[Federal Register: September 10, 2009 (Volume 74, Number 174)]
[Proposed Rules]
[Page 46548-46551]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se09-14]
[[Page 46548]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R7-ES-2009-0051; 9221050083]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the Pacific Walrus as Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the Pacific walrus (Odobenus
rosmarus divergens) as threatened or endangered under the Endangered
Species Act of 1973, as amended (Act), and to designate critical
habitat. Following a review of the petition, we find that the petition
presents substantial scientific or commercial information indicating
that listing this subspecies may be warranted. Therefore, with the
publication of this notice, we are initiating a status review to
determine if listing the Pacific walrus is warranted. To ensure that
the status review is comprehensive, we are soliciting scientific and
commercial data and other information regarding this subspecies.
DATES: We made the finding announced in this document on September 10,
2009. To allow us adequate time to conduct this review, we request that
you send us information on or before November 9, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for docket FWS-R7-ES-2009-0051 and then follow the instructions
for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-ES-2009-0051; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all information received on http://
www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more details).
FOR FURTHER INFORMATION CONTACT: Rosa Meehan, Alaska Regional Office,
Marine Mammals Management, U.S. Fish and Wildlife Service, 1011 East
Tudor Road, Anchorage, AK 99503; by telephone (800-362-5148); or by
facsimile (907-786-3816). Persons who use a telecommunications device
for the deaf (TDD) may call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information indicating that listing a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting
information concerning the status of the Pacific walrus (Odobenus
rosmarus divergens). We request information from other concerned
governmental agencies, Native American Tribes, the scientific
community, industry, or any other interested parties concerning the
status of the Pacific walrus. We are seeking information regarding:
(1) Information relevant to the factors that are the basis for
making a listing determination for a species under section 4(a) of the
Act (16 U.S.C. 1531 et seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(2) The historical and current status of the population, including
distribution, abundance, trends in abundance, population dynamics,
taxonomy, and stock structure.
(3) Habitat selection and use, including both sea-ice and
terrestrial haulouts; disturbance at haulouts; food habits; and effects
of disease, competition, and predation on Pacific walruses.
(4) The effects of climate and environmental changes, sea-ice
changes, and ocean acidification on the distribution, abundance, and
life history of Pacific walruses and their principal prey over the
short and long term.
(5) Information on the effects of other potential threat factors,
including, but not limited to, oil and gas exploration and development,
commercial fishing and shipping, contaminants, and hunting.
(6) Information on the effects of ongoing conservation measures for
the species and its habitat on the distribution and abundance of
Pacific walruses and their principal prey over the short and long term.
If we determine that listing the Pacific walrus is warranted, it is
our intent to propose critical habitat to the maximum extent prudent
and determinable at the time we propose to list the species. Therefore,
with regard to areas within the geographical range currently occupied
by the Pacific walrus, we also request data and information on what may
constitute physical or biological features essential to the
conservation of the species, where these features are currently found,
and whether any of these features may require special management
considerations or protection. In addition, we request data and
information regarding whether there are areas outside the geographical
area occupied by the species that are essential to the conservation of
the species. Please provide specific comments and information as to
what, if any, critical habitat you think we should propose for
designation if the species is proposed for listing, and why such
habitat meets the requirements of the Act.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be informative to us
in making a determination, as section 4(b)(1)(A) of the Act directs
that determinations as to whether any species is a threatened or
endangered species must be made ``solely on the basis of the best
scientific and commercial data available.'' Based on the status review,
we will issue a 12-month finding on the petition, as provided in
section 4(b)(3)(B) of the Act.
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this personal identifying
information from public review. However, we cannot guarantee that we
will be able to do so. We will post all hardcopy submissions on http://
www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be
[[Page 46549]]
available for public inspection on http://www.regulations.gov, or by
appointment during normal business hours at the Alaska Regional Office
(see FOR FURTHER INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly commence a status review of the species.
