[Federal Register Volume 74, Number 174 (Thursday, September 10, 2009)]
[Proposed Rules]
[Pages 46548-46551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21759]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2009-0051; 9221050083]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Pacific Walrus as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Pacific walrus (Odobenus 
rosmarus divergens) as threatened or endangered under the Endangered 
Species Act of 1973, as amended (Act), and to designate critical 
habitat. Following a review of the petition, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing this subspecies may be warranted. Therefore, with the 
publication of this notice, we are initiating a status review to 
determine if listing the Pacific walrus is warranted. To ensure that 
the status review is comprehensive, we are soliciting scientific and 
commercial data and other information regarding this subspecies.

DATES: We made the finding announced in this document on September 10, 
2009. To allow us adequate time to conduct this review, we request that 
you send us information on or before November 9, 2009.

ADDRESSES: You may submit information by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R7-ES-2009-0051 and then follow the instructions 
for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-ES-2009-0051; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Rosa Meehan, Alaska Regional Office, 
Marine Mammals Management, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, AK 99503; by telephone (800-362-5148); or by 
facsimile (907-786-3816). Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information concerning the status of the Pacific walrus (Odobenus 
rosmarus divergens). We request information from other concerned 
governmental agencies, Native American Tribes, the scientific 
community, industry, or any other interested parties concerning the 
status of the Pacific walrus. We are seeking information regarding:
    (1) Information relevant to the factors that are the basis for 
making a listing determination for a species under section 4(a) of the 
Act (16 U.S.C. 1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (2) The historical and current status of the population, including 
distribution, abundance, trends in abundance, population dynamics, 
taxonomy, and stock structure.
    (3) Habitat selection and use, including both sea-ice and 
terrestrial haulouts; disturbance at haulouts; food habits; and effects 
of disease, competition, and predation on Pacific walruses.
    (4) The effects of climate and environmental changes, sea-ice 
changes, and ocean acidification on the distribution, abundance, and 
life history of Pacific walruses and their principal prey over the 
short and long term.
    (5) Information on the effects of other potential threat factors, 
including, but not limited to, oil and gas exploration and development, 
commercial fishing and shipping, contaminants, and hunting.
    (6) Information on the effects of ongoing conservation measures for 
the species and its habitat on the distribution and abundance of 
Pacific walruses and their principal prey over the short and long term.
    If we determine that listing the Pacific walrus is warranted, it is 
our intent to propose critical habitat to the maximum extent prudent 
and determinable at the time we propose to list the species. Therefore, 
with regard to areas within the geographical range currently occupied 
by the Pacific walrus, we also request data and information on what may 
constitute physical or biological features essential to the 
conservation of the species, where these features are currently found, 
and whether any of these features may require special management 
considerations or protection. In addition, we request data and 
information regarding whether there are areas outside the geographical 
area occupied by the species that are essential to the conservation of 
the species. Please provide specific comments and information as to 
what, if any, critical habitat you think we should propose for 
designation if the species is proposed for listing, and why such 
habitat meets the requirements of the Act.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be informative to us 
in making a determination, as section 4(b)(1)(A) of the Act directs 
that determinations as to whether any species is a threatened or 
endangered species must be made ``solely on the basis of the best 
scientific and commercial data available.'' Based on the status review, 
we will issue a 12-month finding on the petition, as provided in 
section 4(b)(3)(B) of the Act.
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this personal identifying 
information from public review. However, we cannot guarantee that we 
will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this finding, will be

