Endangered and Threatened Wildlife; 90-Day Finding on a Petition To List Harbor Seals in Iliamna Lake as a Threatened or Endangered Species, 34229-34234 [2021-13841]
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Tracey L. Thompson,
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[FR Doc. 2021–13878 Filed 6–28–21; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[Docket No. 210623–0137; RTID 0648–
XY100]
Endangered and Threatened Wildlife;
90-Day Finding on a Petition To List
Harbor Seals in Iliamna Lake as a
Threatened or Endangered Species
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; 90-day petition finding.
AGENCY:
We, NMFS, announce a 90day finding on a petition to list the
Pacific harbor seals (Phoca vitulina
richardii) in Iliamna Lake as threatened
or endangered under the Endangered
Species Act (ESA) and to designate
SUMMARY:
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34229
critical habitat. We find that the petition
and information readily available in our
files does not present new information
or analyses that had not been previously
considered in our 2016 distinct
population segment (DPS) assessment
and petition finding and, therefore, the
petition does not present substantial
scientific or commercial information
indicating that the petitioned action
may be warranted.
ADDRESSES: Copies of the petition and
related materials are available from the
NMFS websites at https://
www.fisheries.noaa.gov/national/
endangered-species-conservation/
negative-90-day-findings or upon
request from the Assistant Regional
Administrator for Protected Resources,
Alaska Region, NMFS, P.O. Box 21668,
Juneau, AK 99802–1668.
FOR FURTHER INFORMATION CONTACT:
Jenna Malek, NMFS Alaska Region,
(907) 271–1332, Jenna.Malek@noaa.gov;
Jon Kurland, NMFS Alaska Region,
(907) 586–7638, Jon.Kurland@noaa.gov;
or Adrienne Lohe, NMFS Office of
Protected Resources, (301) 427–8442,
Adrienne.Lohe@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
On February 6, 2020, we received a
petition from the Center for Biological
Diversity (CBD) to list the harbor seals
in Iliamna Lake, Alaska as a threatened
or endangered species under the ESA
and to designate critical habitat
concurrent with listing. Under the
Marine Mammal Protection Act
(MMPA), harbor seals in Alaska are
divided into 12 separate stocks as
described in NMFS’s Alaska Marine
Mammal Stock Assessments, 2019
(https://repository.library.noaa.gov/
view/noaa/25642). Harbor seals in
Iliamna Lake are within the geographic
range of the Bristol Bay harbor seal
stock.
CBD previously petitioned NMFS to
list the harbor seals in Iliamna Lake as
threatened or endangered in 2012.
NMFS published a positive 90-day
finding in 2013 and commenced a
review to determine whether these seals
were a ‘‘species’’ and if so whether
listing was warranted (78 FR 29098;
May 17, 2013). Per the joint NMFS–U.S.
Fish and Wildlife Service (USFWS)
(jointly, ‘‘the Services’’) policy that
clarifies the agencies’ interpretation of
the phrase ‘‘distinct population
segment’’ (61 FR 4722; February 7,
1996), when determining whether a
population segment is a DPS, we
consider both the discreteness and the
significance of the population segment
in relation to the remainder of the
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species to which it belongs. After
completing a DPS assessment, NMFS
determined in 2016 that the discreteness
of the seals was supported by the
limited genetic information available.
However, the evidence for discreteness
based on physical, physiological, or
ecological factors was unconvincing,
and the available evidence based on
behavioral factors was inconclusive.
One of those behavioral considerations
was the lack of any documentation of
foraging behaviors outside what has
been documented as normal harbor seal
behavior. Regarding significance, we
acknowledged that the year-round
persistence of a discrete population of
harbor seals in a freshwater lake is
unusual for the subspecies, but we
noted an absence of evidence suggesting
the harbor seals in Iliamna Lake have
adaptations to their environment that
would benefit the taxon to which they
belong. Thus, NMFS concluded that the
harbor seals in Iliamna Lake were not
significant in relation to the remainder
of the species to which they belong and,
therefore, listing the harbor seals in
Iliamna Lake was not warranted because
they did not constitute a species,
subspecies, or DPS under the ESA (81
FR 81074; November 17, 2016).
As in its 2012 petition, CBD maintains
in its 2020 petition that the harbor seals
found in Iliamna Lake constitute a DPS
and refers to them in the petition as
‘‘Iliamna Lake seals.’’ CBD asserts that
the seals in Iliamna Lake face the
following threats: (1) Habitat
modification and disturbance associated
with the Pebble Project (a proposed
copper-gold-molybdenum porphyry
mine located north of Iliamna Lake) and
climate change; (2) disease and natural
predation; (3) inadequacy of existing
regulatory mechanisms for addressing
climate change or the Pebble Project;
and (4) other natural and anthropogenic
factors including risks of rarity, fishing
and hunting, illegal feeding and
harassment, oil and gas exploration and
development, and contaminants. CBD
concludes that the combination of being
a small, isolated population with the
identified threats qualifies the seals in
Iliamna Lake for listing as a threatened
or endangered species under the ESA.
ESA Statutory, Regulatory, and Policy
Provisions and Evaluation Framework
Section 4(b)(3)(A) of the ESA of 1973,
as amended (16 U.S.C. 1531 et seq.),
requires, to the maximum extent
practicable, that within 90 days of
receipt of a petition to list a species as
threatened or endangered, the Secretary
of Commerce make a finding on whether
that petition presents substantial
scientific or commercial information
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indicating that the petitioned action
may be warranted, and promptly
publish such finding in the Federal
Register (16 U.S.C. 1533(b)(3)(A)). When
it is found that substantial scientific or
commercial information in a petition
indicates the petitioned action may be
warranted (a ‘‘positive 90-day finding’’),
we are required to promptly commence
a review of the status of the species
concerned during which we will
conduct a comprehensive review of the
best available scientific and commercial
information. In such cases, we conclude
the review with a finding as to whether,
in fact, the petitioned action is
warranted within 12 months of receipt
of the petition. Because the finding at
the 12-month stage is based on a more
thorough review of the available
information, as compared to the narrow
scope of review at the 90-day stage, a
‘‘may be warranted’’ finding does not
prejudge the outcome of the status
review.
