[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]
BILLING CODE 3510-22-P