Federal Register Vol. 81, No.222,

The RUSLE2, an empirical erosion prediction model for calculating sheet and rill water erosion, is being replaced by WEPP technology for selected highly erodible compliance applications. The WEPP model is for use where water erosion is the primary causal factor for comparing the annual level of erosion before conservation system application to the expected annual level of erosion after conservation system application (i.e., substantial reduction for highly erodible land conservation). The use of the Universal Soil Loss Equation (USLE) to calculate potential erodibility remains unchanged. The regulation for USLE is located at 7 CFR 610.14.

The implementation of the WEPP technology does not affect the highly erodible soil map unit list contained in the NRCS Field Office Technical Guide as of January 1, 1990. The factor values from the 1990 list will continue to be used for all erodibility index calculations, including sodbuster determinations and review of previous determinations.

The WEPP technology computer model is a process-based, daily time-step model that predicts soil erosion by simulating the fundamental processes controlling water erosion. WEPP calculates sheet and rill erosion rates and sediment deposition and delivery. The WEPP model also provides the user with spatial information regarding soil flux, deposition, and loss from specific regions of a field over time. The model is intended for conservation planning, assessing water erosion for NRCS' National Resources Inventory, and aiding the development of regional and national policy.

The WEPP modular design is amenable to incorporation of new features; thus, WEPP utility also is for estimating long-term soil productivity, the effect of climate change on crop growth and erosion, sediment depositional loading of lakes and streams, and ephemeral erosion prediction.

Further, WEPP aids in calculating onsite and offsite economic costs of erosion and assessing impacts of management strategies on public lands when used in conjunction with other models.

A complete summary of the processes utilized by the WEPP model can be seen in “WEPP Model Documentation” on the USDA Agricultural Research Service Web page at http://www.ars.usda.gov/Research/docs.htm?docid=10621. Additional WEPP documents also are also available on this Web page.

The proposed implementation timeframe for WEPP in each NRCS field office with a water erosion concern is December 1, 2016. Section 1201(a)(11)(C) of the Food Security Act of 1985, as amended, (16 U.S.C. 3801(a)(11)(C)) requires NRCS to make available for public review and comment all proposed changes to equations to carry out the highly erodible land provisions of the law in a manner consistent with section 553 of title 5.

Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-397-5335, conference ID: 6723214. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Corrine Sanders at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Kansas Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=249). Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 877-857-6161, conference ID: 6681139. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 55 W. Monroe St., Suite 410, Chicago, IL 60615. They may also be faxed to the Commission at (312) 353-8324, or emailed to Carolyn Allen at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (312) 353-8311.

Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Minnesota Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=256). Persons interested in the work of this Committee are directed to the Commission's Web site, http://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

I. Background

The Department of Commerce (Department) collects, compiles, analyzes, and disseminates a treasure trove of data, including data on the Nation's economy, population, and environment. This data is fundamental to the Department's mission and is used for the protection of life and property, for scientific purposes, and to enhance economic growth. However, the Department's capacity to disseminate the increasing amount of data held and to disseminate it in formats most useful to its customers is significantly constrained.

In order to realize the potential value of the data the Department collects, stores, and disseminates, the Department must minimize barriers to accessing and using the data. Consistent with privacy and security considerations, the Department is firmly committed to unleashing its untapped data resources in ways that best support downstream information access, processing, analysis, and dissemination.

The Commerce Data Advisory Council (CDAC) provides advice and recommendations, to include process and infrastructure improvements, to the Secretary on ways to make Commerce data easier to find, access, use, combine and disseminate. The aim of this advice shall be to maximize the value of Commerce data to all users including governments, businesses, communities, academia, and individuals.

The Secretary will draw CDAC membership from the data industry academia, non-profits and state and local governments with a focus on recognized expertise in collection, compilation, analysis, and dissemination. As privacy concerns span the entire data lifecycle, expertise in privacy protection also will be represented on the Council. The Secretary will select members that represent the entire spectrum of Commerce data including demographic, economic, scientific, environmental, patent, and geospatial data. The Secretary will select members from the information technology, business, non-profit, and academic communities, and state and local governments. Collectively, their knowledge will include all types of data Commerce distributes and the full lifecycle of data collection, compilation, analysis, and dissemination.

The Council shall advise the Secretary on ways to make Commerce data easier to find, access, use, combine, and disseminate. Such advice may include recommended process and infrastructure improvements. The aim of this advice shall be to maximize the value of Commerce data to governments, businesses, communities, and individuals.

In carrying out its duties, the Council may consider the following:

Federal Advisory Committee Act (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory committees, is the governing instrument for the CDAC.

1. The Council shall consist of up to 20 members.

2. The Secretary shall select and appoint members and members shall serve at the pleasure of the Secretary.

3. Members shall represent a cross-section of business, academic, non-profit, and non-governmental organizations.

4. The Secretary will choose members of the Council who ensure objectivity and balance, a diversity of perspectives, and guard against potential for conflicts of interest.

5. Members shall be prominent experts in their fields, recognized for their professional and other relevant achievements and their objectivity.

6. In order to ensure the continuity of the Commerce Data Advisory Council, the Council shall be appointed so that each year the terms expire of approximately one-third of the members of the Council.

7. Council members serve for terms of two years and may be reappointed to any number of additional terms. Initial appointments may be for 12-, 18-and 24-month increments to provide staggered terms.

8. Nominees must be able to actively participate in the tasks of the Council, including, but not limited to regular meeting attendance, Council meeting discussant responsibilities, and review of materials, as well as participation in conference calls, webinars, working groups, and special Council activities.

9. Should a council member be unable to complete a two-year term and when vacancies occur, the Secretary will select replacements who can best either replicate the expertise of the departing member or provide the CDAC with a new, identified needed area of expertise. An individual chosen to fill a vacancy shall be appointed for the remainder of the term of the member replaced or for a two-year term as deemed. A vacancy shall not affect the exercise of any power of the remaining members to execute the duties of the Council.

10. No employee of the federal government can serve as a member of the Census Scientific Advisory Committee.

All members of the Commerce Data Advisory Council shall adhere to the conflict of interest rules applicable to Special Government Employees as such employees are defined in 18 U.S.C. 202(a). These rules include relevant provisions in 18 U.S.C. related to criminal activity, Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR part 2635), and Executive Order 12674 (as modified by Executive Order 12731).

1. Membership is under voluntary circumstances and therefore members do not receive compensation for service on the Commerce Data Advisory Council.

2. Members shall receive per diem and travel expenses as authorized by 5 U.S.C. 5703, as amended, for persons employed intermittently in the Government service.

The Secretary will consider nominations of all qualified individuals to ensure that the CDAC includes the areas of subject matter expertise noted above (see ”Background and Membership”). Individuals may nominate themselves or other individuals, and professional associations and organizations may nominate one or more qualified persons for membership on the CDAC. Nominations shall state that the nominee is willing to serve as a member of the Council.

A nomination package should include the following information for each nominee:

1. A letter of nomination stating the name, affiliation, and contact information for the nominee, the basis for the nomination (i.e., what specific attributes recommend him/her for service in this capacity), and the nominee's field(s) of expertise;

2. A biographical sketch of the nominee and a copy of his/her resume or curriculum vitae; and

3. The name, return address, email address, and daytime telephone number at which the nominator can be contacted.

The Department of Commerce is committed to equal opportunity in the workplace and seeks diverse Committee membership. The Department has special interest in assuring that women, minority groups, and the physically disabled are adequately represented on advisory committees; and therefore, extends particular encouragement to nominations for appropriately qualified female, minority, or disabled candidates. The Department of Commerce also encourages geographic diversity in the composition of the Council. All nomination information should be provided in a single, complete package and received by the stated deadline, December 1, 2016. Interested applicants should send their nomination package to the email or postal address provided above.

Potential candidates will be asked to provide detailed information concerning financial interests, consultancies, research grants, and/or contracts that might be affected by recommendations of the Council to permit evaluation of possible sources of conflicts of interest. Finally, nominees will be required to certify that they are not subject to the Foreign Agents Registration Act (22 U.S.C. 611) or the Lobbying Disclosure Act (2 U.S.C. 1601 et seq.).

Background

On July 28, 2015, AK Steel Corporation, ArcelorMittal USA EEC, Nucor Corporation, Steel Dynamics, Inc., and the United States Steel Corporation (collectively, Petitioners) filed petitions seeking the imposition of antidumping and countervailing duties on imports of CRS from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, Russia, and the United Kingdom. Following the Department's final affirmative determinations of dumping and countervailable subsidies,1 and the U.S. International Trade Commission (ITC)'s finding of material injury,2 the Department issued AD and CVD orders on imports of CRS from the PRC.3

On September 22, 2016, pursuant to section 781(b) of the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.225(h), Steel Dynamics, Inc. and California Steel Industries submitted a request for the Department to initiate anti-circumvention inquiries to determine whether producers of CRS in Vietnam are circumventing the Orders by exporting to the United States CRS which is completed or assembled in Vietnam using hot-rolled steel (HRS) sourced from the PRC.4 On September 27, 2016, ArcelorMittal USA LLC, Nucor Corporation, United States Steel Corporation, and AK Steel Corporation also submitted a request for the Department to initiate anti-circumvention inquiries and issue preliminary determinations of circumvention to suspend liquidation of imports of CRS from Vietnam.5 On October 13, 2016, we received comments supporting the allegation from the United Steelworkers.6 Domestic Producers request that the Department treat CRS imports from Vietnam as subject merchandise under the scope of the Orders and impose cash deposit requirements on all imports of CRS from Vietnam.

On October 17, 2016, we received comments objecting to the allegation from Metallia U.S.A., LLC, Metallia, A Division of Hartree Partners, LP, Nippon Steel and Sumiken Bussan Americas Inc., Mitsui & Co. (U.S.A.), Inc., and Marubeni-Itochu Steel America Inc. (MISA).7 Also on October 17, 2016, we received comments objecting to the allegation from Minmetals, Inc. (Minmetals).8 On October 17, 2016, we also received comments objecting to the allegation from POSCO-Vietnam Co., Ltd. (POSCO Vietnam).9 On October 21, 2016, we received comments objecting to the allegation from China Steel Sumikin Vietnam Joint Stock Company.10 Also on October 26, 2016, we received comments objecting to the allegation from Summit Global Trading, a Subsidiary of Sumitomo Corporation of Americas (Sumitomo).11 On October 28, 2016, we received comments objecting to the allegation from thyssenkrupp Materials NA, Inc. (thyssenkrupp).12 On October 31, 2016, we also received comments objecting to the allegation on behalf of Hoa Sen Group (HSG) 13 and Maruichi Sun Steel Joint Stock Company (Maruichi).14 On November 1, 2016, we received comments objecting to the allegation from behalf of from Vietnam Competition Authority.15

The products covered by the orders are certain cold-rolled (cold-reduced), flat-rolled steel products, whether or not annealed, painted, varnished, or coated with plastics or other nonmetallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products covered also include products not in coils (e.g., in straight lengths) of a thickness of 4.75 mm or more and a width exceeding 150 mm and measuring at least twice the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

(1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and

(2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with nonrectangular shape, etc.), the measurement at its greatest width or thickness applies.

Steel products included in the scope of the orders are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). If steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Motor lamination steels contain micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

Subject merchandise includes cold-rolled steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the orders if performed in the country of manufacture of the cold-rolled steel.

All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of the orders unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of the orders:

• Ball bearing steels; 16

• Tool steels; 17

Background

In accordance with sections 705(d) and 735(d) of the Tariff Act of 1930, as amended (“Act”), on September 29, 2016, the Department published its affirmative final determination of sales at less than fair value (“LTFV”) and its affirmative final determination that countervailable subsidies are being provided to producers and exporters of WSPP from India.1 On November 9, 2016, the ITC notified the Department of its final affirmative determination that an industry in the United States is materially injured by reason of LTFV imports and subsidized imports of WSPP from India, within the meaning of sections 735(b)(1)(A)(i) and 705(b)(1)(A)(i) of the Act.2

The merchandise covered by these orders is circular welded austenitic stainless pressure pipe not greater than 14 inches in outside diameter. For purposes of this scope, references to size are in nominal inches and include all products within tolerances allowed by pipe specifications. This merchandise includes, but is not limited to, the American Society for Testing and Materials (“ASTM”) A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications. ASTM A-358 products are only included when they are produced to meet ASTM A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications.

Excluded from the scope are: (1) Welded stainless mechanical tubing, meeting ASTM A-554 or comparable domestic or foreign specifications; (2) boiler, heat exchanger, superheater, refining furnace, feedwater heater, and condenser tubing, meeting ASTM A-249, ASTM A-688 or comparable domestic or foreign specifications; and (3) specialized tubing, meeting ASTM A-269, ASTM A-270 or comparable domestic or foreign specifications.

The subject imports are normally classified in subheadings 7306.40.5005, 7306.40.5040, 7306.40.5062, 7306.40.5064, and 7306.40.5085 of the Harmonized Tariff Schedule of the United States (“HTSUS”). They may also enter under HTSUS subheadings 7306.40.1010, 7306.40.1015, 7306.40.5042, 7306.40.5044, 7306.40.5080, and 7306.40.5090. The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope of these orders is dispositive.

In accordance with sections 735(b)(1)(A)(i) and 735(d) of the Act, the ITC has notified the Department of its final determination that an industry in the United States is materially injured by reason of imports of WSPP that are subsidized by the government of India and sold in the United States at LTFV. Therefore, in accordance with section 735(c)(2) of the Act, we are publishing this antidumping duty order. Because the ITC determined that imports of WSPP from India are materially injuring a U.S. industry, unliquidated entries of such merchandise from India, entered or withdrawn from warehouse for consumption, are subject to the assessment of antidumping duties.

In accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (“CBP”) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of WSPP from India. Antidumping duties will be assessed on unliquidated entries of WSPP from India entered, or withdrawn from warehouse, for consumption on or after May 10, 2016, the date of publication of the AD Preliminary Determination, 3 but will not include entries occurring after the expiration of the provisional measures period and before publication of the ITC's final injury determination, as further described below.

Section 733(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request the Department to extend that four-month period to no more than six months. At the request of exporters that account for a significant proportion of WSPP from India, the Department extended the four-month period to six months.4 In the underlying investigation, the Department published the AD Preliminary Determination on May 10, 2016.5 Therefore, the extended period, beginning on the date of the publication of the AD Preliminary Determination, ended on November 5, 2016. Furthermore, section 737(b) of the Act states that definitive duties are to begin on the date of publication of the ITC's final injury determination.

Therefore, in accordance with section 733(d) of the Act and our practice,6 we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of WSPP from India entered, or withdrawn from warehouse, for consumption after November 5, 2016, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register. Suspension of liquidation will resume on the date of publication of the ITC's final determination in the Federal Register.

In accordance with section 735(c)(1)(B) of the Act, we will instruct CBP to continue to suspend liquidation on entries of subject merchandise from India. These instructions suspending liquidation will remain in effect until further notice.

We will also instruct CBP to require cash deposits equal to the amounts as indicated below, except for Sunrise Stainless Pvt. Ltd. and Sun Mark Stainless Pvt. Ltd. (collectively, “Sunrise Group”), which are adjusted for certain countervailable subsidies, where appropriate, as described below.7 Because Sunrise Group has an estimated weighted-average final dumping margin of zero, we are directing CBP to terminate suspension of liquidation of entries of WSPP produced and exported by this entity. In addition, subject merchandise produced and exported by Sunrise Group will be excluded from the antidumping duty order. Accordingly, effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the estimated duties on this subject merchandise, a cash deposit equal to the estimated weighted-average dumping margins listed below. The “All Others” rate applies to all exporters of subject merchandise not specifically listed. For the purpose of determining cash deposit rates, the estimated weighted-average dumping margins for imports of subject merchandise have been adjusted, as appropriate, for export subsidies found in the final determination of the companion countervailing duty investigation of this merchandise.8

The weighted-average antidumping duty margin percentages are as follows:

In accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified the Department of its final determination that the industry in the United States producing WSPP is materially injured by reason of subsidized imports of WSPP from India.9 Therefore, in accordance with section 705(c)(2) and 706(a) of the Act, we are publishing this countervailing duty order.

Pursuant to section 706(a) of the Act, the Department will direct CBP to assess, upon further instruction by the Department, countervailing duties on unliquidated entries of WSPP entered, or withdrawn from warehouse, for consumption on or after March 11, 2016, the date on which the Department published its affirmative preliminary countervailing duty determination in the Federal Register,10 and before July 9, 2016, the effective date on which the Department instructed CBP to discontinue the suspension of liquidation in accordance with section 703(d) of the Act.11 Section 703(d) of the Act states that the suspension of liquidation pursuant to a preliminary determination may not remain in effect for more than four months. Therefore, entries of WSPP made on or after July 9, 2016, and prior to the date of publication of the ITC's final determination in the Federal Register are not liable for the assessment of countervailing duties, due to the Department's discontinuation, effective July 9, 2016, of the suspension of liquidation.

In accordance with section 706 of the Act, the Department will direct CBP to reinstitute suspension of liquidation, effective on the date of publication of the ITC's notice of final determination in the Federal Register, and to assess, upon further instruction by the Department pursuant to section 706(a)(1) of the Act, countervailing duties for each entry of the subject merchandise in an amount based on the net countervailable subsidy rates for the subject merchandise. The Department will also direct CBP to require a cash deposit for each entry of subject merchandise in an amount equal to the net countervailable subsidy rates listed below. The all-others rate applies to all producers and exporters of subject merchandise not specifically listed.

This notice constitutes the AD and CVD orders with respect to WSPP from India pursuant to sections 736(a) and 706(a) of the Act. Interested parties can find an updated list of orders currently in effect by either visiting http://enforcement.trade.gov/stats/iastats1.html or by contacting the Department's Central Records Unit, Room B8024 of the main Commerce Building.