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available for public inspection on http://www.regulations.gov, or by 
appointment during normal business hours at the Alaska Regional Office 
(see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly commence a status review of the species.
    On February 8, 2008, we received a petition dated February 7, 2008, 
from the Center for Biological Diversity requesting that we list the 
Pacific walrus as threatened or endangered under the Act and that we 
designate critical habitat. The petition clearly identified itself as 
such and included the requisite identification information for the 
petitioner, as required by 50 CFR 424.14(a). We evaluated the immediacy 
of possible threats to the Pacific walrus and determined that emergency 
listing was not warranted. In a letter to the petitioner dated April 9, 
2008, we informed the petitioner that all remaining available funds in 
the listing program for Fiscal Year (FY) 2008 had already been 
allocated to the Service's highest priority listing actions and that no 
listing funds were available to further evaluate the walrus petition in 
FY 2008. In the case of Center for Biological Diversity v. U.S. Fish 
and Wildlife Service, et al. (3:08-cv-00265-JWS), the plaintiff filed a 
complaint for declaratory judgment and injunctive relief challenging 
the failure of the Service to make a 90-day finding on its petition to 
list the Pacific walrus, under section 4(b)(3) of the Act (16 U.S.C. 
1533(b)(3)) and the Administrative Procedure Act (5 U.S.C. 706(1)). The 
complaint was filed in U.S. District Court for the District of Alaska 
on December 3, 2008. On May 18, 2009, a settlement agreement between 
the Center for Biological Diversity and the Service was approved by the 
court. This agreement requires us to submit our 90-day finding on the 
petition to the Federal Register by September 10, 2009. If we find that 
the petition presents substantial information that listing may be 
warranted, we must submit our 12-month finding to the Federal Register 
by September 10, 2010.

Species Information

    The family Odobenidae is represented by a single modern species, 
Odobenus rosmarus, of which two subspecies are generally recognized: 
The Atlantic walrus (O. r. rosmarus) and the Pacific walrus (O. r. 
divergens). The two subspecific pinnipeds occur in geographically 
isolated populations. The Pacific walrus is a large, heavy-bodied 
pinniped that has thick, rough, creased skin; a wide head and muzzle; 
small, protruding eyes; hundreds of forward-facing, short, stiff, 
vibrissae, and upper canine teeth that develop into long tusks 
(Jefferson et al. 2008, pp. 376-377).
    Pacific walrus use floating sea ice as a substrate for birthing and 
nursing calves, for resting, for isolation from predators, and for 
passive transport to new feeding areas (Fay 1974, pp. 393-394). Pacific 
walrus is thus identified as an ice-associated species. They range 
throughout the continental shelf waters of the Bering and Chukchi Seas 
and can be found in low numbers in the East Siberian Sea and the 
Beaufort Sea. In winter and early spring, walruses concentrate in the 
Bering Sea pack ice where open leads, polynyas, or thin ice allow 
access to water (Fedoseev 1982, p. 2 of translation; Fay 1982, p. 21).
    During spring, most of the population, including females and 
calves, migrates from the Bering Sea into the Chukchi Sea, where they 
form mixed groups along the southern edge of the pack ice. As summer 
sea ice recedes, walruses may haul out on shore on Wrangel and other 
islands and along the Chukchi Sea coast. The number of walruses using 
coastal haulouts in Chukotka are highly variable among years and 
seasons (see Fay et al. 1984 for summary up through the 1970s, pp. 270-
271). Many adult males remain in the Bering Sea for the summer, using 
coastal haulout sites in the Gulf of Anadyr, Bering Strait region, and 
in Bristol Bay (Fay 1982, p. 14). In the fall, walruses that summered 
in the Chukchi Sea follow the formation of sea ice as they migrate 
south through the Bering Strait and back into the Bering Sea.
    Walruses feed on a broad array of benthic invertebrate prey, 
including sea anemones, worms, sea cucumbers, tunicates, snails, and 
clams (Sheffield et al. 2001, p. 311). Occasionally, walruses consume 
large nonbenthic organisms such as fish, birds, or seals (summarized in 
Sheffield et al. 2001, p. 311). Although capable of diving to deeper 
depths, walruses usually feed in shallow waters of 100 meters (328 
feet) or less (Fay 1982, p. 163; Fay and Burns 1988, p. 240).
    The current size and trend of the Pacific walrus population is 
unknown. Between 1975 and 1990, cooperative, contemporaneous, visual 
aerial surveys were carried out by the United States and the former 
Soviet Union at 5-year intervals, producing population estimates 
ranging from about 170,000 to 250,000 individuals (see Gilbert 1999 for 
review, pp. 76-79). Observers counted or estimated numbers of walruses 
hauled out on pack ice and land, but could not accurately detect or 
quantify walruses that were swimming in the water. Surveyed areas 
included all known terrestrial haulout sites, but were limited to an 
unknown but very small percentage of available ice habitats. Efforts to 
survey the Pacific walrus population were suspended by both countries 
after 1990, due to unresolved problems with survey methods that 
produced population estimates with unknown bias and large or unknown, 
but presumably large, variances that severely limited their utility 
(Gilbert et al. 1992, p. 1; Gilbert 1999, p. 82). The population 
estimates generated from these surveys are considered minimum values 
that cannot be used for detecting trends in population size (Hills and 
Gilbert 1994, p. 205).
    During 2002-2005, the Service and Russian partners developed a 
survey method that uses thermal imaging systems to reliably detect 
walrus groups hauled out on sea ice (Burn et al. 2006, p. 54; Udevitz 
et al. 2008, pp. 63-64). At the same time, the U.S. Geological Survey 
developed satellite transmitters that record information on the haulout 
status of individual walruses (Jay et al. 2006, p. 231), which can be 
used to estimate the proportion of the walrus population in the water. 
These technological advances led to a joint United States-Russia aerial 
survey in March and April of 2006, to estimate the size of the Pacific 
walrus population (USFWS and USGS 2006, p. 7). Analysis of data 
collected during the 2006 walrus survey is ongoing. Final results are 
expected in late 2009.

