[Federal Register Volume 60, Number 192 (Wednesday, October 4, 1995)]
[Proposed Rules]
[Pages 51968-51978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24638]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222 and 227

[Docket No. 950919232-5232-01; I.D. 041995B]
RIN 0648-XX27


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: Proposed rule; request for comments.

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SUMMARY: NMFS is proposing to reclassify the Steller sea lion, 
Eumetopias jubatus. This species currently is listed under the 
Endangered Species Act of 1973 (ESA) as threatened throughout its 
range, which extends from California and associated waters to Alaska, 
including the Gulf of Alaska and Aleutian Islands, and then 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 now proposes to re-classify Steller 
sea lions as two distinct population segments under the ESA. NMFS 
proposes to classify the Steller sea lion population segment west of 
144 deg. W. long. (a line near Cape Suckling, AK) as endangered, and to 
maintain the ESA threatened listing for the remainder of the U.S. 
population. NMFS is requesting public comments on this proposed action.

[DATES: Comments and information must be received by January 2, 1996.

ADDRESSES: Comments and information should be addressed to Chief, 
Marine Mammal Division, Office of Protected Resources (F/PR), NMFS, 
1315 East-West Highway, Silver Spring, MD 20910. Copies of the Steller 
sea lion status review document, the Steller Sea Lion Recovery Team 
(Recovery Team) meeting summary and recommendations regarding 
reclassification, and a Population Viability Analyses of Steller sea 
lions in Alaska may be obtained from Susan Mello, Protected Resources 
Management Division, Alaska Regional Office, NMFS, P.O.Box 21668, 
Juneau, AK 99802-1668.

FOR FURTHER INFORMATION CONTACT: Susan Mello, 907-586-7235 or Michael 
Payne, F/PR, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION:

I. Background

    NMFS determined that the Steller sea lion was a threatened species 
under the ESA (55 FR 49294, November 26, 1990; see also, 55 FR 50005, 
December 4, 1990). The species was listed throughout its range because 
of a precipitous decline in abundance. This decline was concentrated 
primarily in areas near the Gulf of Alaska and Aleutian Islands.
    The final rule imposed protective regulations to reduce direct 
causes of Steller sea lion 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.
    As a result of ESA section 7 consultations on the effects of the 
North Pacific federally-managed groundfish fisheries, NMFS implemented 
additional protective measures in 1991, 1992, and 1993 to reduce the 
effects of certain commercial groundfish 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 672.24(e) and 675.24(f) (1994)). NMFS has also published a Steller 
Sea Lion Recovery Plan (Recovery Plan) (58 FR 3008, January 7, 1993), 
and has designated critical habitat for the species (58 FR 45269, 
August 27, 1993). NMFS and other agencies are implementing the Recovery 
Plan.
    Since 1990, NMFS and the Alaska Department of Fish and Game (ADFG) 
have conducted monitoring surveys that indicate that the decline of 
Steller sea 

[[Page 51969]]
lions has continued throughout most of Alaska. Because of this 
continued decline, on November 1, 1993, NMFS initiated a formal 
population status review under the ESA to determine whether a change in 
its listing status as a threatened species is warranted (58 FR 58318, 
November 1, 1993).

II. Comments and Responses on Status Review Notice

    NMFS received sixteen comments in response to the status review 
notice. Comments pertinent to the proposed listings and regulations are 
discussed below.

Separate Population Listings

    Some comments noted that Steller sea lions have not declined in 
some portions of the species' geographic range, and suggested that NMFS 
consider treating the species as two separate populations for the 
purposes of listing under the ESA.
    Under the ESA, only a ``species'' may be listed as threatened or 
endangered. The term ``species'' includes any subspecies of fish or 
wildlife and any distinct population segment of any species of fish or 
wildlife that interbreeds when mature. At the time Steller sea lions 
were listed as threatened, NMFS determined that there was insufficient 
information available to consider animals in different geographic 
regions as separate populations. However, additional data collected, 
particularly on population genetics, now indicate that Steller sea 
lions should be listed as two distinct population segments under the 
ESA. Supporting data and information for this proposed determination 
are detailed below.

Listing Classification

    The majority of the comments did not express a preference for 
either a threatened or endangered listing status for Steller sea lions. 
Some comments indicated the belief that there is sufficient information 
to support a change in listing status to endangered. Other comments 
stated that the current listing of the species as threatened provides 
NMFS sufficient regulatory authority to protect Steller sea lions and, 
therefore, a change in listing status to endangered is not necessary. 
Some of these same commenters also suggested that an endangered listing 
should not be considered at this time, since it would result in greater 
economic effects to fishing communities and the fishing industry. Some 
commenters believe that no change in listing status should be 
considered while the reasons for the decline remain unclear.
    The ESA is explicit that listing and reclassification decisions are 
to be made solely on the basis of the best scientific and commercial 
information available regarding the species' population status (section 
4(b)(1)(A)). Economic effects are not to be considered in making a 
listing determination for a species under the ESA. Likewise, the lack 
of knowledge regarding causes of the Steller sea lion decline does not 
affect a species' status. Each of the five factors described in section 
4(a)(1) of the ESA that must be considered in making a listing status 
determination are discussed below. The adequacy of existing regulatory 
mechanisms is one of these factors.

