Threatened Fish and Wildlife; Change in Listing Status of Steller Sea Lions Under the Endangered Species Act

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 227

[Docket No. 961217358-6358-01; I.D. 041995B]

RIN 0648-XX77

Threatened Fish and Wildlife; Change in Listing Status of Steller

Sea Lions Under the Endangered Species Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: The Steller sea lion, Eumetopias jubatus, is currently listed

as threatened, pursuant to the Endangered Species Act (ESA), throughout

its range, which extends from California and associated waters to

Alaska, including the Gulf of Alaska (GOA) and Aleutian Islands, and

into the Bering Sea and North Pacific and into Russian waters and

territory. Based on biological information collected since the species

was listed as threatened in 1990, NMFS is now reclassifying Steller sea

lions as two distinct population segments under the ESA. The Steller

sea lion population segment west of 144 deg.W. long. (a line near Cape

Suckling, AK) is reclassified as endangered; the threatened listing is

being maintained for the remainder of the U.S. Steller sea lion

population.

EFFECTIVE DATE: June 4, 1997.

ADDRESSES: Requests for copies of this rule or a complete list of

references should be addressed to the Director, Office of Protected

Resources, National Marine Fisheries Service, 1315 East-West Highway,

Silver Spring, MD 20910

[[Page 24346]]

or the Director, Protected Resources Management Division, NMFS, Alaska

Regional Office, P.O. Box 21668, Juneau, AK 99802-1668.

FOR FURTHER INFORMATION CONTACT: Steve Zimmerman, 907-586-7235, or

Margot Bohan, 301-713-2322.

SUPPLEMENTARY INFORMATION:

I. Background

The U.S. population of Steller sea lions, which numbered close to

192,000 adults and juveniles (nonpups) 30 years ago, declined by 64

percent to less than 69,100 nonpups by 1989, with the majority of the

decline occurring in Alaska between the Kenai Peninsula and Kiska

Island. As a result of this precipitous decline, the species was listed

as threatened under provisions of the ESA in 1990 (55 FR 12645, April

5, 1990; see also, 55 FR 13488, April 10, 1990; 55 FR 49204, November

26, 1990; and, 55 FR 50005, December 4, 1990).

The current rule listing the Steller sea lion as a threatened

species contains a series of management measures to reduce direct

causes of mortality, to restrict opportunities for intentional and

unintentional harassment of Steller sea lions, and to minimize

disturbance and interference with Steller sea lion behavior, including

disruption of foraging behavior, especially at pupping and breeding

sites.

In conjunction with the listing, NMFS also appointed a Recovery

Team (Team) with the primary goal of developing a Recovery Plan (Plan)

to promote recovery of the Steller sea lion population to a level

appropriate to justify removal from ESA listings. The Plan was

published in December 1992, identifying factors limiting to the

population and recommending research and management actions to aid

population recovery.

As a result of ESA section 7 consultations on the effects of the

North Pacific federally-managed groundfish fisheries, NMFS developed

protective measures under the Magnuson Fishery Conservation and

Management Act (Magnuson-Stevens Act) to reduce the effects of certain

fisheries on Steller sea lion foraging (see 56 FR 28112, June 19, 1991;

57 FR 2683, January 23, 1992; and 58 FR 13561, March 12, 1993; current

protections are codified at 50 CFR Secs. 672.24(e) and 675.24(f)). In

1993, NMFS designated critical habitat for the species (at 58 FR 45269,

August 27, 1993), which includes all U.S. rookeries, major haulouts in

Alaska, horizontal and vertical buffer zones around these rookeries and

haulouts, and three aquatic foraging areas in North Pacific waters--

Seguam Pass, southeastern Bering Sea shelf and Shelikof Strait (50 CFR

226.12).

At the time that they were listed as threatened under the ESA, no

subpopulation distinction was identified for Steller sea lions. NMFS

determined that there was insufficient information available to

consider animals in different geographic regions as separate

populations. However, subsequent analysis of mitochondrial DNA provided

new information, leading to a conclusion that a distinct population

segment was identifiable (Bickham et al., 1996). Furthermore, based on

a phylogeographical analysis (Dizon et al., 1992) using Steller sea

lion population dynamics, data from tagging, branding and radio-

telemetry studies, phenotypic data, and genetics, NMFS has been able to

delineate two discrete population segments of Steller sea lions within

their geographic range: an eastern segment, which includes animals east

of Cape Suckling, AK (144 deg.W. long.) and a western segment, which

includes animals at and west of Cape Suckling, AK.

Since 1990, NMFS, the Alaska Department of Fish and Game (ADFG),

the Oregon Department of Fish and Wildlife, and the Canadian and

Russian governments have continued to assess the Steller sea lion

populations and to study the cause(s) of the decline. Results of 1990-

94 surveys to monitor abundance trends indicated that the number of

adults and juveniles continued to decline in Alaska (4 percent per

year) during that period. Since 1994, preliminary findings indicate an

overall decrease of 7.8 percent in nonpup numbers at trend sites

(rookeries and haulouts that have been counted during every major

survey) in Alaska. Pup numbers in the GOA and Aleutian Islands declined

at a rate of 8 percent per year during 1990-1994. In addition, a

partial survey of Steller sea lion pups conducted at nine rookeries

from Southeast Alaska to the eastern Aleutian Islands indicates a 6.1

percent decrease in pup numbers at surveyed sites since 1994.

Because this information indicates a continued decline, NMFS

initiated a formal population status review to determine whether a

change in listing status was warranted (58 FR 58318, November 1, 1993).

NMFS received 16 comments in response to the status review notice.

To complete the status review and to calculate the future trends of

the U.S. Steller sea lion populations, should the historical trends

persist, population viability analyses (PVAs) were prepared. NMFS

determined that PVAs were only necessary for the western population

segment, because the eastern population segment is likely to maintain

current abundance for the foreseeable future. Based on the 1985-94 and

1989-94 population trends, models of the declining western population

segment were developed to evaluate the probability of persistence of

the population over the foreseeable future (the next 100 years). Two

PVA models were developed based on a stochastic model of exponential

growth that required only count data and count variance to predict

future trends. Essentially, the models project the future population

trend, using the historical trend, and estimate the probabilities that

specific population sizes will be reached based on both the trend and

the observed variance around the historical trend. Only adult females

were considered as part of the model because this is the population

segment that dictates population growth in sea lions.

One model, an aggregate Kenai-Kiska Island (trend sites) model, was

based on the trajectory of the sum of the rookery populations within

the area. The second model was based on a simulation of the population

trajectories of individual rookeries in the Kenai-Kiska area.

Both models predicted that the Kenai-Kiska population would be

reduced to low levels within 100 years from the present if either the

1985-94 or the 1989-94 trend continues into the future. The Kenai-Kiska

regional model predicted a 100 percent probability of extinction within

100 years from the 1985-94 trend data, and a 65 percent probability of

extinction within 100 years if the 1989-94 trend continues.

Under each of these modeling scenarios, the results indicate that,

if either trend persists, the next 20 years will be crucial to the

survival of the western Alaska population of Steller sea lions.