Under the ESA, a listing
determination may address a species,
which is defined to also include
subspecies and, for any vertebrate
species, any DPS that interbreeds when
mature (16 U.S.C. 1532(16)). A joint
policy issued by the Services clarifies
the agencies’ interpretation of the
phrase ‘‘distinct population segment’’
for the purposes of listing, delisting, and
reclassifying a species under the ESA
(61 FR 4722; February 7, 1996). A
species, subspecies, or DPS is
‘‘endangered’’ if it is in danger of
extinction throughout all or a significant
portion of its range, and ‘‘threatened’’ if
it is likely to become endangered within
the foreseeable future throughout all or
a significant portion of its range (ESA
sections 3(6) and 3(20), respectively, 16
U.S.C. 1532(6) and (20)). Pursuant to the
ESA and our implementing regulations,
we determine whether species are
threatened or endangered based on any
one or a combination of the following
five section 4(a)(1) factors: (1) The
present or threatened destruction,
modification, or curtailment of habitat
or range; (2) overutilization for
commercial, recreational, scientific, or
educational purposes; (3) disease or
predation; (4) inadequacy of existing
regulatory mechanisms to address
identified threats; (5) or any other
natural or manmade factors affecting the
species’ existence (16 U.S.C. 1533(a)(1),
50 CFR 424.11(c)).
ESA-implementing regulations issued
jointly by NMFS and USFWS (50 CFR
424.14(h)(1)(i)) define ‘‘substantial
scientific or commercial information’’ in
the context of reviewing a petition to
list, delist, or reclassify a species as
credible scientific or commercial
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information in support of the petition’s
claims such that a reasonable person
conducting an impartial scientific
review would conclude that the action
proposed in the petition may be
warranted. Conclusions drawn in the
petition without the support of credible
scientific or commercial information
will not be considered ‘‘substantial
information.’’ In reaching the initial (90day) finding on the petition, we will
consider the information described in
sections 50 CFR 424.14(c), (d), and (g)
(if applicable).
Our determination as to whether the
petition provides substantial scientific
or commercial information indicating
that the petitioned action may be
warranted will depend in part on the
degree to which the petition includes
the following types of information: (1)
Current population status and trends
and estimates of current population
sizes and distributions, both in captivity
and the wild, if available; (2)
identification of the factors under
section 4(a)(1) of the ESA that may
affect the species and where these
factors are acting upon the species; (3)
whether and to what extent any or all
of the factors alone or in combination
identified in section 4(a)(1) of the ESA
may cause the species to be an
endangered species or threatened
species (i.e., the species is currently in
danger of extinction or is likely to
become so within the foreseeable
future), and, if so, how high in
magnitude and how imminent the
threats to the species and its habitat are;
(4) adequacy of regulatory protections
and effectiveness of conservation
activities by States as well as other
parties, that have been initiated or that
are ongoing, that may protect the
species or its habitat; and (5) a
complete, balanced representation of the
relevant facts, including information
that may contradict claims in the
petition. See 50 CFR 424.14(d).
If the petitioner provides
supplemental information before the
initial finding is made and states that it
is part of the petition, the new
information, along with the previously
submitted information, is treated as a
new petition that supersedes the
original petition, and the statutory
timeframes will begin when such
supplemental information is received.
See 50 CFR 424.14(g).
We may also consider information
readily available at the time the
determination is made. We are not
required to consider any supporting
materials cited by the petitioner if the
petitioner does not provide electronic or
hard copies, to the extent permitted by
U.S. copyright law, or appropriate
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excerpts or quotations from those
materials (e.g., publications, maps,
reports, letters from authorities). See 50
CFR 424.14(c)(6).
The ‘‘substantial scientific or
commercial information’’ standard must
be applied in light of any prior reviews
or findings we have made on the listing
status of the species that is the subject
of the petition. Where we have already
conducted a finding on, or review of,
the listing status of that species
(whether in response to a petition or on
our own initiative), we will evaluate any
petition received thereafter seeking to
list, delist, or reclassify that species to
determine whether a reasonable person
conducting an impartial scientific
review would conclude that the action
proposed in the petition may be
warranted despite the previous review
or finding. Where the prior review
resulted in a final agency action—such
as a final listing determination, 90-day
not-substantial finding, or 12-month
not-warranted finding—a petition will
generally not be considered to present
substantial scientific and commercial
information indicating that the
petitioned action may be warranted
unless the petition provides new
information or analysis not previously
considered. See 50 CFR 424.14(h)(1)(iii).
At the 90-day finding stage, we do not
conduct additional research, and we do
not solicit information from parties
outside the agency to help us in
evaluating the petition. We will accept
the petitioners’ sources and
characterizations of the information
presented if they appear to be based on
accepted scientific principles, unless we
have specific information in our files
that indicates the petition’s information
is incorrect, unreliable, obsolete, or
otherwise irrelevant to the requested
action. Information that is susceptible to
more than one interpretation or that is
contradicted by other available
information will not be dismissed at the
90-day finding stage, so long as it is
reliable and a reasonable person
conducting an impartial scientific
review would conclude it supports the
petitioners’ assertions. In other words,
conclusive information indicating the
species may meet the ESA’s
requirements for listing is not required
to make a positive 90-day finding. We
will not conclude that a lack of specific
information alone necessitates a
negative 90-day finding if a reasonable
person conducting an impartial
scientific review would conclude that
the unknown information itself suggests
the species may be at risk of extinction
presently or within the foreseeable
future.
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To make a 90-day finding on a
petition to list a species, we first
evaluate whether the petition presents
substantial scientific or commercial
information indicating the subject of the
petition may constitute a ‘‘species’’
eligible for listing under the ESA. If so,
we evaluate whether the information
indicates that the species may face an
extinction risk such that listing,
delisting, or reclassification may be
warranted; this may be indicated in
information expressly discussing the
species’ status and trends, or in
information describing impacts and
threats to the species. We evaluate
whether the petition presents any
information on specific demographic
factors pertinent to evaluating
extinction risk for the species (e.g.,
population abundance and trends,
productivity, spatial structure, age
structure, sex ratio, diversity, current
and historical range, habitat integrity or
fragmentation), and the potential
contribution of identified demographic
risks to extinction risk for the species.
We then evaluate whether the petition
presents information suggesting
potential links between these
demographic risks and the causative
impacts and threats identified in section
4(a)(1) of the ESA.
Information presented on impacts or
threats should be specific to the species
and should reasonably suggest that one
or more of these factors may be
operative threats that act or have acted
on the species to the point that it may
warrant protection under the ESA.
Broad statements about generalized
threats to the species, or identification
of factors that could negatively impact
a species, do not constitute substantial
information indicating that listing may
be warranted. We look for information
indicating that not only is the particular
species exposed to a factor, but that the
species may be responding in a negative
fashion; then we assess the potential
significance of that negative response.
Many petitions identify risk
classifications made by
nongovernmental organizations, such as
the International Union on the
Conservation of Nature (IUCN), the
American Fisheries Society, or
NatureServe, as evidence of extinction
risk for a species. Risk classifications by
other organizations or made under other
Federal or state statutes may be
informative, but such classification
alone may not provide the rationale for
a positive 90-day finding under the
ESA. For example, as explained by
NatureServe, their assessments of a
species’ conservation status do ‘‘not
constitute a recommendation by
NatureServe for listing under the U.S.
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34231
Endangered Species Act’’ because
NatureServe assessments ‘‘have
different criteria, evidence
requirements, purposes and taxonomic
coverage than government lists of
endangered and threatened species, and
therefore these two types of lists should
not be expected to coincide’’ (https://
explorer.natureserve.org/
AboutTheData/DataTypes/
ConservationStatusCategories).
Additionally, species classifications
under IUCN and the ESA are not
equivalent; data standards, criteria used
to evaluate species, and treatment of
uncertainty are also not necessarily the
same. Thus, when a petition cites such
classifications, we will evaluate the
source of information that the
classification is based upon in light of
the standards on extinction risk and
impacts or threats discussed above.