Population Viability Analysis

    Some commenters expressed concern regarding the weight that would 
be given to the results of the Steller sea lion Population Viability 
Analysis (PVA) (PVA at Merrick and York, 1994). They noted the 
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. 
One commenter indicated that the PVA should be peer reviewed by 
independent experts.
    The PVA provides an estimate of extinction risk if current 
population trends continue. NMFS believes that the PVA provides the 
best estimate of extinction risk possible with existing data and 
scientific methods, and has submitted the PVA for review by outside, 
independent experts. However, 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 
objective population trend data and the scientific opinion of experts, 
both within and outside NMFS.

Protective Measures

    Several commenters raised issues relative to the protective 
measures that have been implemented to aid recovery of Steller sea 
lions. Some commenters felt that additional regulations were needed to 
better protect Steller sea lions from the effects of commercial 
fisheries, and oil and gas exploration and development. Other 
commenters questioned the rationale for existing protections, 
particularly fishery closure areas.
    NMFS has implemented various protective measures for Steller sea 
lions under the ESA and the Magnuson Fishery Conservation and 
Management Act (Magnuson 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.
    NMFS is reevaluating existing management measures for Steller sea 
lions. NMFS expects to consider regulatory changes that may be needed 
to ensure that regulations provide the greatest potential to benefit 
Steller sea lions without unnecessarily restricting human activities. 
However, NMFS will involve state and Federal agencies, the North 
Pacific Fishery Management Council, Alaska Native organizations, 
fishing and environmental groups, and other affected members of the 
public in the early stages of the decision-making process for any 
changes in management regulations. NMFS is reinitiating consultation 
under section 7 of the ESA on Federally-managed groundfish fisheries 
off Alaska to consider new information and to evaluate whether existing 
protective regulations are adequate to ensure that agency actions are 
not likely to jeopardize the continued existence of the species. NMFS 
has not reached any definitive conclusions concerning the adequacy of 
existing regulatory mechanisms. This issue is discussed in more detail 
below.

Research Program

    Several commenters recommended an expansion of existing research 
efforts, and offered specific recommendations for areas of research.
    The Recovery Plan research program is a federally-funded effort, 
implemented jointly by NMFS and ADFG. Research priorities are defined 
in the Recovery Plan, and are limited by available funds. As described 
below, the Recovery Team has begun the process of synthesizing research 
program accomplishments with the intention of revising the Recovery 
Plan, as needed.

III. Recommendations of the Steller Sea Lion Recovery Team

    The Recovery Team was appointed by NMFS in 1990 to draft a recovery 
plan for the species and to serve as an advisory body to NMFS on 
Steller sea lion research and management issues. On November 29-30, 
1994, NMFS convened the Recovery Team specifically 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 

[[Page 51970]]
(AA), the Recovery Team made the following recommendations to NMFS:
    (1) Listing Status under the ESA: The Recovery Team recommended 
that NMFS list the Steller sea lion as two separate population 
segments, split to the east and west of 144 deg. W long. (a line near 
Cape Suckling, AK). The Recovery Team recommended that the western 
population segment be listed as endangered and that the eastern 
population segment be listed as threatened.
    (2) Commercial fisheries: A change in food availability is the 
leading hypothesis for the cause of the Steller sea lion decline. 
Reduced juvenile recruitment appears to be the proximate cause of the 
decline and juvenile Steller sea lions appear to feed primarily in 
areas near rookeries and haulouts. The Recovery Team recommended that 
NMFS evaluate the need to close or otherwise regulate any or all 
nearshore fisheries around Steller sea lion rookeries and major 
haulouts west of 144 deg. W long. in order to enhance food 
availability.
    (3) Research: The Recovery Team recommended that the individual 
research projects being undertaken under the Recovery Plan be peer 
reviewed to assess the need for changes in research direction and 
priorities. In-depth research program reviews will be accomplished over 
the next few years and will include review by outside experts, as 
necessary. The four major components of the research program to be 
individually evaluated are: (1) Population monitoring (Peer review of 
the population monitoring program was completed in 1992 (Rosenberg 
1992)); (2) satellite telemetry studies; (3) physiology/health studies; 
and (4) food habits and foraging ecology studies. Results of this peer 
review process are expected to be used to revise the Recovery Plan.
    The Recovery Team also recommended that NMFS direct additional 
effort, and seek additional funding, to better assess Steller sea lion 
prey resources in the North Pacific.
    (4) Subsistence harvest: The Recovery Team recommended that NMFS 
work with the newly formed Alaska Native Steller Sea Lion Commission 
toward the goals of developing self-management and monitoring of 
subsistence harvests, establishing biologically acceptable harvest 
levels, and reducing struck and lost rates.
    The Recovery Team recommendations relative to reclassification of 
the species have been considered in this proposed determination. 
Management recommendations also are being considered and will be 
evaluated in more detail during the review of existing regulations and 
through the consultation process.