On November 29-30, 1994, NMFS convened the Team to consider the

appropriate ESA listing status for the species and to evaluate the

adequacy of ongoing research and management programs. In the course of

that meeting and in subsequent letters to the Assistant Administrator

for Fisheries, NOAA, the Team recommended that NMFS list the Steller

sea lion as two distinct population segments, split to the east and

west of 144 deg.W. long. The Team recommended that the western

population segment be listed as endangered and that the eastern

population segment remain listed as threatened.

Based on the status review comments, recommendations from the

Steller sea lion recovery team, the International

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Union for the Conservation of Nature's (IUCN) vulnerability criteria

and additional data and analyses compiled by NMFS (including genetics,

phenetics, population trend data, and data from tagging/branding

studies), NMFS issued a proposed rule and request for comments on

October 4, 1995 (60 FR 51968), to delineate two distinct population

segments of Steller sea lions and reclassify the segment west of 144

deg.W. long. as endangered, while maintaining the eastern segment as

threatened pursuant to the ESA.

II. Comments and Responses on Proposed Rule To Reclassify

NMFS received 14 comments on the proposed rule (60 FR 51968,

October 4, 1995) during the 90-day comment period. Four comments were

received from environmental groups, three comments were received from

Federal, state and local governments, one comment was received from an

academic institution, one comment was received from Alaskan Native

interest groups, four comments were received from fishing industry

groups, and one comment was received from a private individual. These

comments, which are discussed below, address the following issues:

Separate population listings, listing status, population viability

analysis, protective management measures, buffer zone exemptions and

research, and research funding.

Separate Population Listings

Comment: The majority of commenters were in support of the proposal

to separate the Steller sea lion species into two distinct segments.

One commenter, however, questioned the segmentation into two distinct

populations, as opposed to three or four populations. Another commenter

recommended designating the line separating the population segments at

147 deg. W. long., which is central Prince William Sound; this would

follow the Federal groundfish districts for the eastern and western

GOA. The commenter reasoned that this would still maintain the major

haulout and pupping areas of Prince William Sound in the western

population region, while enabling fishing to continue.

Response: NMFS was able to delineate two discrete populations of

Steller sea lions within their geographic range using the

phylogeographic method. Mitochondrial DNA analyses conducted on samples

taken from newborn pups on rookeries from Oregon, Alaska, and Russia

defined 52 haplotypes, which could be further grouped into eight

maternal lineages. Cluster analysis indicates that these lineages can

be divided into two genetically differentiated population segments, an

eastern and a western segment with separation at Prince William Sound.

Other supporting evidence for two discrete populations includes

distinct population trends, rookery site fidelity of tagged/branded

animals, and possible phenotypic differences (e.g., pup size, skull

size). These results were presented at the September 1994 Workshop on

the Use of Genetics Data to Diagnose Management Units, and the

conclusion of two distinct population segments was endorsed by the

workshop attendees.

NMFS' decision to separate the two populations at 144 deg. W.

long., as opposed to 147 deg. W. long., was also based largely on

genetics data and population trends. Steller sea lion declines have

occurred between 144 deg. W. and 147 deg. W. long.; such has not been

the case east of 144 deg. W. long. Few sea lions are found between

144 deg. W. long. and southeast Alaska where the population has been

more stable. West of 144 deg. W. long., however, sea lions are

distributed relatively continuously and are declining. NMFS will

continue genetics studies in order to better determine relationships

between population segments and among rookeries. Clarification of the

criteria used to determine the presence of distinct population segments

is outlined in this rule under section III. Final Policy on Population

Determinations.

Change in Listing Status

Comment: Several commenters indicated their support for a change in

the listing status of the western population from threatened to

endangered while maintaining a threatened status for the eastern

population. Comments were also received by NMFS to reclassify Steller

sea lions along the west coast of the U.S. (south of 49 deg. N. lat.)

to endangered. Other commenters stated that the current listing of the

species as threatened provides NMFS with sufficient regulatory

authority to protect Steller sea lions; therefore, a change in listing

status to endangered for the western population segment is not

necessary. In addition, delisting should be considered for the eastern

population segment.

Response: The ESA requires that listing and reclassification

decisions be made solely on the basis of the best scientific and

commercial information available regarding the species' population

status (section 4(b)(1)(A)). Each of the five factors described in

section 4(a)(1) of the ESA must be considered in making a listing

status determination and are discussed in this preamble under section

IV. Listing Procedures: Summary of Factors Affecting the Species.

Steller sea lions are declining throughout their range, except in

the eastern Aleutian Islands and Bering Sea (BSAI) regions where the

numbers are increasing slightly. Nevertheless, the abundance there

remains only a fraction of what it was 20 years ago. The Team reviewed

the data on population trends, the PVA analysis for the western

population segment in relation to the reclassification criteria in the

Plan, as well as the ESA definition of ``endangered,'' and concluded

that the western population segment should be listed as endangered.

NMFS concurs with the recommendations of the Team and the IUCN Seal

Specialist Group's listing criteria, which also recommend a

classification of endangered.

The Team also agreed that there was continued concern for the

eastern population segment of Steller sea lions, despite the fact that

its current abundance may be stable. The history of declines in the

eastern Aleutian Islands (Merrick et al., 1987) has shown that the

Alaska Steller sea lion population decline has not followed a constant

trajectory. Periods of apparent moderation in the decline seem to have

been interspersed with periods of acute decline throughout the overall

period of decline.

NMFS takes a risk-averse approach to downlisting or delisting

species protected under the ESA. Although adult counts in southeastern

Alaska are considered stable, preliminary data indicate a decline of

7.2 percent in 1995-96, and pup production decreased by 20.5 percent

between 1989-90 and 1994-95. Steller sea lion numbers at the southern

margin are declining and the range is shrinking.

Furthermore, during the nonbreeding season of animals from the

eastern and western population segments mix at sea and at haulout

sites. These animals cannot be visually differentiated, and animals

from the western population segment need to be protected under the ESA

wherever they occur.

Evaluating the population status of the eastern population segment

without a consideration of its place in the overall species population

is inappropriate. Prior to the decline, the proportion of Steller sea

lions that resided within the eastern population segment was less than

10 percent of the entire species abundance (NMFS, 1995). Because of the

western population segment's decline, the eastern population segment's

numerical significance has increased. Thus,

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although for listing purposes the western and eastern population

segments may be considered discrete, the substantial decline that has

occurred represents a threat to the continued existence of the entire

species.

In consideration of the relatively small fraction of the entire

population segment that exists in the eastern part of the range, and

the limited knowledge of the underlying causes of the decline, the

eastern population segment should maintain its threatened status under

the ESA. The Team recommended that monitoring of the eastern population

segment be continued to determine if delisting is appropriate, and

delisting criteria will be developed by NMFS in consultation with the

Team.

Population Viability Analysis

Comment: One commenter stated that the PVA used to evaluate the

future trend of the U.S. Steller sea lion population was incomplete,

misleading and, if applied to humans, would predict that the human

population will increase to infinity. Another commenter indicated that

the PVA should be peer-reviewed by independent experts. Some commenters

expressed concern regarding the weight that would be given to the

results of the Steller sea lion PVA. They noted difficulties in

predicting future population trends with confidence when causal

relationships are not understood and suggested that NMFS use the PVA

results with caution in the listing status determination.