Analysis of Petition
We have reviewed the petition, the
literature cited in the petition, and other
literature and information readily
available in our files. In addition to
reiterating information used to support
the 2012 petition, the petitioners assert
that a recent paper by Brennan et al.
(2019) supports the conclusion that the
harbor seals in Iliamna Lake are a
discrete population and provides
evidence of their significance to the
broader taxon (the Pacific harbor seal
subspecies; Phoca vitulina richardii),
demonstrating eligibility of this group of
seals for designation as a DPS. As
discussed above, we evaluate any
petition seeking to list a species in light
of any prior reviews or findings we have
already made on the species that is the
subject of the petition. Because our
previous review resulted in a final
agency action finding the harbor seals in
Iliamna Lake did not constitute a
species, subspecies, or DPS under the
ESA, the petitioned action will
generally not be considered to present
substantial scientific or commercial
information indicating that the action
may be warranted unless the petition
provides new information or a new
analysis not previously considered. See
50 CFR 424.14(h)(1)(iii). Therefore,
unless the petition provides credible
new information, or identifies errors or
provides a credible new analysis, we
may find that the petition does not
present substantial information
indicating that the petitioned action
may by warranted. Below, we address
the main points made by the petitioners,
including the purportedly new
information based on Brennan et al.
(2019), and identify where this
information was considered in NMFS’s
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2016 DPS assessment and petition
finding.
According to the petitioners, Brennan
et al. (2019) provides additional support
to the DPS discreteness criterion by
demonstrating that the seals are lifelong
residents of the lake and rely mostly on
lake-produced resources, even when
spawning salmon are available (CBD
2020, p.19). In our 2016 DPS assessment
and petition finding, NMFS considered
genetic analyses by Burns et al. (2013)
indicating that the harbor seals in
Iliamna Lake are a small, isolated
population: ‘‘Together, the mtDNA and
nDNA results are consistent with a
small, isolated population in Iliamna
Lake. The substantial differentiation in
allele frequencies between the lake and
EBB [Eastern Bristol Bay] seals is
consistent with isolation, i.e., lack of
breeding dispersal into the lake’’
(Boveng et al., 2016, p. 24). This
information led to our conclusion that
based on the best available genetic
information, the seals in Iliamna Lake
meet the DPS discreteness criterion by
being markedly separated from harbor
seals in Bristol Bay (i.e., are born and
live in the lake) and, by extension, the
remainder of the taxon (81 FR 81082,
November 17, 2016). The conclusion of
Brennan et al. (2019) that the seals are
lifelong residents in the lake is therefore
not new information. In reference to the
petitioner’s conclusion that the seals in
the lake rely mostly on lake-produced
resources, even when spawning salmon
are available (CBD 2020, p.19), the 2016
DPS assessment (Boveng et al. 2016, p.
12—15) and the petition finding (81 FR
81080, November 17, 2016) both
considered data from scat samples
(Hauser et al. 2008), and stomach
contents and stable isotope analysis
(Burns et al. 2013) that demonstrated
the seals’ simultaneous utilization of
both freshwater and salmonid species.
Additionally, the teeth of harbor seals in
Iliamna Lake that were used for Brennan
et al. (2019) isotope analyses were from
a subset of the same seals included in
the genetic analyses by Burns et al.
(2013), which we considered when we
concluded in our 2016 DPS assessment
and finding that the seals in the lake are
a discrete population (Boveng et al.
2016, p. 24; 81 FR 81082, November 17,
2016). Therefore, we conclude that the
petition does not present new
information on the isolated nature of the
harbor seals in Iliamna Lake and the
discreteness of the population.
With respect to the DPS significance
criterion, the petitioners assert that the
harbor seals in Iliamna Lake are
significant to the broader Pacific harbor
seal taxon because of local adaptations
resulting from their persistence in a
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unique ecological setting, including
phenotypic (e.g., larger size, darker
coloration, and finer pelage) and
behavioral adaptations (e.g., use of
under-ice spaces), and the development
of a ‘‘unique foraging ecology’’ (CBD
2020, p. 18–19).
NMFS considered the evidence for
phenotypic adaptations in both the 2016
DPS assessment and petition finding.
With respect to the larger size described
by CBD, Boveng et al. (2016, p. 38)
considered that: ‘‘In some species,
variation in body size may indicate true
adaptation to various ecological setting
. . .’’ and ultimately concluded that for
the harbor seals in Iliamna Lake: ‘‘. . .
higher growth rates and/or larger
average size could simply reflect greater
availability of energy and nutrients,
lower disease or parasite burdens, or
other factors that would not confer any
particular biological significance to the
lake population.’’ For the observation
that pelage color and texture differed
from marine seals, Boveng et al. (2016,
p. 38–39) considered local and
traditional knowledge and observations
from other freshwater seals and
concluded: ‘‘. . . we were unable to
identify any evidence that this is a
result of anything other than an effect of
fresh vs. salt water on seal coats; we
found no evidence that this represents
a heritable trait or adaptation that would
convey significance.’’ The 2016 petition
finding came to similar conclusions on
all of the proposed phenotypic
adaptations, indicating that the
variances observed in taste, body size,
and pelage traits of harbor seals in
Iliamna Lake are likely the result of
seasonal diet, individual variation, and
normal phenotypic plasticity rather than
the result of physiological distinctions
from harbor seals in nearby marine
environments (81 FR 81079, November
17, 2016). No new information is
presented in the current petition that
offers additional support for the
existence of phenotypic adaptations
attributable to the seals residing in
Iliamna Lake.
The petition asserts that the harbor
seals in Iliamna Lake display novel use
of under-ice spaces that contributes to
the population’s persistence and
survival and is therefore an adaptation
that may be of importance to the taxon
as a whole (CBD 2020, p. 18). In the
2016 DPS assessment, Boveng et al.
(2016, p. 39) observed that it ‘‘is not
clear whether this behavior represents a
true adaptation or is simply a response
to conditions that would be exploited by
other harbor seals if they encountered
those same conditions’’ and that ‘‘[a]
seal introduced to the lake from the
marine population might well survive
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by learning the requisite behaviors from
conspecifics in the lake population.’’
Based on the available information, they
ultimately concluded: ‘‘Although the
way that harbor seals in Iliamna Lake
cope with the extensive ice cover in
winter is unusual for the species, they
do not seem to have adopted breeding,
whelping, or pup rearing behaviors that
would be unusual for the species’’
(Boveng et al. 2016, p. 39). Thus, the
information presented on this
behavioral adaptation in the current
petition is not new.
The petitioners also discuss what they
assert is new information about a
‘‘unique foraging ecology’’ among
harbor seals in Iliamna Lake. As stated
by CBD (2020, p. 1; adapted from
Brennan et al. 2019): ‘‘. . . the foraging
ecology of Iliamna Lake seals differs in
several respects from other eastern
North Pacific harbor seal populations.
Iliamna Lake seals rely heavily on
freshwater fish throughout the year,
even during periods of abundant
sockeye salmon. The seals also undergo
a developmental shift whereby their use
of salmon increases as they mature.’’