IV. Proposed Population Determinations

    As described above, only a ``species'' may be listed as threatened 
or endangered under the ESA, and this term is defined 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 
December 21, 1994, NMFS and the U.S. Fish and Wildlife Service proposed 
a policy to clarify their interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, delisting, and 
reclassifying species under the ESA (59 FR 65884, December 21, 1994). 
Although this is only a proposed policy at this time, it represents the 
best available guidance for interpreting the term ``distinct population 
segment.'' NMFS proposes to use the criteria announced in the December 
21, 1994 proposed policy to assess the presence of distinct populations 
of Steller sea lions.
    The proposed policy outlines three elements that should be 
considered in any decision regarding the status of a possible distinct 
population segment: Discreteness of the population segment in relation 
to the remainder of the species to which it belongs; the significance 
of the population segment to the species to which it belongs; and the 
population segment's conservation status in relation to the ESA's 
standards for listing. The first two elements are discussed below, and 
conservation status is discussed separately for each proposed 
population segment in the following section and within the context of 
the five factors that are evaluated below.
    (1) Discreteness: Under the proposed policy a population segment of 
a vertebrate species may be considered discrete if it is either 
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); or delimited by international 
governmental boundaries 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 
populations of Steller sea lions exist. Bickham et al. (in press) 
collected genetic samples from 224 Steller sea lion pups on rookeries 
in Russia, the Aleutian Islands, the western and central Gulf of 
Alaska, 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. 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., 
and one was unique to Ano Nuevo Island.
    Tagging and branding studies provide 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 and 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 populations. 

[[Page 51971]]

    Loughlin (1994) used the phylogeographic approach proposed by 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.
    The above information supports the conclusion that the western and 
eastern population segments of Steller sea lions are discrete.
    (2) Significance: The proposed policy recommends that if population 
segments are determined to be discrete, then the biological and 
ecological significance of a population segment should be considered in 
light of the guidance in S. Rep. No. 151, 96th Cong., 1st Sess. (1979) 
that the authority to list distinct population segments be used 
sparingly and only when the biological evidence indicates that such 
action is warranted. The underlying question of significance depends on 
the relationship of a proposed population segment to the species as a 
whole.
    In the case of Steller sea lions, the two population segments under 
consideration 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 proposed policy would be satisfied.

V. Current Status

Status of the Western Steller Sea Lion Population Segment

    Population monitoring data: The western Steller sea lion population 
segment had suffered substantial declines prior to the 1990 ESA 
listing. Loughlin et al. (1992) estimate a 70 percent decrease in the 
number of adult and juvenile sea lions in this area between the 1960's 
and 1989. Since the 1990 listing, Steller sea lion trend counts for the 
western population segment have shown a continued decline. The number 
of adult and juvenile animals counted at trend sites during aerial 
surveys has dropped from 30,525 in 1990 to 24,104 in 1994 (a 21 percent 
decrease) (NMFS, 1995).
    Regionally, decline rates differ: The western and eastern Gulf of 
Alaska (a 38 percent and a 36 percent decline, respectively) and the 
central and western Aleutian Islands (a 28 percent and a 13 percent 
decline, respectively) have shown the largest declines in adult/
juvenile numbers since 1990. Counts of the eastern Aleutian Islands 
area and western Gulf of Alaska area have been relatively stable since 
1990, while the Bering Sea region has shown an increase in adult/
juvenile counts since 1990. However, the eastern Aleutian Islands and 
Bering Sea regions declined substantially prior to 1990, and 
populations there remain only a fraction of what they were 20 years 
ago.
    Pup production has also decreased since the 1990 listing. Overall, 
a decline of about 28 percent has been observed between pup counts made 
in 1989-90 as compared to 1993-94 (excluding the western Aleutian 
Islands and Bering Sea where comparative counts are not available). 
Regional differences in the rate of change in pup production also are 
apparent. Pup production in the central Gulf of Alaska declined by 49 
percent between 1989-90 and 1993-94. The central and eastern Aleutian 
Islands also had large decreases in pup production (a 19 percent and a 
16 percent decline, respectively), while pup production in the eastern 
and western Gulf of Alaska was relatively stable over the time period.
    Population Viability Analysis: Steller sea lion abundance trends 
within the decline area were modeled to provide an estimate of the 
likelihood of extinction given the available population data (Merrick 
and York, 1994). Two models were developed based on a stochastic model 
of exponential growth that required only count data and count variance 
to predict future trends (after Dennis et al., 1991), and using both 
the 1985-94 and 1989-94 population trends. 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 (<500 females) within 100 years from the present, 
if either the 1985-94 or 1989-94 trend continues into the future. The 
Kenai-Kiska regional model predicted a probability of extinction within 
100 years of 100 percent from the 1985-94 trend data, and a probability 
of extinction within 100 years of 65 percent if the 1989-94 trend data 
are used.
    The rookery model predicted longer times to extinction. Predicted 
probabilities of extinction within 100 years were 100 percent using the 
1985-94 trend, and 10 percent using the 1989-94 trend data. Modeling 
results indicated that, if either trend persists, the next 20 years 
would be crucial to the survival of the western Alaska population. 
Under all modelling scenarios during the next 20 years, populations on 
individual rookeries are predicted to be reduced to low levels (mean 
size <100 adult females).
    Criteria and considerations for endangered classification: The ESA 
does not provide objective criteria or specific guidance for 
determining when a population should be listed as endangered or 
threatened. The ESA simply defines an ``endangered species'' as one 
that is in danger of extinction and a ``threatened species'' as a 
species that is likely to become an endangered species within the 
foreseeable future. Other guidance and criteria for assessing 
population endangerment can be gleaned from scientific literature. This 
is discussed below in relation to the current status of the western 
population segment of Steller sea lions.
    The Recovery Team recommended specific evaluation criteria for 
Steller sea lions, and considered the current abundance in the Kenai 
Peninsula to Kiska Island (trendsite) area in relation to a pre-decline 
benchmark population size, as well as the rate of decline in adult/
juvenile animals counted within the trendsite area, the rate of decline 
in pup production in the trendsite area, and population trends in other 
geographic regions (NMFS, 1992). Application of the Recovery Team's 
criteria at this time would result in a determination that the western 
population segment should be listed as endangered. Indeed, the Recovery 
Team specifically recommended to NMFS that the western population 
segment be listed as endangered (Lowry, 1994).
    Although a precise definition of ``endangered'' does not exist, a 
population that is not endangered is one that is likely to persist into 
the foreseeable future. Thus, the question of defining endangerment is 
one of determining the threshold probability of extinction that is too 
high to be acceptable to society (Goodman, 1994). Defining the 
acceptable probability of persistence and the appropriate time frame of 
reference that defines a minimum viable population (MVP) is a 
subjective decision that has been much discussed in the conservation 
biology literature. ``Acceptable'' persistence values in the scientific 
literature for an MVP range from a ``greater than'' 80 to 90 percent 
probability of persistence over 10 generations, to a ``greater than or 
equal to'' 50, 90, 95, and 99 percent probability of persistence over 
100 years or a ``greater than or equal to'' 99 percent likelihood of 
persistence over 

