Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 65239 

REDESIGNATION TABLE—Continued 

Amended sections: Remove cross-reference citations: Add, in its place, new cross-reference 

citations: 

§ 36.4303(f) ......................................................... § 36.4853 .......................................................... § 36.4353. 

§ 36.4303(l)(1)(i)(A) ............................................ § 36.4813(e)(2) ................................................. § 36.4313(e)(2). 

§ 36.4303(l)(1)(i)(B) ............................................ § 36.4813(d)(8) ................................................. § 36.4313(d)(8). 

§ 36.4303(l)(1)(ii)(D) ........................................... § 36.4813(d)(8) ................................................. § 36.4313(d)(8). 

§ 36.4306(a) ........................................................ § 36.4802(a) ..................................................... § 36.4302(a). 

§ 36.4306(a)(2) ................................................... § 36.4813(d)(7)(i) .............................................. § 36.4313(d)(7)(i). 

§ 36.4306(g)(4) ................................................... § 36.4813(d)(6) ................................................. § 36.4313(d)(6). 

§ 36.4306(g)(4) ................................................... § 36.4813 .......................................................... § 36.4313. 

§ 36.4306(g)(5) ................................................... § 36.4802(a) ..................................................... § 36.4302(a). 

§ 36.4307(a)(3) ................................................... § 36.4839(a)(4) ................................................. § 36.4339(a)(4). 

§ 36.4307(a)(3) ................................................... § 36.4840 .......................................................... § 36.4340. 

§ 36.4307(a)(4)(i) ................................................ § 36.4813(d) ..................................................... § 36.4313(d). 

§ 36.4307(a)(4)(ii) ............................................... § 36.4839(a)(4) ................................................. § 36.4339(a)(4). 

§ 36.4307(a)(5) ................................................... § 36.4840 .......................................................... § 36.4340. 

§ 36.4307(b) ........................................................ § 36.4802(a) ..................................................... § 36.4302(a). 

§ 36.4307(b) ........................................................ § 36.4802(h) ..................................................... § 36.4302(h). 

§ 36.4307(c) ........................................................ § 36.4854 .......................................................... § 36.4354. 

§ 36.4309(c)(1)(vi) .............................................. § 36.4826 .......................................................... § 36.4326. 

§ 36.4309(f)(2) .................................................... § 36.4850(i)(2) .................................................. § 36.4350(i)(2). 

§ 36.4310(a) ........................................................ § 36.4815 .......................................................... § 36.4315. 

§ 36.4310(d) ........................................................ § 36.4837 .......................................................... § 36.4337. 

§ 36.4312(b) ........................................................ § 36.4813(d)(6) and (d)(7) ................................ § 36.4313(d)(6) and (d)(7). 

§ 36.4312(c) ........................................................ § 36.4815 .......................................................... § 36.4315. 

§ 36.4313(d)(1)(v) ............................................... § 36.4829 .......................................................... § 36.4329. 

§ 36.4313(d)(1)(vi) .............................................. §§ 36.4860 through 36.4865 ............................ §§ 36.4360 through 36.4365. 

§ 36.4313(d)(4) ................................................... § 36.4859 .......................................................... § 36.4359. 

§ 36.4313(d)(7)(iii) .............................................. § 36.4801 .......................................................... § 36.4301. 

§ 36.4313(d)(7)(iv) .............................................. § 36.4845(b) ..................................................... § 36.4345(b). 

§ 36.4314(b) ........................................................ § 36.4824(a) ..................................................... § 36.4324(a). 

§ 36.4314(d) ........................................................ § 36.4845(b) ..................................................... § 36.4345(b). 

§ 36.4314(f)(2) .................................................... § 36.4822(a) ..................................................... § 36.4322(a). 

§ 36.4315(a)(3) ................................................... § 36.4840 .......................................................... § 36.4340. 

§ 36.4316 ............................................................ § 36.4801 .......................................................... § 36.4301. 

§ 36.4316(c) ........................................................ § 36.4828(b) ..................................................... § 36.4328(b). 

§ 36.4317(c)(4) ................................................... § 36.4827 .......................................................... § 36.4327. 

§ 36.4317(c)(13) ................................................. § 36.4850(g)(1)(iv) ............................................ § 36.4350(g)(1)(iv). 

§ 36.4319(a) ........................................................ § 36.4817(c) ..................................................... § 36.4317(c). 

§ 36.4319(c)(1) ................................................... § 36.4801 .......................................................... § 36.4301. 

§ 36.4319(c)(2) ................................................... § 36.4801 .......................................................... § 36.4301. 

§ 36.4320(a) ........................................................ § 36.4817 .......................................................... § 36.4317. 

§ 36.4320(a) ........................................................ § 36.4828 .......................................................... § 36.4328. 

§ 36.4322(b)(2) ................................................... 38 CFR 36.4848 .............................................. 38 CFR 36.4348. 

§ 36.4322(c) ........................................................ § 36.4801 .......................................................... § 36.4301. 

§ 36.4322(f)(1)(iv) ............................................... § 36.4823 .......................................................... § 36.4323. 

§ 36.4323(c) ........................................................ § 36.4814 .......................................................... § 36.4314. 

§ 36.4323(d)(5)(ii) ............................................... § 36.4854(b) ..................................................... § 36.4354(b). 

§ 36.4323(d)(5)(ii)(B) .......................................... § 36.4827 .......................................................... § 36.4327. 

§ 36.4323(e) ........................................................ § 36.4828 .......................................................... § 36.4328. 

[FR Doc. 2010–26580 Filed 10–21–10; 8:45 am] 

BILLING CODE 8320–01–P 

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. 

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) 


emcdonald on DSK2BSOYB1PROD with RULES
65240 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 

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° N. lat.) to the Yangtse 

River, China, in the south (31° 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. 


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Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 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 


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65242 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 

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. 


emcdonald on DSK2BSOYB1PROD with RULES
Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 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 midcentury 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 multiregion 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° 

N. latitude that divides the spotted seal 


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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. 


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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-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 climaterelated 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 dichlorodiphenyl-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 


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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 nonbinding 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 


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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 


emcdonald on DSK2BSOYB1PROD with RULES
65248 Federal Register / Vol. 75, No. 204 / Friday, October 22, 2010 / Rules and Regulations 

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. 

■ For the reasons set out in the 

preamble, 50 CFR part 223 is amended 

as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531 1543; subpart B, 

§ 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

■ 2. In § 223.102, in the table, add 

paragraph (a)(3) to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

Species 1

Where listed Citation(s) for listing 

determination(s) 

Citation(s) for critical 

habitat designation(s) Common name Scientific name 

(a) * * * 

(3) Southern 

DPS—Spotted 

Seal.

Phoca largha ...... The southern DPS includes all 

breeding populations of spotted 

seals south of 43 degrees north 

latitude in the Pacific Ocean.

[Insert FEDERAL REGISTER page 

citation]; 10/22/2010.

NA. 

* * * * * * * 

1Species 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). 

* * * * * 

■ 3. In Subpart B of part 223, add 

§ 223.211 to read as follows: 

§ 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 § 223.102(a)(3). 

[FR Doc. 2010–26764 Filed 10–21–10; 8:45 am] 

BILLING CODE 3510–22–P 


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