Brennan et al. (2019) further states that
Iliamna seals ‘‘rely on lake resources
and consistently display an ontogenetic
shift from a diet composed principally
of lake resources to one that exploits
seasonally abundant salmon. Both
imply locally adapted abilities to exploit
a food web unlike that of any other P.
v. richardii population across the
Eastern Pacific.’’
The components of the ‘‘unique
foraging ecology’’ scenario described by
the petitioner, in which the harbor seals
in Iliamna Lake rely heavily on
freshwater prey even in the presence of
seasonally available resources and shift
later in life to greater reliance on
exogenous (marine-produced) food in
the form of returning sockeye salmon
spawners, were considered in the 2016
DPS assessment and petition finding.
Results of diet studies from both Iliamna
Lake and marine harbor seals were
considered in our 2016 petition finding,
leading to the conclusion that the seals
in the lake opportunistically feed on
both freshwater and marine prey, a
pattern that is consistent with harbor
seals foraging on a diversity of fish and
invertebrate prey across their range (81
FR 81080, November 17, 2016). The
finding additionally considered
information from a study by Burns et al.
(2013) that provided further support
that the harbor seals in Iliamna Lake
consume freshwater species (e.g.,
threespine stickleback and Arctic
grayling or lake whitefish) when
salmonids are present and that the
variety and types of prey items in the
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stomachs of the seals sampled further
reflects the generally opportunistic
feeding habitats of harbor seals and does
not suggest use of unusual or unique
prey based on their lake habitat (81 FR
81083, November 17, 2016).
Information addressing the second
component of the ‘‘unique foraging
ecology,’’ the increased reliance on
seasonal salmon, was considered by the
BRT in the 2016 DPS assessment: ‘‘The
finding that harbor seals in Iliamna Lake
predominantly fed on adult salmon
during the summer period of high
sockeye abundance corroborates
previous studies (Brown and Mate 1983,
Payne and Selzer 1989, Olesiuk 1993,
Iverson et al. 1997) showing that harbor
seal populations feed on seasonally
abundant prey wherever they occur
(Hauser et al. 2008)’’ (Boveng et al.
2016, p. 21–22). The November 17, 2016
petition finding also noted that the seals
in Iliamna Lake had similar seasonal
concentrations of salmon in their diets
as harbor seals from other freshwater
systems (81 FR 81080).
The petitioner’s characterization of a
‘‘unique foraging ecology’’ for harbor
seals in Iliamna Lake does not constitute
new information because NMFS
previously considered these same
foraging behaviors in the 2016 DPS
assessment and petition finding,
concluding that the foraging behaviors
of these seals are consistent with the
natural history of harbor seals,
particularly the Pacific subspecies
Phoca vitulina richardii, that is widely
understood by harbor seal experts and
well documented in the literature. The
petition describes an age-related shift in
diet, referred to as an ontogenetic shift,
which is a widespread behavior among
predator species that grow as they
develop and are able to utilize resources
differently as they increase in size (e.g.,
Werner and Gilliam 1984). Harbor seals
in general are known to exhibit sizerelated prey selection, exploiting small,
easy-to-catch prey until they attain the
size and proficiency needed to catch
and consume larger prey, such as adult
salmonids. Therefore, the age-related
shift in diet described by the petitioners
for the harbor seals in Iliamna Lake
(based on Brennan et al. 2019) merely
highlights well-known behavior and, as
a result, would not lead a reasonable
person conducting an impartial
scientific review to conclude that this
population might be significant in
relation to the broader taxon such that
the action proposed in the petition may
be warranted despite NMFS’s 2016 DPS
assessment and petition finding.
The petitioners further assert that in
addition to being a local adaptation, the
‘‘unique foraging ecology’’ also has
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evolutionary significance for the broader
taxon: ‘‘The Iliamna Lake seal’s unique
foraging ecology has significance for the
evolutionary potential of the broader P.
v. richardii taxon in a time of rapid
change and increasing threats’’ (CBD
2020, p. 20; based on Brennan et al.
2019). In the 2016 DPS assessment, the
Biological Review Team (BRT)
evaluated if there was evidence that
persistence in an unusual setting had
resulted in adaptations (e.g., genetic or
behavioral) in the harbor seals in
Iliamna Lake that may be of significance
to the broader taxon. ‘‘Although there
were genetic differences . . . those were
more indicative of reduced genetic
diversity in the lake population, rather
than development of novel genes in
response to the unusual habitat, and the
genetic sampling remains rather
inadequate for judging this’’ (Boveng et
al. 2016, p. iv). In the 2016 petition
finding, NMFS concluded there was no
evidence suggesting the harbor seals in
Iliamna Lake had specific adaptations to
their environment that would be
beneficial to the taxon, and thus the
persistence of the population in the lake
is not significant to the subspecies P. v.
richardii: (81 FR 81084, November 17,
2016). As discussed above, the petition
does not provide any new genetic
sampling or any other new information
not previously considered to support
the assertion that seals in Iliamna Lake
have a ‘‘unique foraging ecology.’’ The
petition therefore presents no new
evidence of adaptations in the harbor
seals in Iliamna Lake that may support
a finding that they are evolutionarily
significant to the broader taxon, per the
significance criterion of our DPS policy
(61 FR 4722, February 7, 1996).
In reference to the other significance
criteria, the petition asserts that the
harbor seals in Iliamna Lake are
significant to the greater taxon because
the loss of the Iliamna Lake population
would result in a significant gap in the
range of the taxon, and the genetic
characteristics of the population differ
markedly from marine harbor seals
(CBD 2020, p. 21–22). The 2016 DPS
assessment and the petition finding
discussed that the taxon is broadly
distributed, ranging from Alaska to the
Baja Peninsula, and that the estimated
number of seals in Iliamna Lake
accounts for roughly 0.1 percent of the
total population (Boveng et al. 2016, p.
40; 81 FR 81084–85, November 17,
2016). Additionally, Boveng et al. (2016,
p. 40) stated: ‘‘Because Iliamna Lake is
not a part of the continuous coastal
range of the marine population of harbor
seals, the loss of the Iliamna Lake
segment could not produce a gap in that
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34233
range, and therefore would not reduce
or preclude dispersal between segments
of the marine population.’’
With regard to the genetic
characteristics of the population
differing from marine harbor seals, the
petitioners state that the harbor seals in
Iliamna Lake have been there long
enough for genetic novelty to arise and
that the difference in behavior,
morphology, ecology, and habitat
between the seals in the lake and marine
harbor seals provides evidence of
genetic novelty (CBD 2020, 22–23).
Taking the genetic evidence previously
discussed into account, Boveng et al.
(2016, p. 43) stated: ‘‘. . . it cannot be
concluded with any confidence that this
population has been isolated in the lake
long enough for there to be a high
likelihood of mutations at other genetic
loci that could be selective and have
adaptive function but not be outwardly
apparent in the morphology or behavior
of the seals. On the contrary, the
evidence available thus far suggests that
genetic diversity has been lost rather
than gained since isolation of this
population.’’ The petition finding came
to a similar conclusion that the genetic
characteristics (i.e., mtDNA haplotype)
of the seals in Iliamna Lake are not
markedly different from those found in
Bristol Bay and therefore are not
significant to the taxon as a whole (81
FR 81085, November 17, 2016). Overall,
the petition does not provide any new
information regarding the significance
criterion that would lead a reasonable
person conducting an impartial
scientific review to conclude that the
petitioned action may be warranted
despite NMFS’s the 2016 DPS
assessment and petition finding.
