[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Rules and Regulations]
[Pages 66140-66199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-25261]



[[Page 66139]]

Vol. 78

Monday,

No. 213

November 4, 2013

Part III





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 224





 Endangered and Threatened Species; Delisting of the Eastern Distinct 
Population Segment of Steller Sea Lion Under the Endangered Species 
Act; Amendment to Special Protection Measures for Endangered Marine 
Mammals; Final Rule

  Federal Register / Vol. 78 , No. 213 / Monday, November 4, 2013 / 
Rules and Regulations  

[[Page 66140]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 110901553-3764-02]
RIN 0648-BB41


Endangered and Threatened Species; Delisting of the Eastern 
Distinct Population Segment of Steller Sea Lion Under the Endangered 
Species Act; Amendment to Special Protection Measures for Endangered 
Marine Mammals

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

ACTION: Final rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (ESA), we, NMFS, issue this final rule to remove the eastern 
distinct population segment (DPS) of Steller sea lion (Eumetopias 
jubatus) from the List of Endangered and Threatened Wildlife. After 
receiving two petitions to delist this DPS, we completed a review of 
the status of the eastern DPS of Steller Sea Lion. Based on the 
information presented in the Status Review, the factors for delisting 
in section 4(a)(1) of the ESA, the recovery criteria in the 2008 
Recovery Plan, the continuing efforts to protect the species, and 
information received during public comment and peer review, we have 
determined that this DPS has recovered and no longer meets the 
definition of an endangered or threatened species under the ESA: It is 
not in danger of extinction or likely to become so within the 
foreseeable future throughout all or a significant portion of its 
range. Thus, we find that the delisting of the DPS is warranted. This 
rule also makes technical changes that recodify existing regulatory 
provisions to remove special protections for the eastern DPS and 
clarify that existing regulatory protections for the western DPS of 
Steller sea lions continue to apply.

DATES: This rule becomes effective on December 4, 2013.

ADDRESSES: This final rule, references used herein, the related Status 
Review, the related Post-Delisting Monitoring Plan, and additional 
information supporting this final determination are available at: 
http://www.alaskafisheries.noaa.gov/ and http://www.regulations.gov 
[Docket No. NOAA-NMFS-2011-0208].

FOR FURTHER INFORMATION CONTACT: Dr. Lisa M. Rotterman, NMFS Alaska 
Region, (907) 271-1692; Jon Kurland, NMFS Alaska Region, (907) 586-
7638; or Lisa Manning, NMFS Office of Protected Resources, (301) 427-
8466.

SUPPLEMENTARY INFORMATION: 

ESA Statutory Provisions, Regulations, and Policy Considerations

    The ESA regulations require that a species listed as endangered or 
threatened be removed from the list if the best scientific and 
commercial data available indicate that the species is no longer 
endangered or threatened because it has recovered (50 CFR 424.11(c)). 
Section 4(a)(1) of the ESA (16 U.S.C. 1533(a)(1)) states that we must 
determine whether a species is endangered or threatened because of any 
one or a combination of the following factors: (1) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) inadequacy of 
existing regulatory mechanisms; or (5) other natural or man-made 
factors affecting its continued existence.
    Section 3 of the ESA defines a ``species'' as ``any subspecies of 
fish or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when mature.'' 
Section 3 of the ESA further defines an endangered species as ``any 
species which is in danger of extinction throughout all or a 
significant portion of its range'' and a threatened species as one 
``which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' Thus, we interpret an ``endangered species'' to be one that is 
presently in danger of extinction. A ``threatened species,'' on the 
other hand, is not presently in danger of extinction, but is likely to 
become so in the foreseeable future (that is, at a later time). In 
other words, the primary statutory difference between a threatened and 
endangered species is the timing of when a species may be in danger of 
extinction, either presently (endangered) or in the foreseeable future 
(threatened).

Foreseeable Future

    In the delisting process, NMFS determines whether the species' 
abundance, survival, and distribution, taken together with the threats 
(i.e., ESA section 4(a)(1) factors), no longer render the species in 
danger of extinction or ``likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range.'' The duration of the ``foreseeable future'' is inherently fact-
specific and depends on the particular kinds of threats, life-history 
characteristics, and specific habitat requirements for the species 
under consideration. The existence of a potential threat to a species 
and the species' response to that threat are not, in general, equally 
predictable or foreseeable. Hence, in some cases, the ability to 
foresee a potential threat to a species may be greater for certain 
threats, and it may be greater than the ability to foresee the species' 
exact response, or the timeframe of such a response, to that threat. 
NMFS must utilize the best scientific and commercial data to assess 
each threat and the species' anticipated response to each threat.

Significant Portion of Its Range

    NMFS and the U.S. Fish and Wildlife Service (USFWS) recently 
published a draft policy to clarify the interpretation of the phrase 
``significant portion of the range'' (SPR) in the ESA definitions of 
``threatened'' and ``endangered'' (76 FR 76987; December 9, 2011). The 
draft policy consists of the following four components:
    (1) If a species is found to be endangered or threatened in only an 
SPR, the entire species is listed as endangered or threatened, 
respectively, and the ESA's protections apply across the species' 
entire range.
    (2) A portion of the range of a species is ``significant'' if its 
contribution to the viability of the species is so important that 
without that portion, the species would be in danger of extinction.
    (3) The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
USFWS or NMFS makes any particular status determination. This range 
includes those areas used throughout all or part of the species' life 
cycle, even if they are not used regularly (e.g., seasonal habitats). 
Lost historical range is relevant to the analysis of the status of the 
species, but it cannot constitute an SPR.
    (4) If a species is not endangered or threatened throughout all of 
its range but is endangered or threatened within an SPR, and the 
population in that significant portion is a valid DPS, we will list the 
DPS rather than the entire taxonomic species or subspecies.
    The Services are currently reviewing public comment received on the 
draft policy. We therefore consider the draft policy as non-binding 
guidance in evaluating whether to delist the eastern

[[Page 66141]]

DPS of Steller sea lions. In developing this final rule, we also 
considered public comments on our evaluation of ``significant portion 
of its range'' for this species.

Distinct Population Segment Policy

    As noted above, the ESA defines ``species'' to include ``. . . any 
subspecies of fish or wildlife or plants, and any distinct population 
segment of any species of vertebrate fish or wildlife which interbreeds 
when mature'' (16 U.S.C. 1532(16)). In 1996, NMFS and USFWS released a 
joint policy on recognizing distinct vertebrate population segments to 
outline the principles for identifying and managing a DPS under the ESA 
(DPS Policy; 61 FR 4722; February 7, 1996). Under the DPS Policy, both 
the discreteness and significance of a population segment in relation 
to the remainder of the species to which it belongs must be evaluated. 
A population segment of a vertebrate species may be considered discrete 
if it satisfies either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA.
    If a population segment is considered discrete under one or more of 
the above conditions, its biological and ecological significance is 
then considered in light of Congressional guidance (see Senate Report 
151, 96th Congress, 1st Session) that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. This consideration may include, but is not limited to, the 
following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique for the taxon,
    (2) Evidence that loss of the discrete population segment would 
result in a
    significant gap in the range of a taxon,
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range, or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.

ESA Listing History of Steller Sea Lions

    On April 5, 1990, in response to a petition from the Environmental 
Defense Fund and 17 other organizations, we published an emergency 
interim rule to list the Steller sea lion as a threatened species under 
the ESA and to request comment on whether the species should be listed 
as threatened or endangered, possible causes of the decline, and 
conservation measures and protective regulations needed to prevent 
further declines (55 FR 12645). In that emergency interim rule, we held 
that the Steller sea lion population was declining in certain Alaskan 
rookeries (by 63% since 1985 and by 82% since 1960), the declines were 
spreading to previously stable areas and accelerating, and significant 
declines had also occurred on the Kuril Islands in Russia. Furthermore, 
the cause of these declines could not be determined. NMFS concluded 
that the emergency listing of the species as threatened on an interim 
basis was therefore necessary and that the immediate implementation of 
the protective measures of the ESA would aid recovery efforts.
    That emergency interim rule implemented the following emergency 
conservation measures to aid recovery: (1) Fishery observer efforts to 
enable monthly estimates of the level of incidental killing of Steller 
sea lions in observed fisheries; (2) aggressive enforcement of the 
emergency regulation; (3) establishment of a recovery program, 
including the establishment of a recovery team; (4) prohibition of 
discharging a firearm near or at Steller sea lions; (5) establishment 
of buffer zones around rookeries, none of which were within the 
breeding range of the eastern DPS; and (6) establishment of a quota for 
lethal incidental take in fisheries west of 141 [deg]W longitude.
    On July 20, 1990, we published a proposed rule to list the Steller 
sea lion as a threatened species (55 FR 29793), and on November 26, 
1990, we published the final rule listing the Steller sea lion as 
threatened under the ESA (55 FR 49204).

Identification of Eastern and Western DPSs and Maintenance of 
Threatened Status for the Eastern DPS

    At the time of the 1990 final rule to list, we considered all 
Steller sea lions as a single species, including those in areas where 
abundance was stable or not declining significantly, because scientists 
did not have sufficient information to consider animals in different 
geographic regions as separate species for ESA purposes. Similarly, the 
first Steller Sea Lion Recovery Plan, released in 1993, did not 
distinguish two separate population segments, but identified recovery 
tasks, reclassification criteria, and delisting criteria for the 
species as a whole. In 1993, we initiated a status review to determine 
whether a change in listing status was warranted (58 FR 58318; November 
1, 1993). In 1994, we re-convened the Steller Sea Lion Recovery Team 
(Team) specifically to consider the appropriate listing status for the 
species and to evaluate the adequacy of ongoing research and 
management. The Team recommended that NMFS recognize two DPSs, east and 
west of 144 [deg]W, based on demographic and genetic dissimilarities, 
elevate the listing status of the western DPS to endangered, and keep 
the eastern DPS listed as threatened. In 1997, we formally identified 
two DPSs of Steller sea lions under the ESA: A western DPS and an 
eastern DPS (62 FR 24345; May 5, 1997). The eastern DPS consists of all 
Steller sea lions from breeding colonies located east of 144 [deg]W 
longitude, and the western DPS consists of all Steller sea lions from 
breeding colonies located west of 144 [deg]W longitude (50 CFR 223.102; 
50 CFR 224.101(b)). We classified the western DPS as endangered due to 
its persistent population decline, and we maintained a status of 
threatened for the eastern DPS. In the discussion underlying our 
decision to continue to list the eastern DPS as threatened under the 
ESA, and in response to comments indicating that we should delist this 
species, we noted that the ``Team . . . agreed that there was continued 
concern for the eastern population segment . . . despite the fact that 
its current abundance may be stable'' (62 FR 24347; May 5, 1997). 
Further information on the identification and listing of the two 
population segments may be found in the final rule (62 FR 24345; May 5, 
1997) and in the Status Review (NMFS 2013a).

Recovery Plan

    As required under the ESA, the Recovery Plan (NMFS 2008) for both 
the eastern and the western DPSs of Steller sea lions includes 
specific, objective, measurable criteria for determining when the 
eastern DPS has recovered sufficiently to warrant delisting. In the 
Recovery Plan, we (NMFS 2008:VII-2) specified that these ``. . . 
recovery criteria comprise the core standards upon which the decision 
to delist will be based.'' The plan includes both demographic 
(biological) and listing factor (threats-based) recovery criteria.

[[Page 66142]]

    The Recovery Plan includes one demographic criterion requiring that 
the eastern DPS of Steller sea lions increase at an average annual 
growth rate of three percent per year for 30 years. NMFS (2008) 
specified that this time period reflects three generations, provides 
confidence that the increase in natality (the ratio of live births to 
the larger population) and survival support the population growth rate, 
and indicates that the recovery is robust enough to sustain the 
population over multiple environmental regimes. While the Recovery Plan 
acknowledges concern over the performance of rookeries and haulouts in 
the southern end of the range in California, it does not contain 
recovery criteria for sub-regions within the range of the eastern DPS, 
noting that it is not unusual for the geographical limit of a species 
range to perform more poorly than the core regions.
    The Recovery Plan also specifies ESA threats-based recovery 
criteria, organized by the ESA section 4(a)(1) factors, that should be 
achieved in order to delist the eastern DPS. As identified in the 
Status Review (NMFS 2013a) these are as follows:
    (1) Marine habitats, particularly in regard to prey populations, 
must be maintained through appropriate fisheries management and control 
of contaminants.
    (2) Rookery and haulout sites need to be adequately protected 
(through state, federal, or private measures) to ensure the continued 
use of these sites for pupping, breeding, attending young, and resting. 
Research and monitoring plans should be in place for all projects that 
have a high probability of negatively impacting sea lions so that these 
activities do not harm sea lions or their habitat.
    (3) Agreement is reached with the State of Alaska which describes 
its fishery management plan, minimizes the take of Steller sea lions, 
and describes how future actions taken by the State will comport with 
the ESA and MMPA.
    (4) A Steller sea lion recovery coordinator is on staff at NMFS.
    (5) An outreach program is established to educate the public, 
commercial fishermen and others on the continued need to conserve and 
protect Steller sea lions.
    (6) An Alaska stranding network is in place and functional.
    Based on a review of these recovery criteria and on new information 
that has become available since publication of the 2008 Recovery Plan, 
we conclude that these criteria together with the five factors 
specified in section 4(a)(1) of the ESA remain appropriate standards on 
which to base the decision whether to delist this species.

Status Review and Petitions To Delist

    On June 29, 2010, we initiated the first 5-year status review of 
the eastern DPS of Steller sea lions under the ESA, with a technical 
correction issued eight days later (June 29, 2010, 75 FR 37385; July 7, 
2010, 75 FR 38979). A 5-year status review is intended to ensure that 
the listing classification of a species is accurate and is based on the 
best scientific and commercial data available. During the initial 
comment period following the initiation of the 5-year review, we 
received two petitions to delist this species: One on August 30, 2010, 
from the States of Washington and Oregon; and one on September 1, 2010, 
from the State of Alaska. Both petitions contended that the eastern DPS 
of Steller sea lions has recovered, is not in danger of extinction, and 
is not likely to become endangered within the foreseeable future.
    Based on the information presented and referenced in the petitions, 
as well as other information, we found that the petitions presented 
substantial information indicating that the petitioned action may be 
warranted (75 FR 77602, December 13, 2010). Thus, we provided notice 
that we were continuing the status review of the eastern DPS to 
determine if the petitioned action was warranted. We completed a draft 
status review report (Status Review) to address all issues required in 
a 5-year review and to inform a determination of whether delisting is 
warranted. The draft Status Review underwent independent peer review by 
four scientists with expertise in population ecology and management of 
eastern DPS Steller sea lions.
    On April 18, 2012, we released a draft Status Review of the eastern 
DPS of Steller sea lion. This draft Status Review contained a draft 
post-delisting monitoring plan (PDMP) as an appendix. Concurrently, we 
published a proposed rule to remove this DPS from the List of 
Endangered and Threatened Wildlife (77 FR 23209; April 18, 2012). We 
requested public comment on all of these documents, and we sought 
additional peer review by seven scientists with relevant expertise.

Review of the Species Delineation

    As part of the Status Review, we applied the DPS policy (61 FR 
4722; February 7, 1996) to determine whether the current distinction 
remained appropriate and whether other DPSs may exist. Below are the 
main conclusions of the analysis. More detail is given in the proposed 
rule (77 FR 23209; April 18, 2012) and the Status Review (NMFS 2013a).
    The analysis confirmed that the currently recognized eastern DPS is 
both discrete and significant and thus continues to meet the criteria 
of the DPS Policy. The analysis also included a review of the best 
available information to evaluate whether Steller sea lions that breed 
in Washington, Oregon, and California adjacent to the California 
Current, and whether those that breed in California, meet the criteria 
for identification as a DPS. We first evaluated whether there was 
evidence that these sea lions were discrete from Steller sea lions that 
breed farther north, including from those in southeast Alaska, as a 
consequence of physical, physiological, ecological, or behavioral 
factors. We did not find compelling scientific evidence of consistent 
or marked discontinuity among different segments within the currently 
recognized eastern DPS of Steller sea lion. The best available evidence 
indicates that Steller sea lions that breed in California, Oregon, and 
Washington are not markedly separated from Steller sea lions in British 
Columbia and southeast Alaska as a consequence of physical, 
physiological, ecological, or behavioral factors. The best available 
evidence about genetic patterns, ecology, movement patterns and 
putative subspecies identity also does not indicate that Steller sea 
lions that breed in California are discrete from those in the rest of 
the eastern DPS.
    According to the DPS Policy, if a population segment is considered 
discrete, its biological and ecological significance to the taxon as a 
whole is then considered (61 FR 4722; February 7, 1996). Since we 
concluded that there are not population segments within the currently 
recognized eastern DPS of Steller sea lion that are discrete, we did 
not consider the biological and ecological significance of any subunits 
relative to a determination of DPS status.

Biology and Ecology

    A review of the taxonomy, life history, and ecology of the eastern 
DPS of Steller sea lion is presented in the Status Review (NMFS 2013a) 
and the Recovery Plan (NMFS 2008). We do not repeat that information 
here.

Evaluation of the Demographic Recovery Criterion

    In order to make our evaluation of the demographic recovery 
criterion transparent, and to describe the basic trend of this DPS, we 
briefly explain below the way in which population abundance is 
estimated for Steller sea

[[Page 66143]]

lions; discuss uncertainties associated with the estimates; identify 
data available on which to evaluate trends in abundance; and summarize 
the information available from pup and non-pup count data. We provide a 
summary of trends over time for the population as a whole. More 
detailed data from pup and non-pup counts over time in subareas 
(southeast Alaska, British Columbia, Washington (non-pup counts only), 
Oregon, and California) are provided in the Status Review (NMFS 2013a) 
and elsewhere (e.g., Pitcher et al. 2007; DFO 2008; Johnson and Gelatt 
2012).
    Two types of counts are used to study trends in Steller sea lion 
populations: counts of pups of up to one month of age and counts of 
non-pups (Pitcher et al. 2007; Olesiuk et al. 2008; NMFS 2008; DeMaster 
2009). NMFS currently monitors Steller sea lion status by counting 
animals during the breeding season at trend sites in conjunction with 
State and other partners. Trend sites are a set of terrestrial 
rookeries and haulouts where surveys have been consistently undertaken 
for many years and where the vast majority (over 90%) of all sea lions 
counted during surveys are observed (NMFS 2008, 2010). Breeding season 
surveys have been conducted opportunistically and not all sites have 
been surveyed each season.
    The vast majority of Steller sea lion pups are born at a relatively 
small number of rookeries and are on land for the first month on their 
life (Pitcher et al. 2007; NMFS 2008). Thus, counts of pups on 
rookeries conducted at the end of the birthing season are nearly 
complete counts of pup production. In the Recovery Plan, we noted that:

    These counts can be expanded to estimate approximate total 
population size based on an estimated ratio of pups to non-pups in 
the population (Calkins and Pitcher 1982; Trites and Larkin 1996). 
Based on estimates of birth rate and sex and age structure of a 
stable sea lion population from the Gulf of Alaska, Calkins and 
Pitcher (1982) estimated total population size was 4.5 times the 
number of pups born. Some pups die and disappear before the counts 
are made and a few are born after the counts are conducted (Trites 
and Larkin 1996); because of this the researchers selected 5.1 as a 
correction factor. It should be emphasized that this is a very 
general estimate of population size as several factors can affect 
the accuracy of this correction factor. Sex and age structure and 
mortality and birth rates may vary over time and among populations 
and require different correction factors (NMFS 2008: I-6).