Response: NMFS believes that the PVA provides the best estimate of

extinction risk possible with existing population data and scientific

methods. It was submitted for review and approved by outside,

independent experts. The validity of the predictions made by the PVA

model(s) is conditioned on the validity of its premise. The central

premise in the PVA modeling is that the decreasing population pattern

of the past 25 years will continue into the distant future. The model

assumes that the decline will not abate, and, in fact, there is no

indication that it will. PVA models are not valid for increasing

populations (and the authors do not apply the model(s) to increasing

populations, such as the human population); therefore the commenter's

analogy regarding humans is not appropriate. The upper limit on the

size of the Steller sea lion population was ignored because the authors

of the PVA were trying to answer the question: How long will the

population persist if the present pattern of decline continues? The PVA

represents an exploration into that query alone. NMFS recognizes the

limitations of population modeling to accurately predict future trends

for this population. Thus, although the PVA results have been

considered in the status determination, these have not been given

greater weight than population trend data and the scientific opinion of

experts, both within and outside NMFS.

Protective Management Measures

Comment: Several commenters raised issues regarding the protective

measures currently in place to aid recovery of Steller sea lions. Some

commenters felt that additional/revised regulations were needed to

provide improved protection. One commenter questioned the efficacy of

the 3 nautical mile (nm) (5.5 kilometer (km)) buffer zones around

certain rookeries west of 150 deg.W. long., restricting all human

activities year-round. Another commenter indicated the need to support

full partnerships with coastal communities and develop cooperative

management programs. Two commenters suggested that NMFS, in

consultation with the Team, convene a panel of independent experts to

evaluate and make recommendations on the full range of fishery and

resource management practices that may be useful for reversing the

decline of Steller sea lions.

Response: Since the species' listing as threatened in 1990, NMFS

has implemented various protective measures for Steller sea lions under

the ESA and the Magnuson-Stevens Act. These measures are intended to

reduce intentional and unintentional mortality and harassment,

disturbance of breeding areas and reproduction, and the possible

effects of commercial fishing on the availability of Steller sea lion

prey.

The purposes of the buffer zones are: (1) To restrict opportunities

for individuals to shoot at sea lions and to facilitate the enforcement

of the restriction; (2) to reduce the likelihood of interactions with

sea lions such as accidents or incidental takings in areas where

concentrations of the animals are expected to be high; (3) to minimize

disturbances and interference with sea lion behavior, e.g., boating

activity, especially at pupping and breeding sites; and (4) to avoid or

minimize other related adverse effects (which could include prey

removal in the immediate areas surrounding the rookeries).

NMFS believes it is premature to propose changes to the Steller sea

lion protective measures, because: (1) More time is required to assess

what, if any, benefit has been derived from the actions currently in

place; and (2) given the limited knowledge of the sea lion/fishery prey

interaction and the effects of human disturbance, it is difficult to

identify meaningful management actions in addition to those already in

place. It will continue to be difficult to demonstrate a definitive

causal link between Steller sea lion decline and fishery-related

activities due to the complex nature of the interactions between

fisheries and marine mammals on a large scale.

Buffer Zone Exemptions

Comment: One commenter remarked that the 3 nm (5.5 km) approach

prohibition places an excessive burden on the Adak crab fleet by

precluding crab fishing activities. The commenter explained further

that the Adak crab fleet, by nature of fishing practices, fishing gear,

bycatch composition and observer requirements, can be shown to address

adequately each of the concerns associated with the restrictions of the

buffer areas without the imposition of such restrictions. The commenter

requested limited exemptions, waivers, or special permits for the Adak

crab fleet to fish within the buffer areas.

Response: A mechanism is provided under existing regulations (55 FR

49204, November 26, 1990) to allow the public to petition the Regional

Administrator, Alaska Region, NMFS, to issue exemptions for any

activity that has historically or traditionally occurred within a

buffer zone, is not likely to adversely affect sea lions, and for which

there is no readily available and acceptable alternative to conducting

the activity within a buffer zone. Notice of all such exemptions will

be published in the Federal Register.

Research and Research Funding

Comment: Several commenters recommended an expansion of existing

research efforts and offered specific recommendations for areas of

research. The majority of commenters urged NMFS to place emphasis on

investigating the temporal and spatial prey (fish) availability across

the foraging range of the Steller sea lion and on examining the impact

of changes in biomass of the forage fish/prey upon Steller sea lion.

One commenter questioned whether NMFS is currently accounting for all

catch and discards in groundfish fisheries, especially walleye pollock.

Cooperative research and monitoring programs were recommended with an

emphasis on the walleye pollock and other forage fish exploitation in

Russian waters of the Bering Sea. Commenters recommended that NMFS

reconvene the Team to review and revise the research priorities and

recommendations in the Plan based on existing data and information from

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ongoing research. Support was expressed for use of a peer review

process, to examine plans for satellite telemetry studies, and food

habits/foraging ecology research.

Response: NMFS is addressing the majority of these comments through

the Steller Sea Lion Recovery Research Program, a federally-funded

effort, cooperatively implemented by NMFS and ADFG since 1992. The

Steller Sea Lion Recovery Research Program involves state and private

research entities and receives input from the Team. At the November 29-

30, 1994, Steller Sea Lion Recovery Team meeting, the Team concluded

that individual research peer review workshops were needed to review

research conducted to date and to define necessary changes in research

program emphasis. This peer review process is considered an essential

precursor to updating the Plan (revised Plan due in 1998).

NMFS intends to conduct peer reviews on several components of the

Steller Sea Lion Recovery Research Program. The general goals of

research peer review, as expressed by the Team, are to determine: (1)

Whether the research facilitates recovery or leads to the

identification of management actions to aid the species; (2) whether it

is cost effective; and (3) whether the work has been completed or has

reached a specified level of completion. More specifically, these

recovery program component reviews are intended to: (a) Evaluate

hypotheses being tested by the current suite of studies; (b) review

program design and methods; (c) review results obtained to date; (d)

evaluate whether current projects and methods are likely to adequately

address hypotheses proposed; (e) evaluate how studies being done fit

into the broader context of studies on Steller sea lions and their

ecosystems; (f) evaluate the degree of and need for coordination among

related studies; and (g) make recommendations for continuation,

modification, or deletion of specific studies.

Research peer review workshops will focus on four components of the

Steller Sea Lion Recovery Research Program: (1) Behavior--satellite

telemetry at-sea/behavior on land; (2) health/ physiology; (3) food

habits/feeding ecology, and; (4) prey competition studies. These

reviews will involve experts from outside NMFS and the Team to assess

research conducted to date and to identify appropriate future actions

that are most likely to stop the decline of Steller sea lions. This

peer review process is also considered an essential precursor to

updating the Recovery Plan. Steller sea lion peer review workshops are

tentatively scheduled to begin in the fall of 1997.

III. Final Policy on Population Determinations

Only a ``species'' may be listed as threatened or endangered under

the ESA. This term is defined under section 3 of the ESA to include any

subspecies of fish or wildlife and any distinct population segment of

any species of fish or wildlife that interbreeds when mature. On

February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS)

published a policy to clarify their interpretation of the phrase

``distinct population segment of any species of vertebrate fish or

wildlife'' for the purposes of listing, delisting, and reclassifying

species under the ESA (61 FR 4722).