These orders are published in accordance with sections 706(a), 736(a), and 777(i) of the Act, and 19 CFR 351.211(b).

On July 18, 2016, the Department received a request from Salvi to initiate a changed circumstances review in order for the Department to determine that the glycine produced by Salvi is no longer processed from PRC-origin glycine.1 Additionally, Salvi requests that the Department determine that importers of glycine from Salvi are eligible to participate in a certification process.2 Salvi refers to an anti-circumvention inquiry, where the Department determined that Salvi was processing Chinese glycine, and that glycine processed in India of Chinese origin does not change country of origin, and, therefore, Salvi had circumvented the Order.3 As part of our determination, we stated that Salvi could not take part in a certification process, whereby Salvi's importers could certify that they had not imported Chinese-origin glycine and would not be subject to the antidumping duty rate for Chinese glycine.4 This certification process was established to ensure that merchandise entering the United States from India was properly identified as subject or non-subject merchandise. However, we also stated that Salvi could request an administrative review or a changed circumstances review to show that it is no longer processing PRC-glycine and exporting such glycine from India.5 If the Department determined that Salvi is no longer processing PRC-origin glycine, and instead is producing glycine from raw materials of non-PRC origin, the Department could allow the importers of Salvi's product to certify that the glycine being produced and exported is not processed PRC-origin glycine.6

On July 26, 2016, the Department received comments from domestic interested party, GEO Specialty Chemicals, Inc. (GEO), regarding Salvi's request.7 On August 29, 2016, we extended the deadline to initiate until October 17, 2016, in order to collect information and legible exhibits from Salvi, because it did not submit a sufficient response, and to consider interested parties' comments.8 On September 9, 2016, we issued a questionnaire to Salvi, to which it responded on September 26, 2016.9 On October 6, 2016, GEO submitted comments on Salvi's questionnaire response.10 On October 13, 2016, we determined that we had a sufficient request from Salvi and that the deadline for initiating a changed circumstances review should be November 10, 2016.11 On October 20, 2016, Salvi placed on the record certain information issued by the Department in the recently completed 2014-2015 administrative review under this antidumping duty order.12 On October 27, 2016, GEO provided comments on Salvi's October 20, 2016 submission.13

The product covered by this antidumping duty order is glycine, which is a free-flowing crystalline material, like salt or sugar. Glycine is produced at varying levels of purity and is used as a sweetener/taste enhancer, a buffering agent, reabsorbable amino acid, chemical intermediate, and a metal complexing agent. This proceeding includes glycine of all purity levels. Glycine is currently classified under subheading 2922.49.4020 of the Harmonized Tariff Schedule of the United States (HTSUS).14 Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive.15

Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. In accordance with 19 CFR 351.216(d), based on the information provided by Salvi, the Department finds that there is sufficient information to initiate a changed circumstances review. Therefore, we are initiating a changed circumstances review pursuant to section 751(b)(1) of the Act and 19 CFR 351.216(d) to determine whether Salvi is no longer processing PRC-origin glycine, and instead is producing glycine from raw materials of non-PRC origin, and whether it should be able to participate in the certification process described in the Final Scope Ruling. The Department intends to publish in the Federal Register a notice of preliminary results of the antidumping duty changed circumstances review in accordance with 19 CFR 351.221(b)(4) and 19 CFR 351.221(c)(3)(i), which will set forth the Department's preliminary factual and legal conclusions. The Department will issue its final results of review in accordance with the time limits set forth in 19 CFR 351.216(e).

This notice is in accordance with section 751(b)(1) of the Act.

NEPA (42 U.S.C. 4321 et seq.) declares a national policy to promote efforts that will prevent or eliminate damage to the environment, stimulate the health and welfare of man, and enrich the understanding of the ecological systems and natural resources important to the United States. NEPA also established the CEQ to, among other things, analyze and interpret environmental trends and information, to review and appraise programs and activities of the Federal government in light of NEPA's purpose, and to develop policies to promote the improvement of environmental quality. As part of these responsibilities, the CEQ promulgated regulations to implement NEPA (see 40 CFR part 1500 et seq.). Those regulations direct Federal agencies to adopt procedures for implementing NEPA and to review and revise those policies and procedures as necessary to ensure full compliance with the purposes and provisions of NEPA.

NEPA and the CEQ implementing regulations provide for environmental review of a proposed government action in the form of an Environmental Assessment (EA), Environmental Impact Statement (EIS), or Categorical Exclusion (CE). A CE is “a category of actions which do not individually or cumulatively have a significant effect on the human environment,” and, based on the agency's past experience, does not require further NEPA review in the form of either an EA or EIS. See 40 CFR 1508.4, CEQ, “Final Guidance for Federal Departments and Agencies on Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act” (75 FR 75628; December 6, 2010). A CE does not exempt an action from NEPA review; rather, it is one form of environmental review under NEPA. See 75 FR 75631. A CE may be applied to a proposed action after the decision maker has carefully reviewed the description of the action and determined that it fits within the category of actions encompassed by the CE. See 40 CFR 1508.4. In making this determination, the decision maker must also consider whether extraordinary circumstances apply, which would lead to a normally categorically excluded action to have the potential for significant impacts. Thus, a CE does not eliminate environmental review of a proposed action but reduces paperwork and delay and allows an agency to efficiently focus its resources on proposed actions with the potential for significant environmental effects.

On April 22, 2016, NOAA issued NOAA Administrative Order 216-6A (NAO 216-6A), which updated NOAA's policy for compliance with NEPA, the CEQ NEPA regulations, and other related authorities, including Executive Order (EO) 12114, Environmental Effects Abroad of Major Federal Actions; EO 11988, Floodplain Management; and EO 11990, Protection of Wetlands. The NAO authorized the development of a Companion Manual entitled Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities (“Companion Manual”). The draft Companion Manual includes NOAA's proposed revised CEs as an appendix. NAO 216-6A superseded NOAA Administrative Order NAO 216-6 dated May 20, 1999 (1999 NAO), with the exception of those provisions implementing CEQ regulation 40 CFR 1507.3(b), including the NOAA's CEs and related provision for extraordinary circumstances. Those provisions temporarily remain in effect until superseded by revised CEs and the authorized Companion Manual. Additionally, the National Marine Fisheries Service's February 23, 2016 supplement to NAO 216-6, entitled “Revised and Updated NEPA Procedures for Magnuson-Stevens Fishery Management Actions,” remains in effect. The supplement sets forth the policies and procedures for NEPA compliance for such actions. For convenience, the supplement is reproduced as Appendix C to the Companion Manual. Decision makers for such actions may also consider and apply the guidance in the Companion Manual to the extent it is consistent with the policies and procedures in the supplement.

NOAA last updated its NEPA Procedures in 1999. In order to ensure that its procedures, including CEs and extraordinary circumstances, remain appropriate to ensure full compliance with the purposes and provisions of NEPA, NOAA began an extensive review process. As part of its process for revising the agency's NEPA procedures, NOAA convened a Working Group composed of representatives across NOAA's Staff and Line Offices. The Working Group members conducted significant scoping within their respective offices to assess the need for revised NEPA procedures, the need for revised CEs, and to gather information relevant to proposed new CEs, including information necessary to support the proposed changes. Throughout the revision process, NOAA also conducted outreach with other agencies with similar missions, and consulted extensively with CEQ. See 40 CFR 1507.3.

Upon review of NOAA's overall NEPA procedures, the agency determined that its existing procedures would benefit from clarifying revisions and that NOAA's CEs would benefit from revisions to clarify the scope and applicability and that several new CEs were appropriate to improve NEPA review by categorically excluding actions that, based on NOAA's experience, have no potential to significantly impact the human environment. In some instances, NOAA determined that providing additional language to describe the categories of actions covered by an existing CE was necessary to clarify the intended scope of that CE. In other cases, NOAA determined that the scope of a CE was unclear because it covered too many disparate activities with few meaningful limitations. The Working Group determined that breaking out components of these CEs into discrete CEs that accurately described the category of actions to be excluded from further NEPA review and including appropriately limiting language clarified the proper scope and application of the CE for the decision maker. Additionally, NOAA identified CEs that either lacked adequate substantiation or were no longer necessary because of mission changes. Accordingly, NOAA proposes to eliminate these types of CEs.

NOAA proposes to substantiate its new and revised CEs by benchmarking other agencies' CEs, relying on previously implemented actions, and/or relying on the expert opinions of NOAA's professional staff, all of which are methods recommended by CEQ to substantiate proposed new or revised CEs. See 75 FR 75633-34. Benchmarking means that NOAA is substantiating a CE based on other agencies' experience with a comparable CE and the administrative record developed by other agencies when they established their own CEs. To ensure the CEs that NOAA proposes to benchmark properly support NOAA's proposed CEs, NOAA analyzed the actions encompassed by other agencies' CEs by considering the characteristics of the actions, methods of implementing the actions, frequency of the actions, applicable standard operating procedures or implementing guidance, and timing and context to determine that the actions analyzed by these agencies are sufficiently similar to those covered by the proposed CE to offer support for NOAA's conclusion that these actions will not result in individually or cumulatively significant impacts on the human environment under normal circumstances.

Additionally, and where appropriate, NOAA relied on its professional staff to analyze the activities encompassed by the proposed CEs and explain the expert's conclusion that those activities have no potential for significant effects on the environment. Finally, NOAA relied on its own experience with previously implemented actions (e.g., EAs that resulted in Findings of No Significant Impacts) to determine that the analyses of those actions and the resulting absence of environmental effects of those actions support the proposed CE.

Certain terms appear frequently in the language of NOAA's proposed CEs to limit their scope and ensure they are applied properly and limited to those activities that NOAA has determined have no potential for significant impacts. The following list presents and describes these terms:

(1) “Previously disturbed ground” refers to land that has been changed such that its functioning ecological processes have been and remain substantially altered by human activity. The term encompasses areas that have been transformed from natural cover to non-native species or a developed state, including but not limited to, utility and electrical power transmission corridors and rights-of-way, paved and unpaved roads, and construction footprints.

(2) “Minor” and “small-scale” are terms NOAA considers in the context of the particular proposal, including its proposed location. In assessing whether a proposed action is small, in addition to the actual magnitude of the proposal, NOAA considers factors such as industry norms and the relationship of the proposed action to similar types of development or activity in the vicinity of the proposed action. When considering the size of a proposed facility, for example, NOAA would review the surround land uses, the scale of the proposed action relative to existing development, and the capacity of existing roads and other infrastructure to support the proposed action. When these limiting terms are used within a specific CE, the administrative record for that CE provides further explanation of their meaning in the context of the activity addressed by that CE.

(3) “Negligible” refers to a level of impact that is below significant to the point of being hardly detectable. Factors for consideration include: Procedures that employ generally accepted industry standards or best management practices that have been tested and verified at the time an activity is proposed; whether an activity has understood or well-documented impacts at the time an activity is proposed; whether control and quality measures are in place (e.g., monitoring and verification; emergency plans and preparedness); the direct, indirect, and cumulative effects of the proposed activity on a resource; and the context and intensity of expected discharges or deposits and disturbances to resources, like the submerged lands of any sanctuary, corals, and other living, cultural, and historical resources.

NOAA's proposed revised CEs are organized into eight series, based on the types of activities encompassed by each group. Series A encompasses CEs that pertain to Trust Resource Management Actions. B pertains to Trust Resource Authorization and Permitting Actions. C pertains to Habitat Restoration Actions. D pertains to Additional External Funding. E pertains to Research Actions. F pertains to Real and Personal Property Improvement, Maintenance, and Construction Actions. G pertains to Operational Actions. Finally, H pertains to Acquisition and Leasing Actions.

The following list presents NOAA's proposed CEs, followed by a description of the CE's relationship to the existing CEs from the 1999 NAO and an explanation of how and why a CE was revised or developed.

[A1]. “An action that is a technical correction or a change to a fishery management action or regulation, which does not result in a substantial change in any of the following: Fishing location, timing, effort, authorized gear types, access to fishery resources or harvest levels.”

NOAA proposes to consolidate components of several CEs from the 1999 NOA: 6.03a.3(b)(1), 6.03a.3(b)(2), 6.03d.4(a), and 6.03d.4(b). NOAA realized in implementing NEPA since 1999 that there were several very similar CEs that frequently served the same purpose. NOAA also determined that it would be most helpful for practitioners to address different types of management plans in separate CEs so that limitations to ensure that the category of actions would not result in significant impacts were appropriate to the types of management plan in place. Accordingly, consolidating these classes of actions into a single CE for fishery management actions and regulations clarified the CE's scope and applicability for decision makers. The proposed revision limits the scope of the CE so that any corrections or changes to which the CE is to be applied may not result in a substantial change in fishing location, timing, effort, authorized gear types, access to fishery resources or harvest levels. The proposed changes and revisions do not result in a substantial change in scope or applicability from the listed CEs in the 1999 NAO.

[A2]. “Preparation of a recovery plan pursuant to section 4(f)(1) of the ESA. Such plans are advisory documents that provide consultative and technical assistance in recovery planning and do not implement site-specific or species-specific management actions. However, implementation of specific tasks identified in a recovery plan may require an EA or EIS depending on the nature of the action.”

NOAA proposes to revise CE 6.03e.3(a) by adding “and do not direct site-specific or species-specific management actions” to the definition of consultative. NOAA's use of the language “. . . advisory documents that provide consultative and technical assistance in recovery planning and do not direct site-specific or species-specific management actions. However, implementation of specific tasks identified in a recovery plan may require additional NEPA analysis depending on the nature of the action” further clarifies the proper use of the CE and ensures that it is not employed to cover specific management actions. The proposed changes and revisions clarify the scope and applicability of the CE and do not result in any change in scope or applicability from the CE in the 1999 NAO.

[A3.] “Temporary fishery closures or extensions of closures under section 305(c)(3)(C) of the Magnuson-Stevens Fishery Conservation and Management Act to ensure public health and safety.”

NOAA proposes a new CE to cover temporary fishery closures or extensions of closures under section 305(c)(3)(C) of the Magnuson-Stevens Fishery Conservation and Management Act to ensure public health and safety following a public health emergency or an oil spill.

[A4.] “Minor updates to existing national marine sanctuary management plans. This CE does not apply to sanctuary designations, expansions, changes in terms of designation, or new sanctuary management plans.”

NOAA proposes to consolidate components of two CEs from the 1999 NOA: 6.03a.3(b)(1) and 6.03a.3(b)(2). NOAA realized in implementing NEPA since 1999 that there were several very similar CEs that frequently served the same purpose. NOAA also determined that discrete CEs with appropriately limiting language specific to different types of management plans would be most helpful to decision makers. Accordingly, consolidating these classes of actions into a single CE for minor updates to existing national marine sanctuary management plans clarified the CE's scope and applicability for decision makers. NOAA proposes to explicitly limit the use of this CE by not allowing the category to be applied to actions that are amendments or changes to a management plan that affect sanctuary boundaries or to new sanctuary management plans. The National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.) mandates that the Secretary of Commerce (as delegated to NOAA) prepare an environmental impact statement for sanctuary designations and boundary changes. The proposed changes and revisions do not result in a substantial change in scope or applicability from the listed CEs in the 1999 NAO.

[A5.] “Updates to existing National Estuarine Research Reserve (NERR) management plans, provided that the update does not change NERR boundaries or add or significantly change allowable uses, uses requiring a permit, or restrictions on uses. This CE does not apply to new NERR management plans, or to the execution of any specific action subsequently funded to support the updated NERR management plan.”

NOAA proposes to consolidate components of two CEs from the 1999 NOA: 6.03a.3(b)(1) and 6.03a.3(b)(2). NOAA realized in implementing NEPA since 1999 that there were several very similar CEs that frequently served the same purpose. NOAA also determined that discrete CEs with appropriately limiting language specific to different types of management plans would be most helpful to decision makers. Accordingly, consolidating these classes of actions into a single CE for updates to existing NERR management plans clarified the CE's scope and applicability for decision makers. The CE is limited so that it may not be applied to actions where the update changes reserve boundaries and the change adds or significantly changes allowable uses requiring a permit, or restrictions on uses. Additionally the CE is limited in that it does not apply to new NERR management plans, or to the execution of any specific action subsequently funded to support the updated NERR management plan. The proposed changes and revisions do not result in a substantial change in scope or applicability from the listed CEs in the 1999 NAO.

[A6.] “Review and approval of changes to state coastal management programs under the Coastal Zone Management Act (CZMA) § 306(e) (16 U.S.C. 1455(e)) and NOAA's regulations at 15 CFR part 923.”

NOAA proposes to consolidate components of two CEs: 6.03a.3(b)(1) and 6.03a.3(b)(2). NOAA realized in implementing NEPA since 1999 that there were several very similar CEs that frequently served the same purpose. NOAA also determined that discrete CEs with appropriately limiting language specific to different types of management plans would be most helpful to decision makers. Accordingly, consolidating these classes of actions into a single CE for review and approval of changes to state coastal management programs under the CZMA 16 U.S.C. 1455(e) and NOAA's regulations at 15 CFR part 923 clarified the CE's scope and applicability for decision makers. The Working Group determined that these statutory and regulatory limitations appropriately limited the scope of the CE so that activities encompassed by the CE have no potential for significant effects on the environment under normal circumstances.

[B1.] “Issuance of permits or permit modifications under section 10(a)(1)(A) of the ESA for take, import, or export of endangered species for scientific purposes or to enhance the propagation or survival of the affected species, or in accordance with the requirements of an ESA section 4(d) regulation for threatened species.”

NOAA proposes to make minor revisions to CE 6.03e.3(b) by adding section 4(d) of the ESA to the text of the CE. The intent and purpose of Sections 10(a)(1)(a) and 4(d) of the ESA to issue permits for scientific or enhancement purposes. The proposed changes and revisions do not result in any change in scope or applicability from the CE in the 1999 NAO.

