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[Federal Register Volume 74, Number 201 (Tuesday, October 20, 2009)]
[Proposed Rules]
[Pages 53683-53696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25198]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 0909171277-91322-01]
RIN 0648-XR74

Endangered and Threatened Wildlife and Plants; Proposed 
Threatened and Not Warranted Status for Distinct Population Segments of 
the Spotted Seal

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

ACTION: Proposed rule; 12-month petition finding; status review, 
request for comments

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SUMMARY: We, NMFS, have completed a comprehensive status review of the 
spotted seal (Phoca largha) under the Endangered Species Act (ESA). 
Based on the findings from the status review and consideration of the 
factors affecting this species, we conclude the spotted seal exists as 
three (3) distinct population segments (DPS) within the North Pacific 
Ocean. These are the southern, Okhotsk, and Bering DPSs. Based on 
consideration of information presented in the Status Review, an 
analysis of the extinction risk probabilities for each of these DPSs, 
and assessment of the factors in section 4(a)(1) of the ESA, we have 
determined the southern DPS is likely to become endangered throughout 
all or a significant portion of its range in the foreseeable future, 
and should be listed as a threatened species. The Okhotsk and Bering 
Sea DPSs are not in danger of extinction nor likely to become 
endangered throughout all or a significant portion of their ranges in 
the foreseeable future. Accordingly, we are now issuing a proposed rule 
to list the southern DPS of the spotted seal as a threatened species. 
No listing action is proposed for the Okhotsk and Bering Sea DPSs. 
Because the southern DPS occurs outside the United States, no critical 
habitat can be designated. We request comments and information related 
to this proposed rule and finding.

DATES: Comments and information regarding this proposed rule must be 
received by close of business on December 21, 2009. Requests for public 
hearings must be made in writing and received by December 4, 2009. 
Notice of the location and time of any such hearing will be published 
in the Federal Register not less than 15 days before the hearing is 
held.

ADDRESSES: Send comments to Kaja Brix, Assistant Regional 
Administrator, Protected Resources, Alaska Region, NMFS, ATTN: Ellen 
Sebastian. You may submit comments, identified by ``RIN 0648-XR74'' by 
any one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal Rulemaking Portal website at http://www.regulations.gov.
     Mail: P.O. Box 21668, Juneau, AK, 99802-1668
     Fax: 907-586-7557
     Hand deliver to the Federal Building: 709 West 9th Street, 
Room 420A, Juneau, Alaska
    INSTRUCTIONS: All comments received are a part of the public record 
and generally will be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information. We will accept anonymous comments (enter N/A in 
the required fields, if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, WordPerfect, or 
Adobe portable document file (PDF) format only.
    The proposed rule, maps, status review, and other materials 
relating to

[[Page 53684]]

this proposal can be found on our Web site at: http://www.fakr.noaa.gov/

FOR FURTHER INFORMATION CONTACT: Kaja Brix, NMFS Alaska Region, (907) 
586-7235; or Marta Nammack, NMFS, Office of Protected Resources, (301) 
713-1401.

SUPPLEMENTARY INFORMATION:

Background

    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. Section 
4(b)(3)(B) of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.) requires that when a petition to revise the List of 
Endangered and Threatened Wildlife and Plants is found to present 
substantial scientific and commercial information, we must make a 
finding on whether the petitioned action is (a) not warranted, (b) 
warranted, or (c) warranted but precluded from immediate proposal by 
other pending proposals of higher priority. This finding is to be made 
within one year of the date the petition was received, and the finding 
is to be published promptly in the Federal Register.
    After reviewing the petition, the literature cited in the petition, 
and other literature and information available in our files, we found 
that the petition met the requirements of the regulations under 50 CFR 
424.14(b)(2) and determined that the petition presented substantial 
information indicating that the petitioned action may be warranted. 
This finding was published on September 4, 2008 (73 FR 16617). At that 
time, we commenced a status review of spotted seals and solicited 
information pertaining to the species.
    On September 8, 2009, the Center for Biological Diversity filed a 
lawsuit in the U.S. District Court for the District of Columbia 
alleging that we failed to make the requisite 12-month finding on its 
petition to list the spotted seal. Subsequently, the Court entered a 
settlement agreement under which NMFS agreed to finalize the status 
review and submit this 12-month finding to the Office of the Federal 
Register by October 15, 2009.
    The status review is a compilation of the best available 
information concerning the status of spotted seals, including the past, 
present, and future threats to this species. The Biological Review Team 
(BRT) which conducted the status review was composed of expert marine 
mammal biologists and climate scientists from NOAA's Alaska Fisheries 
Science Center and Pacific Marine Environmental Lab.

ESA Statutory, Regulatory, and Policy Provisions

    There were two key tasks associated with conducting the ESA status 
review. The first was to delineate the taxonomic group under 
consideration; the second was to conduct an extinction risk assessment 
to determine whether the petitioned species is threatened or 
endangered. 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.'' The term threatened species is 
defined as ``any species which is likely to become endangered within 
the foreseeable future throughout all or a significant portion of its 
range.'' For this 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 both 2050 and the end of the 
21st century, though under widely-varying assumptions. The status 
review 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 up to 2050 compared to 
the period between 2050 and 2100. NMFS used a similar approach to 
assess the extinction risks from other threats. While this review 
extended the climate modeling farther into the future than the one 
conducted during the ribbon seal status review, the two reviews' 
respective approaches are consistent; NMFS has not determined here that 
2100 constitutes ``the foreseeable future.'' There is too much 
variability beyond 2050 to make that determination.
    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species'', which according to the ESA includes 
``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''. The term ``distinct population segment'' 
(DPS) is not commonly used in scientific discourse, so the 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 below to guide 
our determination of whether DPSs exist for this species.
    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 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 (Boveng et al., 2009). The spotted seal 
(also known as the largha seal) is a close relative of the harbor seal 
(Phoca vitulina). Spotted seals are associated with ice during the 
spring breeding season. From March through May, spotted seals are 
principally found within the frontal zone of sea ice in the Bering Sea, 
Sea of Okhotsk, and Japan Sea. The spotted seal's coat is usually a 
light-colored background with dark gray and black spots scattered quite 
densely on the body. Little information is published on the biological 
characteristics of spotted seal populations. Spotted seals have a 
lifespan of about 30 - 35 years. They become sexually mature at 3 - 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 - 4 weeks 
and then abandoned 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.) to the Yangtse 
River, China in the south (~31 N.). 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 timing of the formation and persistence of sea ice, and thus 
the spotted seals use of sea ice habitat, roughly varies with latitude 
throughout the species' range. Typically, life history

[[Page 53685]]

functions such as molting, breeding, and whelping occur later in the 
year at higher latitudes.
    From late fall through spring, spotted seal habitat-use is closely 
associated with the distribution and characteristics of 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 
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 use 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 fishes are spotted seals' 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.