NMFS used the criteria in this policy to assess the presence of

distinct population segments of Steller sea lions. The policy outlines

three elements to be considered in deciding the status of a possible

distinct population segment as endangered or threatened under the ESA:

(1) Discreteness of the population segment in relation to the

remainder of the species to which it belongs.

(2) The significance of the population segment to the species to

which it belongs.

(3) The population segment's conservation status in relation to the

Act's standards for listing (i.e., is the population segment, when

treated as if it were a species, endangered or threatened?).

Discreteness: A population segment of a vertebrate species may be

considered discrete if it satisfies either one of the following

conditions: (a) It is markedly separated from other populations of the

same taxon as a consequence of physical, physiological, ecological, or

behavioral factors (quantitative measures of genetic or morphological

discontinuity may provide evidence of this separation); or (b) it is

delimited by international governmental boundaries within which

differences in control of exploitation, management of habitat,

conservation status, or regulatory mechanisms exist that are

significant in light of section 4(a)(1)(D) of the ESA.

The former criterion is particularly relevant for Steller sea

lions. Genetic studies provide the strongest evidence that discrete

population segments of Steller sea lions exist. Bickham et al. (1996)

collected genetic samples from 224 Steller sea lion pups on rookeries

in Russia, the Aleutian Islands, the western and central GOA,

southeastern Alaska, and Oregon. Mitochondrial DNA analyses of these

samples identified a total of 52 haplotypes (sets of alleles of closely

linked genes that tend to be inherited together, uniquely identifying a

chromosome) that could be further grouped together into eight lineages.

Bickham et al. (1996) found a distinct break in haplotype distribution

between the four western localities and the two eastern localities.

Cluster analysis indicated that the eight lineages could be subdivided

into two genetically differentiated populations, with the division at

about Prince William Sound. Ono (1993) conducted similar analyses on

samples obtained from 11 Steller sea lions on Ano Nuevo Island, CA, and

found seven haplotypes. Six of these were identical to those identified

from southeastern Alaska and Oregon by Bickham et al. (1996), and one

was unique to Ano Nuevo Island, CA.

Tagging and branding studies provide further evidence that the

breeding behavior of Steller sea lions probably reduces opportunities

for genetic mixing among rookeries although Steller sea lions have been

documented to travel large distances during the non-breeding season.

The majority of females marked as pups, then later resighted as adults,

have returned to their rookery of birth to breed (Calkins & Pitcher,

1982; NMFS, 1995). The few resighted females observed breeding at

rookeries other than their natal site were all at rookeries near their

birth rookery. This apparent natal site fidelity not only reduces

genetic mixing among rookeries, but it also makes it less likely that

declining rookeries will be bolstered by recruitment from other

rookeries.

Satellite telemetry studies also provide evidence of ``homing''

behavior in Steller sea lions. Generally, tracked sea lions forage from

a central place (either a rookery or nearby haulout) and return to that

place at the end of a foraging trip that may vary in duration from

hours to months (Merrick et al. 1994).

Population trend data provide further evidence of separation among

these two population segments. The Steller sea lion population east of

Cape Suckling (with the exception of the portion in southern

California) has remained stable since the 1970s, whereas the population

to the west has declined dramatically. It is also worth noting that the

only break in the distribution of Steller sea lions along the Alaskan

coast occurs in the Yakutat area, near the proposed longitudinal border

that would delineate the western and eastern population segments.

Loughlin (1994) used the phylogeographic approach proposed by

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Dizon et al. (1992) to discern population discreteness in Steller sea

lions. Loughlin concluded, based on an evaluation of distribution,

population response, phenotypic, and genotypic data, that Steller sea

lions should be managed as two discrete populations, with the

separation point at about 144 deg.W. long.

Significance: If a population segment is considered discrete under

one or more of the above conditions, its biological and ecological

significance should then be considered. In carrying out this

examination, NMFS considered available scientific evidence of the

discrete population segment's importance to the taxon to which it

belongs. This consideration included, but was not limited to, the

following: (a) Persistence of the discrete population segment in an

ecological setting unusual or unique for this taxon; (b) evidence that

loss of the discrete population segment would result in a significant

gap in the range of a taxon; (c) 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 (d) evidence that the discrete population

segment differs markedly from other populations of the species in its

genetic characteristics.

Because precise circumstances are likely to vary considerably from

case to case, it is not possible to describe prospectively all the

classes of information that might bear on the biological and ecological

importance of a discrete population segment.

In the case of Steller sea lions, the eastern and western

population segments (including the Russian population), make up the

entire range of the species. Extinction of either population segment

would represent a substantial loss to the ecological and genetic

diversity of the species as a whole. The importance of each of the

population segments indicates that the significance criterion of the

policy is satisfied.

Status: If a population segment is discrete and significant (i.e.,

it is a distinct population segment), its evaluation for endangered or

threatened status will be based on the ESA definition of those terms

and, primarily, a review of the factors enumerated in section 4(a) for

determining whether a species is endangered or threatened. In the

following section of this notice, the conservation status of each

Steller sea lion population segment is evaluated and discussed within

these contexts.

IV. Status Listing Procedures: Summary of Factors Affecting the

Species

Species may be determined to be endangered or threatened due to one

or more of five factors described in section 4(a)(1) of the ESA. These

factors, as they apply to the western and eastern Steller sea lions

population segments, are discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Western Population Segment: Steller sea lions breed, pup, and seek

rest and refuge on relatively remote islands and points of land along

the Alaska coastline. There is no evidence that the availability of

rookery or haulout space is a limiting factor for this species. As the

number of animals in the western population segment continues to

decline, some rookeries and haulouts have been abandoned and the

availability of suitable terrestrial habitat is increasing. Terrestrial

habitat destruction and modification do not appear to be significant

issues for this population segment, or have a significant role in its

population decline.

There are indications that Steller sea lion declines may be related

to changes in the availability or quality of sea lion prey, as a result

of environmental changes or human activities (Alverson, 1991; Calkins

and Goodwin, 1988; Loughlin and Merrick, 1991; Merrick et al., 1987;

NMFS, 1992; NMFS, 1995). This issue is discussed in more detail below

in the section analyzing other factors affecting the species.

Eastern Population Segment: Modification or destruction of habitat,

including both terrestrial and aquatic habitat, does not appear to be a

significant factor affecting Steller sea lions in southeast Alaska. In

Oregon, human disturbance of sea lions at Three Arch Rock and Oxford

Reef was found to have a significant effect on the number of Steller

sea lions using these sites (R. Brown, pers. comm.; NMFS, 1992). State

regulations have been implemented, however, to restrict vessel traffic

and reduce human disturbance in these areas.

