[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Proposed Rules]
[Pages 73230-73233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27931]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 211217-0264; RTID 0648-XR120]


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Sunflower Sea Star as Threatened or Endangered Under the 
Endangered Species Act

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

ACTION: 90-Day petition finding, request for information, and 
initiation of status review.

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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the 
sunflower sea star (Pycnopodia helianthoides) as threatened or 
endangered under the Endangered Species Act (ESA) and to designate 
critical habitat concurrent with the listing. We find that the petition 
presents substantial scientific information indicating that the 
petitioned action may be warranted. Therefore, we are initiating a 
status review of the species to determine whether listing under the ESA 
is warranted. To ensure this status review is comprehensive, we are 
soliciting scientific and commercial information regarding this 
species.

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by February 25, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA- NMFS-NOAA-NMFS-2021-0130 by the following method:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-NOAA-NMFS-2021-0130 in the 
Search box. Click on the ``Comment'' icon, complete the required 
fields, and enter or attach your comments.
    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), 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).
    Interested persons may obtain a copy of the petition online at the 
NMFS website: https://www.fisheries.noaa.gov/national/endangered-species-conservation/petitions-awaiting-90-day-findings.

FOR FURTHER INFORMATION CONTACT: Dayv Lowry, NMFS West Coast Region, 
Protected Resources Division, (253) 317-1764, [email protected].

SUPPLEMENTARY INFORMATION:

Background

    On August 18, 2021, we received a petition from the Center for 
Biological Diversity to list the sunflower sea star (Pycnopodia 
helianthoides) as a threatened or endangered species under the ESA and 
to designate critical habitat concurrent with the listing. The petition 
asserts that the sunflower sea star is threatened by all five ESA 
section 4(a)(1) 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) the inadequacy of existing 
regulatory mechanisms; and (5) other natural or manmade factors 
affecting its continued existence. The petition is available online 
(see ADDRESSES).

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 shall 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)). 
If NMFS finds 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 data. 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 best available information, as compared 
to the narrow scope of review at the 90-day stage, a ``positive 90-
day'' 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 distinct population segment (DPS) that interbreeds when mature (16 
U.S.C. 1532(16)). 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 (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

[[Page 73231]]

combination of the following five ESA section 4(a)(1) 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) the 
inadequacy of existing regulatory mechanisms; and (5) other natural or 
manmade factors affecting its continued existence (16 U.S.C. 
1533(a)(1); 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and the U.S. 
Fish and Wildlife Service (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 90-day finding on the 
petition, we considered the information described in sections 50 CFR 
424.14(c), (d), and (g).
    Our determination as to whether the petition provides substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted depends in part on the degree to which the 
petition includes the following types of information: (1) Information 
on 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) information on 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 excerpts or quotations from those materials (e.g., 
publications, maps, reports, letters from authorities). See 50 CFR 
424.14(c)(6) and (h)(1)(ii).
    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 
(50 CFR 424.14(h)(1)(iii)). 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, a 90-day not-substantial finding, or a 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 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 information presented in the petition, alongside 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, if we conclude the petition presents substantial 
scientific or commercial information suggesting that the petitioned 
entity may constitute a species, 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

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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. We then assess the potential 
significance of that negative response.
    Many petitions identify risk classifications made by 
nongovernmental organizations, such as the International Union for 
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.