[[Page 51972]]
1000 years (Schaffer, 1981, 1987; Belovsky, 1987; Soule, 1987; Mace and 
Lande, 1991; Mace et al., 1993; Thompson, 1991). Thompson (1991) notes 
that although there are no clear theoretical grounds for a single 
choice of persistence probability and time frame reference, the 
relatively frequent use of a 95 percent probability of persistence over 
100 years makes this a reasonable standard for an MVP, i.e., an 
unendangered population. Considering the converse, an endangered 
population may be defined as one with a greater than 5 percent chance 
of extinction over the next 100 years. Evaluating the western Steller 
sea lion population PVA results (at Merrick and York, 1994) in light of 
this ``standard'' would lead to a determination that the western 
population of Steller sea lions is endangered.
    Various ``rules of thumb'' also have been proposed for the minimum 
population size needed to ``ensure'' population persistence over time; 
however, most authors caution against using such ``magic numbers'' 
offhandedly. For example, the 1994 estimate of adult/juvenile Steller 
sea lions within the western population segment of 33,600 (NMFS, 1995) 
is well above most of the MVP ``rules of thumb'' commonly cited (Soule, 
1987; Belovsky, 1987; Thomas, 1990). A ``rule of thumb'' approach is 
inadequate, however, for evaluating the status of Steller sea lions 
under the ESA. A ``rule of thumb'' assessment may be useful in 
assessing long-term viability of stable populations, but the severe, 
continuous decline in the western Steller sea lion population trend 
would be overlooked by such an approach. As noted by the Recovery Team 
in their criteria, the rate of population decline, as well as the 
magnitude and spatial extent of the decline, are critical factors in 
determining endangerment for this population.
    Mace and Lande (1991) and Mace et al. (1993) outline criteria for 
classifying species considered by the International Union for the 
Conservation of Nature (IUCN), which incorporate various types of 
population data and analyses, e.g., population size, geographic range, 
population decline rate, probability of persistence within a given time 
frame from PVA. Consideration of all available data on a population 
allows a more robust estimate of population status than ``rule of 
thumb'' or PVA approaches alone. It should be emphasized that in both 
IUCN proposals probabilistic criteria are considered in conjunction 
with other data, thus, the most conservative classification derived by 
considering all available data/analyses would be chosen.
    Conclusions concerning the western population: An analysis of the 
conservation status of the western population segment of the Steller 
sea lion in relationship to the standards for threatened and endangered 
status indicates that this population segment would satisfy the third 
criterion of the proposed population policy. In addition, the available 
data and information concerning the status of this stock indicates that 
the western population should be proposed for endangered status under 
the ESA.
    The western population is proposed to consist of Steller sea lions 
from breeding colonies located west of 144  deg.W. long.