Species Delineation

    Under our DPS policy (61 FR 4722; February 7, 1996), three elements 
are considered in a decision regarding the status of a possible DPS as 
endangered or threatened under the ESA. These are: (1) ``Discreteness 
of the population segment in relation to the remainder of the species 
to which it belongs, (2) The significance of the population segment to 
the species to which it belongs, and, (3) The population segment's 
conservation status in relation to the Act's standards for listing 
(i.e., is the population segment, when treated as if it were a species, 
endangered or threatened?).
    Discreteness: A population segment of a vertebrate species may be 
considered discrete if it satisfies either one of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation, (2) It is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    Significance: If a population segment is considered discrete under 
one or more of the above conditions, its biological and ecological 
significance will then be considered in light of Congressional guidance 
(see Senate Report 151, 96th Congress, 1st Session) that the authority 
to list DPSs be used '' sparingly'' while encouraging the conservation 
of genetic diversity. In carrying out this examination, the Services 
will consider available scientific evidence of the discrete population 
segment's importance to the taxon to which it belongs. This 
consideration may include, but is not limited to, the following: (1) 
Persistence of the discrete population segment in an ecological setting 
unusual or unique for the taxon, (2) Evidence that loss of the discrete 
population segment would result in a significant gap in the range of a 
taxon, (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range, or 
(4) Evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics. 
Because precise circumstances are likely to vary considerably from case 
to case, it is not possible to describe prospectively all the classes 
of information that might bear on the biological and ecological 
importance of a discrete population segment.
    Status: If a population segment is discrete and significant (i.e., 
it is a distinct population segment) its evaluation for endangered or 
threatened status will be based on the Act's definitions of those terms 
and a review of the factors enumerated in section 4(a). It may be 
appropriate to assign different classifications to different DPSs of 
the same vertebrate taxon'' (61 FR 4722; February 2, 1996).

Evaluation of Discreteness

    A variety of evidence exists that is relevant to whether DPSs exist 
in spotted seals. Below we consider evidence from breeding 
concentrations, geographic barriers, breeding site fidelity, and 
genetics.
    Eight areas of spotted seal breeding concentrations have been 
identified in the species' range (Figure 1). All are in the southern 
margins of the seasonally ice covered portions of the range.. The 
extent to which these areas are actually separated by gaps in the 
breeding distribution, at least in the Bering Sea, is not clear. 
Spotted seals are known to undertake foraging trips and seasonal 
movements of greater than 1000 km, easily sufficient to travel between 
adjacent breeding areas. Given this capability for long distance 
movements, only very large geographical barriers would have the 
potential for maintaining any discreteness that there may be between 
adjacent breeding concentrations. Distances between the Bering Sea 
breeding concentrations and the nearest Okhotsk Sea breeding 
concentrations are large relative to the distances between adjacent 
breeding concentrations within each of these seas, due to the great 
southerly extent of the Kamchatka Peninsula.
    It is not known whether the peninsula may be a physical obstacle to 
capable travelers like spotted seals. Nonetheless, spotted seals have 
habits that may cause the Kamchatka Peninsula to be an effective 
barrier between Bering Sea and Sea of Okhotsk breeding concentrations. 
The seals' affinity for ice during winter, combined with the fact that 
the seasonal ice does not extend south to the tip of the peninsula, may 
help to confine spotted seals to their respective sea basins. They 
follow the ice front as it grows and expands to the south in autumn. In 
the Bering Sea, they make extensive east-west movements during the ice-
covered period. But, they are not known to move extensively out of the 
ice field, or off of the continental shelf, at least in the Bering Sea. 
Therefore, the typical annual pattern would seem to be one of moving 
south and offshore as the ice forms, staying in the ice during the ice 
covered period, then moving back to the north and toward shore with the 
spring ice retreat. If this scenario is correct, and unless long-
distance movements were undertaken during the period of extensive ice 
cover, the seals would be unlikely to disperse between the two seas. 
Most of the range of the species occurs in cold, seasonally ice 
covered, sub-Arctic waters, without conspicuous intrusions of warm 
water or conditions that would pose potential physiological barriers. 
There is, however, a considerable climatic difference from the southern 
to the northern extremes of the species' range.
    Recognizing that factors causing differentiation of populations--
especially behavioral factors--may be inconspicuous, the most reliable

[[Page 53686]]