Petition Finding
We thoroughly reviewed the
information presented in the petition
and found that it does not provide any
new information that was not already
considered in our 2016 DPS assessment
and petition finding that the harbor
seals in Iliamna Lake do not meet the
criteria of a DPS, and therefore do not
constitute an entity eligible for listing
under the ESA. As such, we find that
the petition does not present substantial
scientific or commercial information
indicating that the petitioned action
may be warranted.
References Cited
A complete list of all references is
available upon request from the
Protected Resources Division of the
NMFS Alaska Regional Office in Juneau,
Alaska (see ADDRESSES).
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Authority: The authority for this action is
the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: June 24, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2021–13841 Filed 6–28–21; 8:45 am]
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DEPARTMENT OF COMMERCE
Patent and Trademark Office
lotter on DSK11XQN23PROD with NOTICES1
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[FR Doc. 2021–13809 Filed 6–28–21; 8:45 am]
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DEPARTMENT OF ENERGY
Environmental Management SiteSpecific Advisory Board, Nevada
Office of Environmental
Management, Department of Energy.
ACTION: Notice of open in-person/virtual
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AGENCY:
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DATES: Wednesday, July 21, 2021; 4:00
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SUMMARY:
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]]>Agencies
[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Notices]
[Pages 34229-34234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13841]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[Docket No. 210623-0137; RTID 0648-XY100]
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List Harbor Seals in Iliamna Lake as a Threatened or Endangered
Species
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; 90-day petition finding.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the
Pacific harbor seals (Phoca vitulina richardii) in Iliamna Lake as
threatened or endangered under the Endangered Species Act (ESA) and to
designate critical habitat. We find that the petition and information
readily available in our files does not present new information or
analyses that had not been previously considered in our 2016 distinct
population segment (DPS) assessment and petition finding and,
therefore, the petition does not present substantial scientific or
commercial information indicating that the petitioned action may be
warranted.
ADDRESSES: Copies of the petition and related materials are available
from the NMFS websites at https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings or upon
request from the Assistant Regional Administrator for Protected
Resources, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668.
FOR FURTHER INFORMATION CONTACT: Jenna Malek, NMFS Alaska Region, (907)
271-1332, [email protected]; Jon Kurland, NMFS Alaska Region, (907)
586-7638, [email protected]; or Adrienne Lohe, NMFS Office of
Protected Resources, (301) 427-8442, [email protected].
SUPPLEMENTARY INFORMATION:
Background
On February 6, 2020, we received a petition from the Center for
Biological Diversity (CBD) to list the harbor seals in Iliamna Lake,
Alaska as a threatened or endangered species under the ESA and to
designate critical habitat concurrent with listing. Under the Marine
Mammal Protection Act (MMPA), harbor seals in Alaska are divided into
12 separate stocks as described in NMFS's Alaska Marine Mammal Stock
Assessments, 2019 (https://repository.library.noaa.gov/view/noaa/25642). Harbor seals in Iliamna Lake are within the geographic range of
the Bristol Bay harbor seal stock.
CBD previously petitioned NMFS to list the harbor seals in Iliamna
Lake as threatened or endangered in 2012. NMFS published a positive 90-
day finding in 2013 and commenced a review to determine whether these
seals were a ``species'' and if so whether listing was warranted (78 FR
29098; May 17, 2013). Per the joint NMFS-U.S. Fish and Wildlife Service
(USFWS) (jointly, ``the Services'') policy that clarifies the agencies'
interpretation of the phrase ``distinct population segment'' (61 FR
4722; February 7, 1996), when determining whether a population segment
is a DPS, we consider both the discreteness and the significance of the
population segment in relation to the remainder of the
[[Page 34230]]
species to which it belongs. After completing a DPS assessment, NMFS
determined in 2016 that the discreteness of the seals was supported by
the limited genetic information available. However, the evidence for
discreteness based on physical, physiological, or ecological factors
was unconvincing, and the available evidence based on behavioral
factors was inconclusive. One of those behavioral considerations was
the lack of any documentation of foraging behaviors outside what has
been documented as normal harbor seal behavior. Regarding significance,
we acknowledged that the year-round persistence of a discrete
population of harbor seals in a freshwater lake is unusual for the
subspecies, but we noted an absence of evidence suggesting the harbor
seals in Iliamna Lake have adaptations to their environment that would
benefit the taxon to which they belong. Thus, NMFS concluded that the
harbor seals in Iliamna Lake were not significant in relation to the
remainder of the species to which they belong and, therefore, listing
the harbor seals in Iliamna Lake was not warranted because they did not
constitute a species, subspecies, or DPS under the ESA (81 FR 81074;
November 17, 2016).
As in its 2012 petition, CBD maintains in its 2020 petition that
the harbor seals found in Iliamna Lake constitute a DPS and refers to
them in the petition as ``Iliamna Lake seals.'' CBD asserts that the
seals in Iliamna Lake face the following threats: (1) Habitat
modification and disturbance associated with the Pebble Project (a
proposed copper-gold-molybdenum porphyry mine located north of Iliamna
Lake) and climate change; (2) disease and natural predation; (3)
inadequacy of existing regulatory mechanisms for addressing climate
change or the Pebble Project; and (4) other natural and anthropogenic
factors including risks of rarity, fishing and hunting, illegal feeding
and harassment, oil and gas exploration and development, and
contaminants. CBD concludes that the combination of being a small,
isolated population with the identified threats qualifies the seals in
Iliamna Lake for listing as a threatened or endangered species under
the ESA.
ESA Statutory, Regulatory, and Policy Provisions and Evaluation
Framework
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
et seq.), requires, to the maximum extent practicable, that within 90
days of receipt of a petition to list a species as threatened or
endangered, the Secretary of Commerce make a finding on whether that
petition presents substantial scientific or commercial information
indicating that the petitioned action may be warranted, and promptly
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)).
When it is found that substantial scientific or commercial information
in a petition indicates the petitioned action may be warranted (a
``positive 90-day finding''), we are required to promptly commence a
review of the status of the species concerned during which we will
conduct a comprehensive review of the best available scientific and
commercial information. In such cases, we conclude the review with a
finding as to whether, in fact, the petitioned action is warranted
within 12 months of receipt of the petition. Because the finding at the
12-month stage is based on a more thorough review of the available
information, as compared to the narrow scope of review at the 90-day
stage, a ``may be warranted'' finding does not prejudge the outcome of
the status review.
Under the ESA, a listing determination may address a species, which
is defined to also include subspecies and, for any vertebrate species,
any DPS that interbreeds when mature (16 U.S.C. 1532(16)). A joint
policy issued by the Services clarifies the agencies' interpretation of
the phrase ``distinct population segment'' for the purposes of listing,
delisting, and reclassifying a species under the ESA (61 FR 4722;
February 7, 1996). A species, subspecies, or DPS is ``endangered'' if
it is in danger of extinction throughout all or a significant portion
of its range, and ``threatened'' if it is likely to become endangered
within the foreseeable future throughout all or a significant portion
of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C.
