in this final rule, 
we continue to describe the northern extent of this DPS based on the 
best available genetic data. We also note that the BRT solicited 
reviews of the spotted seal status review report from several 
scientists involved in spotted seal research outside U.S. waters, but 
it received no responses. The ESA requires that our determinations be 
based upon the best scientific and commercial data available at the 
time a decision is made.
    Comment 3: One peer reviewer noted that given the limited amount of 
available data for the southern DPS, it is reasonable there is no 
quantitative evaluation of extinction risk. Another peer reviewer 
stated that no information was presented on extinction risk relating to 
small population size or declines in abundance in the southern DPS. 
This reviewer also noted that no reasons were given for the marked 
decline of the Liaodong Bay population since 1940, nor were data 
provided on whether the decline is continuing.
    Response: Overall, the southern DPS exists at reduced abundance 
levels where additional loss would threaten this DPS through 
demographic stochasticity (variation in population growth arising from 
chance events in individual survival and reproductive success) or small 
population effects. Risks related to small population size are 
discussed in more detail in the spotted seal status review (Boveng et 
al., 2009). The decline in the Liaodong Bay population in the 20th 
century has been attributed to over-hunting and habitat destruction. 
The most recent available abundance estimate for the Liaodong Bay 
population (2007) is 800 animals.
    Comment 4: One peer reviewer stated that the assessment of risks 
posed by oil and gas development to the southern DPS appears inadequate 
and cursory, and that the conclusion in the proposed rule that ``such 
activities will not place or contribute to placing the spotted seal in 
danger of extinction in the foreseeable future'' does not appear 
supportable for this DPS, given population numbers and trends in Peter 
the Great Bay and Liaodong Bay. A similar public comment was received.
    Response: The most significant issue associated with oil and gas 
exploration and development would be potential oil spills produced by 
these activities. A large oil spill in the Yellow Sea at the port of 
Dalian, China, in July 2010 illustrates the potential for spills in 
this region. We conclude that the risk posed to the southern DPS from 
oil and gas activities is high given the very low abundance of this DPS 
and the possible consequences of a large oil spill on these seals, 
particularly from an oil spill in the Bohai Sea. We also acknowledge 
that inadequacy or lack of stringency of mechanisms to regulate oil and 
gas activities in the Yellow Sea could contribute to the cumulative 
risk faced by the southern DPS, and we have revised the final rule to 
reflect this.

Public Comments

    Comment 5: One commenter stated that the potential effects of 
pollution on the spotted seal were underestimated.
    Response: Most spotted seal contaminant research has been conducted 
in the Bering Sea and coastal areas around Hokkaido, Japan. Information 
about pollutants in waters and sediments in the range of the southern 
DPS were used for inference about potential risk from contaminants. We 
do not have any information at this time to conclude that there are 
population-level effects from contaminant exposure. A more detailed 
discussion of the subject can be found in the status review report 
(Boveng et al., 2009).
    Comment 6: One commenter stated that the lack of regulatory 
mechanisms to address loss of sea ice habitat due to global warming 
poses a significant threat to the spotted seal, and so inadequacy of 
existing regulatory mechanisms should have been included as a 
significant factor contributing to the extinction risk for the species.
    Response: We acknowledge that there are currently no effective 
mechanisms to regulate global greenhouse gas (GHG) emissions, which are 
contributing to global climate change and associated loss of sea ice. 
The risk posed to the southern DPS by the lack of mechanisms to 
regulate GHG emissions is directly correlated to and difficult to 
distinguish from the risk posed by the effects of these emissions. The 
projections we used to assess risks from GHG emissions were based on 
the assumption that no regulation will take place (the underlying IPCC 
emissions scenarios were all ``non-mitigated'' scenarios). Therefore, 
the lack of mechanisms to regulate GHG emissions is already included in 
our risk assessment.
    We have clarified this final rule to acknowledge that the lack of 
effective mechanisms to regulate global GHG emissions is contributing 
to the cumulative risk faced by the southern DPS. We also note that the 
long persistence of CO2 in the atmosphere would complicate 
the effectiveness of any regulatory action. Consequently, the ability 
of any GHG regulations to effectively counter the climate-change 
related threats to the species likely would not be discernable until 
the latter half of the century, when projected conditions are very 
uncertain regardless of potential regulations.
    Comment 7: One commenter disputed our conclusion that the nature 
and timing of ocean acidification impacts are highly uncertain.
    Response: We acknowledge that ocean acidification may affect 
spotted seal survival and recruitment through disruption of food webs 
and ecosystem processes. However, the possible ecological outcomes of 
ocean acidification are complex, are expected to manifest over a 
timescale of uncertain length, and rely on interaction of numerous 
variables. While the ocean chemistry changes associated with ocean 
acidification are predictable, the ultimate effects within the 
foreseeable future specific to spotted seal viability are much less 
clear. For example, we do not have sufficient understanding of lower 
trophic level organisms upon which spotted seal prey depend, including 
information on the baseline geographic distributions of these 
organisms, to evaluate the potential impact of ocean acidification on 
seal prey species. Given the apparent diet flexibility of the spotted 
seal, we do not believe that ocean acidification is a significant 
factor causing the southern DPS to become endangered in the foreseeable 
future.
    Comment 8: Two commenters noted that loss of sea ice habitat was 
identified as a significant risk factor for the southern DPS even 
though spotted seals have shown the ability to adapt to using 
terrestrial sites.
    Response: The status of the southern DPS of the spotted seal is 
likely to be maintained or worsened by the cumulative effects of 
multiple stressors, which include loss of sea ice habitat. As discussed 
in the spotted seal status review report (Boveng et al., 2009) and this 
final rule, although spotted seals have shown some capability to adapt 
to terrestrial breeding and molting sites, they are more vulnerable to 
predation, disturbance, and disease while hauled out on shore. It is 
likely that this is why seals that breed ashore select sites such as 
offshore rocks and uninhabited islands that are relatively inaccessible 
to predators. In addition, the viability of terrestrial site use may be 
limited by the relative scarcity of suitable habitat, especially 
because a portion of the southern DPS already uses terrestrial sites. 
Thus, we conclude that loss of sea ice habitat is a significant risk 
factor for the southern DPS.