In California, the reason for the decline of Steller sea lions is

not known. Former rookery habitat has been abandoned (San Miguel

Island), and some other rookeries (Ano Nuevo Island, Farallon Islands)

are at lower than historical abundance levels. The availability of

suitable terrestrial habitat does not appear to be a factor in the sea

lion decline in parts of California. A redistribution of Steller sea

lions from disturbed to undisturbed habitats, however, has been

reported in the Farallon Islands (D. Ainley in NMFS, 1992), which may

be indicative of unreported disturbance limiting habitat use in other

areas. Similarly, with respect to aquatic habitat, changes in the

availability and quality of Steller sea lion prey resources due to

natural cycles, fisheries, and toxic substances may be a factor in

observed population trends in California.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Western and Eastern Population Segments: Steller sea lion pups were

harvested commercially in the past, with significant levels of harvest

occurring in eastern Aleutian Islands and the GOA during the 1960s and

early 70s. Commercial harvest of Steller sea lions has not occurred

since 1972. In the past, there have been reports of people shooting at

Steller sea lions at rookeries and haulout sites and in the water near

boats. Although illegal, shooting of sea lions may still continue, but

the magnitude and significance of this mortality source is not known.

While the commercial harvest and illegal shooting of Steller sea lions

may have been significant factors in past declines, especially with

respect to the western population segment, these harvests probably are

not a major or substantial cause of recent population changes. In

addition, in some cases, the animals may be disturbed as a result of

recreational activities.

Intentional lethal takings of small numbers of Steller sea lions

for scientific purposes have occurred in the past. Since the 1990 ESA

listing, however, scientists have relied on non-lethal sampling

techniques. Research often results in the temporary harassment and

occasionally results in the injury of Steller sea lions. Prior to 1990,

a small number of animals were taken from the wild for public display

purposes, but no such removals have been authorized since listing.

While occasionally the subject of observation and harassment,

especially in some areas, Steller sea lions usually are not utilized

for educational purposes in a manner that would have a significant

negative impact on the animals. The utilization of Steller sea lions

for scientific or educational purposes has not been a significant or

contributing factor that has affected either population segment.

C. Disease or Predation

Western and Eastern Population Segments: Sharks and killer whales

are

[[Page 24351]]

known to prey on Steller sea lions, primarily pups. The magnitude and

significance of predator-related mortality, however, is not known.

Natural mortality from predation is not currently considered to be a

significant factor for either Steller sea lion population segment.

Nonetheless, should the western population segment continue to decline

and the amount of mortality resulting from natural predation by killer

whales remain unchanged, natural mortality could exacerbate the

decline, especially in some areas of the western population.

Studies to assess the significance of disease in the Steller sea

lion population are ongoing. To date, researchers have not found any

evidence that disease is a significant factor affecting either

population of Steller sea lions. Various pathogens have been isolated

from animals collected by researchers or carcasses found on the beach,

but their significance to the overall population remains unclear. One

area of ongoing research is determining the role, if any, of pathogens

in the relatively high rate of abortions observed in GOA Steller sea

lions.

D. The Inadequacy of Existing Regulatory Mechanisms

NMFS has the authority to implement regulations necessary to

protect Steller sea lions under the ESA and the MMPA. Similarly, under

the Magnuson-Stevens Act, NMFS has the authority to regulate fishing

activities that may be affecting sea lions, directly or indirectly.

However, whether existing regulatory mechanisms and protective

regulations are adequate is difficult to evaluate because of the lack

of a clear cause and effect relationship between human activities and

the decline in the western population segment. Various regulations that

have been implemented, or that have been suggested or proposed for

implementation, are considered below.

Take prohibitions: Under the MMPA, it is unlawful for any person

subject to the jurisdiction of the United States to take a marine

mammal on the high seas or in waters or lands under U.S. jurisdiction.

``Take'' is defined as harass, hunt, capture, collect or kill or

attempt to harass, hunt, capture, collect or kill any marine mammal.

Certain exceptions from the prohibitions on taking are provided.

Similarly, under the ESA, certain statutory prohibitions apply once

a species is listed as endangered. For example, under section 9 of the

ESA, no person subject to the jurisdiction of the United States may

take such a species within the U.S., the territorial sea of the U.S.,

or upon the high seas. ``Take'' is defined as harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to

engage in such conduct. Certain exceptions are provided.

Often prohibitions similar to the section 9 prohibitions for

endangered species are implemented by regulation with respect to

species that are listed as threatened. Such action was not taken with

respect to Steller sea lions when the species originally was listed as

threatened in 1990, in part, because similar take prohibitions existed

under the MMPA, and in part, because of the difficulty of authorizing

incidental takings if such prohibitions had been implemented. However,

at the time of the listing, or shortly subsequent to the listing,

stringent protective measures, including the following, were

implemented: Regulations prohibiting the discharge of firearms;

designation of buffer zones; designation of critical habitat; and

restrictions on fishing activities.

Regulations prohibiting the discharge of firearms: Regulations,

issued in conjunction with the original listing of Steller sea lions as

threatened, prohibit the discharge of firearms at or near these

animals. Although intentional lethal taking of sea lions was already

prohibited at the time of the listing, there had been reports of

firearm use to deter sea lions from interfering with fishing

operations.

In a separate action, NMFS recently proposed regulations and

guidelines for deterring marine mammals as required under amended

section 101(a)(4) of the MMPA (60 FR 22345, May 5, 1995). When these

regulations and guidelines are finalized, the use of any firearms to

deter marine mammals from interacting with fishing gear or catch will

be prohibited. In addition, new section 118(a)(5) of the MMPA prohibits

intentional lethal taking of any marine mammal during commercial

fishing operations, except in defense of human life (60 FR 6036, Feb.

1, 1995).

The firearm prohibition, issued at the time of the original listing

of Steller sea lions as threatened, is viewed, in general, as adequate;

NMFS will continue to implement this protective measure for both the

eastern and western population segments.

No approach in buffer areas: Regulations issued at the time Steller

sea lions were originally listed as threatened, prohibited any vessel

from approaching within three miles of specific Steller sea lion

rookeries; likewise, approach on non-private land within one-half mile

of these specific rookery sites was prohibited. A variety of exceptions

was provided.

The purposes of the buffer areas are to restrict opportunities for

individuals to shoot at sea lions and to facilitate enforcement of this

restriction; to reduce interactions with sea lions, such as accidents

or incidental takings, in areas where concentrations of these animals

are expected to be high; to minimize disturbance and interference with

sea lion behavior including foraging behavior, especially at pupping

and breeding sites; and to avoid or minimize other human impacts and

related adverse effects. To date, these regulations are generally

viewed as effective. Based on the review of logbooks and overflights

conducted by the U.S. Coast Guard, NMFS has found few instances of

entry into these zones.

NMFS will continue to implement the existing regulatory buffer

zones in the western area. At this time, NMFS is not proposing

additional protective zones in the western or eastern area. NMFS

regional research and management staff are reviewing the ongoing

Steller sea lion program and looking at developing an action plan for

future research and management directions. Consideration is being given

to the development of an experiment for assessing the efficacy of

closure zones.