On February 8, 2008, we received a petition dated February 7, 2008,
from the Center for Biological Diversity requesting that we list the
Pacific walrus as threatened or endangered under the Act and that we
designate critical habitat. The petition clearly identified itself as
such and included the requisite identification information for the
petitioner, as required by 50 CFR 424.14(a). We evaluated the immediacy
of possible threats to the Pacific walrus and determined that emergency
listing was not warranted. In a letter to the petitioner dated April 9,
2008, we informed the petitioner that all remaining available funds in
the listing program for Fiscal Year (FY) 2008 had already been
allocated to the Service's highest priority listing actions and that no
listing funds were available to further evaluate the walrus petition in
FY 2008. In the case of Center for Biological Diversity v. U.S. Fish
and Wildlife Service, et al. (3:08-cv-00265-JWS), the plaintiff filed a
complaint for declaratory judgment and injunctive relief challenging
the failure of the Service to make a 90-day finding on its petition to
list the Pacific walrus, under section 4(b)(3) of the Act (16 U.S.C.
1533(b)(3)) and the Administrative Procedure Act (5 U.S.C. 706(1)). The
complaint was filed in U.S. District Court for the District of Alaska
on December 3, 2008. On May 18, 2009, a settlement agreement between
the Center for Biological Diversity and the Service was approved by the
court. This agreement requires us to submit our 90-day finding on the
petition to the Federal Register by September 10, 2009. If we find that
the petition presents substantial information that listing may be
warranted, we must submit our 12-month finding to the Federal Register
by September 10, 2010.
Species Information
The family Odobenidae is represented by a single modern species,
Odobenus rosmarus, of which two subspecies are generally recognized:
The Atlantic walrus (O. r. rosmarus) and the Pacific walrus (O. r.
divergens). The two subspecific pinnipeds occur in geographically
isolated populations. The Pacific walrus is a large, heavy-bodied
pinniped that has thick, rough, creased skin; a wide head and muzzle;
small, protruding eyes; hundreds of forward-facing, short, stiff,
vibrissae, and upper canine teeth that develop into long tusks
(Jefferson et al. 2008, pp. 376-377).
Pacific walrus use floating sea ice as a substrate for birthing and
nursing calves, for resting, for isolation from predators, and for
passive transport to new feeding areas (Fay 1974, pp. 393-394). Pacific
walrus is thus identified as an ice-associated species. They range
throughout the continental shelf waters of the Bering and Chukchi Seas
and can be found in low numbers in the East Siberian Sea and the
Beaufort Sea. In winter and early spring, walruses concentrate in the
Bering Sea pack ice where open leads, polynyas, or thin ice allow
access to water (Fedoseev 1982, p. 2 of translation; Fay 1982, p. 21).
During spring, most of the population, including females and
calves, migrates from the Bering Sea into the Chukchi Sea, where they
form mixed groups along the southern edge of the pack ice. As summer
sea ice recedes, walruses may haul out on shore on Wrangel and other
islands and along the Chukchi Sea coast. The number of walruses using
coastal haulouts in Chukotka are highly variable among years and
seasons (see Fay et al. 1984 for summary up through the 1970s, pp. 270-
271). Many adult males remain in the Bering Sea for the summer, using
coastal haulout sites in the Gulf of Anadyr, Bering Strait region, and
in Bristol Bay (Fay 1982, p. 14). In the fall, walruses that summered
in the Chukchi Sea follow the formation of sea ice as they migrate
south through the Bering Strait and back into the Bering Sea.
Walruses feed on a broad array of benthic invertebrate prey,
including sea anemones, worms, sea cucumbers, tunicates, snails, and
clams (Sheffield et al. 2001, p. 311). Occasionally, walruses consume
large nonbenthic organisms such as fish, birds, or seals (summarized in
Sheffield et al. 2001, p. 311). Although capable of diving to deeper
depths, walruses usually feed in shallow waters of 100 meters (328
feet) or less (Fay 1982, p. 163; Fay and Burns 1988, p. 240).
The current size and trend of the Pacific walrus population is
unknown. Between 1975 and 1990, cooperative, contemporaneous, visual
aerial surveys were carried out by the United States and the former
Soviet Union at 5-year intervals, producing population estimates
ranging from about 170,000 to 250,000 individuals (see Gilbert 1999 for
review, pp. 76-79). Observers counted or estimated numbers of walruses
hauled out on pack ice and land, but could not accurately detect or
quantify walruses that were swimming in the water. Surveyed areas
included all known terrestrial haulout sites, but were limited to an
unknown but very small percentage of available ice habitats. Efforts to
survey the Pacific walrus population were suspended by both countries
after 1990, due to unresolved problems with survey methods that
produced population estimates with unknown bias and large or unknown,
but presumably large, variances that severely limited their utility
(Gilbert et al. 1992, p. 1; Gilbert 1999, p. 82). The population
estimates generated from these surveys are considered minimum values
that cannot be used for detecting trends in population size (Hills and
Gilbert 1994, p. 205).