information is likely to come from quantitative measures of genetic or 
morphological discontinuities. An important behavioral factor in 
maintaining separation of populations is natal philopatry, the tendency 
to reproduce in the same area as one's birthplace. Because long-term 
tracking of individual spotted seals has not been practical or 
feasible, evidence for natal philopatry must be sought indirectly, for 
example, by analysis of genotypic frequencies or relatedness of 
individuals that reflect the history of breeding dispersal. About 1 to 
10 migrants per generation between breeding areas is typically 
sufficient to preclude genetic discreteness. Thus, strong natal 
philopatry is required to maintain discreteness when no other barriers 
exist.
    Studies of differences in cranial morphology and helminth parasite 
fauna between putative breeding areas have been claimed to indicate 
population structure, but the statistical analyses were flawed and the 
sampling schemes and relevance of the population attributes used for 
these studies have also been criticized. The strength of the 
discreteness, and the details of which areas were reported to differ 
from other areas could not be relied upon until more rigorous sampling 
and analysis can be performed.
    Genetic information, when obtained from representative samples of 
animals in their breeding locales is likely to be a more direct 
reflection of population structure, and for that reason has become a 
common and important tool for supplementing or replacing morphometrics 
and other measures in studies of both phylogeny and population 
structure. Genetic data on population structure do exist from four 
studies of spotted seals. Mitochondrial DNA were examined from 247 
spotted seals, and micro-satellite DNA were examined at 18 loci from 
207 spotted seals, all sampled in the Chukchi Sea, Bering Sea, 
northwest Pacific Ocean (i.e., off the southeast coast of the Kamchatka 
Peninsula), Sea of Okhotsk, Sea of Japan, and Yellow Sea. The 
preliminary conclusions drawn from analyses of both types of marker 
supported a phylogeographic break between seals of the Yellow Sea-Sea 
of Japan region, and seals of the Okhotsk, Bering, and Chukchi seas 
(O'Corry-Crowe and Bonin, 2009). Although the mtDNA haplotypic 
diversity was very high, that marker indicated that some structure may 
also exist between the Sea of Okhotsk and the Bering-Chukchi Sea seals. 
The nuclear markers on the other hand, did not support that structure, 
and even indicated that some gene flow may occur between the Yellow 
Sea-Sea of Japan sampling region and the Okhotsk-Bering Chukchi 
sampling region. The BRT placed somewhat greater weight on the mtDNA 
results than the micro-satellite results, which militates in favor of a 
discreteness finding for the southern population and is an approach 
that would be conservative of genetic diversity.
    Genetic research found low nuclear genetic variability among 176 
spotted seals from Liaodong Bay, the primary breeding area in the 
Yellow Sea (Han et al., in press). This result was consistent with a 
previous report of low diversity in mtDNA haplotypes in this area. 
Moreover, a single base-pair insertion in the threonine tRNA gene was 
reported that was 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. 
Research also found high haplotypic diversity in mtDNA from 66 spotted 
seals sampled in three regions along the northern coasts of Hokkaido in 
autumn and winter. That study found no phylogenetic structure in the 
samples, and could not dismiss the possibility that spotted seals on 
the northwest Hokkaido coast during winter, in the far northeastern 
portion of the Sea of Japan, are part of the southern Sea of Okhotsk 
breeding concentration (Mizuno et al., 2003). This is currently the 
only information available on where in the Sea of Japan to place a 
boundary corresponding to the genetic break suggested by the micro-
satellite DNA study described above. Because no samples from the Tatar 
Strait have been included in genetics studies, and the samples from 
Hokkaido are not obviously distinct from Sea of Okhotsk samples, the 
population division with the most support from the genetics evidence is 
a line along 43[deg] N. latitude that divides the spotted seal range 
into a southern segment composed of the breeding concentrations of the 
Yellow Sea and Peter the Great Bay, and the remaining breeding areas 
(Tatar Strait, southern and northern Sea of Okhotsk, Karaginsky Gulf, 
Gulf of Anadyr, and eastern Bering Sea) making up a separate 
population.
    Although no single source of evidence provided unequivocal support 
for a division between the Bering Sea and the Sea of Okhotsk, the 
combined weight of evidence for discreteness found in the mtDNA 
results, and the strong potential that the Kamchatka Peninsula 
functions as a barrier between breeding populations, provides 
substantial support for designating the Bering Sea and Okhotsk spotted 
seals as separate DPSs. The BRT made this conclusion in the Status 
Review and we concur.
    We assessed the existence and implications of international 
governmental boundaries between these populations (see below), and 
determined that considerations of cross-boundary management and 
regulatory mechanisms do not outweigh or contradict the proposed 
divisions based on physical, physiological, ecological, and behavioral 
grounds. Several conservation efforts have been undertaken by foreign 
nations specifically to protect spotted seals. In 1978, Russia 
established the Far Eastern Marine Reserve in Russia's Peter the Great 
Bay. The islands of the Reserve provide protection from human 
disturbance and suitable haul-out sites for spotted seals. The vast 
majority of the Peter the Great Bay spotted seal population uses the 
Marine Reserve during the spring, particularly for breeding and 
molting. Protection of breeding and pupping areas resulting from the 
establishment of the Marine Reserve may have resulted in some growth of 
the population. However, this population is still vulnerable to other 
threats outside of the reserve, such as by-catch or poaching by 
fishermen. Other than a permit requirement for taking any marine 
mammal, there is apparently no special protection for spotted seals 
throughout the remainder of Russia.
    The South Korean government designated the spotted seal as a 
natural monument in 1982, an endangered species (criteria II) in 2004, 
and a protected species in 2007, while the Chinese government 
designated them as a protected species (criteria I) in 1988. In 1983, 
China's Liaoning provincial government banned the hunting of spotted 
seals, and in the early 1990s, two national protected areas were 
established for the protection of spotted seals in the Liaodong Bay 
area of China, including the Dalian National Spotted Seal Nature 
Reserve. However, as of 2004, no conservation action, public awareness 
or education programs have been carried out for the species in this 
region, and in 2006, the Dalian Nature Reserve's boundaries were 
adjusted to accommodate industrial development. So despite these 
protection efforts, the Liaodong Bay population continues to decline. 
There is no known information on spotted seals from North Korea, but it 
is unlikely that they are managed or protected there.
    Within the Bering Sea ice front, spotted seals move east and west 
between U.S. and Russian waters. When the ice retreats, some 
individuals move

[[Page 53687]]

to the Alaskan coast and others move to the Russian coast. Therefore, 
the seals in any breeding group cannot be considered to be subject 
solely to the management and regulatory mechanisms of either country, 
and a division of the population along this international boundary 
would not be logical. Within the Sea of Okhotsk, the spotted seal 
breeding concentrations are solely within Russian waters. Finally, the 
conservation status and management of habitat (e.g., designation of 
reserves) are sufficiently similar between the Liaodong Bay and Peter 
the Great Bay breeding concentrations that dividing them on the basis 
of the China-Russia-Korea boundaries is unwarranted. In summary, 
considerations of cross-boundary management and regulatory mechanisms 
do not outweigh or contradict the divisions proposed above based on 
physical, physiological, ecological, and behavioral grounds.