    The Department of Fisheries and Oceans Canada (DFO) discussed and 
acknowledged uncertainty in estimates of pup production and uncertainty 
associated with extrapolating total abundance from estimates of pup 
production (DFO 2008). To the extent that the actual demographic 
characteristics of a population deviate from those assumed for the 
purposes of estimation, error or biases may be introduced into the 
estimate. We discuss this issue further in the Status Review (NMFS 
2013a).
    At the time of finalization of the Recovery Plan (NMFS 2008), the 
analyses of trend data throughout the range of the eastern DPS provided 
in Pitcher et al. (2007) represented the best available data for the 
population overall and for many of the subareas. Based on the 
comprehensive eastern DPS range-wide survey conducted in 2002, Pitcher 
et al. (2007) estimated that about 11,000 pups were produced in the 
eastern DPS in 2002. They provided what they emphasized should be 
regarded as a general estimate of total abundance for this DPS of about 
46,000-58,000, noting that several factors can affect the accuracy both 
of the counts and of correction factors applied during estimation. In 
their estimate of pup production, upon which the estimate of total 
abundance is based, Pitcher et al. (2007:112) followed Trites and 
Larkin (1996) and added 10% to the pup counts, an adjustment they 
stated ``seems reasonable'' but which is ``subjective and arbitrary'' 
since the real adjustment likely varies both spatially and temporally. 
They used sensitivity analysis to delineate the possible range of 
changes in the correction factors and discussed biases in the estimates 
given certain assumptions regarding population productivity and growth. 
Pitcher et al. (2007) estimated that, for the 25-year period between 
1977 and 2002, overall abundance of the eastern DPS of Steller sea lion 
had increased at an average rate of 3.1% per year.
    New pup and non-pup count data since Pitcher et al.'s (2007) 
analyses are available from all portions of the range including 
southeast Alaska (DeMaster 2009), British Columbia (Olesiuk 2008; P. 
Olesiuk, pers. comm.), Washington State (S. Jeffries, unpublished 
data), Oregon (B. Wright and R. Brown, pers. comm.), and California 
(NMFS unpublished data). When these new data are added to Pitcher et 
al.'s (2007) time series of surveys, the interval over which we can 
assess population trends is lengthened, and confidence that the 
positive trend is real and sustained is increased.
    Johnson and Gelatt (2012) provided a new analysis of eastern DPS 
abundance trends from 1979-2010 using models for each subarea 
(southeast Alaska, British Columbia, Washington (non-pups only), 
Oregon, and California). Since the demographic recovery criterion 
described the growth of the sum of the subareas, but counts generally 
were not conducted in the same years, this analysis was developed to 
allow for the analysis of ``. . . growth trends of the abundance of an 
entire population when censuses have been conducted at disparate times 
on subpopulations with possibly differing annual rates of growth (or 
decline)'' (Johnson and Gelatt 2012:1). Their estimates of population-
wide growth rate, based upon pup counts, indicates that the eastern DPS 
increased from an estimated 18,313 animals in 1979 (90% confidence 
interval (CI): 16,247-20,436) to 70,174 animals in 2010 (90% CI = 
61,146-78,886). The estimated annual growth rate of the eastern DPS 
from 1979-2010 was 4.18% with a 90% CI of 3.71%-4.62%. The probability 
that the growth rate exceeded 3% was 0.9999 (Johnson and Gelatt 2012).
    Most of the overall increase in estimated population abundance from 
1970-2010 was due to increases in the northern portion of the range in 
southeast Alaska and British Columbia (first pup count used in analysis 
from 1982). However, data in Johnson and Gelatt (2012) indicate that 
pup counts in Oregon (at least since 1990) and California (at least 
since 1996) also increased. More detail is provided in Johnson and 
Gelatt (2012), the Status Review (NMFS 2013a), and elsewhere e.g., 
Fritz et al. 2008; Olesiuk 2008 pers. comm.; DeMaster 2009; NMML 2012).
    Based on non-pup count data, which include new count data provided 
by Washington (1989-2011), Oregon (1976-2008), DFO (1971-2010), NMFS 
(for southeast Alaska, 1979-2010), and California (1990-2011), the 
estimated annual growth rate for the eastern DPS as a whole from 1979-
2010 is 2.99% (90% CI = 2.62%-3.31%; see Figure 2 in Johnson and Gelatt 
2012).
    Thus, the estimated trends in abundance for the total eastern DPS 
indicate that the population increased at an annual rate of about 3% 
(based on estimated trends in non-pup counts) or more (based on 
estimates of population size from pup counts) between the late 1970s 
and 2010, a period of more than 30 years. Hence, despite uncertainty 
about the actual numbers of Steller sea lions in the eastern DPS, NMFS 
is confident about the magnitude and direction of the trend in 
abundance over this period. These data indicate that the demographic 
(or biological) recovery criterion specified in the Recovery Plan has 
been met.
    Goodman (2006) conducted an analysis of the extinction risk of the 
eastern DPS of Steller sea lion using two

[[Page 66144]]

series of data related to population trend: 1) 24 counts, conducted 
annually except for missing counts in 1978 and 1991, of non-pups from 
Oregon sites from 1977-2002, and 2) nine counts of pups at southeast 
Alaska sites from 1979-2002. Goodman concluded that probability of low 
growth rates is very small, and that if his working hypothesis to 
account for the observations was and continues to be true, the near and 
mid-term risks of extinction are very low. Since 2002, NMFS has 
undertaken additional aerial surveys of pups in southeast Alaska, 
generally on a biennial basis. The most recent pup counts available for 
consideration in this decision were conducted in 2009, and trends from 
these data are summarized in the Status Review (NMFS 2013a). These data 
show that the positive growth rates apparent at the time of Goodman's 
analysis have continued with a very strong upward trend in pup 
production in this region since 2002. Likewise, more recent data from 
Oregon show continued population growth. The final count for 2003 was 
anomalously high at 5,714 non-pups counted and, in that year, increases 
in non-pup numbers were seen at multiple locations throughout the 
state. The count for 2005 was incomplete due to poor weather. Counts 
for 2006 and 2008 indicate that the non-pup abundance trajectory 
generally follows the upward trend line depicted in Pitcher et al. 
(2007) (B. Wright, ODFW, pers. comm.; more details can be found in the 
Status Review (NMFS 2013a)). Based on the continued upward trend in 
both data sets, we concur with Goodman's conclusion that the risk of 
near-term and mid-term extinction is very low for this DPS.

Evaluation of the ESA Section 4(a)(1) Factors and Associated Recovery 
Criteria

    We reviewed the status of the eastern DPS in the context of the ESA 
listing factors and the associated criteria set forth in the Recovery 
Plan (NMFS 2008). Below we summarize information regarding the status 
of the DPS according to each of the ESA section 4(a)(1) factors and 
identify the steps taken by NMFS and others to accomplish recommended 
actions set forth in the Recovery Plan. More detailed information can 
be found in the Status Review (NMFS 2013a).

Factor A: The Present or Threatened Destruction, Modification, or 
Curtailment of a Species' Habitat or Range

    In the 2008 Recovery Plan, NMFS (2008a:VII-1) concluded that ``At 
present, the most likely threats'' ``are development, increased 
disturbance and habitat destruction, increases in magnitude or 
distribution of commercial or recreation fisheries, and environmental 
change.'' The Status Review identified the following residual and/or 
emerging potential future sources of threat under this factor: Global 
climate warming and ocean acidification; indirect fisheries 
interactions; coastal development and disturbance; toxic substances; 
and oil and gas development. We considered each of these threats based 
on information and analysis in the Recovery Plan (NMFS 2008) and 
updated in the Status Review (NMFS 2013a).
    Based on the available information, certain global warming and 
ocean acidification effects are likely already being manifested within 
the California Current Ecosystem and possibly other marine ecosystems 
in the eastern North Pacific, of which the eastern DPS of Steller sea 
lion is a part, and data indicate that ecosystems in the range of the 
eastern DPS will continue to be affected by these factors by the end of 
the century. The California Current System may be particularly 
vulnerable to climate change and ocean acidification effects. The 
northward shift of the range of this DPS may be, at least in part, a 
result of climate change. However, given the increasing population 
trends of the eastern DPS of Steller sea lion, the robust reproduction 
over a large range from Oregon to southeast Alaska, and the relatively 
large population size, the available information suggests that global 
warming and ocean acidification are not currently impeding this 
population's overall recovery or viability. In contrast, the best 
scientific and commercial data available indicate that global climate 
change is having, and will have, negative impacts on ice-dependent 
species, such as polar bears, ringed seals, and bearded seals.
    Global climate warming and ocean acidification pose a potential 
threat to Steller sea lions from potential food web alteration, direct 
physiological impacts on prey species, or more generally, due to 
changes in the composition, temporal and spatial distribution, and 
abundance of prey. If the underlying food webs are affected by ocean 
acidification and climate change, this DPS of Steller sea lions would 
also likely be affected. However, consideration of this issue is 
complicated by the rapidly evolving understanding of this complex 
threat, the uncertainty about how Steller sea lions might respond, and 
the inability to predict a response by the eastern DPS reliably within 
the foreseeable future. Clearly, the issue is not specific to Steller 
sea lions or their habitat. The magnitude and timing of ecological 
change in the different parts of the range of the eastern DPS from 
these two factors and, more importantly, the ways in which such change 
will affect the eastern DPS of Steller sea lion at the population 
level, are not yet predictable. Thus, while NMFS is concerned about 
multi-faceted adverse impacts of climate change and ocean acidification 
over the next 50-100 years on marine ecosystems of which this DPS is a 
part, based on the best scientific and commercial data available, we 
cannot accurately predict the impacts of these factors on the eastern 
DPS of Steller sea lions or their primary prey during this time period. 
Thus, in the absence of substantial information to the contrary, we 
conclude that global warming and ocean acidification are not likely to 
cause the eastern DPS of Steller sea lion to become in danger of 
extinction throughout all or a significant portion of its range within 
the foreseeable future.
    Numerous federal, state, and/or provincial commercial fisheries, 
recreational fisheries, and subsistence fisheries exist within the 
range of the eastern DPS of Steller sea lion. These include fisheries 
for salmon, herring, demersal shelf rockfish, ling cod, and black and 
blue rockfish in state waters of southeast Alaska; herring, hake, 
sardines, salmon, and groundfish in British Columbia; salmon and 
herring in state waters off Washington and Oregon; and groundfish along 
the U.S. west coast. Mechanisms by which fisheries can have indirect 
effects (e.g., nutritional stress) on Steller sea lions have been 
reviewed extensively in the scientific literature and in recent NMFS 
actions (e.g., 75 FR 77535; December 13, 2010). Given the sustained 
significant increases in non-pup abundance and increases in pup 
production of eastern DPS Steller sea lions concurrent with the ongoing 
prosecution of these fisheries, and given current and anticipated 
fisheries management procedures and regulatory mechanisms, there is no 
indication that fisheries are competing with eastern DPS Steller sea 
lions to the point where it constitutes a threat to the survival or 
recovery of the eastern DPS of Steller sea lions. Due to increasing 
numbers of Steller sea lions in some locations, and increasing numbers 
of California sea lions in others, the effects of competition with 
fisheries may increase in the future as the number of animals competing 
for the same prey increases or if there is habitat degradation or other 
factors that

[[Page 66145]]

lead to prey declines. However, given current information, we conclude 
the current management of those fisheries is not likely to cause the 
eastern DPS to become in danger of extinction within the foreseeable 
future throughout all or a significant portion of its range.
    Coastal development, tourism, industry, shipping, and human 
population growth may lead to more noise, human presence and other 
outcomes that increase disturbance of Steller sea lions on terrestrial 
sites or in the water, or to their prey. However, protections against 
such disturbance exist and will likely remain in place under a variety 
of state and federal statutes. Following delisting, significant 
regulatory mechanisms under the Marine Mammal Protection Act (MMPA) and 
other laws will provide a means to reduce or minimize possible adverse 
effects of disturbance from human activity. These mechanisms provide 
protections against human disturbance for Steller sea lions on coastal 
haulouts and rookeries, and in other habitats. The prohibitions and 
penalties related to ``take'' under the MMPA are particularly relevant 
(16 USC 1371(a)), as is our ability to require mitigation in 
authorizations of take incidental to other activities such as shipping, 
tourism, or coastal development. To authorize any such take, we must 
find that it will have no more than a negligible impact, which NMFS 
regulations define as ``an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival'' (50 CFR 216.103). In addition, we must 
prescribe permissible methods of taking, as well as other means of 
having the least practicable adverse impact on affected marine mammal 
stocks. We must also impose monitoring and reporting requirements. We 
conclude that there is no current evidence indicating that human 
disturbance of Steller sea lions on or near coastal habitats is likely 
to cause the eastern DPS of Steller sea lion to become in danger of 
extinction throughout all or a significant portion of its range within 
the foreseeable future.
    Toxic substances may adversely affect eastern DPS Steller sea 
lions, although much remains to be learned about the levels of a suite 
of contaminants, related physiological mechanisms, and the 
reproduction, health and survival consequences of such substances 
(Atkinson et al. 2008; Meyers et al. 2008; Barron et al. 2003). In the 
past two decades there has been an emerging understanding that 
contaminants, especially those that bioaccumulate and are persistent, 
can pose a risk to the reproductive success and health of marine 
mammals (e.g., Ross et al. 1995; Beckmen et al. 2003; Hammond et al. 
2005). Studies conducted in southern and central California (Sydeman 
and Jarman 1988; DeLong et al. 1973; Le Boeuf et al. 2002: Ylitalo et 
al. 2005; Blasius and Goodmanlowe 2006; and see Heintz and Barron 2001 
for review) have recognized the potential for adverse consequences of 
high levels of contaminants in pinnipeds in this more industrialized 
portion of their range. However, this potential for negative impacts is 
in contrast to the robust populations of some species of pinnipeds in 
these areas. Thus, while a body of literature on Steller sea lions and 
other pinnipeds suggests that toxic substances may have been a factor 
that adversely affected Steller sea lions in some parts of California, 
in most of the range of this DPS, if toxic compounds have affected 
reproduction or survival, the effects have not been sufficient to 
impede sustained recovery, and they have not been sufficient to impede 
the overall recovery of this DPS. While there is uncertainty concerning 
the potential for toxic substances to affect reproduction, survival, 
and population increase in the southern part of the range of this 
species, the best scientific and commercial data available do not 
indicate that toxic substances are likely placing this population in 
danger of extinction throughout all or a significant portion of its 
range or likely to become such within the foreseeable future.
    Oil and gas activity such as exploration, production, and 
transportation of petroleum products within the eastern DPS Steller sea 
lion range has the potential to adversely affect animals within this 
DPS due to disturbance or pollution in the event of spills. The most 
significant effects could result if repeated disturbances or a large 
spill were to occur near large rookeries. Large oil and fuel spills 
have occurred in the past in multiple locations within the range of 
this DPS. Based on current information, the risks posed by such events 
do not place this species in danger of extinction throughout all or a 
significant portion of its range or make it likely that it will become 
so within the foreseeable future.
    Based on the considerations for Factor A summarized above, and the 
additional information provided in the Status Review (NMFS 2013a), we 
conclude that the eastern DPS of Steller sea lion is not in danger of 
extinction throughout all or a significant portion of its range, nor 
likely to become so within the foreseeable future due to the present or 
threatened destruction, modification, or curtailment of its habitat or 
range.
    The Recovery Plan (NMFS 2008: VII-4) states that ``To provide 
assurance that delisting is warranted for'' this DPS, ``. . . threats 
to its habitat should be reduced as specified under this factor:
    1. Marine habitats, particularly in regard to prey populations, 
must be maintained through appropriate fisheries management and control 
of contaminants.
    2. Rookery and haulout sites need to be adequately protected 
(through state, federal, or private measures) to insure the continued 
use of these sites for pupping, breeding, attending young, and resting. 
Research and monitoring plans should be in place for all projects that 
have a high probability of negatively impacting sea lions in order to 
make sure that these activities do not result in harm to sea lions or 
their habitat.''
    We identified research and management programs in the Status Review 
(NMFS 2013a) that help to protect Steller sea lion habitat from adverse 
effects due to fisheries, coastal development, and other threats, as 
detailed above for Factor A and below for Factor D. We conclude the 
recovery criteria and recovery actions recommended under this listing 
factor have been accomplished and will continue to be accomplished on 
an ongoing basis.

Factor B: Overutilization for Commercial, Recreational, or Educational 
Purposes

    In the Recovery Plan, NMFS (2008:VI-3) summarized that prior to the 
MMPA there were both sanctioned and unsanctioned efforts by fishermen 
and others to control Steller sea lions in the United States, and the 
killing of sea lions by fishermen and others was commonplace. 
Additionally, in British Columbia, government control programs killed 
thousands of Steller sea lions on rookeries and haulouts from 1912 
through 1968 (Bigg 1985). By 1970, when sea lions were given protection 
in Canada, the population had been reduced by about 70%, and one 
rookery had been eliminated (Olesiuk 2001).
    Current documented sources of direct human-caused mortality of 
Steller sea lions include subsistence harvests, incidental takes in 
fisheries, illegal shooting, entanglement in marine debris, and take 
during scientific research. There are currently no commercial harvests 
or predator control programs in the United States in which Steller sea 
lions are authorized to be killed. Killing harbor seals and California 
sea lions at aquatic farms is

[[Page 66146]]

authorized by license in Canada, but lethal control of Steller sea 
lions has been prohibited in Canada since 2004. DFO (2010) noted that 
Steller sea lions could be shot as a result of being misidentified as 
either a harbor seal or California sea lion, but they assessed the 
current level of concern for this threat as negligible. Available 
information indicates that subsistence harvest rates remain very low 
and not likely to cause this population to become in danger of 
extinction within the foreseeable future throughout all or a 
significant portion of its range.
    While Steller sea lions are taken incidentally by commercial 
fisheries, the known mortality level from this source is relatively 
small compared to the species' potential biological removal (PBR). We 
are, however, uncertain about the actual levels of take of eastern DPS 
Steller sea lions in fisheries for a variety of reasons. Estimates of 
fishery-related mortality based on stranding data are considered 
minimum estimates, because not all stranded animals are observed or 
reported and not all entangled animals strand (Allen and Angliss 2011). 
Recent observer data are not available from many fisheries within the 
U.S. range. The number of Steller sea lions taken in Canadian waters is 
not known (Allen and Angliss 2011). On the other hand, we are not aware 
of any information to suggest that the numbers of eastern DPS Steller 
sea lions taken incidental to commercial fishing will increase 
appreciably within the foreseeable future. Thus, there is no evidence 
indicating that the estimated level of incidental take in commercial 
fishing is likely to cause the eastern DPS of Steller sea lion to 
become in danger of extinction throughout all or a significant portion 
of its range within the foreseeable future.
    Entanglement of Steller sea lions in packing bands, discarded 
fishing gear, rope, hooks, and flashers may be reported through the 
Marine Mammal Stranding Network, field studies, or by opportunistic 
sightings. Such entanglement can lead to serious injury and mortality. 
While we are concerned about entanglement and are working with the 
States and others to reduce it, we are not aware of data that indicate 
that effects from entanglement are likely to cause this species to 
become in danger of extinction within the foreseeable future throughout 
all or a significant portion of its range.
    While only minimum estimates of illegal take (e.g., shootings) of 
Steller sea lions are available, the estimated level of this illegal 
take is not likely to pose a threat to this population. Allen and 
Angliss (2012:19) reported that the minimum estimated U.S. commercial 
fishery-related mortality and serious injury for this DPS (17.0) is 
less than 10% of the calculated PBR (200) and, therefore, can be 
considered to be insignificant and approaching a zero mortality and 
serious injury rate. The estimated annual level of total human-caused 
mortality and serious injury is 45.8 for commercial and recreational 
fisheries, 11.9 for subsistence, and 1.4 for other human-caused 
mortality, for a total of 59.1. Thus, given the size of the population, 
the estimated levels of such take are unlikely to place this species in 
danger of extinction within the foreseeable future throughout all or a 
significant portion of its range.
    The Recovery Plan does not specify recovery criteria under this 
factor. Research and management programs are in place, or will be put 
in place post-delisting (e.g., in the PDMP), to monitor and regulate 
the threats identified under this factor. Consistent with the primary 
goals of the MMPA, these programs reduce the magnitude of the above 
types of takings. We will continue to monitor take in selected 
fisheries and will, as recommended in the Recovery Plan (NMFS 2008), 
work cooperatively with the States to implement observer programs and 
other means to identify, evaluate, and reduce levels of uncertainty in 
the estimates of incidental taking by commercial fishing.