1532(6) and (20)). Pursuant to the ESA and our implementing
regulations, we determine whether species are threatened or endangered
based on any one or a combination of the following five section 4(a)(1)
factors: (1) The present or threatened destruction, modification, or
curtailment of habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) inadequacy of existing regulatory mechanisms to address
identified threats; (5) or any other natural or manmade factors
affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR
424.11(c)).
ESA-implementing regulations issued jointly by NMFS and USFWS (50
CFR 424.14(h)(1)(i)) define ``substantial scientific or commercial
information'' in the context of reviewing a petition to list, delist,
or reclassify a species as credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted. Conclusions drawn
in the petition without the support of credible scientific or
commercial information will not be considered ``substantial
information.'' In reaching the initial (90-day) finding on the
petition, we will consider the information described in sections 50 CFR
424.14(c), (d), and (g) (if applicable).
Our determination as to whether the petition provides substantial
scientific or commercial information indicating that the petitioned
action may be warranted will depend in part on the degree to which the
petition includes the following types of information: (1) Current
population status and trends and estimates of current population sizes
and distributions, both in captivity and the wild, if available; (2)
identification of the factors under section 4(a)(1) of the ESA that may
affect the species and where these factors are acting upon the species;
(3) whether and to what extent any or all of the factors alone or in
combination identified in section 4(a)(1) of the ESA may cause the
species to be an endangered species or threatened species (i.e., the
species is currently in danger of extinction or is likely to become so
within the foreseeable future), and, if so, how high in magnitude and
how imminent the threats to the species and its habitat are; (4)
adequacy of regulatory protections and effectiveness of conservation
activities by States as well as other parties, that have been initiated
or that are ongoing, that may protect the species or its habitat; and
(5) a complete, balanced representation of the relevant facts,
including information that may contradict claims in the petition. See
50 CFR 424.14(d).
If the petitioner provides supplemental information before the
initial finding is made and states that it is part of the petition, the
new information, along with the previously submitted information, is
treated as a new petition that supersedes the original petition, and
the statutory timeframes will begin when such supplemental information
is received. See 50 CFR 424.14(g).
We may also consider information readily available at the time the
determination is made. We are not required to consider any supporting
materials cited by the petitioner if the petitioner does not provide
electronic or hard copies, to the extent permitted by U.S. copyright
law, or appropriate
[[Page 34231]]
excerpts or quotations from those materials (e.g., publications, maps,
reports, letters from authorities). See 50 CFR 424.14(c)(6).
The ``substantial scientific or commercial information'' standard
must be applied in light of any prior reviews or findings we have made
on the listing status of the species that is the subject of the
petition. Where we have already conducted a finding on, or review of,
the listing status of that species (whether in response to a petition
or on our own initiative), we will evaluate any petition received
thereafter seeking to list, delist, or reclassify that species to
determine whether a reasonable person conducting an impartial
scientific review would conclude that the action proposed in the
petition may be warranted despite the previous review or finding. Where
the prior review resulted in a final agency action--such as a final
listing determination, 90-day not-substantial finding, or 12-month not-
warranted finding--a petition will generally not be considered to
present substantial scientific and commercial information indicating
that the petitioned action may be warranted unless the petition
provides new information or analysis not previously considered. See 50
CFR 424.14(h)(1)(iii).
At the 90-day finding stage, we do not conduct additional research,
and we do not solicit information from parties outside the agency to
help us in evaluating the petition. We will accept the petitioners'
sources and characterizations of the information presented if they
appear to be based on accepted scientific principles, unless we have
specific information in our files that indicates the petition's
information is incorrect, unreliable, obsolete, or otherwise irrelevant
to the requested action. Information that is susceptible to more than
one interpretation or that is contradicted by other available
information will not be dismissed at the 90-day finding stage, so long
as it is reliable and a reasonable person conducting an impartial
scientific review would conclude it supports the petitioners'
assertions. In other words, conclusive information indicating the
species may meet the ESA's requirements for listing is not required to
make a positive 90-day finding. We will not conclude that a lack of
specific information alone necessitates a negative 90-day finding if a
reasonable person conducting an impartial scientific review would
conclude that the unknown information itself suggests the species may
be at risk of extinction presently or within the foreseeable future.
To make a 90-day finding on a petition to list a species, we first
evaluate whether the petition presents substantial scientific or
commercial information indicating the subject of the petition may
constitute a ``species'' eligible for listing under the ESA. If so, we
evaluate whether the information indicates that the species may face an
extinction risk such that listing, delisting, or reclassification may
be warranted; this may be indicated in information expressly discussing
the species' status and trends, or in information describing impacts
and threats to the species. We evaluate whether the petition presents
any information on specific demographic factors pertinent to evaluating
extinction risk for the species (e.g., population abundance and trends,
productivity, spatial structure, age structure, sex ratio, diversity,
current and historical range, habitat integrity or fragmentation), and
the potential contribution of identified demographic risks to
extinction risk for the species. We then evaluate whether the petition
presents information suggesting potential links between these
demographic risks and the causative impacts and threats identified in
section 4(a)(1) of the ESA.
Information presented on impacts or threats should be specific to
the species and should reasonably suggest that one or more of these
factors may be operative threats that act or have acted on the species
to the point that it may warrant protection under the ESA. Broad
statements about generalized threats to the species, or identification
of factors that could negatively impact a species, do not constitute
substantial information indicating that listing may be warranted. We
look for information indicating that not only is the particular species
exposed to a factor, but that the species may be responding in a
negative fashion; then we assess the potential significance of that
negative response.
Many petitions identify risk classifications made by
nongovernmental organizations, such as the International Union on the
Conservation of Nature (IUCN), the American Fisheries Society, or
NatureServe, as evidence of extinction risk for a species. Risk
classifications by other organizations or made under other Federal or
state statutes may be informative, but such classification alone may
not provide the rationale for a positive 90-day finding under the ESA.
For example, as explained by NatureServe, their assessments of a
species' conservation status do ``not constitute a recommendation by
NatureServe for listing under the U.S. Endangered Species Act'' because
NatureServe assessments ``have different criteria, evidence
requirements, purposes and taxonomic coverage than government lists of
endangered and threatened species, and therefore these two types of
lists should not be expected to coincide'' (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species classifications
under IUCN and the ESA are not equivalent; data standards, criteria
used to evaluate species, and treatment of uncertainty are also not
necessarily the same. Thus, when a petition cites such classifications,
we will evaluate the source of information that the classification is
based upon in light of the standards on extinction risk and impacts or
threats discussed above.
Analysis of Petition
We have reviewed the petition, the literature cited in the
petition, and other literature and information readily available in our
files. In addition to reiterating information used to support the 2012
petition, the petitioners assert that a recent paper by Brennan et al.