[B2.] “Issuance of permits or permit amendments under section 104 of the MMPA for take or import of marine mammals for scientific research, enhancement, commercial or educational photography or public display purposes; and issuance of Letters of Confirmation under the General Authorization for scientific research involving only Level B harassment.”

NOAA proposes to revise CE 6.03f.2(a) by removing section 101(a)(1) of the MMPA from the text of the CE. The reference to section 101(a)(1) was incorrect in the 1999 version and the revision corrects this error. The proposed revision does not result in any change in the scope or applicability of the CE.

[B3.] “Issuance of, and amendments to, “low effect” Incidental Take Permits and their supporting “low effect” Habitat Conservation Plans under section 10(a)(1)(B) of the ESA.”

NOAA proposes minor text edits to revise CE 6.03e.3(d) for clarification and readability. The proposed revision does not result in a substantial change on the scope or applicability of the CE.

[B4.] “Issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for the incidental, but not intentional, take by harassment of marine mammals during specified activities and for which no serious injury or mortality is anticipated.”

NOAA proposes to maintain CE 6.03f.2(b) and revise the language to clarify the proper scope and application of the CE. The 1999 NAO included an error that referred to only section 101(a)(5)(A) of the Marine Mammal Protection Act—this error has been corrected in this revision, which now properly refers to both sections 101(a)(5)(A) and 101(a)(5)(D). Additionally, the 1999 version of the CE required authorizations to be “tiered from a programmatic environmental review” and this requirement has been removed. NOAA currently reviews small take incidental harassment authorizations under NEPA without the need for a “tiering” process. Accordingly, the proposed revision does not result in a substantial change in scope or applicability from the CEs in the 1999 NAO.

NOAA proposes four new CEs—B5, B6, B7, and B8—to cover the issuance of, or amendments to general permits, special use permits, authorizations, and certifications for activities conducted within National Marine Sanctuaries. Previously, NOAA had applied CEs 6.03c.3(a), 6.03c.3(c), 6.03c.3(d), and 6.03c.(3)(i) to address these actions. The Working Group determined that proposing new CEs that specifically encompass the actions described in B5, B6, B7, B8, B9, and B10 clarified the scope and applicability of the CEs for decision makers. Each CE is limited by conditions to ensure that activities encompassed by the CEs have no potential for significant effects on the environment under normal circumstances.

[B5.] “Issuance of, or amendments to, general permits for activities that are included in established permit categories at 15 CFR part 922 and that meet the regulatory review criteria at 15 CFR part 922, that limit any potential impacts so that the proposed activity will be conducted in a manner compatible with the National Marine Sanctuaries Act's primary objective of resource protection.”

[B6.] “Issuance of, or amendments to, special use permits for activities in a national marine sanctuary that are necessary to either establish conditions of access to and use of any sanctuary resource or promote public use and understanding of a sanctuary resource and must be conducted in a manner that does not destroy, cause the loss of, or injure sanctuary resources in accordance with the National Marine Sanctuaries Act.”

[B7.] “Issuance of or amendments to, authorizations for activities allowed by a valid federal, regional, state, local or tribal government approval (e.g., leases, permits and licenses) issued after the effective date of sanctuary designation or expansion, so long as such authorizations are based upon a consideration of the regulatory review criteria at 15 CFR part 922, and will only result in negligible effects to sanctuary resources.”

[B8.] “Issuance of, or amendments to certifications for pre-existing activities authorized by a valid federal, regional, state, local, or tribal government approval (e.g., leases, permits and licenses) or rights of subsistence use or access in existence on the date of the designation or expansion of any national marine sanctuary where the Office of National Marine Sanctuaries issues terms and conditions that are either ministerial or prescribe avoidance, minimization, or mitigation measures designed to ensure negligible effects to sanctuary resources.”

[B9.] “Issuance of, or amendments to Papahānaumokuākea Marine National Monument (as established by Presidential Proclamation 8031) permits for activities that are included in established permit categories (50 CFR part 404) and that meet the regulatory review criteria at (50 CFR 404.11), that limit any potential impacts so that the proposed activity will be conducted in a manner compatible with the monument's primary objective of resource protection.”

NOAA proposes a new CE to cover the issuance of, or amendments to Papahānaumokuākea Marine National Monument permits for activities that are included in established permit categories under 50 CFR part 404 and that meet the regulatory review criteria under 50 CFR 404.11.

[B10.] “Issuance of, or amendments to, Papahānaumokuākea Marine National Monument special ocean use permits for activities or use of the monument that are engaged in to generate revenue or profits for one or more of the persons associated with the activity or use, and do not destroy, cause the loss of, or injure monument resources.”

NOAA proposes a new CE to cover the issuance of, or amendments to Papahānaumokuākea Marine National Monument special ocean use permits for activities or use of the monument that are engaged in to generate revenue or profits for one or more of the persons associated with the activity or use, and do not destroy, cause the loss of, or injure monument resources.

[B11.] “Issuance of Exempted Fishing Permits (EFPs) under the authority of the Magnuson-Stevens Act and Scientific Research Permits (SRPs) and other permits for research that may impact species regulated under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Convention Act (ATCA). This includes permitted research of limited size, magnitude or duration with negligible individual or cumulative impacts, which requires temporary relief of fishery management regulations.”

NOAA proposes a new CE to cover the issuance of, or amendments to permits or authorizations for activities that are conducted within Marine National Monuments other than Papahānaumokuākea that are limited in scope so that the potential impacts of the proposed activities will be conducted in a manner compatible with a monument's primary objective of resource protection, and do not destroy, cause the loss of, or injure monument resources.

[B12.] “Issuance of Exempted Fishing Permits (EFPs) under the authority of the Magnuson-Stevens Act and Scientific Research Permits (SRPs) and other permits for research that may impact species regulated under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Convention Act (ATCA). This includes permitted research of limited size, magnitude or duration with negligible individual or cumulative impacts, which requires temporary relief of fishery management regulations. “

NOAA proposes a new CE to cover the issuance of Exempted Fishing Permits (EFPs) under the authority of the Magnuson-Stevens Act and Scientific Research Permits (SRPs) and other permits for research that may impact species regulated under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Convention Act (ATCA). These revisions are intended to encompass activities regarding the issuance of EFPs and SRPs for research activities within the scope of the CE and conducted for the benefit of fisheries and the environment.

[C1.] “Habitat restoration actions, provided that such action: (1) Transplants only organisms currently or formerly present at the site or in its immediate vicinity (if transplant is a component of the action); (2) does not require substantial placement of fill or dredging; (3) does not involve any removal of debris, excavation, or conditioning of soils unless such removal of debris, excavation, or conditioning of soils is geographically limited to the impact area such that site conditions will not impede or negatively alter natural processes, is in compliance with all permit and disposal requirements,), and will not impact critical aquifers or recharge areas; and (4) does not involve an added risk of human or environmental exposure to toxic or hazardous substances, pathogens, or radioactive materials.

NOAA proposes to revise the version of CE 6.03b.2 by removing the condition that actions encompassed by this CE “are intended to restore an ecosystem, habitat, biotic community, or population of living resources to a determinable pre-impact condition.” NOAA determined that removing the requirement “(1) are intended to restore an ecosystem, habitat, biotic community, or population of living resources to a determinable pre-impact condition” clarified the applicability of this CE. Previously, the condition limited the CE's application to circumstances where NOAA was able to determine the pre-impact condition of the resource to be restored and this created confusion as to the scope and applicability of the CE. NOAA also added criteria that limit the scope of the CE. These four limitations were developed and reviewed by the Working Group and included to ensure that this category of actions is properly limited in context and intensity such that there is no potential for individual or cumulative significant effects on the human environment under normal circumstances. Finally, NOAA added the requirement that, if applicable, limitations and mitigation measures identified in the NOAA Restoration Center Programmatic Environmental Impact Statement for Habitat Restoration Actions (June 2015) (RC PEIS) must be followed.

[D1.] “Financial activities for the following financial services: (1) Loans for purchase, refinancing, or reconstruction of fishing vessels and purchase or refinancing of individual fishing quota through the Fisheries Finance Program; (2) Deferred tax program provided to fishermen to construct, reconstruct, or acquire fishing vessels through the Capital Construction Fund Program; and (3) Compensation to fishermen for economic and property losses caused by oil and gas obstructions on the U.S. Outer Continental Shelf under the Fishermen's Contingency Fund.”

NOAA proposes to break out a portion of CE 6.03c.3(b) to explicitly cover only the limited financial activities for specific financial services under the Fisheries Finance Program, the Capital Construction Fund Program, and the Fisherman's Contingency Fund. The Working Group determined that for the vast majority of financial assistance and financial services actions, decision makers should look at whether the underlying activity to be funded falls within one of the established CEs. The activities addressed in proposed D1, however, while appropriate for a CE, were not separately addressed in any of the other NOAA CEs and thus are proposed here as a separate financial activities category. The proposed revision clarifies the scope and applicability of the CE.

[D2.] “Provision of a grant, a contract or other financial assistance to a State, Fishery Management Council or Marine Fisheries Commission under 16 U.S.C. 1881a(d).”

NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly cover the provision of a grant, contract, or other financial assistance to a State, Fishery Management Council or Marine Fisheries Commission under 16 U.S.C. 1881a(d). Similar to the activities addressed in D1, the Working Group determined that the specific provision of funding pursuant to 16 U.S.C. 1881(a)(d) was appropriately addressed in a CE and not otherwise covered by other NOAA proposed CEs. The proposed revision clarifies the scope and applicability of the CE.

NOAA proposes to break out a portion of CEs 6.03c.3(a) and 6.03c.3(d) to explicitly cover a variety of research activities with no potential for individual or cumulative significant effects under normal circumstances. The Working Group determined that it would be more appropriate to address research programs and projects with more specificity than the existing 1999 CE, which broadly covers all “research programs or projects of limited size and duration or with only short-term, minor effects on the human environment.” Instead, after an internal scoping process evaluating the types of research activities that were routinely and appropriately relying on the existing CE, the Working Group developed the following categories of activities in proposed CEs E1-E8. For each of the proposed research CEs, the Working Group proposed limitations appropriate to the category of activities to ensure that the activities covered by each CE have no potential for significant effects on the environment under normal circumstances.

[E1.] “Activities conducted in laboratories and facilities where research practices and safeguards prevent environmental impacts.”

[E2.] “Social science projects and programs, including economic, political science, human geography, demography, and sociology studies, including information collection activities in support of studies.”

[E3.] “Activities to collect aquatic, terrestrial, and atmospheric data in a non-destructive manner.”

[E4.] “Activities that survey or observe living resources in the field with little to no potential to adversely affect the environment or interfere with organisms or habitat.”

[E5.] “Activities involving invasive techniques or methods that are conducted for scientific purposes, when such activities are conducted in accordance with all applicable provisions of the Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, and Magnuson-Stevens Fishery Conservation and Management Act. Such activities will be limited to impacting living resources on a small scale relative to the size of the populations, and limited to methodologies and locations to ensure that there are no long-term adverse impacts to benthic habitats, essential fish habitat, critical habitat, or listed species.”

[E6.] “Research that involves the development and testing of new and modified fishing gear and technology in order to reduce adverse effects from fishing gear on non-target species.”

[E7.] “Collection of data and biological samples on fishing vessels or dockside as part of previously authorized commercial and/or recreational fishing activities.”

[E8.] “Biological, chemical, or toxicological research conducted in closed system mesocosm/aquaculture facilities that are conducted according to recommended protocols that provide containment and disposal of chemicals, toxins, non-native species, etc., in compliance with established Federal and state regulatory guidelines, and best management practices.”

[F1.] “Siting, construction (or modification), and operation of support buildings and support structures (including, but not limited to, trailers and prefabricated buildings) within or contiguous to an already developed area (where active utilities and currently used roads are readily accessible).”

NOAA proposes a new CE to cover activities to place and operate trailers, modular buildings, storage buildings, or shipping units within or contiguous to an already developed area.

[F2.] “In-kind replacement of personal property and fixtures and other components of real property when such activities do not result in a substantial change in the existing construction footprint. In-kind replacement includes installation of new components to replace outmoded components if the replacement does not result in a substantial change to the design capacity, or function of the facility.”

NOAA proposes to make minor revisions to CE 6.03c.3(e) by breaking out a component of this CE into a separate CE. NOAA's use of the language “In-kind replacement includes installation of new components to replace outmoded components if the replacement does not result in a substantial change to the design capacity, or function of the facility” further clarifies the CE. The proposed changes and revisions do not result in any change in scope or applicability from the CEs in the 1999 NAO.

[F3.] “(a) Routine repair, maintenance, and improvement of real and personal property, where such activities are required to maintain and preserve buildings, structures, infrastructures, vehicles, and equipment in a condition suitable to be used for its designed purpose.

(b) New construction, expansion and/or improvement of facilities where all of the following conditions are met:

(1) The site is in a developed area and/or a previously disturbed site;

(2) The structure and proposed use are compatible with applicable Federal, Tribal, State, and local planning and zoning standards and consistent with Federally approved State coastal management programs and the National Historic Preservation Act;

(3) The proposed use will not substantially increase the number of motor vehicles, marine vessels, or aircraft at the facility or in the area;

(4) The site and scale of construction or improvement are consistent with those of existing, adjacent, or nearby buildings;

(5) The construction or improvement will not result in uses that exceed existing infrastructure capacities (e.g., electrical, roads, sewer, water, parking);

(6) The construction or improvement will not result in operational uses that adversely affect the surrounding community (e.g., noise); and

(7) The community-valued view sheds are not adversely affected.

(c) Installation, repair, maintenance, and enhancement of public access facilities and infrastructure, if the activity:

(1) Is small-scale and nondestructive;

(2) Is consistent with applicable right-of-way conditions and approved land use plans; and

This CE does not apply where the project must be submitted to the National Capital Planning Commission (NCPC) for review and NCPC determines that it does not have an applicable Categorical Exclusion.”

NOAA proposes to break out and merge several portions of the following CEs: 6.03c.3(c) “minor improvements to an existing site (e.g., fences, roads, picnic facilities, etc.)”; 6.03c.3(e) “routine facility maintenance and repair”; 6.03c.3(f); 6.03c.3(g); and, 6.03c.3(i) “routine maintenance.” The proposed changes and revisions clarify the scope and applicability of the CE.

[F4]. “Routine groundskeeping and landscaping activities where ground disturbance is limited to previously disturbed areas (e.g., previously filled paved, or cleared areas).”

NOAA proposes to make minor revisions to CE 6.03c.3(e) by breaking out a portion of this CE into a separate CE. These types of actions are already covered in the portion of CE 6.03c.3(e) in “grounds-keeping activities.” The CE is limited to activities where ground disturbance is limited to previously disturbed areas. The proposed revisions do not result in a substantial change in scope or applicability from the CE in the 1999 NAO.

[F5.] “Installation, operation, maintenance, improvements, repair, upgrade, removal, and/or replacement of instruments or instrument systems in or on:

1. An existing structure or object (e.g., tower, antenna, building, pier, buoy, terrestrial vehicle, or bridge) or

2. On previously disturbed (e.g., filled, paved, or cleared) ground, or

3. On undisturbed ground, if the equipment installation, operation, and removal will require no or minimal ground disturbance.”

Microwave/radio communications towers and antennas must be limited to 200 feet in height without guy wires. NOAA proposes a new CE to cover activities of installing, operating, repairing, maintaining, upgrading, removing and/or replacing instruments or instrument systems in or on an existing structure or object, or on previously disturbed ground or on undisturbed ground that involve either no or minimal ground disturbance.

[F6.] “The determination that real property is excess to the needs of the Agency, when the real property is excessed in conformity with General Services Administration procedures or is legislatively authorized to be excessed.”

NOAA proposes a new CE to cover declarations of real property as excess in conformance with General Services Administration procedures or as legislatively authorized.

[F7.] “The disposal, demolition or removal of real property and related improvements, buildings and structures, including associated site restoration, and the disposal of personal property and debris in accordance with all applicable agency procedures and legal requirements.”

NOAA proposes a new CE to cover the disposal, demolition or removal of real property and related improvements, buildings and structures, including associated restoration, and the disposal of property and debris in accordance with all applicable Agency procedures.

[G1.] “Routine administrative actions such as (1) program planning, direction and evaluation, (2) administrative tasks, services and support including personnel and fiscal management, advisory services, document and policy preparation, and records management, and (3) development, establishment, and revisions to documents including, but not limited to interagency agreements, memoranda of understanding, memoranda of agreement, cooperative agreements, and university agreements. This CE does not include any associated activities proposed in these documents beyond the administrative task of creating and establishing the document. Actions subsequently funded by or undertaken pursuant to the approved documents may require additional NEPA review at the time those actions are proposed.”

NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly cover program planning, direction and evaluation; administrative tasks; development, establishment and revisions to administrative documents, including interagency agreements, memoranda of understanding, memoranda of agreement, cooperative agreements, and university agreements. Many of these types of activities are already covered in the portion of the 1999 NAO 6.03c.3(d) in “program planning and budgeting, including strategic planning and operational planning . . . executive direction; administrative services.” The proposed revision to break out a portion of the 1999 CE does not result in a significant change in scope or applicability from the CE in the 1999 NAO.

[G2.] “Routine movement of mobile assets, such as vessels and aircraft, for homeport reassignments or repair/overhaul, where no new support facilities are required.”

NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly cover routine movement of mobile assets. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(d) in “ship and aircraft operations.” The CE is limited to the routine movement of mobile assets for homeport reassignments or repair/overhaul, where no new support facilities to ensure that activities encompassed by the CE have no potential for significant effects on the environment under normal circumstances.

[G3.] “Topographic, bathymetric, land use and land cover, geological, hydrologic mapping, charting, and surveying services that do not involve major surface or subsurface land disturbance and involve no permanent physical, chemical, or biological change to the environment.”