Status of the Eastern Steller Sea Lion Population Segment

    Population monitoring data: The 1990 ESA listing of Steller sea 
lions resulted primarily from the declines observed in the western 
population area; in the eastern population, a decline has been noted 
only in the California part of the range. Since the 1990 listing, trend 
counts of the eastern population segment show about a 17 percent 
increase overall in adult/juvenile numbers. Similar to the western 
population, regional differences in trends within the eastern 
population are evident.
    California experienced a large decline in Steller sea lion numbers 
prior to 1980; NMFS (1995) estimated a greater than 50 percent decline 
between about 1950 and 1980. Some of the available data indicate that a 
northward shift in the Steller sea lion range may be occurring, which 
may exacerbate the decline at southern rookeries. Steller sea lion 
counts in California have been relatively stable since 1980 (1980 count 
was 982) although counts declined 19 percent from 1990-94 (from 1,123 
animals to 915) (NMFS, 1995). The reasons for the historical decline in 
Steller sea lion total abundance and the current decline at southern 
locations in California is not known. Causal factors under 
investigation include changes in prey base, possible effects of 
anthropogenic contaminants and disease, disturbance, and competition 
with other pinniped populations that are increasing in abundance in 
California, e.g., California sea lions, elephant seals, northern fur 
seals.
    Steller sea lion adult/juvenile counts at Oregon trend sites show a 
relatively large increase from 1990-94 (from 2,005 to 2,696) but this 
may be, at least partially, due to improved counting techniques (NMFS, 
1995). Steller sea lion adult/juvenile counts in Southeast Alaska 
increased 15 percent from 1990 to 1994 (from 7,629 to 9,005), and pup 
counts increased by about 10 percent (from a mean of 2,568 in 1989-90 
to a mean of 3,701 in 1993-94).
    The British Columbia portion of the eastern population has also 
apparently been increasing slowly since the 1970s. Reports from aerial 
surveys conducted by the Canadian Department of Fisheries and Oceans 
indicate that adult/juvenile counts at rookeries and haulouts in 
British Columbia increased about 10 percent between 1992 and 1994 (from 
7,376 to 8,091) (Olesiuk, pers. comm.).
    Criteria and considerations for threatened status and conclusions 
concerning the eastern population: The overall trend of the eastern 
population segment of Steller sea lions since 1980 has been stable to 
increasing although significant declines in the number of Steller sea 
lions occurring within California prior to 1980 have been documented. 
Population modeling of the number of sea lions at the rookeries to 
assess the viability of the eastern population segment has not been 
specifically conducted by NMFS. Since this population's trend has been 
stable to increasing, modelling, such as that conducted for the western 
population, would be expected to predict persistence of this population 
segment for the foreseeable future (NMFS, 1995).
    The estimated size of the eastern population of Steller sea lions 
within U.S. boundaries in 1994 was 18,600 animals. About 10,000 more 
animals of this population are estimated to occur within British 
Columbia. The British Columbia estimate was derived by adjusting 
Olesiuk's 1994 adult/juvenile count to account for animals at sea, 
using the methods of Loughlin et al. (1992).
    Comparison of this population size with the typical range of most 
``rules of thumb'' for minimum viable population size (from 1000 to 
10,000 individuals (Thompson, 1991)) provides an additional indication 
that this population is not vulnerable to extinction in the foreseeable 
future. Similarly, this population segment, when considered alone, 
would not meet any of the draft IUCN vulnerability criteria discussed 
in Mace and Lande (1991) and Mace et al. (1993).
    Evaluating the population status of the eastern population segment 
without a consideration of its place in the overall species population, 
however, may be inappropriate. Prior to the decline, the proportion of 
the U.S. population of Steller sea lions that resided within the 
eastern population 

[[Page 51973]]
area was less than 10 percent (NMFS, 1995). Because of the western 
population's decline, the eastern population's numerical significance 
has increased. NMFS (1995) estimates that the total U.S. population of 
Steller sea lions has declined by 73 percent between the 1960s and 1994 
(NMFS, 1995). The overall trend for the entire species is a continuing 
decline. Also, between 1991 and 1994 pup numbers decreased in all 
regions of Alaska. There was a 20.8 percent decrease in the number of 
pups born in the area from southeastern Alaska to central Alaska. These 
declines reverse the apparent stability in pup numbers in southeastern 
Alaska.
    Thus, although for listing purposes the western and eastern 
population segments may be considered discrete, the substantial 
population decline that has occurred in the eastern Gulf of Alaska 
through the Aleutian Islands represents a threat to the continued 
existence of the entire species, including the eastern population. 
Therefore, the vulnerability of the eastern population remains a 
serious concern as long as the cause of the decline of the western 
population remains undetermined. These populations, while separate, are 
not isolated, and factors causing the decline in Alaska could move 
eastward and pose a threat to the continued existence of the eastern 
population. The recent declines in pup production in the eastern 
population are of serious concern. In addition, the decline numbers of 
Steller sea lions in California, in the southern extremity of their 
range, is also of concern.
    The Recovery Team's population evaluation criteria focused on 
population parameters within the western population segment, and thus, 
offer no guidance for evaluating the status of the eastern population 
segment. Recently, the Recovery Team recommended that the eastern 
population segment remain listed as threatened because of concerns 
regarding (1) the decline in Steller sea lions numbers in southern 
California, (2) the potential that the decline in the western 
population could spread east, (3) a slight decrease in pup counts in 
Southeast Alaska and Oregon in 1994, and (4) a concern that since 
animals in the western population may occur within the eastern 
population's geographic range, animals from the western population 
could be affected by a lack of protective management mechanisms (Lowry, 
1994).
    An analysis of the conservation status of the eastern population 
segment of the Steller sea lion in relationship to the standards for 
threatened status indicates that this population remains vulnerable, 
but in a manner and to an extent that differs from the vulnerability of 
the western population segment. This analysis indicates that the third 
criterion of the proposed population policy is satisfied. Likewise, the 
available data and information concerning the status of this stock 
indicates that the eastern population should continue to be considered 
threatened.
    NMFS proposes a separate listing for the eastern population of the 
Steller sea lion as a threatened species under the ESA. The eastern 
population segment would consist of Steller sea lions from breeding 
colonies located east of 144  deg.W. long.
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 Orford 
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 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 Gulf of Alaska during the 
1960's and early 70's. 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 probably 
continues, but the magnitude and significance of this mortality source 
is not known. In addition, in some cases, the animals may be disturbed 
as a result of recreational activities. 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, these harvests probably are not a major or substantial 
cause of recent population changes.
    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

