[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Rules and Regulations]
[Pages 65239-65248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26764]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 0909171277-0491-02]
RIN 0648-XR74
Endangered and Threatened Wildlife and Plants; Threatened Status
for the Southern Distinct Population Segment of the Spotted Seal
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, issue a final determination to list the southern
distinct population segment (DPS) of the spotted seal (Phoca largha) as
a threatened species under the Endangered Species Act (ESA). Because
the southern DPS occurs outside the United States, no critical habitat
is proposed for designation.
DATES: This final rule is effective on November 22, 2010.
ADDRESSES: NMFS, Protected Resources Division, Alaska Region, 709 West
9th Street, Room 420A, Juneau, AK 99802.
FOR FURTHER INFORMATION CONTACT: Kaja Brix at the address above or at
(907)
[[Page 65240]]
586-7235, or Marta Nammack, Office of Protected Resources, Silver
Spring, MD (301) 713-1401. The final rule, status review, and other
materials supporting this final rule can be found on our Web site at
http://www.fakr.noaa.gov/.
SUPPLEMENTARY INFORMATION:
Background
On March 28, 2008, we initiated a status review of the spotted seal
under the ESA (73 FR 16617). On May 28, 2008, we received a petition
from the Center for Biological Diversity to list the spotted seal as a
threatened or endangered species under the ESA, primarily due to
concern about threats to this species' habitat from climate warming and
loss of sea ice. The Petitioner also requested that critical habitat be
designated for spotted seals concurrent with listing under the ESA. In
response to this petition, we published a 90-day finding that the
petition presented substantial scientific or commercial information
indicating that the petitioned action may be warranted (73 FR 51615;
September 4, 2008). Accordingly, we proceeded with the ongoing status
review of spotted seals and solicited information pertaining to the
species.
After the status review report was completed by the Biological
Review Team (BRT), on October 20, 2009 (Boveng et al., 2009), we made a
12-month petition finding and proposed to list the southern DPS of the
spotted seal as threatened under the ESA (74 FR 53683). In the proposed
rule we announced a 60-day public comment period that closed December
21, 2009. We also initiated independent peer review of the proposed
listing determination. We fully considered all comments received from
peer reviewers and the public in developing this final rule and
finalizing the spotted seal status review (all DPSs).
ESA Statutory, Regulatory, and Policy Provisions
The ESA defines the term ``endangered species'' as ``any species
which is in danger of extinction throughout all or a significant
portion of its range'' and the term ``threatened species'' as ``any
species which is likely to become endangered within the foreseeable
future throughout all or a significant portion of its range.'' The
ESA's definition of a species includes subspecies and distinct
population segments. The term ``distinct population segment'' (DPS) is
not commonly used in scientific discourse, so the U.S. Fish and
Wildlife Service (USFWS) and NMFS developed the ``Policy Regarding the
Recognition of Distinct Vertebrate Population Segments Under the
Endangered Species Act'' to provide a consistent interpretation of this
term for the purposes of listing, delisting, and reclassifying
vertebrates under the ESA (61 FR 4722; February 7, 1996). We describe
and use this policy in delineating the southern DPS as one of three
DPSs of spotted seals.
In conducting the spotted seal status review, we endeavored to
assess the threats to the species to the extent such threats can be
forecast into the future, keeping in mind that there is greater
uncertainty the farther out the analysis extends. The potential
consequences of the key threat of climate change have been projected
through 2050 and the end of the 21st century. The status review report
considered the climate projections through the end of the 21st century
in assessing the threats stemming from climate change, noting that
there was less variation in the time period leading up to 2050 compared
to the period between 2050 and 2100. We used a similar approach to
assess the extinction risks from other threats. This review is similar
and consistent with the one prepared for the ribbon seal. We have not
determined here that 2100 constitutes ``the foreseeable future.'' There
is too much variability beyond 2050 to make that determination. As a
result, we examined the best scientific and commercial data available
out to 2100, all of which recognize these inherent uncertainties.
Because there is little or no information to support a quantitative
assessment of the primary threats to spotted seals, our risk assessment
was primarily qualitative and based upon expert opinion of the BRT
members. This is a common procedure that we have used in numerous other
ESA listing determinations (e.g., Pacific salmon, rockfishes, etc.).
Basic Species Biology
A review of the life history and ecology of the spotted seal is
presented in the status review report (Boveng et al., 2009). The
spotted seal (also known as the largha seal) is a close relative of the
harbor seal (Phoca vitulina). Little information is published on the
biological characteristics of spotted seal populations. Spotted seals
have a lifespan of about 30 to 35 years. They become sexually mature at
3 to 5 years of age, varying over regions and time, and adult females
usually give birth every year to a single pup which is nursed for 2 to
4 weeks and then left to fend for itself.
Spotted seals are widely distributed on the continental shelf of
the Beaufort, Chukchi, southeastern East Siberian, Bering and Okhotsk
seas, and to the south throughout the Sea of Japan and into the
northern Yellow Sea. Their range extends over about 40 degrees of
latitude from Point Barrow, Alaska, in the north (71[deg] N. lat.) to
the Yangtse River, China, in the south (31[deg] N. lat.). The
distribution of spotted seals is seasonally related to specific life
history events that can be broadly divided into two periods: late fall
through spring, when whelping, nursing, breeding, and molting all take
place in association with the presence of sea ice on which the seals
haul out, and summer through fall, when the sea ice has melted and
spotted seals remain closer to shore to use land for hauling out.
The annual timing of spotted seals' reproduction has evolved to
coincide with the average period of maximum extent and stability of the
seasonal sea ice, which varies latitudinally across their range. From
late fall through spring, spotted seal habitat-use is closely
associated with the distribution and characteristics of the seasonal
sea ice. The ice provides a dry platform away from land predators
during the whelping, nursing, breeding, and molting periods. When sea
ice begins to form in the fall, spotted seals start to occupy it
immediately, concentrating in large numbers on the early ice that forms
near river mouths and estuaries. In winter, as the ice thickens and
becomes shorefast along the coasts, spotted seals move seaward to areas
near the ice front with broken ice floes. Spotted seals can only make
and maintain holes in fairly thin ice and have been known to travel 10
kilometers (km) or more over solid ice in search of cracks or open
patches of water. Spotted seals usually avoid very dense, compacted ice
and stay near the ice front. Recent research has also shown that,
unlike spotted seals in more northerly latitudes, a portion of spotted
seals in the Peter the Great Bay and the northern Yellow Sea uses shore
lands as haul-out sites for whelping, nursing, breeding, and molting
(Wang, 1986; Trukhin, 2005; Nesterenko and Katin, 2008; Nesterenko and
Katin, 2009). Spotted seal terrestrial haul-out sites are usually
remote and located on isolated mud, sand, or gravel beaches, or on
rocks close to shore.
