[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Proposed Rules]
[Pages 23209-23220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9335]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 110901553-2072-01]
RIN 0648-BB41


Endangered and Threatened Species; Proposed Delisting of Eastern 
DPS of Steller Sea Lions

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

ACTION: Proposed rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (ESA), we, NMFS, issue this proposed rule to remove the eastern 
distinct population segment (DPS) of Steller sea lions from the List of 
Endangered and Threatened Wildlife. After receiving two petitions to 
delist this DPS, we completed a comprehensive review of the status of 
the eastern DPS of Steller Sea Lions. Based on the information 
presented in the draft Status Review, the factors for delisting in 
section 4 (a)(1) of the ESA, the objective recovery criteria in the 
2008 Recovery Plan, and the continuing efforts to protect the species, 
we have

[[Page 23210]]

determined, subject to further consideration following public comment, 
that this DPS has recovered and no longer meets the definition of a 
threatened species under the ESA: it is not in danger of extinction or 
likely to become endangered throughout all or a significant portion of 
its range within the foreseeable future. Thus, we find that the 
delisting of the DPS, as requested by the two petitions, is warranted. 
This rule also proposes technical changes that would recodify existing 
regulatory provisions and which are necessary to clarify that existing 
regulatory protections for the western distinct population segment of 
Steller sea lions will continue to apply. We seek public comments on 
this proposed action, the draft Status Review, and the draft Post-
Delisting Monitoring Plan.

DATES: Comments must be submitted to NMFS by June 18, 2012. Requests 
for public hearing must be made in writing and received by June 4, 
2012.

ADDRESSES: Send comments to Jon Kurland, Assistant Regional 
Administrator for Protected Resources, Alaska Region, NMFS, Attn: Ellen 
Sebastian. You may submit comments, identified by RIN 0648-BB41, by any 
of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Hand-delivery: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Alaska Regional Office, Attn: Ellen 
Sebastian, Juneau Federal Building, 709 West 9th Street, Room 420A, 
Juneau, AK 99802-1668.
    <bullet> Mail: P.O. Box 21668, Juneau, AK 99802.
    <bullet> Facsimile (fax): (907) 586-7557.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information. NMFS will accept anonymous comments (enter N/A 
in the required fields, if you wish to remain anonymous). Attachments 
to electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.
    The proposed rule, maps, draft Status Review report and other 
materials relating to this proposal can be found on the Alaska Region 
Web site at: http://alaskafisheries.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Jon Kurland, NMFS, Alaska Region, 
(907) 586-7638; or Lisa Manning, NMFS, Office of Protected Resources, 
(301) 427-8466.

SUPPLEMENTARY INFORMATION: 

ESA Statutory Provisions, Regulations and Policy Considerations

    Pursuant to the ESA and the Administrative Procedure Act, an 
interested person may petition for the listing or delisting of a 
species, subspecies, or DPS of a vertebrate species which interbreeds 
when mature (5 U.S.C. 553(e), 16 U.S.C.1533(b)(3)(A)). ESA-implementing 
regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS) 
also establish procedures for receiving and considering petitions to 
revise the lists and for conducting periodic reviews of listed species 
(50 CFR 424.01).
    Once we receive a petition to delist a species, the ESA requires 
the Secretary of Commerce (Secretary) to make a finding on whether the 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted (16 U.S.C. 
1533(b)(3)(A)). In the context of a petition to delist a species, the 
ESA-implementing regulations provide that ``substantial information'' 
is that amount of information that would lead a reasonable person to 
believe that delisting may be warranted (50 CFR 424.14(b)(1)). In 
determining whether substantial information exists, we take into 
account several factors, including any information noted in the 
petition or otherwise readily available in our files. To the maximum 
extent practicable, this finding is to be made within 90 days of the 
receipt of the petition (16 U.S.C. 1533(b)(3)(A)) and published 
promptly in the Federal Register. If the Secretary of Commerce 
(Secretary) finds that the petition presents substantial information 
that may warrant the requested action, the Secretary must conduct a 
status review of the species concerned and, within 12 months of the 
receipt of the petition, make a finding whether the petitioned action 
is warranted. The Secretary has delegated the authority for these 
actions to the NOAA Assistant Administrator for Fisheries.
    In determining whether to delist a species, subspecies, or DPS, the 
ESA and implementing regulations require that we consider the following 
ESA section 4(a)(1) factors in relation to the definition of a 
threatened species (16 U.S.C. 1533(a)(1) and 1533(c)(2); 50 CFR 
424.11(d)):
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) The over-utilization of the species for commercial, 
recreational, scientific, or educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These are the same factors that we must consider when making an 
initial determination whether to list a species, subspecies or DPS as a 
threatened or endangered. The ESA regulations require that a species 
listed as endangered or threatened be removed from the list if the best 
scientific or commercial data available indicate that the species is no 
longer endangered or threatened because it has recovered (50 CFR 
424.11(d)).

``Foreseeable Future''

    A Status Review and the delisting process need to determine that 
the species' abundance, survival, and distribution, taken together with 
the threats (i.e., ESA section 4(a)(1) listing factors), no longer 
render the species ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The ESA uses the term ``foreseeable future'' to refer to the 
time over which identified threats are likely to impact the biological 
status of the species. The duration of the ``foreseeable future'' in 
any circumstance is inherently fact-specific and depends on the 
particular kinds of threats, the life-history characteristics, and the 
specific habitat requirements for the species under consideration. The 
existence of a potential threat to a species and the species' response 
to that threat are not, in general, equally predictable or foreseeable. 
Hence, in some cases, the ability to foresee a potential threat to a 
species is greater than the ability to foresee the species' exact 
response, or the timeframe of such a response, to that threat. For 
purposes of making this 12-month finding, the relevant consideration is 
whether the species' population response (e.g., changes in abundance, 
distribution, survival or recruitment), is foreseeable, not merely 
whether the emergence of a potential threat is foreseeable. The 
foreseeable future extends only so far as we are able to reliably 
predict the species' population response to a particular threat. As in 
the draft Status Review analysis, we consider the extent to which we 
can foresee the species' response to each threat.

[[Page 23211]]

``Significant Portion of its Range''

    NMFS and FWS recently published a draft policy to clarify the 
interpretation of the phrase ``significant portion of the range'' in 
the ESA definitions of ``threatened'' and ``endangered'' (76 FR 76987, 
December 9, 2011). The draft policy consists of the following four 
components:
    1. If a species is found to be endangered or threatened in only a 
significant portion of its range, the entire species is listed as 
endangered or threatened, respectively, and the ESA's protections apply 
across the species' entire range.
    2. A portion of the range of a species is ``significant'' if its 
contribution to the viability of the species is so important that 
without that portion, the species would be in danger of extinction.
    3. The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
FWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' life 
cycle, even if they are not used regularly (e.g., seasonal habitats). 
Lost historical range is relevant to the analysis of the status of the 
species, but it cannot constitute a significant portion of a species' 
range.
    4. Where a species is not endangered or threatened throughout all 
its range but is endangered or threatened within a significant portion 
of its range, and the population in that significant portion is a valid 
DPS, we will list the DPS rather than the entire taxonomic species or 
subspecies.
    The Services are currently reviewing public comment received on the 
draft policy. While the Services' intent ultimately is to establish a 
legally binding interpretation of the language ``significant portion of 
its range,'' the draft policy does not have legal effect until such 
time as it may be adopted as final policy. However, we find that the 
discussion and conclusions set forth in the draft policy are consistent 
with our past practice as well as our understanding of the statutory 
framework and language.
    We specifically reiterate several points set forth in the draft 
policy. ``The Act does not define `significant' as it relates to SPR, 
and the legislative history does not elucidate Congressional intent. 
Dictionary definitions of `significant' provide a number of possible 
meanings; one of the most prominent is `important' '' (76 FR 76993, 
December 9, 2011). We conclude that ``a definition of `significant' 
that is biologically based best conforms to the purposes of the Act, is 
consistent with judicial interpretations, and best ensures species' 
conservation'' (76 FR 76993). The definition of ``significant'' set 
forth above:

``* * * emphasize[s] the biological importance of the portion to the 
conservation of the species as the measure for determining whether 
the portion is ``significant.'' [F]or that reason, [it] describe[s] 
the threshold for ``significant'' in terms of an increase in the 
risk of extinction for the species. By recognizing the species 
itself as the reference point for determining whether a portion of 
the range is ``significant,'' we properly give priority to the use 
of science and biology for decision-making in status determinations, 
consistent with the Act's requirement to use the best available 
scientific and commercial data in determining the status of a 
species (16 U.S.C. 1533(b)(1)(A)). This definition [is] based on the 
principles of conservation biology [and] is well within the 
expertise of [NMFS] to apply'' (76 FR 76993).