[[Page 65243]]

    Comment 9: Two commenters expressed concern about data gaps 
revealed in the status review report and cited the need for additional 
research to fill these gaps. One of these commenters also cited the 
need for strengthened international collaborative efforts to assess the 
status of spotted seal populations throughout their range, and to 
identify any need for protective measures.
    Response: We acknowledge that there is currently little or no 
information available to support a quantitative assessment of the 
primary threats to spotted seals. We agree that additional research and 
international collaborative efforts may help resolve areas of 
uncertainty and could add to the ecological knowledge of this species. 
Our determination to list the southern DPS is supported by the best 
scientific and commercial data currently available.
    Comment 10: Two commenters questioned the timeframe considered in 
assessing the risk posed to the spotted seal from global climate 
change, and suggested the possibility that future intervening actions 
might reduce GHG emissions.
    Response: Because the mostly widely accepted climate change 
projections (which currently form the best available information about 
future conditions) have been made through the end of the 21st century, 
we considered climate projections through both 2050 and the end of the 
21st century, while keeping in mind that there is greater uncertainty 
the farther out that projections extend (i.e., beyond 2050). The effect 
of increased GHG emissions since the preindustrial era has been 
widespread warming of the climate (IPCC, 2007). A net result of this 
warming is loss of sea ice. The best available information indicates 
that sea ice will continue to be affected by climate change, and that 
even if actions are taken to mitigate GHG emissions, a continued 
warming trend would be expected through mid-century and beyond (IPCC, 
2007). The southern DPS is currently being affected by sea ice loss, 
and it is expected that by about the middle of the 21st century 
seasonal sea ice will rarely form within the range of this DPS. 
Although the uncertainty associated with climate projections is greater 
the farther out that projections extend, it is clear that loss of sea 
ice habitat is a significant risk factor for the southern DPS within 
the foreseeable future. Therefore, we continue to conclude that the 
timeframes considered in our assessment of the risks posed to this DPS 
from global climate change are appropriate and are supported by best 
available scientific data.
    Comment 11: One commenter suggested that listing the spotted seal 
under the ESA may be an avenue toward regulating GHG emissions, and 
that if the southern DPS is listed as ``threatened,'' a special rule 
should be implemented for this DPS under ESA section 4(d) to exclude 
application of ESA take restrictions to GHG-emitting projects. This 
commenter also stated that in determining whether to list the spotted 
seal under the ESA, a causal connection must be established between 
factors suggested as affecting the health of spotted seal populations 
and NMFS' determinations concerning their status. In addition, this 
commenter requested that any final rule explicitly acknowledge the lack 
of scientific data to draw a causal link between GHG emissions from 
specific projects and effects on the spotted seal or any other species.
    Response: NMFS was petitioned to evaluate the status of the spotted 
seal under the ESA. The mandate of the statute is to determine, on the 
basis of the best available scientific and commercial data, ``whether 
any species is an endangered species or a threatened species'' because 
of ``any'' of the factors listed in Section 4(a)(1) of the ESA. The 
statute thus places emphasis on determining the status of the species, 
and does not require that the Service attempt to prove causal linkages 
between particular factors and the resultant status. This final rule 
fully meets the ESA's standard. Attempting to establish casual linkages 
between specific GHG emission sources and effects on spotted seals is 
not necessary to draw conclusions as to whether the southern DPS meets 
the definition of a ``threatened species'' under the ESA.
    We previously proposed and are now issuing a final rule under 
section 4(d) of the ESA. In that rule, we extend the section 9 
prohibitions to the southern DPS because we conclude that such action 
is necessary and advisable to provide for the conservation of the 
southern DPS. We have not excluded from the section 9 prohibitions any 
specific GHG-emitting project or such projects generally because we do 
not believe that that type of exclusion is necessary for the 
implementation of the 4(d) rule or necessary and advisable for the 
conservation of the species.