Spotted seals appear to be generalist feeders with a varied diet.
Most studies have found that fish are the spotted seal's primary prey.
Diet and regional and seasonal differences in foods of spotted seals
are related to the seasonal distribution and abundance of their
principal prey species.
[[Page 65241]]
Summary of Comments Received in Response to the Proposed Rule
We received written comments on the proposed rule from nine
commenters during the 60-day comment period (74 FR 53683; October 20,
2009): five from non-profit groups and private individuals, three from
oil and gas companies and trade associations, and one from the Marine
Mammal Commission. We did not receive a request for a public hearing on
the proposed rule. In all, five commenters supported listing the
southern DPS of the spotted seal, two opposed the listing, and two
commenters stated neither support nor opposition for the ruling.
A joint NMFS/U.S. Fish and Wildlife Service policy requires us to
solicit independent expert review from at least three qualified
specialists (59 FR 34270; July 1, 1994). Further, in December 2004, the
Office of Management and Budget (OMB) issued a Final Information
Quality Bulletin for Peer Review establishing minimum peer review
standards, a transparent process for public disclosure of peer review
planning, and opportunities for public participation. The OMB Bulletin,
implemented under the Information Quality Act (Pub. L. 106-554), is
intended to enhance the quality and credibility of the Federal
Government's scientific information, and applies to influential or
highly influential scientific information disseminated on or after June
16, 2005. Pursuant to our 1994 policy and the OMB Bulletin, we
solicited four independent specialists with expertise in marine
mammalogy and with specific knowledge of spotted seals to review our
proposed listing determination. We received comments from all four peer
reviewers. Three of these reviewers were supportive of our conclusions,
and the fourth reviewer had comments and questions regarding certain
aspects of the proposed listing.
We fully considered comments received from the public and peer
reviewers on the proposed rule in developing this final listing of the
southern DPS of the spotted seal. Summaries of the substantive public
and peer review comments received regarding our listing determination
for the southern DPS, and our responses to all of the significant
issues they raise, are provided below. Some peer reviewers also
provided helpful comments of an editorial nature that noted inadvertent
errors in the proposed rule and offered non-substantive but clarifying
changes to wording. We have incorporated these editorial comments in
this final rule. Because these comments did not result in substantive
changes to the final rule, we have not detailed them here.
We also received comments addressing our final decision regarding
the Bering and Okhotsk DPSs. Since that decision is now final and this
rulemaking concerns the listing of the southern DPS, we have not
provided specific responses to those comments, though some of them are
identical to comments on the southern DPS and therefore are addressed
in our responses.
Although this final rule incorporates clarifications to our
proposed listing based on these comments, as discussed below, none of
these clarifications changed our proposed listing determination. This
final rule lists the southern DPS of the spotted seal as threatened
under the ESA and extends section 9 prohibitions to this DPS.
Independent Peer Reviewer Comments
Comment 1: The peer reviewers varied in their assessments of
whether the southern population segment of the spotted seal satisfies
the discreteness and significance elements of our DPS policy. Two peer
reviewers generally agreed with the conclusion that the southern
population segment is both discrete and ecologically significant.
Another peer reviewer suggested that emphasizing the unique ecology,
behavior, and likely physiological differences between spotted seals in
the southern DPS and other populations might provide stronger evidence
to support discreteness and significance for the DPS than the emphasis
placed in the status review report on limited genetic information. This
reviewer also noted that differences between the Peter the Great Bay
and Liaodong Bay spotted seal concentrations may be substantial enough
to consider them as separate DPSs, but that this possibility was not
discussed. Finally, the fourth peer reviewer suggested that given the
Peter the Great Bay population appears to be near historical levels and
stable, and that Russia has established the Far Eastern Marine Reserve
in this bay, an argument could be made that the proposed listing be
limited to the Liaodong Bay population.
Response: We agree that there are some distinctive aspects to the
ecology and behavior of the southern DPS, and we considered them in
evaluating the significance of the DPS to the spotted seal population
as a whole. However, these characteristics may reflect adaptations to
local conditions and do not necessarily relate directly to population
discreteness. We are also unaware of any available information about
spotted seal physiology that is relevant to delineating the southern
DPS. Therefore, we continue to distinguish the southern DPS based
primarily on the available genetic information because we find that
these data likely provide stronger direct evidence of spotted seal
population structure. Regarding designation of DPSs, Congress directed
the Services to use the authority to list them ``sparingly,'' while
encouraging the conservation of genetic diversity (61 FR 4722; February
7, 1996). We believe that our decision to include both the Liaodong Bay
and Peter the Great Bay concentrations within the southern DPS, rather
than to designate them as separate DPSs, is most consistent with this
guidance and is supported by the best available data. Moreover, after
further review of the available abundance information on the Peter the
Great Bay population discussed in the status review report, we conclude
that this population has been reduced from historical numbers, as
opposed to our characterization in the proposed rule that it is near
historical levels. Overall, the available information indicates a long-
term decline in abundance. Some growth of this population may have
occurred following establishment of the Far Eastern Marine Reserve in
1978. However, recent apparent population stability has been ascribed
to limitation by mortality of spotted seals incidental to fishery
activities.
Comment 2: Two peer reviewers noted that there were very limited
data presented to support the description of the present range of the
southern DPS. One of these reviewers characterized the proposed
northern extent of the southern DPS (splitting the north coast of
Hokkaido) as arbitrary given the lack of data for Tatar Strait and the
suggestion by researchers that there may be movement of seals between
the southern Okhotsk Sea and Sea of Japan. This reviewer asked whether
there are any other data available to support the delineation of the
northern extent of the southern DPS, including from any tracking
studies on spotted seals in the southern DPS that could provide
information on movement patterns. In addition, this reviewer commented
that a more formal involvement of scientists working on spotted seals
outside U.S. waters would have greatly benefitted delineation of
spotted seal DPSs and assessment of their extinction risk.