To determine if a species should be listed because of its status in 
only a portion of its range, we ``first determine whether that portion 
is so important to the species as a whole that its hypothetical loss 
would render the species endangered rangewide. If the answer is 
negative, that is the end of the inquiry: the portion in question is 
not significant'' and the species does not qualify for listing on the 
basis of its status in that portion of its range (76 FR 76994). This 
definition does not inherently make the statutory phrase ``significant 
portion of its range'' redundant. Rather, the ``definition leaves room 
for listing a species that is not currently imperiled throughout all of 
its range'' (76 FR 76995).
    We have considered the draft policy as non-binding guidance in 
evaluating whether the eastern DPS of Steller sea lions is threatened 
or endangered in a significant portion of its range. In developing a 
final rule, we will consider public comments on our evaluation of 
``significant portion of its range'' for this species.

Distinct Population Segment Policy

    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species,'' which the act defines to include ``* * * 
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'' (16 U.S.C. 1532 (16)). Thus, an ESA-listing 
(or delisting) determination can address a species, subspecies, or a 
distinct population segment of a vertebrate species.
    In 1996, NMFS and FWS released a joint policy on recognizing 
distinct vertebrate population segments to outline the principles for 
identifying and managing a DPS under the ESA (DPS Policy; 61 FR 47222; 
February 7, 1996). Under the DPS Policy, both the discreteness and 
significance of a population segment in relation to the remainder of 
the species to which it belongs must be evaluated. A population segment 
of a vertebrate species may be considered discrete if it satisfies 
either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    If a population segment is considered discrete under one or more of 
the above conditions, its biological and ecological significance is 
then considered in light of Congressional guidance (see Senate Report 
151, 96th Congress, 1st Session) that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. This consideration may include, but is not limited to, the 
following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon,
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon,
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range, or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.

Background

    The following sections provide a brief history of efforts to manage 
and conserve the eastern DPS of the Steller sea lion under the ESA and 
through the Recovery Plan for the Steller Sea Lion. We also discuss the 
petitions to delist this species and the subsequent draft Status Review 
that supports the determination that the delisting of this population 
segment is warranted. We summarize the basis of our determination that 
the eastern DPS is no longer a threatened species, as supported by the 
Status Review.

[[Page 23212]]

Specifically, we summarize the abundance and health of the population, 
the present distribution and population estimates across its range; 
and, as required by the ESA, we summarize those factors currently 
affecting the population. We conclude by discussing the agency's plans 
to continue to monitor, study, and evaluate the biology and the health 
of the eastern DPS of Steller sea lions should delisting occur.

ESA Listing History

    On April 5, 1990, in response to a petition from the Environmental 
Defense Fund and 17 other organizations, we published an emergency 
interim rule to list the Steller sea lion as a threatened species under 
the ESA, to begin rulemaking to make that listing permanent, and to 
request public comment on the action (55 FR 12645). In this emergency 
interim rule, we held that the Steller sea lion population was 
declining in certain Alaskan rookeries (by 63 percent since 1985 and by 
82 percent since 1960) and the declines were spreading to previously 
stable areas and accelerating. Furthermore, the cause of these declines 
could not be determined. The listing of the species as threatened was 
therefore necessary to prevent its extinction.
    That emergency interim rule implemented the following emergency 
conservation measures to aid recovery: (1) A program to estimate the 
monthly level of incidental killing of Steller sea lions in certain 
fisheries from data of fishery observer programs; (2) aggressive 
enforcement of the emergency regulation; (3) establishment of a 
recovery program, including the establishment of a recovery team; (4) 
prohibition of discharging a firearm near or at Steller sea lions; (5) 
buffer zones around rookeries, none of which were within the breeding 
range of the eastern DPS; and (6) a quota for lethal incidental take in 
fisheries west of 141[deg] W longitude. On April 10, 1990, the FWS took 
emergency action (55 FR 13488) to add the Steller sea lion to the List 
of Endangered and Threatened Wildlife for 240 days. On July 20, 1990, 
we published a proposed rule to list the Steller sea lion as a 
threatened species (55 FR 29793), and on November 26, 1990, we 
published the final rule listing the Steller sea lion as threatened 
under the ESA (55 FR 49204). On December 4, 1990, FWS followed suit by 
publishing a final rule to add the Steller sea lion to the List of 
Endangered and Threatened Wildlife (55 FR 4005).

Identification of Distinct Population Segments

    In 1990, in the Final Rule to list, we considered the entire 
Steller sea lion species as a single population, including those in 
areas where abundance was increasing or not declining significantly, 
because at the time scientists did not have sufficient information to 
consider animals in different geographic regions as separate 
populations. Similarly, the first Steller Sea Lion Recovery Plan, 
released in 1993, did not distinguish two separate population segments, 
but identified recovery tasks, reclassification criteria, and delisting 
criteria for the species as a whole. Then, in late 1994, the Steller 
Sea Lion Recovery Team re-convened to evaluate the adequacy of ongoing 
research and management, and recommended recognizing two distinct 
population segments, east and west of 144[deg] W, based on demographic 
and genetic dissimilarities. The Team further recommended elevating the 
listing status of the western population segment to endangered status 
and keeping the eastern population segment listed as threatened.
    Accepting these recommendations, in 1997, we formally identified 
two distinct population segments (DPSs) of Steller sea lions under the 
ESA--a western DPS and an eastern DPS. The eastern DPS consists of all 
Steller sea lions from breeding colonies located east of 144[deg] W 
longitude, and the western DPS consists of all Steller sea lions from 
breeding colonies located west of 144[deg] W longitude (50 CFR 223.102; 
50 CFR 224.101(b)). We classified the western DPS as endangered due to 
its persistent population decline. The eastern DPS was classified as 
threatened, because the population's abundance was relatively stable 
and uncertainty existed concerning possible declines in pup production 
(62 FR 24345; May 5, 1997). Accordingly, the FWS made this revision to 
the List on June 5, 1997 (62 FR 30772). Further information on the 
identification of the two population segments may be found in those 
final rules.
    As part of the Status Review, we examined the best available data 
to determine whether the existing DPS structure of the taxonomic 
species remained valid. This analysis was completed by our Alaska 
Fisheries Science Center in May 2011, and is provided as Appendix 1B to 
the draft Status Review (NMFS 2012). The analysis confirmed that the 
eastern and western DPSs are both discrete and significant and thus 
meet the criteria of the DPS Policy.
    As explained in detail in Appendix 1B, there is extensive 
morphological, ecological, behavioral, and genetic evidence that the 
two DPSs are discrete. For example, the population genetics of Steller 
sea lions have been studied extensively since the final listing in 
1997, and these newer data confirm the genetic discreteness of the 
eastern and western DPSs (e.g., Bickman et al. 1998). Philips et al. 
(2009) concluded that the existing data are actually sufficient to 
justify a subspecies classification for the eastern and western DPSs. 
Analyses of mitochondrial DNA for eastern rookeries from California 
also indicate there is no genetic basis to further subdivide the 
California portion from the eastern DPS (Bickman 2010). More 
specifically, this study indicates this portion of the population is 
genetically highly variable and includes only mitochondrial DNA 
haplotypes known from the eastern DPS. Because the eastern DPS 
constitutes about 47% of the global population, and its loss would 
eliminate all breeding areas from Southeast Alaska to Central 
California, the eastern DPS is considered significant to the species as 
a whole (NMFS 2010; Appendix 1B). Thus, the DPS analysis confirmed the 
validity of the two currently identified distinct population segments.