Species Delineation

    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species,'' which Section 3(16) of the ESA defines 
as ``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' Our DPS policy (61 FR 4722; February 7, 
1996) describes two elements to be considered in deciding whether a 
population segment can be identified as a DPS under the ESA: (1) 
Discreteness of the population segment in relation to the remainder of 
the species to which it belongs; and (2) significance of the population 
segment in relation to the remainder of the species to which it 
belongs.
    The southern segment of spotted seals was found to be discrete 
primarily on the basis of its genetic composition (Boveng et al., 2009; 
74 FR 53683, October 20, 2009). Genetic data on population structure 
exist from four studies of spotted seals. The preliminary conclusions 
drawn from examination of mitochondrial (mtDNA) from 247 spotted seals 
and 18 micro-satellite loci for 207 spotted seals support a 
phylogeographic break between seals of the Yellow Sea-Sea of Japan 
region and seals of the Okhotsk, Bering, and Chukchi seas (O'Correy-
Crowe and Bonin, 2009). Another study found low nuclear genetic 
variability among 176 spotted seals from Liaodong Bay, the primary 
breeding area in the Yellow Sea (Han et al., 2010), a finding 
consistent with a previous report of low diversity in mtDNA haplotypes 
(Han et al., 2007). Moreover, a distinctive genetic marker (consisting 
of a single base-pair insertion in the threonine transfer RNA gene) was 
reported as present in all seals from Liaodong Bay but not in samples 
tested from the Sea of Japan and Sea of Okhotsk, indicative of little 
or no immigration of females into the Yellow Sea population.
    A fourth study found no phylogenetic structure in mtDNA from 66 
spotted seals sampled along the northern coast of Hokkaido in the far 
northeastern portion of the Sea of Japan, and could not dismiss the 
possibility that spotted seals on the northwest Hokkaido coast during 
winter are part of the southern Sea of Okhotsk breeding population 
(Mizuno et al., 2003). This is currently the only information available 
on where in the Sea of Japan to place a population dividing line 
corresponding to the genetic break suggested by the multi-region DNA 
study described above. Because no samples from the Tatar Strait 
(northwest of Hokkaido) have been included in genetic studies, and the 
samples from Hokkaido are not obviously distinct from the Sea of 
Okhotsk samples, the population division with the most support from the 
available genetic data is a line along 43[deg] N. latitude that divides 
the spotted seal

[[Page 65244]]

range to include a southern segment composed of the breeding 
concentrations of the Yellow Sea and Peter the Great Bay in the Sea of 
Japan. We assessed the existence and implications of international 
governmental boundaries between breeding populations, and determined 
that considerations of cross-boundary management and regulatory 
mechanisms do not outweigh or contradict this division.
    The southern segment was also determined to be significant relative 
to the spotted seal species as a whole based on (1) its persistence in 
an ecological setting that is unique; and (2) whether the loss of the 
discrete population segment would result in a significant gap in the 
range of the species. In the southern DPS some unknown portion of the 
Yellow Sea breeding concentration (Liaodong Bay) and all or nearly all 
seals breeding in Peter the Great Bay whelp and nurse on shore. In 
Peter the Great Bay, pups born ashore have been observed to enter the 
water prior to weaning, a behavior that is not typical among pups born 
on ice. Although it is not clear how long these behaviors have been 
occurring within the southern segment of the species' range, they may 
reflect responses or adaptations to changing conditions at the range 
extremes, and their uniqueness may provide insights about the 
resilience of the species to the effects of climate warming. In 
addition, the spotted seal is the only phocid (true seal) species 
inhabiting the waters of the Yellow Sea and Sea of Japan; whereas, four 
to five phocid species overlap within the remainder of the range of the 
spotted seal. Finally, the southern DPS extends over a vast area that 
includes two concentration areas of spotted seal breeding. Loss of this 
population segment would result in a substantial contraction of the 
overall extent of the range of the spotted seal.
    In summary, given the best scientific and commercial data 
available, we conclude that the southern population segment of the 
spotted seal is both discrete and biologically and ecologically 
significant and should therefore be considered a DPS under the ESA. We 
refer to this population segment as the southern DPS throughout this 
final rule.