Response: We acknowledge that additional movement and genetics
data, in particular for the Tatar Strait population, might help to
resolve some areas of uncertainty in describing the range of the
southern DPS. But we are
[[Page 65242]]
not aware of any available spotted seal tracking data that could inform
our delineation of the DPS. Therefore, as discussed in this final rule,
we continue to describe the northern extent of this DPS based on the
best available genetic data. We also note that the BRT solicited
reviews of the spotted seal status review report from several
scientists involved in spotted seal research outside U.S. waters, but
it received no responses. The ESA requires that our determinations be
based upon the best scientific and commercial data available at the
time a decision is made.
Comment 3: One peer reviewer noted that given the limited amount of
available data for the southern DPS, it is reasonable there is no
quantitative evaluation of extinction risk. Another peer reviewer
stated that no information was presented on extinction risk relating to
small population size or declines in abundance in the southern DPS.
This reviewer also noted that no reasons were given for the marked
decline of the Liaodong Bay population since 1940, nor were data
provided on whether the decline is continuing.
Response: Overall, the southern DPS exists at reduced abundance
levels where additional loss would threaten this DPS through
demographic stochasticity (variation in population growth arising from
chance events in individual survival and reproductive success) or small
population effects. Risks related to small population size are
discussed in more detail in the spotted seal status review (Boveng et
al., 2009). The decline in the Liaodong Bay population in the 20th
century has been attributed to over-hunting and habitat destruction.
The most recent available abundance estimate for the Liaodong Bay
population (2007) is 800 animals.
Comment 4: One peer reviewer stated that the assessment of risks
posed by oil and gas development to the southern DPS appears inadequate
and cursory, and that the conclusion in the proposed rule that ``such
activities will not place or contribute to placing the spotted seal in
danger of extinction in the foreseeable future'' does not appear
supportable for this DPS, given population numbers and trends in Peter
the Great Bay and Liaodong Bay. A similar public comment was received.
Response: The most significant issue associated with oil and gas
exploration and development would be potential oil spills produced by
these activities. A large oil spill in the Yellow Sea at the port of
Dalian, China, in July 2010 illustrates the potential for spills in
this region. We conclude that the risk posed to the southern DPS from
oil and gas activities is high given the very low abundance of this DPS
and the possible consequences of a large oil spill on these seals,
particularly from an oil spill in the Bohai Sea. We also acknowledge
that inadequacy or lack of stringency of mechanisms to regulate oil and
gas activities in the Yellow Sea could contribute to the cumulative
risk faced by the southern DPS, and we have revised the final rule to
reflect this.
Public Comments
Comment 5: One commenter stated that the potential effects of
pollution on the spotted seal were underestimated.
Response: Most spotted seal contaminant research has been conducted
in the Bering Sea and coastal areas around Hokkaido, Japan. Information
about pollutants in waters and sediments in the range of the southern
DPS were used for inference about potential risk from contaminants. We
do not have any information at this time to conclude that there are
population-level effects from contaminant exposure. A more detailed
discussion of the subject can be found in the status review report
(Boveng et al., 2009).
Comment 6: One commenter stated that the lack of regulatory
mechanisms to address loss of sea ice habitat due to global warming
poses a significant threat to the spotted seal, and so inadequacy of
existing regulatory mechanisms should have been included as a
significant factor contributing to the extinction risk for the species.
Response: We acknowledge that there are currently no effective
mechanisms to regulate global greenhouse gas (GHG) emissions, which are
contributing to global climate change and associated loss of sea ice.
The risk posed to the southern DPS by the lack of mechanisms to
regulate GHG emissions is directly correlated to and difficult to
distinguish from the risk posed by the effects of these emissions. The
projections we used to assess risks from GHG emissions were based on
the assumption that no regulation will take place (the underlying IPCC
emissions scenarios were all ``non-mitigated'' scenarios). Therefore,
the lack of mechanisms to regulate GHG emissions is already included in
our risk assessment.
We have clarified this final rule to acknowledge that the lack of
effective mechanisms to regulate global GHG emissions is contributing
to the cumulative risk faced by the southern DPS. We also note that the
long persistence of CO2 in the atmosphere would complicate
the effectiveness of any regulatory action. Consequently, the ability
of any GHG regulations to effectively counter the climate-change
related threats to the species likely would not be discernable until
the latter half of the century, when projected conditions are very
uncertain regardless of potential regulations.
Comment 7: One commenter disputed our conclusion that the nature
and timing of ocean acidification impacts are highly uncertain.
Response: We acknowledge that ocean acidification may affect
spotted seal survival and recruitment through disruption of food webs
and ecosystem processes. However, the possible ecological outcomes of
ocean acidification are complex, are expected to manifest over a
timescale of uncertain length, and rely on interaction of numerous
variables. While the ocean chemistry changes associated with ocean
acidification are predictable, the ultimate effects within the
foreseeable future specific to spotted seal viability are much less
clear. For example, we do not have sufficient understanding of lower
trophic level organisms upon which spotted seal prey depend, including
information on the baseline geographic distributions of these
organisms, to evaluate the potential impact of ocean acidification on
seal prey species. Given the apparent diet flexibility of the spotted
seal, we do not believe that ocean acidification is a significant
factor causing the southern DPS to become endangered in the foreseeable
future.
Comment 8: Two commenters noted that loss of sea ice habitat was
identified as a significant risk factor for the southern DPS even
though spotted seals have shown the ability to adapt to using
terrestrial sites.
Response: The status of the southern DPS of the spotted seal is
likely to be maintained or worsened by the cumulative effects of
multiple stressors, which include loss of sea ice habitat. As discussed
in the spotted seal status review report (Boveng et al., 2009) and this
final rule, although spotted seals have shown some capability to adapt
to terrestrial breeding and molting sites, they are more vulnerable to
predation, disturbance, and disease while hauled out on shore. It is
likely that this is why seals that breed ashore select sites such as
offshore rocks and uninhabited islands that are relatively inaccessible
to predators. In addition, the viability of terrestrial site use may be
limited by the relative scarcity of suitable habitat, especially
because a portion of the southern DPS already uses terrestrial sites.
Thus, we conclude that loss of sea ice habitat is a significant risk
factor for the southern DPS.