NOAA proposes to break out and revise a portion of CE 6.03c.3(d) to cover certain mapping and surveying services and activities. Many of these types of activities are already covered in the portion of the 1999 NAO 6.03c.3(d) in “mapping, charting, and surveying services.” The CE is limited to activities that do not involve major surface or subsurface land disturbance and involve no permanent physical, chemical, or biological change to environment. The Working Group determined these limitations were necessary to ensure the activities encompassed by the CE have no potential for significant effects on the environment under normal circumstances.

[G4.] “Basic environmental services and monitoring, such as weather observations, communications, analyses, and predictions; environmental satellite operations and services; digital and physical environmental data and information services; air and water quality observations and analysis, and IT operations. All such activities must be conducted within existing facilities.”

[G4.] “Basic environmental services and monitoring, such as weather observations, communications, analyses, and predictions; environmental satellite operations and services; digital and physical environmental data and information services; air and water quality observations and analysis, and IT operations. All such activities must be conducted within existing facilities.”

NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly cover environmental satellite and environmental data and information service activities, environmental service activities, and air quality observations and analysis activities. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(d) in “basic environmental services and monitoring, such as weather observations, communications, analyses, and predictions; environmental satellite services; environmental data and information services;” and “air quality observations and analysis.” The proposed revision to break out a portion of the 1999 CE does not result in any change in scope of applicability from the CE in the 1999 NAO.

[G5.] “Enforcement operations conducted under legislative mandate such as the MSA, ESA, MMPA, the Lacey Act Amendments of 1981 (Lacey), and/or the National Marine Sanctuaries Act. This does not include bringing judicial or administrative civil or criminal enforcement actions which are outside the scope of NEPA in accordance with 40 CFR 1508.18(a).”

NOAA proposes to break out a portion of CE 6.03c.3(d) to explicitly cover enforcement operations. These types of actions are already covered in the portion of the 1999 NAO 6.03c.3(d) in “enforcement operations.” As noted in the language of the CE, 40 CFR 1508.18(a) provides that major federal actions subject to NEPA do not include “bringing judicial or administrative civil or criminal enforcement actions.” Accordingly, this CE only covers those enforcement operations outside of this scope that would not otherwise be excluded from NEPA. The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[G6.] “Actions that change the NEXRAD radar coverage patterns that do not lower the lowest scan elevation and do not result in direct scanning of previously non-scanned terrain by the NEXRAD main beam.”

NOAA proposes no substantive changes to CE 6.03c.3(h). The phrase “actions that” was added for grammatical reasons. The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[G7.] “Preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature, or for which the environmental effects are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or on a case-by-case basis.”

NOAA proposes to break out a portion of CE 6.03c.3(i) to explicitly cover policy directives, order, regulations, and guidance. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(i) in “preparation of regulations, Orders, manuals or other guidance that implement, but do not substantially change these documents” and “policy directives, regulations, and guidelines of an administrative financial, legal, technical, or procedures nature, or the environmental effects of which are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or case-by-case.” The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[G8.] “Activities that are educational, informational, or advisory to other agencies, public and private entities, visitors, individuals, or the general public, including training exercises and simulations.”

NOAA proposes to break out a portion of CE 6.03c.3(i) to explicitly cover educational, informational, advisory, and consultative activities. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(i) in “activities which are educational, informational, advisory, or consultative to other agencies, public and private entities, visitors, individuals or the general public.” The Working Group determined that expressly including training exercises and simulations in the text of the CE clarified its scope and applicability for decision makers. The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[G9.] “Actions taken to identify, determine sources of, assess, prevent, reduce, remove, dispose, or recycle marine debris when removal is undertaken in a non-destructive manner and actions are in accordance with Federal, State, and local laws and regulations for environmental protection, and where all relevant regulatory consultation, and/or permit requirements have been satisfied.”

NOAA proposes a new CE to cover actions taken to identify, determine sources of, assess, prevent, reduce, remove, dispose, or recycle marine debris. The CE is limited by the requirement that actions encompassed by the CE must be undertaken in a non-destructive manner and in accordance with Federal, State, and local laws and regulations for environmental protection and all relevant regulatory consultation and/or permit requirements have been satisfied.

[H1.] “Procurement of labor, equipment, materials, data and software needed to execute mission requirements in accordance with applicable procurement regulations, executive orders, and policies. This includes, but is not limited to, procurement of mobile and portable equipment that is stored in existing structures or facilities.”

NOAA proposes to break out a portion of CE 6.03c.3(e) and broaden the coverage of the CE to include activities to procure labor, equipment, materials, and software necessary to execute NOAA's mission, including, but not limited to the purchase of mobile and portable equipment to be stored in existing structures or facilities. A portion of these activities are already covered in the portion of the 1999 NAO 6.0303.c(e) in “procurement contracts for NEPA documents.”

[H2.] “Procurement of space by purchase or lease of or within an existing facility or structure in accordance with applicable procurement regulations, executive orders, and policies when there is no change in the general type of use, no new construction of buildings or utilities, and minimal change in design from the previous occupancy level.”

NOAA proposes to break out a portion of CE 6.03c.3(e) to explicitly cover procurement by purchase or lease of space within a previously occupied structure. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(e) in “acquisitions of space within an existing previously occupied structure, either by purchase or lease, where no change in the general type or use and minimal change from previous occupancy level is proposed.” The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[H3.] “Outgranting of government-controlled property in accordance with applicable regulations, executive orders, and policies to a Federal entity for any purpose consistent with the existing land or facility use or to a non-Federal entity, when the use will remain substantially the same.”

NOAA proposes to break out a portion of the CE in the 1999 NAO 6.03c.3(e) to explicitly cover outgranting of government-controlled space. These types of activities are already covered in the portion of the 1999 NAO 6.03c.3(e) in “out-lease or license of government-controlled space, or sublease of government-leased space to a non-Federal tenant when the use will remain substantially the same.” The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO; the change in terminology from “out-lease” to outgranting is intended to more accurately capture the type of action covered.

[H4.] “Acquisition of real property (including fee simple estates, leaseholds, and easements) that is not acquired through condemnation of a lease interest, and will not result in significant change in use and does not involve construction or modification.”

NOAA proposes to break out a portion of the CE in the 1999 NAO 6.03c.3(e) to explicitly cover procurement and lease of land. These types of activities are already covered in the portion of the 1999.

NAO 6.03c.3(e) in “acquisition of land which is not in a floodplain or other environmentally sensitive area and does not result in condemnation.” NOAA proposes to remove the portion of the CE explicitly stating “which is not in a floodplain or other environmentally sensitive area.” NOAA revised its extraordinary circumstances to include environmental, historic, or cultural unique areas and floodplains, and therefore no longer required the text to be explicit within this CE. The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[H5.] “Granting easements or rights of entry to use NOAA controlled property for activities that, if conducted by NOAA, could be categorically excluded. Grants of easements or rights-of-way for the use of NOAA controlled real property complementing the use of existing rights-of-way or real property use for use by vehicles (not to include significant increases in vehicle loading); electrical, telephone, and other transmission and communication lines; water, wastewater, stormwater, and irrigation pipelines, pumping stations, and facilities; and similar utility and transportation uses.”

NOAA proposes to create a new categorical exclusion to encompass the activity of granting an easement or right of entry to use NOAA-controlled property for activities that could be categorically excluded if conducted by NOAA.

[H6.] “Relocation of employees into existing Federally-owned or commercially leased office space within the same metropolitan area not involving a substantial increase in the number of motor or other vehicles at a facility.”

NOAA proposes to break out a portion of CE 6.03c.3(e) to explicitly cover relocation of employees. These types of actions are already covered in the portion of the 1999 NAO 9.03c.3(e) in “relocation of employees into existing Federally-owned or commercially leased office space within the same metropolitan area not involving a substantial number of employees or a substantial increase in the number of motor vehicles at a facility.” The proposed revision to break out a portion of the 1999 CE does not result in any change in scope or applicability from the CE in the 1999 NAO.

[H7.] “Transferring real property to a non-Federal entity, an agency other than GSA, as well as to States, local agencies and Indian Tribes, including return of public domain lands to the Department of the Interior.”

NOAA proposes a new CE to cover the transfer of real property to a federal agency other than the General Services Administration as well as to a non-Federal entity, including States, local agencies, and Indian tribes. This proposed CE also applies to the return of public domain lands to the Department of the Interior.

On November 19, 2012, we received a petition submitted by the Center for Biological Diversity (CBD) to list the harbor seals in Iliamna Lake, Alaska as a threatened or endangered species under the ESA, and to designate critical habitat concurrent with listing. CBD asserted that the harbor seals found in Iliamna Lake constitute a DPS of Pacific harbor seals and contended that the seals in Iliamna Lake face threats warranting protection as a listed species under the ESA. Iliamna Lake is the largest freshwater lake in Alaska and is connected to the Bristol Bay region of the Bering Sea by the Kvichak River.

On May 17, 2013 (78 FR 29098), we found that the petition presented substantial information indicating that listing the seals in Iliamna Lake under the ESA may be warranted, and we requested comments from the public to inform our status review, and to help us determine whether these seals should be listed as threatened or endangered. To assist with our status review, we convened a Biological Review Team (BRT), composed of federal scientists with expertise in marine mammal biology and marine mammal genetics, to review the available information about the status of the species, and provide an assessment regarding the seals in Iliamna Lake. The BRT compiled information about the harbor seals in Iliamna Lake in a DPS Report (Boveng et al., 2016).

In this notice, we announce our finding that the petitioned action to list harbor seals in Iliamna Lake under the ESA as either threatened or endangered is not warranted because the seals do not constitute a distinct population segment (DPS) and thus are not a separate “species,” as the ESA defines that term. Speficically, while we conclude that the seals are a discrete population, the best scientific and commercial data available suggest that they are not significant to the greater taxon to which they belong, i.e., the eastern North Pacific harbor seal subspecies (Phoca vitulina richardii).

Section 3 of the ESA defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Section 3 of the ESA further defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future. In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

Under section 4(a)(1) of the ESA, we must determine whether a species is threatened or endangered because of any one or a combination of the following factors: (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) inadequacy of existing regulatory mechanisms; or (E) other natural or human-made factors affecting its continued existence. We must make this determination based solely on the best scientific and commercial data available after conducting a review of the status of the species and taking into account those efforts being made by states or foreign governments to protect the species.

The first step in determining whether the harbor seals in Iliamna Lake warrant listing under the ESA is to assess if they meet the ESA's definition of “species.” Although there has been speculation regarding the taxonomy of the seals in Iliamna Lake (i.e., whether they are harbor seals, spotted seals, or hybrids), recent genetic analyses (O'Corry-Crowe 2013) provide a high degree of confidence these seals are harbor seals (Phoca vitulina). The data available are insufficient to suggest the seals in Iliamna Lake, Alaska are a separate subspecies of harbor seal apart from the subspecies P. v. richardii (Boveng et al., 2016), which ranges from Mexico to Alaska. Therefore, we assessed whether the harbor seals in Iliamna Lake constitute a distinct population segment of P. v. richardii.

The U.S. Fish and Wildlife Service (USFWS) and NMFS (the “Services”) adopted the Policy Regarding the Recognition of Distinct Vertebrate Population Segments under the ESA (the DPS Policy, 61 FR 4722; February 7, 1996) to clarify the Services' interpretation of the term “distinct population segment” for the purposes of listing, delisting, and reclassifying vertebrates under the ESA. The DPS Policy establishes two criteria that must be met for a population or group of populations to be considered a DPS: (1) The population segment must be discrete in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the population segment must be significant to the remainder of the species (or subspecies) to which it belongs. In this case, harbor seals in Iliamna Lake would need to be both discrete from and significant to the eastern North Pacific subspecies of harbor seals (P. v. richardii), to be designated as a DPS.

If the seals in Iliamna Lake were found to meet the DPS criteria, we would then conduct a status review and determine whether they are threatened or endangered because of any one or a combination of the factors from section 4(a)(1) of the ESA. Such a determination would be based solely on the best scientific and commercial data available. Here, because we concluded that the seal population in Iliamna Lake is not a DPS, we did not conduct a status review of the population under section 4(a)(1) of the ESA.

Harbor seals (Phoca vitulina) range in length and size from 1.5-1.9 meters (m) and 75-180 kilograms (kg) for males, and 1.4-1.7 m and 60-145 kg for females, with weights varying seasonally (Sease 1992). At birth, harbor seal pups are approximately 0.75-1.0 m in length and weigh 10-20 kg (Sease 1992). There is a large amount of natural variation in harbor seal coats with coloration ranging from tan/brown to light gray/black with patterns of spots, rings, and blotches that vary between individuals (Shaughnessy and Fay 1977; Kelly 1981). Variable patterns in seal coats have been well documented and may be a result of the age or sex of the animal, season, location, or the environment they inhabit (Shaughnessy and Fay 1977; Kelly 1981; Moss 1992; Caro et al., 2012). The stage of molting also has an impact on the appearance of their coats.

On average, harbor seals reach sexual maturity at the age of five for both females and males; however, females exhibit a larger range of age at maturity (Calkins and Pitcher 1979). The variation depends on population size and trend, body condition, and prey resources (Pitcher and Calkin 1979; Mclaren and Smith 1985; Atkinson 1997). Harbor seals in the eastern North Pacific subspecies also exhibit natural variation in the timing of pupping, ranging from March to September (Bigg 1969; Temte et al., 1991; Searse 1992), depending in part on general geographic location. Aerial surveys of harbor seals in Iliamna Lake since 2010 have documented that pupping occurs in the lake, with pups observed during aerial surveys in June, July, and August (Burns et al., 2012; Burns et al., 2013; Boveng et al., 2016; NMML unpubl. data).

Harbor seals molt annually following pupping (Pitcher and Calkins 1979). Molting usually lasts 1-2 months, during which time seals spend a large amount of time hauled-out (Pitcher and Calkins 1979; Daniel et al., 2003). Molting occurs in stages across the body, affecting coloration and pattern of the coat throughout the molt.

Harbor seals are considered opportunistic foragers and feed on a wide variety of prey found in marine, estuarine, and fresh waters (Carretta et al., 2015). Since they inhabit coastal waters, harbor seal dives are often less than 50 m and last 2-5 minutes (Bowen et al., 1999; Frost et al., 2001, 2006) which influences the prey species available for foraging. Alaskan harbor seals have been documented to forage on pollock, Pacific cod, Pacific sand lance, sculpins, Pacific salmon, trout, char, graylings, flatfishes, capelin, eulachon, smelt, and Pacific herring (Hobson et al., 1997; Iverson et al., 1997; Houser et al., 2008; Geiger et al., 2013). Power and Gregoire (1978) report harbor seal diet in Lower Seal Lake, Quebec being dominated by lake and brook trout. Harbor seals have also been documented to follow salmon and other anadromous fish up rivers and into freshwater lakes where they may remain for extended periods (e.g. Bigg 1969a, 1981, and Hoover 1988 as cited in Sease 1992; Middlemas et al., 2006). One of the largest sockeye salmon populations in the world run up the Kvichak River into Iliamna Lake annually in June and July. Harbor seals have been observed to follow these fish runs seasonally from Bristol Bay, although whether those seals enter Iliamna Lake has not been documented.

Harbor seals are one of the most widespread pinniped species and are found throughout the northern hemisphere, ranging from temperate to polar regions. As of 2008, the worldwide harbor seal population was estimated between 350,000 and 500,000 mature individuals (Thompson and Härkönen 2008). Currently, there are five recognized subspecies of harbor seals: P. v. vitulina in the eastern Atlantic; P. v. concolor in the western Atlantic; P. v. mellonae in some lakes and rivers draining into eastern Hudson Bay; P. v. richardii in the eastern North Pacific; and P. v. stejnegeri (also known as P. v. kurilensis) in the western North Pacific (Rice 1998; Berta and Churchill 2012).

The harbor seals found in Iliamna Lake are classified as part of the subspecies P. v. richardii, also commonly referred to as eastern North Pacific harbor seals. Eastern North Pacific harbor seals range from Mexico to Alaska (Carretta et al., 2015), with an estimated abundance of 360,000 individuals (DFO 2010). More than 205,000 harbor seals occur in Alaska (Muto and Angliss 2015).

Eastern North Pacific harbor seals in Alaska are divided into 12 separate stocks under the Marine Mammal Protection Act; however, these stocks do not represent taxonomic delineations, and all 12 stocks are part of the subspecies P. v. richardii. Harbor seals in Iliamna Lake are part of the Bristol Bay stock, which was estimated at approximately 32,350 individuals based on a 2011 survey (Muto and Angliss 2015), an increase from the estimated 18,577 seals in 2005 (Allen and Angliss 2014).

Aerial surveys of harbor seals in Iliamna Lake have primarily been conducted in the summer and have consistently documented fewer than 350 animals (Mathisen and Kline 1992; Small 2001; Withrow and Yano 2009; Burns et al., 2012; Burns et al., 2013; NMML unpubl. data). The standard protocol for harbor seal aerial surveys is that only seals on land are counted and seals in the water are not counted (Burns et al., 2011; Burns et al., 2013). It is likely that not all seals haul-out at the same time and some seals present in the water were not counted during the surveys of Iliamna Lake. Thus, the actual number of seals in Iliamna Lake at the time of these surveys may have been greater than the number of seals reported during the aerial surveys. To estimate abundance and trends in seal numbers in Iliamna Lake, a simple demographic model was developed (Boveng et al., in prep as reported in Boveng et al., 2016). That model indicates that the number of seals in the lake, about 400, has been relatively stable from 1984-2013 with little to no evidence of a trend over the past 5,10, and 15-year horizons. In 2011, household surveys of local residents from six communities in the Iliamna Lake region were conducted. Based upon a synthesis of the information provided by this local traditional knowledge (LTK) of Iliamna Lake residents, the population size of seals in the lake was believed to be approximately 329 individuals, with a general belief that the population was increasing (Burns et al., 2013).