Status of the Southern DPS of the Spotted Seal

    Several factors make it difficult to accurately assess spotted 
seals' abundance and trends. The remoteness and dynamic nature of their 
sea ice habitat along with their broad distribution and seasonal 
movements make surveying spotted seals expensive, highly unpredictable, 
and logistically challenging. Additionally, the species' range crosses 
political boundaries, and there has been limited international 
cooperation to conduct range-wide surveys. Details of survey methods 
and data are often limited or have not been published, making it 
difficult to judge the reliability of the reported numbers. Logistical 
challenges also make it difficult to collect the necessary behavioral 
data to make proper refinements to seal counts. Survey data were often 
inappropriately extrapolated to the entire survey area based on seal 
densities and ice concentration estimates without behavioral research 
to determine factors affecting habitat selection. For example, no 
suitable behavioral data have been available to correct for the 
proportion of seals in the water at the time of surveys. Spotted seal 
haul-out behavior likely varies based on many factors such as time of 
year and time of day, daily weather conditions, age and sex.
    With these limitations in mind, the best scientific and commercial 
data available indicate that the population size of spotted seals in 
the Yellow Sea (Liaodong Bay) increased from about 7,100 in 1930 to a 
maximum of 8,137 in 1940. The population then declined over the next 4 
decades to a minimum of 2,269 in 1979, before increasing again to about 
4,500 in 1990. Despite conservation efforts by the Chinese and South 
Korean Governments, the Liaodong Bay population continued to decline to 
around 800 individuals by 2007, which is the current estimate for this 
population. The decline in the population during the 20th century has 
been attributed to over-hunting and habitat destruction (Won and Yoo, 
2004).
    Historical harvest records suggest that there were probably several 
thousand spotted seals in Peter the Great Bay in the Sea of Japan at 
the end of the 19th century. Abundance likely decreased considerably 
until the 1930s as the human population and hunting increased in this 
region. Shipboard surveys conducted in 1968 placed the spotted seal 
population at roughly several hundred individuals. Recent year-round 
studies have placed the most current estimate at about 2,500 spotted 
seals that inhabit Peter the Great Bay in the spring, producing about 
300 pups annually, and now reproducing on shore rather than on ice.

Summary of Factors Affecting the DPS

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, if a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) overutilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or human-made factors affecting its continued 
existence. In making this finding, we considered the best scientific 
and commercial data available regarding the status and trends of the 
southern DPS. These factors are discussed below. As mentioned above, 
because there is little or no information to support a quantitative 
assessment of the primary threats to spotted seals, our risk assessment 
was primarily qualitative and based upon expert opinion of the BRT 
members.

Present or Threatened Destruction, Modification, or Curtailment of the 
Species' Habitat or Range

    The main concern about the conservation status of the southern DPS 
stems from observed changes in its sea ice habitat which are likely the 
result of the warming climate and, more so, that the scientific 
consensus projections are for continued and perhaps accelerated warming 
and sea ice decline in the foreseeable future. A second related concern 
is the modification of habitat by ocean acidification, which may alter 
prey populations and other important aspects of the marine ecosystem. A 
reliable assessment of the future conservation status of the southern 
DPS requires a focus on projections of specific regional conditions, 
especially sea ice.
    For the Sea of Japan and Yellow Sea, current global climate models 
for sea ice do not perform satisfactorily due to model deficiencies and 
the small size of the region compared to the spatial resolution of the 
climate models (Boveng et al., 2009). As a result, inferences about 
future ice conditions in these areas were drawn indirectly from 
projections of air or sea surface temperatures, and thus have greater 
associated uncertainties than sea ice projections. In the BoHai Sea and 
Peter the Great Bay, ice thickness is likely to depend more on the 
thickness of in situ ice formation than in the Bering Sea and Sea of 
Okhotsk because smaller wind fetches and shorter durations of ice cover 
would be expected to cause less ridging and rafting. Projected warming 
in this region indicates that reliable annual ice formation is likely 
to cease by the latter half of the 21st century.