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Threats Evaluation

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR Part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the Pacific walrus, as presented in the petition 
and other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

    The petition asserts that the Pacific walrus' sea-ice habitats in 
the Bering and Chukchi Seas are disappearing and being degraded by 
global climate change (Petition, pp. 26-63). It states that the Arctic 
is warming faster than other regions of the globe (p. 31; Anisimov et 
al. 2007, p. 656), and that Arctic summer sea ice, including the ice of 
the Chukchi Sea, is predicted to disappear or nearly disappear between 
2012 and 2030 (p. 27; Amos 2007, p. 1; Stroeve et al. 2008, p. 14). By 
2050, the Bering Sea is predicted to lose about 40 percent of its 
winter sea ice unless emissions scenarios change (Overland and Wang 
2007, p. 1).
    The petition states that global warming will impact the Pacific 
walrus by degrading and eliminating critical sea-ice habitat, 
decreasing prey availability, altering interactions with predators and 
disease, and increasing human disturbance throughout the range 
(Petition, p. 58). It claims that, without sea ice, the Pacific walrus 
will be forced into a shore-based existence for which it is not adapted 
(Petition, p. 27).
    After reviewing the supporting references cited in the petition, we 
find that the information provided in the petition, as well as other 
information in our files, presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted due 
to effects on walruses resulting from changes in climate and sea-ice 
habitats.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition does not claim that overutilization of Pacific 
walruses for commercial, recreational, scientific, or educational 
purposes is taking place or will take place, and does not provide any 
evidence that this factor is impacting or will impact Pacific walruses 
(Petition, pp. 63-64). We do not have substantial information in our 
files to suggest that overutilization for commercial, recreational, 
scientific, or educational purposes may threaten the Pacific walrus. 
However, all factors, including threats from utilization for 
commercial, recreational, scientific, or educational purposes, will be 
evaluated when we conduct our status review.