Evaluation of Significance

    Here evaluate the significance of each of the 3 potential DPSs 
identified above, considering each of the 4 factors as described above. 
In the Southern potential DPS, some unknown portion of the Yellow Sea 
breeding concentration whelps and nurses on shore and all or nearly all 
seals breeding in Peter the Great Bay apparently now do so as well. 
Pups born ashore have been observed to enter the water prior to weaning 
in Peter the Great Bay, 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. The 
spotted seal is the only phocid inhabiting the waters of the Yellow Sea 
and Sea of Japan (the southern potential DPS), whereas 4 to 5 phocid 
species overlap with the range of spotted seals in the Sea of Okhotsk 
and Bering Sea.
    Loss of the Okhotsk DPS would result in a substantially large, 
central gap in the range of the species. This DPS contains three 
breeding areas extending over a vast area. Similarly, the loss of 
either the Southern or Bering Sea DPS would result in a substantial 
contraction of the overall extent of the overall extent of the range. 
The Bering Sea DPS contains three breeding areas, and the southern DPS 
contains two breeding areas. Both DPSs cover vast areas.
    None of the three segments under consideration for designation as 
DPSs could be considered to be the sole surviving naturally occurring 
unit of the taxon. All three segments are naturally occurring and the 
species is thought to inhabit its entire historic range.
    The southern segment was distinguished from the other 2 potential 
DPSs primarily on the basis of its genetic composition. The genetic 
markers used for these studies are typically assumed to be selectively 
neutral, so the results do not indicate whether there is genetic 
variation between the populations that could be ecologically or 
evolutionarily significant.
    In sum, the Southern, Okhotsk, and Bering Sea population segments 
are discrete because they are markedly separated from other populations 
of the same taxon as a consequence of physical, physiological, 
ecological, and behavioral factors. They are significant because the 
loss of any of the three DPSs would result in a significant gap in the 
range of the taxon and they differ markedly from each other in genetic 
characteristics, particularly the Southern population. Further, the 
southern DPS exists in an ecological setting that is unusual or unique 
for the taxon. We are therefore proposing designation of these units as 
the Southern, Okhotsk, and Bering DPSs of the spotted seal (Figure 1).
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP20OC09.014

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    Figure 1. Eight spotted seal breeding concentrations are currently 
recognized: two in the Southern Distinct Population segment (DPS), 
three in the Okhotsk DPS, and three in the Bering DPS. The dotted green 
lines are drawn along 43[deg] N latitude and 157[deg] E longitude, 
which were considered to be the boundaries between the southern and 
Okhotsk DPSs and the Okhotsk and Bering DPSs, respectively.

Spotted Seal Status

    No accurate range-wide abundance estimates exist for spotted seals. 
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 
four decades to a minimum of 2,269 in 1979, before increasing again to 
about 4,500 in 1990, Despite these 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 Sea of Japan supports two breeding areas for spotted seals: the 
Tatar Strait and Peter the Great Bay. A 1970 survey reported an 
estimate of 8,000-11,000 spotted seals in the Tatar Strait. No other 
estimates were found for this area. Historic harvest records suggest 
that there were probably several thousand spotted seals in Peter the 
Great Bay 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.
    The Sea of Okhotsk population was estimated at 130,000 spotted 
seals based on aerial surveys during 1969-1970, and was reported to 
have stabilized at very low levels after years of intensive commercial 
harvests occurring from the 1930s until 1969. A 2000 report on 
abundance estimates the population ranging in size between 67,000 and 
268,000 animals, and stated that the multi-year average for this period 
was 180,000-240,000 seals. That report also suggested that the highest 
estimates in the mid to late 1970s (250,000-270,000) were closer to the 
true abundance level because survey coverage was more complete during 
that time. In consideration of these reported abundance estimates, we 
believe the current population of spotted seals in the Okhotsk DPS is, 
conservatively, in excess of 100,000 individuals.
    Despite repeated attempts to survey the Bering Sea pack ice over 
the past three decades, there are no current reliable abundance 
estimates for spotted seals in the Bering Sea. A 1969 aerial survey 
reported an estimate of 135,000 spotted seals in the Bering Sea, and 
suggested that spotted seal numbers had remained stable since 1964. 
Extensive surveys of the Bering Sea ice field in 1987 produced a 
minimum estimate of 100,000 spotted seals. The National Marine Mammal 
Laboratory (NMML) conducted aerial surveys of the Bering Sea in 2007. 
Those data are currently being analyzed to update the current estimates 
of abundance for the central and eastern Bering Sea. The current 
estimate of abundance in the areas surveyed within the central and 
eastern Bering Sea is 101,568 spotted seals.

Extinction Risk Assessment

    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. These factors are discussed below with each DPS discussed 
sequentially under each factor. 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 spotted seals 
stems from the likelihood that their sea ice habitat has been modified 
by 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 major concern, related 
by the common driver of carbon dioxide (CO2) emissions, 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 each spotted 
seal DPS requires a focus on projections of specific regional 
conditions, especially sea ice.
    Regional sea ice thickness is difficult to quantify with current 
sensing methods, though there is evidence for thinning ice in the 
Northern Hemisphere. Sea ice in the Arctic Ocean declined during the 
past several decades, from both thinning of undeformed ice and loss of 
thick ridged ice. In contrast to the Arctic Ocean, where sea ice is 
present year-round, the ice in the sub-Arctic seas of the spotted seal 
breeding range is seasonal in nature. There are no reliable time series 
of ice thickness for the spotted seal range in the Bering Sea and Sea 
of Okhotsk. The part of the thinning process in the Arctic that has 
been due to loss of multi-year ice is not a concern for these sub-
Arctic seas that form only annual ice. Shorter ice-forming seasons in 
the future may produce thinner ice in situ than in the past, but a 
broad range of floe thicknesses would still be expected due to rafting 
and ridging processes.
    Despite the recent dramatic reductions in Arctic Ocean multi-year