Quotas on incidental takings: On April 30, 1994, the reauthorized

and amended MMPA established a new regime to govern the take of marine

mammals incidental to commercial fishing operations; the new regime

replaces the interim exemption program established in 1988. Under the

1988 Interim Marine Mammal Exemption Program, up to 1,350 Steller sea

lions were authorized to be taken annually incidental to commercial

fisheries, and emergency regulatory actions were required if more than

1,350 animals were incidentally killed in any year. The new MMPA

management regime replaced the previous quota system and focuses on

reducing the incidental mortality and serious injury of marine mammals

from strategic stocks, i.e., those population segments that are listed

as endangered or threatened under the ESA, those stocks that are listed

as depleted under the MMPA, and those stocks for which human-caused

mortality exceeds the estimated potential biological removal (PBR) (the

1994 Amendments to the MMPA defined PBR as the maximum level of

animals, not including natural mortalities, that can be removed from a

marine mammal stock while allowing that stock to reach or maintain its

optimum sustainable population). Under this new regime, NMFS is

[[Page 24352]]

required to permit the take of endangered and threatened marine mammals

incidental to commercial fishing under section 101(a)(5)(E) of the

MMPA, provided that (1) the incidental mortality and serious injury

would have a negligible impact on the affected species or stock, (2) a

recovery plan for that species or stock has been developed or is being

developed, and (3) where required under section 118 of the MMPA, a

monitoring program has been established, vessels are registered, and a

take reduction plan has been developed or is being developed. A take

reduction plan, once developed, is intended to assist in the recovery

of the species and should include recommendations for regulatory or

voluntary measures to reduce incidental mortality due to commercial

fisheries.

To determine which stocks should be considered strategic and what

level of take could be considered negligible, stock assessment reports

were developed in 1995 for each Steller sea lion stock (population

segment). These stock assessment reports compiled the available data on

population size and trend, calculated a PBR level for each stock, and

described, to the extent possible, the known sources of human

mortality, including takes in commercial fisheries.

Based primarily on the low level of known incidental takes relative

to the PBR level, NMFS determined negligible impact and issued an

Incidental Take Statement (60 FR 45399, August 31, 1995) authorizing,

under section 7(b)(4) of the ESA, takings from the western population

segment of Steller sea lions incidental to commercial fisheries for a

period of 2 years, and incidental takings from the eastern population

segment for a period of 3 years. Due to the listing change and because

many fisheries that interact with Steller sea lions in Alaska are not

currently monitored by observers, there may be a need to reassess the

negligible impact determination and reconsult under section 7.

NMFS is in the process of designing monitoring programs to be

conducted in the unobserved fisheries in Alaska, including fisheries

expected to incidentally take Steller sea lions. NMFS also will be

preparing updated stock assessments in the coming year, reexamining the

estimated mortality rates incidental to commercial fisheries and

considering the next steps, if necessary, toward take reduction.

Subsistence harvests: Under section 10(e) of the ESA, prohibitions

on the taking of threatened and endangered species normally do not

apply to takings by Alaska Natives if such taking is primarily for

subsistence purposes. To date, no action has been taken to regulate, or

otherwise manage, the subsistence harvest of Steller sea lions by

Alaska Native groups. The subsistence harvest may have some localized

impact on survival, but its impact upon the survival of the overall

populations is not considered significant. If subsistence takings

materially and negatively affect the species in the future, Federal

regulations or restrictions may be imposed only after a hearing and

decision on the record.

Section 119 of the MMPA allows the Secretary of Commerce

(Secretary) to enter into cooperative agreements with Alaska Native

organizations to conserve marine mammals and provide co-management of

subsistence uses. In 1994, an interim Alaska Native Steller Sea Lion

Commission (Commission) consisting of representatives from western

Alaska communities that take Steller sea lions for subsistence needs

was formed to improve communication among indigenous communities that

use sea lions, to advocate for conservation of Steller sea lions, to

advocate for protection of customary and traditional rights of

indigenous peoples with regard to access and use of sea lions, and to

serve as the focal point for development of co-management agreements

with NMFS. Local hunter groups have also formed on St. Paul and St.

George Islands to draft and implement guidelines to make their

subsistence harvests more efficient. NMFS has met with these groups to

discuss compliance with the guidelines, reduction of the strike/loss

ratio, hunter education, Native/government information exchange and

increased participation in the collection of biological samples.

Through co-management agreements between NMFS and the Commission or

local hunter groups, self-management and regulation of the subsistence

harvest by Alaska Natives will be developed.

Critical habitat: Currently, designated critical habitat for

Steller sea lions includes all rookeries, major haulouts, 3000-ft zones

landward, seaward, and skyward of these sites, and aquatic foraging

zones in Shelikof Strait, Seguam Pass and on the eastern Bering Sea

Shelf. West of 150 deg. W. long., critical habitat aquatic zones around

rookeries and major haulouts extend to 20nm from the site boundary. In

Oregon and California, critical habitat includes rookeries and 3000-ft

zones landward, seaward, and skyward of these sites.

Critical habitat provides the public and other Federal agencies

with notice of particular areas and features that are essential to the

conservation of Steller sea lions. Consultation under section 7(a)(2)

of the ESA is required for any agency action that may affect critical

habitat. NMFS believes that the current designation of critical habitat

is adequate and is not proposing to revise this designation at this

time.

Restrictions on fishing activities: Although the relationship

between commercial fisheries and the ability of Steller sea lions to

obtain adequate food is not clear, a change in food availability,

especially for juvenile Steller sea lions, is a leading hypothesis for

the continuing decline in the western population segment. The GOA/BSAI

management area is the geographic region where Steller sea lions have

experienced the greatest population decline and is also an area where

large commercial fisheries have developed. As a result, NMFS has

implemented protective regulations to reduce the possible effects of

certain commercial groundfish fisheries on Steller sea lions,

especially the groundfish fisheries of the GOA and the BSAI.

Many of the Steller sea lion's preferred prey species are harvested

by commercial fisheries in this region, and food availability to

Steller sea lions may be affected by fishing. Because of concerns that

commercial fisheries in these essential sea lion habitats could deplete

prey abundance, NMFS amended the BSAI and GOA groundfish fishery

management plans. Under the Magnuson-Stevens Act, NMFS: (1) Prohibited

trawling year-round within 10 nm of listed GOA and BSAI Steller sea

lion rookeries; (2) prohibited trawling within 20 nm of the Akun,

Akutan, Sea Lion Rock, Agligadak, and Seguam rookeries during the BSAI

winter pollock roe fishery to mitigate concentrated fishing effort on

the southeastern Bering Sea shelf and in Seguam Pass; and (3) placed

spatial allocation on the GOA pollock harvest to divert fishing effort

away from sea lion foraging areas.

NMFS also seasonally expanded the 10 nm no-trawl zone around Ugamak

Island in the eastern Aleutians to 20 nm (58 FR 13561, March 12, 1993).

The expanded seasonal ``buffer'' at Ugamak Island better encompassed

Steller sea lion winter habitats and juvenile foraging areas in the

eastern Aleutian Islands region during the BSAI winter pollock fishery.

Consultations under section 7 of the ESA have been conducted on

annual total allowable catch specifications for the GOA and BSAI

fisheries, as well as all other changes in the fishery. Current

regulations limiting the groundfish

[[Page 24353]]

fisheries in the GOA and BSAI were implemented under the Magnuson-

Stevens Act. NMFS and the NPFMC have instituted changes so that Steller

sea lion (and other marine mammal) concerns are now routinely

considered in the fishery management decision making and quota

specification process. The Team has recommended that NMFS evaluate the

need for additional measures in order to enhance food availability near

rookeries and haulouts in the western area. As stated earlier, NMFS is

looking at developing a program to investigate the efficacy of current

regulations and to address future research and management directions.