Harbor seals typically inhabit near-shore coastal waters, but are well known for their use of estuaries and rivers, and have been recorded over 200 kilometers (km) upstream (see review in COSEWIC 2007). Harbor seals are known to haul-out on a variety of natural and manmade substrates which include beaches, sandbars, rocks, islands, ice, docks, piers, and boats. Their varied haul-out substrates are an example of the behavioral plasticity of harbor seals to adapt to a range of environmental settings and conditions (Komers 1997; Vincent et al., 2010).

Harbor seals are often described as a sedentary, non-migratory species, with considerable site fidelity to one or a few haul-outs, with large scale movements being rare. Traditional thinking is that harbor seals generally stay within 50 km of a primary haul-out site (e.g., see Peterson et al., 2012). However, Burns (2002) states this is a “gross oversimplification” and instead states that harbor seals move quite extensively in some cases, including movements characterized as “migrations, juvenile dispersal, seasonal shifts, shifts related to breeding activity, responses to seals habitat exclusion, responses to acute or chronic disturbance, and immigration/emigration, occasionally on a relatively large scale.” Satellite tagging studies document that harbor seals have large home ranges with haul-out sites that vary seasonally and by individual, with some seals migrating hundreds of km between breeding and post-breeding habitats (e.g., Lowry et al., 2001; Lesage et al., 2004; Peterson et al., 2012; Womble and Gende 2013). These studies also report strong evidence of site fidelity by harbor seals to their breeding or locations where they were tagged during summer. In the St. Lawrence estuary in Canada, over half of the satellite tagged harbor seals left their summer haul-out areas once solid ice formed within the bays of the estuary, and migrated between 65 km and 520 km to over-wintering sites (Lesage et al., 2004). In the Pacific Northwest region of the United States, Hardee (2008) reported that harbor seal movements up to 100 km from the tagging site occurred most frequently outside of the breeding season, and that some adult males made trips in excess of 200 km roundtrip that lasted 1-8 weeks between April and August. Hardee (2008) observed long-distance and long-duration movements by harbor seals throughout the study period, with males making multiple roundtrip movements greater than 200 km that were not associated with a migratory over-wintering behavior. Hardee's (2008) study, as well as a study of harbor seals from the Wadden Sea, Denmark (Tougaard et al., 2003 as cited in Hardee 2008), contradict the traditional view that harbor seals reside in a limited geographic area and do not leave that home area for extended periods of time. Peterson et al. (2012) documented adult male harbor seals in the Pacific Northwest moving rapidly between haul-outs, at times traveling over 100 km in about two days. That study also concluded that some adult male harbor seals had secondary haul-out sites greater than 100 km from the primary haul-out site; that the locations of, and distances between, primary and secondary haul-outs varied by seal; and that seasonal migrations over 100 km by adult male seals were more common than previously believed. In Alaska, Lowry et al. (2001) reported juvenile harbor seal movements of 300-500 km, and Womble and Gende (2013) documented extensive migrations of harbor seals from Glacier Bay during the post-breeding season, with some females traveling to Prince William Sound, a distance up to 900 km one way. A harbor seal tagged in the Egegik and Ugashik region of eastern Bristol Bay traveled in excess of 470 km, and 8 of 14 tagged harbor seals traveled in excess of 100 km from a major haul-out site (ADF&G unpubl. data).

There is also variation in individual movements of harbor seals within a population, with some seals traveling great distances seasonally while others stay within a smaller area year-round. Womble and Gende (2013) noted that some harbor seals in Glacier Bay, Alaska, were residents year-round whereas others were migratory. For the migrating harbor seals, there was a high degree of site fidelity back to Glacier Bay the following pupping/breeding season despite the extensive migration away from the breeding area during the post-breeding season (Womble and Gende 2013). Lesage et al. (2004) documented that half of the tagged harbor seals in the St. Lawrence estuary in Canada left their summer haul-out areas and migrated up to 520 km to over-wintering sites, whereas the other half stayed year-round. Peterson et al. (2012) concluded that some harbor seals in the Pacific Northwest had spatially separated primary and secondary haul-outs, while other seals stayed relatively close to a primary haul-out year-round. Sharples et al. (2012) documented highly variable individual harbor seal movements for seals tagged in the British Isles. This study also concluded that region and season better explained the variation in foraging movements than the individual seal's sex, size, and body condition (Sharples et al. 2012), suggesting the local habitat conditions and distance to profitable feeding grounds may influence the foraging movements of the seals.

No harbor seals in Iliamna Lake have been satellite tagged, thus there are no data available about harbor seals movements in Iliamna Lake comparable to those discussed in the preceding paragraphs. Data on habitat use and movements of harbor seals in Iliamna Lake are from aerial surveys documenting locations where harbor seals were hauled-out (e.g., Mathisen and Kline 1992; Small 2001; Withrow and Yano 2009; Burns et al., 2012; Burns et al., 2013), and the LTK of residents, including Alaska Native subsistence hunters around Iliamna Lake (e.g., Burns et al., 2013; Van Lanen et al., 2013). In Iliamna Lake, hauled-out harbor seals are observed primarily in the northeastern portion of the lake, but some local residents report seeing seals in the southwestern portion of the lake, especially near the Kvichak River and Igiugig (Burns et al., 2013). The majority of aerial surveys of Iliamna Lake were conducted during the summer/ice-free season, with a small number of recent (2010-2013) surveys also flown during the winter/ice-present season. The recent aerial surveys documented seasonal variations in seal presence and abundance in the lake, with significantly greater numbers of seals observed hauled-out during the summer pupping and molting periods (e.g., 237 seals observed August 4, 2013) than during the winter (e.g., 9 seals observed April 4, 2013) (Burns et al., 2011; Withrow et al., 2012; Burns et al., 2012; Burns et al., 2013; NMML unpubl. data).

While harbor seals are known to haul-out on ice, recent aerial surveys have documented few seals hauled-out during winter surveys in Iliamna Lake. For example, an aerial survey flown in April 2010, when the lake was almost completely frozen-over, documented only 11 seals; observers reported they “did not see any areas that could support the several hundred seals that have been documented in the summer” (Withrow et al., 2011). Another aerial survey in April 2013 observed only nine hauled-out seals (NMML unpubl. data). Although fewer seals are documented during winter months, there has been some speculation, primarily by some local residents (Burns et al., 2013; Van Lanen et al., 2013), that all the seals remain in the lake year-round and are undetectable during winter aerial surveys. It is possible seals present in the lake in winter are not observed because they are either in the water or they are under the ice in areas with air pockets, which may become accessible along shorelines when the lake's water level drops after a heavy layer of ice has formed at the surface. The particular environmental condition of under-ice air pockets has been scientifically documented in the Lacs des Loups Marins in Canada (Twomey 1939 as cited in Smith and Horonowitsch 1987; Smith and Horonowitsch 1987). The Lacs des Loups Marins are home to harbor seals in subspecies P. v. mellonae, who reside in freshwater lakes year-round and are believed to use under ice haul-outs when the lakes are iced-over (Smith and Horonowitsch 1987; Smith 1997; DFO 2016). While neither this environmental condition nor the use of under-ice air pockets by harbor seals have been scientifically assessed in Iliamna Lake, the use of under ice air pockets or chambers could explain why fewer seals are observed in Iliamna Lake when it is frozen compared to when it is not. However, this theory does not explain why only eight seals were counted in November 2010 (Burns et al., 2011) when the lake was not iced-over. There currently is no scientific evidence available to determine whether air chambers or haul-outs are used by seals under the ice in Iliamna Lake during the winter; however, local residents have reported hearing seals under the ice in such spaces (Burns et al., 2013). Regardless of the number of seals present in winter, the aerial surveys provide scientific evidence of some level of year-round presence of harbor seals in Iliamna Lake.

Conclusions drawn from recent aerial surveys suggest that some harbor seals may be year-round residents of Iliamna Lake whereas other harbor seals may seasonally migrate to and from the lake (Burns et al., 2011; Withrow et al., 2011; Burns et al., 2012; Burns et al., 2013). Some of the LTK regarding the migration patterns of seals in Iliamna Lake are inconsistent, and collectively they do not provide clarity (see Burns et al., 2013). Some LTK reports indicate harbor seals migrate between Iliamna Lake and Bristol Bay and are frequently seen traversing the Kvichak River (e.g., Alvarez 2013; Burns et al., 2013; Igiugig Tribal Village Council 2013; Mohr 2013; Wilson 2013), while other reports indicate that the seals do not migrate and are present in the lake year-round (e.g., Burns et al., 2013; Jacko 2013; Mohr 2013). Local residents around Iliamna Lake indicate that observations of harbor seals in the Kvichak River are typically made beginning in spring, peak during mid-summer, and decline to zero in the winter months; however, some residents of Levelock on the Kvichak River have observed seals in the river in the winter (Burns et al., 2013). This suggests that the Kvichak River may be used seasonally as a migration route between Iliamna Lake and Bristol Bay.

No scientific data are available to determine whether enough fish remain in Iliamna Lake to support hundreds of seals during winter. Some LTK indicates that the lake may not have sufficient food available to support the number of seals observed in summer months on a year-round basis. A local seal hunter recently noted that two seals harvested during two consecutive winters in the lake had not “one drop of food in the stomach or intestines” (Burns et al., 2013). Another seal hunter recollected shooting a seal in March one year that was very skinny and had no fat on it, and speculated that during cold winters there was inadequate food for the seals (Burns et al., 2013). However, the hunter also mentioned that it was very rare to find a skinny seal in Iliamna Lake. During our public comment period we received a comment that provided calculations of the abundance of non-salmonid freshwater fish available during the overwinter period and indicated that a population of approximately 300 seals could not be sustained on the levels of freshwater fish available in the winter. We have no information to support or refute the calculations provided by the commenter.

Alternatively, there may be adequate abundance of prey available in the lake year-round, but some seals could leave the lake in winter for other reasons. In the St. Lawrence estuary, a study of satellite-tagged harbor seals found that seals left summer haul-out areas when solid ice formed within the bays of the estuary despite “evidence of high abundance of potential prey for harbor seals in the estuary during winter” (Lesage et al., 2004). This study concluded that availability of prey in winter “is not the primary factor which influences the movement and distribution patterns of harbor seals” (Lesage et al., 2004). As discussed earlier, harbor seals have been documented to have spatially separated home ranges which vary seasonally (e.g. Lowry et al., 2001; Lesage et al., 2004; Peterson et al., 2012; Womble and Gende 2013), but also high site fidelity to breeding locations. Thus, it is plausible that some harbor seals from Bristol Bay seasonally follow the salmon to Iliamna Lake and return to Bristol Bay for winter, but there are no data available either to support or refute this scenario.

Whether seals migrate seasonally between Iliamna Lake and Bristol Bay has not been scientifically investigated, with the exception of a few recent aerial surveys of Iliamna Lake and the Kvichak River. Aerial surveys of the Kvichak River (five complete or partial river surveys conducted from 2008-2013) have failed to document harbor seal presence in the river (Burns et al., 2013), but it is possible that seals in the river may have been missed during the surveys or that the surveys were conducted when seals were not using the river. For example, during an aerial survey in 2011, the survey crew received a report of seals in a tributary of the Kvichak River near Kastinak Flats, but the survey crew was unable to locate the seals when they flew over the area approximately 30 minutes later (Burns et al., 2013; D. Withrow, NMML, pers. comm.). Additionally, Burns et al., (2013) postulated that seals present in the Kvichak River may not be accounted for as a result of the survey methodology, which only counts seals hauled-out, not those in the water. Other reports suggest harbor seals are regularly seen throughout the Kvichak River (Burns et al., 2013; Van Lanen et al., 2013; ADF&G unpubl. data). Of 14 harbor seals satellite tagged in Egegik and Ugashik Bays within eastern Bristol Bay in 2000 and 2001, none were documented in the Kvichak River or Iliamna Lake (ADF&G unpubl. data). However, the sample size is too small to conclude that migration between Bristol Bay and Iliamna Lake does not occur. We did not find any scientific evidence to conclude the harbor seals in Iliamna Lake constitute a closed population with no migration between the lake and marine waters, and the documented LTK on this question was inconsistent. In the absence of persuasive evidence of a closed population, for purposes of our DPS assessment, we assumed that harbor seal migration between Iliamna Lake and Bristol Bay (or beyond) is possible.

Harbor seals are an important resource for Alaska Native communities surrounding Iliamna Lake. Harbor seals are not only a food source, but also provide materials that can be used for clothing, handicrafts, and cultural traditions. Reports of harvesting harbor seals by indigenous people around Iliamna Lake date back to the early 1800s and LTK suggests that seals have inhabited the lake for many centuries (Fall et al., 2006; Van Lanen 2012; Burns et al., 2013). The majority of hunting occurs during February and March; however, some animals have been harvested in summer and occasionally in winter (Burns et al., 2013). Seven communities around Iliamna Lake and along the Kvichak River were surveyed regarding their harvest of marine mammals: Pedro Bay, Pope-Vannoy Landing, Kokhanok, Newhalen, Igiugig, Iliamna, and Levelock (Burns et al., 2013). Between 1982 and 2011, approximately 150 seals were harvested in Iliamna Lake; however, there is a marked difference in the number of seals harvested each of those years (Burns et al., 2013). For instance, there were no reported harvests of seals in 1982 and 1996, yet 33 were harvested in 1991. The most recent survey in 2011 reported that 44 percent of households surveyed from these seven communities used “freshwater” harbor seal products and 13 percent used “saltwater” harbor seal products in some capacity, resulting from an estimated harvest of 29 seals (five “saltwater” and 24 “freshwater”) (Burns et al., 2013).

As described above, only species, subspecies, and DPSs are eligible for listing as a threatened or endangered species under the ESA. A DPS is a population or group of populations of a vertebrate species that meet both the “discreteness” and “significance” criteria of our DPS policy (61 FR 4722; February 7, 1996). If a population segment is found to be discrete and significant, it is a DPS and is considered a “species” under the ESA. If the population is not both discrete and significant, it does not meet the criteria for designation as a DPS and does not qualify as a “species” as defined by the ESA; thus, we need not evaluate its status relative to the factors in section 4(a)(1) of the ESA because it cannot be listed as a threatened or endangered species. Our assessment first addresses the discreteness of the harbor seals found in Iliamna Lake, and then addresses whether these seals are significant to P. v. richardii, as these terms are defined in our DPS policy (61 FR 4722; February 7, 1996).

As discussed above, we know from formal scientific studies and LTK that at least some harbor seals are present in the lake year-round; i.e. are residents of Iliamna Lake. What is not clear from the science or LTK is whether harbor seals from Bristol Bay migrate to Iliamna Lake. The BRT considered four scenarios: (1) The population of seals in Iliamna Lake is self-sustaining with seals being year-round residents of the lake, and no migration of seals from Bristol Bay into the lake occurs; (2) there are resident seals in the lake, and some seals from Bristol Bay migrate to the lake during the summer, but there is no interbreeding of seals from the two regions and the Bristol Bay seals do not stay in the lake during winter; (3) Iliamna Lake contains a mix of seals born in the lake and those born in the marine environment but who migrated to the lake (either temporarily or permanently), and these seals are interbreeding; or (4) there is no self-sustaining population of seals in the lake and migration is necessary to sustain the population of seals in the lake. The BRT found three of the four scenarios to be plausible, favoring explanations 1 and 2, but not ruling out 3. None of the BRT members considered the forth scenario likely (Boveng et al., 2016). For our DPS analyses, we recognize that questions remain regarding whether there is migration, and references below to seals in or from Iliamna Lake are not meant to imply that their birth location (either in Iliamna Lake or the marine environment) is known, but rather are an indication of the seals' location in Iliamna Lake at time of observation or sampling.

We first sought to determine whether the harbor seal population in Iliamna Lake is discrete in relation to the remainder of the taxon to which it belongs (i.e., the eastern North Pacific harbor seal subspecies, P. v. richardii). A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions specified in our DPS policy: “(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; or (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 ESA.” Because Iliamna Lake is entirely within the United States, the second discreteness criterion identified above is not relevant. Thus, we focused our assessment of discreteness on whether the harbor seals in Iliamna Lake are markedly separated from other harbor seals in the subspecies P. v. richardii, with emphasis on the nearest harbor seal stock in adjacent Bristol Bay. In addition to examining four categories of factors (i.e., physical, physiological, ecological, or behavioral factors) as mechanisms with the potential for providing marked separation by limiting the dispersal of breeders between populations, the BRT recognized that dispersal rates often cannot be directly measured in natural populations. As such, the BRT also decided to separately review the available genetic information for evidence of separation.

Physical Factors: Iliamna Lake is located at the base of the Alaska Peninsula, where it drains through the Kvichak River into Bristol Bay. Thus, harbor seal habitat in Iliamna Lake is separated from the nearest habitat commonly used by harbor seals in Bristol Bay by the Kvichak River. Reports regarding the length of the Kvichak River vary, with some older documents reporting the river is approximately 80 km (50 mi) in length (e.g., Orth 1971; BLM 2004), whereas more recent reports suggest it is closer to 115-120 km (71-75 mi) (e.g., Withrow and Yano 2009; Boveng et al., 2016; validated by a measurement of the river path between Kogging and Iliamna Lake using a high resolution topographic map). The discrepancy in reported distances of the river could be explained by changes in the river itself over time, variances in the starting and ending measurement points, or by using straight-line measurements on a map versus tracing the path of the river.

Although seals are found predominantly in the northeast region of Iliamna Lake, the most recent studies indicate harbor seals are found throughout Iliamna Lake, in rivers draining into the lake (Iliamna, Newhalen, and Gilbralter rivers), and throughout the Kvichak River (Alvarez 2013; Burns et al., 2011; Burns et al., 2012; Burns et al., 2013; Igiugig Tribal Village Council 2013; Mohr 2013; Van Lanen et al., 2013; Wilson 2013). The distance that seals would have to travel from the lake to Bristol Bay is well within the known distances that harbor seals travel (see previous discussion in “Habitat Use and Movements”). Thus, the evidence available does not indicate that the length of the Kvichak River nor the distance to the northeast region of Iliamna Lake (approximately 180 km from Bristol Bay) would be a physical barrier separating seals in Iliamna Lake from those in Bristol Bay.