[[Page 53690]]

ice extent during summer, the seasonal ice in the Bering Sea is 
expected to continue forming annually during the winter for the 
foreseeable future. Although this projection is based on the best 
scientific and commercial information available, we recognize that it 
is fraught with uncertainty. We expect that the sea ice regime there 
will continue to be subject to large interannual variations in extent 
and seasonal duration, as it has throughout recorded history. There 
will likely be more frequent years in which ice coverage is reduced, 
resulting in a decline in the long-term average ice extent, but Bering 
Sea spotted seals will likely continue to encounter sufficient ice to 
support stable population growth rates for the foreseeable future. Much 
of the sea ice in the eastern and northern Bering Sea and the Chukchi 
Sea during spring is very densely compacted and heavily ridged, such 
that spotted seals are not found there in significant numbers during 
the breeding season. A decline in ice extent and thickness could 
conceivably result in new breeding habitat in such areas in the future, 
perhaps mitigating losses of previously-used habitat. Even if sea ice 
were to vanish completely from the Bering Sea, this population of 
spotted seals may adjust by relocating their breeding grounds to follow 
the northward shift of the annual ice front into the Chukchi Sea.
    For the Sea of Okhotsk (Okhotsk DPS), and the Sea of Japan and 
Yellow Sea (Southern DPS), 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 contain greater uncertainty than 
the projections for the Bering Sea.
    In the Southern DPS, ice thickness in the BoHai Sea and Peter the 
Great Bay is likely to depend more on the thickness of in situ 
formation because smaller wind fetches and shorter durations of ice 
cover would be expected to cause less ridging and rafting than in the 
Bering Sea and Sea of Okhotsk. Thus, a decline in ice thickness may be 
of consequence to spotted seals in the Southern DPS, but is not likely 
to be a significant concern for the Okhotsk or Bering DPSs.
    We believe the loss of sea ice habitat is a significant factor with 
respect to the southern DPS of the spotted seal, even considering they 
have shown the ability to adapt to terrestrial sites. We do not find 
this factor to be significant in terms of the Okhotsk or Bering DPSs.
    Ocean acidification, a result of increased 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 do not believe that this threat will 
cause any of the DPSs to become in danger of extinction within the 
foreseeable future.
    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, 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.

Over-utilization for commercial, subsistence, recreational, scientific, 
or educational purposes

    Recreational, scientific, and educational utilization of spotted 
seals is currently at low levels and is not projected to increase to 
significant threat levels in the foreseeable future for any of the 
DPSs. Commercial harvests by Soviet sealers were at moderate levels 
from the mid-1950s to the early 1990s, typically not exceeding 10,000 
or 15,000 at the most, annually. Russia has established harvest quotas 
up to 14,800 for spotted seals in recent years, though the 2008 quota 
was 6,200 and no quota was listed for 2009. However, the actual harvest 
has likely been less than a couple thousand individuals per year 
because it is not currently, and not likely to become, economically 
viable due to lack of a significant market for skins or other parts. 
Subsistence harvest levels have been moderate historically in both the 
Bering and Okhotsk DPS, and are not anticipated to increase 
significantly. Therefore this factor was rated low for all three DPSs.

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 the 
population-level impact is unknown. There has been speculation about 
increased risk of outbreaks of novel pathogens or parasites in marine 
systems as climate-related shifts in species distributions lead to new 
modes of transmission. However, no examples directly relating climate 
change to increased severity or prevalence of disease have been 
documented. Some types of diseases may decrease in severity or 
prevalence with increasing temperature. Therefore, it is not currently 
possible to predict the consequences of climate warming on disease or 
pathogen biodiversity in general or on spotted seal viability in 
particular.
    There is little or no direct evidence of significant predation on 
spotted seals and they are not thought to be a primary prey of any 
predators. Polar bears and killer whales may be the most likely 
opportunistic predators in the current sea ice regime, but walruses 
could pose a potentially greater risk if reduced sea ice conditions 
force this ice-associated species into closer proximity with spotted 
seals in the future. Also, 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. This factor was rated low for all three DPSs.

 Inadequacy of existing regulatory mechanisms

    There is little evidence that inadequacy of existing regulatory 
mechanisms currently poses a significant threat to any of the spotted 
seal DPSs. In other words, while there are no regulatory mechanisms 
that effectively address reductions in sea ice habitat or ocean 
acidification, we do not expect this shortcoming to result in 
population-level impacts to any of the DPSs for the foreseeable future. 
Indeed, our analysis of potential threats does not assume the 
existence, now or in the foreseeable future, of any regulatory 
mechanism that would mitigate the effects of each threat.
    Inadequacy or lack of stringency of mechanisms to regulate oil and 
gas activities in the Yellow Sea and Sea of

[[Page 53691]]

Okhotsk could contribute to the cumulative risk faced by the Southern 
and Okhotsk DPSs. 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. In light of the infrequency of 
those events and the absence of a declining population trend despite 
existing oil and gas activities, we believe such activities will not 
place or contribute to placing the spotted seal in danger of extinction 
in the foreseeable future in any of the three DPSs. Therefore this 
factor was rated low for all three DPSs.

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. 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 PCBs and 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 (polybrominated diphenyl ethers); as well as DDTs 
(dichloro-diphenyltrichloroethanes), PCBs (polychlorinated biphenyls) 
and 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 
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.
    As previously discussed, oil and gas activity has the potential for 
adverse impacts to spotted seals. Currently, there are no active 
offshore oil and gas developments in the U.S. Bering or Chukchi Seas. 
Therefore, the current risk for spotted seals to be impacted by an oil 
spill in U.S. waters is very low. 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 2.8 million gallons (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 spotted seal population of any DPS in the foreseeable 
future is low, the potential impacts from such a spill could be 
significant, particularly if subsequent clean-up efforts were 
ineffective. The potential impacts would be greatest when spotted seals 
are relatively aggregated. For example, spotted seals in the Okhotsk 
Sea move to coastal haul-out sites after the sea ice melts in July. One 
survey reported 10,000 individuals along the Sakhalin Island coast, 
30,000 individuals along the continental coast of Sea of Okhotsk, and 
20,000 individuals on the western Kamchatka coast. Therefore, an oil 
spill along these coasts could have significant effects on local 
spotted seal populations. Such an event in the Bohai Sea could be 
particularly devastating to the Southern DPS of spotted seals.
    It is important to evaluate the effects of anthropogenic 
perturbations, such as oil spills, in the context of historical data. 
Without historical data on distribution and abundance, it is not 
possible to measure the impacts of an oil spill on spotted seals. 
Population monitoring studies need to be implemented in areas where 
significant industrial activities are likely to occur, so that it will 
be possible to compare future impacts with historical patterns and thus 
determine the magnitude of potential effects.
    In summary, the threats to spotted seals from oil and gas 
activities are greatest where these activities converge with coastal 
aggregations of the species. In particular, the spotted seals in the 
Bohai Sea and the Sea of Okhotsk in the Okhotsk DPS are most vulnerable 
to oil and gas activities, primarily due to potential oil spill 
impacts. 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 terms of their status, 
causing them to be at risk of becoming endangered within the 
foreseeable future. However, we do not find that oil and gas activities 
within the range of the Okhotsk or Bering DPSs are likely to place or 
contribute to placing those spotted seals in danger of extinction in 
the foreseeable future. Therefore this factor was rated as high for the 
southern DPS and moderate for the Okhotsk and Bering DPSs.

