Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 23209 

other forms of information technology, 

when appropriate. 

The Board favors the resolution of 

disputes through the use of mediation 

and arbitration procedures, in lieu of 

formal Board proceedings, wherever 

possible. To that end, the Board has 

existing rules that encourage parties to 

agree voluntarily to mediate or arbitrate 

certain matters subject to its 

jurisdiction. The Board’s mediation 

rules are set forth at 49 CFR 1109.1, 

1109.3, 1109.4, 1111.2, 1111.9, and 

1111.10. Its arbitration rules are set forth 

at 49 CFR 1108, 1109.1, 1109.2, 1109.3, 

and 1115.8. The proposed modifications 

to the Board’s existing rules are 

intended to increase the use of 

mediation and arbitration in lieu of 

formal adjudication to resolve disputes 

before the Board. 

The proposed changes to the 

mediation rules do not impose a new 

information collection on the public. 

Rather, the proposed changes to the 

existing mediation rules would establish 

procedures under which the Board 

could compel mediation in certain types 

of adjudications before the Board, on a 

case-specific basis, as well as grant 

mediation requests of parties to 

disputes. 

The proposed changes to the 

arbitration rules, however, do impose a 

new information collection with regard 

to rail carriers. Class I and Class II 

carriers would be deemed to have 

agreed voluntarily to participate in the 

Board’s proposed arbitration program 

unless they ‘‘opt out.’’ To opt out, any 

such carrier would be required to file a 

notice with the Board, under Docket No. 

EP 699, notifying the Board of its optout decision, no later than 20 days after 

this proposed rule took effect. Any such 

carrier not submitting a notice by this 

deadline would be deemed to be a 

participant in the Board’s arbitration 

program. Should the proposed rules 

take effect, a Class I or Class II carrier 

wishing to opt out of the Board’s 

arbitration program would be required 

to file an opt-out notice with the Board 

no later than January 10 of each 

calendar year. Such carriers not opting 

out by this deadline would become 

participants in the Board’s proposed 

arbitration program during that calendar 

year. Participating carriers could also 

opt out of the arbitration program at any 

time by providing 90 days’ notice to the 

Board. Class I and Class II carriers that 

had opted out would be able to opt back 

into the proposed arbitration program at 

any time by filing a notice with the 

Board that would take effect 

immediately. They could also 

participate in arbitration on a case-bycase basis. 

In contrast, Class III rail carriers 

would not be deemed to have agreed to 

participate in the proposed arbitration 

program unless they were to opt in by 

filing a written notice in Docket No. EP 

699, so informing the Board. Such 

notice could be filed at any time and 

would take effect immediately. A Class 

III carrier would remain a participant in 

the proposed arbitration program 

thereafter unless it were to file an optout notice with the Board. Such notice 

would take effect 90 days after filing. 

Like Class I and Class II carriers, Class 

III carriers could also voluntarily agree 

to participate in arbitration on a case-bycase basis. 

Shippers would choose to participate 

in arbitration of the proposed programeligible disputes on a case-by-case basis 

following the filing of a complaint 

whose subject matter would be 

arbitration program-eligible under the 

proposed rule. 

This proposed rule, which is detailed 

in the Board’s decision and Federal 

Register notice referenced above is 

being submitted to OMB for review as 

required under the PRA, 44 U.S.C. 

3507(d), and 5 CFR 1320.11. 

List of Subjects 

49 CFR Part 1108 

Administrative practice and 

procedure, Railroads. 

49 CFR Part 1109 

Administrative practice and 

procedure, Maritime carriers, Motor 

carriers, Railroads. 

Decided: April 13, 2012. 

Jeffrey Herzig, 

Clearance Clerk. 

Appendix A 

The additional information below is 

included to assist those who may wish 

to submit comments pertinent to review 

under the Paperwork Reduction Act: 

Description of Collection 

Title: Assessment of Mediation and 

Arbitration Procedures. 

OMB Control Number: 2140–XXXX. 