Status Review and Petitions To Delist

    On June 29, 2010, we initiated the first 5-year status review of 
the eastern DPS of Steller sea lion under the ESA and, eight days 
later, opened a public comment period (June 29, 2010, 75 FR 37385; July 
7, 2010, 75 FR 38979). A 5-year status review is intended to ensure 
that the listing classification of a species is accurate and is based 
on the best scientific and commercial data available concerning the 
past, present, and future threats to the listed species. During the 
initial comment period following the initiation of the 5-year review of 
the eastern DPS, we received two petitions to delist this species: one 
on August 30, 2010, from the States of Washington and Oregon; and one 
on September 1, 2010, from the State of Alaska. Both petitions contend 
that the eastern DPS of Steller sea lions has recovered, is not in 
danger of extinction now, and is not likely to become endangered in the 
foreseeable future.
    We considered these two petitions in making the required 90-day 
finding and found that the petitions present substantial information 
that the petitioned action may be warranted, necessitating a status 
review of the

[[Page 23213]]

eastern DPS (75 FR 77602; December 13, 2010). We provided a 60 day 
comment period in connection with this finding. We completed a draft 
Status Review to address all issues required in a 5-year review and to 
inform a determination of whether delisting is warranted. The draft 
Status Review underwent independent peer review by four scientists with 
expertise in population ecology and management of eastern DPS Steller 
sea lions. Peer reviewer comments were incorporated into the draft 
Status Review, which is available online at http://www.fakr.noaa.gov/protectedresources/stellers/edps/status.htm.

Recovery Plan

    The most recent Recovery Plan for both the eastern and the western 
DPSs of Steller sea lions (NMFS 2008) includes specific, objective, 
measurable criteria for determining when the eastern DPS has recovered 
sufficiently to warrant delisting. The first criterion requires that 
the population increase at an average annual growth rate of three 
percent per year for 30 years. The thirty-year time period provides 
confidence that the increase in natality (the ratio of live births to 
the larger population) and survival support the population growth rate, 
and that the recovery is robust enough to sustain the population over 
multiple environmental regimes. As explained in the Recovery Plan, the 
30-year time period reflects three generations and a sustained, three 
percent growth rate over this time period would assure managers that 
survival and reproduction were robust. The Recovery Plan also 
identifies ESA Listing Factor Criteria, organized by the ESA section 
4(a)(1) factors identified above. For some of these criteria, the 
Recovery Plan recommends that certain actions be achieved prior to 
delisting. These criteria provide a framework in which to consider new 
threats or new information on existing threats.
    Based on a review of the recovery criteria and on new information 
that has become available since publication of the 2008 Recovery Plan, 
we find that those criteria continue to reflect the best available and 
most up-to-date information on the biology of the species and its 
habitat. We therefore conclude that these criteria, together with 
consideration of the statutory listing factors, remain appropriate 
standards on which to base the decision whether to delist this species.

Evaluation of Demographic/Biological Criterion

    In 1997, when we recognized the two distinct population segments of 
Steller sea lions, scientists were uncertain about the population trend 
for the eastern DPS--some portions of the range had been increasing for 
years but declines in pupping had been noted in other regions. As 
described in the Recovery Plan, when we changed the status of the 
western DPS to endangered, the eastern DPS remained listed as 
threatened species because accurate data were not yet available over a 
sufficiently long time period to support a conclusion that the 
increasing population trend was, in fact, indicative of a robust and 
recovered population. We selected the biological recovery criterion for 
the eastern DPS to assure that data were collected over a long enough 
period of time to provide assurance that survival and reproduction were 
robust. As described below, the best available information indicates 
that this criterion has been met.
    The Recovery Plan (NMFS 2008) noted the best available information 
indicated that the overall abundance of Steller sea lions in the 
eastern DPS has increased for a sustained period of at least three 
decades. The best available information also indicates that pup 
production has increased significantly, especially since the mid-1990s. 
Researchers estimate that about 11,000 pups were produced in the 
eastern DPS in 2002 (NMFS 2008). Based on these data, they provided a 
``general'' estimate of total abundance for this DPS of about 46,000-
58,000, noting that this estimate was imprecise (NMFS 2008). For the 
25-year period between 1977 and 2002, researchers estimated that 
overall abundance of the eastern DPS of Steller sea lion had increased 
at an average rate of 3.1 percent per year (NMFS 2008).
    New pup and non-pup count data are available from most portions of 
the range. Between 2002 and 2009, we conducted surveys in southeast 
Alaska, and the Department of Fisheries and Oceans Canada surveyed 
British Columbia. Counts of non-pups were made in 2008 by aerial survey 
in Washington, and aerial photographic surveys were flown in Oregon 
(through 2008), and in California.
    The best available information indicates the eastern DPS has 
increased from an estimated 18,040 animals in 1979 (90% CI: 14,076-
24,761) to an estimated 63,488 animals in 2009 (90% CI: 53,082--
80,497); thus an estimate of an overall rate of increase for the 
eastern DPS of 4.3% per year (90% confidence bounds of 1.99%--7.33%; 
NMML 2012). Moreover, given the observed data, the probability that the 
overall growth rate was >3.0% was 0.84 (NMML 2012).
    Based on the best available information for non-pup and pup trend 
data and related population abundance estimates, and subject to further 
consideration following public comment, we conclude that the biological 
(demographic) criterion in the 2008 Recovery Plan has been met. 
Furthermore, an evaluation and update of the trend data used in the 
extinction risk analysis indicates that the risk of extinction is very 
low throughout most of the range of the eastern DPS of Steller sea 
lions.
    In Southeast Alaska, pup production has increased from 5,510 in 
2005 to 7,442 in 2009. It increased at an average of 5 percent per year 
since the mid-1990s, and at 3.6 percent per year since the late 1970s. 
Counts of non-pups at trend sites have increased significantly at 1.4 
percent since 1982.
    In British Columbia, pup production has been increasing at nine 
percent per year since the mid-1990s and has increased significantly at 
3.9 percent since the early 1970s. Non-pups have increased 
significantly at 3.5 percent per year since the early 1970s.
    In Washington, abundance remains lower than historical levels; 
however, recent preliminary survey data reports increasing Steller sea 
lion numbers at haul-out areas as well as an increasing number of 
newborn pups at several locations over recent years.
    Results of the 2009 Oregon and California aerial survey indicate 
that pup production in Oregon has increased at three percent per year 
since 1990. Pup production in California has been increasing at five 
percent per year between 1996 and 2009, with the number of non-pups 
reported as stable.
    Stability in the non-pup portion of the overall California 
population and the lack of recolonization at the southernmost portion 
of the range (San Miguel Island rookery) is likely a response to a 
suite of factors including a climate induced northward range shift and 
competition for space on land (haulouts and rookery sites) and possibly 
competition for prey with other more temperately adapted pinniped 
species that have experienced explosive growth over the past three 
decades (California sea lions and northern elephant seals). While the 
California portion of the eastern DPS likely had its lowest abundance 
in the 1980s, recovery throughout the rest of the eastern DPS to the 
north (in OR, WA, BC and southeast AK) was already underway in the 
1980s. Recovery in California has lagged behind the rest of the DPS by 
10-15 years, but this portion of the DPS's range has recently shown a 
positive growth rate (NMML 2012).