[[Page 51974]]

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. It is unlikely that utilization of 
Steller sea lions for scientific or educational purposes has 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 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 Gulf of Alaska 
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 Act, NMFS has the authority to regulate fishing activities 
that may be affecting sea lions, directly or indirectly. However, the 
adequacy or inadequacy of existing regulatory mechanisms and protective 
regulations 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, or kill or attempt to 
harass, hunt, capture, or kill any marine mammal. Certain exceptions 
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, 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.
    The regulatory mechanisms prohibiting the taking of Steller sea 
lions generally have been effective.
    Regulations prohibiting the discharge of firearms: Regulations 
adopted with the original listing of Steller sea lions as threatened 
prohibited the discharge of firearms at or near these animals. Although 
intentional lethal taking of sea lions was prohibited at that time, 
there had been reports that firearms were used to deter sea lions from 
interfering with fishing operations.
    In a separate action, NMFS has proposed regulations and guidelines 
for deterring marine mammals as required under new section 101(a)(4) of 
the MMPA (60 FR 22345, May 5, 1995). These deterrence measures would 
prohibit the use of firearms for deterring marine mammals from 
interacting with fishing gear or catch. 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).
    As noted above, illegal shooting of Steller sea lions may be 
continuing, but the regulations adopted at the time of the original 
listing of the species as threatened are viewed, in general, as 
effective and adequate. NMFS proposes to continue these types of 
protections for both the eastern and western population segments. The 
proposed regulation in this action would expand the definition of 
``firearm'' to make the definition consistent with the approach 
proposed in the marine mammal deterrence measures.
    No approach in buffer areas: Regulations adopted with the original 
listing of Steller sea lions 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 were 
provided. All of the specified rookery sites are within the range of 
the western population segment.
    The purposes of the buffer areas were 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 generally are 
viewed as effective.
    NMFS is proposing to continue the existing regulatory buffer areas 
in the western area. At this time, NMFS is not proposing additional 
buffer areas in the western area or any buffer area protections for 
rookery sites in the eastern area. Specific case-by-case buffer area or 
related protections may be considered in the context of section 7 
consultations. Comments are invited with respect to the need for 
changes in buffer area protections.
    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 to replace the 
interim exemption program that was established by the 1988 amendments 
to the MMPA. 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 replaces the previous quota 
system and focuses on reducing the incidental mortality and serious 
injury of marine mammals from strategic stocks, i.e., those that are 
listed as endangered or threatened under the 