No regulatory additions or changes are being proposed at this time.

Other regulatory mechanisms: The inadequacy of other regulatory

mechanisms has been suggested as a factor in the decline or

vulnerability of both Steller sea lion populations. Comments received

on the status review notice included suggestions that additional

regulations were needed to protect Steller sea lions, particularly at

haulout and rookery sites, from the effects of Federal land management

activities, including oil and gas exploration and development.

In most cases, other agencies, such as the Minerals Management

Service and the U.S. Forest Service, regulate these types of

activities. These agencies are expected to consult with NMFS under

section 7 of the ESA to ensure that their actions are not likely to

jeopardize the continued existence of listed species or to destroy or

adversely modify critical habitat. Comments received concerning the

adequacy of current regulations issued by other agencies will be

considered during the consultation process.

Conclusions regarding the inadequacy of existing regulatory

mechanisms: A final determination with respect to whether existing

regulatory mechanisms are adequate is difficult to make, given the lack

of a clear cause of the decline. NMFS recognizes the importance of

further examination of the adequacy and the benefits of existing

regulations. However, in some cases, even after further study, it may

be difficult or impossible to make definitive determinations about the

adequacy of specific regulations because of the lack of understanding

of all the mechanisms contributing to the decline or vulnerability of

Steller sea lion populations.

Nevertheless, because of the separation of the species into

distinct population segments and the status reclassification, various

agency actions, likely to affect Steller sea lions, may be subject to

reinitiation of consultation under section 7 of the ESA.

E. Other Natural or Manmade Factors Affecting its Continued Existence

Other factors also may affect either or both populations of Steller

sea lions. In particular, removals of Steller sea lions from the wild,

resulting from direct and incidental takings, may be a contributing

factor in past and continuing declines. Change in food availability is

another factor that may be causing declines. Contaminants are also a

concern. These other factors are discussed in more detail in the

following sections.

Removals from the Western Population Segment: Steller sea lions

interact with commercial fisheries, and, historically, many have been

reported incidentally taken in fisheries in the GOA and BSAI. Estimates

of the total number of Steller sea lions taken in commercial trawl

fisheries in these waters from 1966 through 1988 have exceeded 20,000

animals (NMFS, 1995). Incidental catch appears to have been a

contributing factor in the population decline in some areas of the

Aleutian Islands and GOA during certain time periods.

Alaska Native subsistence hunters have been estimated to take about

350-500 Steller sea lions annually in recent years; virtually all of

the subsistence harvest in Alaska occurs within the range of the

western population segment (Wolfe & Mischler, 1993; 1994; 1995). These

removals have some localized impact; should the western population

segment continue to decline and the subsistence harvest continue at the

same level, these removals may become significant to the survival of

the overall populations.

Removals from the Eastern Population Segment: Accurate data on

incidental takes of Steller sea lions in other fisheries in southeast

Alaska, Oregon, and California are not available, but estimates from

available sources are low. Alaska Native takes of Steller sea lions

within the eastern population segment have been estimated at less than

10 animals annually (Wolfe & Mischler, 1993; 1994; 1995).

Food availability for the western population segment: Steller sea

lions are opportunistic feeders, feeding primarily on schooling fish,

such as walleye pollock, Atka mackerel, herring, and capelin. Declines

in sea lion abundance may be related to changes in the availability of

sea lion prey. Changes in the quantity or quality of available prey

could have a chronic negative influence on the health and fitness of

individual sea lions, resulting in reduced reproductive potential,

increased susceptibility to disease, or death (Loughlin & Merrick,

1989). Calkins and Goodwin (1988) observed that Steller sea lions

collected in the Kodiak Island area in 1985-86 were significantly

smaller at age than animals collected from 1975-78, and hypothesized

that nutritional stress was the cause. Juvenile sea lions, which are

less adept foragers, may be most affected by changes in food

availability. Demographic studies at Ugamak and Marmot Island rookeries

suggest that juvenile survival has been greatly reduced over the last

20 years, and that this reduced juvenile survival may be the proximate

cause of the population decline (NMFS, 1995). The role of food

availability in the population decline remains unclear and is being

investigated by researchers.

The BSAI and GOA commercial groundfish fisheries target important

prey species of Steller sea lions, notably walleye pollock and Atka

mackerel. Whether these fisheries actually deplete food resources of

Steller sea lions is unclear. Analyses that have compared fishery

harvests with changes in Steller sea lion abundance have been

inconclusive, but the limitations of the available data may confound

results (Loughlin & Merrick, 1989; Ferrero & Fritz, 1994).

One hypothesis is that where and how fisheries operate is

significant to Steller sea lions, even if overall fishery removal

levels are conservative of fish stocks. Fisheries that harvest large

quantities of fish in relatively small geographic areas and short

periods of time may deplete the local abundance of fishery resources.

When such a fishery occurs in important Steller sea lion foraging

habitat and targets, or has a significant bycatch of, Steller sea lion

prey species (as the walleye pollock and Atka mackerel fisheries do),

the fishery may make it more difficult for sea lions to obtain food.

This is likely to be more important in the winter when alternate food

resources are fewer and sea lion metabolic costs higher, and to be more

significant to newly-weaned juveniles, which are less adept foragers.

Based on this hypothesis, NMFS established no-groundfish-trawl zones

around listed Steller sea lion rookeries in the GOA and BSAI (to reduce

harvest in important foraging habitats), and created geographic fishery

allocation areas in the GOA for walleye pollock (to disperse fishing

effort).

The hypothesized change in prey availability to Steller sea lions

could also be related to environmental change. Changes in the abundance

of several species of fish, shellfish, birds, and

[[Page 24354]]

other marine mammals in the BSAI and GOA have been documented over the

last 20 years. In particular, some important forage fish stocks, such

as capelin and sand lance, appeared to have declined in both the BSAI

and GOA during the 1970s and 1980s. Some of these observed changes in

the ecosystem can be linked to human activities (e.g., fisheries,

marine mammal harvests, hatcheries) whereas others appear to be related

to natural phenomena (e.g., oceanic temperature changes).

Contaminants affecting both population segments: Concern has been

expressed about the possible adverse effects of anthropogenic

contaminants on the health and productivity of Steller sea lions,

particularly in the western population segment and in California.

Presently, the significance, if any, of toxic substances in Steller sea

lion population declines is not known, and additional research is

warranted.

V. Final Determination

NMFS has determined that the best available evidence indicates that

Steller sea lions should be managed as two discrete population segments

and that the threatened classification for the eastern segment and the

endangered classification for the western segment are appropriate.

Available data on population trends indicate that the western

population segment of Steller sea lions is in danger of extinction

throughout all or a significant part of its range. This population had

exhibited a precipitous, large population decline at the time that the

Steller sea lion was listed as a threatened species in 1990 and has

continued to decline since the listing. Therefore, the western

population segment of Steller sea lions is reclassified as an

endangered species under the ESA.