[[Page 65243]]
Comment 9: Two commenters expressed concern about data gaps
revealed in the status review report and cited the need for additional
research to fill these gaps. One of these commenters also cited the
need for strengthened international collaborative efforts to assess the
status of spotted seal populations throughout their range, and to
identify any need for protective measures.
Response: We acknowledge that there is currently little or no
information available to support a quantitative assessment of the
primary threats to spotted seals. We agree that additional research and
international collaborative efforts may help resolve areas of
uncertainty and could add to the ecological knowledge of this species.
Our determination to list the southern DPS is supported by the best
scientific and commercial data currently available.
Comment 10: Two commenters questioned the timeframe considered in
assessing the risk posed to the spotted seal from global climate
change, and suggested the possibility that future intervening actions
might reduce GHG emissions.
Response: Because the mostly widely accepted climate change
projections (which currently form the best available information about
future conditions) have been made through the end of the 21st century,
we considered climate projections through both 2050 and the end of the
21st century, while keeping in mind that there is greater uncertainty
the farther out that projections extend (i.e., beyond 2050). The effect
of increased GHG emissions since the preindustrial era has been
widespread warming of the climate (IPCC, 2007). A net result of this
warming is loss of sea ice. The best available information indicates
that sea ice will continue to be affected by climate change, and that
even if actions are taken to mitigate GHG emissions, a continued
warming trend would be expected through mid-century and beyond (IPCC,
2007). The southern DPS is currently being affected by sea ice loss,
and it is expected that by about the middle of the 21st century
seasonal sea ice will rarely form within the range of this DPS.
Although the uncertainty associated with climate projections is greater
the farther out that projections extend, it is clear that loss of sea
ice habitat is a significant risk factor for the southern DPS within
the foreseeable future. Therefore, we continue to conclude that the
timeframes considered in our assessment of the risks posed to this DPS
from global climate change are appropriate and are supported by best
available scientific data.
Comment 11: One commenter suggested that listing the spotted seal
under the ESA may be an avenue toward regulating GHG emissions, and
that if the southern DPS is listed as ``threatened,'' a special rule
should be implemented for this DPS under ESA section 4(d) to exclude
application of ESA take restrictions to GHG-emitting projects. This
commenter also stated that in determining whether to list the spotted
seal under the ESA, a causal connection must be established between
factors suggested as affecting the health of spotted seal populations
and NMFS' determinations concerning their status. In addition, this
commenter requested that any final rule explicitly acknowledge the lack
of scientific data to draw a causal link between GHG emissions from
specific projects and effects on the spotted seal or any other species.
Response: NMFS was petitioned to evaluate the status of the spotted
seal under the ESA. The mandate of the statute is to determine, on the
basis of the best available scientific and commercial data, ``whether
any species is an endangered species or a threatened species'' because
of ``any'' of the factors listed in Section 4(a)(1) of the ESA. The
statute thus places emphasis on determining the status of the species,
and does not require that the Service attempt to prove causal linkages
between particular factors and the resultant status. This final rule
fully meets the ESA's standard. Attempting to establish casual linkages
between specific GHG emission sources and effects on spotted seals is
not necessary to draw conclusions as to whether the southern DPS meets
the definition of a ``threatened species'' under the ESA.
We previously proposed and are now issuing a final rule under
section 4(d) of the ESA. In that rule, we extend the section 9
prohibitions to the southern DPS because we conclude that such action
is necessary and advisable to provide for the conservation of the
southern DPS. We have not excluded from the section 9 prohibitions any
specific GHG-emitting project or such projects generally because we do
not believe that that type of exclusion is necessary for the
implementation of the 4(d) rule or necessary and advisable for the
conservation of the species.
Species Delineation
To be considered for listing under the ESA, a group of organisms
must constitute a ``species,'' which Section 3(16) of the ESA defines
as ``any subspecies of fish or wildlife or plants, and any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.'' Our DPS policy (61 FR 4722; February 7,
1996) describes two elements to be considered in deciding whether a
population segment can be identified as a DPS under the ESA: (1)
Discreteness of the population segment in relation to the remainder of
the species to which it belongs; and (2) significance of the population
segment in relation to the remainder of the species to which it
belongs.
The southern segment of spotted seals was found to be discrete
primarily on the basis of its genetic composition (Boveng et al., 2009;
74 FR 53683, October 20, 2009). Genetic data on population structure
exist from four studies of spotted seals. The preliminary conclusions
drawn from examination of mitochondrial (mtDNA) from 247 spotted seals
and 18 micro-satellite loci for 207 spotted seals support a
phylogeographic break between seals of the Yellow Sea-Sea of Japan
region and seals of the Okhotsk, Bering, and Chukchi seas (O'Correy-
Crowe and Bonin, 2009). Another study found low nuclear genetic
variability among 176 spotted seals from Liaodong Bay, the primary
breeding area in the Yellow Sea (Han et al., 2010), a finding
consistent with a previous report of low diversity in mtDNA haplotypes
(Han et al., 2007). Moreover, a distinctive genetic marker (consisting
of a single base-pair insertion in the threonine transfer RNA gene) was
reported as present in all seals from Liaodong Bay but not in samples
tested from the Sea of Japan and Sea of Okhotsk, indicative of little
or no immigration of females into the Yellow Sea population.
A fourth study found no phylogenetic structure in mtDNA from 66
spotted seals sampled along the northern coast of Hokkaido in the far
northeastern portion of the Sea of Japan, and could not dismiss the
possibility that spotted seals on the northwest Hokkaido coast during
winter are part of the southern Sea of Okhotsk breeding population
(Mizuno et al., 2003). This is currently the only information available
on where in the Sea of Japan to place a population dividing line
corresponding to the genetic break suggested by the multi-region DNA
study described above. Because no samples from the Tatar Strait
(northwest of Hokkaido) have been included in genetic studies, and the
samples from Hokkaido are not obviously distinct from the Sea of
Okhotsk samples, the population division with the most support from the
available genetic data is a line along 43[deg] N. latitude that divides
the spotted seal
[[Page 65244]]
range to include a southern segment composed of the breeding
concentrations of the Yellow Sea and Peter the Great Bay in the Sea of
Japan. We assessed the existence and implications of international
governmental boundaries between breeding populations, and determined
that considerations of cross-boundary management and regulatory
mechanisms do not outweigh or contradict this division.