[[Page 51975]]
ESA, those that are listed as depleted under the MMPA, and those for 
which human-caused mortality exceeds the estimated potential biological 
removal (PBR) for the stock. Under this new regime, NMFS is 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.
    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. Stocks of marine mammals listed as 
threatened or endangered under the ESA are considered ``strategic 
stocks'' under the MMPA, and NMFS is to develop and implement take 
reduction plans for such stocks that have either frequent or occasional 
interactions with commercial fisheries.
    The goal of these plans is to reduce incidental mortality or 
serious injury of marine mammals during commercial fishing operations 
to less than the PBR level within 6 months of implementation and to 
insignificant levels approaching a zero mortality and serious injury 
rate by April 30, 2001. NMFS is committed to convening take reduction 
teams to develop take reduction plans for strategic stocks of marine 
mammals, including both the western and eastern populations of Steller 
sea lions.
    In addition to take reduction plan implementation, section 
101(a)(5) of the MMPA allows NMFS to authorize the take of threatened 
and endangered marine mammals incidental to commercial fishing 
operations only if, among other things, that take will have a 
``negligible impact'' on the stock. NMFS issued an Incidental Take 
Statement (on August 25, 1995) that authorizes, under section 7(b)(4) 
of the ESA, the incidental mortality and serious injury in commercial 
fisheries.
    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 native Alaskans 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. If subsistence takings materially and negatively 
affect the species, 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 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 
consisting of representatives from 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. Through co-
management agreements between NMFS and the Alaska Native Sea Lion 
Commission or tribal entities, self-management and regulation of the 
subsistence harvest by Alaska Native tribes, communities, or the 
Commission will be developed. NMFS is not considering regulation of the 
subsistence harvest at this time but hopes to work with Alaska Native 
communities and representatives to ensure that subsistence harvest does 
not adversely affect the Steller sea lion population.
    Critical habitat: Currently, designated critical habitat for 
Steller sea lions includes major rookeries in Alaska, Oregon and 
California, major haulout areas in Alaska, and three special aquatic 
foraging areas in waters off Alaska, the Shelikof Strait are, the 
Bogoslof area, and the Seguam Pass area.
    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 that 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 of 
the continuing decline in the western population segment. The Gulf of 
Alaska (GOA)/Bering Sea and Aleutian Island management area (BSAI) 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 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 and temporal restrictions on the GOA pollock harvest to divert 
some fishing effort away from sea lion foraging areas and to spread 
effort over the calendar year.
    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. However, NMFS is 
concerned about the adequacy of these protective measures and believes 
that reevaluation of the regulations is needed. Further, the Recovery 
Team has recommended NMFS evaluate the need for additional measures in 
order to enhance food availability near rookeries and haulouts in the 
western area. Current regulations of the groundfish fisheries in the 
GOA and BSAI were implemented under the Magnuson Act. NMFS anticipates 
that additional protections or changes in these measures would also be 

[[Page 51976]]
implemented under that Act. NMFS is not proposing such revisions at 
this time although comments on this issue are invited.
    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. As mentioned above 
comments received on the status review notice included suggestions that 
additional regulations were needed to protect Steller sea lions from 
the effects of oil and gas exploration and development.
    In most cases, other agencies, such as Minerals Management Services 
and the Forest Service, are more involved in the direct regulation of 
these types of activities. Of course, these agencies are expected to 
consult with NMFS on actions they authorize, fund, or carry out to 
ensure these actions are not likely to jeopardize the continued 
existence of listed species or to destroy or adversely modify critical 
habitat. Reinitiation of consultation is expected in most situations, 
given recent information concerning the status of the Steller sea 
lions. Comments received concerning the adequacy of regulations issued 
by other agencies will be considered during the consultation process.
    Conclusions regarding the inadequacy of existing regulatory 
mechanisms: NMFS has not made a final determination with respect to the 
adequacy or inadequacy of existing regulatory mechanisms. NMFS 
recognizes the need for further consideration of the need for, the 
adequacy of, and the benefits of existing regulations. In some cases, 
even after further study, it may be difficult or impossible to make 
definite determinations about the adequacy of specific regulations 
because of the lack of knowledge or understanding of the mechanisms 
contributing to the decline or vulnerability of Steller sea lion 
populations.
    NMFS is in the process of reinitiating or requesting reinitiation 
of consultation under section 7 of the ESA with respect to various 
agency actions that may affect Steller sea lions. Reinitiation is 
necessary because of new information about the status of Steller sea 
lions and is expected to help NMFS assess the adequacy of certain 
regulatory mechanisms.
    In some cases, NMFS anticipates that regulations may be needed to 
be revised to protect Steller sea lions or to aid population recovery. 
Review and revision of Steller sea lion management regulations, to the 
maximum extent practicable, will be undertaken in full consultation 
with affected parties, Federal and state agencies, and public interest 
groups. Except with respect to the regulatory measures proposed in this 
action, NMFS anticipates that major regulatory revisions will be 
implemented by rulemaking that is separate from any final ESA listing 
reclassification.

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. Changes 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 
frequently interact with commercial fisheries, and many have been 
reported incidentally taken in fisheries in the Gulf of Alaska, Bering 
Sea, and Aleutian Islands area. Estimates of the total number of 
Steller sea lions taken in commercial trawl fisheries in these waters 
from 1966 through 1988 exceed 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 Gulf of Alaska during 
certain time periods. In recent years, the number of Steller sea lions 
taken in Federally-managed commercial groundfish fisheries in the Gulf 
of Alaska, Bering Sea, and Aleutian Islands has been relatively low 
(less than 30/year), and incidental take in these fisheries is no 
longer thought to be a major factor affecting the western population.
    Alaska Native subsistence hunters have been estimated to take about 
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 and Mischler, 1993; 1994). These removals 
have an impact on the population although the magnitude of estimates in 
comparison to the reported declines indicate that subsistence harvest 
has not been a significant factor in the decline. However, should the 
western population segment continue to decline and the subsistence 
harvest continue at the same level, it may become significant.
    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 (Southeast Alaska) have been estimated at 
less than 10 animals annually (Wolfe and Mischler, 1993; 1994).
    The calculated PBR for the eastern population of Steller sea lion 
is 706 animals, well above the current level of human-caused mortality.
    Food availability for the western population segment: Steller sea 
lions are opportunistic feeders, that feed primarily on schooling 
demersal 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 and 
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 wallege 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 and Merrick, 1989; Ferrero and Fritz, 1994).
    One working 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 

[[Page 51977]]
targets, or has a significant bycatch of, Steller sea lion prey species 
(as the 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 these 
hypotheses, 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 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 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 
1970's and 1980's. 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 populations: 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 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.

