[Federal Register Volume 73, Number 172 (Thursday, September 4, 2008)]
[Proposed Rules]
[Pages 51615-51617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20544]



National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 0808201128-81129-01]
RIN 0648-XJ97

Endangered and Threatened Wildlife; Notice of 90-Day Finding on a 
Petition to List the Three Ice Seal Species 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.


SUMMARY: We (NMFS) announce a 90-day finding on a petition to list 
three ice seal species, [ringed (Phoca hispida), bearded (Erignathus 
barbatus), and spotted (Phoca largha)] as threatened or endangered 
under the Endangered Species Act (ESA). Although the petition 
identifies ringed seals as Pusa hispida, at this time we believe that 
the ringed seal is more properly identified as Phoca hispida. We find 
that the petition presents substantial scientific or commercial 
information indicating that the petitioned action of listing the ice 
seals may be warranted. Therefore, we have initiated status reviews of 
the ice seals to determine if listing under the ESA is warranted. To 
ensure these status reviews are comprehensive, we are soliciting 
scientific and commercial information regarding all of these ice seal 

DATES: Information and comments must be submitted to NMFS by November 
3, 2008.

ADDRESSES: You may submit comments, information, or data, identified by 
the Regulation Identifier Number (RIN), 0648-XJ97, by any of the 
following methods:

[[Page 51616]]

    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal: http://www.regulations.gov,
    Mail: Assistant Regional Administrator, Protected Resource 
Division, NMFS, Alaska Regional Office, P.O. Box 21668, Juneau, Alaska 
    Facsimile (fax): (907) 586-7012.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information. 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, WordPerfect, or Adobe PDF file formats only 
interested persons may obtain a copy of the ice seal petition from the 
above address or online from the NMFS Alaska Region website: http://www.fakr.noaa.gov/protectedresources/seals/ice.htm.

(907) 271 6620; Kaja Brix, NMFS Alaska Region, (907) 586-7235; or Marta 
Nammack, NMFS, Office of Protected Resources, (301) 713-1401.

SUPPLEMENTARY INFORMATION: Section 4(b)(3)(A) of the ESA (16 U.S.C. 
1531 et seq.) requires, to the maximum extent practicable, that within 
90 days of receipt of a petition to designate a species as threatened 
or endangered, the Secretary of Commerce (Secretary) make a finding on 
whether that petition presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. 
Joint ESA-implementing regulations between NMFS and U.S. Fish and 
Wildlife Service (50 CFR 424.14) define ``substantial information'' as 
the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.
    In making a finding on a petition to list a species, 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 a 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 the 
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)). To the 
maximum extent practicable, this finding is to be made within 90 days 
of the date the petition was received, and the finding is to be 
published promptly in the Federal Register. When it is found that 
substantial information is presented in the petition, we are required 
to promptly commence a review of the status of the species concerned. 
Within 1 year of receipt of the petition, we shall conclude the review 
with a finding as to whether the petitioned action is 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)). A joint 
NOAA-USFWS 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 joint DPS policy establishes 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) (D) 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 geographic 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, or ``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), 


    On March 28, 2008, we issued a 90-day finding in response to a 
petition to list the ribbon seal as threatened or endangered (73 FR 
16,617). We found that the petition presented substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. We therefore initiated a status review for the ribbon seal. 
Concurrent with that decision, we announced that we were also 
initiating a status review of three other ice seals (ringed, bearded, 
and spotted).
    On May 28, 2008, we received a petition from the Center for 
Biological Diversity to list three species of ice seals (ringed, 
bearded, spotted) as threatened or endangered species under the ESA. 
The petitioner also requested that critical habitat be designated for 
ice seals concurrent with listing under the ESA. As described in this 
petition, the spotted seal is monotypic. The bearded seal contains two 
currently recognized subspecies, and the ringed seal contains five 
currently recognized subspecies: Phoca hispida hispida, Phoca hispida 
botnica, Phoca hispida ochotensis, Phoca hispida ladogensis, and Phoca 
hispida saimensis. Although the petition identifies ringed seals as 
Pusa hispida, we believe that the ringed seal is more properly 
identified as Phoca hispida. According to the petitioner, each of these 
subspecies meets the definition of a ``species'' eligible for listing 
under the ESA. In the event that we do not find that the entire species 
of ringed seal or bearded seal meets the requirements for listing, the 
petitioner requests that we evaluate whether each subspecies of bearded 
and ringed seals is eligible for listing. In the event that

[[Page 51617]]

we do not recognize the taxonomic validity of the bearded and ringed 
seal subspecies or the spotted seal species as described in this 
petition, the petitioner requests that we evaluate whether the spotted, 
ringed and bearded seals of the Bering, Chukchi, and Beaufort seas that 
are the subject of this petition constitute a DPS of the full species 
and/or represent a significant portion of the range of the full species 
and are therefore eligible for listing on such basis.
    It is the petitioner's contention that ice seals face global 
extinction in the wild, and therefore, constitute a threatened or 
endangered species as defined under 16 U.S.C. 1532(6) and (20). The 
petition presents information on (1) ``global warming which is 
resulting in the rapid melt of the seals' sea-ice habitat;'' (2) ``high 
harvest levels allowed by the Russian Federation;'' (3) ``oil and gas 
exploration and development;'' (4) ``rising contaminant levels in the 
Arctic;'' and (5) ``bycatch mortality and competition for prey 
resources from commercial fisheries.'' The petition also presents 
information on the species' taxonomy, distribution, habitat 
requirements, reproduction, diet, natural mortality, and demographics, 
as well as a discussion of the applicability of the five factors listed 
under ESA section 4(a)(1). We have reviewed the petition, the 
literature cited in the petition, and other literature and information 
available in our files. Based on our review of the petition and other 
available information, we find that the petition meets the 
aforementioned requirements of the regulations under 50 CFR 
424.14(b)(2) and therefore determine that the petition presents 
substantial information indicating that the requested listing action 
may be warranted.

Status Review

    As a result of this finding, we will continue our ongoing status 
review to determine whether listing ringed, bearded, and spotted seals 
under the ESA is warranted. We intend that any final action resulting 
from this status review will be as accurate and as effective as 
possible. Therefore, we are opening a 60-day public comment period to 
solicit comments, suggestions, and information from the public, 
government agencies, the scientific community, industry, and any other 
interested parties on the status of the ice seals throughout their 
range, including:
    (1) Information on taxonomy, abundance, reproductive success, age 
structure, distribution, habitat selection, food habits, population 
density and trends, habitat trends, and effects of management on ice 
    (2) Information on the effects of climate change and sea ice change 
on the distribution and abundance of ice seals, and their principal 
prey over the short- and long-term;
    (3) Information on the effects of other potential threat factors, 
including oil and gas development, contaminants, hunting, poaching, and 
changes in the distribution and abundance of ice seals and their 
principal prey over the short-term and long-term;
    (4) Information on management programs for ice seal conservation, 
including mitigation measures related to oil and gas exploration and 
development, hunting conservation programs, anti-poaching programs, and 
any other private, tribal, or governmental conservation programs which 
benefit ice seals; and
    (5) Information relevant to whether any populations of the ice seal 
species may qualify as distinct population segments.
    We will base our findings on a review of the best scientific and 
commercial information available, including all information received 
during the public comment period.


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

    Dated: August 29, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
[FR Doc. E8-20544 Filed 9-3-08; 8:45 am]