[[Page 65245]]

    The southern DPS appears to have some capability to accomplish 
reproduction and molting on shore when ice is not available. However, 
pinnipeds are generally not well protected from predation when they are 
constrained by the necessity of maintaining a mother[hyphen]pup bond; 
that is, when escape to the water may disrupt the bond or poses 
thermoregulation problems for the pup. Therefore, suitable space to 
reproduce on land is likely limited to offshore rocks and small islands 
without human habitation, which appear to be relatively scarce in the 
southern DPS. We conclude that the loss of sea ice habitat is a 
significant factor in our classification of the southern DPS as 
threatened.
    Ocean acidification, a result of increased greenhouse gases such as 
carbon dioxide in the atmosphere, may impact spotted seal survival and 
recruitment through disruption of trophic regimes that are dependent on 
calcifying organisms. The nature and timing of such impacts are 
extremely uncertain. Because of spotted seals' apparent dietary 
flexibility, and acknowledging our present inability to predict the 
extent and consequences of acidification, we find this to be a threat 
with potential to have serious effects, but conclude that it does not 
contribute significantly to the status of the species for the 
foreseeable future. It is thus not significant to our conclusion to 
list the southern DPS of the spotted seal as threatened under the ESA.
    Changes in spotted seal prey, anticipated in response to ocean 
warming and loss of sea ice and, potentially, ocean acidification, have 
the potential for negative impacts on spotted seals, but the 
possibilities are complex. Some changes already documented in the 
Bering Sea and the North Atlantic Ocean are of a nature that could be 
beneficial to spotted seals. For example, several fish species, 
including walleye pollock (Theragra chalcogramma), a common spotted 
seal prey, have shown northward distribution shifts and increased 
recruitment in response to warming, at least initially. These ecosystem 
responses may have very long lags as they propagate through trophic 
webs. Apparent flexibility in spotted seal foraging locations and 
habits may make these threats a lower risk than the more direct impacts 
from changes in sea ice.
    The above analyses of the threats associated with impacts of the 
warming climate on the habitat of the southern DPS, to the extent that 
they may pose risks to these seals, are expected to manifest throughout 
the current breeding and molting range (for sea ice related threats) or 
throughout the entire range (for ocean warming and acidification) of 
the DPS, since the finer scale spatial distribution of these threats is 
not currently well understood.

Over-Utilization for Commercial, Subsistence, Recreational, Scientific, 
or Educational Purposes

    Recreational, scientific, and educational utilization of the 
southern DPS is currently at low levels and is not projected to 
increase to significant threat levels in the foreseeable future. The 
establishment of the Far Eastern Marine Reserve in Peter the Great Bay 
in 1978 prohibited hunting of spotted seals within the reserve, but it 
is unknown what level of hunting (if any) occurs outside the reserve's 
boundaries. Currently, there is not believed to be any commercial or 
subsistence take of spotted seals in the Yellow or Bohai seas, and the 
incidence of poaching is believed to be decreasing due to strengthened 
monitoring and enforcement. We therefore find that this factor does not 
contribute significantly to the status of the southern DPS or to our 
conclusion to list the southern DPS of the spotted seal as threatened 
under the ESA.

Diseases, Parasites, and Predation

    A variety of pathogens (or antibodies), diseases, helminths, 
cestodes, and nematodes have been found in spotted seals. The 
prevalence of these agents is not unusual among seals, but whether 
there is an associated population-level impact is unknown. There has 
been speculation about increased risk of outbreaks of novel pathogens 
or parasites in marine systems as climate-related shifts in species 
distributions lead to new modes of transmission. However, no examples 
directly relating climate change to increased severity or prevalence of 
disease have been documented. Some types of diseases may decrease in 
severity or prevalence with increasing temperature. Therefore, it is 
not currently possible to predict the consequences of climate warming 
on disease or pathogen biodiversity in general or on spotted seal 
viability in particular.
    There is little or no direct evidence of significant predation on 
spotted seals, and they are not thought to be a primary prey of any 
predators. However, predation risk could increase if loss of sea ice 
requires spotted seals to spend more time in the water or more time on 
shore, but predator distributions and behavior patterns may also be 
subject to climate-related changes, and the net impact to spotted seals 
cannot be predicted.