STB Form Number: None. 

Type of Review: New collection. 

Respondents: Class I, Class II, and 

Class III railroads. 

Number of Respondents: A maximum 

of 650. 

Estimated Time per Response: 1.0 

hour. 

Frequency: Annually. 

Total Burden Hours (annually 

including all potential respondents): 

650 hours. 

Total ‘‘Non-Hour Burden’’ Cost: None 

identified. 

Needs and Uses: Under 49 U.S.C. 

721(a), the Board has the authority to 

prescribe regulations to carry out its 

statutory authority. The proposed 

information collection is intended to 

encourage greater use of arbitration as a 

means to resolve certain types of 

disputes before the Board, by 

establishing an arbitration program in 

which Class I and Class II rail carriers 

would agree in advance to participate in 

binding arbitration of those disputes 

unless they file an opt-out notice with 

the Board on an annual basis. Class III 

rail carriers may inform the Board of 

their interest in participating in this 

arbitration program by filing an opt-in 

notice at any time. Failure to collect this 

information would impede the Board’s 

ability to establish the proposed 

arbitration program. The Board has 

authority to collect information from 

rail carriers under 49 U.S.C. 11145(a). 

Retention Period: Information in this 

report will be maintained on the Board’s 

Web site for a minimum of one year and 

will be otherwise maintained by the 

Board for a minimum of two years. 

[FR Doc. 2012–9324 Filed 4–17–12; 8:45 am] 

BILLING CODE 4915–01–P 

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. 

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 

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23210 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• 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. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• 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 ESAimplementing 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. 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 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. 

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23212 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

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° 

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° 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° W longitude, and the 

western DPS consists of all Steller sea 

lions from breeding colonies located 

west of 144° 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 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 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 thirtyyear 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 mid1990s, 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). 

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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 

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NMFS actions (e.g., 75 FR 77535, 

December 13, 2010). Given the 

sustained significant increases in nonpup 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: 

D 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. 

D 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 

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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 

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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:// 

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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: 

• The biological (demographic) 

criterion for delisting identified in the 

Recovery Plan has been met. 

• 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. 

• 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. 

• 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 PostDelisting Monitoring Plan will provide 

an additional degree of attention and an 

early warning system to ensure that delisting will not result in the reemergence 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° 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° 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. 

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Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 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 § 224.103, revise paragraph (d) to 

read as follows: 

§ 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 °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 § 224.103—LISTED STELLER SEA LION ROOKERY SITES 1

Island 

From To NOAA 

chart Notes 

Lat. Long. Lat. Long. 

1. Outer I ................................................................... 59°20.5 N 150°23.0 W 59°21.0 N 150°24.5 W 16681 S quadrant. 

2. Sugarloaf I ............................................................. 58°53.0 N 152°02.0 W 16580 Whole island. 

3. Marmot I ................................................................ 58°14.5 N 151°47.5 W 58°10.0 N 151°51.0 W 16580 SE quadrant. 

4. Chirikof I ................................................................ 55°46.5 N 155°39.5 W 55°46.5 N 155°43.0 W 16580 S quadrant. 

5. Chowiet I ............................................................... 56°00.5 N 156°41.5 W 56°00.5 N 156°42.0 W 16013 S quadrant. 

6. Atkins I ................................................................... 55°03.5 N 159°18.5 W 16540 Whole island. 

7. Chernabura I ......................................................... 54°47.5 N 159°31.0 W 54°45.5 N 159°33.5 W 16540 SE corner. 

8. Pinnacle Rock ....................................................... 54°46.0 N 161°46.0 W 16540 Whole island. 

9. Clubbing Rks (N) ................................................... 54°43.0 N 162°26.5 W 16540 Whole island. 

Clubbing Rks (S) ....................................................... 54°42.0 N 162°26.5 W 16540 Whole Island. 

