[Federal Register Volume 78, Number 96 (Friday, May 17, 2013)]
[Proposed Rules]
[Pages 29098-29100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11869]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 121120640-3457-01]
RIN 0648-XC365
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List Iliamna Lake Seals as a Threatened or Endangered Species
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding; request for information.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the
Pacific harbor seals in Iliamna Lake (Phoca vitulina richardii) as
threatened or endangered under the Endangered Species Act (ESA). We
find that the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted.
Therefore, we are initiating a status review of the harbor seals in
Iliamna Lake to determine if listing under the ESA is warranted. To
ensure this status review is comprehensive, we solicit scientific and
commercial information regarding this species.
DATES: Information and comments must be received by July 16, 2013.
ADDRESSES: You may submit comments on this document, identified by FDMS
Docket Number NOAA-NMFS-2012-0236 by any of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0236, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Address written comments to Jon Kurland, Assistant
Regional Administrator for Protected Resources, Alaska Region NMFS,
Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK
99802-1668.
Fax: Address written comments to Jon Kurland, Assistant
Regional Administrator for Protected Resources, Alaska Region NMFS,
Attn: Ellen Sebastian. Fax comments to 907-586-7557.
Hand delivery to the Federal Building: Address written
comments to Jon Kurland, Assistant Regional Administrator for Protected
Resources, Alaska Region NMFS, Attn: Ellen Sebastian. Deliver comments
to 709 West 9th Street, Room 420A, Juneau, AK.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous). Attachments to electronic comments will be accepted in
Microsoft Word, Excel, or Adobe PDF file formats only.
Interested persons may obtain a copy of the petition online at the
NMFS Alaska Region Web site: http://www.alaskafisheris.noaa.gov/protectedresources/seals/harbor.htm.
FOR FURTHER INFORMATION CONTACT: Mandy Migura, NMFS Alaska Region,
(907) 271-1332; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or
Lisa Manning, NMFS Office of Protected Resources, (301) 427-8466.
SUPPLEMENTARY INFORMATION:
ESA Statutory, Regulatory, and Policy Provisions
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
et seq.) requires that, to the maximum extent practicable, within 90
days of the receipt of a petition to list a species as threatened or
endangered, the Secretary of Commerce (Secretary) make a finding as to
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)).
Joint ESA-implementing regulations between NMFS and the U.S. Fish
and Wildlife Service (USFWS) define ``substantial information'' in the
context of reviewing a petition to list, delist, or reclassify a
species as the amount of information that would lead a reasonable
person to believe that the measure proposed in the petition may be
warranted. When evaluating whether substantial information is contained
in a petition, the Secretary must consider whether the petition: (i)
Clearly indicates the administrative measure recommended, and gives the
scientific and any common name of the species involved; (ii) contains
detailed narrative justification for the recommended measure,
describing, based on available information, past and present numbers
and distribution of the species involved and any threats faced by the
species; (iii) provides information regarding the status of the species
over all or a significant portion of its range; and (iv) is accompanied
by appropriate supporting documentation in the form of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
When we find that substantial 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 (a ``status review''), which includes conducting a
comprehensive review of the best available scientific and commercial
information. Within 12 months of receiving the petition, we must
conclude the review with a finding as to whether, in fact, the
petitioned action is warranted. Because the finding
[[Page 29099]]
at the 12-month stage is based on a more thorough review of the
available information, a positive 90-day finding does not prejudge the
outcome of the status review.
Court decisions clarify the appropriate scope and limitations of
the Services' review of petitions at the 90-day finding stage in making
a determination as to whether a petitioned action may be warranted. As
a general matter, these decisions hold that a petition need not
establish a strong likelihood or a high probability that a species is
either threatened or endangered to support a positive 90-day finding.
Decisions under the ESA must be based on the best scientific and
commercial data available. We evaluate the petitioner's request based
upon the information in the petition including its references, and the
information readily available in our files. If the petitioner's sources
are based on accepted scientific principles, we will accept them and
characterizations of the information presented unless we have specific
information in our files that indicates the petition's information is
incorrect, unreliable, obsolete, or otherwise irrelevant to the
requested action. Information that is susceptible to more than one
interpretation or that is contradicted by other available information
will not be dismissed at the 90-day finding stage, so long as it is
reliable and a reasonable person would conclude it supports the
petitioner's assertions. In other words, conclusive information
indicating the species may meet the ESA's requirements for listing is
not required to make a positive 90-day finding. We will not conclude
that a lack of specific information alone negates a positive 90-day
finding, if a reasonable person would conclude that the unknown
information itself suggests an extinction risk of concern for the
species at issue.
To make a 90-day finding on a petition to list a species, we
evaluate whether the petition presents substantial scientific or
commercial information indicating the subject species may be either
threatened or endangered, as defined by the ESA. First, we evaluate
whether the information presented in the petition, along with the
information readily available in our files, indicates that the
petitioned entity may constitute a ``species'' eligible for listing
under the ESA. Then, we evaluate whether the information indicates that
the species faces extinction risk that is cause for concern; this may
be indicated in information expressly discussing the species' status
and trends, or in information describing impacts and threats to the
species. Information presented on impacts or threats should be specific
to the species and should reasonably suggest that one or more of the
threats act, will 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 that listing may be warranted.