Distribution, Habitat, and Life History

    The sunflower sea star occurs throughout intertidal and subtidal 
coastal waters of the Northeast Pacific Ocean from the Aleutian 
Islands, Alaska, to at least the Southern California Bight, and is 
present on a wide variety of substrate types (Britton-Simmons et al. 
2012, Gravem et al. 2021). Individuals may also occupy waters off the 
west coast of the Baja Peninsula southward to the vicinity of San 
Ignacio Lagoon, though data from this region are sparse (Gravem et al. 
2021). While most abundant in waters less than 25 meters (m) deep, 
sunflower sea stars can be found at considerably lower densities as 
deep at 300 m (Gravem et al. 2021).
    Sunflower sea stars are broadcast spawners that require close 
proximity to mates for successful fertilization (Morris et al. 1980, 
Lambert 2000, Lundquist and Botsford 2004, Hodin et al. 2021). While it 
is unclear whether individuals aggregate to spawn, documentation of 
seasonal, patchy distribution suggests this may be the case (Mauzey et 
al. 1968, Gravem et al. 2021). Though reproductive seasonality is 
largely undocumented, localized studies have documented breeding from 
December through June (Feder and Christiensen 1966, Morris et al. 1980, 
Gravem et al. 2021), and broad geographic variation linked with water 
temperature and other environmental factors is likely.
    Fertilization of eggs is followed by a free-floating larval period 
of 50-146 days (Strathmann 1978, Gravem et al. 2021), during which 
considerable wind- and current-driven dispersion may occur. Individuals 
then settle and metamorphose into juveniles, which continue to feed and 
grow. Though age at first maturity remains unknown for the sunflower 
sea star, the well-studied ochre star Pisaster ochraceus, another large 
predatory sea star that shares habitat, diet, and reproductive strategy 
with the sunflower sea star, first reproduces at age 5 (Menge 1975). As 
is common for a broad diversity of marine species, it is also likely 
that sunflower sea star fecundity increases with size (Gravem et al. 
2021). Sea star size is strongly affected by environmental factors such 
as temperature and food availability (Sebens 1987, Gooding et al. 
2009), making size a poor indicator of age, but estimates suggest that 
maximum age could be as high as 68 years, but is more typically ~15 
years in the wild (Gravem et al. 2021).

Status and Population Trends

    There is no single, systematically collected data set that provides 
population size or long-term trend data for sunflower sea stars 
throughout their range. A recent compilation by the IUCN of localized 
data sets spanning from the Aleutian Islands, Alaska, to Baja 
California, Mexico, compared regional trends to evaluate range-wide 
status (Gravem et al. 2021; Hamilton et al. 2021). While considerable 
variability was apparent in many locations, since 2000 nearly all data 
sets considered indicate substantial regional declines in average 
density, with some declines exceeding 90 percent. From 2013-17, an 
outbreak of sea star wasting syndrome (SSWS) contributed to precipitous 
population declines in several areas, with impacts progressing 
sequentially from south to north (Gravem et al. 2021). Data were not 
collected evenly over time and space, however, making some estimates of 
decline less reliable than others. Additionally, most data were 
collected from shallow, nearshore areas such that deep-water abundance 
could only be estimated for the whole of the range rather than on a 
regional level. As noted above, most sunflower sea stars occupy waters 
less than 25 m deep, minimizing the relevance of this shortcoming in 
regionalized data collection. Bearing these caveats in mind, 
researchers estimated that global sunflower sea star population size 
declined by 90.6 percent from 2013-17 due to SSWS (Gravem et al. 2021), 
and minimal recovery has been noted since (Hamilton et al. 2021). Not 
only has population size decreased, but area of occupancy has also 
declined by an estimated 57.6 percent since the SSWS outbreak, and 
sunflower sea stars have not been detected in several surveys where 
they were once common components of the catch (Gravem et al. 2021).
    In sum, while data on abundance and trends are incomplete and 
likely span only one generation time for the species, the information 
presented in the petition indicates that sunflower sea star populations 
have declined throughout the species' range, with especially steep 
declines from 2013-17.

Analysis of ESA Section 4(a)(1) Factors

    The petitioners assert that P. helianthoides is endangered or 
threatened because of all five of the ESA section 4(a)(1) factors: The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms to address identified threats; and 
other natural or manmade factors affecting its continued existence, 
including climate change. Information in the petition and information 
that was readily available in our files indicate that the primary 
threat facing the species is disease, specifically SSWS. We briefly 
reiterate the evidence for each of the five factors, as presented in 
the petition, below.

Present or Threatened Destruction, Modification, or Curtailment of Its 
Habitat or Range

    The petitioner asserts that the SSWS outbreak that occurred from 
2013-17 resulted in an estimated 57.6 percent decline in area of 
occupancy throughout the sunflower sea star's known range (Gravem et 
al. 2021), representing substantial range curtailment. This includes 
evidence for local extirpation of the species in some regions, such as 
along the outer coasts of Washington, Oregon, California, and Mexico. 
The

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petition also notes that shoreline armoring, coastal development, 
erosion, pollution, shipping, harmful algal blooms, and invasive 
species all represent habitat stressors in the nearshore environments 
preferred by sunflower sea stars. While there is substantial variation 
in the intensity and interactivity of these stressors across the range 
of the sunflower sea star, urbanized estuaries like San Francisco Bay 
and the Salish Sea are likely to be especially heavily impacted. Given 
that these urbanized areas historically contained substantial 
populations, the overall impact on sunflower sea stars may be 
substantial.