Factor C: Disease, Parasites, and Predation

    In the Recovery Plan, NMFS (2008) concludes that no criteria are 
necessary to reduce disease or predation. The plan briefly discusses 
the parasites that have been found in eastern DPS Steller sea lions and 
states that although research is needed, there is no available 
information to suggest that parasitic infections are limiting 
population growth. The plan summarizes that, while Steller sea lions 
are taken by killer whales throughout their range, there is no 
indication that killer whale predation is outside normal levels 
expected in this population at their abundance level. NMFS (2008:VI-2) 
also notes that previous authors (Long and Hanni 1993) suggested that 
``. . . white shark predation could impede recovery of Steller sea 
lions in California if the number of sea lions declines further and the 
shark population continues to increase.'' There is no new information 
since the Recovery Plan indicating a greater threat from predation. We 
conclude that predation is not limiting recovery (NMFS 2008, 2013a).
    With respect to disease, the Recovery Plan (NMFS 2008:VI-4) states: 
``Whereas exposure to many disease agents has been identified in 
Steller sea lions, little is known about the disease agents themselves 
or how they may impact the sea lion populations, and no evidence has 
been found of disease limiting population growth.'' Based on the 
information available at that time, NMFS (2008) stated that the 
diseases known to occur in this DPS appear to be limited to those 
endemic to the population and they are unlikely to have population 
level impacts.
    New information indicates that the threat of exposure to novel 
disease vectors is higher now than was known at the time the Recovery 
Plan was completed. This increased threat is due to the documented 
infection and exposure of Steller sea lions to at least one infectious, 
and possibly pathogenic, virus (phocine distemper virus (PDV), which 
may be novel to them (Goldstein pers. comm. and unpublished data; see 
also Goldstein et al. 2009); the emergence and/or the detection of 
other disease agents infecting other species of marine mammals within 
their range (e.g., toxoplasmosis; Conrad et al. 2005); increased 
crowding at some rookeries that may result in increased incidences of 
density-dependent related disease (e.g., as Spraker et al. (2007) have 
suggested for the hookworm/bacteremia complex in California sea lions); 
and climatic and oceanic changes that may enhance the probability of 
Steller sea lion exposure to novel disease agents (e.g., Lafferty and 
Gerber 2002).
    The marine environment of the eastern North Pacific is changing and 
is likely to change in the future due to global warming and related 
changing ocean conditions (see section on Climate Change and Ocean 
Acidification). There is growing understanding of ways in which climate 
change, other environmental change, and stress may increase disease 
risk. Lafferty and Gerber (2002) concluded that key threats to 
biodiversity, such as climate change, resource exploitation, pollution, 
and habitat alteration can affect the transmission of an infectious 
disease; introduced pathogens can make abundant species rare; 
conditions that cause stress may increase susceptibility to disease; 
cross-species contact may increase transmission; and pathogens are of 
increasing concern for conservation. Climate change can lead to shifts 
in the range of the eastern DPS of Steller sea lion or in the range of 
other species. Such range shifts increase the likelihood that Steller 
sea lions will be exposed to novel disease agents (e.g., Lafferty and 
Gerber 2002; Goldstein et al. 2009a). The entry of PDV into the North 
Pacific may have

[[Page 66147]]

occurred due to global warming (Goldstein 2009b). Archived samples 
(primarily from animals in the Aleutians and Prince William Sound) from 
Steller sea lions collected since 2001 tested positive across several 
locations and sampling years (T. Goldstein, unpublished data). Goals of 
current research include determining how widespread PDV is in Steller 
sea lions across their range and whether this viral infection may be 
affecting the health of Steller sea lions (T. Goldstein, pers. comm.). 
Studies of pinnipeds in the North Atlantic indicate the effects of 
exposure to PDV have ranged from large scale epidemics in Atlantic 
harbor seals to no detectable population impacts in other species 
(e.g., see Dietz et al. 1989, Heide-Jorgensen et al. 1992; Harding et 
al. 2002; Jensen et al. 2002; H[auml]rk[ouml]nen et al. 2006). 
Additional information on this virus and other novel disease agents 
that have been detected within the range of the eastern DPS is provided 
in the Status Review (NMFS 2013a).
    We conclude that the risk of disease to eastern DPS Steller sea 
lions is likely higher than was known at the time of the Recovery Plan, 
and it is likely to increase over time due to increased crowding and, 
especially, due to the emergence of novel disease vectors. The 
available information available, however, does not indicate that 
disease is causing population-level effects in the eastern DPS, either 
alone or in combination with other threats. We recognize the need to 
continue to test and monitor for the presence of novel and potentially 
threatening disease agents and have included disease surveillance and 
parasite studies as components of the PDMP (NMFS 2013b). Through 
established programs such as Marine Mammal Stranding Networks and 
ongoing collaborative research, routine sampling to monitor the 
occurrence of PDV and other diseases will continue, and appropriate 
responses (e.g., Unusual Mortality Event response) to critical events 
(e.g., a disease epidemic) will be implemented if the need arises.

Factor D: The Inadequacy of Existing Regulatory Mechanisms

    To fully evaluate the adequacy of existing regulatory mechanisms, 
we considered the existing protections in light of identified threats 
discussed in Factors A through E. The MMPA establishes a moratorium on 
the taking and importation of marine mammals and marine mammal 
products, with some exceptions. Under the MMPA, the term ``take'' means 
to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, 
or kill any marine mammal. It provides a variety of existing regulatory 
measures designed to protect marine mammals from unauthorized 
harassment and other forms of take, ensure that the population stocks 
do not diminish beyond the point at which they cease to be a 
significant functioning element in their respective ecosystems, and 
ensure stocks do not fall below their optimum sustainable population 
levels. The MMPA also provides mechanisms to permit some types of take 
through a regulated process, including a process for incidental taking 
that is aimed at ensuring that the taking is small in number, has a 
negligible effect on the affected marine mammal population, and 
minimizes adverse effects on the population and its habitat to the 
least practicable level. The MMPA will continue to provide protection 
to the eastern DPS Steller sea lion to help ensure that it can remain a 
fully functioning part of the marine ecosystem. In addition, provisions 
of the MMPA provide mechanisms to protect the habitat of the eastern 
DPS against certain kinds of threats, should they emerge.
    The location of key terrestrial and aquatic habitats of the eastern 
DPS of Steller sea lions within state and federal parks and marine 
protected areas (e.g., Oregon Islands National Wildlife Refuge, Olympic 
National Park, Farallon Islands National Marine Sanctuary, Three Arch 
Rocks National Wildlife Refuge) offers additional protections for the 
eastern DPS of Steller sea lions. These additional protections vary but 
some are primarily focused on reducing or avoiding disturbance of the 
animals when they are hauled out. More details are provided in the 
Status Review (NMFS 2013a).
    Federal regulations and management plans established by the 
government of Canada provide protection for eastern DPS Steller sea 
lions and their habitat in that country (e.g., Marine Mammal 
Regulations of the Fisheries Act). The United States and Canada 
cooperate on research and monitoring (such as in the planning and 
sometimes the execution of aerial surveys) necessary for detecting 
declines in status such that steps could be taken, if needed, to ensure 
the long term health and well-being of this population within Canadian 
waters.
    A number of other federal and state statutes, including the Clean 
Water Act, National Marine Sanctuaries Act, and Magnuson-Stevens 
Fishery Conservation and Management Act will continue to provide 
protection to wildlife and habitat and will likely help facilitate the 
continued growth and stability of this population. The relationship of 
these other federal statutes to Steller sea lions is discussed in more 
detail in the Status Review (NMFS 2013a).
    To address and fulfill aspects of Factor D, the Recovery Plan (NMFS 
2008) enumerated two recovery criteria:
    (1) Agreement is reached with the State of Alaska which describes 
their fishery management plan, minimizes the take of Steller sea lions, 
and describes how future actions taken by the State will comport with 
the ESA and MMPA.
    (2) A Steller sea lion recovery coordinator is on staff at NMFS.
    During the process of conducting this Status Review, NMFS and the 
Alaska Department of Fish and Game met to discuss how, in the event the 
eastern DPS of Steller sea lion is delisted, future State actions will 
minimize the take of Steller sea lions in accordance with the MMPA. The 
State of Alaska provided correspondence that describes state fishery 
management plans, maintains that existing practices followed by the 
State with respect to fisheries management have minimized the take of 
eastern DPS Steller sea lions and will continue to do so, and explains 
the State's perspective on how such fishery management practices will 
contribute to continued recovery of the eastern DPS and will continue 
to comport with all aspects of the MMPA for the foreseeable future. 
NMFS agreed (Balsiger 2012) that the described plans and management 
actions satisfy the recommended delisting action.
    NMFS has a Steller sea lion recovery coordinator on staff. This 
satisfies the second recommended recovery criterion under this listing/
delisting factor.
    Therefore, NMFS concludes that the actions identified under Factor 
D in the Recovery Plan have been met. Based on the considerations for 
Factor D, we conclude that the protections afforded by existing 
regulatory mechanisms make it unlikely that the eastern DPS will become 
in danger of extinction within the foreseeable future throughout all or 
a significant portion of its range.

Factor E: Other Natural or Manmade Factors Affecting Its Continued 
Existence

    Beyond those threats discussed above, the Recovery Plan (NMFS 2008) 
did not identify other threats that need to be considered under Factor 
E. Based on information and analysis in the 2008 Recovery Plan and the 
Status Review (NMFS 2013a), we find that there are no other factors 
likely to cause the eastern DPS of Steller sea lions to become in 
danger of extinction within the

[[Page 66148]]

foreseeable future throughout all or a significant portion of its 
range.
    With respect to Listing Factor E, the 2008 Recovery Plan specified 
that the following criteria should be achieved and accomplished in such 
a way that delisting is not likely to result in re-emergence of the 
threat:
    1. An outreach program is established to educate the public, 
commercial fishermen and others to the continued need to conserve and 
protect Steller sea lions.
    2. An Alaska stranding network is in place and functional.
    Both NMFS and the Alaska Department of Fish and Game have outreach 
programs devoted to Steller sea lion conservation and management in an 
effort to educate commercial fishermen and the general public about the 
ongoing need to protect and conserve Steller sea lions. Various forms 
of outreach activities are conducted for the public, commercial 
fishermen, Alaska Native organizations, and others (Web pages, 
trainings, classroom presentations, videos, bumper sticker campaigns, 
interpretive displays, etc.). The NMFS Alaska Region and West Coast 
Region have Marine Mammal Stranding Programs, and the stranding network 
is operational. More detail on both outreach and stranding efforts are 
provided in the Status Review (NMFS 2013a). Based on this information, 
we conclude that the recovery criteria specified under this listing/
delisting factor have been met.

Conservation Efforts

    Prior to making a decision regarding the appropriate listing status 
of a species, NMFS is required under section 4(b)(1)(A) of the ESA to 
consider the efforts of any State, foreign nation, or political 
subdivision of a State or foreign nation to protect the species. Such 
efforts also include measures by Native American tribes and 
organizations, private organizations and local governments. Under 
provisions of the ESA and our Policy on the Evaluation of Conservation 
Efforts (68 FR 15100; March 28, 2003), we are required to identify the 
conservation efforts, evaluate the certainty of implementing them, and 
evaluate the certainty that the conservation efforts will be effective. 
Our basis for evaluating effectiveness should include consideration of 
whether the effort or plan establishes specific conservation 
objectives, identifies the necessary steps to reduce threats or factors 
for decline, includes quantifiable performance measures for monitoring 
compliance and effectiveness, incorporates the principles of adaptive 
management, and is likely to improve the species' viability at the time 
of the listing determination.

Canadian Efforts To Conserve the Eastern DPS of Steller Sea Lion

    We have considered efforts by Canada to conserve the eastern DPS of 
Steller sea lion. These are discussed elsewhere (e.g., Alaska Fisheries 
Science Center (AFSC) 2011; NMFS 2013a), and we summarize them here. In 
January 2011, Canada finalized a Management Plan for the Steller sea 
lion. The DFO (2011:32) specified two management goals for the plan:
     To ensure that anthropogenic threats from Canadian sources 
do not cause unsustainable population declines or a contraction of the 
current range or number of breeding sites in Canada.
     Support for, and contribution to, an environment where 
research and monitoring of Steller Sea Lions in British Columbia 
contributes to achieving an improved global knowledge of the Eastern 
Pacific Population.
    The Management Plan articulates historical and current status; 
ecological needs; the history of management in Canada; knowledge gaps; 
management goals and assessment of threats; population and distribution 
objectives for management; research and monitoring objectives; and 
needed management, research, monitoring, and outreach and 
communication. Hence, Canadian managers have developed a detailed 
framework to guide their management of this species. Both the process 
of developing such a framework and the existence of the framework 
itself helps focus attention on Steller sea lion status and increases 
the probability that high priority tasks needed to conserve this 
species are accomplished. The AFSC (2011) concluded that the current 
conservation and management plan for Steller sea lions in Canada 
provides protections similar to the protection measures provided by the 
MMPA.

Tribal Efforts To Conserve the Eastern DPS of Steller Sea Lion

    NMFS collaborates with tribal entities on eastern DPS Steller sea 
lion conservation. These include outreach activities undertaken by The 
Alaska Sea Otter and Sea Lion Commission (TASSC, an Alaska Native 
Organization) and research and monitoring efforts undertaken by the 
Makah Tribe (Makah 2012). The Makah Tribe provided data and other input 
at multiple stages of the development of the Status Review and the 
PDMP. The Makah Tribe has operated a Marine Mammal Program to research 
marine mammals since 2003 and had previously assisted marine mammal 
studies conducted by NOAA since 1996. The tribe has gathered data on 
the seasonal patterns of haulout use of Steller sea lions in 
Northwestern Washington and collected data on the resightings of 
branded Steller sea lions to contribute to NOAA and Oregon Department 
of Fish and Wildlife life history studies. Both TASSC and the Makah are 
listed as Regional Collaborators in the PDMP (NMFS 2013b).

State Efforts To Conserve the Eastern DPS of Steller Sea Lion

    Conservation efforts by the States have facilitated the recovery of 
the eastern DPS and will continue to provide protection and monitoring 
following delisting. Alaska, Oregon, and Washington have active 
research programs that provide vital information about status, 
movements, threats, and ecology. In some cases, States have taken 
action specifically to address identified threats. For example, in 
their petition to delist this species the Oregon Department of Fish and 
Wildlife (ODFW) and Washington Department of Fish and Wildlife (WDFW) 
(2010:4, August 30, 2010) stated: ``In the late 1990s the Oregon State 
Marine Board implemented a boat closure area around one of the more 
important haul-out and rookery areas on the north coast of Oregon to 
minimize disturbance.'' They also stated that ODFW ``has established 
closures to sport fishing and commercial urchin harvest near the most 
important rookery rocks on the south coast also to minimize 
disturbance, particularly during the breeding season.'' In the Status 
Review (NMFS 2013a), we detail many of the Steller sea lion related 
outreach activities undertaken by the State of Alaska. Much of the 
outreach to date has focused on Steller sea lion ingestion of gear and 
entanglement in marine debris. State institutions, such as Oregon State 
University, Washington Department of Fish and Wildlife, Humboldt State 
University, and Alaska Department of Fish and Game participate as part 
of the stranding networks in their region. The Alaska Department of 
Fish and Game is an active participant in the Alaska Pinniped 
Entanglement Group, a collaborative effort between the Alaska 
Department of Fish and Game, NMFS, the Aleut Community of St. Paul, and 
others concerned about entanglement in marine debris.

Federal Efforts To Conserve the Eastern DPS of Steller Sea Lion

    Current Federal conservation efforts for the eastern DPS of Steller 
sea lion (other than those conducted under the

[[Page 66149]]

ESA) include monitoring, management, assessment, and enforcement under 
the MMPA; federally sponsored and conducted research on Steller sea 
lions, their habitat, and their prey; cooperative efforts with Alaska 
Native subsistence hunters; outreach; stranding response and reporting; 
and oil spill coordination. Multiple federal agencies in addition to 
NMFS play roles in this species' conservation, including the National 
Park Service (NPS), the USFWS, and NOAA National Marine Sanctuaries. 
Existing federal regulatory actions are discussed under Factor D and in 
the Status Review and are not repeated here.