During 2002-2005, the Service and Russian partners developed a
survey method that uses thermal imaging systems to reliably detect
walrus groups hauled out on sea ice (Burn et al. 2006, p. 54; Udevitz
et al. 2008, pp. 63-64). At the same time, the U.S. Geological Survey
developed satellite transmitters that record information on the haulout
status of individual walruses (Jay et al. 2006, p. 231), which can be
used to estimate the proportion of the walrus population in the water.
These technological advances led to a joint United States-Russia aerial
survey in March and April of 2006, to estimate the size of the Pacific
walrus population (USFWS and USGS 2006, p. 7). Analysis of data
collected during the 2006 walrus survey is ongoing. Final results are
expected in late 2009.
[[Page 46550]]
Threats Evaluation
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR Part 424, set forth the procedures for adding
species to the Federal Lists of Endangered and Threatened Wildlife and
Plants. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1) of the Act: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
In making this 90-day finding, we evaluated whether information
regarding threats to the Pacific walrus, as presented in the petition
and other information available in our files, is substantial, thereby
indicating that the petitioned action may be warranted. Our evaluation
of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of the Species' Habitat or Range
The petition asserts that the Pacific walrus' sea-ice habitats in
the Bering and Chukchi Seas are disappearing and being degraded by
global climate change (Petition, pp. 26-63). It states that the Arctic
is warming faster than other regions of the globe (p. 31; Anisimov et
al. 2007, p. 656), and that Arctic summer sea ice, including the ice of
the Chukchi Sea, is predicted to disappear or nearly disappear between
2012 and 2030 (p. 27; Amos 2007, p. 1; Stroeve et al. 2008, p. 14). By
2050, the Bering Sea is predicted to lose about 40 percent of its
winter sea ice unless emissions scenarios change (Overland and Wang
2007, p. 1).
The petition states that global warming will impact the Pacific
walrus by degrading and eliminating critical sea-ice habitat,
decreasing prey availability, altering interactions with predators and
disease, and increasing human disturbance throughout the range
(Petition, p. 58). It claims that, without sea ice, the Pacific walrus
will be forced into a shore-based existence for which it is not adapted
(Petition, p. 27).
After reviewing the supporting references cited in the petition, we
find that the information provided in the petition, as well as other
information in our files, presents substantial scientific or commercial
information indicating that the petitioned action may be warranted due
to effects on walruses resulting from changes in climate and sea-ice
habitats.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The petition does not claim that overutilization of Pacific
walruses for commercial, recreational, scientific, or educational
purposes is taking place or will take place, and does not provide any
evidence that this factor is impacting or will impact Pacific walruses
(Petition, pp. 63-64). We do not have substantial information in our
files to suggest that overutilization for commercial, recreational,
scientific, or educational purposes may threaten the Pacific walrus.
However, all factors, including threats from utilization for
commercial, recreational, scientific, or educational purposes, will be
evaluated when we conduct our status review.
C. Disease or Predation
The petition asserts that global warming is likely to markedly
increase depredation and disease occurrence in the Pacific walrus
population (Petition, p. 64), but does not support this statement with
any evidence that this factor is impacting or will impact Pacific
walruses. We do not have substantial information in our files to
suggest that disease or predation may threaten the Pacific walrus.
However, all factors, including threats from disease and predation,
will be evaluated when we conduct our status review.
D. The Inadequacy of Existing Regulatory Mechanisms
The petition presents information regarding existing and planned
regulatory mechanisms, stating that the primary international
regulatory mechanisms addressing greenhouse gas emissions and global
warming, the United Nations Framework Convention on Climate Change and
the Kyoto Protocol, are ineffective in mitigating many of the climate-
based threats to the species (Petition, pp. 64-70). The petition claims
that the ineffectiveness of these regulatory mechanisms is demonstrated
by their failure to significantly reduce greenhouse gas emissions
(Petition, pp. 69-70). See our analysis of Factor A above, where we
found that the petitioned action may be warranted due to effects on
walruses resulting from changes in climate and sea-ice habitats. The
petition further claims that existing regulatory mechanisms are
inadequate to address impacts of oil and gas development, as made
evident by the fact that important walrus habitats were not deleted
from Minerals Management Service lease sales (Petition, pp. 70). It
states that existing regulations both domestically and internationally
are inadequate to protect Pacific walruses and their habitat from harm
due to shipping and ocean acidification (Petition, pp. 71-72).