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 act and our policy implementing this provision (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.

International Actions and Agreements

    Several conservation efforts have been undertaken by foreign 
nations specifically to protect spotted seals. These include: (1) 
Russia has established the Far Eastern Marine Reserve in Russia's Peter 
the Great Bay. 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. However, in 2006, the Dalian Nature 
Reserve's boundaries were adjusted to accommodate industrial 
development; (3) Spotted seals are listed in the Second

[[Page 53692]]

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) Spotted seals are categorized as Critically Endangered 
in the Yellow Sea, but this may be a misinterpretation; (5) The spotted 
seal is designated a vulnerable species under the Wildlife Conservation 
Act of China. However, as of 2004, no conservation action, public 
awareness or education programs have been carried out for the species 
in this region; and (6) 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 most 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 use a scientifically rigorous approach 
to determine species' risks of extinction. Because current abundance 
and population trends are unknown, the spotted seal is currently 
classified as ``Data Deficient'' on the IUCN Red List. The Red List 
assessment also suggests that reductions of the spotted seal population 
could exceed 30% in the next 30 years due to predicted reductions in 
its sea ice habitat, which would then meet the IUCN criterion for 
``Vulnerable''.
    There are no known regulatory mechanisms that effectively address 
reductions in sea ice habitat at this time. The primary international 
regulatory mechanisms addressing greenhouse gas 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 greenhouse gas emissions in the years 
beyond 2012. The United States, although a signatory to the Kyoto 
Protocol, has not ratified it; therefore, the Kyoto Protocol is non-
binding on the United States.

Domestic Regulatory Mechanisms

    Several laws exist that directly or indirectly promote the 
conservation and protection of spotted seals. These include the Marine 
Mammal Protection Act of 1972, the National Environmental Policy Act, 
the Outer Continental Shelf Lands Act, the Coastal Zone Management Act, 
and the Marine Protection, Research and Sanctuaries Act.
    There are currently no legal mechanisms regulating greenhouse gases 
in the United States. Greenhouse gas emissions have not been 
effectively regulated under the United State's Clean Air Act (CAA). In 
2003, the EPA rejected a petition urging it to regulate greenhouse gas 
emissions from automobiles under the CAA. In 2007, the Supreme Court 
overturned the EPA's refusal to regulate these emissions and remanded 
the matter to the agency for further consideration (Mass. v. EPA, 549 
U.S. 497 (2007)). On April 17, 2009, the EPA issued a proposed finding 
that greenhouse gases contribute to air pollution that may endanger 
public health and welfare. The proposed finding identified six 
greenhouse gases that pose a potential threat. However, the proposed 
finding does not include any proposed regulations. Before taking any 
steps to reduce greenhouse gases under the CAA, the EPA must conduct an 
appropriate process and consider public comment on the proposed 
finding.
    At this time, NMFS is 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. NMFS co-manages 
spotted seals with the Ice Seal Committee (ISC). The ISC is an Alaska 
Native Organization dedicated to conserving seal populations, habitat, 
and hunting in order to help preserve native cultures and traditions. 
The ISC co-manages ice seals with NMFS by monitoring subsistence 
harvest and cooperating on needed research and education programs 
pertaining to ice seals. NMFS's National Marine Mammal Laboratory is 
engaged in an active research program for spotted seals. The 
information from new research will be used to enhance our understanding 
of the risk factors affecting spotted seals, thereby improving our 
ability to develop effective management measures for the species.
    Based on our analysis of both international and domestic 
conservation efforts there is no certainty that these efforts will be 
effective in altering the status of any of the DPSs of spotted seals. 
Therefore, this analysis does not affect our determination of the 
extinction risk or ESA listing status of these DPSs.
    Based on the Extinction Risk Assessment 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 ,and 
the Bering and Okhotsk DPSs are not in danger of extinction nor of 
becoming endangered within the foreseeable future, and do not qualify 
for listing.

Significant Portion of Their Range

    The ESA defines ``endangered'' and ``threatened'' in terms of both 
the entirety of the species (as defined under ESA to include DPSs) and 
relative to a ``significant portion of its range''. That is, if a 
species is found to be threatened or endangered within a significant 
portion of its range, the entire species may be listed at that level. 
Here we consider whether the spotted seal DPSs, treated as ``species'' 
for these purposes, should be listed as threatened or endangered based 
on their condition throughout a significant portion of their range. 
Having already determined from our extinction risk assessment and PECE 
policy analysis that the Southern DPS qualifies as a threatened species 
and the Bering and Okhotsk DPSs do not qualify for listing, we 
considered whether any subdivision of these DPS's range could be 
identified. If we found such a subdivision, we then considered the 
status of the spotted seals within that subdivision relative to the 
wider DPS. If we found that those seals in the subdivision may qualify 
as threatened or endangered, the subdivision was then assessed as to 
whether it could constitute a significant portion of the range of the 
DPS.
    As discussed above, there are few data to comprehensively identify 
the actual range of the spotted seal. The species is known to travel 
over 1,000 km in foraging trips, indicating there may be considerable 
overlap in the range of the three DPSs. For purposes of this analysis, 
we considered a more functional range as suggested by the status review 
and based on breeding populations. We considered subdivisions within 
the range of each DPS based on any known biological or physical basis 
using information presented in the status review. This

