[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Proposed Rules]
[Pages 77602-77605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31232]



National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 101124581-0584-01]
RIN 0648-XA046

Endangered and Threatened Species; 90-Day Finding on Petitions To 
Delist the Eastern Distinct Population Segment of the Steller Sea Lion

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

ACTION: Notice of 90-day petition finding; request for information.


SUMMARY: We (NMFS) announce a 90-day finding on two petitions to delist 
the eastern Distinct Population Segment (DPS) of the Steller Sea Lion 
(Eumetopias jubatus) under the Endangered Species Act of 1973, as 
amended (ESA). We find that the petitions present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. We are continuing our status review of this 
DPS to determine if the petitioned action is warranted. To ensure that 
the status review is comprehensive, we are again soliciting scientific 
and commercial information regarding this species from any interested 

DATES: Information and comments must be submitted to NMFS by February 
11, 2011.

ADDRESSES: You may submit comments, identified by RIN 0648-XA046, by 
any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http//www.regulations.gov. 
Follow the instructions for submitting comments.
     Hand-delivery: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Alaska Regional Office, Attn: Ellen 
Sebastian, Juneau Federal Building, 709 West 9th Street, Room 420A, 
Juneau, AK 99802-1668.
     Mail: P.O. Box 21668, Juneau, AK 99802.
     Facsimile (fax): (907) 586-7557.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business

[[Page 77603]]

Information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter N/A in the required fields, if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file 
formats only.
    The petitions may be viewed at: http://www.alaskafisheries.noaa.gov./protectedresources/stellers/edps/

Region, (907) 271-1692; Kaja Brix, NMFS, Alaska Region, (907) 586-7235; 
or Lisa Manning, NMFS, Office of Protected Resources, (301) 713-1401.


ESA Statutory Provisions and Policy Considerations

    The Administrative Procedure Act and ESA enable an interested 
person to petition for the listing or delisting of a species, 
subspecies, or DPS of a vertebrate species which interbreeds when 
mature (5 U.S.C. 553(e), 16 U.S.C.1533(b)(3)(A)). ESA-implementing 
regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS) 
also establish procedures for receiving and considering petitions to 
revise the lists and for conducting periodic reviews of listed species 
(50 CFR 424.01).
    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires 
that the Secretary of Commerce (Secretary) make a finding as to whether 
a petition to delist a species presents substantial scientific or 
commercial information indicating the petitioned action may be 
warranted. ESA implementing regulations define ``substantial 
information'' as the amount of information that would lead a reasonable 
person to believe the measure proposed in the petition may be warranted 
(50 CFR 424.14(b)(1)). In determining whether substantial information 
exists for a petition to list a species, we take into account several 
factors, including information submitted with, and referenced in, the 
petition and all other information readily available in our files. To 
the maximum extent practicable, this finding is to be made within 90 
days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the 
finding is to be published promptly in the Federal Register. If the 
Secretary finds that a petition presents substantial information 
indicating that the requested action may be warranted, the Secretary 
must conduct a status review of the species concerned.
    Section 4(b)(3)(B) requires the Secretary to make a finding as to 
whether or not the petitioned action is warranted within 12 months of 
the receipt of the petition. The Secretary has delegated the authority 
for these actions to the NOAA Assistant Administrator for Fisheries. In 
making the 12-month finding whether the petitioned action is warranted, 
we will also determine whether the eastern DPS continues to qualify as 
a threatened species.
    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range'' (ESA section 3(6)). A threatened species is defined as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range'' (ESA section 3(19)). The basis for the determination of a 
species' status under the ESA is provided in section 4 of the ESA. 
Under the ESA, a listing determination can address a species, 
subspecies, or a DPS of a vertebrate species which interbreeds when 
mature (16 U.S.C. 1532 (16)). Under section 4(a)(1) of the ESA, a 
species may be determined to be threatened or endangered as a result of 
any one of the following factors:
    (A) Present or threatened destruction, modification, or curtailment 
of habitat or range;
    (B) Over-utilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) Inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
    Regulations implementing the ESA instruct NMFS to consider these 
same factors when determining whether to delist a species, a 
subspecies, or a DPS (50 CFR 424.11(d)).
    Listing determinations are made solely on the basis of the best 
scientific and commercial data available, after conducting a review of 
the status of the species and taking into account efforts made by any 
state or foreign nation to protect such species.
    Regulations implementing the ESA provide the rules for revising the 
Lists of Endangered and Threatened Wildlife and Plants (50 CFR 424). 
The regulations provide criteria for determining species to be 
endangered or threatened. In addition to identifying the factors that 
NMFS should consider when determining whether to delist a species, a 
subspecies, or a DPS, the ESA implementing regulations state that a 
species may be delisted for one or more of the following reasons: The 
species is extinct or has been extirpated from its previous range; the 
species has recovered and is no longer endangered or threatened; or 
investigations show the best scientific or commercial data available 
when the species was listed, or the interpretation of such data, were 
in error (50 CFR 424.11(d)).