[[Page 23214]]

    In accordance with our draft policy on ``significant portion of its 
range,'' we considered whether portions of the range of the eastern DPS 
qualified as significant portions (76 FR 76987, December 9, 2011). Our 
first step in this evaluation was to ``identify any portions of the 
range of the [DPS] that warrant further consideration'' (76 FR 77002; 
December 9, 2011). Rather than evaluating the ``significance'' of every 
conceivable portion of the species' range, we focused on those portions 
of the range where there is ``substantial information indicating that 
(i) the portions may be significant [within the meaning of the draft 
policy] and (ii) the species may be in danger of extinction there or 
likely to become so within the foreseeable future'' (76 FR 77002; 
December 9, 2011).
    Here, we identified only one portion of the eastern DPS's range 
that warranted further consideration: the southern portion of the range 
in California. We specifically considered whether the southern portion 
of the range in California constituted a significant portion of the 
range, because the Recovery Plan indicated that there was concern over 
the performance of rookeries and haulouts in this portion of the range, 
especially in contrast to the growth observed in southeast Alaska. We 
also received two comments during the public comment period 
recommending that we look specifically at this portion of the range 
given its differing history. Given the absence of geographically 
concentrated threats and the observed population growth throughout the 
rest of the range, we did not specifically evaluate the 
``significance'' of other portions of the range.
    To evaluate whether the California portion of the range constitutes 
a significant portion, we examined the history and trends of this 
portion of the population and the overall eastern DPS. As mentioned 
above, abundance trends in the California portion of the eastern DPS's 
range have followed a different pattern than abundance trends in the 
more northerly portions of the range. Recovery throughout the rest of 
the range was already underway in the 1980's while the California 
portion of the eastern DPS remained in decline (i.e., before the 
California portion had reached its lowest abundance level). 
Additionally, abundance increases throughout the rest of the DPS began 
ten to fifteen years before abundance began to increase in California. 
Thus, available information does not support a conclusion that 
abundance declines in the California portion of the population would 
drive abundance declines in the rest of the DPS. Moreover, although two 
rookeries in California (San Miguel and Seal Rocks) have been ``lost,'' 
the pup production at other rookeries in California has increased over 
the last 20 years and, overall, the eastern DPS has increased at an 
average annual growth rate of 4.3% per year for 30 years. Thus, even 
though these rookeries may be lost, their loss did not result in a 
decline in abundance of Steller sea lions in the rest of California or 
in the rest of the eastern DPS. Given these and other data, we 
concluded that the southern portion of the range in California is not 
so substantial that its loss or decline would undermine the viability 
of the DPS as it exists today (NMFS 2012). Thus, subject to further 
consideration following public comment, we conclude that the California 
portion of the eastern DPS does not constitute ``a significant portion 
of the range.'' Additional discussion of this issue is provided in 
section 4.2.3 of the Status Review.

Evaluation of the ESA Listing Factors and Associated Recovery Criteria

    The status of the eastern DPS was reviewed in the context of the 
ESA listing factors and the associated criteria set forth in the 
Recovery Plan (NMFS 2008). Below we summarize the information regarding 
status of the DPS according to each of these criteria and identify the 
steps taken by NMFS and others to accomplish the recommended actions 
set forth in the Recovery Plan. More detailed information can be found 
in the draft Status Review (NMFS 2012) and the Recovery Plan (NMFS 
2008).

Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of a Species' Habitat or Range

    The 2008 Recovery Plan states that:

    The decline of the eastern population of Steller sea lions is in 
large part attributed to direct mortality from predator control 
programs and shooting by fishermen and others. This intentional 
killing of sea lions was a generally accepted behavior until recent 
years. In general, terrestrial habitat for the eastern population 
has been either protected or not impacted to any large degree based 
in large part on the remote areas occupied by sea lions. There may 
be some exceptions along the southern California coast. Prey 
resources currently appear to be adequate to support recovery. 
Future fisheries management and other marine resource management 
should specifically consider sea lion needs in their planning.

    The Status Review also identifies five potential sources of threat 
under this factor:

    1. Global Climate Warming and Ocean Acidification;
    2. Indirect Fisheries Interactions;
    3. Coastal Development and Disturbance;
    4. Toxic Substances; and
    5. Oil and Gas Development.

    Global climate warming and ocean acidification pose a potential 
threat to the eastern Steller sea lion population from potential food 
web alteration, direct physiological impacts on prey species, or more 
generally, to changes in the composition, temporal and spatial 
distribution and abundance of Steller sea lion prey assemblages. If the 
underlying food webs are affected by ocean acidification and climate 
change, the eastern DPS of Steller sea lions would also likely be 
affected. Consideration of this issue is complicated by the rapidly 
evolving understanding of this complex threat, the uncertainty about 
how Steller sea lions might respond, and other factors. Available 
information suggests it is likely that global warming and ocean 
acidification may affect eastern North Pacific subarctic ecosystems 
before the end of this century; however, the magnitude, timing, and 
mechanism of the changes, and how they may affect the eastern DPS of 
Steller sea lion, are difficult to predict. While we recognize the 
potential that the eastern Steller sea lion could exhibit a population 
response to these potential changes in the future, given current 
information, we cannot identify any such specific effects that are 
likely to occur within the foreseeable future. Given the increasing 
population trends of the eastern DPS of Steller sea lion, the robust 
reproduction over a large range, and the relatively large population 
size, the available information suggests that global warming and ocean 
acidification are not impeding this population's overall viability and 
are not likely to cause it to become in danger of extinction within the 
foreseeable future throughout all or a significant portion of its range 
(NMFS 2012).
    There are numerous federal, state, and/or provincial commercial 
fisheries, recreational fisheries and subsistence fisheries within the 
range of the eastern DPS of Steller sea lion. These include fisheries 
for salmon, herring, demersal shelf rockfish, ling cod, and black and 
blue rockfish in state waters of southeast Alaska, fisheries for 
herring, hake, sardines, salmon, and groundfish in British Columbia, 
salmon and herring in state waters off Washington and Oregon, and 
groundfish fisheries along the US west coast in the US EEZ of the 
northeast Pacific Ocean. Mechanisms by which fisheries can have 
indirect effects (e.g., nutritional stress) on Steller sea lions have 
been reviewed extensively in the scientific literature and in recent

[[Page 23215]]