Evaluation of Potential Significant Portions of the Range

    As part of our Status Review, after considering the status of the 
eastern DPS of Steller sea lions throughout its range, we also 
considered whether portions of the range of the eastern DPS qualified 
as significant portions. Our first step in this evaluation was to 
identify any portions of the range of the DPS that warrant further 
consideration. We focused on those portions of the range where there is 
substantial information indicating that (i) the portions may be 
significant (i.e., if a portion's contribution to the viability of the 
species is so important that, without that portion, the species would 
be in danger of extinction either currently or within the foreseeable 
future) and (ii) the species may be in danger of extinction there or 
likely to become so within the foreseeable future (76 FR 77002; 
December 9, 2011).
    As noted in the proposed rule to delist the eastern DPS of Steller 
sea lions (77 FR 23209; April 18, 2012), we initially identified only 
one portion of the eastern DPS's range that warranted further 
consideration: The southern portion of the range in California. We 
specifically considered whether the southern portion of the range in 
California constituted an SPR because the Recovery Plan indicated that 
there was concern over the performance of rookeries and haulouts in 
this portion of the range, especially in contrast to the growth 
observed in southeast Alaska. Following the receipt of public comments 
on the proposed rule, we also evaluated population, genetic, 
ecological, and other relevant information to determine whether either 
the portion of the range within California or the portion of the range 
within the California Current Ecoregion constitutes an SPR of the 
eastern DPS.
    We evaluated the abundance of Steller sea lions within California, 
their productivity, movements, habitat use, and new information on 
their genetic characteristics to determine whether the California 
portion of the eastern DPS range is so significant that without that 
portion, the long-term viability of the entire DPS would be so impaired 
that the species would be in danger of extinction, either currently or 
within the foreseeable future. The history of the species following its 
protection indicates that this is not the case. Despite losing 
rookeries in California, poor pup production at the Farallon Islands, 
and the fact that the overall statewide population is about one-third 
of the numbers present in the first half of the century, the overall 
non-pup trend, as assessed by non-pup counts, for the trend sites 
within the State of California from 1990-2011 has been stable. Further, 
pup production in California has increased at about 2.9% per year from 
1996-2011. While we do not fully understand the causes of poorer 
performance of Steller sea lions in California compared to the rest of 
the DPS, these data indicate that they are not in decline. More 
importantly, the overall population recovery has met or exceeded the 
demographic recovery criterion. Increases in numbers throughout much of 
the rest of the DPS began ten to fifteen years before abundance began 
to increase in California. Thus, available information does not support 
a conclusion that the California population's contribution to the 
viability of the eastern DPS is so important that, without that 
portion, the eastern DPS would be in danger of extinction now or in the 
foreseeable future. Therefore, we have concluded that California does 
not constitute an SPR.
    With regard to whether the California Current ecosystem constitutes 
an SPR, NMFS finds that the evidence is equivocal, as discussed further 
in the Status Review (NMFS 2013a). However, regardless of whether the 
California Current portion of the range is an SPR, Steller sea lions 
within the California Current portion of the range do not meet the 
definition of a threatened or endangered species under the ESA. This 
conclusion is based on trend information presented in the Status Review 
and on the fact that no threats sufficient to impede the recovery of 
the population now or within the foreseeable future were identified. In 
other words, if NMFS assumes that the California Current portion is an 
SPR, NMFS does not find that Steller sea lions are in danger of 
extinction there or likely to become so within the foreseeable future. 
The underlying trend information on pups (for California and Oregon) 
and non-pups (for California, Oregon and Washington) is provided in the 
Status Review (NMFS 2013a). The threat information is provided in the 
Status Review (NMFS 2013a) and summarized above under our consideration 
of the five factors that must be considered in listing decisions (see 
``Evaluation of the ESA Section 4(a)(1) Factors and Associated Recovery 
Criteria'').

Summary of Public Comments and Responses

    We solicited information and public comment during formulation of 
the Status Review, following publication of our findings regarding the 
petitions to delist, and following publication of the proposed rule. 
The first comment period of 60 days followed our initiation of the 5-
year status review of the eastern DPS of Steller sea lion under the ESA 
(75 FR 37385, June 29, 2010; 75 FR 38979, July 7, 2010). On August 31, 
2010 (75 FR 53272), we reopened the public comment period for an 
additional 45 days. To ensure that the Status Review was comprehensive, 
we again solicited scientific and commercial information regarding this 
species for 60 days following the release of our 90-day finding on the 
two petitions to delist the eastern DPS (75 FR 77602, December 13, 
2010). Lastly, we solicited public comment for 60 days following the 
release of the proposed rule, draft Status Review, and draft PDMP. As 
described more fully below, we also solicited peer review of these 
documents during the public comment period from seven scientists, four 
of whom provided a review. All four scientists were outside of the U.S. 
Federal government. Three had expertise on pinniped ecology, and one 
had expertise on climate change impacts on marine ecosystems.
    During the most recent public comment period NMFS received 1,144 
comments relevant to the proposed action. Comments were submitted by 
individuals; government agencies; fishing groups; environmental and 
animal rights organizations; tribal entities; and professional 
scientific societies. The comments raised numerous substantive 
scientific, policy, and legal issues. Some submissions provided 
relevant new information for NMFS's consideration. Many comments were 
complex and had multiple facets, and thus some individual statements 
are addressed in multiple comments and responses below. Most of the 
individual commenters were opposed to the delisting. NMFS also received 
a petition opposing the delisting with hundreds of signatures.

[[Page 66150]]

    We fully considered all comments received from the public and peer 
reviewers in developing this final determination to delist the eastern 
DPS of Steller sea lion. Summaries of the substantive public and peer 
review comments that we received on the proposed rule and our responses 
to all of the significant issues they raise are provided below. We made 
a number of changes to our analysis, the Status Review, and the PDMP in 
response to comments received and we note those changes in our 
responses.

Comments on Regulatory Process and Legal Issues

    Comment 1: A commenter stated that when a species reaches the level 
to warrant being delisted, delisting should occur as the law intended. 
The commenter stated that delisting the eastern DPS of Steller sea 
lions would be an important step in demonstrating that the ESA process 
of listing and delisting species is functioning as Congress intended.
    Response: We agree that species that do not meet the definition of 
threatened or endangered should not be listed. We are delisting the 
eastern DPS of Steller sea lion because we have concluded that the best 
scientific and commercial information available indicates that it is no 
longer endangered or threatened.
    Comment 2: The State of Alaska stated that recovery does not mean 
that all threats to a species have been eliminated but rather that 
threats have been ``controlled.'' Citing a 2001 court case, they 
further commented that recovery is ``the process that stops or reverses 
the decline of a species and neutralizes threats to its existence.'' 
They concluded that recovery represents the point at which a species is 
no longer declining and threats to its survival have been controlled or 
neutralized, but not necessarily eliminated. They concluded that all 
the relevant requirements for delisting the eastern DPS of the Steller 
sea lion have been satisfied.
    Response: The ESA implementing regulations (50 CFR 424.12) state 
the following about recovery: ``The principal goal of the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service is to return 
listed species to a point at which protection under the Act is no 
longer required. A species may be delisted on the basis of recovery 
only if the best scientific and commercial data available indicate that 
it is no longer endangered or threatened.'' Based on our analysis of 
such information, we have concluded that this is the case for the 
eastern DPS of Steller sea lion, and that is why we are delisting it.
    Comment 3: A few commenters expressed concern about NMFS's reliance 
upon, and the quality of, data cited by the States of Washington and 
Oregon in their petition regarding the trends in Steller sea lion 
abundance in those two states, which commenters stated was not 
submitted to NMFS and/or peer reviewed; the fact that NMFS cited and/or 
relied on these assertions or data in the status review; and the fact 
that the public was not permitted to review the data or information. A 
commenter cited a court case indicating that in order to enable 
meaningful public comment, an agency must make relevant information 
known to the public in a concrete and focused form so as to make 
criticism or formulation of alternatives possible.
    Response: The petition to delist this DPS submitted by the States 
of Washington and Oregon referred to unpublished count data that add an 
additional 6 years to the data presented in Pitcher et al. (2007), who 
presented data to 2002. Washington and Oregon did not, however, provide 
those survey data with the petition. Rather, they included the data in 
summary forms. For example, the petition included a figure showing non-
pup counts in Oregon from 1976-2008 and indicated that the counts for 
2006 and 2008 had not been finalized. Subsequently, in June 2011, 
Washington provided NMFS with count data from 1988-2008. The 
information provided included the raw counts for each site, log 
transformed data for each date, and two figures, one of which was 
reproduced in the draft status review as Figure 3.5.4. After NMFS 
published the proposed rule, Washington provided further data, 
including counts through 2011. Similarly, in 2011 and 2012, Oregon 
provided count data for 2003, 2005 (incomplete), 2006, and 2008. 
Johnson and Gelatt (2012) included these newer data sets from 
Washington and Oregon in their analysis of total DPS abundance trends 
and of trends in non-pups. We have revised sections of the Status 
Review (NMFS 2013a) related to the trends in abundance in Washington 
and in Oregon to incorporate the additional data and to clarify the 
timing and receipt of the additional data. The proposed rule relied on 
all the data available to NMFS at the time we published the propose 
rule, some of which was in summary form. We incorporated the 
subsequently available data into the final rule and Status Review but 
did not republish the proposed rule, because that data merely 
corroborated the trends set forth in the proposed rule and draft Status 
Review.
    Comment 4: A commenter stated that Washington and Oregon are 
primarily focused on what they perceive to be problems posed by the 
recovery of the eastern DPS. The commenter noted that these so-called 
``negative interactions'' are not grounds for delisting the DPS, and 
that any decision to delist a species must be based solely on the 
biological needs of the species and not the interests of fishermen or 
other industry interest.
    Response: We agree that factors that the commenter refers to as 
``negative interactions'' are not a basis for delisting a species. A 
species may be delisted on the basis of recovery only if the best 
scientific and commercial information available indicates that it is no 
longer endangered or threatened after consideration of factors 
specified in section 4 of the ESA.

Comments Relevant to DPS and SPR Issues

    Comment 5: A commenter stated that NMFS has made the correct 
determination to delist the whole eastern DPS because the population 
unit being protected is the genetically distinct eastern DPS rather 
than individual rookeries within the eastern DPS. Citing Bickham 
(2010), they stated that genetic studies have found no evidence of 
stock structure within the eastern DPS that might warrant separate 
management of the southern portion of the range from the rest of the 
eastern DPS.
    Response: We agree that it was appropriate to consider the status 
of the eastern DPS as it is currently recognized. NMFS evaluated 
available information about genetic variability, movements, habitat 
use, ecosystem and ecoregion variability throughout the range, 
subspecies designation, and other factors related to determining 
whether there are smaller DPSs within the eastern DPS of Steller sea 
lion. We concluded that the best available information indicates that 
there are not such discrete subunits, and thus, we focused our 
evaluation of status on the DPS as it was described in 1997.
    Comment 6: Multiple commenters asserted that the proposed rule to 
delist failed to conduct a proper DPS analysis. The Marine Mammal 
Commission (MMC) commented that NMFS should base its delisting decision 
on the status of the eastern stock as a whole and also on the status of 
potential units of conservation significance within the eastern stock. 
They stated that the status review should consider whether any grouping 
of sea lions within the eastern

[[Page 66151]]

stock might warrant recognition as a DPS for listing purposes. Multiple 
commenters stated that NMFS should consider whether the portions of the 
eastern stock of Steller sea lions that occupy the Alaska Current and 
California Current ecosystems are sufficiently discrete and significant 
for Steller sea lions in those areas to warrant separate consideration 
under the ESA, i.e., whether Steller sea lions within the California 
Current System (which they defined as California, Oregon, and 
Washington) comprise a California Current System DPS based on the best 
available science. The MMC recommended that NMFS delist the eastern DPS 
and retain threatened status for a newly designated California Current 
DPS. Other commenters argued that NMFS should list a California Current 
DPS. A commenter stated that NMFS should consider protecting the 
California portion of the range as a separate DPS or retain the listing 
for the entire DPS. Commenters provided evidence to support the 
recognition and continued protection of a California DPS or California 
Current DPS based on differences in population status, ecology, and 
threats. Commenters provided information regarding different ecoregions 
and/or ecosystems within the range of the eastern DPS. A commenter 
noted that NMFS appears to have considered establishing a DPS for the 
California population, but rejected doing so because ``there is no 
genetic basis to further subdivide the California portion from the 
eastern DPS in its entirety.'' A commenter stated that the proposed 
rule only considered genetic measures of discreteness for the 
California portion rather than the full suite of physical, 
physiological, ecological, or behavioral factors as required by the DPS 
policy. Citing the proposed rule, the commenter stated that the 
analysis is limited to one brief statement in the draft Status Review: 
``Recently completed genetic studies have resolved the lingering 
question of relatedness, establishing that the southern California 
portion of the population is not a separate `valid DPS' (Bickham 
2010a).'' A commenter pointed out that genetic distinctiveness is but 
one possible rationale for establishing a DPS; it is not a legal 
requirement for every DPS unit. The commenter stated that the failure 
to consider other factors for establishing a California Current DPS is 
not consistent with the NMFS's own policy regarding DPS units.
    Response: As described more fully in the Status Review (NMFS 
2013a), we explicitly considered whether the best available information 
still supported the recognition of the eastern DPS of Steller sea lion, 
as currently recognized as a single DPS--i.e., we determined whether it 
met the criteria for discreteness and significance as outlined in the 
DPS Policy (61 FR 4722; February 7, 1996). We concluded that it does. 
As explained in AFSC (2011), this conclusion is based on an extensive 
body of research that includes sea lion population genetics, ecology, 
behavior, and details regarding the physical and physiological 
characteristics of the species.
    In response to comments received at various stages of our 
evaluation process, we also explicitly considered whether either the 
population segments of Steller sea lions that breed within the 
California Current System or in California met the DPS criteria. While 
there is extensive ecological variability within the breeding range of 
the eastern DPS, we did not find compelling evidence of consistent or 
marked separation among different segments within the eastern DPS of 
Steller sea lion. The best available evidence indicates that Steller 
sea lions that breed in northern California, southern Oregon, and 
Washington are not markedly separated from Steller sea lions in British 
Columbia and southeast Alaska as a consequence of physical, 
physiological, ecological, or behavioral factors. We did not find 
persuasive evidence that indicated that some segments of the eastern 
DPS are discrete from the other portions of the DPS. The best available 
evidence about genetic patterns, morphology, ecological characteristics 
of habitat, movement patterns, etc. also does not indicate that Steller 
sea lions in California are discrete from those in the rest of the 
eastern DPS. After consideration of the information available to us at 
the time of the release of the draft Status Review and that provided to 
NMFS during public comment on the proposed rule, we did not find it 
appropriate to further subdivide this DPS.
    Comment 7: Two scientific organizations commented that there are 
not sufficient genetic differences between populations of Steller sea 
lion in California compared to the remainder of the eastern DPS to 
warrant designation of a DPS unit based solely on that criterion. 
However, they stated that because adaptive potential is a hedge against 
unknown future changes in environment, and most genetic variation 
contributes incrementally to adaptive potential, it is difficult to 
identify a strict threshold as to how much diversity is enough for any 
species. They cited Carroll et al. (2010) as concluding that, given 
this inherent uncertainty, geographic distribution across ecosystems 
may be a more practical surrogate for direct analysis of genetic 
viability. They stated that an additional benefit of properly 
considering the representation of Steller sea lions within an ecoregion 
unit is that ``a species [that] is well distributed throughout its 
historic range (i.e., securely occupies all but an insignificant 
portion of its range) will generally correspond with the conditions 
necessary for genetic viability.''
    Response: We considered the information in Carroll et al. (2010) as 
part of our DPS analysis. We note that in the case of the Steller sea 
lion, there are multiple studies of patterns of genetic variation from 
multiple locations throughout the range of the eastern DPS and the 
western DPS on which to evaluate underlying genetic structure within 
and between the DPSs. These data are directly relevant to evaluating 
the discreteness of population segments within the DPS. Thus, NMFS did 
not require the use of a surrogate for direct analysis of genetic data 
but rather relied on multiple studies in which such direct analysis was 
undertaken.
    Comment 8: Two scientific organizations commented that the approach 
of using a species' presence in an ecoregion is a valid rationale for 
protecting that portion of a species as a DPS unit, and that this 
rationale appears to have been used by NMFS in some situations such as 
in its protection of the Atlantic sturgeon (Acipenser oxyrinchus) under 
the ESA. They stated that a similar analytical approach should be used 
for delineating a California Current DPS of the Steller sea lion. The 
commenter stated that analyzing the threats to a species at the 
ecoregion or ecosystem unit level is consistent with multiple listing 
actions by NMFS and USFWS.
    Response: In order to be recognized as a DPS, a population segment 
must be both ``discrete'' and ``significant'' as discussed in the joint 
USFWS and NMFS DPS Policy (26 FR 4722; February 7, 1996). The DPS 
Policy states that a ``population of a vertebrate species may be 
considered discrete if it satisfies either one of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation) or (2) it is 
delimited by international governmental boundaries within which

[[Page 66152]]

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.'' Once the 
discreteness criterion is met for a potential DPS, we then evaluate 
whether the significance criterion is met.
    With respect to the recognition of Atlantic sturgeon DPSs, we 
relied on tagging data and genetic analyses, which demonstrated 
ecological separation of populations during spawning, as evidence of 
marked separation or ``discreteness'' of certain populations (77 FR 
5880, 77 FR 5914; February 6, 2012). We subsequently considered several 
lines of evidence, including persistence in unique ecological settings, 
as support for the ``significance'' of each of the potential DPSs to 
the taxon as a whole.
    There is variation in the ecological characteristics of marine 
habitats within the range of the eastern DPS of Steller sea lions and 
several different schemes have been designed to describe and classify 
this variability. Thus, commenters are correct that ecological 
variability exists in this range, and we agree that ecoregion and/or 
ecosystem differences in various parts of the range may be useful when 
evaluating the discreteness of portions of a species. However, as noted 
by some commenters, including those supporting recognition of a 
California Current DPS, the best available genetic data within the 
range of the eastern DPS of Steller sea lion do not support the 
delineation of a California or California Current DPS. While we 
considered ecoregion and ecosystem variation throughout the range of 
the eastern DPS, we did not find consistent compelling evidence of 
marked discontinuity or separation between segments of the population 
that breed at rookeries within these different ecoregions. Further, we 
note that, based on Spalding et al.'s (2007:574-575) biogeographic 
classification scheme, the entire historic and breeding range of the 
eastern DPS falls within the Temperate North Pacific Realm and the 
entire current breeding range falls within the Cold Temperate North 
Pacific Province. Spalding et al. (2007) stated that provinces are 
``Large areas defined by the presence of distinct biotas that have at 
least some cohesion over evolutionary time frames . . . Although 
historical isolation will play a role, many of these distinct biotas 
have arisen as a result of distinctive abiotic features that 
circumscribe their boundaries . . . In ecological terms, provinces are 
cohesive units likely, for example, to encompass the broader life 
history of many constituent taxa, including mobile and dispersive 
species . . .''. Based on the genetic and movement data of eastern DPS 
Steller sea lions, it would appear that the ecological province does 
encompass the broader life history of this DPS. This supports the 
continued recognition of the eastern DPS as a single, discrete entity.
    As stated in the DPS Policy, persistence of a species in a unique 
ecological setting is a factor that can be considered in determining 
the significance of discrete subunits of a species. Because we did not 
find sufficient evidence indicating that there were discrete subunits 
within the eastern DPS of Steller sea lion, we did not address the 
issue of significance of any potential non-discrete subunits.
    Comment 9: A commenter noted that with respect to DPS units, USFWS 
has repeatedly determined that a gap at the end of a species' range is 
a valid reason for finding significance under the DPS policy. The 
commenter stated that court rulings have pointed out that in other 
listing rules, USFWS has interpreted the term `gap' to include the loss 
of peripheral populations. The commenter stated that NMFS has used 
similar reasoning in protecting several species under the ESA (e.g., 
the Cook Inlet beluga whale and the southern DPS of spotted seals). The 
commenter stated that the loss of the southern population of Steller 
sea lion would represent a similar gap in the range of the species as a 
whole, and therefore it warrants protection under the ESA.
    Response: As noted in the previous response, based on the DPS 
Policy (26 FR 4722; February 7, 1996), in a DPS analysis, if a 
population segment is determined to be discrete in relation to the 
remainder of the species to which it belongs, then its significance to 
the species is determined. NMFS did not find compelling evidence 
indicating that a California or California Current subunit of the 
eastern DPS meets the discreteness criterion of the DPS Policy. Thus, 
evaluation of the significance of these subunits is moot in the context 
of a DPS analysis. By contrast, for Cook Inlet beluga whales and 
spotted seals we had information indicating that there were discrete 
populations, and thus evaluation of the significance of those 
populations was relevant (see 65 FR 34590; May 31, 2000 and 75 FR 
65239; October 22, 2010).
    Comment 10: A commenter stated that NMFS should use its authorities 
under section 4(d) of the ESA to craft a flexible management regime for 
Steller sea lions to provide continuing protections of the ESA where 
needed, while providing regulatory flexibility. Two commenters stated 
that NMFS should issue a special rule for the eastern DPS to allow 
certain limited kinds of take, under permit by the agency, and 
supported by science, such as take authorized under the MMPA, without 
violating the ESA. The commenters stated that this management tool is a 
more prudent course of action than delisting the entire eastern DPS.
    Response: Based on the evaluation presented in the Status Review 
and summarized in this final rule, NMFS has concluded that the eastern 
DPS no longer meets the definition of a threatened or endangered 
species and warrants delisting. Since we cannot adopt management 
measures under section 4(d) of the ESA for a species that is no longer 
listed as threatened, we cannot pursue the regulatory measures 
described by the commenter. We note, however, that the species will 
still be protected under the MMPA.
    Comment 11: A commenter noted that Steller sea lion biologists have 
provided evidence supporting the potential subdivision of the DPS and 
the maintenance of protections for what they termed ``southern Steller 
populations.'' The commenter cited findings from Hastings and Sydeman 
(2002) that differences in trends between rookeries in southeast Alaska 
and those in Canada, Oregon, and California may indicate that these 
areas deserve separate management considerations and that because 
significant declines in Steller sea lions have occurred at San Miguel 
Island, A[ntilde]o Nuevo Island, and the South Farallon Islands, 
greater monitoring and protection are warranted.
    Response: Section 3 of the ESA defines a ``species'' to include 
``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' Something must qualify as a ``species'' to 
be listed and protected under the ESA. As noted above, we did not find 
compelling evidence indicating there are population segments within the 
eastern DPS that meet the definition of a DPS.
    With regard to the contention of differences in trends among 
rookeries in different parts of the range, we note that the only 
portion of the range in which the best available data indicate that 
there has not been a sustained increase in non-pup numbers is in 
California, where the overall trend in non-pup counts has been stable 
for the past two decades. Pup and non-pup trend data do not indicate 
that a subset of the population within Canada, Washington, Oregon, and 
California should warrant

