[Federal Register Volume 62, Number 86 (Monday, May 5, 1997)]
[Rules and Regulations]
[Pages 24345-24355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11668]


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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,

[[Page 24348]]

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

[[Page 24350]]

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]
BILLING CODE 3510-22-P