The southern segment was also determined to be significant relative
to the spotted seal species as a whole based on (1) its persistence in
an ecological setting that is unique; and (2) whether the loss of the
discrete population segment would result in a significant gap in the
range of the species. In the southern DPS some unknown portion of the
Yellow Sea breeding concentration (Liaodong Bay) and all or nearly all
seals breeding in Peter the Great Bay whelp and nurse on shore. In
Peter the Great Bay, pups born ashore have been observed to enter the
water prior to weaning, a behavior that is not typical among pups born
on ice. Although it is not clear how long these behaviors have been
occurring within the southern segment of the species' range, they may
reflect responses or adaptations to changing conditions at the range
extremes, and their uniqueness may provide insights about the
resilience of the species to the effects of climate warming. In
addition, the spotted seal is the only phocid (true seal) species
inhabiting the waters of the Yellow Sea and Sea of Japan; whereas, four
to five phocid species overlap within the remainder of the range of the
spotted seal. Finally, the southern DPS extends over a vast area that
includes two concentration areas of spotted seal breeding. Loss of this
population segment would result in a substantial contraction of the
overall extent of the range of the spotted seal.
In summary, given the best scientific and commercial data
available, we conclude that the southern population segment of the
spotted seal is both discrete and biologically and ecologically
significant and should therefore be considered a DPS under the ESA. We
refer to this population segment as the southern DPS throughout this
final rule.
Status of the Southern DPS of the Spotted Seal
Several factors make it difficult to accurately assess spotted
seals' abundance and trends. The remoteness and dynamic nature of their
sea ice habitat along with their broad distribution and seasonal
movements make surveying spotted seals expensive, highly unpredictable,
and logistically challenging. Additionally, the species' range crosses
political boundaries, and there has been limited international
cooperation to conduct range-wide surveys. Details of survey methods
and data are often limited or have not been published, making it
difficult to judge the reliability of the reported numbers. Logistical
challenges also make it difficult to collect the necessary behavioral
data to make proper refinements to seal counts. Survey data were often
inappropriately extrapolated to the entire survey area based on seal
densities and ice concentration estimates without behavioral research
to determine factors affecting habitat selection. For example, no
suitable behavioral data have been available to correct for the
proportion of seals in the water at the time of surveys. Spotted seal
haul-out behavior likely varies based on many factors such as time of
year and time of day, daily weather conditions, age and sex.
With these limitations in mind, the best scientific and commercial
data available indicate that the population size of spotted seals in
the Yellow Sea (Liaodong Bay) increased from about 7,100 in 1930 to a
maximum of 8,137 in 1940. The population then declined over the next 4
decades to a minimum of 2,269 in 1979, before increasing again to about
4,500 in 1990. Despite conservation efforts by the Chinese and South
Korean Governments, the Liaodong Bay population continued to decline to
around 800 individuals by 2007, which is the current estimate for this
population. The decline in the population during the 20th century has
been attributed to over-hunting and habitat destruction (Won and Yoo,
2004).
Historical harvest records suggest that there were probably several
thousand spotted seals in Peter the Great Bay in the Sea of Japan at
the end of the 19th century. Abundance likely decreased considerably
until the 1930s as the human population and hunting increased in this
region. Shipboard surveys conducted in 1968 placed the spotted seal
population at roughly several hundred individuals. Recent year-round
studies have placed the most current estimate at about 2,500 spotted
seals that inhabit Peter the Great Bay in the spring, producing about
300 pups annually, and now reproducing on shore rather than on ice.
Summary of Factors Affecting the DPS
Section 4(a)(1) of the ESA and the listing regulations (50 CFR part
424) set forth procedures for listing species. We must determine,
through the regulatory process, if a species is endangered or
threatened because of any one or a combination 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 human-made factors affecting its continued
existence. In making this finding, we considered the best scientific
and commercial data available regarding the status and trends of the
southern DPS. These factors are discussed below. As mentioned above,
because there is little or no information to support a quantitative
assessment of the primary threats to spotted seals, our risk assessment
was primarily qualitative and based upon expert opinion of the BRT
members.
Present or Threatened Destruction, Modification, or Curtailment of the
Species' Habitat or Range
The main concern about the conservation status of the southern DPS
stems from observed changes in its sea ice habitat which are likely the
result of the warming climate and, more so, that the scientific
consensus projections are for continued and perhaps accelerated warming
and sea ice decline in the foreseeable future. A second related concern
is the modification of habitat by ocean acidification, which may alter
prey populations and other important aspects of the marine ecosystem. A
reliable assessment of the future conservation status of the southern
DPS requires a focus on projections of specific regional conditions,
especially sea ice.
For the Sea of Japan and Yellow Sea, current global climate models
for sea ice do not perform satisfactorily due to model deficiencies and
the small size of the region compared to the spatial resolution of the
climate models (Boveng et al., 2009). As a result, inferences about
future ice conditions in these areas were drawn indirectly from
projections of air or sea surface temperatures, and thus have greater
associated uncertainties than sea ice projections. In the BoHai Sea and
Peter the Great Bay, ice thickness is likely to depend more on the
thickness of in situ ice formation than in the Bering Sea and Sea of
Okhotsk because smaller wind fetches and shorter durations of ice cover
would be expected to cause less ridging and rafting. Projected warming
in this region indicates that reliable annual ice formation is likely
to cease by the latter half of the 21st century.
[[Page 65245]]
The southern DPS appears to have some capability to accomplish
reproduction and molting on shore when ice is not available. However,
pinnipeds are generally not well protected from predation when they are
constrained by the necessity of maintaining a mother[hyphen]pup bond;
that is, when escape to the water may disrupt the bond or poses
thermoregulation problems for the pup. Therefore, suitable space to
reproduce on land is likely limited to offshore rocks and small islands
without human habitation, which appear to be relatively scarce in the
southern DPS. We conclude that the loss of sea ice habitat is a
significant factor in our classification of the southern DPS as
threatened.
Ocean acidification, a result of increased greenhouse gases such as
carbon dioxide in the atmosphere, may impact spotted seal survival and
recruitment through disruption of trophic regimes that are dependent on
calcifying organisms. The nature and timing of such impacts are
extremely uncertain. Because of spotted seals' apparent dietary
flexibility, and acknowledging our present inability to predict the
extent and consequences of acidification, we find this to be a threat
with potential to have serious effects, but conclude that it does not
contribute significantly to the status of the species for the
foreseeable future. It is thus not significant to our conclusion to
list the southern DPS of the spotted seal as threatened under the ESA.