C. Disease or Predation

    The petition asserts that global warming is likely to markedly 
increase depredation and disease occurrence in the Pacific walrus 
population (Petition, p. 64), but does not support this statement with 
any evidence that this factor is impacting or will impact Pacific 
walruses. We do not have substantial information in our files to 
suggest that disease or predation may threaten the Pacific walrus. 
However, all factors, including threats from disease and predation, 
will be evaluated when we conduct our status review.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition presents information regarding existing and planned 
regulatory mechanisms, stating that the primary international 
regulatory mechanisms addressing greenhouse gas emissions and global 
warming, the United Nations Framework Convention on Climate Change and 
the Kyoto Protocol, are ineffective in mitigating many of the climate-
based threats to the species (Petition, pp. 64-70). The petition claims 
that the ineffectiveness of these regulatory mechanisms is demonstrated 
by their failure to significantly reduce greenhouse gas emissions 
(Petition, pp. 69-70). See our analysis of Factor A above, where we 
found that the petitioned action may be warranted due to effects on 
walruses resulting from changes in climate and sea-ice habitats. The 
petition further claims that existing regulatory mechanisms are 
inadequate to address impacts of oil and gas development, as made 
evident by the fact that important walrus habitats were not deleted 
from Minerals Management Service lease sales (Petition, pp. 70). It 
states that existing regulations both domestically and internationally 
are inadequate to protect Pacific walruses and their habitat from harm 
due to shipping and ocean acidification (Petition, pp. 71-72).
    After reviewing the supporting references cited in the petition, we 
find that the information provided in the petition, as well as other 
information in our files, presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted due 
to inadequacy of existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition claims that ocean acidification poses a profound 
threat to marine ecosystems due to impacts on photosynthesis of 
phytoplankton, metabolic rates of zooplankton and fish, oxygen supply 
of squid, reproduction of clams, nitrification by microorganisms, and 
the uptake of metals (Petition, p. 72; WBGU 2006, p. 69). The petition 
further claims that ocean acidification threatens the Pacific walrus 
because of its deleterious effects on walrus prey species (Petition, p. 
72), including mollusk species that are similar to those species 
consumed by the Pacific walrus (Berge et al. 2005, p. 1; Gazeau et al. 
2007, p. 1).
    The petition claims that additional impacts on the Pacific walrus 
include threats from offshore oil and gas development in the United 
States, Canada, and Russia, which has the potential to negatively 
impact large portions of the Pacific walrus' foraging and breeding 
habitat with oil and noise pollution (Petition, p. 73). The petition 
states that exposure to contaminants may also increase for Pacific 
walruses as a result of increasing precipitation and ice melt (Tynan 
and DeMaster 1997, p. 318). The petition also states that commercial 
fisheries pose a threat to the Pacific walrus by causing direct 
mortality through incidental take as fisheries bycatch (Woodley and 
Lavinge 1991, p. 12), and by depleting essential prey resources 
(Petition, p. 82).
    After reviewing the supporting references cited in the petition, we 
find that some of the information provided in the petition, 
specifically information on threats due to ocean acidification, as well 
as other information in our files, present substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted due to this factor. The petition does not

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present substantial information, nor do we have substantial information 
in our files, to suggest that fisheries or oil and gas activities, with 
the possible exception of potential oil spills, may threaten the 
Pacific walrus. However, all factors will be evaluated when we conduct 
our status review.

Finding

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our process for making this 90-day finding under section 4(b)(3)(A) 
of the Act is limited to a determination of whether the information in 
the petition presents ``substantial scientific and commercial 
information,'' which is interpreted in our regulations as ``that amount 
of information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)). 
As described in our threats evaluation, above, the petition presents 
substantial information indicating that listing the Pacific walrus 
throughout its entire range may be warranted based on Factors A, D, and 
E. Based on our threats evaluation, the petition does not present 
substantial information indicating that Factors B and C may be a threat 
to this species.
    Based on this review and evaluation, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing the Pacific walrus throughout all or a significant portion 
of its range may be warranted due to current and future threats under 
Factors A, D, and E. Therefore, we are initiating a status review to 
determine whether listing the Pacific walrus under the Act is 
warranted.
    The ``substantial information'' standard for a 90-day finding is 
not the same as the Act's ``best scientific and commercial data'' 
standard that applies to a status review to determine whether a 
petitioned action is warranted. A 90-day finding is not a status 
assessment of the species and does not constitute a status review under 
the Act. In a 12-month finding, we will determine whether a petitioned 
action is warranted after we have completed a thorough status review of 
the species, which is conducted following a substantial 90-day finding. 
Because the Act's standards for 90-day and 12-month findings are 
different, as described above, a substantial 90-day finding does not 
mean that the 12-month finding will indicate that listing is warranted.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Alaska Regional 
Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
Alaska Regional Office (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: September 1, 2009.
Sam D. Hamilton,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E9-21759 Filed 9-9-09; 8:45 am]
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