The eastern population segment was originally listed as a

threatened species in 1990 when the entire species was listed. The

eastern population segment has exhibited a stable population trend for

the last 15 years; however, NMFS believes that the large decline within

the overall U.S. population threatens the continued existence of the

entire species. This is particularly true, since the underlying causes

of the decline remain unknown, and thus, unpredictable. Therefore,

despite the apparent stability of the eastern population segment, NMFS

is maintaining a threatened listing for this portion of the geographic

range.

These determinations allow for a differentiation between the two

populations that acknowledges the different individual population

segment trends, but does not lose sight of the overall trend for the

species.

NMFS Policies on Endangered and Threatened Wildlife

On July 1, 1994, NMFS, jointly with the USFWS, published a series

of new policies regarding listings under the ESA, including a policy to

identify, to the maximum extent possible, those activities that would

or would not constitute a violation of section 9 of the ESA (59 FR

34272).

Identification of those activities that would constitute a

violation of Section 9 of the ESA: Section 9 of the ESA prohibits

certain activities that directly or indirectly affect endangered and

threatened species. Under the ESA (section 9 and regulations), it is

illegal to take (includes harass, harm, pursue, hunt, shoot, wound,

kill, trap, capture or collect) or to attempt to take any endangered

and most threatened species. Activities considered by the NMFS to

constitute a ``take'' of an endangered or threatened Steller sea lion

include:

1. Shooting at or near a Steller sea lion. An example would be an

individual who shoots at a Steller sea lion to deter or distract it

from taking fish off the individual's fishing gear; another example is

shooting a Steller sea lion with a paint ball gun.

2. Collecting Steller sea lion parts. The ESA prohibits the

collection of an endangered species or parts therefrom. Therefore, it

would be illegal to collect parts from a dead Steller sea lion that has

washed ashore.

3. Pursuing or harassing Steller sea lions. An example would be

pursuing a Steller sea lion in an attempt to watch its behavior or to

obtain a better view of it from a vessel. These illegal activities can

be committed by guided marine life tour operators as well as individual

recreational boaters. Persons who wish to view Steller sea lions would

be required to avoid any actions that harass the Steller sea lion or

actions that would constitute pursuit of Steller sea lions either in

the water or on land. Trying to get the perfect photograph may result

in actions that constitute harassment or pursuit of a Steller sea lion.

4. Approaching within 3 nm of a listed Steller sea lion rookery

site. This includes, but is not limited to, transiting through the

rookery site in a vessel, anchoring within any rookery site or fishing

within any rookery site.

5. The take of Steller sea lions for the production of authentic

native articles of handicrafts and clothing only. The ESA only provides

for the non-wasteful taking of endangered species for subsistence

purposes. If taken for this purpose, however, Native Alaskans are

allowed to create authentic native articles of handicraft and clothing

from non-edible byproducts.

This list is not exhaustive. It is provided to give the reader some

examples of the types of activities that would be considered by the

Agency as constituting a ``take'' of an endangered or threatened

Steller sea lion under the ESA and regulations.

By operation of law, the section 9 prohibitions apply directly to

the western stock of Steller sea lions. In this rule, pursuant to

enforcement concerns, we are also extending these prohibitions to the

eastern stock which remains threatened. Because the reclassified

eastern and western population segments of Steller sea lions are

physically indistinguishable and both segments are capable of

traversing great distances, it will be exceedingly difficult to

determine that a particular Steller belongs to a particular population.

Extension of the section 9 prohibitions to all Steller sea lions would

obviate this concern.

With regard to activities that may affect Steller sea lions or

their habitat, and whose likelihood of violation of section 9 is

uncertain, NMFS Alaska Regional Office (see ADDRESSES) should be

contacted to assist in determining whether a particular activity

constitutes a prohibited act under section 9.

Classification

Section 4(b)(1) of the ESA restricts the information that may be

considered when assessing species for listing. Based on this limitation

and the opinion in Pacific Legal Foundation v. Andrus, 657 F.2d 829

(6th Cir. 1981), listing actions under the ESA are excluded from the

normal requirements of the National Environmental Policy Act.

As noted in the Conference report on the 1982 amendments to the ESA

(H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess 20. (1982)), economic

considerations have no relevance to determinations regarding the status

of species. Therefore, the economic analysis requirements of Executive

Order 12866, and the Regulatory Flexibility Act are not applicable to

the listing process.

Dated: April 29, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries.

List of Subjects

50 CFR Part 222

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and

[[Page 24355]]

recordkeeping requirements, Transportation.

50 CFR Part 227

Endangered and threatened species, Exports, Imports, Marine

mammals, Transportation.

For the reasons set out in the preamble, 50 CFR parts 222 and 227

are amended as follows:

PART 222--ENDANGERED FISH OR WILDLIFE

1. The authority citation for part 222 is revised to read as

follows:

Authority: 16 U.S.C. 1531-1543; subpart D, Sec. 222.32 also

issued under 16 U.S.C. 1361 et seq.

2. In Sec. 222.23, paragraph (a) is amended by adding the following

material after ``Saimaa seal (Phoca hispida saimensis);'' to read as

follows:

Sec. 222.23 Permits for scientific purposes or to enhance the

propagation or survival of the affected endangered species.

(a) * * * Steller sea lion (Eumetopias jubatus), western

population, which consists of Steller sea lions from breeding colonies

located west of 144 deg.W. long.; * * *

* * * * *

3. Section 222.33 is added to subpart D to read as follows:

Sec. 222.33 Special prohibitions relating to endangered Steller sea

lion protection.

General. The regulatory provisions set forth in part 227, which

govern threatened Steller sea lions, shall also apply to the western

population of Steller sea lions, which consists of all Steller sea

lions from breeding colonies located west of 144 deg.W. long.

PART 227--THREATENED FISH AND WILDLIFE

4. The authority citation for part 227 is revised to read as

follows:

Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also

issued under 16 U.S.C. 1361 et seq.

5. In Sec. 227.4, paragraph (e) is revised to read as follows:

Sec. 227.4 Enumeration of threatened species.

* * * * *

(e) Steller (northern) sea lion (Eumetopias jubatus), eastern

population, which consists of all Steller sea lions from breeding

colonies located east of 144 deg.W. longitude.

* * * * *

6. In Sec. 227.12, paragraph (a) introductory text is added, and

the paragraph (a) heading, paragraphs (a)(4) and (b)(2) are revised to

read as follows:

Sec. 227.12 Steller sea lion.

(a) General prohibitions. The prohibitions of section 9 of the Act

(16 U.S.C. 1538) and the following regulatory provisions shall apply to

the eastern population of Steller sea lions:

* * * * *

(4) Commercial Fishing Operations. The incidental mortality and

serious injury of endangered and threatened Steller sea lions in

commercial fisheries can be authorized in compliance with sections

101(a)(5) and 118 of the Marine Mammal Protection Act.

(b) * * *

(2) Official activities. The taking of Steller sea lions must be

reported within 30 days to the Regional Administrator, Alaska Region.

Paragraph (a) 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:

(i) 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

(ii) Entering the buffer areas to perform activities that are

necessary for national defense, or the performance of other legitimate

governmental activities.

* * * * *

[FR Doc. 97-11668 Filed 4-30-97; 4:00 pm]

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