Changes in spotted seal prey, anticipated in response to ocean
warming and loss of sea ice and, potentially, ocean acidification, have
the potential for negative impacts on spotted seals, but the
possibilities are complex. Some changes already documented in the
Bering Sea and the North Atlantic Ocean are of a nature that could be
beneficial to spotted seals. For example, several fish species,
including walleye pollock (Theragra chalcogramma), a common spotted
seal prey, have shown northward distribution shifts and increased
recruitment in response to warming, at least initially. These ecosystem
responses may have very long lags as they propagate through trophic
webs. Apparent flexibility in spotted seal foraging locations and
habits may make these threats a lower risk than the more direct impacts
from changes in sea ice.
The above analyses of the threats associated with impacts of the
warming climate on the habitat of the southern DPS, to the extent that
they may pose risks to these seals, are expected to manifest throughout
the current breeding and molting range (for sea ice related threats) or
throughout the entire range (for ocean warming and acidification) of
the DPS, since the finer scale spatial distribution of these threats is
not currently well understood.
Over-Utilization for Commercial, Subsistence, Recreational, Scientific,
or Educational Purposes
Recreational, scientific, and educational utilization of the
southern DPS is currently at low levels and is not projected to
increase to significant threat levels in the foreseeable future. The
establishment of the Far Eastern Marine Reserve in Peter the Great Bay
in 1978 prohibited hunting of spotted seals within the reserve, but it
is unknown what level of hunting (if any) occurs outside the reserve's
boundaries. Currently, there is not believed to be any commercial or
subsistence take of spotted seals in the Yellow or Bohai seas, and the
incidence of poaching is believed to be decreasing due to strengthened
monitoring and enforcement. We therefore find that this factor does not
contribute significantly to the status of the southern DPS or to our
conclusion to list the southern DPS of the spotted seal as threatened
under the ESA.
Diseases, Parasites, and Predation
A variety of pathogens (or antibodies), diseases, helminths,
cestodes, and nematodes have been found in spotted seals. The
prevalence of these agents is not unusual among seals, but whether
there is an associated population-level impact is unknown. There has
been speculation about increased risk of outbreaks of novel pathogens
or parasites in marine systems as climate-related shifts in species
distributions lead to new modes of transmission. However, no examples
directly relating climate change to increased severity or prevalence of
disease have been documented. Some types of diseases may decrease in
severity or prevalence with increasing temperature. Therefore, it is
not currently possible to predict the consequences of climate warming
on disease or pathogen biodiversity in general or on spotted seal
viability in particular.
There is little or no direct evidence of significant predation on
spotted seals, and they are not thought to be a primary prey of any
predators. However, predation risk could increase if loss of sea ice
requires spotted seals to spend more time in the water or more time on
shore, but predator distributions and behavior patterns may also be
subject to climate-related changes, and the net impact to spotted seals
cannot be predicted.
Inadequacy of Existing Regulatory Mechanisms
There are currently no effective mechanisms to regulate global GHG
emissions, which are contributing to global climate change and
associated modifications to spotted seal habitat. The risk posed to the
southern DPS due to the lack of mechanisms to regulate GHG emissions is
directly correlated to and difficult to distinguish from the risk posed
by the effects of these emissions. The projections we used to assess
risks from GHG emissions were based on the assumption that no
regulation will take place (the underlying IPCC emissions scenarios
were all ``non-mitigated'' scenarios). Therefore, the lack of
mechanisms to regulate GHG emissions is already included in our risk
assessment. Still, we recognize that the lack of effective mechanisms
to regulate global GHG emissions is contributing to the risks posed to
the southern DPS by these emissions.
Inadequacy or lack of stringency of mechanisms to regulate oil and
gas activities in the Yellow Sea may be a similarly relevant factor
regarding the cumulative risk faced by the southern DPS. However, large
oil spill events are infrequent, and the ability to respond to them
depends on a variety of factors, including timing, location and
weather.
Other Natural or Human Factors Affecting the Species' Continued
Existence
Spotted seals may be adversely affected by exposure to certain
pollutants. Pollutants such as organochlorine compounds and heavy
metals have been found in high concentrations in some Arctic phocids.
Butyltin (BT) compounds are used as antifouling agents in ship bottom
paints. They are retained in all tissues, though largely in the liver
rather than the blubber where polychlorinated biphenyls (PCBs) and
dichloro-diphenyl-trichloroethane (DDT) accumulate. BTs have been found
in spotted seals, and some studies suggest marine mammals may have
difficulty metabolizing these compounds. Research has also found
persistent organochlorine pollutants (POPs), including flame retardant
compounds like PBDEs as well as DDTs, PCBs, and perfluorinated
contaminants (PFCs) in spotted seals.
We do not believe organochlorine levels are affecting ice seal
populations at this time. We have no data or model predictions of
levels expected in the foreseeable future. However, current levels
should be used as a baseline for future research as concentrations in
[[Page 65246]]
surrounding Arctic regions continue to rise. Climate change has the
potential to increase the transport of pollutants from lower latitudes
to the Arctic through changes in ocean current patterns, highlighting
the importance of continuing to monitor spotted seal contaminant
levels.
We note that most spotted seal contaminant research has been done
in the Bering Sea and coastal areas around Hokkaido, Japan. Information
about pollutants in water and sediments in the range of the southern
DPS was used to draw inferences about potential risk from contaminants.
Due to low water exchange and continued exposure to pollution, it is
likely that high levels of contaminants would be found in seals of the
Yellow Sea. However, we do not have any information to conclude that
there are any population-level effects from contaminant exposure.
As discussed above, oil and gas activities have the potential to
adversely affect spotted seals. As far as is known, spotted seals have
not been affected by oil spilled as a result of industrial activities
even though such spills have occurred in spotted seal habitat. Oil and
gas development in the Sea of Okhotsk resulted in an oil spill in 1999,
which released about 3.5 tons of oil. Also, in December 2007
approximately 10,500 tons of crude oil spilled into the Yellow Sea
offshore of South Korea's Taean Peninsula from a tanker. The size of
the oil spill was about one-fourth that of the Exxon Valdez spill in
1989, and was the largest in Korean history. It is unknown how many
seals may have been affected by this spill. Incidences of oil spills
are expected to increase with the on-going increase in oil and natural
gas exploration/development activities in the Bohai and Yellow seas.