Inadequacy of Existing Regulatory Mechanisms

    There are currently no effective mechanisms to regulate global GHG 
emissions, which are contributing to global climate change and 
associated modifications to spotted seal habitat. The risk posed to the 
southern DPS due to the lack of mechanisms to regulate GHG emissions is 
directly correlated to and difficult to distinguish from the risk posed 
by the effects of these emissions. The projections we used to assess 
risks from GHG emissions were based on the assumption that no 
regulation will take place (the underlying IPCC emissions scenarios 
were all ``non-mitigated'' scenarios). Therefore, the lack of 
mechanisms to regulate GHG emissions is already included in our risk 
assessment. Still, we recognize that the lack of effective mechanisms 
to regulate global GHG emissions is contributing to the risks posed to 
the southern DPS by these emissions.
    Inadequacy or lack of stringency of mechanisms to regulate oil and 
gas activities in the Yellow Sea may be a similarly relevant factor 
regarding the cumulative risk faced by the southern DPS. However, large 
oil spill events are infrequent, and the ability to respond to them 
depends on a variety of factors, including timing, location and 
weather.

Other Natural or Human Factors Affecting the Species' Continued 
Existence

    Spotted seals may be adversely affected by exposure to certain 
pollutants. Pollutants such as organochlorine compounds and heavy 
metals have been found in high concentrations in some Arctic phocids. 
Butyltin (BT) compounds are used as antifouling agents in ship bottom 
paints. They are retained in all tissues, though largely in the liver 
rather than the blubber where polychlorinated biphenyls (PCBs) and 
dichloro-diphenyl-trichloroethane (DDT) accumulate. BTs have been found 
in spotted seals, and some studies suggest marine mammals may have 
difficulty metabolizing these compounds. Research has also found 
persistent organochlorine pollutants (POPs), including flame retardant 
compounds like PBDEs as well as DDTs, PCBs, and perfluorinated 
contaminants (PFCs) in spotted seals.
    We do not believe organochlorine levels are affecting ice seal 
populations at this time. We have no data or model predictions of 
levels expected in the foreseeable future. However, current levels 
should be used as a baseline for future research as concentrations in

[[Page 65246]]

surrounding Arctic regions continue to rise. Climate change has the 
potential to increase the transport of pollutants from lower latitudes 
to the Arctic through changes in ocean current patterns, highlighting 
the importance of continuing to monitor spotted seal contaminant 
levels.
    We note that most spotted seal contaminant research has been done 
in the Bering Sea and coastal areas around Hokkaido, Japan. Information 
about pollutants in water and sediments in the range of the southern 
DPS was used to draw inferences about potential risk from contaminants. 
Due to low water exchange and continued exposure to pollution, it is 
likely that high levels of contaminants would be found in seals of the 
Yellow Sea. However, we do not have any information to conclude that 
there are any population-level effects from contaminant exposure.
    As discussed above, oil and gas activities have the potential to 
adversely affect spotted seals. As far as is known, spotted seals have 
not been affected by oil spilled as a result of industrial activities 
even though such spills have occurred in spotted seal habitat. Oil and 
gas development in the Sea of Okhotsk resulted in an oil spill in 1999, 
which released about 3.5 tons of oil. Also, in December 2007 
approximately 10,500 tons of crude oil spilled into the Yellow Sea 
offshore of South Korea's Taean Peninsula from a tanker. The size of 
the oil spill was about one-fourth that of the Exxon Valdez spill in 
1989, and was the largest in Korean history. It is unknown how many 
seals may have been affected by this spill. Incidences of oil spills 
are expected to increase with the on-going increase in oil and natural 
gas exploration/development activities in the Bohai and Yellow seas. 
Accompanying growth in tanker and shipping traffic could further add to 
the oil spill potential. According to experts in China, the threat of 
future oil spills remains high.
    Though the probability of an oil spill affecting a significant 
portion of the southern DPS in the foreseeable future is low, the 
potential impacts from such a spill could be significant. The potential 
impacts would be greatest when spotted seals are relatively aggregated. 
Such an event in the Bohai Sea could be particularly devastating to the 
southern DPS of spotted seals. Given the very low abundance of the 
southern DPS and the possible consequences of a large oil spill to 
these seals, we considered this factor to be significant in our 
classification of the southern DPS as threatened.
    Potentially significant interactions with commercial fisheries may 
pose significant risks, as well. Mortality of spotted seals incidental 
to fishery activities has been reported in both the Yellow Sea and 
Peter the Great Bay. The estimated level of fishery bycatch reported by 
researchers for spotted seals in Peter the Great Bay would be 
unsustainable for this population, and has been implicated as possibly 
limiting its growth.