(2019) supports the conclusion that the harbor seals in Iliamna Lake
are a discrete population and provides evidence of their significance
to the broader taxon (the Pacific harbor seal subspecies; Phoca
vitulina richardii), demonstrating eligibility of this group of seals
for designation as a DPS. As discussed above, we evaluate any petition
seeking to list a species in light of any prior reviews or findings we
have already made on the species that is the subject of the petition.
Because our previous review resulted in a final agency action finding
the harbor seals in Iliamna Lake did not constitute a species,
subspecies, or DPS under the ESA, the petitioned action will generally
not be considered to present substantial scientific or commercial
information indicating that the action may be warranted unless the
petition provides new information or a new analysis not previously
considered. See 50 CFR 424.14(h)(1)(iii). Therefore, unless the
petition provides credible new information, or identifies errors or
provides a credible new analysis, we may find that the petition does
not present substantial information indicating that the petitioned
action may by warranted. Below, we address the main points made by the
petitioners, including the purportedly new information based on Brennan
et al. (2019), and identify where this information was considered in
NMFS's
[[Page 34232]]
2016 DPS assessment and petition finding.
According to the petitioners, Brennan et al. (2019) provides
additional support to the DPS discreteness criterion by demonstrating
that the seals are lifelong residents of the lake and rely mostly on
lake-produced resources, even when spawning salmon are available (CBD
2020, p.19). In our 2016 DPS assessment and petition finding, NMFS
considered genetic analyses by Burns et al. (2013) indicating that the
harbor seals in Iliamna Lake are a small, isolated population:
``Together, the mtDNA and nDNA results are consistent with a small,
isolated population in Iliamna Lake. The substantial differentiation in
allele frequencies between the lake and EBB [Eastern Bristol Bay] seals
is consistent with isolation, i.e., lack of breeding dispersal into the
lake'' (Boveng et al., 2016, p. 24). This information led to our
conclusion that based on the best available genetic information, the
seals in Iliamna Lake meet the DPS discreteness criterion by being
markedly separated from harbor seals in Bristol Bay (i.e., are born and
live in the lake) and, by extension, the remainder of the taxon (81 FR
81082, November 17, 2016). The conclusion of Brennan et al. (2019) that
the seals are lifelong residents in the lake is therefore not new
information. In reference to the petitioner's conclusion that the seals
in the lake rely mostly on lake-produced resources, even when spawning
salmon are available (CBD 2020, p.19), the 2016 DPS assessment (Boveng
et al. 2016, p. 12--15) and the petition finding (81 FR 81080, November
17, 2016) both considered data from scat samples (Hauser et al. 2008),
and stomach contents and stable isotope analysis (Burns et al. 2013)
that demonstrated the seals' simultaneous utilization of both
freshwater and salmonid species. Additionally, the teeth of harbor
seals in Iliamna Lake that were used for Brennan et al. (2019) isotope
analyses were from a subset of the same seals included in the genetic
analyses by Burns et al. (2013), which we considered when we concluded
in our 2016 DPS assessment and finding that the seals in the lake are a
discrete population (Boveng et al. 2016, p. 24; 81 FR 81082, November
17, 2016). Therefore, we conclude that the petition does not present
new information on the isolated nature of the harbor seals in Iliamna
Lake and the discreteness of the population.
With respect to the DPS significance criterion, the petitioners
assert that the harbor seals in Iliamna Lake are significant to the
broader Pacific harbor seal taxon because of local adaptations
resulting from their persistence in a unique ecological setting,
including phenotypic (e.g., larger size, darker coloration, and finer
pelage) and behavioral adaptations (e.g., use of under-ice spaces), and
the development of a ``unique foraging ecology'' (CBD 2020, p. 18-19).
NMFS considered the evidence for phenotypic adaptations in both the
2016 DPS assessment and petition finding. With respect to the larger
size described by CBD, Boveng et al. (2016, p. 38) considered that:
``In some species, variation in body size may indicate true adaptation
to various ecological setting . . .'' and ultimately concluded that for
the harbor seals in Iliamna Lake: ``. . . higher growth rates and/or
larger average size could simply reflect greater availability of energy
and nutrients, lower disease or parasite burdens, or other factors that
would not confer any particular biological significance to the lake
population.'' For the observation that pelage color and texture
differed from marine seals, Boveng et al. (2016, p. 38-39) considered
local and traditional knowledge and observations from other freshwater
seals and concluded: ``. . . we were unable to identify any evidence
that this is a result of anything other than an effect of fresh vs.
salt water on seal coats; we found no evidence that this represents a
heritable trait or adaptation that would convey significance.'' The
2016 petition finding came to similar conclusions on all of the
proposed phenotypic adaptations, indicating that the variances observed
in taste, body size, and pelage traits of harbor seals in Iliamna Lake
are likely the result of seasonal diet, individual variation, and
normal phenotypic plasticity rather than the result of physiological
distinctions from harbor seals in nearby marine environments (81 FR
81079, November 17, 2016). No new information is presented in the
current petition that offers additional support for the existence of
phenotypic adaptations attributable to the seals residing in Iliamna
Lake.
The petition asserts that the harbor seals in Iliamna Lake display
novel use of under-ice spaces that contributes to the population's
persistence and survival and is therefore an adaptation that may be of
importance to the taxon as a whole (CBD 2020, p. 18). In the 2016 DPS
assessment, Boveng et al. (2016, p. 39) observed that it ``is not clear
whether this behavior represents a true adaptation or is simply a
response to conditions that would be exploited by other harbor seals if
they encountered those same conditions'' and that ``[a] seal introduced
to the lake from the marine population might well survive by learning
the requisite behaviors from conspecifics in the lake population.''
Based on the available information, they ultimately concluded:
``Although the way that harbor seals in Iliamna Lake cope with the
extensive ice cover in winter is unusual for the species, they do not
seem to have adopted breeding, whelping, or pup rearing behaviors that
would be unusual for the species'' (Boveng et al. 2016, p. 39). Thus,
the information presented on this behavioral adaptation in the current
petition is not new.
The petitioners also discuss what they assert is new information
about a ``unique foraging ecology'' among harbor seals in Iliamna Lake.
As stated by CBD (2020, p. 1; adapted from Brennan et al. 2019): ``. .
. the foraging ecology of Iliamna Lake seals differs in several
respects from other eastern North Pacific harbor seal populations.
Iliamna Lake seals rely heavily on freshwater fish throughout the year,
even during periods of abundant sockeye salmon. The seals also undergo
a developmental shift whereby their use of salmon increases as they
mature.'' Brennan et al. (2019) further states that Iliamna seals
``rely on lake resources and consistently display an ontogenetic shift
from a diet composed principally of lake resources to one that exploits
seasonally abundant salmon. Both imply locally adapted abilities to
exploit a food web unlike that of any other P. v. richardii population
across the Eastern Pacific.''