Accompanying growth in tanker and shipping traffic could further add to
the oil spill potential. According to experts in China, the threat of
future oil spills remains high.
Though the probability of an oil spill affecting a significant
portion of the southern DPS in the foreseeable future is low, the
potential impacts from such a spill could be significant. The potential
impacts would be greatest when spotted seals are relatively aggregated.
Such an event in the Bohai Sea could be particularly devastating to the
southern DPS of spotted seals. Given the very low abundance of the
southern DPS and the possible consequences of a large oil spill to
these seals, we considered this factor to be significant in our
classification of the southern DPS as threatened.
Potentially significant interactions with commercial fisheries may
pose significant risks, as well. Mortality of spotted seals incidental
to fishery activities has been reported in both the Yellow Sea and
Peter the Great Bay. The estimated level of fishery bycatch reported by
researchers for spotted seals in Peter the Great Bay would be
unsustainable for this population, and has been implicated as possibly
limiting its growth.
Conservation Efforts
When considering the listing of a species, section 4(b)(1)(A) of
the ESA requires us to consider efforts by any State, foreign nation,
or political subdivision of a State or foreign nation to protect the
species. Such efforts would include measures by Native American tribes
and organizations, local governments, and private organizations. Also,
Federal, tribal, state, and foreign recovery actions (16 U.S.C.
1533(f)), and Federal consultation requirements (16 U.S.C. 1536)
constitute conservation measures. In addition to identifying these
efforts, under the ESA and our Policy on the Evaluation of Conservation
Efforts (PECE) (68 FR 15100; March 28, 2003), we must evaluate the
certainty of an effort's effectiveness on the basis of whether the
effort or plan: Establishes specific conservation objectives;
identifies the necessary steps to reduce threats or factors for
decline; includes quantifiable performance measures for the monitoring
of compliance and effectiveness; incorporates the principles of
adaptive management; is likely to be implemented; and is likely to
improve the species' viability at the time of the listing
determination.
Several conservation efforts have been undertaken by foreign
nations specifically to protect spotted seals within the southern DPS.
These include: (1) Russia has established the Far Eastern Marine
Reserve in Russia's Peter the Great Bay, and the islands of the Reserve
provide protection from human disturbance and suitable haul-out sites
for spotted seals; (2) China's Liaoning provincial government has
banned the hunting of spotted seals, and established two national
protected areas for the protection of spotted seals in the Liaodong Bay
area, including the Dalian National Spotted Seal Nature Reserve
(though, in 2006, the Dalian Nature Reserve's boundaries were adjusted
to accommodate industrial development); (3) spotted seals are listed in
the Second Category (II) of the ``State Key Protected Wildlife List''
in China and listed as Vulnerable (V) in the ``China Red Data Book of
Endangered Animals''; (4) the spotted seal is designated a vulnerable
species under the Wildlife Conservation Act of China (though, as of
2004, no conservation action, public awareness, or education programs
have been carried out for the species in this region); and (5) in 2000,
spotted seals were afforded protected status under the Wildlife
Conservation Act of South Korea. Despite this protection, the Liaodong
Gulf population, shared between China and Korea, continues to decline.
The Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) is a treaty aimed at protecting species at risk
from international trade. CITES regulates international trade in
animals and plants by listing species in one of its three appendices.
Spotted seals are not listed under CITES.
The International Union for the Conservation of Nature (IUCN) Red
List identifies and documents those species believed by its reviewers
to be in need of conservation attention if global extinction rates are
to be reduced, and is widely recognized as the most comprehensive,
apolitical, global approach for evaluating the conservation status of
plant and animal species. In order to produce Red Lists of threatened
species worldwide, the IUCN Species Survival Commission draws on a
network of scientists and partner organizations, which uses a
standardized process to determine species' risks of extinction.
However, the IUCN Red List criteria differ from the listing criteria
provided by the ESA. Because current abundance and population trends
are unknown, the spotted seal is currently classified as ``Data
Deficient'' on the IUCN Red List.
There are no known regulatory mechanisms that effectively address
the factors believed to be contributing to reductions in sea ice
habitat at this time. The primary international regulatory mechanisms
addressing GHG emissions and global warming are the United Nations
Framework Convention on Climate Change and the Kyoto Protocol. However,
the Kyoto Protocol's first commitment period only sets targets for
action through 2012. There is no regulatory mechanism governing GHG
emissions in the years beyond 2012. The United States, although a
signatory to the Kyoto Protocol, has not ratified it; therefore, the
Kyoto Protocol is non-binding on the United States.
We are not aware of any formalized conservation efforts for spotted
seals that have yet to be implemented, or which have recently been
implemented, but have yet to show their effectiveness in removing
threats to the species. There is no certainty that the conservation
efforts analyzed will be effective in
[[Page 65247]]
altering the status of the southern DPS. Therefore, our analysis of the
efforts to protect the spotted seal does not affect our determination
regarding the threatened status of the southern DPS. Based on the best
scientific and commercial data available, including the status review
report, and consideration of section 4(a)(1) of the ESA and the listing
regulations, we find that the southern DPS is likely to become an
endangered species within the foreseeable future and should be listed
as a threatened species.
Final Listing Determination
We have reviewed the status of the southern DPS of the spotted
seal, considering the best scientific and commercial data available. We
have reviewed threats to the southern DPS, as well as other factors,
and given consideration to conservation efforts and special
designations for spotted seals by states and foreign nations. In
consideration of all of the threats and potential threats identified
above, the assessment of the risks posed by those threats, the possible
cumulative impacts, and the uncertainty associated with all of these,
we draw the following conclusions: (1) Abundance estimates indicate the
Liaodong Bay spotted seals have been significantly reduced from
historical numbers, while the Peter the Great population appears to be
below historical numbers though stable, possibly limited by fishery
bycatch; (2) projected warming by mid-century indicates reliable ice
formation will cease to occur in this region by the latter half of the
21st century; (3) there already is significant use of terrestrial
habitat for whelping and nursing by the southern DPS of spotted seals;
(4) overall, the southern DPS has been significantly reduced in number
and now exists at abundance levels where additional loss would threaten
this DPS through ``small population'' or demographic stochasticity
effects; and (5) the continued viability of using terrestrial sites is
unknown, but may be limited in area or predispose spotted seals to
predation and other natural and anthropogenic effects. Therefore, we
conclude that the southern DPS of the spotted seal is likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range, and list it as threatened under the
ESA.