    The Steller sea lion (Eumetopias jubatus) was listed as a 
threatened species under the ESA on April 5, 1990 (55 FR 12645). 
Critical habitat was designated on August 27, 1993 (58 FR 45269), based 
on the location of terrestrial rookery and haulout sites, spatial 
extent of foraging trips, and availability of prey. In 1997, based on 
demographic and genetic dissimilarities, we designated two DPSs of 
Steller sea lions under the ESA: A western DPS and an eastern DPS (62 
FR 24345, 62 FR 30772). Due to persistent decline, the western DPS was 
reclassified as endangered, while the increasing eastern DPS remained 
classified as threatened.
    We completed the first recovery plan for Steller sea lions in 
December 1992. At that time, the entire species was listed as 
threatened under the ESA. Because that recovery plan became obsolete 
after the reclassification of Steller sea lions into two distinct 
population segments (DPS) in 1997, and because nearly all of the 
recovery actions contained in the first plan had been completed, NMFS 
assembled a new Steller Sea Lion Recovery Team (Team) in 2001 to assist 
NMFS in revising the Recovery Plan and further promote conservation of 
the species. In March, 2008, NMFS released a Revised Recovery Plan for 
the Steller Sea Lion: Eastern and Western Distinct Population Segments 
(Recovery Plan). The 2008 Recovery Plan states that, in 2002, the 
number of individuals in the eastern DPS was estimated to be between 
46,000 and 58,000 and that this population had been increasing at 
approximately 3 percent per year since the late 1970s (Pitcher et al. 
2007, as cited in NMFS 2008:x). The Executive Summary of the 2008 
Recovery Plan states that the eastern DPS appears to have recovered 
from the predator control programs of the 20th century, which 
extirpated animals at rookeries and haulouts, no substantial threats 
are currently evident, and the population continues to increase at 
approximately 3 percent per year (NMFS 2008). The 2008 Recovery Plan 
also summarizes that:

    ``* * * no threats to continued recovery were identified for the 
eastern DPS. Although several factors affecting the western DPS also 
affect the eastern DPS (e.g., environmental

[[Page 77604]]

variability, killer whale predation, toxic substances, disturbance, 
shooting), these threats do not appear to be at a level sufficient 
to keep this population from continuing to recover, given the long 
term sustained growth of the population as a whole. However, 
concerns exist regarding global climate change and the potential for 
the southern part of the range (i.e., California) to be adversely 
affected. Future monitoring should target this southern portion of 
the range'' (NMFS 2008:xiii).''

    It further states, ``The primary action[s] [recommended] in the 
plan [are] to initiate a status review for the eastern DPS and consider 
removing it from the Federal List of Endangered Wildlife and Plants.'' 
(NMFS 2008:xvi). The 2008 Recovery Plan identifies the following 
delisting criteria:
    1. The population has increased at an average annual growth rate of 
3 percent per year for 30 years.
    2. The ESA listing factor criteria are met. NMFS (2008: viv).
The Recovery Plan states that when the first of these criteria has been 
met, NMFS will evaluate the ESA listing factor criteria to determine 
whether to delist the eastern DPS.
    On June 29, 2010, we provided notice of the initiation of a 5-year 
status review of the eastern DPS of Steller sea lion under the ESA and 
opened a public comment period (75 FR 37385, June 29, 2010; 75 FR 
38979, Wednesday, July 7, 2010). The agency subsequently re-opened a 
second public comment period (75 FR 53272, August 31, 2010). A 5-year 
status review is a periodic process conducted to ensure that the 
listing classification of a species is accurate, and it is based on the 
best scientific and commercial data available at the time of the 
review. On the basis of such reviews under section 4(c)(2)(B) of the 
ESA, we determine whether or not any species should be removed from the 
list (delisted), or reclassified from endangered to threatened or from 
threatened to endangered.

Analysis of the Petitions

    On August 30, 2010, we received a petition from the States of 
Washington and Oregon to delist the eastern DPS of Steller sea lion 
under the ESA. On September 1, 2010, the Secretary of Commerce received 
a petition from the State of Alaska to delist the eastern DPS of 
Steller sea lion. Both petitions contend that the eastern DPS of 
Steller sea lions has recovered, is not in danger of extinction now, 
and is not likely to be in danger in the foreseeable future. Because we 
received two petitions within a short period of time that requested the 
same action, we have considered the two petitions jointly in making our 
90-day finding.
    Both petitions make multiple references to statements, information, 
and conclusions from the aforementioned 2008 Revised Recovery Plan, and 
literature cited within this document. For example, the conclusion 
section of the State of Alaska petition states:

    ``In the 2008 Recovery Plan, NMFS concluded that ``[n]o threats 
to recovery [of the Eastern DPS of the Steller sea lion] have been 
identified and the population has been increasing for over 25 years, 
new rookeries have been created, and the population is at historical 
high levels.'' 2008 Recovery Plan at VII-7.''