[[Page 53693]]

indicated that, while certain geographical features could be identified 
as having significance in defining range, these features were pertinent 
to the identification of the three DPSs and were not of sufficient 
resolution to define any subdivision within any of the DPSs. The status 
review does, however, identify eight recognized breeding areas for the 
spotted seals. Each of these areas has some geographical distinction 
and many had significant biological distinction in terms of genetic 
information or behavior. Generally, spotted seals display a high degree 
of fidelity to breeding sites, making these areas a reasonable 
subdivision of the range of each DPS for this analysis.
    We next considered whether the population of spotted seals within 
each of these breeding areas might be threatened or endangered. The 
Bering DPS contains the Bering Sea, Gulf of Anadyr, and Karaginsky Bay 
breeding areas. The best scientific and commercial information 
available suggests the Bering DPS exceeds 100,000. No trend data are 
available. The total Bering Sea breeding area is reported to have a 
spotted seal population of approximately 100,000. We have no abundance 
information for the Gulf of Anadyr or Karaginsky Bay breeding areas. 
While we lack specific information on each of these subdivisions, the 
status review concluded that the Bering DPS has persisted at a large 
abundance level over the past decades with no extreme fluctuations. The 
consequences of the potential threats to the Bering Sea population, 
including from climate change, have been addressed in previous sections 
of this proposed rule, and we have no information that would lead to a 
different conclusion for any of the specific subdivisions of the Bering 
DPS. Therefore, the spotted seal is not considered to be threatened or 
endangered within any of the Bering DPS subdivisions. Accordingly, even 
if we were to assume that each subdivision constituted a significant 
portion of the range, the Bering DPS of the spotted seal would not be 
in danger of extinction throughout a significant portion of its range.
    The Okhotsk DPS contains the breeding areas Tatar Strait, Southwest 
Sea of Okhotsk and the Northeast Sea of Okhotsk. The best scientific 
and commercial information available indicates that there are 
approximately 100,000 spotted seals in this DPS. The Tatar Strait 
population was estimated at 8,000-11,000 in 1968-1969, and no other 
estimates were found. Like the Bering DPS, there are large gaps in our 
information for the Okhotsk DPS. The status review summarized the DPS 
as numbering around 100,000 individuals; thus demographic and genetic 
risks should not be a concern. This DPS is at some risk due to climate 
change and development (other natural or human factors affecting the 
species' continued existence), and those risks may exceed those of the 
Bering DPS. Nonetheless, we have concluded the Okhotsk DPS is not 
currently in danger of extinction nor likely to become so in the 
foreseeable future. In the absence of current information on the 
abundance levels or threats that may occur within each of the 
subdivisions of this DPS, we have no basis to conclude that the spotted 
seal may be considered threatened or endangered in any of those 
specific subdivisions. Accordingly, there is no information to suggest 
that this DPS is in danger of extinction throughout a significant 
portion of its range.
    We have identified the southern DPS to include breeding areas in 
Liaodong Bay and Peter the Great Bay. Both of these subdivisions are 
subject to high levels of shipping and have actual or potential value 
for oil production presenting the potential for oil spills. However 
there have been no significant adverse effects observed due to oil and 
gas development to date, and it is difficult to predict future 
consequences because of a lack of specific information on where and how 
these activities would occur. We would rate these factors as low for 
both subdivisions.
    Historic abundance in Peter the Great Bay is estimated at several 
thousand spotted seals, while the most current abundance figures are 
about 2,500, producing about 300 pups annually. The majority of these 
seals are now reproducing on shore rather than on ice. Because spotted 
seals in Peter the Great Bay do not appear to be significantly reduced 
and are breeding successfully on land (albeit at some increased risk 
due to the use of these terrestrial sites), we do not find this 
subdivision would warrant listing as threatened or endangered. 
Consideration of the other factors described in the Extinction Risk 
Analysis did not indicate the spotted seal population of the Peter the 
Great subdivision is not in danger of extinction nor of becoming 
endangered within the foreseeable future, and would not qualify for 
listing.
    The most recent abundance estimate for the Liaodong Bay population 
of spotted seals is 800, which is significantly lower that the historic 
estimates (c. 1940) of over 8,000. The decline has been attributed to 
over hunting and habitat destruction (Woo and Yoo, 2004), and spotted 
seal mortalities continue in this subdivision due to fisheries by-
catch, direct killing by commercial fisheries, and poaching. It is 
expected that seasonal ice will rarely form in this area by about the 
middle of the 21st century. While spotted seals appear to have some 
capability to accomplish breeding and molting on shore, pinnipeds are 
generally not well protected from predation when they are constrained 
by the necessity of maintaining a mother-pup bond. Also, suitable space 
for spotted seals to breed on land is likely limited to offshore rocks 
and small islands without human habitation, which may be relatively 
scarce here. It is clear that the Liaodong Bay spotted seals are 
already significantly reduced from historical levels, and if reduced 
further they may begin to be at significant risk from small-population 
threats such as demographic stochasticity and genetic problems. Based 
on these considerations, we find the Liaodong Bay spotted seals to be 
in danger of becoming extinct within the foreseeable future, and to be 
a threatened species. Because this finding is consistent with our 
listing recommendation for the southern DPS, no further analysis is 
necessary regarding whether Liaodong Bay constitutes a significant 
portion of this DPS range.
    In summary, an analysis of the significant portions of the range of 
the identified DPSs of spotted seals does not lead to any changes from 
our listing recommendations.