Conservation Efforts

    When considering the listing of a species, section 4(b)(1)(A) of 
the ESA requires us to consider efforts by any State, foreign nation, 
or political subdivision of a State or foreign nation to protect the 
species. Such efforts would include measures by Native American tribes 
and organizations, local governments, and private organizations. Also, 
Federal, tribal, state, and foreign recovery actions (16 U.S.C. 
1533(f)), and Federal consultation requirements (16 U.S.C. 1536) 
constitute conservation measures. In addition to identifying these 
efforts, under the ESA and our Policy on the Evaluation of Conservation 
Efforts (PECE) (68 FR 15100; March 28, 2003), we must evaluate the 
certainty of an effort's effectiveness on the basis of whether the 
effort or plan: Establishes specific conservation objectives; 
identifies the necessary steps to reduce threats or factors for 
decline; includes quantifiable performance measures for the monitoring 
of compliance and effectiveness; incorporates the principles of 
adaptive management; is likely to be implemented; and is likely to 
improve the species' viability at the time of the listing 
determination.
    Several conservation efforts have been undertaken by foreign 
nations specifically to protect spotted seals within the southern DPS. 
These include: (1) Russia has established the Far Eastern Marine 
Reserve in Russia's Peter the Great Bay, and the islands of the Reserve 
provide protection from human disturbance and suitable haul-out sites 
for spotted seals; (2) China's Liaoning provincial government has 
banned the hunting of spotted seals, and established two national 
protected areas for the protection of spotted seals in the Liaodong Bay 
area, including the Dalian National Spotted Seal Nature Reserve 
(though, in 2006, the Dalian Nature Reserve's boundaries were adjusted 
to accommodate industrial development); (3) spotted seals are listed in 
the Second Category (II) of the ``State Key Protected Wildlife List'' 
in China and listed as Vulnerable (V) in the ``China Red Data Book of 
Endangered Animals''; (4) the spotted seal is designated a vulnerable 
species under the Wildlife Conservation Act of China (though, as of 
2004, no conservation action, public awareness, or education programs 
have been carried out for the species in this region); and (5) in 2000, 
spotted seals were afforded protected status under the Wildlife 
Conservation Act of South Korea. Despite this protection, the Liaodong 
Gulf population, shared between China and Korea, continues to decline.
    The Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) is a treaty aimed at protecting species at risk 
from international trade. CITES regulates international trade in 
animals and plants by listing species in one of its three appendices. 
Spotted seals are not listed under CITES.
    The International Union for the Conservation of Nature (IUCN) Red 
List identifies and documents those species believed by its reviewers 
to be in need of conservation attention if global extinction rates are 
to be reduced, and is widely recognized as the most comprehensive, 
apolitical, global approach for evaluating the conservation status of 
plant and animal species. In order to produce Red Lists of threatened 
species worldwide, the IUCN Species Survival Commission draws on a 
network of scientists and partner organizations, which uses a 
standardized process to determine species' risks of extinction. 
However, the IUCN Red List criteria differ from the listing criteria 
provided by the ESA. Because current abundance and population trends 
are unknown, the spotted seal is currently classified as ``Data 
Deficient'' on the IUCN Red List.
    There are no known regulatory mechanisms that effectively address 
the factors believed to be contributing to reductions in sea ice 
habitat at this time. The primary international regulatory mechanisms 
addressing GHG emissions and global warming are the United Nations 
Framework Convention on Climate Change and the Kyoto Protocol. However, 
the Kyoto Protocol's first commitment period only sets targets for 
action through 2012. There is no regulatory mechanism governing GHG 
emissions in the years beyond 2012. The United States, although a 
signatory to the Kyoto Protocol, has not ratified it; therefore, the 
Kyoto Protocol is non-binding on the United States.
    We are not aware of any formalized conservation efforts for spotted 
seals that have yet to be implemented, or which have recently been 
implemented, but have yet to show their effectiveness in removing 
threats to the species. There is no certainty that the conservation 
efforts analyzed will be effective in

[[Page 65247]]

altering the status of the southern DPS. Therefore, our analysis of the 
efforts to protect the spotted seal does not affect our determination 
regarding the threatened status of the southern DPS. Based on the best 
scientific and commercial data available, including the status review 
report, and consideration of section 4(a)(1) of the ESA and the listing 
regulations, we find that the southern DPS is likely to become an 
endangered species within the foreseeable future and should be listed 
as a threatened species.