NMFS actions (e.g., 75 FR 77535, December 13, 2010). Given the 
sustained significant increases in non-pup abundance and increases in 
pup production of eastern DPS Steller sea lions concurrent with the 
ongoing prosecution of these fisheries, current and anticipated 
fisheries management procedures and regulatory mechanisms, there is no 
indication that fisheries are directly or indirectly competing with 
eastern DPS Steller sea lions to the point where the level of fisheries 
related competition constitutes a threat to the survival or recovery of 
the eastern DPS of Steller sea lions. Subject to further consideration 
following public comment, we conclude the indirect effects of these 
fisheries are not likely to cause the eastern DPS to become in danger 
of extinction in the foreseeable future throughout all or a significant 
portion of its range.
    Coastal development, such as tourism, settlement, industry, 
shipping, and human population growth may lead to more noise, human 
presence and other outcomes that increase disturbance of Steller sea 
lions on terrestrial sites or in the water, or to their prey. We 
acknowledge the potential threat of further coastal development and 
increased human disturbance but note that protections against such 
disturbance exist and will likely remain in place under a variety of 
state and federal statutes. The prohibitions and penalties related to 
``take'' in the Marine Mammal Protection Act are particularly relevant 
(MMPA; 16 U.S.C. 1371(a); section 101(a)) and our ability to authorize 
such take incidental to other activities, such as shipping, tourism, or 
other forms of coastal development. To authorize any such take, we must 
find that it will have no more than a negligible impact, which NMFS 
regulations define as ``an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival'' (50 CFR 216.103). In addition, we must 
prescribe permissible methods of taking as well as other means of 
affecting the least practicable adverse impact on affected marine 
mammal stocks and must impose monitoring and reporting requirements. 
Moreover, we follow long-established mechanisms to review proposed 
actions (e.g., construction projects) under the Clean Water Act, the 
National Environmental Policy Act, and other laws to provide 
recommendations to avoid or minimize impact to marine mammals. Subject 
to further consideration following public comment, we conclude that 
there is no current evidence indicating that human disturbance of 
Steller sea lions on or near coastal habitats is likely to cause the 
eastern DPS of Steller sea lion to become in danger of extinction 
throughout all or a significant portion of its range within the 
foreseeable future. In the event the eastern DPS is delisted from the 
ESA, significant regulatory mechanisms under the MMPA and other laws 
will continue to provide a means to eliminate or otherwise minimize 
possible adverse effects of human activity.
    The 2008 Recovery Plan noted ``existing studies on Steller sea 
lions have shown relatively low levels of * * * heavy metals, and these 
levels are not believed to have caused high mortality or reproductive 
failure and are not considered impediments to Steller sea lion 
recovery.'' Studies conducted in Southeast Alaska and southern and 
central California have recognized there is potential for adverse 
consequences of high levels of contaminants (e.g., see Heitz and Barron 
2001); however, much remains to be learned about the levels of these 
compounds and the physiological mechanisms and reproductive 
consequences of such substances in eastern DPS Steller sea lions. While 
it is important to continue to study and monitor the levels of key 
contaminants such as heavy metals and organochlorines in the eastern 
DPS of Steller sea lions, after reviewing available information, we do 
not find evidence that contaminants are likely to cause the eastern DPS 
of Steller sea lions to become in danger of extinction in the 
foreseeable future throughout all or a significant portion of its 
range.
    We recognize that exploration and development of oil and gas 
reserves and transportation of oil within the eastern DPS Steller sea 
lion range have the potential to adversely affect portions of this DPS 
in the event of large spills. However, despite a history of active 
transportation operations, no such events have occurred to date within 
the breeding range of the eastern DPS (NMFS 2012). Given this history, 
continued or anticipated oil and gas related operations are not likely 
to cause the eastern DPS of Steller sea lion to become in danger of 
extinction throughout all or a significant portion of its range within 
the foreseeable future.
    Based on the considerations for Factor A, and subject to further 
consideration following public comment, we conclude that the eastern 
DPS of Steller sea lion is not in danger of extinction throughout all 
or a significant portion of its range, nor likely to become so within 
the foreseeable future due to the present or threatened destruction, 
modification, or curtailment of its habitat or range. The following 
continued monitoring activities are included within a Post Delisting 
Monitoring Plan to provide periodic checks on possible effects of 
habitat related issues:
    [ssquf] Monitor and assess possible indirect effects of fishery 
removals via periodic health assessments, indices of body condition, 
survival of pups and juveniles, and pup-nonpup ratios.
    [ssquf] Conduct periodic contaminant sampling.
    The Recovery Plan recommended that to provide assurance that 
delisting is warranted for the eastern population of Steller sea lion, 
threats to its habitat should be reduced through the following actions:
    1. Marine habitats, particularly in regard to prey populations, 
must be maintained through appropriate fisheries management and control 
of contaminants.
    2. Rookery and haulout sites need to be adequately protected 
(through state, federal, or private measures) to insure the continued 
use of these sites for pupping, breeding, attending young, and resting. 
Research and monitoring plans should be in place for all projects that 
have a high probability of negatively impacting sea lions in order to 
make sure that these activities do not result in harm to sea lions or 
their habitat.
    The Status Review identified research and management programs that 
provide for inclusion of Steller sea lion habitat requirements within 
fisheries management and other programs. Ongoing federal fisheries 
management within the breeding range of the eastern DPS, agreement 
between the State of Alaska and NMFS regarding State fishery management 
(NMFS 2012; Appendix 2), ongoing research, law enforcement, and the 
Post Delisting Monitoring Plan (NMFS 2012; Appendix 3), as well as 
existing regulations that govern authorization of incidental take of 
marine mammals under the MMPA provide a means to maintain and monitor 
marine habitats and prey populations consistent with the above 
recommendations. Consistent with the primary goals of the MMPA, 
Magnuson Stevens Fishery Conservation and Management Act (MSFMCA), 
National Environmental Policy Act (NEPA), and other laws provide 
mechanisms to ensure human activities do not result in harm to sea 
lions or their habitat. To comply with the MMPA, projects that have a 
high probability of negatively impacting eastern DPS Steller sea lions 
would need to obtain authorization from NMFS

[[Page 23216]]

to incidentally harass or incidentally take Steller sea lions. NMFS 
imposes project-specific monitoring requirements for each incidental 
take authorization the agency issues under the MMPA.
    Should it become necessary to protect specific habitat of the 
eastern DPS in the future, section 112 (a) of the MMPA provides NMFS 
the authority to develop additional and specific protections for 
Steller sea lion habitat. At the present time, existing protections 
afforded to eastern DPS Steller sea lion habitat are considered 
adequate. As described in both the Status Review and Recovery Plan, we 
have not identified any threats to the habitat of the eastern DPS that 
are likely to cause the species to become in danger of extinction in 
the foreseeable future throughout all or a significant portion of its 
range. Therefore, subject to further consideration following public 
comment, we conclude the actions recommended under this listing factor 
criterion have been accomplished and will continue to be accomplished 
on an ongoing basis.

Factor B: Overutilization for Commercial, Recreational, or Educational 
Purposes

    The 2008 Recovery Plan stated that:

    Human-caused mortality of Steller sea lions includes subsistence 
harvest; incidental takes in fisheries, illegal shooting, 
entanglement in marine debris, and take during scientific research. 
In general, the MMPA provides adequate protection for sea lions from 
the eastern population. None of these factors now appear to be 
preventing recovery, although it would be appropriate to reduce the 
magnitude of these when possible.

    While the level of subsistence harvest in Southeast Alaska has 
increased since 1998, reported levels are still very low and there is 
only a very limited subsistence harvest in Canada (NMFS 2012). Given 
the estimated population size and the related Potential Biological 
Removal level (PBR) defined under the MMPA for the eastern DPS of the 
Steller sea lion, and the levels of subsistence hunting in both Alaska 
and British Columbia, subsistence hunting is not likely to cause this 
population to become in danger of extinction within the foreseeable 
future throughout all or a significant portion of its range.
    The best available data indicate a minimum estimated mortality rate 
incidental to commercial and recreational fisheries (both U.S. and 
Canada) of 33.5 eastern DPS Steller sea lions per year, based on 
fisheries observer data (7.47 animals), opportunistic observations 
(24.2 animals), and stranding data (1.8 animals). This estimated level 
of mortality is just 1.4% of the Potential Biological Removal level 
calculated for the eastern DPS of Steller sea lions at 2,378 animals. 
We are not aware of any information to suggest that the numbers of 
eastern DPS Steller sea lions taken incidental to commercial fishing 
will increase appreciably in the foreseeable future. We will continue 
to monitor take in selected fisheries and will, as recommended in the 
2008 Recovery Plan, take steps to work cooperatively with the States to 
implement observer programs and other means to identify, evaluate, and 
reduce, levels of uncertainty in the estimates, and the occurrence, of 
incidental taking by commercial fishing. The level of incidental take 
in commercial fishing is not likely to cause the eastern DPS of Steller 
sea lion to become in danger of extinction throughout all or a 
significant portion of its range within the foreseeable future.
    There are no commercial harvests or predator control programs in 
the United States in which Steller sea lions are authorized to be 
killed. Killing of marine mammals at aquatic farms is authorized by 
license in Canada; however, other regulations currently in place 
prevent aquatic farms from implementing that authority. Fewer than ten 
intentional killings of Steller sea lions per year were confirmed in 
Oregon and Washington from 2009-2010 (NMFS 2012). We acknowledge that 
the illegal take (e.g. shootings) of Steller sea lions likely has been 
underestimated. Nonetheless, the population estimates, which are based 
on visual surveys of live sea lions, inherently account for all sources 
of sea lion mortality, including illegally taken sea lions. Given the 
sustained population increase over the past 30 years, the current level 
of illegal take is not likely to cause the eastern DPS of Steller sea 
lions to become in danger of extinction throughout all or a significant 
portion of its range within the foreseeable future.
    The levels of mortality from directed research activities and 
``other human related sources'' are very small (e.g., 1.8 mortalities 
per year due to research and 5.0 mortalities per year from 
entanglements, hook ingestions, and other such sources) relative to the 
population size and are unlikely to pose a threat to the population for 
the foreseeable future.
    Based on the considerations for Factor B, and subject to further 
consideration following public comment, we conclude that commercial, 
recreational, or educational activities are not likely to result in 
overutilization, nor are the combined effects of these threats likely 
to cause the eastern DPS of Steller sea lion to become in danger of 
extinction throughout all or a significant portion of its range within 
the foreseeable future.
    The Recovery Plan did not recommend any specific action under this 
factor. Nonetheless, research and management programs are in place to 
monitor and regulate the threats identified under this factor. 
Consistent with the primary goals of the MMPA, these programs reduce 
the magnitude of the above types of takings. Therefore, subject to 
further consideration following public comment, we conclude the general 
goals articulated under this listing factor criterion have been 
accomplished.