[[Page 66153]]

different management than southeast Alaska. NMFS has included elements 
in the PDMP to monitor threats throughout the range and to determine if 
the poor performance of the species in parts (but not all) of its 
historic and current range in California spreads northward.
    Comment 12: A commenter stated that scientific evidence and 
Congressional guidance supports a decision not to delist the eastern 
DPS of Steller sea lions and instead to reintegrate the two DPSs into a 
single species. This commenter contended that this reintegration of the 
Steller sea lion taxon is supported by trends strongly suggesting that 
the two DPSs are merging geographically and genetically, as well as 
Congressional guidance that the authority to list DPSs be used 
sparingly.
    Response: We disagree that the weight of scientific evidence 
supports reintegrating the eastern and western DPSs. Genetic data, 
subspecies assignment based on genetics and morphology, population 
trends, and ecological differences in vast parts of the range continue 
to support the recognition of the eastern and western DPSs. Although 
recent data in the far northern part of the eastern DPS indicate 
movement of some western DPS females into the area east of 144 [deg]W 
longitude (Jemison et al. 2013), this mixed part of the breeding range 
remains small. The findings represent what may be an evolving 
relationship between the DPSs (Jemison et al. 2013). However, at 
present, we conclude that the weight of evidence supports the continued 
recognition of the eastern and western DPSs.
    Comment 13: Multiple commenters stated that NMFS did not properly 
interpret the phrase ``significant portion of its range'' (SPR) in the 
ESA definitions of ``endangered'' and ``threatened.'' Commenters stated 
that NMFS applied the flawed criteria of the draft SPR Policy by 
determining that a portion of a species' range would be significant 
only if delisting that portion would place the entire species at risk 
of extinction in the future. Multiple commenters recommended that NMFS 
analyze whether the Steller sea lions in the California Current System 
(which they defined as California, Oregon, and Washington) constitutes 
an SPR of the eastern DPS, particularly because none of the 
``populations'' meets the demographic or threats-based delisting 
criteria. They stated that NMFS should retain the listing for the 
entire eastern DPS based on threats to a California Current System SPR. 
A commenter stated that California represents a significant portion of 
the species' range, the species remains threatened there, and delisting 
is premature and does not meet the best available information mandate 
within the ESA. Commenters indicated that for these reasons, the 
eastern DPS warrants continued protection under the ESA. Multiple 
commenters also stated that the eastern stock occupies two major 
ecosystems formed as the North Pacific Current approaches western North 
America and splits into the Alaskan Current flowing northward and the 
California Current flowing southward. Relatedly, multiple commenters 
summarized that the offshore waters of California, including the 
California Current (and one commenter indicated also the Southern 
California Bight), represent ecological regions that are distinct from 
those farther north. Multiple commenters stated that the California 
Current, including the Southern California Bight, represents a logical, 
science-based ecoregion in which to assess the viability of the Steller 
sea lion. Commenters maintained that the California Current region 
clearly meets a threshold of geographic significance since it covers 
roughly half of the range of the eastern DPS. They stated that this 
productive upwelling ecoregion also meets a threshold of biological 
significance.
    Response: We will respond to comments on the SPR Policy in the 
final decision regarding the draft policy. As indicated above, in this 
rulemaking, we consider the draft SPR Policy to be non-binding 
guidance. In making our determination to delist the eastern DPS, we 
reconsidered information on patterns of genetic variability, movement 
patterns, ecosystem and ecoregion classification, and other relevant 
information to determine whether either the portion of the range within 
California or the portion of the range within the California Current 
ecoregion constitutes an SPR of the eastern DPS. We concluded that 
California does not constitute an SPR. In reaching this conclusion, we 
evaluated the abundance of Steller sea lions in California, their 
productivity, and their diversity to determine whether the California 
portion of the eastern DPS range is so significant that without that 
portion, the long-term viability of the entire DPS would be in danger 
of extinction, either currently or within the foreseeable future. We 
also evaluated whether the California Current portion of the range is 
an SPR. As we discuss in more detail in the Status Review, based on the 
concepts of representation, redundancy, and resiliency, consideration 
of the demographic consequences of the loss of the California Current 
portion of the range to the overall population, and consideration of 
what the loss of that entire segment of the range would indicate about 
the presence of substantial and uncontrolled threats within the DPS, we 
found that there were arguments for and against the contention that the 
California Current portion of the range is an SPR of the eastern DPS. 
With respect to the recommendation that NMFS retain listing for the 
entire eastern DPS based on threats to a California Current SPR, we 
concluded that regardless of whether the California Current portion of 
the range is an SPR of the eastern DPS of Steller sea lion, that 
determination would not change the conclusion of the Status Review 
because Steller sea lions within the California Current portion of the 
range do not meet the definition of either a threatened or endangered 
species under the ESA. If the final SPR Policy differs materially from 
the draft policy considered here as non-binding guidance, we will 
consider whether any subsequent action with respect to the eastern DPS 
is appropriate.
    Comment 14: A commenter expressed concern with NMFS's assessment 
that the Steller sea lion ``has recently shown a positive trend'' in 
California. Commenters stated that while there may be a slight increase 
in pup production in California, data from the draft Status Review show 
no increase in non-pups. A commenter stated that while data from the 
draft Status Review indicate that the eastern DPS has met the recovery 
targets for delisting in Alaska, British Columbia, and possibly 
Washington and Oregon, the data do not demonstrate that recovery 
targets for the eastern DPS have been met in California. Steller sea 
lions were extirpated from the Channel Islands in the 1980s and remain 
well below their historic population levels. The commenter said that 
Steller sea lion populations in California have at best remained stable 
for the last 15 years, but remain at approximately one-third the level 
that the population represented in the first half of the 20th century. 
Another commenter stated that counts used in the proposed rule for the 
California portion of the eastern DPS combine the counts for the entire 
state into a single estimate rather than more appropriately considering 
the southern portion separately.
    Response: NMFS acknowledges there are parts of California where 
Steller sea lions have not recolonized (e.g., San Miguel Island), and 
others where performance has been poor (the Farallon Islands), even 
with protection from

[[Page 66154]]

disturbance and direct take. Since the draft Status Review, additional 
new data have become available regarding trends in non-pups in 
California. Regression analyses of non-pup count data from 1990-2011 
show an average rate of change over that period of 0.0% in California. 
Thus, commenters are correct that non-pup data from California in the 
past couple of decades have not shown an increase and the number of 
Steller sea lions in California remains low compared with their 
abundance in the first half of the 20th century. We have clarified this 
in the Status Review and in this final rule and have considered this 
fact in our findings about the status of the eastern DPS. Based on 
regression analysis, there has been an average annual increase of 2.9% 
from 1996-2011 in California pup counts. As discussed in the Status 
Review (NMFS 2013a), our overall estimation of total population 
abundance is based on expansion from pup count data. Pup counts have 
shown a positive annual rate of change throughout all four breeding 
subareas of the range: California, Oregon, British Columbia, and 
southeast Alaska. Elsewhere in the range of this DPS, Steller sea lions 
have established new breeding sites and recolonized some of the old 
ones. Overall, the performance in California does not negatively affect 
the viability of the entire population to the point where it places the 
population in danger of extinction now or within the foreseeable future 
and it has not impeded robust increases in many other parts of the 
range of this DPS. Lastly, we reiterate that the Recovery Plan does not 
specify biological recovery criteria for subareas. Evidence indicates 
that the DPS, as a whole, has met the biological recovery criterion.
    Comment 15: A commenter stated that the flat growth rate in the 
southern part of the range may presage additional losses to come in 
other rookeries used by the eastern DPS.
    Response: Goodman's (2006) extinction risk analysis for the eastern 
DPS noted the importance of monitoring to detect any northward 
extension of the area in California in which the counts of pups and/or 
non-pups did not increase and/or in which the pattern of increase has 
been inconsistent or weak. Thus, NMFS included monitoring in the PDMP 
specifically to determine if there is a northward spread of the kinds 
of poor performance seen in parts (e.g., the Farallon Islands) of 
California.

Comments on Listing Factors and Threats

    Comment 16: A number of commenters stated that all five factors in 
section 4(a) of the ESA must be met in order to ensure the species is 
protected and its long-term conservation is ensured.
    Response: We agree that the five listing factors must be considered 
in a decision about the appropriate ESA listing status of a species and 
we consider them, as discussed herein and in the Status Review (NMFS 
2013a).
    Comment 17: A few commenters who expressed support for the proposed 
delisting noted that human-related serious injury and mortality is 
likely well below the potential biological removal level, population 
growth observed over the past three decades provides strong empirical 
evidence that the eastern stock as a whole has met the biological 
recovery goal set forth in the Recovery Plan (NMFS 2008), and delisting 
appears to be consistent with the factors specified in section 4(a)(1) 
of the ESA.
    Response: We agree that delisting appears to be consistent with the 
factors specified in the ESA.
    Comment 18: A commenter criticized the measures by which NMFS 
evaluated threats, stating that major threats were not properly 
considered. The commenter asserted that five major areas of negative 
impact likely to affect the eastern Steller sea lions were dismissed 
from consideration because NMFS claims none would lead to the 
extinction of the DPS in the foreseeable future. The commenter 
identified these five threats as global climate warming and ocean 
acidification, indirect fisheries interactions, coastal development and 
disturbance, toxic substances, and oil and gas development. The 
commenter stated that using this measure (of whether each area of 
negative impact would lead to the extinction of the DPS) has the effect 
of considering only the good news and none of the bad. Many commenters 
expressed their concern that not all of the listing factors have been 
given proper consideration, are adequately addressed, or have been 
adequately met to ensure the species' conservation after the 
protections of the ESA are removed. Multiple individuals and 
organizations commented that delisting is not warranted because the 
proposed rule does not adequately evaluate and/or consider threats to 
the eastern DPS, such as global climate warming and ocean 
acidification, indirect fisheries interactions, coastal development and 
disturbance, toxic substances, oil and gas development, overfishing, 
loss of food sources, encroachment into habitat, disease, and 
predation.
    Response: We reviewed and revised the Status Review in response to 
these comments. We considered both positive information concerning 
Steller sea lions as well as information about emerging and/or residual 
threats, including the threats cited by the commenters. We supplemented 
and/or revised some sections related to threats.
    Comment 19: One commenter stated NMFS should wait at least two 
years and then re-evaluate the status of this DPS. Another commenter 
stated that Steller sea lion populations in California, Oregon, and 
Washington face significant ongoing threats to their existence. A 
commenter asserted that Steller sea lions in California, Oregon, and 
Washington do not meet the delisting criteria and face ongoing threats.
    Response: NMFS acknowledges that there are some residual threats 
and potential emerging threats that may have adverse effects on eastern 
DPS Steller sea lions. We discuss these in the Status Review and 
elsewhere in this final rule. We have designed a PDMP to monitor such 
residual threats and potential emerging threats over 10 years following 
delisting. However, based on the strong performance of the population 
over an extended period of time despite the presence of these residual 
threats, NMFS concludes that there are not population-level threats 
that render this species in danger of extinction throughout all or a 
significant portion of its range or likely to become so within the 
foreseeable future.
    Comment 20: The USFWS at the Farallon National Wildlife Refuge 
commented that the causes of the decline of the Farallon colony are 
uncertain. Contaminant studies in the early 1990s revealed elevated 
levels of organochlorines and trace metals such as mercury and copper 
that may have impacted reproduction. Disease, declines in prey 
availability and competition with increasing numbers of other pinnipeds 
(e.g., California sea lions) also may have contributed to declines and 
lack of recovery of this colony.
    Response: We appreciate the substantial additional information 
provided by the refuge and its collaborators. We incorporated a summary 
of this information into the Status Review.

Comments on Factor A: Present or Threatened Destruction, Modification, 
or Curtailment of Its Habitat or Range

    Comment 21: Multiple commenters stated that there are future 
threats to this population from climate change. The MMC commented that 
climate-related habitat degradation is one of the leading hypotheses to 
explain the loss of Steller

[[Page 66155]]

sea lion rookeries in California, and Steller sea lions may be shifting 
their distribution northward as the climate warms and alters the marine 
ecosystem off California. The NPS at Point Reyes stated that future 
climate change impacts are likely to affect the population at the 
southern end of species' ranges, and that they hope NMFS takes these 
points into account. One commenter wrote that since the short and long-
term effects of climate change are at best unclear, it is not prudent 
to delist any endangered or threatened species. A commenter noted that 
numerous studies have documented climate-change-related shifts in the 
California Current Ecosystem that threaten food availability for the 
Steller sea lion. The commenter stated that the decline in the southern 
end of the range is consistent with the northward range shifts observed 
for many marine and terrestrial species in response to climate change. 
A commenter stated that, although only south-central California 
populations appear to be experiencing population declines at present, 
Steller sea lions across the California Current system from California 
to Washington are vulnerable to continuing changes and likely declines 
in habitat suitability as oceanic conditions continue to affect the 
California Current and breeding habitat may further contract. A 
commenter stated that Steller sea lions in the southern portion of the 
eastern DPS are under significant stress that is not necessarily 
confined to areas where growth rates are flat and rookeries are already 
lost. This commenter stated that the changing oceanic conditions in 
California warrant greater concern for the southern portion of the 
eastern DPS.
    Response: We agree that effects of climate change, especially in 
the southern part of the range, are a concern. We discussed the 
emerging, climate-change related threats in the Status Review and 
considered them in our delisting decision. Due to the specific ecology 
of the Steller sea lion, including the facts that it is not ice-
dependent or associated and is a generalist forager, we conclude that 
at present the magnitude and timing of effects from climate change on 
Steller sea lions and the ecosystems of which they are a part are 
highly uncertain over the foreseeable future. We have included 
monitoring in the PDMP related to these potential threats so that we 
can respond as appropriate.
    Comment 22: A commenter stated that given the increased 
recreational visitation to the California coast, human disturbance may 
play a significant role in the decline of southern Steller sea lions. 
An example of this is the increase in boaters at the Sea Lion Rocks. A 
commenter wrote that eastern DPS rookeries are remote with little 
direct human contact, in addition to enjoying multiple layers of 
statutory protections. The areas are very much the same now as they 
were pre-listing and are expected to remain the same for many years. 
Food resources are abundant and no concerns have ever been identified 
in this region with regard to a deficit in prey for Steller sea lions.
    Response: We have repeatedly acknowledged and highlighted the high 
vulnerability of Steller sea lions to disturbance. We recognize that 
terrestrial habitats where Steller sea lions are undisturbed are 
important to the conservation of Steller sea lions. We share concerns 
that increased recreational use of the coast in some areas could become 
a problem. However, it is also the case that most eastern DPS rookeries 
continue to provide excellent habitat for Steller sea lions, and we 
included measures in the PDMP to monitor population performance, human 
activities, and the status of terrestrial habitats. These measures will 
facilitate our efforts to determine if future disturbance is resulting 
in population-level effects. We emphasize that the protections of the 
MMPA will remain in place following delisting. As discussed elsewhere, 
the MMPA established a moratorium on take of marine mammals with some 
exceptions. As take includes harassment, unauthorized disturbance of 
Steller sea lions for a purpose not covered by an exception to the 
moratorium is illegal under the MMPA.