The components of the ``unique foraging ecology'' scenario
described by the petitioner, in which the harbor seals in Iliamna Lake
rely heavily on freshwater prey even in the presence of seasonally
available resources and shift later in life to greater reliance on
exogenous (marine-produced) food in the form of returning sockeye
salmon spawners, were considered in the 2016 DPS assessment and
petition finding. Results of diet studies from both Iliamna Lake and
marine harbor seals were considered in our 2016 petition finding,
leading to the conclusion that the seals in the lake opportunistically
feed on both freshwater and marine prey, a pattern that is consistent
with harbor seals foraging on a diversity of fish and invertebrate prey
across their range (81 FR 81080, November 17, 2016). The finding
additionally considered information from a study by Burns et al. (2013)
that provided further support that the harbor seals in Iliamna Lake
consume freshwater species (e.g., threespine stickleback and Arctic
grayling or lake whitefish) when salmonids are present and that the
variety and types of prey items in the
[[Page 34233]]
stomachs of the seals sampled further reflects the generally
opportunistic feeding habitats of harbor seals and does not suggest use
of unusual or unique prey based on their lake habitat (81 FR 81083,
November 17, 2016).
Information addressing the second component of the ``unique
foraging ecology,'' the increased reliance on seasonal salmon, was
considered by the BRT in the 2016 DPS assessment: ``The finding that
harbor seals in Iliamna Lake predominantly fed on adult salmon during
the summer period of high sockeye abundance corroborates previous
studies (Brown and Mate 1983, Payne and Selzer 1989, Olesiuk 1993,
Iverson et al. 1997) showing that harbor seal populations feed on
seasonally abundant prey wherever they occur (Hauser et al. 2008)''
(Boveng et al. 2016, p. 21-22). The November 17, 2016 petition finding
also noted that the seals in Iliamna Lake had similar seasonal
concentrations of salmon in their diets as harbor seals from other
freshwater systems (81 FR 81080).
The petitioner's characterization of a ``unique foraging ecology''
for harbor seals in Iliamna Lake does not constitute new information
because NMFS previously considered these same foraging behaviors in the
2016 DPS assessment and petition finding, concluding that the foraging
behaviors of these seals are consistent with the natural history of
harbor seals, particularly the Pacific subspecies Phoca vitulina
richardii, that is widely understood by harbor seal experts and well
documented in the literature. The petition describes an age-related
shift in diet, referred to as an ontogenetic shift, which is a
widespread behavior among predator species that grow as they develop
and are able to utilize resources differently as they increase in size
(e.g., Werner and Gilliam 1984). Harbor seals in general are known to
exhibit size-related prey selection, exploiting small, easy-to-catch
prey until they attain the size and proficiency needed to catch and
consume larger prey, such as adult salmonids. Therefore, the age-
related shift in diet described by the petitioners for the harbor seals
in Iliamna Lake (based on Brennan et al. 2019) merely highlights well-
known behavior and, as a result, would not lead a reasonable person
conducting an impartial scientific review to conclude that this
population might be significant in relation to the broader taxon such
that the action proposed in the petition may be warranted despite
NMFS's 2016 DPS assessment and petition finding.
The petitioners further assert that in addition to being a local
adaptation, the ``unique foraging ecology'' also has evolutionary
significance for the broader taxon: ``The Iliamna Lake seal's unique
foraging ecology has significance for the evolutionary potential of the
broader P. v. richardii taxon in a time of rapid change and increasing
threats'' (CBD 2020, p. 20; based on Brennan et al. 2019). In the 2016
DPS assessment, the Biological Review Team (BRT) evaluated if there was
evidence that persistence in an unusual setting had resulted in
adaptations (e.g., genetic or behavioral) in the harbor seals in
Iliamna Lake that may be of significance to the broader taxon.
``Although there were genetic differences . . . those were more
indicative of reduced genetic diversity in the lake population, rather
than development of novel genes in response to the unusual habitat, and
the genetic sampling remains rather inadequate for judging this''
(Boveng et al. 2016, p. iv). In the 2016 petition finding, NMFS
concluded there was no evidence suggesting the harbor seals in Iliamna
Lake had specific adaptations to their environment that would be
beneficial to the taxon, and thus the persistence of the population in
the lake is not significant to the subspecies P. v. richardii: (81 FR
81084, November 17, 2016). As discussed above, the petition does not
provide any new genetic sampling or any other new information not
previously considered to support the assertion that seals in Iliamna
Lake have a ``unique foraging ecology.'' The petition therefore
presents no new evidence of adaptations in the harbor seals in Iliamna
Lake that may support a finding that they are evolutionarily
significant to the broader taxon, per the significance criterion of our
DPS policy (61 FR 4722, February 7, 1996).
In reference to the other significance criteria, the petition
asserts that the harbor seals in Iliamna Lake are significant to the
greater taxon because the loss of the Iliamna Lake population would
result in a significant gap in the range of the taxon, and the genetic
characteristics of the population differ markedly from marine harbor
seals (CBD 2020, p. 21-22). The 2016 DPS assessment and the petition
finding discussed that the taxon is broadly distributed, ranging from
Alaska to the Baja Peninsula, and that the estimated number of seals in
Iliamna Lake accounts for roughly 0.1 percent of the total population
(Boveng et al. 2016, p. 40; 81 FR 81084-85, November 17, 2016).
Additionally, Boveng et al. (2016, p. 40) stated: ``Because Iliamna
Lake is not a part of the continuous coastal range of the marine
population of harbor seals, the loss of the Iliamna Lake segment could
not produce a gap in that range, and therefore would not reduce or
preclude dispersal between segments of the marine population.''
With regard to the genetic characteristics of the population
differing from marine harbor seals, the petitioners state that the
harbor seals in Iliamna Lake have been there long enough for genetic
novelty to arise and that the difference in behavior, morphology,
ecology, and habitat between the seals in the lake and marine harbor
seals provides evidence of genetic novelty (CBD 2020, 22-23). Taking
the genetic evidence previously discussed into account, Boveng et al.
(2016, p. 43) stated: ``. . . it cannot be concluded with any
confidence that this population has been isolated in the lake long
enough for there to be a high likelihood of mutations at other genetic
loci that could be selective and have adaptive function but not be
outwardly apparent in the morphology or behavior of the seals. On the
contrary, the evidence available thus far suggests that genetic
diversity has been lost rather than gained since isolation of this
population.'' The petition finding came to a similar conclusion that
the genetic characteristics (i.e., mtDNA haplotype) of the seals in
Iliamna Lake are not markedly different from those found in Bristol Bay
and therefore are not significant to the taxon as a whole (81 FR 81085,
November 17, 2016). Overall, the petition does not provide any new
information regarding the significance criterion that would lead a
reasonable person conducting an impartial scientific review to conclude
that the petitioned action may be warranted despite NMFS's the 2016 DPS
assessment and petition finding.
Petition Finding
We thoroughly reviewed the information presented in the petition
and found that it does not provide any new information that was not
already considered in our 2016 DPS assessment and petition finding that
the harbor seals in Iliamna Lake do not meet the criteria of a DPS, and
therefore do not constitute an entity eligible for listing under the
ESA. As such, we find that the petition does not present substantial
scientific or commercial information indicating that the petitioned
action may be warranted.
References Cited
A complete list of all references is available upon request from
the Protected Resources Division of the NMFS Alaska Regional Office in
Juneau, Alaska (see ADDRESSES).
[[Page 34234]]
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: June 24, 2021.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2021-13841 Filed 6-28-21; 8:45 am]
BILLING CODE 3510-22-P