Factor C: Diseases, Parasites, and Predation

    The 2008 Recovery Plan noted that although Steller sea lions are 
taken by killer whales throughout their range there is no indication 
that killer whale predation is outside of normal background levels 
expected in this population at this abundance level. The Recovery Plan 
and the Status Review conclude that predation is not limiting recovery. 
The Recovery Plan recognized that diseases are known to occur within 
this population but appear to be limited to those endemic to the 
population and are unlikely to have population level impacts. Therefore 
no criteria were proposed to reduce disease and predation in the 
Recovery Plan.
    New information documenting the appearance of phocine distemper 
virus within the range of the eastern DPS of Steller sea lions has 
become available since the 2008 Recovery Plan was completed. We are not 
aware of any information, however, that indicates that Steller sea 
lions have actually been infected with phocine distemper virus. Through 
established programs such as Marine Mammal Stranding Networks and 
ongoing collaborative research, routine sampling procedures to monitor 
the occurrence of this disease have been established and will continue. 
Appropriate responses (e.g., Unusual Mortality Event response) to 
critical events (e.g., a disease epidemic) would be implemented if the 
need arises. We are not aware of any evidence indicating the population 
is being adversely affected by disease agents, parasitism, or 
predation.
    Based on the considerations for Factor C, and subject to further 
consideration following public comment, we conclude disease, 
parasitism, or predation are not likely to cause the eastern DPS of 
Steller sea lions to become in danger of extinction within the 
foreseeable future

[[Page 23217]]

throughout all or a significant portion of its range.
    The Recovery Plan stated that diseases appeared ``to be limited to 
those endemic to the population and are unlikely to have population 
level effects.'' The Recovery Plan did not recommend any specific 
action to reduce the risk of disease. As mentioned above, there are a 
number of research and monitoring programs already in place or 
described in the Post Delisting Monitoring Plan that we consider 
adequate mechanisms for detecting, documenting, and responding to 
possible epizootic events, including any possible event that may result 
from the emergence of phocine distemper virus. Through these 
mechanisms, NMFS and its partners will take action as appropriate to 
address this issue, should it emerge. Therefore, subject to further 
consideration following public comment, we conclude that no additional 
action is necessary at this time to reduce potential threats under this 
factor.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    The MMPA provides a variety of existing regulatory measures 
designed to provide protection from unauthorized harassment or other 
forms of take. The MMPA requires that taking be regulated to prevent 
adverse effects on the annual survival rates or recruitment and to 
ensure the eastern DPS Steller sea lion continues to recover and remain 
a fully functioning part of the marine ecosystem. In addition, although 
we have not identified any serious threats to eastern DPS habitat in 
the foreseeable future, the MMPA provides a mechanism for future 
regulations to protect habitat of the eastern DPS if threats to its 
habitat emerge.
    In addition to the MMPA, protections afforded by the location of 
key terrestrial and aquatic habitats within state and federal parks and 
marine protected areas (e.g., Oregon Islands National Wildlife Refuge, 
Olympic National Park, Farallon Islands National Marine Sanctuary, 
Three Arch Rocks National Wildlife Refuge) offer additional protections 
for the eastern DPS of Steller sea lions.
    Federal regulations and management plans established by the 
Government of Canada also provide protection for eastern DPS Steller 
sea lions and their habitat within Canada (e.g., Marine Mammal 
Regulations of the Fisheries Act). Cooperative programs between the 
United States and Canada support research and monitoring necessary for 
ensuring the long term health and well being of this population within 
Canadian waters.
    A number of other federal and state statutes including the Clean 
Water Act and the Marine Sanctuaries Act provide protection to wildlife 
and habitat and will likely foster the continued growth and stability 
of this population.
    Based on the considerations for Factor D, and subject to further 
consideration following public comment, we conclude that the 
protections afforded by existing regulatory mechanisms make it unlikely 
that the eastern DPS will become in danger of extinction within the 
foreseeable future throughout all or a significant portion of its 
range.
    To address and fulfill aspects of Factor D, the 2008 Recovery Plan 
noted the following: One potential threat to Steller sea lions is 
increased human disturbance in previously remote areas. Little is known 
about the potential impacts from changes to the physical environment, 
disturbance due to vessel traffic, or tourism related activities. 
Because of lack of information, it is not possible to quantify these 
threats. However, the potential threat from increased human disturbance 
highlights the need to keep regulatory mechanisms such as the MMPA in 
place to protect sea lions. Research and/or monitoring programs should 
be put into place to oversee activities that have the potential to 
negatively impact Steller sea lions. Other actions to protect haulout 
and pupping areas (as described under factor A) could provide 
substantial insurance against future impacts from development and 
anthropogenic disturbance. These actions are:
    1. Agreement is reached with the State of Alaska which describes 
their fishery management plan, minimizes the take of Steller sea lions, 
and describes how future actions taken by the State will comport with 
the ESA and MMPA.
    2. A Steller sea lion recovery coordinator is on staff at NMFS.
    During the process of conducting the Status Review, NMFS and the 
Alaska Department of Fish and Game discussed the Recovery Plan 
recommendation for reaching an agreement clarifying how, in the event 
the eastern DPS of Steller sea lions is delisted, future State actions 
will continue to minimize the take of eastern DPS Steller sea lions and 
comport with the requirements of the MMPA. We recognize the action 
recommended by the Recovery Plan was somewhat unclear because once the 
stock is delisted ESA measures would no longer apply. The State of 
Alaska has provided correspondence that explains how existing processes 
followed by the State with respect to fisheries management successfully 
minimize take of eastern DPS Steller sea lions, will contribute to 
continued recovery of the stock, and will continue to comport with all 
aspects of the MMPA for the foreseeable future. We have evaluated this 
material (included as an appendix to the Status Review) and have agreed 
with the State of Alaska that the described plans and management 
actions satisfy the specific de-listing action recommended by the 
Recovery Plan.
    NMFS also has a Steller sea lion coordinator on staff and has thus 
completed the second action identified in the Recovery Plan. Therefore, 
subject to further consideration following public comment, we conclude 
that the actions recommended under this listing factor have been 
accomplished.

Factor E: Other Natural or Anthropogenic Factors Affecting Its 
Continued Existence

    Beyond those threats already discussed above, the Recovery Plan did 
not identify other threats that need to be identified, discussed, or 
considered under Listing Factor E. Based on information and analysis in 
the 2008 Recovery Plan and the Draft Status Review, we find that there 
are no other factors likely to cause the eastern DPS of Steller sea 
lions to become in danger of extinction within the foreseeable future 
throughout all or a significant portion of its range.
    The Recovery Plan recommended the following actions to ensure that 
factors do not develop that would threaten the persistence of the 
eastern DPS Steller sea lion:
    1. An outreach program is established to educate the public, 
commercial fishermen and others to the continued need to conserve and 
protect Steller sea lions.
    2. An Alaska stranding network is in place and functional.
    Both NMFS and the Alaska Department of Fish and Game have outreach 
programs devoted to Steller sea lion conservation and management in an 
effort to educate commercial fishermen and the general public about the 
ongoing need to protect and conserve Steller sea lions. Various forms 
of outreach activities are conducted for the public, commercial 
fishermen, Alaska Native organizations, and others (Web pages, 
trainings, classroom presentations, videos, bumper sticker campaigns, 
interpretive displays, etc.). NMFS Alaska Region and Northwest Region 
both have Marine Mammal Stranding Programs and the stranding network is 
operational (e.g. see http://www.alaskafisheries.noaa.gov/

[[Page 23218]]

protectedresources/strandings.htm). Therefore the recommended actions 
under this listing factor criterion have been accomplished.