Proposed Determinations

    The best available information indicates that Steller sea lions 
should be managed as two discrete population segments and NMFS proposes 
separate listings of the eastern and the western population segments of 
the Steller sea lion for the purposes of the ESA.
    Available data on population trends indicate that the western 
population 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. Although the precise cause(s) of the decline 
have not been determined, it is likely that the current condition is 
caused by a combination of the factors specified under section 4(a)(1) 
of the ESA.
    Therefore, NMFS proposes that the western population of Steller sea 
lions be listed 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 has exhibited a stable to increasing 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 proposes to maintain a threatened listing for this 
portion of the geographic range. This proposed determination allows a 
differentiation between the two populations that acknowledges the 
different individual population trends, but does not lose sight of the 
overall trend for the species. NMFS, in conjunction with the Recovery 
Team, will develop appropriate delisting criteria for the eastern 
population segment.

NMFS Policies on Endangered and Threatened Wildlife

    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service, published a series of new policies regarding listings under 
the ESA, including a policy for peer review of scientific data (59 FR 
34270) and 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).
    Role of peer review: The intent of the peer review policy is to 
ensure that listings are based on the best scientific and commercial 
data available. Prior to a final listing, the Services will solicit the 
expert opinions of three appropriate and independent specialists. 
Further, independent peer reviewers will be selected from the academic 
and scientific community, Tribal and other native American groups, 
Federal and state agencies, and the private sector.
    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 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 Agency 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 three nautical miles of a listed Steller sea 
lion rookery site. This includes, but is not limited to, transitting 
through the rookery site in a vessel, anchoring within any rookery site 
or fishing within any rookery site; and
    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 take of endangered species for subsistence purposes and the 
take must not be done in a wasteful manner.
    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.
    With regard to activities that may affect Steller sea lions or 
their habitat, and whose likelihood of violation of section 9 is 
uncertain, the NMFS/Alaska Regional Office (see ADDRESSES) should be 
contacted to assist in determining whether a particular activity 
constitutes a prohibited act under section 9. 

[[Page 51978]]


References Cited

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

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, the Regulatory Flexibility Act, and the Paperwork 
Reduction Act are not applicable to the listing process.

    Dated: September 28, 1995.
Nancy Foster,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

List of Subjects

50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and 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 proposed to be 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. 1361 et seq. and 1531-1543.

    2. In Sec. 222.23, in paragraph (a) after ``Saimaa seal (Phoca 
hispida saimensis);'' insert ``Steller sea lion (Eumetopias jubatus), 
western population (the western population consists of Steller sea 
lions from breeding colonies located west of 144 deg. W. long.);''.
* * * * *
    3. Section 222.32 is added to subpart D to read as follows:


Sec. 222.32  Special prohibitions relating to endangered Steller sea 
lion protection.

    General. Special rules relating to endangered Steller sea lions are 
provided at part 227, subpart B.

PART 227--THREATENED FISH AND WILDLIFE

    4. The authority citation for part 227 is revised to read as 
follows:
    Authority: 16 U.S.C. 1361 et seq. and 1531-1543.


Sec. 227.12  [Amended]

    5. In Sec. 227.12, paragraphs (a) introductory text, (a)(1), 
(a)(2), (a)(4), and (b)(2) are revised to read as follows:
    (a) General prohibitions. Except as provided under paragraph (b) of 
this section, the prohibitions of section 9 of the Act (16 U.S.C. 1538) 
relating to the western population of Steller sea lions identified at 
part 222 also apply to the eastern population which consists of Steller 
sea lions from breeding colonies located east of 144 deg. W. long.
    (1) No discharge of firearms or similar devices. Except as provided 
in paragraph (b) of this section, no person subject to the jurisdiction 
of the United States may discharge a firearm or similar device at or 
within 100 yards (91.4 meters) of a Steller sea lion. A firearm or 
similar device includes any weapon capable of propelling an object 
resulting in, or likely to result in, injury including, without 
limitation, guns, crossbows, spearguns, bangsticks, archery gear, 
harpoons and spears.
    (2) No approach in buffer areas. Except as provided in paragraph 
(b) of this section:
    (i) 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 (a)(3) of this section;
    (ii) 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 (a)(3) of this section, whichever 
is greater, except on Marmot Island; and
    (iii) 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 (a)(3) of this section, whichever is greater.
* * * * *
    (4) Quota. 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 should be 
reported within 30 days to the Director, Alaska Region, National Marine 
Fisheries Service, P.O. Box 21668, Juneau, AK 99802. 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. 95-24638 Filed 9-29-95; 1:37 pm]
BILLING CODE 3510-22-W