    Additionally, new information that was not available at the time of 
the 2008 Recovery Plan, but that was readily available in our files 
upon receipt of the petitions, was presented in the petitions. For 
example, the petition from the States of Oregon and Washington refers 
to a recently published paper when they state:

    ``Boyd (2010) concluded that ``the eastern and western segments 
of the population have probabilities of persistence that mean they 
do not meet the criteria for classification as endangered and it 
would be reasonable to de-list them''.''

    The State of Alaska's petition cites new aerial survey information 
provided in a memorandum from the Alaska Fishery Science Center to the 
Alaska Region Protected Resources Division of NMFS. This memorandum 
reported that Steller sea lion pup production in Southeast Alaska 
(eastern DPS) totaled 7,462 pups in 2009, with 7,443 counted at the 5 
major rookeries where 5,510 had been counted in 2005.
    The petitions also present some new information that was not 
readily available in our files. For example, the petition from the 
States of Oregon and Washington cites unpublished data from studies of 
Steller sea lions by the Oregon and Washington Departments of Wildlife 
to support their conclusion that

    ``None of the potential natural or manmade causes for population 
decline examined in the western population range appear to be having 
negative impacts on eastern stock sea lions occurring in Oregon and 
Washington * * *.''

This petition also provides preliminary results of non-pup abundance 
survey data from 1976-2008 collected by the Oregon Department of 
Wildlife, and the Petitioners report that unpublished data from surveys 
conducted by the Washington Department of Fish and Wildlife (WDFW) 
along the Washington coast show both increasing Steller sea lion 
numbers at haulout areas as well as increasing numbers of newborn pups 
at several locations over recent years. The Petitioners further contend 
that the available data demonstrate 31 years of population growth in 
the area of the primary Steller sea lion rookeries in U.S. waters south 
of Alaska (citing Pitcher et al., 2007). Based on the information 
presented and referenced in the petition, as well as all other 
information readily available in our files, we find that the petitions 
present substantial information indicating that the petitioned action 
may be warranted.

Status Review and Solicitation of New Information

    As a result of this finding, we will continue our ongoing status 
review to determine whether the delisting of the eastern DPS of Steller 
sea lion under the ESA is warranted. We intend that any final action 
resulting from this status review will be as accurate and as effective 
as possible. Therefore, to ensure that the status review is complete 
and based on the best available scientific and commercial information, 
we are opening another public comment period for 60 days to solicit 
comments, suggestions, data, and information from the public, concerned 
governmental agencies, Native American tribes, conservation groups, the 
scientific community, industry, and any other interested parties 
concerning the status of the eastern DPS of the Steller sea lion 
(Eumetopias jubatus) throughout its range, including, but not limited 
to information on:
    (A) Species biology, including, but not limited to, population 
trends, distribution and abundance, demographics, habitat use and 
requirements, genetics, and foraging ecology; (B) habitat conditions, 
including, but not limited to, amount, distribution, and suitability of 
habitat; (C) the effects of conservation measures that have been 
implemented to benefit the species; (D) status and trends of threats; 
and (E) other new information, data, or corrections, including, but not 
limited to, taxonomic or nomenclatural changes, identification of 
erroneous information contained in the list, and improved analytical 
    Upon completion of the status review, and within 12 months of our 
receipt of the first petition to delist this DPS, we must make one of 
the following findings: (1) The petitioned action is not warranted, in 
which case the Secretary shall promptly publish such finding in the 
Federal Register and so notify the petitioner; (2) the petitioned 
action is warranted, in which case the Secretary shall promptly publish 
in the Federal Register a proposed regulation to implement the action 
pursuant to 50 CFR 424.16; or (3) the petitioned action

[[Page 77605]]

is warranted, but that (A) the immediate proposal and timely 
promulgation of a regulation to implement the petitioned action is 
precluded because of other pending proposals to list, delist, or 
reclassify species, and (B) expeditious progress is being made to list, 
delist, or reclassify qualified species, in which case such findings 
shall be promptly published in the Federal Register together with a 
description and evaluation of the reasons and data on which the finding 
is based.
    We will base our findings on a review of the best scientific and 
commercial information available, including information received during 
the public comment periods opened during this status review.

    Authority: 16 U.S.C. 1531 et seq.

    Dated: December 8, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
[FR Doc. 2010-31232 Filed 12-10-10; 8:45 am]