Conclusions

    Based on information in the Recovery Plan and our review of new 
information discussed in the draft Status Review and summarized above, 
and subject to further consideration following public comment, we find 
the following:
    <bullet> The biological (demographic) criterion for delisting 
identified in the Recovery Plan has been met.
    <bullet> None of the potential threats evaluated under the five ESA 
listing factors, individually or cumulatively, is likely to result in 
the species becoming in danger of extinction within the foreseeable 
future throughout all or a significant portion of its range.
    <bullet> The ESA Listing Factor Criteria set forth in the Recovery 
Plan have been met and each of the recommended actions under those 
criteria has been accomplished.
    <bullet> In the event the eastern DPS is delisted, current measures 
under the MMPA, other laws, and regulations provide the protection 
necessary to ensure the continued recovery of the eastern DPS of 
Steller sea lions such that it is not likely to become in danger of 
extinction within the foreseeable future throughout all or a 
significant portion of its range.
    Based on the Draft Status Review's assessment of the demographic 
and ESA Delisting Factor Criteria, we believe the conclusions of the 
Recovery Plan remain valid: none of the factors that may negatively 
impact the dynamics of the eastern DPS appears to pose a threat to 
recovery, either alone or cumulatively, and the biological 
(demographic) and ESA-delisting criteria for the eastern DPS of the 
Steller sea lion have been met. Therefore, we find that removal of the 
eastern DPS of the Steller sea lion from the list of threatened species 
is warranted.
    If the species is delisted through a final rule, we intend to 
implement a post-delisting monitoring plan, which would be followed for 
ten years beyond delisting, with the objectives of ensuring that 
necessary recovery actions remain in place and confirming the absence 
of threats to the population's continued existence.

Post-Delisting Monitoring Plan

    We have developed a plan for continuing to monitor the population 
of the eastern DPS of Steller sea lion for 10 years following the 
proposed delisting. This draft Post Delisting Monitoring Plan is 
included as an appendix to the Status Review. The objective of the 
monitoring plan is to ensure that necessary recovery actions remain in 
place and to ensure the absence of threats to the population's 
continued existence. In part such monitoring efforts are already an 
integral component of ongoing research, existing stranding networks, 
and other management and enforcement programs implemented under the 
MMPA. These activities are conducted by NMFS in collaboration with 
other federal and state agencies, the North Pacific Fishery Management 
Council, university affiliates, and private research groups. As noted 
in the Status Review, many regulatory avenues already in existence 
provide for review of proposed projects to reduce or prevent adverse 
effects to Steller sea lions and for post project monitoring to ensure 
protection to Steller sea lions, as well as penalties for violation of 
the prohibition on unauthorized take under the MMPA. However, the 
addition and implementation of a specific Post-Delisting Monitoring 
Plan will provide an additional degree of attention and an early 
warning system to ensure that de-listing will not result in the re-
emergence of threats to the population.

Description of Proposed Regulatory Changes

    To implement this proposed action we propose to remove the eastern 
DPS of Steller sea lions from the list of threatened species in 50 CFR 
223.102 of the Code of Federal Regulations.
    Section 223.202 established various protective measures for 
threatened Steller sea lions, including a specific prohibition on 
discharging a firearm at or within 100 yards of Steller sea lions, 
prohibited vessel transit within 3 nautical miles of specific Steller 
sea lion rookery sites (all within the breeding range of the western 
DPS of Steller sea lions), and a list of certain exemptions to some of 
those same protections. Because 50 CFR 223.202 is directed at the 
``threatened'' eastern DPS, we propose to delete it. However, 50 CFR 
224.103(d) is directed at the ``endangered'' western DPS and currently 
incorporates these same protections by specific reference back to 50 
CFR 223.202. If the eastern DPS of Steller sea lions is delisted and 50 
CFR 223.202 is deleted, we would recodify these protections and 
exemptions for the western DPS within 50 CFR 224.103. Aside from 
removal of the prohibition on the discharge of firearms at or within 
100 yards of Steller sea lions east of 144[deg] W, these minor 
corrections to 50 CFR 224.103 do not result in any alteration to 
existing regulations for the endangered western DPS of Steller sea 
lions. Although we propose to remove the prohibition against the 
discharge of firearms at or within 100 yards of Steller sea lions east 
of 144[deg] W, ``take'' of Steller sea lions, including take by 
harassment, will continue to be prohibited under the MMPA, unless 
specifically authorized by NMFS or exempted from the MMPA's moratorium 
on take.

Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Pub. L. 106-554), is intended to enhance the quality and 
credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. To satisfy our requirements 
under the OMB Bulletin, we are obtaining independent peer review of 
this proposed rule; all peer reviewer comments will be addressed prior 
to dissemination of the final status review and publication of the 
final rule.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6.)

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analyses required by the Regulatory 
Flexibility Act are not applicable to the listing process. In addition, 
this rule is exempt from review under E.O. 12866. This proposed rule 
does not contain a collection of information requirement for the 
purposes of the Paperwork Reduction Act.

[[Page 23219]]

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this proposed rule.

E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175--Consultation and Coordination with Indian 
Tribal Governments--outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. Section 161 of Public 
Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 
108-447 (118 Stat. 3267), directs all Federal agencies to consult with 
Alaska Native corporations on the same basis as Indian tribes under 
E.O. 13175.
    We intend to continue to coordinate with tribal governments and 
native corporations which may be affected by the proposed action. We 
will provide them with a copy of this proposed rule for review and 
comment, and offer the opportunity to consult on the proposed action.

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Endangered and threatened species.

    Dated: April 12, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In Sec.  224.103, revise paragraph (d) to read as follows:


Sec.  224.103  Special prohibitions for endangered marine mammals.

* * * * *
    (d) Special prohibitions relating to endangered Steller sea lion 
protection.--(1) General Prohibitions. The following regulatory 
provisions shall apply to the western population of Steller sea lions:
    (i) No discharge of firearms. Except as provided in paragraph 
(d)(2) of this section, no person subject to the jurisdiction of the 
United States may discharge a firearm at or within 100 yards (91.4 
meters) of a Steller sea lion west of 144 [deg]W longitude. A firearm 
is any weapon, such as a pistol or rifle, capable of firing a missile 
using an explosive charge as a propellant.
    (ii) No approach in buffer areas. Except as provided in paragraph 
(d)(2) of this section:
    (A) No owner or operator of a vessel may allow the vessel to 
approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion 
rookery site listed in paragraph (d)(1)(iii) of this section;
    (B) No person may approach on land not privately owned within one-
half statutory miles (0.8 kilometers) or within sight of a Steller sea 
lion rookery site listed in paragraph (d)(1)(iii) of this section, 
whichever is greater, except on Marmot Island; and
    (C) No person may approach on land not privately owned within one 
and one-half statutory miles (2.4 kilometers) or within sight of the 
eastern shore of Marmot Island, including the Steller sea lion rookery 
site listed in paragraph (d)(1)(iii) of this section, whichever is 
greater.
    (iii) Listed sea lion rookery sites. Listed Steller sea lion 
rookery sites consist of the rookeries in the Aleutian Islands and the 
Gulf of Alaska listed in Table 1.