Comments on Factor B: Overutilization for Commercial, Recreational, 
Scientific, or Education Purposes

    Comment 23: A commenter noted that, in its petition to delist the 
DPS, Alaska documents only 20 mortalities of eastern Steller sea lions 
from subsistence hunting. The commenter pointed out that this is based 
on data that is approximately 15 years old.
    Response: While we considered the information in the two petitions 
to delist this DPS, we did not rely exclusively on that information to 
evaluate the listing status of this species. In the Status Review (NMFS 
2013a), we provide data for estimated subsistence takes of Steller sea 
lions by Alaska Natives between 1992-2008. This represents the best 
available information on subsistence harvest in Alaska. Data from 
southeast Alaska, within the breeding range of this DPS, indicate that 
the take has increased since the Recovery Plan was written but remains 
low relative to the size of the population. While we have some 
uncertainty about actual numbers of animals killed by subsistence 
hunters, there is no indication that subsistence hunting is having an 
adverse population level effect on the eastern DPS of Steller sea 
lions, or that it is likely to have such an effect within the 
foreseeable future.
    Comment 24: A commenter stated that some would have the public 
believe that commercial fishermen are nearly single-handedly 
responsible for the decline of sea lions, either incidentally or 
intentionally. This commenter stated that southeast Alaska is home to 
more permit holders and fisheries than any other area on the West 
Coast, and the Steller sea lion population there has never been 
depleted. A commenter expressed support for the proposed delisting and 
stated that he hoped that the agencies will stop highlighting takings 
by commercial fishermen as a top cause of decline in Steller sea lion 
abundance. The commenter pointed out that many past practices with 
negative effects on sea lions were not a result of fishermen's actions: 
Shooting by public officials in California, bounties placed on sea 
lions by some management agencies, commercial harvests, etc.
    Response: Available evidence indicates that illegal and legal 
shooting associated with fisheries was a source of mortality 
historically, probably of varying degrees of magnitude and importance, 
in many parts of the range. Available data (e.g., Raum-Suryan et al. 
2009; Raum-Suryan unpublished report) indicate that fishery-related 
entanglement in marine debris is also currently a problem in multiple 
parts of the range of this species. Hence, it is important for NMFS to 
consider and accurately portray the available evidence related to the 
potential levels and importance of fishery-related take, and the levels 
of uncertainty related to estimating that impact. However, as noted by 
the commenter, Steller sea lions have demonstrated a sustained recovery 
in southeast Alaska, an area with considerable commercial fishery 
activity. We reviewed our discussion of historic factors and current 
threats in the Status Review in response to this comment to ensure that 
we accurately portray the magnitude of known take in fisheries versus 
the likely effects of other factors.
    Comment 25: The MMC commented that the eastern DPS of Steller sea 
lions is not used to any significant degree for commercial, 
recreational, scientific, or educational purposes and these types of 
activities are not known to pose a significant risk to the population. 
In Alaska, they are killed for subsistence purposes and the best 
available

[[Page 66156]]

information indicates a total annual harvest (including those shot but 
not recovered) from the eastern DPS (U.S. waters only) of about a dozen 
sea lions.
    Response: We agree. In the status review, we acknowledge some 
uncertainty about the actual level of mortality associated with illegal 
takes and subsistence hunting, due in part to the vast and remote range 
within which these animals live, and also due to the fact that our 
knowledge of the level of subsistence hunting depends on retrospective 
voluntary surveys, which have not been conducted range-wide since 2008. 
The Status Review summarizes available information on annual 
subsistence harvests. There is no indication that these takes are 
having an adverse population level effect on the eastern DPS of Steller 
sea lions, or that they are likely to have such an effect within the 
foreseeable future.
    Comment 26: A commenter noted that the 2008 Recovery Plan 
identified overutilization as the primary reason for the listing of the 
eastern DPS of Steller sea lions under the ESA and this view is 
reinforced by the discussion in the draft Status Review that concluded 
``the main factor limiting Steller Sea Lions along the west coast of 
North America was predator control . . .'' The commenter indicates that 
NMFS provided an inadequate consideration of this factor, and of the 
sufficiency of regulatory mechanisms to prevent a recurrence of 
overutilization.
    Response: We reviewed the portion of the Status Review (NMFS 2013a) 
that discusses overutilization in response to this comment. The general 
take moratorium in the MMPA, and the findings that NMFS is required to 
make before authorizing take under the MMPA, should provide adequate 
protections against the threat of predator control in the future in the 
U.S. portion of the range of Steller sea lions. Protections against 
overutilization also exist in British Columbia, as discussed in the 
Status Review (NMFS 2013a).
    Comment 27: A commenter stated that while the agreement in the 
draft Status Review (Appendix 2) between NMFS and the State of Alaska 
regarding monitoring of the eastern DPS of Steller sea lions asserts 
that Alaska has no state-managed fisheries that are of concern, both 
the draft Status Review and the 2011 NMFS marine mammal stock 
assessment (Allen and Angliss 2011) document numerous fisheries 
(including gillnet fisheries) that use gear types known to entangle and 
kill pinnipeds.
    Response: We acknowledge the apparent discrepancy in these 
statements. The draft Status Review summarized that ``Four Alaska 
state-managed fisheries have been observed to cause serious injury or 
mortality to eastern DPS Steller sea lions (Alaska southeast salmon 
drift gillnet, Alaska Gulf of Alaska sablefish longline, Alaska 
commercial passenger fishing vessel, and Alaska salmon troll).'' We 
also discuss the issue of fisheries-related entanglement in the Status 
Review. We summarized that the best available information supports a 
conclusion that while Steller sea lions are taken incidental to 
commercial fishing, the known mortality level from this source is 
relatively small compared to the PBR.
    Comment 28: A commenter stated that NMFS's stock assessment for 
this DPS states that no records of fishery related mortality are kept 
in Canada, so the level of mortality from incidental take or shooting 
at aquaculture facilities is unknown. A related comment indicated that 
the absence of monitoring for lethal interactions is not the same thing 
as having monitoring data confirming the absence of interactions. 
Citing a study by Credle et al. (1994), the commenters stated that 
self-reporting by fishermen is generally a grossly inaccurate 
underestimate.
    Response: We agree that it is important to clarify when we have 
data sufficient to evaluate lethal interactions (or other threats) and 
when we have no data, few data, or outdated data on which to base our 
evaluation of the threat. Since this is not the only potential threat 
to which this comment is relevant, we broadly re-evaluated our 
discussion of threats in the Status Review with this same point in 
mind. Lastly, we considered the information provided by the Credle et 
al. (1994) reference in our evaluation of fishery interactions. 
However, despite the lack of data regarding actual levels of incidental 
take or shooting at aquaculture facilities in Canada, Steller sea lions 
in Canada have demonstrated a robust and sustained recovery.
    Comment 29: Hundreds of commenters urged NMFS not to delist this 
population due to their concern that a delisting will be followed by 
programs to kill Steller sea lions to reduce predation of fish at the 
Bonneville Dam on the Columbia River. Citing a recent increase in 
illegal killing in the Pacific Northwest, some commenters also 
expressed concern that delisting will be followed by an increase in 
illegal killing, especially if a Steller sea lion predator control 
program is initiated at Bonneville Dam.
    Response: Following delisting, the Steller sea lion will continue 
to be protected against take under the MMPA. However, section 120 of 
the MMPA (16 USC 1389(a)) provides that a State may apply to the 
Secretary to authorize the intentional lethal taking of individually 
identifiable pinnipeds which are having a significant negative impact 
on the decline or recovery of salmonid fishery stocks which: (a) Have 
been listed as threatened species or endangered species under the ESA; 
(b) the Secretary finds are approaching threatened species or 
endangered species status (as those terms are defined in that Act); or 
(c) migrate through the Ballard Locks at Seattle, Washington. Hence, 
following delisting, the States of Washington and/or Oregon may apply 
to lethally and intentionally remove individually identifiable eastern 
DPS Steller sea lions which are having a significant negative impact on 
the decline or recovery of salmonid fishery stocks. If such an 
exemption were granted and the authorized level of taking relative to 
the population were similar to that previously authorized for 
California sea lions at the site, the level of take would not cause the 
eastern DPS of Steller sea lions to become in danger of extinction 
within the foreseeable future throughout all or a significant portion 
of its range. We note the concern regarding potential related increases 
in illegal shooting that may be prompted by state control efforts. We 
are also concerned about the increase over the last four years in the 
level of reported illegal shootings of Steller sea lions in the Pacific 
Northwest. Per the PDMP, we intend to monitor to detect any substantial 
increases in illegal takes, and we intend to investigate any such 
illegal takes.

Comments on Factor C: Disease or Predation

    Comment 30: The MMC noted that Steller sea lions in the eastern 
stock are preyed upon by transient killer whales and large sharks, but 
the existing information does not indicate that the influence of 
predation has increased or changed in any significant way. They stated 
that the significance of killer whale predation on the eastern stock is 
not controversial.
    Response: We agree that the impact of killer whale predation has 
not changed and is not controversial.
    Comment 31: Several commenters referred NMFS to two studies by 
University of Oregon researchers, one of which they alleged shows that 
loss of nonhuman predators throws an ecosystem off balance and the 
other they assert has documented increased predation of sea lion pups 
by orcas and other large predators. A commenter stated that the number 
of Steller sea lion females to make it to breeding age may decline as 
predation on juveniles

[[Page 66157]]

continues and that NMFS needs to take these findings into consideration 
in its threats analysis. Commenters stated that a more extensive study 
must be conducted before delisting this species to ensure that the sea 
lions can sustain their numbers. A commenter stated that the eastern 
DPS should not be delisted until long-range data are collected and 
evaluated on sea lion predation.
    Response: We agree that the Steller sea lion is an important marine 
predator. Other large marine predators, such as orcas, are also 
important functioning components of the marine ecosystems of which 
Steller sea lions are a part. Predation on Steller sea lions is a 
natural phenomenon, and the recovery of the eastern DPS occurred in the 
presence of such predation. We have no information to suggest that 
mortality due to orcas or other large predators is likely to reverse 
that recovery in the foreseeable future.
    Comment 32: The MMC stated that the eastern stock is exposed to a 
variety of diseases, as are all marine mammal populations, and that the 
physical changes occurring in marine ecosystems (e.g., rising water 
temperatures) may increase the risk of disease if sea lions are newly 
exposed to pathogens or parasites that may have expanded or shifted 
ranges. They concluded that the evidence to date does not reveal any 
such cases, but exposure to new pathogens is difficult to detect and 
often manifested in episodic disease events that are, by their very 
nature, difficult to predict beforehand and diagnose afterward.
    Response: Recent published findings (Goldstein et al. 2009) 
indicate that some potential disease agents may have expanded or 
shifted their range, resulting in an increased risk of disease to the 
eastern DPS since the time of the Recovery Plan. We revised and updated 
the section of the Status Review pertaining to disease to be clear 
about what we know about Steller sea lion exposure and infection 
disease agents, and the PDMP includes provisions to monitor for disease 
outbreaks.
    Comment 33: A commenter stated that there has been inadequate 
consideration given to the potential spread of parasites and diseases 
as rookeries become more densely occupied. The commenter said the role 
of hookworm and herpes virus in the health and viability of Steller sea 
lions was not properly considered in the draft Status Review. The 
commenter believes that the draft Status Review failed to consider the 
possible magnitude of health threats that are likely to increase with 
the increasing density of habitat use in some areas. They stated that 
diseases that occur at lower levels in more sparsely populated 
rookeries can dramatically increase with increasing density and could 
pose a threat to the eastern DPS. Individual commenters and 
organizations provided comments related to the potential threat to 
Steller sea lions from viruses that may cause miscarriages or other 
adverse effects. A commenter noted that the draft Status Review does 
not discuss a possible threat to Steller sea lions on increasingly 
dense rookeries from the spread of a herpes virus that can cause cancer 
and premature death in sea lions, and the potential impact from this 
disease is also not considered in the proposed delisting. Another 
commenter pointed NMFS to a news article that suggested that samples 
from four dead, aborted fetuses revealed that they were killed by a 
virus. The commenter stated that the news article indicated that a 
relatively rare virus is being looked at as to the cause of an 
unusually high number of premature births in Steller sea lions around 
Kodiak Island. The commenter stated that the discovery that sea lion 
miscarriages may be caused by a virus weighs against delisting the 
eastern DPS.
    Response: We have considered the information presented in these 
comments and have revised the portion of the Status Review and final 
rule related to the potential threat posed by disease to more fully 
discuss the information about the incidence of herpes virus in 
California sea lions in the North Pacific Ocean. Additionally, we 
revised the Status Review (NMFS 2013a) to correct errors and to update 
the best available information related to phocine distemper virus. We 
are aware of the four miscarriages that were detected in the Kodiak 
Archipelago in 2012 and the active research on samples from recovered 
fetuses. In the Status Review (NMFS 2013a), we concluded that the risk 
of disease to eastern DPS Steller sea lions is likely higher than was 
known at the time of the Recovery Plan and is likely to increase over 
time due to increased crowding and, especially, due to the emergence of 
disease vectors that may be novel to this species. However, the 
temporal and spatial pattern of the occurrence of new disease vectors, 
Steller sea lion exposure to known and new disease vectors, and the 
potential health effects at the individual and population levels from 
particular disease agents are uncertain and difficult, if not 
impossible, to predict. Such uncertainty and lack of foreseeability 
regarding disease risk are not unique to the eastern DPS of Steller sea 
lions. More importantly, available information does not indicate that 
disease is causing population-level effects in the eastern DPS, such 
that alone, or in combination with other threats, this factor is likely 
to result in the species becoming in danger of extinction within the 
foreseeable future throughout all or a significant portion of its 
range. The foreseeable future for this threat factor is limited by our 
present understanding of the health risks from some of these disease 
agents necessary to be able to predict their likely future effect. We 
recognize the need to continue to test and monitor for the presence of 
novel and potentially threatening disease agents and we included such 
monitoring into the PDMP (NMFS 2013b).
    Comment 34: A commenter noted that the draft Status Review cites a 
study by Richmond (2007) that reported hematocrit levels were lower in 
Steller sea lions in southeast Alaska and recommended additional study 
of the importance of this factor. The commenter highlighted that the 
draft Status Review did not report that this same study found that 
lower hematocrit levels are often found in animals that are hookworm-
infested, and that preliminary research suggested that greater than 50% 
of Steller sea lions aged two to three months had hookworm in southeast 
Alaska. The commenter noted that the draft Status Review cited a 2010 
study by Rea showing higher levels of stress proteins in eastern DPS 
Steller sea lions than western DPS, which may be affiliated with a high 
prevalence of hookworm parasites in the eastern DPS where animals are 
crowded. The commenter summarized that there is apparently no 
information at all that can confirm a conclusion that disease or 
parasitism are not problems.
    Response: We have considered this information in our decision and 
we revised our discussion of disease and parasitism in the Status 
Review to be clearer about what we know, what uncertainties we have, 
and what the potential risks are. Available data indicate that eastern 
DPS Steller sea lions are naturally exposed to many parasites and they 
probably always have been (NMFS 2008). Based on available data 
discussed above, the prevalence of at least some parasites, such as 
hookworm, may increase with crowding. This kind of density-dependent 
phenomenon is normal and inherent in the recovery of this species 
(e.g., they are now so numerous on some rookeries that we may see 
effects of crowding). Monitoring for parasites is a component of the 
PDMP. Based on a review of the best available information, parasitism 
is not likely to cause the

[[Page 66158]]

eastern DPS Steller sea lion to become in danger of extinction within 
the foreseeable future throughout all or a significant portion of its 
range.
    Comment 35: A commenter stated that ocean research shows that the 
most dangerous pathogen for sea lions is algae toxins which cause brain 
damage. The commenter stated that contaminated sea lions lose 
orientation in the ocean, are not capable of catching fish, and starve 
to death.
    Response: We are aware that there have been large strandings of 
marine mammals along the California coast concurrent with algal blooms 
associated with production of domoic acid (e.g., Riva et al. 2009), 
including hundreds of California sea lions along the central California 
coast that died or exhibited signs of neurological dysfunction 
concurrent with a diatom bloom (e.g., see Scholin et al. 2000). We have 
considered that researchers have reported that an increase in epileptic 
seizures and abnormal behavior in California sea lions can result from 
exposure to low doses of domoic acid as a fetus (Ramsdell and Zabka 
2008). Goldstein et al. (2007) concluded that domoic acid causes 
chronic damage to California sea lions, and these health effects are 
increasing. These and related findings in a closely related and 
ecologically similar species suggest potential food chain exposure to 
domoic acid to Steller sea lions in some locations. However, we do not 
have evidence that algal toxins pose a threat to Steller sea lions and 
at least some of these studies on California sea lions were focused on 
southern California (e.g., de la Riva et al. 2009) where Steller sea 
lions are not likely to be present. We are not aware of information 
indicating that this is a disease agent that poses a threat with 
population level consequences to the eastern DPS at present or in the 
foreseeable future.

Comments on Factor D: Inadequacy of Existing Regulatory Mechanisms

    Comment 36: USFWS stated that the Farallon National Wildlife Refuge 
is strictly managed to help protect the populations of Steller sea 
lions and other pinnipeds and seabirds. Measures are in place to 
restrict access and protect sea lions and other species from human 
disturbance.
    Response: We considered this information in our evaluation of the 
sufficiency of existing regulatory mechanisms and in our evaluation of 
potential causes of the lack of recovery of Steller sea lions in this 
part of the range.
    Comment 37: A commenter expressed concern that existing regulatory 
mechanisms will be inadequate to protect sea lions from shooting if the 
population is delisted.
    Response: Available information suggests the number of eastern DPS 
Steller sea lions that are shot is small but has increased in the last 
4 years. Following delisting, the U.S. portion of the eastern DPS will 
continue to be protected under the MMPA, including provisions that 
prohibit intentional shooting and many other forms of take. Protections 
against unauthorized take also exist in British Columbia. Collectively, 
the protections should be adequate if effectively implemented and 
vigorously enforced. Illegal shooting could still occur, but we have no 
information to suggest that levels will increase after delisting. The 
PDMP should help to detect any significant sources of mortality, 
including shooting.
    Comment 38: The MMC commented that existing regulations may or may 
not be adequate or, if adequate in concept or principle, may not be 
implemented effectively. They noted that the 2011 stock assessment 
report (Allen and Angliss 2011) for the eastern stock (as that term is 
used under the MMPA) estimates the potential biological removal level 
at 2,378 sea lions and estimates the total annual human-related take as 
48.7 sea lions. They stated that fisheries take may be underestimated 
because some fisheries that potentially injure or kill sea lions are 
not observed, and estimates of sea lion takes for subsistence purposes 
are sufficiently low that the error should not be substantial. MMC 
noted other anthropogenic effects on sea lions including shooting and 
entanglement in debris, and indicated that available information 
suggests the number of affected animals is relatively small.
    Response: We revised our discussion of Factor D regarding whether 
existing regulations are adequate and are implemented effectively to be 
more transparent about uncertainty underlying estimates of various 
sources of take and other measures of threats. We agree that take in 
fisheries may be underestimated because some fisheries that potentially 
injure or kill sea lions are not observed, and that available 
information on sea lion takes within the eastern DPS for subsistence 
purposes indicate that the take level is low. Hence, available 
information does not indicate that the level of take from fisheries, 
subsistence, and/or other human-caused threats including shooting and 
entanglement are likely to cause this species to become threatened 
within all or a significant portion of its range in the foreseeable 
future. Despite some uncertainty, we conclude that existing regulatory 
mechanisms should be sufficient to address these threats to the eastern 
DPS.
    Comment 39: Private individuals and organizations questioned the 
sufficiency of regulatory mechanisms, including the MMPA, to prevent 
overutilization, a decline, and other threats to the DPS following 
delisting. Commenters were particularly concerned about the possibility 
of increasing requests for lethal management of sea lions.
    Response: As discussed in response to comment 30 above, the MMPA 
provides a mechanism for NMFS to regulate requests for lethal 
management of Steller sea lions, and we anticipate that any authorized 
level of lethal take would be small.
    Comment 40: Commenters raised concerns about whether NMFS would be 
able to, and would, respond quickly if the DPS declines quickly after 
delisting.
    Response: We crafted a process, through the PDMP, that ensures the 
timely and regular consideration of relevant available data as well as 
triggers for changes to monitoring, evaluation, and/or management. NMFS 
intends to conduct an annual review of information collected as part of 
the PDMP process. We understand that we will need to be responsive if 
faced with evidence that indicates either the beginning of population 
decline or the emergence or increase of threats that have the potential 
for population level effects. We have the regulatory authority to act 
quickly if the need arises to provide additional protection.
    Comment 41: The State of Alaska commented that the Secretary must 
take into account the efforts of States to protect the species. The 
State commented that its monitoring and management of the eastern DPS 
and fisheries within its range have successfully conserved the eastern 
DPS. They commented that continued monitoring and management under the 
MMPA and other authorities such as the Magnuson-Stevens Fishery 
Conservation and Management Act and Canada's Fisheries Act will provide 
adequate protections for the eastern DPS after delisting and will 
maintain a robust population over the long term.
    Response: NMFS has taken the efforts of States into account in its 
decision to delist this species. For example, we considered the 
agreement between NMFS and the State of Alaska regarding their fishery 
management plans, state protections of terrestrial habitat in Oregon, 
and other State efforts to protect this species (e.g., see section on 
``State

[[Page 66159]]

Laws'' in the Status Review (NMFS 2013a)).