Listing Determinations

    We have reviewed the status of the spotted seal, considering the 
best scientific and commercial data available. We have reviewed threats 
and other factors to the three DPSs, 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:
    Okhotsk DPS: (1) Although accurate abundance and trend data are not 
available for this DPS, the best scientific and commercial data 
available indicates it contains more than 100,000 individuals with no 
strong evidence of a declining trend; (2) It is likely that reductions 
will occur in both the timing and extent of sea ice for this DPS; 
however, these changes cannot be accurately modeled and the 
consequences of diminished sea ice to

[[Page 53694]]

the seals in these areas is speculative. For example, spotted seals 
have demonstrated an ability to adapt to terrestrial sites, and sea ice 
in the Sea of Okhotsk often extends past productive shelf waters. 
Therefore, it is possible that any diminished extent of ice here will 
place the ice edge over more productive feeding habitat for the seals. 
Consequently, despite the expectation of a gradual decline, the Okhotsk 
DPS is not presently in danger of extinction nor likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. We conclude that listing them as 
threatened or endangered under the ESA is not warranted.
    Bering DPS: (1) Although accurate abundance and trend data are not 
available for these DPSs, the best scientific and commercial data 
available indicates that each DPS contains more than 100,000 
individuals with no strong evidence of a declining trend; (2) It is 
likely that reductions will occur in both the timing and extent of sea 
ice in the range of these DPSs; however, these changes cannot be 
accurately modeled and the consequences of diminished sea ice to the 
seals in these areas is speculative. While the effects of climate 
change may decrease suitable habitat for spotted seals in the south, 
such losses may be offset, in part, by increases in suitable habitat in 
the north. Even if sea ice were to vanish completely from the Bering 
Sea, this population of spotted seals may adjust by relocating their 
breeding grounds to follow the northward shift of the annual ice front 
into the Chukchi Sea. Therefore, the Bering DPS is not presently in 
danger of extinction nor likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range. We conclude that listing them as threatened or endangered under 
the ESA is not warranted.
    Southern DPS: (1) Abundance estimates indicate the Liaodong Bay 
spotted seals have been significantly reduced from historic numbers, 
while the Peter The Great population appears to be near historic 
numbers and stable; (2) projected warming by mid-century indicates 
reliable ice formation will cease to occur in this region; (3) there 
already is significant use of terrestrial habitat for breeding and 
whelping by spotted seals in this DPS; (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; (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, the Southern DPS of spotted seals is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range and we propose to 
list this DPS 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). We are proposing protective 
regulations pursuant to section 4(d) for the southern DPS 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.

Our Policies on Endangered and Threatened Wildlife

    On July 1, 1994, we and FWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270) and 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). We must also follow 
the Office of Management and Budget Policy for peer review as described 
below.

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. Prior to a 
final listing, we will solicit the expert opinions of three qualified 
specialists, concurrent with the public comment period. Independent 
specialists will be selected from the academic and scientific 
community, Federal and state agencies, and the private sector.
    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 (Public Law 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. To satisfy our requirements 
under the OMB Bulletin, we are obtaining independent peer review of the 
draft status report, which supports this proposal to list three DPSs of 
rockfish in Puget Sound and Georgia Basin as threatened or endangered; 
all peer reviewer comments will be addressed prior to dissemination of 
the final report and publication of the final rule.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    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 will identify, to the extent known at the time of 
the final rule, 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 of the jurisdiction of the United States, we are 
presently unaware of any activities that could result in violation of 
section 9 of the ESA.

Critical Habitat

    Critical habitat is not to be designated within foreign countries 
or in other areas outside of United States jurisdiction (50 CFR 
424.12(h)). Because the known distribution of the Southern DPS occurs 
in areas outside the

[[Page 53695]]

jurisdiction of the United States, no critical habitat will be 
designated as part of the proposed listing actions.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary to promptly hold at 
least one public hearing if any person requests one within 45 days of 
publication of a proposed rule to list a species. Such hearings provide 
the opportunity for interested individuals and parties to give 
opinions, exchange information, and engage in a constructive dialogue 
concerning this proposed rule. We encourage the public's involvement in 
this matter. If hearings are requested, details regarding location(s), 
date(s), and time(s) will be published in a forthcoming Federal 
Register notice.

Public Comments Solicited

    Relying on the best scientific and commercial information 
available, we exercised our best professional judgment in developing 
this proposal to list the southern DPS of spotted seals. To ensure that 
the final action resulting from this proposal will be as accurate and 
effective as possible, we are soliciting comments and suggestions from 
the public, other governmental agencies, the governments of China, 
Japan, and Russia, the scientific community, industry, and any other 
interested parties. Comments are encouraged on this proposal as well as 
on the Status Review (See DATES and ADDRESSES). We will review all 
public comments and any additional information regarding the status of 
these DPSs and will complete a final determination within 1 year of 
publication of this proposed rule, as required under the ESA. Final 
promulgation of the regulation(s) will consider the comments and any 
additional information we receive, and such communications may lead to 
a final regulation that differs from this proposal.

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 rule is exempt from review under Executive Order 12866. This 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 costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this 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 proposed listing actions would not have 
tribal implications nor 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 website 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, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 223 is 
proposed to be amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation of part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).
    2. In Sec.  223.102, paragraph (a)(3) is added to read as follows:

Sec.  223.102  Enumeration of threatened marine and anadromous species.

    (c) * * *

[[Page 53696]]

----------------------------------------------------------------------------------------------------------------
                      Species\1\
-------------------------------------------------------                   Citation(s) for      Citation(s) for
                                          Scientific     Where Listed         listing          critical habitat
              Common name                    name                         determination(s)      designation(s)
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
(3) Southern DPS - Spotted Seal           Phoca largha    The southern         [INSERT FR CITATION           NA
                                                          DPS includes         & DATE WHEN
                                                          all breeding      PUBLISHED AS A
                                                        populations of         FINAL RULE]
                                                         spotted seals
                                                           south of 43
                                                         degrees north
                                                           latitude in
                                                           the Pacific
                                                                Ocean.
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

    3. In Subpart B of part 223, Add Sec.  223.211 to read as follows:

Sec.  223.211  Southern DPS of Spotted Seal.

    Prohibitions. The prohibitions of section 9(a)(1)(A) through 
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species 
shall apply to the Southern Distinct Population Segment of the Spotted 
Seal listed in Sec.  223.102(a)(3).
[FR Doc. E9-25198 Filed 10-19-09; 8:45 am]
BILLING CODE 3510-22-S
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