10. Sea Lion Rks ....................................................... 55°28.0 N 163°12.0 W 16520 Whole island. 

11. Ugamak I ............................................................. 54°14.0 N 164°48.0 W 54°13.0 N 164°48.0 W 16520 E end of island. 

12. Akun I .................................................................. 54°18.0 N 165°32.5 W 54°18.0 N 165°31.5 W 16547 Billings Head Bight. 

13. Akutan I ............................................................... 54°03.5 N 166°00.0 W 54°05.5 N 166°05.0 W 16520 SW corner, Cape Morgan. 

14. Bogoslof I ............................................................ 53°56.0 N 168°02.0 W 16500 Whole island. 

15. Ogchul I ............................................................... 53°00.0 N 168°24.0 W 16500 Whole island. 

16. Adugak I .............................................................. 52°55.0 N 169°10.5 W 16500 Whole island. 

17. Yunaska I ............................................................ 52°42.0 N 170°38.5 W 52°41.0 N 170°34.5 W 16500 NE end. 

18. Seguam I ............................................................. 52°21.0 N 172°35.0 W 52°21.0 N 172°33.0 W 16480 N coast, Saddleridge 

Pt. 

19. Agligadak I ........................................................... 52°06.5 N 172°54.0 W 16480 Whole island. 

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23220 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Proposed Rules 

TABLE 1 TO § 224.103—LISTED STELLER SEA LION ROOKERY SITES 1—Continued 

Island 

From To NOAA 

chart Notes 

Lat. Long. Lat. Long. 

20. Kasatochi I ........................................................... 52°10.0 N 175°31.5 W 52°10.5 N 175°29.0 W 16480 N half of island. 

21. Adak I .................................................................. 51°36.5 N 176°59.0 W 51°38.0 N 176°59.5 W 16460 SW Point, Lake Point. 

22. Gramp rock .......................................................... 51°29.0 N 178°20.5 W 16460 Whole island. 

23. Tag I .................................................................... 51°33.5 N 178°34.5 W 16460 Whole island. 

24. Ulak I ................................................................... 51°20.0 N 178°57.0 W 51°18.5 N 178°59.5 W 16460 SE corner, Hasgox Pt. 

25. Semisopochnoi .................................................... 51°58.5 N 179°45.5 E 51°57.0 N 179°46.0 E 16440 E quadrant, Pochnoi 

Pt. 

Semisopochnoi .......................................................... 52°01.5 N 179°37.5 E 52°01.5 N 179°39.0 E 16440 N quadrant, Petrel Pt. 

26. Amchitka I ............................................................ 51°22.5 N 179°28.0 E 51°21.5 N 179°25.0 E 16440 East Cape. 

27. Amchitka I ............................................................ 51°32.5 N 178°49.5 E 16440 Column Rocks. 

28. Ayugadak Pt ........................................................ 51°45.5 N 178°24.5 E 16440 SE coast of Rat Island. 

29. Kiska I .................................................................. 51°57.5 N 177°21.0 E 51°56.5 N 177°20.0 E 16440 W central, Lief Cove. 

30. Kiska I .................................................................. 51°52.5 N 177°13.0 E 51°53.5 N 177°12.0 E 16440 Cape St. Stephen. 

31. Walrus I ............................................................... 57°11.0 N 169°56.0 W 16380 Whole island. 

32. Buldir I ................................................................. 52°20.5 N 175°57.0 E 52°23.5 N 175°51.0 E 16420 Se point to NW point. 

33. Agattu I ................................................................ 52°24.0 N 173°21.5 E 16420 Gillion Point. 

34. Agattu I ................................................................ 52°23.5 N 173°43.5 E 52°22.0 N 173°41.0 E 16420 Cape Sabak. 

35. Attu I .................................................................... 52°54.5 N 172°28.5 E 52°57.5 N 172°31.5 E 16681 S Quadrant. 

1Each 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 § 223.102, the table is amended 

by removing and reserving paragraph 

(a)(2). 

5. Redesignate all figures in § 223.202 

to the end of § 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 

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