Comments on Factor E: Other Natural or Manmade Factors Affecting Its 
Continued Existence

    Comment 42: The MMC commented that the explanation for the loss of 
rookeries in California and slower growth is not clear but if the 
decline of Steller sea lions in California waters was caused by 
competition with the California sea lion population, one could make a 
reasonable argument that the Steller sea lion decline is a natural 
phenomenon not warranting the special protections provided by the ESA. 
They point out that, alternatively, one could also make a strong 
argument for such protections if the cause is related to human impacts. 
The MMC commented that NMFS should take a precautionary approach until 
such time as it has data sufficient to ensure that Steller sea lions in 
California have recovered or their range retraction is a result of 
natural causes.
    Response: As noted elsewhere, we must make our decision using the 
best available scientific and commercial data, and the best available 
data indicate that the eastern DPS no longer meets the definition of a 
threatened species. We do not fully understand the causes underlying 
the lack of recolonization of Steller sea lions in the southernmost 
part of their historic range. However, the overall trend in non-pup 
counts in California from 1990-2011 shows stability, not decline, and 
pup production has increased at about 2.9% per year from 1996-2011. The 
trend elsewhere in the range of this DPS is an increase in non-pup and 
pup production. We included monitoring in the PDMP specifically to 
determine if the current status changes in ways that could increase 
overall risks to the eastern DPS.
    Comment 43: Multiple comments discussed the potential adverse 
effect of competition for prey and space from California sea lions on 
Steller sea lions in the southern part of the range.
    Response: In response to this comment, we reviewed and supplemented 
the treatment of information related to the potential effect of 
competition from California sea lions in the southern part of the range 
and ensured that we are considering the best available scientific 
information in this evaluation. As discussed in the Status Review 
(section 3.5.6 on California) available information suggests that 
competition with California sea lions may have been a factor (e.g., see 
DeLong and Melin 2000) in the disappearance of the eastern DPS from the 
southernmost part of its range. However, even if this is true, this 
competition did not keep the population as a whole from recovering, and 
we do not have information that indicates that the adverse of impact of 
any such competition is likely to strengthen to a level where it might 
affect recovery of this DPS in the foreseeable future.

Comments on Cumulative Threats

    Comment 44: Multiple commenters indicated that threats remain to 
this DPS and thus it is premature to remove ESA protections. A 
commenter cited Gerber et al. (1993) as reporting that the majority of 
Steller sea lions stranded in California between 1984 and 1990 were 
underweight pups, which they stated supports a hypothesis of food 
competition leading to nutritional stress and poor post-weaning 
survival. Citing Hanni and Pyle (2000), they stated that Steller sea 
lions are also at risk from entanglement in derelict salmon fishing 
gear. They stated that more research is needed to understand the causes 
underlying the continued lack of recovery of Steller sea lions in 
California and the fact that there are continuing threats to the 
species warrants its continued protection under ESA. Another commenter 
stated that the fact that threats remain within a significant portion 
of the range of the species and have the potential to spread farther 
north provides reason to retain ESA protection for the eastern DPS.
    Response: NMFS is required to assess the status of the eastern DPS 
based on the best scientific and commercial data available. That 
information indicates that this DPS does not meet the definition of a 
threatened or an endangered species under the ESA. The Recovery Team 
did not identify the need for biological recovery criteria for specific 
subareas within the eastern DPS as it did within the western DPS. We 
acknowledge that we do not fully understand the causes underlying the 
lack of recolonization of Steller sea lions in the southernmost part of 
their historic range. However, the overall trend in non-pup counts in 
California from 1990-2011 shows stability, not decline, and pup 
production has increased at about 2.9% per year from 1996-2011. The 
trend elsewhere in the range of this DPS is an increase in non-pup and 
pup production. We included monitoring in the PDMP specifically to 
determine if the current status changes in ways that could increase 
overall risks to the eastern DPS.
    Comment 45: A commenter stated that NMFS needs to consider all 
threats, individually and collectively, stating that, even if none of 
these threats would, in isolation, devastate the population, in 
combination they appear likely to do just that.
    Response: We agree with the need to consider not only the current 
and foreseeable effect of threats individually but also collectively, 
and we have done so. The sustained recovery of the eastern DPS 
indicates that individually and collectively, threats have not been 
sufficient to thwart recovery, and there is no evidence indicating that 
this situation is likely to change within the foreseeable future.

Comments Regarding Biological Recovery Criterion, Status, and Overall 
DPS Trend

    Comment 46: The NPS at Glacier Bay National Park commented that 
several lines of evidence suggest that substantial population growth 
has occurred in the eastern DPS of Steller sea lions since the 1970s 
and that the eastern DPS has met the established demographic criterion 
set forth in the Recovery Plan. They commented also that although there 
is substantial evidence to suggest that there has been population 
growth in pups and non-pups in the eastern DPS, recent studies suggest 
that the area along the eastern/western DPS boundary may warrant 
further investigation for several reasons. Another commenter stated 
that the Alaska fishing community has seen first-hand the consistent 
and significant expansion of the sea lion population in the southeast 
region and that fishermen all along the coast have reported similar 
abundances, which are reflected in NMFS's documents.
    Response: We agree with the comments and considered the information 
provided in our decision.
    Comment 47: A tribal commenter noted that they have contributed 
data regarding Steller sea lions in California, Oregon, and Washington, 
and stated that they support delisting because the eastern DPS has met 
the criteria set out in the Recovery Plan for population growth and 
because threats to Steller sea lions do not rise to population level 
impacts. They stated they have observed increased numbers of Steller 
sea lion pups born in Washington, suggesting that the state may soon 
have an established Steller sea lion rookery.
    Response: We appreciate the data and other information provided by 
this commenter. The Status Review notes that increased numbers of pups 
are being observed in Washington State.
    Comment 48: In support of delisting, the State of Alaska and 
another commenter referred to statements in the 2008 Recovery Plan in 
which the commenters state that NMFS concluded

[[Page 66160]]

that no threats to recovery of the eastern DPS of the Steller sea lion 
have been identified, the population has been increasing for over 25 
years, new rookeries have been created, and the population is at 
historical high levels. The MMC commented that the growth in Steller 
sea lion numbers in the various parts of the eastern stock's range, as 
illustrated graphically in figures within the draft Status Review, 
presents compelling support for recovery for the stock as a whole. They 
noted that historical evidence indicates that the stock declined 
because of shooting or predator control and numbers have increased 
steadily since Steller sea lions were protected in 1970 under Canada's 
Fisheries Act and in 1972 under the MMPA.
    Response: We agree that the best available scientific evidence 
supports recovery of the stock as a whole.
    Comment 49: A commenter stated that rookery abundances in southern 
and central California have declined while northern rookery abundances 
have rapidly increased. Other commenters noted that one of the possible 
factors in the decline of Steller sea lions in the southern part of 
their range might be competition for food or space with California sea 
lions, whose numbers have risen exponentially.
    Response: We agree with these comments although we also note that 
other factors, such as climate warming, contaminants, and possibly 
other human impacts discussed in the Status Review may be contributing 
to the failure of Steller sea lions to recolonize some of their 
rookeries in the southernmost parts of their range and to their poor 
performance at some, but not all, locations in California. We 
acknowledge that we do not fully understand the reasons underlying the 
mixed performance of Steller sea lions in parts of California. However, 
it has not kept the population as a whole from recovering and does not 
signify that the DPS is in danger of extinction throughout all or a 
significant portion of its range or likely to become so within the 
foreseeable future.
    Comment 50: A commenter requested that NMFS provide additional 
information explaining how the large gap in the breeding range of the 
Steller sea lion in Washington State does not represent a reason for 
concern regarding the Steller sea lion in Washington and farther south.
    Response: NMFS notes that in both Oregon and British Columbia, data 
regarding pup and non-pup numbers indicate a substantial increase in 
abundance over a sustained period of time. Pitcher et al. (2007) 
reported that the numbers of sea lions counted between 1989 and 2002 on 
Washington haulouts increased significantly, at an average annual rate 
of 9.2%. Johnson and Gelatt (2012) incorporated these data into their 
analysis of the overall population trend based on non-pup data for the 
eastern DPS. This analysis indicates that while counts are not yet at 
historic levels, Steller sea lion abundance in Washington has been 
increasing since the early 1990s (increasing trend seen in 1993). WDFW 
also reported that an increasing number of newborn Steller sea lion 
have recently been observed along the coast of Washington (ODFW and 
WDFW 2010) but there are no active rookeries. However, the lack of 
established rookeries in Washington has not impeded the overall 
recovery of the population. Genetic data do not indicate that the gap 
in the breeding range between rookeries in Oregon and British Columbia 
has resulted in marked genetic discontinuity within the range such as 
is observed between the eastern and western DPSs.
    Comment 51: A commenter stated that the Oregon population appears 
to be recovering better than populations in California and Washington, 
but still falls short of meeting the demographic delisting criteria.
    Response: In the 2008 Recovery Plan, NMFS did not specify subarea 
recovery criteria. With respect to the biological (demographic) 
recovery criterion, NMFS (2008) specified that the eastern DPS would be 
considered for delisting when ``. . .[t]he population has increased at 
an average annual growth rate of 3% per year for 30 years.'' Based on 
abundance estimates derived from pup count data, this criterion has 
been met and exceeded. However, in response to this comment, we revised 
our description and discussion of trends throughout the range to more 
be more transparent about trends in each of the major subregions within 
the range of the eastern DPS.
    Comment 52: A fishing organization stated that the eastern DPS has 
increased on average about 3% over the past 30 years reaching all-time 
highs in population size and population density. They stated that it is 
possible that without large predator interaction (killer whale 
predation), the population could reach its apex and crash altogether. 
They noted that for many years their members have seen a large increase 
in sea lion populations on new rookeries and in greater numbers in 
southeast Alaska particularly. They believe that delisting should occur 
due to population increases and sustainability models but that it will 
also have large rewards for local communities and local fishermen.
    Response: With respect to the idea that the current level of 
abundance is at an all-time high, we note that in a thorough review of 
available data on Steller sea lion abundance in the eastern DPS, 
including examination of counts from the early 1900s, Pitcher et al. 
(2007) concluded that the lack of standardization of counts prior to 
the 1970s and the sparseness of historical data prevents a rigorous 
comparison of historical and current abundance levels. We agree with 
Pitcher et al. (2007) that this is the case. With respect to the 
potential behavior of the population in the absence of predation, we 
note that it is unlikely that large predator interactions will cease to 
exist. Thus, we do not speculate on the effects of that hypothetical 
scenario. Lastly, section 4 of the ESA specifies those factors that 
NMFS can consider in its evaluation of the appropriate listing status 
of species. NMFS does not consider benefits to local communities, 
industries, or economics in our evaluation of whether a species meets 
the definition of a threatened or endangered species under the ESA.

Comments on Trends in the Southern Part of the Range, California 
Current Ecosystem, and California

    Comment 53: The NPS at Point Reyes National Seashore commented that 
while this DPS has shown recovery over the past three decades in Oregon 
and Washington, there has been a lack of recovery at historical sites 
in the southern breeding colonies for the species. They reported that 
historically, Steller sea lions at the southern end of their range bred 
at Point Reyes Headland. The NPS has been monitoring this population 
and has noted that it has not recovered over the last several decades. 
They stated that the species no longer breeds at Point Reyes, and the 
number of animals remains low, with maximum counts rarely exceeding 5 
animals per observation since the early 1980s. They have also 
documented population increases in Northern elephant seals and harbor 
seals at Point Reyes Headland over the past several decades (Sydeman 
and Allen 1999). They stated that the decline in haulout activity and 
lack of breeding recovery of Steller sea lions at Point Reyes Headland 
is of concern for this species' overall recovery.
    Response: We considered this information in our evaluation of the 
recovery status of the eastern DPS. We agree that the lack of increase 
in breeding of Steller sea lions at Point Reyes Headland is of concern 
because

[[Page 66161]]

the cause of this poor performance is not understood. However, the best 
available information indicates that the species' overall extinction 
risk is quite low (see Goodman 2006 and NMFS 2013a). Following 
recommendations in Goodman (2006), we intend to monitor the eastern DPS 
to determine if this pattern of poor performance spreads northward.
    Comment 54: A commenter stated that NMFS has determined that it is 
appropriate to overlook the range contraction of the eastern DPS in the 
south that has occurred for undetermined reasons and to ignore the 
disparity in growth rates of Steller sea lions in the Alaska/British 
Columbia portion with that of the southern portion of the range. 
Another commenter stated that data showing a historic and continuing 
fall in numbers clearly indicate that the southernmost Steller sea 
lions should continue to be classified as endangered and additional 
study of their decline, history, and prehistory should be undertaken to 
understand this decline. A commenter stated that parts of the range 
have not been reoccupied and rookeries have been lost. The commenter 
stated that two rookeries have been lost and concludes that, until the 
California trend improves and the full extent of the sea lions' range 
has been recolonized, delisting is contraindicated. The commenter 
stated that incremental losses of habitat and breeding grounds erode a 
species' long-term survival.
    Response: We considered the loss of rookeries in the southern part 
of the range and the establishment of new rookeries in the north. In 
general, we agree that incremental losses of habitat and breeding 
grounds would tend to diminish a species' long-term viability. NMFS 
shares concerns about the poor performance of Steller sea lions in 
parts of California. However, based on the overall strong increase in 
abundance in other parts of the range during the same time frame and 
the establishment of new rookeries in the north, neither the loss of 
the most southerly rookeries, the poor performance in other parts of 
California such as the Farallon Islands, the overall failure for non-
pup abundance to increase in California overall during this same 
period, nor the northerly shift in range renders this species in danger 
of extinction throughout all or a significant portion of its range or 
likely to become so within the foreseeable future.
    Comment 55: Giving the example of Erlandson et al. (2011), a 
commenter stated that there are now quantitative data about prehistoric 
pinniped populations available and indicated that these data considered 
with data on historical pinniped harvests might be used to reconstruct 
thousands of years of past changes in the Steller sea lion population 
in California.
    Response: NMFS appreciates this information and is considering this 
suggestion for future research. However, such a reconstruction is not 
needed for our assessment of the status of the species here.
    Comment 56: The USFWS at Farallon Islands Wildlife Refuge and a 
scientific contracting company provided summaries, including data and 
figures, of historical and recent information from the Farallon Islands 
based on weekly counts of Steller sea lions since the early 1970s. They 
commented that despite an overall increase in the eastern DPS, they are 
concerned about the future fate of the Farallon and remainder of the 
central California population of Steller sea lions. They stated that 
despite efforts to protect the Farallon colony, numbers have not 
increased in recent decades and its current status as a rookery is 
questionable. They stated that if current trends continue this colony, 
and possibly the entire central California population, may be 
extirpated within the foreseeable future, continuing the trend of a 
northward contraction of the species' range.
    Response: We appreciate the long-term data from monitoring at the 
Farallon Islands. We incorporated these data into our discussion of 
historic and current status of Steller sea lions in California, and we 
considered it in our evaluation of the listing status of the eastern 
DPS. The PDMP includes evaluation aimed at determining whether the 
trend of a northward shift of the species' range continues.

Comments on the Quality of the Science and Presentation of Information 
Used in the Proposed Rule and Draft Status Review

    Comment 57: A commenter requested that NMFS stop using the term 
``abundance'' related to population trends (e.g., an ``abundance 
decline'') because it conveys the impression of ``plenty'' even while 
discussing ``lack.''
    Response: Our use of the term ``abundance'' fits with common usage 
of the term within population ecology and is not meant to mislead 
readers with regard to the historic and recent trends of this DPS. In 
response to the comment, we examined our use of the term to ensure that 
we are not inadvertently giving the wrong impression, and we determined 
that our use of the term ``abundance'' is appropriate.
    Comment 58: A commenter stated that it is unacceptable to manage a 
threatened species at minimal population levels because doing so keeps 
them teetering on the brink of extinction. The commenter wrote that 
should there be a natural catastrophe the eastern DPS could quickly 
become imperiled. The commenter stated that while an average annual 
population growth rate of 4.3% may be sufficient when a species is 
listed, their continued viability is jeopardized when the protections 
are removed.
    Response: We agree that it would be unacceptable to purposely 
manage a threatened species at minimal population levels. Under the 
MMPA, our objective is to manage the population within its Optimum 
Sustainable Population (OSP) level. OSP is defined by the MMPA, with 
respect to any population stock, as the number of animals which will 
result in the maximum productivity of the population or the species, 
keeping in mind the carrying capacity of the habitat and the health of 
the ecosystem of which they form a constituent element. (16 U.S.C. 
1362(3)(9)). OSP is further interpreted in regulations (50 CFR 216.3) 
as being a population size which falls within a range from the 
population level of a given species or stock which is the largest 
supportable within the ecosystem to the population level that results 
in maximum net productivity. The eastern DPS of Steller sea lion is not 
at a minimal population level, nor is it in decline. Goodman (2006) 
conducted a risk evaluation for this population and concluded that if 
his assumptions are correct, the risk of near- or medium-term 
extinction for this population is very low. Working with partners, NMFS 
developed a PDMP that is intended to monitor sufficiently to detect 
population declines or an increase in threats so that management 
measures can be adjusted if necessary.
    Comment 59: A commenter stated that aerial surveys can result in 
over-counts and concluded that it is likely that many sea lions are 
being counted multiple times.
    Response: We are aware that there are sources of variability within 
any survey that can result in animals being missed (e.g., because they 
are at sea foraging) or possibly counted twice (e.g., because all sites 
cannot be counted on the same day and an animal may move, especially 
between nearby haulouts). However, we do not have evidence that aerial 
surveys would tend to result in over-counting of Steller sea lions in 
the eastern DPS. This is especially true of pups, the portion of the 
population on which population size estimates presented in the Status

[[Page 66162]]

Review are based. Count data used to estimate population trends and 
evaluate status are of two types: counts of pups about one month of age 
and counts of animals over one year of age (i.e., non-pups). While the 
techniques used for counts of both pups and non-pups have changed over 
time, and thus data collected during different periods using different 
techniques (e.g. on-site counts, oblique photo counts, or vertical high 
resolution photos) are not directly comparable (Fritz and Stinchcomb 
2005; Pitcher et al. 2007; Kaplan et al. 2008; DeMaster 2009; NMFS 
2008, 2010), counts of pups on rookeries conducted near the end of the 
birthing season are nearly complete counts of pup production. These 
counts can be expanded to estimate approximate total population size 
based on an estimated ratio of pups to non-pups in the population 
(Calkins and Pitcher 1982, Trites and Larkin 1996). For the period 
until 2002, we rely heavily on the analyses in a comprehensive peer-
reviewed published paper (Pitcher et al. 2007) and have updated this as 
data are available. We are aware that some pups die and disappear 
before the counts are made and a few are born after the counts are 
conducted (Trites and Larkin 1996), and we considered this in our 
analysis and evaluation of trend data. We also acknowledge that the 
methodology results in a very general estimate of population size as 
several factors can affect the accuracy of the estimates (NMFS 2008). 
In response to this comment, we revised the section of the Status 
Review on population trends to make certain that the basis of our 
population trend conclusions is clear and any biases, assumptions, and 
uncertainties are transparent.
    Comment 60: Multiple commenters stated that more long-term study is 
needed before we can be sure that Steller sea lions will sustain their 
populations, before we will know and understand the reasons for the 
lack of recovery and the range contraction in the southern part of the 
range, and/or before we will understand the impact of the tsunami-
generated marine debris and/or other threats on the population.
    Response: We disagree that more study is needed before NMFS can 
make a decision about the appropriate status of this species under the 
ESA. NMFS is required to use the best available scientific and 
commercial data in its decision. We have compelling evidence of 
sustained increases in the overall abundance of eastern DPS Steller sea 
lions. While their breeding range has shifted to the north, there has 
not been overall contraction of the breeding range. While there are 
residual threats and potential threats that may be emerging, such as 
climate change and ocean acidification, there is no evidence that these 
factors are likely to have negative effects that are strong enough to 
cause this species to decline within the foreseeable future, nor 
satisfy the definition of a threatened or endangered species.
    Comment 61: Multiple commenters stated that the agency has not 
based its proposed decision on the best available science.
    Response: We disagree. We reviewed our files to ensure that the 
Status Review and rule utilize the best available scientific and 
commercial data available. Where commenters suggested additional 
sources of information, we reviewed and incorporated such information 
as appropriate. Further, we submitted the Status Review through two 
rounds of independent peer review.