Physical factors that could impede harbor seal passage in the Kvichak River include shallow braided sandbars and ice cover during winter. Although poorly adapted for travel on land, harbor seals in other areas have been suspected to cross land up to 0.15 km long and on inclines as steep as 25 degrees to get from one body of water to another (COSEWIC 2007), so it is reasonable to assume harbor seals have the capability to cross shallow braided sandbars in the Kvichak River.

Millions of sockeye salmon enter Iliamna Lake from marine waters annually via the Kvichak River along with other species of anadromous salmon. Also, another marine mammal species has been reported to travel to Iliamna Lake via the Kvichak River. Beluga whales, which are less agile and much larger than harbor seals, have been documented in the Kvichak River (Frost et al., 1983; Quakenbush 2002) in the spring, summer, and fall (Chythlook and Coiley 1994) and have been observed near Igiugig (Burns et al., 2013; Wilson 2013) and in Iliamna Lake (Mohr 2013). Thus, the available evidence suggests the Kvichak River is passable for harbor seals, at least part of the year when the river is not frozen over.

Individual BRT members were not in agreement regarding the scientific support for discreteness due to physical factors, but concluded “no strong evidence was found either for or against marked separation by physical barriers between harbor seals in Iliamna Lake and those in Bristol Bay” (Boveng et al., 2016). When we considered the best available information indicating that there is access between Iliamna Lake and Bristol Bay via the Kvichak River, which is passable at least part of the year, and that the distance between the two locations is within documented migration distances of harbor seals, along with with the opinion of the BRT, we concluded that the best available information does not support a conclusion that there is separation due to physical factors. As such, we find that harbor seals in Iliamna Lake are not markedly separated from other harbor seals of the subspecies P. v. richardii as a consequence of physical factors.

Physiological Factors: Unlike the Lacs des Loups Marins harbor seals in Canada, a landlocked population that lives exclusively in freshwater lakes and rivers and has documented physiological differences from the adjacent harbor seal population in marine waters (Smith et al., 1994), no studies exist suggesting there are statistically significant morphological or physiological differences between harbor seals in Iliamna Lake and other members of the subspecies P. v. richardii. Consequently, our discreteness analysis considered other types of evidence which may suggest physiological differences. Specifically, we considered observations obtained primarily from those with LTK of seals in Iliamna Lake having a different size, taste, pelage, and timing of pupping as compared to seals in Bristol Bay.

The concentration and availability of salmon to seals in Iliamna Lake in the summer may account for perceived differences reported by LTK in size and taste of seals in Iliamna Lake compared to seals in Bristol Bay. For example, several respondents of a recent LTK survey indicated that the “physical size of the seals grows every year following the salmon runs” (Burns et al., 2013), suggesting high availability and consumption of energy-rich salmon results in growth of seals during the summer. While the well-fed seals may have experienced salmon-fueled growth, the flavor of the harvested seals has been reported to become less desirable after the salmon runs, which is reportedly why seals in Iliamna Lake are not normally hunted in fall (Burns et al., 2013). The LTK perception of differences in pelage pattern and coloration is conflicting (see Burns et al., 2013), and no formal studies have been conducted to determine if there are significant differences in pelage patterns for harbor seals in Iliamna Lake versus elsewhere. Burns et al., (2013) speculate that the timing of the harvest of harbor seals in relation to the timing of the annual molt may play a role in the perceptions of difference in pelage texture or coloration. The observed variances in taste, body size, and pelage traits are more likely a reflection of seasonal diet, normal phenotypic plasticity, and individual variation rather than an indication that the seals in Iliamna Lake are physiologically distinct from those in the adjacent marine environment.

The timing of pupping for eastern North Pacific harbor seals ranges from March to September (Bigg 1969; Temte et al., 1991; Sease 1992). In Iliamna Lake, LTK reports about the timing of pupping are variable, with some reports of seal pups born on the lake ice during March and April, and other reports indicating pups are born during the first half of June (Burns et al., 2013). LTK observations of seal pup sightings in Iliamna Lake ranged from February to September, with the majority of pup sightings between April and August (Burns et al., 2013). Between 2009 and 2013, aerial surveys of Iliamna Lake documented newborn pups in June, July, and August (Burns et al., 2013). Both aerial survey observations and local resident observations of newborn seal pups in Iliamna Lake are within the normal range of pupping dates for the eastern North Pacific harbor seal subspecies.

Jemison and Kelly (2001) and Reijnders et al. (2010) showed that the timing of harbor seal pupping in the same location can shift by as much as several weeks over the course of a few decades. A review of data from 1975-2006 for harbor seals in Nanvek Bay, Alaska, (which is the main location within Bristol Bay for which harbor seal pupping data are available) indicates that the average peak pupping date can vary by a couple of weeks over just a few years (e.g., June 18 in 2002 vs. July 3 in 2006; see Table 1 in Boveng et al., 2016). This observed natural variation in timing of harbor seal pupping, along with scarcity of available data, may account for seemingly conflicting information in the scientific literature about the timing of pupping in Iliamna Lake relative to other harbor seals in Alaska (e.g., Burns et al., 2013 states “when compared to Bristol Bay seals only, the timing of pupping in Iliamna does not appear to be substantially delayed” versus Withrow et al. (2011) which states “Elsewhere in Alaska we observe harbor seals pupping much earlier, in May and June”). According to the BRT report (Boveng et al., 2016), the latest peak pupping date estimated for the Nanvek Bay region of Bristol Bay was July 5 (1990). Iliamna Lake aerial surveys flown in 2010, 2011, and 2013 indicate that the earliest peak pupping date was July 9 (2010). Sparse data about pupping dates in both Bristol Bay and Iliamna Lake lead us to conclude that while we do not know the precise timing of peak pupping of harbor seals in either region, we do know that timing of peak pupping can vary by a couple of weeks among years within a given location. Therefore, an overlap of the timing of pupping between seals in Bristol Bay and Iliamna Lake is possible, even though there may be a 15-day delay in the average peak pupping date in Iliamna Lake (July 12) versus the average peak pupping date in Nanvek Bay (June 27) (see Boveng et al., 2016). Burns et al. (2013) also concluded that compared to Bristol Bay, the timing of pupping in Iliamna Lake does not appear to be substantially delayed. A model developed to estimate the abundance and trend of harbor seals in Iliamna Lake (Boveng et al., in prep as cited in Boveng et al., 2016) predicted a peak pupping date of July 20 (versus the July 12 peak pupping date suggested by a simple average of the dates of maximum pup counts presented in Table 1 of the BRT Report); however, there was substantial imprecision in the model's estimate for the peak of pup counts in the lake.

Individual BRT members were not all in agreement regarding the degree of scientific support for discreteness based upon marked separation due to physiological factors. Regarding differences in physiological traits such as pelage coloration or texture and seal size and taste, the BRT report stated “whether any of these differences truly reflect physiological differences or separation is not clear, and the BRT was unaware of any documentation that these traits are heritable and would indicate separation or novel genetic diversity” (Boveng et al., 2016). Regarding physiological separation based on the notion that pupping in Iliamna Lake is potentially delayed by two to six weeks when compared to nearby populations, the BRT stated, “The sparsity of information currently available for Iliamna Lake, imprecision in determining the timing for any of the comparison populations, and the length of the harbor seal pupping period (approximately 6-10 weeks), reduce the confidence that can be placed on the apparent difference” (Boveng et al., 2016).

When we considered all the evidence currently available to us, including the lack of direct measures of physiological factors, the possibility that perceived differences in seals' appearance may be the result of natural individual variation, the imprecision of estimating pupping dates due to limited data, the potential overlap of pupping seasons between Iliamna Lake and Bristol Bay, and the large timeframe (March to September) for typical pupping times across the eastern North Pacific harbor seal taxon, we concluded that the available information is too weak for us to make a determination that there is separation based on physiological factors. As such, based on the available evidence, we find that harbor seals in Iliamna Lake are not markedly separated from other harbor seals of the subspecies P. v. richardii as a consequence of physiological factors.

Ecological Factors: Harbor seals are known to pursue and aggregate around concentrations of anadromous prey, particularly salmon (e.g., London et al., 2001, Orr et al., 2004, and Wright et al., 2007, as cited in Peterson et al., 2012; Middlemas et al., 2006; Hauser et al., 2008). Changes in distribution of seasonally abundant prey in the Pacific Northwest have been suggested as a possible explanation for seasonal movements of harbor seals in that area (Peterson et al., 2012), as harbor seals may move deliberately to exploit regions of higher prey availability (Hardee 2008). In Alaska, movements of 125 km by adult female harbor seals have coincided with seasonal eulachon runs in the Copper River Delta (Lowry et al., 2001). Savarese and Burns (2010) documented peak harbor seal numbers coincident with peaks in regional salmon abundance in the Bering Glacier region, and contended the salmon attracted large numbers of harbor seals to the region. Peterson et al. (2012) speculated that the observations of harbor seals using spatially separated haul-out sites on a seasonal basis may be related to seasonal changes in prey distribution and foraging opportunities.

Hauser et al. (2008) examined foraging by harbor seals in Iliamna Lake during July and August, when salmon are very abundant in the lake, and reported that the seals predominately fed on large salmonids (salmon, trout, char, and graylings) during the summer months. In addition to salmonids, Hauser et al. (2008) documented lampreys, smelts, sculpins, whitefishes, sticklebacks, and other unidentified prey items in the scat samples of harbor seals in Iliamna Lake. Thus, harbor seals in Iliamna Lake appear to be opportunistic feeders, consistent with the general pattern of harbor seals foraging on a wide variety of fish and invertebrate prey across their range, with regional differences in diet diversity (Jemison 2001; COSEWIC 2007). The prey items and seasonal concentration of salmon in the diet of seals in Iliamna Lake are consistent with those documented for harbor seals in other freshwater systems. For example, Middlemas et al. (2006) documented a summer peak in the contribution of salmonid prey to the diet of harbor seals observed in a Scottish river system; Beck et al. (1970) documented a seal in Edehon Lake, Canada with both trout and whitefish in its stomach; and Power and Gregoire (1978) reported that harbor seals in lakes ate various freshwater fish present in the lakes, including trout. Smith et al. (1996) examined stomachs of four harbor seals from the Lacs des Loups Marins which contained in large part lake whitefish, lake trout, and brook trout. Scat collected in the Nanvak Bay region of Bristol Bay also showed that harbor seals have a diverse diet, including some of the same types of prey species consumed in Iliamna Lake (e.g., salmon, smelts, sculpins) as well as other prey species (e.g., codfishes, herring, squid/octopus) (Jemison 2001).

Stable isotope analyses of whiskers and muscle tissue can provide some insights about harbor seal diets from several months prior to the date the samples were collected. Samples collected from a small number of subsistence harvested harbor seals from Iliamna Lake provide preliminary evidence that those specific seals consumed freshwater fish during the previous winter (Burns et al., 2013). These preliminary data and the typical timing of ice melt in the Kvichak River and Iliamna Lake (May-June) suggest that these samples were most likely collected from seals which had overwintered in the lake. However, these preliminary stable isotope data are not especially revealing due to the lack of data on whisker growth rates, tissue turnover times, and direct measures of the isotopic signature of potential prey resources (Burns et al., 2013).

If ecological factors prevented harbor seals in Iliamna Lake from mixing with other harbors seals during mating season, then there could be marked separation as a result of lack of opportunities for interbreeding. However, when considering the timing of the annual ice melt in the Kvichak River and Iliamna Lake, the sockeye salmon runs into Iliamna Lake, and the presumed mating seasons of seals in Bristol Bay and in Iliamna Lake, the BRT concluded that the timing of these events would not preclude opportunities for interbreeding by seals migrating from Bristol Bay to Iliamna Lake (Boveng et al., 2016).

The BRT members were in general agreement regarding the degree of scientific support for discreteness based upon marked separation due to ecological factors, and concluded there was “no strong evidence for separation” as a result of any of the ecological factors considered. Based on the available evidence, we find that harbor seals in Iliamna Lake are not markedly separated from other harbor seals of the subspecies P. v. richardii as a result of ecological factors.

Behavioral Factors: There are no scientific or LTK data available to assess whether mating behaviors (e.g., vocalizations or mate attraction displays) differ for seals in Iliamna Lake relative to those in Bristol Bay or other areas of the eastern North Pacific harbor seal range. Absent data available regarding mating behaviors of harbor seals in Iliamna Lake, the BRT construed the selection of relatively remote pupping sites in the northeastern region of Iliamna Lake (nearly 200 km from pupping sites in Bristol Bay) to be a behavior, and suggested the selection of the unusual location was evidence of some degree of separation, especially given harbor seals' site fidelity to breeding locations. The selection of distant pupping sites could be interpreted to mean that harbor seals in Iliamna Lake are not freely breeding with harbor seals in Bristol Bay, and lead to a conclusion there is marked separation. However, even a small amount of breeding dispersal from marine populations of harbor seals into Iliamna Lake could render the degree of genetic differentiation insignificant (Boveng et al., 2016), suggesting there may not be marked separation. The available LTK does not resolve this question, as opinions vary regarding whether seals in the lake are residents, migrants, or a mix of both (see Burns et al., 2013).

Previously we mentioned that harbor seals commonly follow anadromous prey into freshwater environments, such as rivers and lakes. Thus, we do not consider the mere presence of harbor seals in Iliamna Lake to be a behavioral adaptation suggestive of marked separation from harbor seals in the marine environment. However, some Alaska Natives in the Iliamna Lake region, including subsistence hunters, have postulated that the seals overwinter in the lake by using under-ice air gaps and haul-outs (Burns et al., 2013), although such winter habitats have not been documented in Iliamna Lake. Lack of data complicates a determination of whether use of under-ice shelters would be a special, learned behavioral adaptation that is unique to harbor seals over-wintering in freshwater environments, or if this behavior would be one that any harbor seal in a similar environment may adopt. Similar under-ice habitats in the Lacs des Loups Marins in Canada have been suggested as potential harbor seal lairs or breathing chambers (e.g., Smith and Horonowitsch 1987; COSEWIC 2007). This, in turn, suggests that use of such under-ice habitats may be an example of the behavioral plasticity that results in harbor seals using a range of behaviors and habitats in response to environmental conditions (Komers 1997; Vincent et al., 2010).

The Lacs des Loups Marins harbor seal population has shown evidence of modifying typical harbor seal behavior and adapting to its environment. It is postulated that, because no pups have been observed being born on the ice during that species' pupping time period (April, when the lakes are frozen), the Lacs des Loups Marins harbor seals have learned and adapted to their situation by whelping in under-ice shelters similar to subnivean birth lairs (snow caves) used by ringed seals (Consortium Gilles Shooner & Associes et al., 1991 as cited in Smith 1997). On the contrary, Burns et al. (2013) include information from local residents near Iliamna Lake who suggest some harbor seal pups may be born in Iliamna Lake in March and April, when the lake is still frozen, but pup on the ice, not under it. Due to this reported on-ice pupping, even if the harbor seals in Iliamna Lake utilize under-ice habitats as shelters or breathing chambers, such behavior would not be an adaptation necessary for successful pupping by seals that use the lake. Thus, unlike the Lacs des Loups Marins harbor seals, the evidence suggests that harbor seals in Iliamna Lake have not developed novel behaviors to facilitate pupping in a lake environment.

The BRT members were in general agreement regarding the degree of scientific support for discreteness based upon marked separation due to behavioral factors, as determined by selection of pupping locations far from those in Bristol Bay, and the ambiguity regarding the degree of migration and breeding dispersal (if any). Their judgment suggests behavioral separation is possible, but the available evidence is not strong, or is contradicted by other evidence. Our review of behavioral factors indicates that the observed harbor seal behaviors in Iliamna Lake are not uncommon; harbor seals in Iliamna Lake have not been documented to display behaviors outside the range of normal harbor seal behaviors (e.g., no unique mating, pupping, or foraging behaviors reported), although there are unresolved questions about migration and use of under ice shelters. There is no information available to suggest that harbor seals living in ice conditions year-round in a freshwater system would require different behavioral adaptations from harbor seals living in ice conditions in a saltwater or estuarine system. Despite the lack of these obvious indications of potential behavioral separation, we recognize the possibility that the selection of pupping locations distant from other known pupping locations could be construed as a behavior and indicate marked separation as a result of the selection of pupping sites limiting the potential for interbreeding. Therefore, we find that the best available evidence is not conclusive but indicates that harbor seals in Iliamna Lake may be markedly separated from other harbor seals of the subspecies P. v. richardii as a consequence of behavioral factors.

Genetics: To further consider whether harbor seals in Iliamna Lake are markedly separated from other populations of eastern North Pacific harbor seals as a consequence of physical, physiological, ecological, or behavioral factors, we examined available genetic evidence which may be indicative of separation. Genetic samples available from harbor seals in Iliamna Lake were compared to genetic samples available from harbor seals in the Egegik and Ugashik regions of eastern Bristol Bay. Bristol Bay has the nearest concentration of seals to Iliamna Lake, and the BRT determined “the seals in eastern Bristol Bay would be expected to be the most similar to the Iliamna Lake seals if there is breeding dispersal between the two areas, and therefore would be expected to pose the most stringent test for demonstrating discreteness” (Boveng et al., 2016).