Final Listing Determination

    We have reviewed the status of the southern DPS of the spotted 
seal, considering the best scientific and commercial data available. We 
have reviewed threats to the southern DPS, as well as other factors, 
and given consideration to conservation efforts and special 
designations for spotted seals by states and foreign nations. In 
consideration of all of the threats and potential threats identified 
above, the assessment of the risks posed by those threats, the possible 
cumulative impacts, and the uncertainty associated with all of these, 
we draw the following conclusions: (1) Abundance estimates indicate the 
Liaodong Bay spotted seals have been significantly reduced from 
historical numbers, while the Peter the Great population appears to be 
below historical numbers though stable, possibly limited by fishery 
bycatch; (2) projected warming by mid-century indicates reliable ice 
formation will cease to occur in this region by the latter half of the 
21st century; (3) there already is significant use of terrestrial 
habitat for whelping and nursing by the southern DPS of spotted seals; 
(4) overall, the southern DPS has been significantly reduced in number 
and now exists at abundance levels where additional loss would threaten 
this DPS through ``small population'' or demographic stochasticity 
effects; and (5) the continued viability of using terrestrial sites is 
unknown, but may be limited in area or predispose spotted seals to 
predation and other natural and anthropogenic effects. Therefore, we 
conclude that the southern DPS of the spotted seal is likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range, and list it as threatened under the 
ESA.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction. 
Section 4(d) of the ESA directs the Secretary of Commerce (Secretary) 
to implement regulations ``to provide for the conservation of 
[threatened] species'' that may include extending any or all of the 
prohibitions of section 9 to threatened species. Section 9(a)(1)(g) 
also prohibits violations of protective regulations for threatened 
species implemented under section 4(d). Although China, South Korea, 
and Russia have designated special conservation status for spotted seal 
populations and portions of their range within the southern DPS, it is 
uncertain whether these and other conservation measures analyzed will 
be effective in altering the status of this DPS. Therefore, based on 
the status of the southern DPS and its conservation needs, we conclude 
that the ESA section 9 prohibitions are necessary and advisable to 
provide for its conservation. NMFS is promulgating, by way of this 
final rule, protective regulations pursuant to section 4(d) for the 
southern DPS of the spotted seal to include all of the prohibitions in 
Section 9(a)(1).
    Sections 7(a)(2) and (4) of the ESA require Federal agencies to 
consult with us to ensure that activities they authorize, fund, or 
conduct are not likely to jeopardize the continued existence of a 
listed species or a species proposed for listing, or to adversely 
modify critical habitat or proposed critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us.
    Sections 10(a)(1)(A) and (B) of the ESA provide us with authority 
to grant exceptions to the ESA's Section 9 ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets spotted 
seals. Section 10(a)(1)(B) incidental take permits are required for 
non-Federal activities that may incidentally take a listed species in 
the course of an otherwise lawful activity.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, we and the USFWS published a series of policies 
regarding listings under the ESA, including a policy to identify, to 
the maximum extent possible, those activities that would or would not 
constitute a violation of section 9 of the ESA (59 FR 34272). The 
intent of this policy is to increase public awareness of the effect of 
our ESA listing on proposed and ongoing activities within the species' 
range. We identify, to the extent known, specific activities that will 
be considered likely to result in violation of section 9, as well as 
activities that will not be considered likely to result in violation. 
Because the southern DPS occurs outside the jurisdiction of the United 
States, we are presently unaware of any activities that could result in 
violation of section 9 of the ESA; however, because the possibility for 
violations exists we will maintain the section 9 protection.

Critical Habitat

    Critical habitat is not to be designated within foreign countries 
or in other areas outside U.S. jurisdiction (50 CFR 424.12(h)). Because 
the known distribution of the southern DPS occurs in areas outside the 
jurisdiction of the United States, no critical habitat will be 
designated as part of the listing action.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA in section 4(b)(1)(A) restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v  Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions (see also NOAA Administrative Order 216-6.).

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analyses required by the Regulatory 
Flexibility Act are not applicable to the listing process. In addition, 
this final rule is exempt from review under Executive Order 12866. This 
final rule does not contain a collection of information requirement for 
the purposes of the Paperwork Reduction Act.

Executive Order 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt State law or impose substantial direct compliance

[[Page 65248]]

costs on State and local governments (unless required by statute). 
Neither of those circumstances is applicable to this final rule.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175--Consultation and Coordination with Indian 
Tribal Governments--outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. Section 161 of Public 
Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 
108-447 (118 Stat. 3267), directs all Federal agencies to consult with 
Alaska Native corporations on the same basis as Indian tribes under 
E.O. 13175.
    We have determined the listing action will not have tribal 
implications or affect any tribal governments or issues. The southern 
DPS does not occur within Alaska, and therefore is not hunted by 
Alaskan Natives for traditional use or subsistence purposes.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://www.fakr.noaa.gov/ and is available 
upon request from the NMFS office in Juneau, Alaska (see ADDRESSES).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: October 14, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 223 is amended as 
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

0
2. In Sec.  223.102, in the table, add paragraph (a)(3) to read as 
follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species \1\
--------------------------------------------------------------      Where listed       Citation(s) for listing      Citation(s) for critical  habitat
             Common name                  Scientific name                                  det