Overutilization for Commercial, Recreational, Scientific or Educational 
Purposes

    Sunflower sea stars are not specifically targeted in any commercial 
fisheries, but are a component of bycatch in several pot, trap, trawl, 
and seine fisheries. Removing individuals from such gear may lead to 
injury or mortality. Recreational harvest is also permitted in Alaska, 
Oregon, California, and Mexico, although it is banned in Washington. 
Dried sunflower sea stars are also sold as curios and for home 
decoration. While direct loss of sunflower sea stars by these methods, 
in total, is believed to be low, the petition contends that even small 
effects could exacerbate the effects of low population size.

Disease or Predation

    The petitioners assert that the species is endangered or threatened 
primarily because of population declines caused by SSWS. As discussed 
above in Status and Population Trends, SSWS has caused an estimated 
population decline of over 90 percent on a range-wide basis and local 
extirpation in some regions. The high lethality and broad-scale losses 
of sea stars due to SSWS may substantially impede access to mates, 
resulting in reduced population viability and resilience, and 
increasing extinction risk (Gravem et al. 2021).

Inadequacy of Existing Regulatory Mechanisms

    The petitioner notes two broad areas in which existing regulatory 
mechanisms are inadequate to address threats to the species: The 
control/prevention of SSWS and other diseases; and the regulation of 
greenhouse gas emission and climate change impacts, especially warming 
ocean temperatures, which may exacerbate disease outbreaks. The 
petition notes that status reviews for other species have acknowledged 
that there are no effective mechanisms to regulate greenhouse gas 
emissions on the national or international level.

Other Natural or Manmade Factors

    The petitioners assert that climate change, sea level rise, and 
ocean acidification all represent range-wide threats to the continued 
existence of the sunflower sea star, according to the petition. Sea 
level rise may lead to increased shoreline armoring and loss of 
habitat, while increased sea surface temperature can exacerbate disease 
outbreaks. Ocean acidification affects sunflower sea star prey 
viability in the Northeast Pacific Ocean, causing physiological stress 
for a variety of bivalves and other organisms that rely on calcium 
deposition to create protective shells (Bednarsek et al. 2021). 
Increased acidity also directly inhibits growth and development of 
larval and juvenile sea stars, as well as affecting metabolic rate, 
energy demand, and arm regeneration rate in adults.

Petition Finding

    After reviewing the petition, the literature cited in the petition, 
and other information readily available in our files, we conclude the 
petition presents substantial scientific information indicating that 
the petitioned action to list P. helianthoides as a threatened or 
endangered species may be warranted. Therefore, in accordance with 
section 4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 
CFR 424.14(h)(2)), we will commence a status review to determine 
whether the sunflower sea star is in danger of extinction throughout 
all of a significant portion of its range, or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. As required by section 4(b)(3)(B) of the ESA, within 12 
months of the receipt of the petition (August 18, 2022), we will make a 
finding as to whether listing the sunflower sea star as an endangered 
or threatened species is warranted. If listing is warranted, we will 
publish a proposed rule and solicit public comments before developing 
and publishing a final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting comments and 
information from interested parties on the status of the sunflower sea 
star. Specifically, we are soliciting information in the following 
areas:
    (1) Historical and current abundance and population trends of P. 
helianthoides at all available geographic scales throughout its range;
    (2) Historical and current distribution and population structure of 
P. helianthoides;
    (3) Historical and current condition of habitat for P. 
helianthoides;
    (4) Historical and current data on bycatch and retention of P. 
helianthoides in commercial, artisanal, and recreational fisheries 
worldwide;
    (5) Data on trade of P. helianthoides, including dried specimens 
sold as curios;
    (6) Historical and current impacts of SSWS on P. helianthoides at 
all available geographic scales throughout its range;
    (7) The effects of other known or potential threats to P. 
helianthoides over the short-term or long-term; and
    (8) Management, regulatory, or conservation programs that may be 
relevant for P. helianthoides, including mitigation measures related to 
any known or potential threats to the species throughout its range.
    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 in 
accordance with the instructions provided in the ADDRESSES section 
above. We will base our findings on a review of the best available 
scientific and commercial information available, including all 
information received during the public comment period.

References Cited

    A complete list of all references cited herein is available upon 
request (See FOR FURTHER INFORMATION CONTACT).

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

    Dated: December 20, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-27931 Filed 12-23-21; 8:45 am]
BILLING CODE 3510-22-P