Genetic samples have been collected and analyzed from 13 harbor seals in Iliamna Lake collected in six years from 1996 through 2012. The mitochondrial DNA (mtDNA) analysis revealed that 11 of 13 seals sampled from Iliamna Lake exhibited the same mtDNA haplotype (O'Corry-Crowe 2013), meaning all 11 seals had the same group of genes inherited from their female parent. The remaining two DNA samples did not yield results for this test. This specific mtDNA haplotype (Pvit-Hap#7) is the most common haplotype found in harbor seals sampled from Bristol Bay and is observed in roughly 21 percent of harbor seals from the Egegik and Ugashik regions of Bristol Bay (Burns et al., 2013; O'Corry-Crowe 2013). Thus, this haplotype is not unique to harbor seals in Iliamna Lake.

The identification of only one mtDNA haplotype in harbor seals from Iliamna Lake appears to suggest unusually low genetic diversity. For comparison, 76 harbor seals sampled from the Egegik and Ugashik regions of eastern Bristol Bay exhibited 33 different mtDNA haplotypes (O'Corry-Crowe 2013; Burns et al., 2013). If seals from the Egegik and Ugashik regions were immigrating into the lake and staying year-round, there would be almost an 80 percent likelihood that one of the other mtDNA haplotypes, not Pvit-Hap#7, would be seen in samples collected from Iliamna Lake (O'Corry-Crowe 2013). However, because mtDNA is inherited from the mother, mtDNA diversity analysis cannot determine if male seals are migrating to and from the lake and breeding with resident female seals. Hardee (2008) recognized similar limitations of mtDNA given observations of male harbor seals in the Pacific Northwest traveling larger distances than previously believed, possibly to mate in a separate geographic region before returning to their home site. Therefore, conclusive results about the level of genetic diversity require analyses using nuclear DNA (nDNA; which also provides information from the male parent), and more formal analyses of mtDNA with statistical comparisons to harbor seals sampled from other regions within the range of the taxon (O'Corry-Crowe 2013). These more stringent data regarding genetic diversity do not exist.

In addition to examining the existing genetic diversity of the samples, analyses were conducted to examine the extent of genetic differentiation between harbor seals sampled in Iliamna Lake from those sampled in the Egegik and Ugashik regions of eastern Bristol Bay. The results of analyses examining genetic differentiation using both mtDNA and nDNA suggest that the harbor seals sampled in Iliamna Lake were genetically differentiated from harbor seals sampled in the Egegik and Ugashik regions of eastern Bristol Bay (Burns et al., 2013; O'Corry-Crowe 2013). The results of these analyses also suggest that male and female-mediated dispersal between the Egegik and Ugashik regions of eastern Bristol Bay and Iliamna Lake was restricted (Burns et al., 2013; O'Corry-Crowe 2013). Although no directed comparisons were conducted between Iliamna Lake samples and genetic samples collected from harbor seals in other areas of Bristol Bay or other portions of the range of the taxon, the measure of mtDNA genetic differentiation between seals in Iliamna Lake and those in eastern Bristol Bay yielded results showing substantially greater genetic differentiation than all previous pairwise comparisons between the other major centers of harbor seal abundance in Alaska (O'Corry-Crowe 2012; Boveng et al., 2016). These genetic differentiation results are suggestive of the presence of a small, isolated population of harbor seals in Iliamna Lake.

O'Corry-Crowe (2013) identifies several limitations of the findings for the Iliamna Lake samples. He cautions that the sample size is extremely small and that questions regarding the patterns of kinship among the collected samples remain unresolved (i.e., if some of the samples were from related individuals, then the data could be skewed and not representative of a random sampling of the population), and indicates that genetic differentiation may be enhanced in small populations when there is a rapid rate of genetic drift, even when there is continued gene flow. Although the 13 genetic samples from seals in Iliamna Lake were collected between 1996 and 2012, most samples were collected during months when seasonal migrants would not be expected to be in the lake, thus the power to detect seasonal migrants may be low. Conversely, the timing of the samples may be benficial for considering if the resident seals in the lake are discrete from their marine counterparts because for most samples seasonal migrants would not be expected to be present in the lake. O'Corry-Crowe (2013) also provides recommendations for future genetic research to resolve lingering issues, including analyzing 20 microsatellite loci (only 9-11 loci were analyzed) and updating the techniques used for the analyses to newer technologies, which would increase the power to resolve genetic questions. We also note that the tests for genetic differentiation compared the Iliamna Lake samples solely against samples collected from the Egegik and Ugashik regions of eastern Bristol Bay. Thus, the samples used for the comparison group may not be representative of all the seals that could migrate to Iliamna Lake.

The genetic data available suggest the harbor seals sampled in Iliamna Lake have low mtDNA diversity, possess the most common mtDNA haplotype found in Bristol Bay harbor seals, and are genetically differentiated from harbor seals sampled in the Egegik and Ugashik regions of eastern Bristol Bay. Given the concerns about the limited nature of the available genetic information previously discussed here and by O'Corry-Crowe (2013), ambiguity remains regarding the degree of separation, and hence discreteness, of harbor seals in Iliamna Lake. However, in the absence of more samples collected from a greater number of seals in Iliamna Lake and the Kvichak River, to include the potential migration season, and/or completion of additional tests such as those recommended by O'Corry-Crowe (2013), we consider the existing genetic results to be the best available data upon which to base our determination. These genetic results support a decision that harbor seals in Iliamna Lake are markedly separated from harbor seals in eastern Bristol Bay, and by assumption, from the remainder of the taxon.

We find the available evidence for discreteness based on physical, physiological, or ecological factors to be unconvincing. The available evidence based on behavioral factors is not conclusive, but the selection of pupping locations distant from other known pupping locations could be construed as a behavior and indicate marked separation as a result of the selection of pupping sites limiting the potential for interbreeding. The strongest evidence for discreteness derives from 13 genetic samples collected from seals in Iliamna Lake. Analyses of these samples strongly indicate the seals from Iliamna Lake are genetically differentiated from seals sampled in two locations within Bristol Bay (Ugashik and Egegik), the nearest concentration of seals to Iliamna Lake with genetic data available. Genetic comparisons of samples for the entire taxon do not exist, but this region within Bristol Bay was expected to provide the most stringent comparison for discreteness if there is breeding dispersal between the two regions. The BRT was in strong agreement that the genetic data reflect marked separation, although the BRT acknowledged that the mechanism of such separation is unknown and the data are limited. It is possible that the limited available genetic data may accurately represent the situation in both Iliamna Lake and all of Bristol Bay, or that additional genetic analysis from P. v. richardii animals sampled from elsewhere in their range or from additional seals in Iliamna Lake, could result in a different conclusion. Nonetheless, the best available genetic information leads us to conclude that some portion, and perhaps all, of the harbor seals in Iliamna Lake likely constitute a resident population that is genetically differentiated from harbor seals in eastern Bristol Bay, and thus meet the criteria for consideration as a discrete entity per our DPS policy (61 FR 4722; February 7, 1996).

Having determined that resident seals from Iliamna Lake are likely discrete, at least from harbor seals in the Egegik and Ugashik regions of nearby Bristol Bay, we next sought to determine whether they are significant to the P. v. richardii subspecies.

In carrying out the significance examination per our DPS policy (61 FR 4722; February 7, 1996), we are to consider available scientific evidence of the population'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 the 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.

This determination, however, is highly fact specific and may consider factors besides those enumerated above. Further, significance of the discrete population segment is not necessarily determined by existence of one of these classes of information standing alone. Information analyzed under these and any other applicable considerations is evaluated relative to the biological and ecological importance of the discrete population to the taxon as a whole. Accordingly, all relevant and available biological and ecological information is analyzed. As we explained in the DPS policy, “the principal significance to be considered in a potential DPS will be the significance to the taxon to which it belongs” (61 FR 4722, 4724; February 7, 1996). Finally,we assessed the biological and ecological significance of the seals in Iliamna Lake to the P. v. richardii (the eastern North Pacific harbor seal) taxon in light of Congressional guidance that the authority to list DPSs be used “sparingly” while conserving the genetic diversity of the species (see Senate Report 151, 96th Congress, 1st Session).

Persistence in an Unusual or Unique Ecological Setting: In assessing the “persistence of the discrete population segment in an ecological setting unusual or unique for the taxon,” we considered whether specific characteristics of the Iliamna Lake environment are unusual or unique; whether persistence in the Iliamna Lake environment is unusual or unique; and whether there are adaptations as a result of persistence in an unusual or unique environment which would result in the discrete population being biologically or ecologically significant to the taxon P. v. richardii.

The diet of harbor seals in Iliamna Lake is consistent with what we would expect for the species occupying a freshwater system dominated by anadromous salmon. Hauser et al. (2008) indicate that harbor seals in Iliamna Lake consumed large amounts of sockeye salmon when they were seasonally abundant, and also fed on trout, char, graylings, lampreys, smelts, sculpins, whitefishes, sticklebacks, and other unidentified prey items. Burns et al. (2013) examined eight harbor seal stomachs collected from seals harvested from Iliamna Lake in 2011 and 2012; only three had identifiable prey items and the remaining five stomach were either empty, only had worms, or had unidentifiable contents. An examination of the identifiable prey items found that these seals had consumed small or young salmonids (salmon and/or trout), threespine stickleback, and Arctic grayling or lake whitefish (Burns et al., 2013). The variety and types of prey items in the diet of these sampled seals in Iliamna Lake reflects harbor seals being opportunistic feeders (Carretta et al., 2015), and the available data suggest no unusual or unique prey for the habitat occupied.

We also considered whether the habitat available for use by seals in Iliamna Lake is unusual or unique. Harbor seals commonly use reefs, sand and gravel beaches, sand and mud bars, island beaches, and ice (glacial ice, pan ice, sea ice, or icebergs) as haul-out sites. Harbor seals in Iliamna Lake are known to haul-out on rocky and sandy substrates, sand bars, small islands, and ice near pressure cracks or polynas (Burns et al., 2011; Burns et al., 2012). None of these haul-out substrates are unique or unusual for harbor seals. Harbor seals in Iliamna Lake are reported to pup both on ice (Burns et al. 2013) and other haul-outs in the absence of ice. There is no evidence of seals in Iliamna Lake pupping in air pockets beneath the ice, which would be unusual. Such use has been hypothesized for the harbor seals in the Lacs des Loups Marins (Consortium Gilles Shooner & Associes et al. 1991 as cited in Smith 1997; DFO 2016). According to LTK, pupping in Iliamna Lake likely occurs at island beaches or sandbars in the northeastern portion of the lake, which is consistent with the types of substrates upon which aerial surveys documented pups (i.e., on low-lying islands and sand spits; Burns et al., 2013). Nothing suggests that harbor seals in Iliamna Lake display unusual or unique pupping behaviors (including habitat usage).

Smith and Horonowitsch (1987) studied the ice at one location within the Lacs des Loups Marins and documented what they refer to as “shoreline ice-steps” which they speculated could be used as breathing chambers for over-wintering seals in the lake. LTK suggests the presence and use of similar under-ice haul-outs in Iliamna Lake (Burns et al., 2013). While this would represent unusual habitat use for harbor seals in general, and unique habitat for harbor seals of P. v. richardii, it would be consistent with the general observation that harbor seals exhibit wide variation in habitat use, rather than being indicative of an adaptation by seals in Iliamna Lake that would be significant to the P. v. richardii taxon as a whole (see further discussion of habitat adaptation below).

Harbor seals have the broadest distribution and occur in more different habitats than any other pinniped species (Burns 2002; COSEWIC 2007), and are frequently and commonly observed in freshwater systems (Burns 2002). Mansfield (1967) provides information about sightings of harbor seals in rivers and lakes in Arctic Canada (referencing Doutt 1942 and Harper 1961 for detailed summaries of Arctic harbor seals' freshwater distribution), indicating that harbor seals have “a strong liking for fresh water” and are often found in estuaries and freshwater habitats “far from the sea.” Beck et al., (1970) report harbor seals in the Thlewiaza River system and associated lakes west of Hudson Bay. Smith et al. (1994) and Smith (1997) provide an extensive list of reports of harbor seals documented in freshwater systems. Smith et al. (1996) conducted analyses involving both the Lacs des Loups Marins harbor seals as well as a second group of “lacustrine” harbor seals from Kasegalik Lake in Canada's Northwest Territory. Middlemas et al. (2006) provide documentation of harbor seals in a Scottish river system. The Committee on the Status of Endangered Wildlife in Canada (COSEWIC) reports that harbor seals occasionally ascend the St. Lawrence River to the Great Lakes (COSEWIC 2007). In the Bristol Bay region, harbor seals have been observed in other lakes in addition to Iliamna Lake, such as Lake Becharof and Naknek Lake (Mathisen and Kline 1992). Thus, the presence of harbor seals in freshwater systems or lakes, including Iliamna Lake, is not unusual or unique for the species.

Year-round persistence of harbor seals in a lake is less common. Besides the unknown number of harbor seals occupying Iliamna Lake through the winter, the Lacs des Loups Marins harbor seals are the only other documented instance of harbor seals persisting in freshwater systems year-round. However, a review of available literature suggests the possibility this scenario may be more prevalent than just these two groups of harbor seals. For example, Mansfield (1967) states that the population of freshwater harbor seals in the Upper and Lower Seal Lakes east of Hudson Bay (a.k.a. the Lacs des Loups Marins) is not unique given reports of harbor seals found in other freshwater systems of Canada. Beck et al. (1970) postulated that harbor seals may live in the Thlewiaza River and associated lakes year-round, and documented a pup in the Edehon Lake, leading them to conclude that harbor seal reproduction is successful in that freshwater habitat. Beck et al. (1970) also concluded that individual seals in those lakes may be born and spend most or all of their lives in freshwater, but there was no reason to believe they were an isolated population. In Alaska, winter aerial surveys led Savarese and Burns (2010) to suggest that harbor seals are present year-round in Vitus Lake, a tidally-influenced lake near the Bering Glacier. No pups were documented during that study and diet and genetic data indicated seals from various stocks moved into Vitus Lake to take advantage of local salmon runs (Savarese and Burns 2010). These reports of potential year-round presence of harbor seals in various freshwater systems are sporadic, and do not confirm self-sustaining populations exist in those other freshwater systems. Therefore, it is reasonable to conclude that the year-round persistence of a discrete population of harbor seals in the freshwater environment of Iliamna Lake is at least unusual, if not unique, to the P. v. richardii harbor seal taxon.

The BRT considered whether the persistence of the population of harbor seals in this setting is important to the taxon as a whole (see discussion in Boveng et al., 2016). Specifically, the BRT considered whether harbor seals in Iliamna Lake exhibit any adaptations to the environment which would be biologically or ecologically significant to the P. v. richardii harbor seal taxon. The evidence of such adaptations is not necessarily required to demonstrate significance; however, the BRT examined such evidence here in light of harbor seals' widespread and diverse habitat and diet. The BRT considered the physiology of the seals in Iliamna Lake as well as their over-wintering strategy as possible indicators of adaptations of potential importance for the taxon.

As previously discussed, some local residents of the Iliamna Lake region have suggested they think the harbor seals harvested from Iliamna Lake taste, look, or feel different (e.g., seals are fatter; pelage is softer) from those harvested in the marine environment (Burns et al., 2013). There was, however, a lack of consensus regarding the perceived differences (e.g., some say seals from Iliamna Lake are darker than marine counterparts, others say the seals are lighter) among the local residents interviewed. Moreover, attributes such as fatness and softness of the coat, or the way the seals taste when consumed, are not necessarily inherited traits and could be acquired during time spent in the lake. Unlike other lake seal species, there are no data available to document whether morphological (e.g., craniometric) differences exist; if such morphological differences are present, they are not distinct enough to be generally recognized in traditional knowledge of Alaska Native residents in the area (see discussion in Boveng et al., 2016). There is no evidence to suggest these reported physical differences in fatness, softness, or taste are adaptations that would convey significance of these seals to the taxon.

The use of air gaps under the ice in winter is a potential adaptation to freshwater life in sub-Arctic regions, and is only documented among harbor seals in one location (P. v. mellonae of Lacs des Loups Marins). Whether the use of under-ice shelters would be a true adaptation to a freshwater environment which freezes over, or would simply be a response to habitat conditions that may be used by any harbor seal exposed to those conditions, remains uncertain. On the importance of this particular behavior relative to significance of seals in Iliamna Lake to the P. v. richardii subspecies, the BRT concluded any assessment would “be in the realm of judgment or even speculation” (Boveng et al.,2016). Even though harbor seals in Iliamna Lake cope with the extensive ice cover in winter, there is no indication they have adapted or modified their breeding, whelping, or pup-rearing behaviors in a manner unusual for, or of significance to, the taxon.

The BRT members were in strong agreement that harbor seals persisting year-round and breeding in a freshwater lake that freezes over almost completely nearly every year is unique for the subspecies P. v. richardii, and unusual for the harbor seal species. However, there was a lack of consensus amongst BRT members whether the available evidence reflects physical, life-history, or other adaptations as a result of persisting in an unusual or unique ecological setting which would make the harbor seal population in Iliamna Lake biologically or ecologically significant to the broader taxon. The discrepancies in opinion stemmed from “differences in assessing the weights of several lines of qualitative and indirect evidence” (Boveng et al., 2016). The BRT also concluded (1) seals from the marine population would be able to persist in the Iliamna Lake setting, and (2) even if seals from the marine population were unable to persist in Iliamna Lake, the “lack of `ecological exchangeability’ is not important to the persistence of the taxon as a whole” (Boveng et al., 2016). Ultimately, the BRT's assessment favored “a conclusion that the evidence does not support significance” (Boveng et al., 2016). We agree that persistence of a population of harbor seals in the unusual or unique ecological setting of Iliamna Lake in and of itself does not confer significance of that population to the taxon. The absence of evidence suggesting the harbor seals in Iliamna Lake have adaptations to their environment which would benefit the taxon to which they belong leads us to determine that the persistence of a population of harbor seals in Iliamna Lake is not significant to the subspecies P. v. richardii.