                                          Table 1 to Sec.   224.103--Listed Steller Sea Lion Rookery Sites \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   From                                    To
             Island              ------------------------------------------------------------------------------   NOAA                 Notes
                                         Lat.                Long.               Lat.              Long.          chart
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Outer I......................  59[deg]20.5 N       150[deg]23.0 W      59[deg]21.0 N      150[deg]24.5 W        16681  S quadrant.
2. Sugarloaf I..................  58[deg]53.0 N       152[deg]02.0 W      .................  .................     16580  Whole island.
3. Marmot I.....................  58[deg]14.5 N       151[deg]47.5 W      58[deg]10.0 N      151[deg]51.0 W        16580  SE quadrant.
4. Chirikof I...................  55[deg]46.5 N       155[deg]39.5 W      55[deg]46.5 N      155[deg]43.0 W        16580  S quadrant.
5. Chowiet I....................  56[deg]00.5 N       156[deg]41.5 W      56[deg]00.5 N      156[deg]42.0 W        16013  S quadrant.
6. Atkins I.....................  55[deg]03.5 N       159[deg]18.5 W      .................  .................     16540  Whole island.
7. Chernabura I.................  54[deg]47.5 N       159[deg]31.0 W      54[deg]45.5 N      159[deg]33.5 W        16540  SE corner.
8. Pinnacle Rock................  54[deg]46.0 N       161[deg]46.0 W      .................  .................     16540  Whole island.
9. Clubbing Rks (N).............  54[deg]43.0 N       162[deg]26.5 W      .................  .................     16540  Whole island.
Clubbing Rks (S)................  54[deg]42.0 N       162[deg]26.5 W      .................  .................     16540  Whole Island.
10. Sea Lion Rks................  55[deg]28.0 N       163[deg]12.0 W      .................  .................     16520  Whole island.
11. Ugamak I....................  54[deg]14.0 N       164[deg]48.0 W      54[deg]13.0 N      164[deg]48.0 W        16520  E end of island.
12. Akun I......................  54[deg]18.0 N       165[deg]32.5 W      54[deg]18.0 N      165[deg]31.5 W        16547  Billings Head Bight.
13. Akutan I....................  54[deg]03.5 N       166[deg]00.0 W      54[deg]05.5 N      166[deg]05.0 W        16520  SW corner, Cape Morgan.
14. Bogoslof I..................  53[deg]56.0 N       168[deg]02.0 W      .................  .................     16500  Whole island.
15. Ogchul I....................  53[deg]00.0 N       168[deg]24.0 W      .................  .................     16500  Whole island.
16. Adugak I....................  52[deg]55.0 N       169[deg]10.5 W      .................  .................     16500  Whole island.
17. Yunaska I...................  52[deg]42.0 N       170[deg]38.5 W      52[deg]41.0 N      170[deg]34.5 W        16500  NE end.
18. Seguam I....................  52[deg]21.0 N       172[deg]35.0 W      52[deg]21.0 N      172[deg]33.0 W        16480  N coast, Saddleridge Pt.
19. Agligadak I.................  52[deg]06.5 N       172[deg]54.0 W      .................  .................     16480  Whole island.

[[Page 23220]]

 
20. Kasatochi I.................  52[deg]10.0 N       175[deg]31.5 W      52[deg]10.5 N      175[deg]29.0 W        16480  N half of island.
21. Adak I......................  51[deg]36.5 N       176[deg]59.0 W      51[deg]38.0 N      176[deg]59.5 W        16460  SW Point, Lake Point.
22. Gramp rock..................  51[deg]29.0 N       178[deg]20.5 W      .................  .................     16460  Whole island.
23. Tag I.......................  51[deg]33.5 N       178[deg]34.5 W      .................  .................     16460  Whole island.
24. Ulak I......................  51[deg]20.0 N       178[deg]57.0 W      51[deg]18.5 N      178[deg]59.5 W        16460  SE corner, Hasgox Pt.
25. Semisopochnoi...............  51[deg]58.5 N       179[deg]45.5 E      51[deg]57.0 N      179[deg]46.0 E        16440  E quadrant, Pochnoi Pt.
Semisopochnoi...................  52[deg]01.5 N       179[deg]37.5 E      52[deg]01.5 N      179[deg]39.0 E        16440  N quadrant, Petrel Pt.
26. Amchitka I..................  51[deg]22.5 N       179[deg]28.0 E      51[deg]21.5 N      179[deg]25.0 E        16440  East Cape.
27. Amchitka I..................  51[deg]32.5 N       178[deg]49.5 E      .................  .................     16440  Column Rocks.
28. Ayugadak Pt.................  51[deg]45.5 N       178[deg]24.5 E      .................  .................     16440  SE coast of Rat Island.
29. Kiska I.....................  51[deg]57.5 N       177[deg]21.0 E      51[deg]56.5 N      177[deg]20.0 E        16440  W central, Lief Cove.
30. Kiska I.....................  51[deg]52.5 N       177[deg]13.0 E      51[deg]53.5 N      177[deg]12.0 E        16440  Cape St. Stephen.
31. Walrus I....................  57[deg]11.0 N       169[deg]56.0 W      .................  .................     16380  Whole island.
32. Buldir I....................  52[deg]20.5 N       175[deg]57.0 E      52[deg]23.5 N      175[deg]51.0 E        16420  Se point to NW point.
33. Agattu I....................  52[deg]24.0 N       173[deg]21.5 E      .................  .................     16420  Gillion Point.
34. Agattu I....................  52[deg]23.5 N       173[deg]43.5 E      52[deg]22.0 N      173[deg]41.0 E        16420  Cape Sabak.
35. Attu I......................  52[deg]54.5 N       172[deg]28.5 E      52[deg]57.5 N      172[deg]31.5 E        16681  S Quadrant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second
  set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower
  low water.

    (iv) Commercial Fishing Operations. The incidental mortality and 
serious injury of endangered Steller sea lions in commercial fisheries 
can be authorized in compliance with sections 101(a)(5) and 118 of the 
Marine Mammal Protection Act.
    (2) Exceptions--(i) Permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
paragraph (d)(1) of this section in accordance with and subject to the 
provisions of part 222, subpart C of this chapter--General Permit 
Procedures.
    (ii) Official activities. The taking of Steller sea lions must be 
reported within 30 days to the Regional Administrator, Alaska Region. 
Paragraph (d)(1) of this section does not prohibit or restrict a 
Federal, state or local government official, or his or her designee, 
who is acting in the course of official duties from:
    (A) Taking a Steller sea lion in a humane manner, if the taking is 
for the protection or welfare of the animal, the protection of the 
public health and welfare, or the nonlethal removal of nuisance 
animals; or
    (B) Entering the buffer areas to perform activities that are 
necessary for national defense, or the performance of other legitimate 
governmental activities.
    (iii) Subsistence takings by Alaska natives. Paragraph (d)(1) of 
this section does not apply to the taking of Steller sea lions for 
subsistence purposes under section 10(e) of the Act.
    (iv) Emergency situations. Paragraph (d)(1)(ii) of this section 
does not apply to an emergency situation in which compliance with that 
provision presents a threat to the health, safety, or life of a person 
or presents a significant threat to the vessel or property.
    (v) Exemptions. Paragraph (d)(1)(ii) of this section does not apply 
to any activity authorized by a prior written exemption from the 
Director, Alaska Region, National Marine Fisheries Service. 
Concurrently with the issuance of any exemption, the Assistant 
Administrator will publish notice of the exemption in the Federal 
Register. An exemption may be granted only if the activity will not 
have a significant adverse affect on Steller sea lions, the activity 
has been conducted historically or traditionally in the buffer zones, 
and there is no readily available and acceptable alternative to or site 
for the activity.
    (vi) Navigational transit. Paragraph (d)(1)(ii) of this section 
does not prohibit a vessel in transit from passing through a strait, 
narrows, or passageway listed in this paragraph if the vessel proceeds 
in continuous transit and maintains a minimum of 1 nautical mile from 
the rookery site. The listing of a strait, narrows, or passageway does 
not indicate that the area is safe for navigation. The listed straits, 
narrows, or passageways include the following:

------------------------------------------------------------------------
                Rookery                      Straits, narrow, or pass
------------------------------------------------------------------------
Akutan Island..........................  Akutan Pass between Cape Morgan
                                          and Unalga Island.
Clubbing Rocks.........................  Between Clubbing Rocks and
                                          Cherni Island.
Outer Island...........................  Wildcat Pass between Rabbit and
                                          Ragged Islands.
------------------------------------------------------------------------

    (3) Penalties. (i) Any person who violates this section or the Act 
is subject to the penalties specified in section 11 of the Act, and any 
other penalties provided by law.
    (ii) Any vessel used in violation of this subsection or the 
Endangered Species Act is subject to forfeiture under section 
11(e)(4)(B) of the Act.
* * * * *

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    3. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543.

    4. In Sec.  223.102, the table is amended by removing and reserving 
paragraph (a)(2).
    5. Redesignate all figures in Sec.  223.202 to the end of Sec.  
224.103 (d)(1)(iii).
    6. Section 223.202 is removed.

[FR Doc. 2012-9335 Filed 4-17-12; 8:45 am]
BILLING CODE 3510-22-P