Under the ESA, a listing determination may address a species,
subspecies, or a distinct population segment (DPS) of any vertebrate
species which interbreeds when mature (16 U.S.C. 1532(16)). In 1996,
the USFWS and NMFS published the Policy Regarding the Recognition of
Distinct Vertebrate Population Segments under the ESA (DPS Policy, 61
FR 4722; February 7, 1996). This policy clarifies the agencies'
interpretation of the phrase ``distinct population segment of any
species of vertebrate fish or wildlife'' (ESA section 3(16)) for the
purposes of listing, delisting, and reclassifying a species under the
ESA (61 FR 4722; February 7, 1996). The policy established two criteria
that must be met for a population or group of populations to be
considered a DPS: (1) The population segment must be discrete in
relation to the remainder of the species (or subspecies) to which it
belongs; and (2) the population segment must be significant to the
remainder of the species (or subspecies) to which it belongs. A
population segment may be considered discrete if it satisfies either
one of the following conditions: (1) it is markedly separated from
other populations of the same biological taxon as a consequence of
physical, physiological, ecological, or behavioral factors
(quantitative measures of genetic or morphological discontinuity may
provide evidence of this separation); or (2) it is delimited by
international governmental boundaries across which there is a
significant difference in exploitation control, habitat management,
conservation status, or if regulatory mechanisms exist that are
significant in light of section 4(a)(1) of the ESA. If a population is
determined to be discrete, the agency must then consider whether it is
significant to the taxon to which it belongs. Considerations in
evaluating the significance of a discrete population include: (1)
Persistence of the discrete population in an unusual or unique
ecological setting for the taxon; (2) evidence that the loss of the
discrete population segment would cause a significant gap in the
taxon's range; (3) evidence that the discrete population segment
represents the only surviving natural occurrence of a taxon that may be
more abundant elsewhere outside its historical geographical range; or
(4) evidence that the discrete population has marked genetic
differences from other populations of the species.
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 section 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and (20)).
Section 4(a)(1) of the ESA requires the Secretary to determine whether
a species is endangered or threatened due to of any 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 manmade factors affecting the species
continuing existence (16 U.S.C. 1533(a)(1)). An ``endangered'' or
``threatened'' determination is not made during the 90-day review of
the petition, but rather is determined subsequent to a status review.
Analysis of the Petition
On November 19, 2012, 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. According to NMFS's
2012 Stock Assessment Reports (http://www.nmfs.noaa.gov/pr/pdfs/sars/),
harbor seals in Alaska are divided into 12 separate stocks, as defined
by the Marine Mammal Protection Act. Harbor seals in Iliamna Lake are
currently considered as part of the Bristol Bay harbor seal stock.
CBD asserts that the harbor seals found in Iliamna Lake constitute
a DPS of Pacific harbor seals 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 copper-gold-molybdenum porphyry
deposit in the advanced exploration stage located north of Iliamna
Lake) and climate change; (2) disease and natural predation; (3) other
natural and anthropogenic factors including risks of rarity,
entanglement in fishing gear, illegal hunting, oil and gas exploration
[[Page 29100]]
and development, contaminants, and commercial fisheries; and (4)
inadequacy of existing regulatory mechanisms for addressing greenhouse
gas emissions, climate change, ocean acidification, and the Pebble
Project. 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.
Petition Finding
We have reviewed the petition, the literature cited in the
petition, and other literature and information available in our files;
we identified numerous factual errors, misquoted and incomplete
references, and unsupported conclusions within the petition. Our review
indicates that there is uncertainty and conflicting information
specific to the harbor seals in Iliamna Lake. The seals inhabiting
Iliamna Lake are not well studied, but there is some evidence that at
least a small number of seals remain in the lake year-round. Currently,
there is uncertainty and conflicting information about whether Pacific
harbor seals migrate between Iliamna Lake and Bristol Bay. If there is
no migration, and these seals are distinct from those in Bristol Bay,
then they may face potentially serious threats including low abundance,
the Pebble Project and climate change. Given this uncertainty, and
considering the requirements of 50 CFR 424.14(b) and standards for
addressing petitions at the 90-day stage, we find that the information
presented in the petition and information readily available in our
files would lead a reasonable person to believe that the petitioned
action may be warranted. Therefore, we are making a positive 90-day
finding and will promptly commence a status review of Iliamna Lake
seals.
Request for Information
As a result of the finding, we will commence a status review of
Pacific harbor seals in Iliamna Lake to determine: (1) If the Pacific
harbor seals in Iliamna Lake constitute a DPS under the ESA, and if so,
(2) the risk of extinction to this DPS. Based on the results of the
status review, we will then determine whether listing the Pacific
harbor seals of Iliamna Lake as threatened or endangered under the ESA
is warranted. We intend that any final action resulting from this
status review be as accurate as possible. Therefore, we are opening a
60-day public comment period to solicit comments and information from
the public, government agencies, the scientific community, industry,
Alaska Native tribes and organizations, and any other interested
parties on the status of the Pacific harbor seals in Iliamna Lake,
including:
(1) Information on taxonomy, abundance, reproductive success, age
structure, distribution and population connectivity, habitat selection,
food habits, population density and trends, and habitat trends;
(2) Information on the effects of potential threats, including the
Pebble Project and climate change, on the distribution and abundance of
seals in Iliamna Lake and their principal prey over the short- and
long-term;
(3) Information on the effects of other potential threats,
including disease and predation, contaminants, fishing, hunting,
industrial activities, or other known or potential threats;
(4) Information on management or conservation programs for harbor
seals in Iliamna Lake, including mitigation measures associated with
private, tribal or governmental conservation programs which benefit
harbor seals in Iliamna Lake;
(5) Information on the effects of research on the harbor seals in
Iliamna Lake; and
(6) Information relevant to whether harbor seals in Iliamna Lake
may qualify as a DPS.
We request that all data and information be accompanied by
supporting documentation such as maps, bibliographic references, or
reprints of pertinent publications. Please send any comments to the
ADDRESSES listed above. We will base our findings on a review of best
available scientific and commercial information available, including
all information received during the public comment period.
Authority: The authority for this action is the Endangered
Species act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: May 13, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
[FR Doc. 2013-11869 Filed 5-16-13; 8:45 am]
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