After reviewing the supporting references cited in the petition, we
find that the information provided in the petition, as well as other
information in our files, presents substantial scientific or commercial
information indicating that the petitioned action may be warranted due
to inadequacy of existing regulatory mechanisms.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
The petition claims that ocean acidification poses a profound
threat to marine ecosystems due to impacts on photosynthesis of
phytoplankton, metabolic rates of zooplankton and fish, oxygen supply
of squid, reproduction of clams, nitrification by microorganisms, and
the uptake of metals (Petition, p. 72; WBGU 2006, p. 69). The petition
further claims that ocean acidification threatens the Pacific walrus
because of its deleterious effects on walrus prey species (Petition, p.
72), including mollusk species that are similar to those species
consumed by the Pacific walrus (Berge et al. 2005, p. 1; Gazeau et al.
2007, p. 1).
The petition claims that additional impacts on the Pacific walrus
include threats from offshore oil and gas development in the United
States, Canada, and Russia, which has the potential to negatively
impact large portions of the Pacific walrus' foraging and breeding
habitat with oil and noise pollution (Petition, p. 73). The petition
states that exposure to contaminants may also increase for Pacific
walruses as a result of increasing precipitation and ice melt (Tynan
and DeMaster 1997, p. 318). The petition also states that commercial
fisheries pose a threat to the Pacific walrus by causing direct
mortality through incidental take as fisheries bycatch (Woodley and
Lavinge 1991, p. 12), and by depleting essential prey resources
(Petition, p. 82).
After reviewing the supporting references cited in the petition, we
find that some of the information provided in the petition,
specifically information on threats due to ocean acidification, as well
as other information in our files, present substantial scientific or
commercial information indicating that the petitioned action may be
warranted due to this factor. The petition does not
[[Page 46551]]
present substantial information, nor do we have substantial information
in our files, to suggest that fisheries or oil and gas activities, with
the possible exception of potential oil spills, may threaten the
Pacific walrus. However, all factors will be evaluated when we conduct
our status review.
Finding
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files. To
the maximum extent practicable, we are to make this finding within 90
days of our receipt of the petition and publish our notice of the
finding promptly in the Federal Register.
Our process for making this 90-day finding under section 4(b)(3)(A)
of the Act is limited to a determination of whether the information in
the petition presents ``substantial scientific and commercial
information,'' which is interpreted in our regulations as ``that amount
of information that would lead a reasonable person to believe that the
measure proposed in the petition may be warranted'' (50 CFR 424.14(b)).
As described in our threats evaluation, above, the petition presents
substantial information indicating that listing the Pacific walrus
throughout its entire range may be warranted based on Factors A, D, and
E. Based on our threats evaluation, the petition does not present
substantial information indicating that Factors B and C may be a threat
to this species.
Based on this review and evaluation, we find that the petition
presents substantial scientific or commercial information indicating
that listing the Pacific walrus throughout all or a significant portion
of its range may be warranted due to current and future threats under
Factors A, D, and E. Therefore, we are initiating a status review to
determine whether listing the Pacific walrus under the Act is
warranted.
The ``substantial information'' standard for a 90-day finding is
not the same as the Act's ``best scientific and commercial data''
standard that applies to a status review to determine whether a
petitioned action is warranted. A 90-day finding is not a status
assessment of the species and does not constitute a status review under
the Act. In a 12-month finding, we will determine whether a petitioned
action is warranted after we have completed a thorough status review of
the species, which is conducted following a substantial 90-day finding.
Because the Act's standards for 90-day and 12-month findings are
different, as described above, a substantial 90-day finding does not
mean that the 12-month finding will indicate that listing is warranted.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Alaska Regional
Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this notice are the staff members of the
Alaska Regional Office (see FOR FURTHER INFORMATION CONTACT).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: September 1, 2009.
Sam D. Hamilton,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E9-21759 Filed 9-9-09; 8:45 am]
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