Evidence That Loss Would Result in Significant Gap in Range: Eastern North Pacific harbor seals range from Mexico northward along the coastlines of the continental U.S. and Canada and much of Alaska. In Alaska, harbor seals of this subspecies are distributed almost continuously throughout the southern coastal waters in the region surrounding Iliamna Lake. In assessing whether the loss of harbor seals in Iliamna Lake would result in a significant gap in the range, we considered a scenario whereby all the seals in the lake were extirpated and there was no migration into the lake, either because there is no migration currently occurring or because a future physical barrier prevents migration. Given the extensive and continuous range of the eastern North Pacific harbor seals, the loss of the small proportion of habitat in Iliamna Lake would not result in a significant gap in the range. Furthermore, the evidence indicating possible seasonal movement of some harbor seals from Bristol Bay to Iliamna Lake suggests that the habitat in this portion of the range could be reoccupied.

The loss of harbor seals in Iliamna Lake would not have a detrimental impact to other harbor seal populations that comprise the subspecies P. v. richardii, as this is not an interstitial population of harbor seals whose loss would isolate another population from the main group. Additionally, there are only an estimated 400 harbor seals in Iliamna Lake (Boveng et al., 2016), so this population represents a minute fraction of the total population ofeastern North Pacific harbor seals, estimated at 360,000 (DFO 2010).

The BRT was in strong agreement that the evidence is clear that the loss of the Iliamna Lake segment would not result in a significant gap in the range of the taxon, and we agree.

Evidence of Only Surviving Natural Occurrence: Harbor seals in taxon P. v. richardii are currently found throughout their historic range along the coasts from Baja California, Mexico, northward to Alaska, and west through the Gulf of Alaska and Aleutian Islands, and in the Bering Sea north to Cape Newenham and the Pribilof Islands. There are no known introductions of this species to any place outside its historic range, thus it is naturally occurring wherever it occurs. The BRT was unanimous in its assessment that harbor seals in Iliamna Lake are not the only surviving natural occurrence of the taxon. We concur in that determination.

Evidence of Marked Difference in Genetic Characteristics: As discussed above, the limited genetic data available from seals in Iliamna Lake indicate 11 of 13 (2 samples did not yield results) sampled seals had the same mtDNA haplotype, an indication of possible low genetic diversity (O'Corry-Crowe 2013). Unlike the Lacs des Loups Marins harbor seals, which exhibit mtDNA haplotypes that are only found in seals from the Lacs des Loups Marins (Smith 1997), the single mtDNA haplotype exhibited in the harbor seals in Iliamna Lake is not unique to Iliamna Lake. Rather, it is the most common mtDNA haplotype found in samples from harbor seals in Bristol Bay (O'Corry-Crowe 2013; Van Lanen et al., 2013). One plausible explanation for the single haplotype found in all the harbor seal samples from Iliamna Lake is that these seals are simply a genetic subset of seals from Bristol Bay, and have lost rather than gained substantial amounts of genetic diversity since isolation. An alternative explanation is the seals in Iliamna Lake have been isolated a long time, during which they may have accumulated genetic differences at other loci (not currently examined) via mutation, especially for loci under selective pressure (i.e., adaptation). However, as previously discussed, only a small number of genetic loci were tested and the sample size was small, so the reason for a single mtDNA haplotype is undeterminable at this time. We conclude that the best scientific and commercial data available, a single mtDNA haplotype which is commonly found in other populations of the taxon and the data used to assess discreteness of the population, do not indicate that harbor seals in Iliamna Lake have novel genes which could be significant to the taxon as a whole.

There is no strong evidence to indicate the existence of phenotypic differences between harbor seals in Iliamna Lake and those in other portions of the taxon's range. Although there have been some LTK reports that the seals in Iliamna Lake may taste different or have pelage of varying appearance from seals in Bristol Bay, there have been no studies assessing whether these perceived differences are the result of significant differences in genetics. The BRT members did not reach consensus regarding this issue, with a slight preponderance of opinion favoring the conclusion that the genetic characteristics of seals in Iliamna Lake did not convey significance to these seals in regards to P. v. richardii. Some members considered the data available as mostly insufficient for drawing a conclusion regarding significance, and some considered the evidence against significance slightly more persuasive than the evidence for significance. Accordingly, we find that the genetic characteristics (i.e., mtDNA haplotype) found in seals from Iliamna Lake do not differ markedly from those found in Bristol Bay and therefore determine that the best available genetic data, albeit limited, supports a conclusion that harbor seals in Iliamna Lake do not have genetic characteristics that are significant to the taxon as a whole.

Overall Significance to the Taxon: We considered several factors that could indicate whether harbor seals in Iliamna Lake may be biologically and ecologically significant to the taxon as a whole. Of the four factors delinated in the 1996 DPS policy, we conclude that there is evidence of only one: The population persists in an unusual or unique setting for the taxon. As we explained in our policy, “occurrence in an unusual ecological setting is potentially an indication that a population segment represents a significant resource of the kind sought to be conserved by the” ESA and in “any actual case of a DPS recognized in part on this basis, the Services will describe in detail the nature of this significance when accepting a petition or proposing a rule” (61 FR at 4724). While year-round persistence in the freshwater environment of Iliamna Lake is unique to the taxon P. v. richardii and unusual for the entire species, we agree with the BRT (Boveng et al., 2016) that the best scientific and commercial data available are limited and suggest that the persistence of the seals in Iliamna Lake is not significant to the taxon as a whole. The loss of the Iliamna Lake segment would not result in a gap in the range of the taxon, and the harbor seals in Iliamna Lake are not the only surviving natural occurrence of the taxon; thus harbor seals in Iliamna Lake do not demonstrate significance to the taxon based on these factors. Further, available genetic data suggest that harbor seals in Iliamna Lake are not significant to the larger taxon. Although the best available genetic data indicate that at least some of the seals in Iliamna Lake are distinct from harbor seals in the eastern regions of nearby Bristol Bay, the genetic characteristics (e.g., the single mtDNA observed in samples from seals in Iliamna Lake is the most common haplotype found in seals frim Bristol Bay) do not appear to differ in ways that would convey significance to the P. v. richardii subspecies.

Individual BRT members were not in agreement regarding the degree of scientific support overall for or against the significance of seals in Iliamna Lake to the P. v. richardii subspecies, but stated “the slight majority judgment against significance of the population segment . . . summarized a diversity of views about how much weight to place on the various lines of mostly weak and qualitative evidence” and that “the evidence itself must be characterized as mostly indirect, qualitative rather than quantitative, and equivocal for the purpose of demonstrating biological or ecological importance to the broader taxon” (Boveng et al., 2016). Taking into consideration the totality of all the information discussed above regarding the possible significance of harbor seals in Iliamna Lake to the P. v. richardii taxon, including the qualitative and equivocal nature of the available information, along with the guidance from legislative history to identify DPSs “sparingly,” we find that the available evidence supports a conclusion that the harbor seals in Iliamna Lake are not significant to the remainder of the taxon.

Based on the best scientific and commercial data available, we find the evidence for marked separation of harbor seals in Iliamna Lake from the remainder of the taxon based on physical, physiological, ecological or behavioral factors to be unconvincing or weak. The strongest support for marked separation comes from the best available genetic data which, although limited and preliminary, support a conclusion that at least some of the harbor seals in Iliamna Lake are likely isolated from harbor seals in the Egegik and Ugashik regions of eastern Bristol Bay. Thus, we conclude that the harbor seal population in Iliamna Lake is separated from other populations of the taxon and meet the discreteness criterion of our DPS policy (61 FR 4722; February 7, 1996).

Per the second component of our DPS Policy, we are to consider available scientific evidence of the discrete population's importance to the taxon to which it belongs (61 FR 4722; February 7, 1996). Our review of the best available information suggests the only characteristic which may make this population of harbor seals unique within its taxon is the fact that they persist year-round in a freshwater system which freezes over to some degree in most winters. While that characteristic is unique within the subspecies P. v. richardii, we determined such persistence is not biologically or ecologically important to the taxon as a whole. Furthermore, the information available supports a conclusion that loss of this population would not be detrimental to the persistence of the taxon or constitute a gap in the range of the taxon; this population is not the only natural surviving population; and there are no unique genetic characteristics conveying significance of this population to the taxon. After reviewing the best available data as they apply to the significance criterion, we conclude that the harbor seals in Iliamna Lake are not significant to the taxon P. v. richardii.

Under our DPS Policy, both the discreteness and significance elements must be met to qualify as a DPS. Our review has determined that the seals persisting year-round in Iliamna Lake are discrete but not significant; therefore, the harbor seals in Iliamna Lake do not qualify as a DPS and are not a listable entity under the ESA.

In assessing whether the actions in the petition are warranted, we reviewed the best available scientific and commercial information available, including the BRT report, the petition and literature cited in the petition, published and grey literature relevant to the topic, correspondence with experts in academic and government institutions, documentation of LTK, and public comments. On the basis of this review, we have determined that harbor seals in Iliamna Lake meet the criteria for discreteness but do not meet the criteria for significance. As such, the harbor seals in Iliamna Lake do not meet all the criteria necessary to constitute a DPS, and thus are not a listable entity under the ESA. Therefore, we find that the petitioned actions to list the harbor seals in Iliamna Lake as a threatened or endangered species under the ESA, and to designate critical habitat, are not warranted.

In our 90-day finding (78 FR 29098; May 17, 2013), we indicated we were commencing a status review of the harbor seals in Iliamna Lake. To assist our evaluation of whether the seals in Iliamna Lake constitute a DPS, the BRT prepared a report which compiled background information about the harbor seals in Iliamna Lake and evaluated the scientific information relevant to the DPS criteria (Boveng et al., 2016). Upon our determination that the DPS criteria were not met and the seals in Iliamna Lake are not a “species” under the ESA, there is no need to complete the status review by conducting a threats assessment or extinction risk assessment in light of the factors in section 4(a)(1) of the ESA.

In some instances, where we find a petitioned action is not warranted because the petitioned population does not constitute a “species” under the ESA, we have initiated a status review of a related or larger population (e.g., the 12-month determination that the petitioned action to list Lynn Canal Pacific herring was not warranted, followed by a status review of the Southeast Alaska population of Pacific herring; 73 FR 19824; April 11, 2008). Here, the scope of the petition was limited to the seals in Iliamna Lake, and since the most recent abundance data for the Bristol Bay harbor seal stock (the stock that includes seals in Iliamna Lake) indicates this stock increased from an estimated 18,577 seals in 2005 to an estimated 32,350 seals in 2011 (Allen and Angliss 2014; Muto and Angliss 2015), we are not initiating a status review of the Bristol Bay harbor seal stock at this time.

A complete list of all references cited herein is available upon request (see ADDRESSES).

The authority for this action is the Endangered Species act of 1973, as amended (16 U.S.C. 1531 et seq.).

The text of the Agreement and Order appears below.1

1. In accordance with the Consumer Product Safety Act, 15 U.S.C. 2051−2089 (“CPSA”) and 16 CFR 1118.20, PetSmart, Inc. (“PetSmart”), and the United States Consumer Product Safety Commission (“Commission”), through its staff, hereby enter into this Settlement Agreement (“Agreement”). The Agreement and the incorporated attached Order resolve staff's charges set forth below.

2. The Commission is an independent federal regulatory agency, established pursuant to, and responsible for, the enforcement of the CPSA, 15 U.S.C. 2051−2089. By executing the Agreement, staff is acting on behalf of the Commission, pursuant to 16 CFR 1118.20(b). The Commission issues the Order under the provisions of the CPSA.

3. PetSmart is a corporation, organized and existing under the laws of the state of Delaware, with its principal place of business in Phoenix, AZ.

4. Between April 2009 and September 2013, PetSmart imported and offered for sale in the United States, approximately 127,444 “Great Choice” or “Top Fin” brand 1.75 gallon, brandy snifter-style glass fish bowls (“Fish Bowls” or “Subject Products”) .

5. The Fish Bowls are a “consumer product,” “distribut[ed] in commerce,” as those terms are defined or used in sections 3(a)(5) and (8) of the CPSA, 15 U.S.C. 2052(a)(5) and (8). PetSmart is an “importer,” “manufacturer” and “retailer” of the Fish Bowls, as such terms are defined in sections 3(a)(11) and (13) of the CPSA, 15 U.S.C. 2052(a)(11) and (13).

6. The Fish Bowls contain a defect which could create a substantial product hazard and create an unreasonable risk of serious injury because they can crack, shatter, or break during normal use, posing a laceration hazard to consumers.

7. Between August 2011 and January 2014, PetSmart received at least 19 incident reports of Fish Bowls cracking, breaking, or shattering during normal use, which, in at least 12 instances, resulted in serious injuries, including deep lacerations requiring stitches and severed tendons necessitating surgery.

8. PetSmart received at least three reports of consumers sustaining serious injuries during normal use of the Fish Bowls between August 2011 and September 2011 but neither initiated an investigation into the Subject Products in response to these reports of serious injury nor immediately reported to the Commission.

9. In May 2013, after receiving additional reports, including two reports of serious injuries to consumers, PetSmart initiated an investigation and evaluation of the defect and risk associated with the Fish Bowls. That investigation, which concluded in July 2013, identified deficiencies in the thickness and distribution of the glass in the Fish Bowls. During its investigation, PetSmart continued to receive reports of serious injury caused by the Fish Bowls. Firms may conduct a reasonably expeditious investigation, not normally exceeding 10 days, to evaluate their reporting obligations. See 16 CFR 1115.14(d). PetSmart's investigation took over two months to complete.

10. PetSmart stopped sale of the Fish Bowls in September 2013. At the time PetSmart stopped sale of the Fish Bowls, PetSmart had received at least 12 reports of consumers being injured during normal use of the Subject Products.

11. PetSmart did not file a Full Report with the Commission until January 31, 2014, pursuant to 15 U.S.C. 2064(b). PetSmart and the Commission jointly announced a recall of 10,200 Fish Bowls on April 24, 2014.

12. PetSmart's Full Report contained information on only 10,211 Fish Bowls imported and sold between February 2013 and September 2013. However, information produced by PetSmart during staff's civil penalty investigation revealed that PetSmart had actually sold a total of 91,500 Fish Bowls between March 2010 and September 2013 that posed the same laceration hazard. PetSmart and the Commission jointly announced an expanded recall of 91,500 Fish Bowls on November 17, 2015.

13. By the date of the expanded recall, PetSmart received at least 32 reports of Fish Bowls cracking, breaking or shattering during normal use, including 18 reports of injury. PetSmart received at least six of these reports of injury after the first recall.

14. Despite having information that the Fish Bowls contained a defect and created an unreasonable risk of serious injury, PetSmart did not notify the Commission immediately of such defect or risk, as required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4), in violation of section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).

15. Because the information in PetSmart's possession constituted actual and presumed knowledge, PetSmart knowingly violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).

16. Pursuant to Section 20 of the CPSA, 15 U.S.C. 2069, PetSmart is subject to civil penalties for its knowing violation of section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).

17. PetSmart's January 31, 2014 Full Report identified the Subject Products as 10,211 Fish Bowls, sold between February 2013 and September 2013, which posed a laceration hazard to consumers. The Full Report did not identify an additional 81,300 units of Subject Products that were sold prior to February 2013 that posed the same hazard and had been the subject of incident and injury reports received by PetSmart.

18. By failing to identify the correct amount and distribution dates of the Subject Products in PetSmart's Full Report, PetSmart knowingly misrepresented the scope of consumer products subject to an action required under section 15 of the CPSA. As a result of PetSmart's misrepresentation, the April 24, 2014 CPSC press release announcing the recall inaccurately stated that “[a]bout 10,200” Fish Bowls were affected by the hazard posed by the Fish Bowls. An expansion of the recall was announced on November 17, 2015.

19. By knowingly misrepresenting the scope of consumer products subject to an action under section 15 of the CPSA, PetSmart knowingly violated section 19(a)(13) of the CPSA, 15 U.S.C. 2068(a)(13), as the term “knowingly” is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d).

20. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, PetSmart is subject to civil penalties for its knowing violation of section 19(a)(13) of the CPSA, 15 U.S.C. 2068(a)(13).

21. PetSmart's settlement of this matter does not constitute an admission of staff's charges in paragraphs 4 through 20 above.

22. Between November 2013 and January 2014, PetSmart corresponded with CPSC staff regarding certain Fish Bowl incidents. In this correspondence, PetSmart clearly stated that it first began selling the Fish Bowls in 2009. PetSmart also stated that it believed any product issues were limited to Fish Bowls manufactured for sale in 2013. CPSC staff did not ask PetSmart anything further regarding PetSmart's determination that the issues were limited to Fish Bowls sold between February 2013 and September 2013.

23. Following this correspondence, in January 2014, PetSmart provided the Commission with its report under section 15(b) of the CPSA, 15 U.S.C. 2064(b) concerning PetSmart's receipt of complaints and incident reports about the Fish Bowls. PetSmart's report provided information related only to Fish Bowls manufactured for sale in 2013, consistent with its communications to CPSC staff. CPSC staff did not ask PetSmart anything further regarding Fish Bowls sold prior to 2013.

24. On April 24, 2014, in conjunction with the Commission, PetSmart voluntarily announced a recall of Fish Bowls sold at PetSmart between February 2013 and September 2013.

25. PetSmart conducted the April 24, 2014, voluntary recall of the Fish Bowls, as well as the section 15(b) reporting, out of an abundance of caution and without PetSmart having concluded that the Fish Bowls contained a defect, posed a substantial product hazard, or created an unreasonable risk of serious injury or death.

26. On November 17, 2015, in conjunction with the Commission, PetSmart voluntarily expanded the recall of Fish Bowls to include units sold at PetSmart between March 2010 and February 2013. PetSmart disputes Staff's allegation that PetSmart had information that the Fish Bowls manufactured prior to 2013 contained a defect and created an unreasonable risk of serious injury.

27. PetSmart denies Staff's allegations that PetSmart knowingly misrepresented the scope of consumer products subject to an action under section 15 of the CPSA and that PetSmart knowingly violated section 19(a)(13).