Prohibitions and Protective Measures
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Section 4(d) of the ESA directs the Secretary of Commerce (Secretary)
to implement regulations ``to provide for the conservation of
[threatened] species'' that may include extending any or all of the
prohibitions of section 9 to threatened species. Section 9(a)(1)(g)
also prohibits violations of protective regulations for threatened
species implemented under section 4(d). Although China, South Korea,
and Russia have designated special conservation status for spotted seal
populations and portions of their range within the southern DPS, it is
uncertain whether these and other conservation measures analyzed will
be effective in altering the status of this DPS. Therefore, based on
the status of the southern DPS and its conservation needs, we conclude
that the ESA section 9 prohibitions are necessary and advisable to
provide for its conservation. NMFS is promulgating, by way of this
final rule, protective regulations pursuant to section 4(d) for the
southern DPS of the spotted seal to include all of the prohibitions in
Section 9(a)(1).
Sections 7(a)(2) and (4) of the ESA require Federal agencies to
consult with us to ensure that activities they authorize, fund, or
conduct are not likely to jeopardize the continued existence of a
listed species or a species proposed for listing, or to adversely
modify critical habitat or proposed critical habitat. If a Federal
action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with us.
Sections 10(a)(1)(A) and (B) of the ESA provide us with authority
to grant exceptions to the ESA's Section 9 ``take'' prohibitions.
Section 10(a)(1)(A) scientific research and enhancement permits may be
issued to entities (Federal and non-Federal) for scientific purposes or
to enhance the propagation or survival of a listed species. The type of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets spotted
seals. Section 10(a)(1)(B) incidental take permits are required for
non-Federal activities that may incidentally take a listed species in
the course of an otherwise lawful activity.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
On July 1, 1994, we and the USFWS published a series of policies
regarding listings under the ESA, including a policy to identify, to
the maximum extent possible, those activities that would or would not
constitute a violation of section 9 of the ESA (59 FR 34272). The
intent of this policy is to increase public awareness of the effect of
our ESA listing on proposed and ongoing activities within the species'
range. We identify, to the extent known, specific activities that will
be considered likely to result in violation of section 9, as well as
activities that will not be considered likely to result in violation.
Because the southern DPS occurs outside the jurisdiction of the United
States, we are presently unaware of any activities that could result in
violation of section 9 of the ESA; however, because the possibility for
violations exists we will maintain the section 9 protection.
Critical Habitat
Critical habitat is not to be designated within foreign countries
or in other areas outside U.S. jurisdiction (50 CFR 424.12(h)). Because
the known distribution of the southern DPS occurs in areas outside the
jurisdiction of the United States, no critical habitat will be
designated as part of the listing action.
Classification
National Environmental Policy Act (NEPA)
The 1982 amendments to the ESA in section 4(b)(1)(A) restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v Andrus, 657 F. 2d 829 (6th Cir.
1981), we have concluded that NEPA does not apply to ESA listing
actions (see also NOAA Administrative Order 216-6.).
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analyses required by the Regulatory
Flexibility Act are not applicable to the listing process. In addition,
this final rule is exempt from review under Executive Order 12866. This
final rule does not contain a collection of information requirement for
the purposes of the Paperwork Reduction Act.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
directives for consultation in situations where a regulation will
preempt State law or impose substantial direct compliance
[[Page 65248]]
costs on State and local governments (unless required by statute).
Neither of those circumstances is applicable to this final rule.
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and co-management agreements, which
differentiate tribal governments from the other entities that deal
with, or are affected by, the Federal Government. This relationship has
given rise to a special Federal trust responsibility involving the
legal responsibilities and obligations of the United States toward
Indian Tribes and the application of fiduciary standards of due care
with respect to Indian lands, tribal trust resources, and the exercise
of tribal rights. E.O. 13175--Consultation and Coordination with Indian
Tribal Governments--outlines the responsibilities of the Federal
Government in matters affecting tribal interests. Section 161 of Public
Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law
108-447 (118 Stat. 3267), directs all Federal agencies to consult with
Alaska Native corporations on the same basis as Indian tribes under
E.O. 13175.
We have determined the listing action will not have tribal
implications or affect any tribal governments or issues. The southern
DPS does not occur within Alaska, and therefore is not hunted by
Alaskan Natives for traditional use or subsistence purposes.
References Cited
A complete list of all references cited in this rulemaking can be
found on our Web site at http://www.fakr.noaa.gov/ and is available
upon request from the NMFS office in Juneau, Alaska (see ADDRESSES).
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: October 14, 2010.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
0
For the reasons set out in the preamble, 50 CFR part 223 is amended as
follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In Sec. 223.102, in the table, add paragraph (a)(3) to read as
follows:
Sec. 223.102 Enumeration of threatened marine and anadromous species.
* * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
-------------------------------------------------------------- Where listed Citation(s) for listing Citation(s) for critical habitat
Common name Scientific name determination(s) designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(a) * * *
(3) Southern DPS--Spotted Seal...... Phoca largha........... The southern DPS [Insert FEDERAL NA.
includes all breeding REGISTER page
populations of citation]; 10/22/2010.
spotted seals south
of 43 degrees north
latitude in the
Pacific Ocean.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement; see 61 FR4722, February 7, 1996), and
evolutionarily significant units (ESUs) (for a policy statement; see 56 FR 58612, November 20, 1991).
* * * * *
0
3. In Subpart B of part 223, add Sec. 223.211 to read as follows:
Sec. 223.211 Southern DPS of spotted seal.
The prohibitions of section 9(a)(1)(A) through 9(a)(1)(G) of the
ESA (16 U.S.C. 1538) relating to endangered species shall apply to the
Southern Distinct Population Segment of the spotted seal listed in
Sec. 223.102(a)(3).
[FR Doc. 2010-26764 Filed 10-21-10; 8:45 am]
BILLING CODE 3510-22-P