Comments on Ecosystem Considerations and Effects of the Delisting on 
Fish Species

    Comment 62: Several commenters cited concerns about the effects of 
Steller sea lion predation on salmon, sturgeon, and/or the ecosystem. A 
commenter concluded that the delisting will be a significant step in 
protecting both sturgeon and salmon in the Columbia River. A commenter 
stated that future management of Steller sea lions must be more 
cognizant of their impacts on the ecosystem. This commenter stated that 
the current growth rate cannot be maintained indefinitely. A commenter 
stated that the western Washington ecosystem simply cannot support 
increasing populations of pinnipeds, likely to levels above their 
historic abundances, while meeting ESA recovery goals for Southern 
Resident killer whales and salmon species.
    Response: The effects of Steller sea lion predation on listed 
salmon or on other fish species are not appropriate factors for us to 
include in our evaluation of whether the eastern DPS of Steller sea 
lion should be listed under the ESA.
    Comment 63: Multiple commenters argued against the delisting for 
several reasons: Steller sea lions are a necessary and/or a natural 
part of the food chain; we need Steller sea lions in their habitat as 
part of that food chain; biodiversity must be retained; all animals 
have a place in the ecosystem; predators play an important role in 
maintaining the health of ecosystems; and humans must learn to live 
alongside other species and not eliminate them.
    Response: We agree that the Steller sea lion is an important part 
of marine ecosystems. We note that one of the stated purposes of the 
ESA is to ``provide a means whereby the ecosystems upon which 
endangered species and threatened species depend may be conserved.'' If 
a species does not meet the definition of a threatened or endangered 
species, it is inappropriate for it to be listed under the ESA. A 
recovered eastern DPS of Steller sea lions will continue to be a viable 
part of these marine ecosystems.

Comments on Steller Sea Lion Habitat

    Comment 64: The State of Alaska commented that NMFS should indicate 
that delisting of the eastern DPS of Steller sea lion under ESA section 
4 necessarily removes the critical habitat designation for the eastern 
DPS.
    Response: Comments regarding the critical habitat designated for 
the Steller sea lion at 50 CFR 226.202 are beyond the scope of this 
rulemaking. In any event, removing the eastern DPS from the List of 
Endangered and Threatened Wildlife does not remove or modify that 
designation as described below.
    ESA section 4(a)(3) requires the Secretary (through NMFS) to 
designate critical habitat for listed species, to the maximum extent 
prudent and determinable, concurrently with the listing of a species, 
and gives the Secretary discretion to revise a designation from time to 
time as appropriate. Designations and revisions of critical habitat 
must be based on the best scientific data available and be informed by 
consideration of the economic impact, the impact on national security, 
and any other relevant impact of such designation or revisions. The ESA 
does not speak directly to the status of designated critical habitat 
when the agency later amends a species listing by dividing it or by 
delisting a portion of the population and retaining the rest. Notably, 
critical habitat does not lose its biological and conservation 
relevance to the still-listed species simply because the species 
listing is amended. Moreover, carrying forward an existing critical 
habitat designation can enhance the protection provided to the still-
listed species because the carried-forward designation protects habitat 
features essential to the species' recovery from adverse modification 
or destruction in section 7 consultations. Given that Congress has not 
spoken directly to this issue in the statute, the benefits of 
designated critical habitat, the ESA's broad purpose to conserve the 
ecosystems upon which endangered and threatened species depend, and 
taking a reasonable precautionary approach, we construe the ESA to 
provide in these circumstances for keeping existing

[[Page 66163]]

critical habitat designation in place as a transitional matter until 
the designation is amended through a further rulemaking.
    For Steller sea lions, the critical habitat designated in 1993 (58 
FR 45269; August 27, 1993) continued to be valid following the 1997 
rule dividing the listing into the eastern and western DPSs (62 FR 
24345; May 5, 1997). This final rule does not revisit the codified 
critical habitat designation, which remains in place following the 
delisting of the eastern DPS as a transitional matter for the listed, 
endangered western DPS, as the designated critical habitat supports the 
western DPS's important biological functions (e.g., feeding and 
resting). This approach is consistent with the critical habitat 
designated for northern right whales in 1994 remaining in place 
following the 2008 division of the listing into two separate species, 
the North Atlantic and North Pacific right whales (75 FR 61691; October 
6, 2010).
    NMFS will undertake a separate rulemaking to consider amendment to 
the existing critical habitat designation that takes into account any 
new and pertinent sources of information since the 1993 designation, 
including amending the critical habitat designation as appropriate to 
reflect the delisting of the eastern DPS in this final rule. In the 
interim, during ESA section 7 consultations for federal actions that 
may affect currently designated Steller sea lion critical habitat, NMFS 
will address effects to such habitat in terms of effects to those 
physical and biological features essential to the conservation of the 
western DPS, and not the delisted eastern DPS.
    Comment 65: The NPS at Glacier Bay National Park provided 
information about recently established haulout sites that are used by 
Steller sea lions but that are not included on Figure 3.1 in the draft 
Status Review. Several of these sites have been previously identified 
and documented in the scientific literature.
    Response: We included this information in the revised Status 
Review.

Comments on Extinction

    Comment 66: A commenter stated that NMFS's extinction risk analysis 
is based on assumptions that will no longer be valid once the 
population is delisted.
    Response: The conclusions of the extinction risk evaluation 
undertaken by Goodman (2006) were based on whether his working 
hypothesis was, and continues to be, true. Elements of this working 
hypothesis were that: (1) The population is not sensitive to ongoing 
regime-frequency environmental variation; (2) the depressed, but steady 
and positive, growth rate north of California is owing to a combination 
of ecosystem modification and possible incidental take that is stable 
and sustainable; (3) the carrying capacity is not less than 46,000 
total individuals; and (4) the lack of recovery of the California 
portion of the population is owing to a range contraction responding to 
the warming trend of the past several decades. Goodman (2006) further 
stated that ``we could judge this population to be at low risk provided 
management maintains the current level of protection, keeps human 
impact at no more than its present level, and monitors to make sure 
that evidence contrary to the hypothesis complex will be detected and 
the risk classification and management will be revised as indicated.'' 
With regard to Goodman's (2006) caveats that may change immediately 
upon delisting, the primary issues are whether or not management 
maintains the current level of protection and keeps human impact at no 
more than its present level, whether monitoring and management is 
sufficient post-delisting to detect evidence indicating that the 
hypothesis complex is not true, and to respond appropriately if such 
evidence is obtained. These points are inter-related. As discussed in 
the section regarding the adequacy of existing regulations (Factor D), 
the eastern DPS will continue to be protected under the MMPA and other 
laws. The MMPA provides some of the same protections as the ESA. The 
underlying premise of applying protections under the ESA is that a 
threatened or endangered species requires greater protection than a 
recovered species or other species that does not meet the definition of 
threatened or endangered. Thus, the eastern DPS should not require as 
great a degree of protection post-delisting as it did when it was 
threatened. NMFS has taken the caveats in Goodman's (2006) conclusions 
into consideration in our delisting decision and the formulation of the 
PDMP.

Comments on the Post-Delisting Monitoring Plan

    Comment 67: A commenter stated that the draft PDMP provides no 
assurance that more will be done besides monitoring the number of 
animals killed illegally or as part of lethal management programs.
    Response: NMFS disagrees with this comment. The PDMP, if fully 
implemented, will enable NMFS to verify that the species remains secure 
from the risk of extinction after the protections of the ESA are 
removed. Following USFWS and NMFS Joint PDMP Guidance (USFWS and NMFS 
2008), we designed monitoring to determine if the status of the species 
begins to change or deteriorate, and if a substantial decline in the 
species (numbers of individuals or populations) or an increase in 
threats is detected, NMFS can take measures to halt the decline or 
reduce the threat(s) so that re-listing the eastern DPS as a threatened 
or endangered species is not needed. While the ESA requires not less 
than five years of monitoring, NMFS, following the input of the 
Recovery Team, developed a PDMP for a period of at least ten years. 
NMFS will work with multiple partners post-delisting on the 
implementation of the plan.
    Comment 68: A commenter expressed concern about the level of 
entanglement-related mortality in tribal fisheries and the lack of 
associated data since tribes began refusing in the 1990s to carry 
federal observers. Another comment stated that it is not clear from the 
draft PDMP whether, or how, NMFS plans to remedy the lack of monitoring 
of fishery-related deaths of sea lions from the DPS in Canada, Alaska, 
or the various tribal gillnet fisheries in Oregon and Washington.
    Response: As noted in the draft Status Review, researchers collect 
systematic data related to the incidence and types of entanglement of 
Steller sea lions in some parts of the range. Treaty Indian fisheries 
in Oregon and Washington are conducted in freshwater rivers, coastal 
estuaries, and in the Puget Sound region under the authority of Indian 
treaties; therefore, the MMPA's section 118 requirements, including 
observer monitoring, do not apply (60 FR 45086; August 30, 1995, and 74 
FR 58859; November 16, 2009). If any marine mammal bycatch associated 
with tribal fisheries were to present a biological concern for 
applicable stocks, NMFS would consider invoking the treaty-rights 
principle of ``conservation necessity'' to protect marine mammals (74 
FR 58859; November 16, 2009). Additionally, NMFS regularly considers 
the need to monitor incidental take of various fisheries, including 
those within the range of the eastern DPS. For example, in 2013 NMFS 
will implement a second year of observing marine mammal (including 
Steller sea lion) take in the southeast Alaska salmon gillnet fishery. 
NMFS does not have jurisdiction to monitor fishery-related serious 
injury or mortality in Canada.
    Comment 69: A commenter stated that monitoring of the Steller sea 
lion-human interactions in ports, harbors, and inland waterways does 
not address any

[[Page 66164]]

of the listing factors, is discussed in the PDMP at a level 
disproportionate to the level of concern about the issue, and could be 
used to support taking lethal management action.
    Response: We reviewed the relevant section of the PDMP and revised 
it because this is not expected to be a significant threat for Steller 
sea lions.
    Comment 70: A commenter noted that while the monitoring plan 
appears to count on the continued collection of stranding data, NOAA 
has decided not to include funding for the John H. Prescott Marine 
Mammal Health grant program for the monitoring of stranding. The 
commenter noted that without this funding support, the coverage of 
stranding response will drastically reduce as will the ability of 
researchers to fund histopathology and other analyses to determine the 
cause of Steller sea lion deaths. The commenter encouraged NOAA to 
continue funding stranding response.
    Response: We understand the commenter's concern regarding the 
uncertainty in the availability of funding in future years for 
stranding programs. However, Prescott funding is not the only source of 
funding for stranding programs available to us. While we cannot predict 
future funding levels, we understand the high value of stranding 
networks to our ability to detect increases in threats over time to 
this DPS, and we will endeavor to fund stranding programs to the extent 
possible consistent with available budgetary resources.
    Comment 71: A commenter suggested that NOAA develop a data-sharing 
memorandum of agreement for data collected under the PDMP to protect 
researchers' work from being published by others.
    Response: In response to this comment, we added a sentence to the 
PDMP that acknowledges the sensitivity of unpublished data.
    Comment 72: A commenter expressed concern about the interpretation 
of the proposed response trigger in the PDMP. The commenter noted that 
the eastern DPS may be approaching carrying capacity for the ecosystem, 
and we do not know the dynamics of how the population will interact 
when it is at or near carrying capacity.
    Response: We agree that NMFS will need to evaluate carefully any 
future change in population trend or recovery rate. However, it is 
important to include response triggers in PDMPs so that it is clear 
when the agency needs to increase the depth of its evaluation, obtain 
additional information, or take protective management action to reduce 
a threat. In response to this comment, we added language to the PDMP to 
clarify what action(s) the response triggers will prompt and to remind 
managers to evaluate potential causes of any population change, 
including changes that may result from carrying capacity being reached 
or exceeded.
    Comment 73: The State of Alaska endorsed the proposed PDMP to 
ensure that the current increasing population trend continues. It 
stated that refinements to the PDMP could maximize efficiencies while 
reducing sampling uncertainties and that they seek to ensure that 
monitoring efforts remain adequate to detect population trends and any 
emerging threats to the eastern DPS while ensuring support for 
continued recovery efforts for the western DPS. The State of Alaska 
suggested that proposed monitoring to identify transboundary movements 
between the eastern DPS and the western DPS be refined to conduct 
several replicate surveys between Icy Strait and Prince William Sound 
during May and June to enhance count calibration and the ability to 
identify inter-stock movement and effects at the population level. It 
noted that sea lion counts in southeast Alaska and Prince William Sound 
can be highly variable. It noted that replicate aerial surveys would 
augment the tracking of non-pup trends, which is also affected by high 
variability in day-to-day counts. The State of Alaska also suggested 
refinements to the continuation of the resight program related to the 
monitoring of vital rates. It recommended that no new cohort branding 
should occur in southeast Alaska unless there is evidence of a 
population decline, in which case vital rates would be required in 
order to better understand the mechanism behind the decline. It stated 
that the reproductive rate portion of the resight program should 
continue until 2015 instead of 2021, noting that reproductive rate 
surveys are particularly intensive and expensive. It stated that their 
best estimate at present is that data through 2015 will be sufficient 
to run their current reproductive rate analysis to completion and that 
a reduced level of surveys beyond this point may be adequate to 
maintain a less precise estimate of reproductive rate. It stated that 
continued, less-intense monitoring for survival, movement, and 
entanglement/gear ingestion rates would be productive beyond 2015 and 
would free up resources for surveys in regions of greater concern.
    Response: We appreciate the endorsement of the PDMP by the State of 
Alaska. In consultation with partners, including the State of Alaska, 
and in response to public comment, we have revised the PDMP. We agree 
with the comments regarding replicate surveys to monitor transboundary 
movements and to enhance count calibration. We added a brief section to 
the PDMP to include the potential for replicate surveys in at least one 
monitoring year. However, throughout the PDMP period, vital rates work 
may be necessary to evaluate the potential cause(s) of any downward 
trend in abundance.
    Comment 74: The State of Alaska suggested that NMFS should clarify 
whether aerial surveys will be conducted every four years or every two 
years in furtherance of the sampling regime to monitor trends in 
abundance.
    Response: We clarified in the PDMP that range-wide aerial surveys 
of the eastern DPS should be conducted every 4 years, with more 
frequent surveys in southeast Alaska.
    Comment 75: The NPS at Glacier Bay National Park commented they 
agree with NMFS that monitoring of the eastern DPS should continue as 
outlined in the draft PDMP and should include assessment of population 
trends (pups and non-pups) at regular intervals via aerial surveys, 
continued estimation of age-specific survival and reproductive rates of 
marked individual Steller sea lions, and possibly a more focused effort 
to monitor the influence of cross-boundary movements by Steller sea 
lions on population trends near the eastern/western DPS boundary.
    Response: We agree and have made minor revisions to the plan to 
include the possibility of replicate surveys to track transboundary 
movements and associated population trends. The PDMP also includes 
monitoring to continue to assess how movement across the western-
eastern DPS boundary may be affecting non-pup counts in each DPS.
    Comment 76: Several commenters recommended that PDMP include 
disease monitoring. The NPS at Glacier Bay National Park recommended 
that the Alaska Marine Mammal Stranding Network continue to respond to 
stranded Steller sea lions throughout the eastern DPS, with particular 
emphasis on monitoring (1) for the presence of infectious disease 
agents and potentially novel pathogens and (2) for unusual mortality 
events. The State of Alaska recommended that health, genetics, and 
disease sampling be made part of a directed research program and said 
that monitoring should not rely on opportunistic examination of 
stranded individuals. The USFWS at Farallon Islands Wildlife Refuge 
also stated that updated studies on disease are needed.

[[Page 66165]]

A commenter stated that such sampling should avoid unnecessary 
disturbances during the breeding season.
    Response: We agree with these comments, and we have revised the 
PDMP to include disease monitoring as a regular, not incidental, 
component of the plan.
    Comment 77: The USFWS at Farallon Islands Wildlife Refuge stated 
that updated studies on contaminants and prey use are needed, as are 
studies to understand the impacts of these factors on sea lion 
population trends. They believe that such studies will be important to 
better understand the status, and to predict future trends, of the 
eastern DPS, including the central California portion and the northward 
range contraction.
    Response: We agree that contaminant studies are an important 
component of the PDMP as are studies to understand the impacts of 
contaminants on Steller sea lions, especially in the southern part of 
the range where recovery has not occurred. In response to this comment, 
we revised the PDMP to indicate that such monitoring should be a 
focused, not incidental, component of the plan; however, the level of 
such monitoring will be dependent on funding availability. We also 
included language in the PDMP to clarify that we intend to work with 
monitoring partners and contaminant experts to identify the 
contaminants of highest priority for monitoring for this DPS.
    Comment 78: The NPS at Glacier Bay National Park stated that post-
delisting monitoring should include documentation of human-related 
sources of mortality such as entanglements, shootings, and fishery 
interactions with Steller sea lions. They stated that periodic reviews 
of all records of Steller sea lion mortalities would be advisable to 
identify any trends in disease agents or other causes of death that may 
warrant management attention. The State of Alaska also commented on the 
need for monitoring of entanglement rates as part of the regular brand-
resight program. They strongly recommended that monitoring 
entanglements and fishery gear interactions continue as standard 
surveys and not rely completely upon incidental reports and stranding 
network data. They cautioned against lumping monitoring of 
``entanglement'' with monitoring of ``fishery gear interaction'' 
because entanglements (e.g., packing bands or line around the neck) 
represent passive interactions with marine debris, whereas gear 
interactions (e.g., ingested hooks) represent direct interactions with 
fisheries. They believe that grouping these two effects together would 
artificially inflate the perceived effects of both and complicate 
efforts to reduce entanglements.
    Response: We agree with these comments. We have monitoring to 
assess potential threats from entanglement in marine debris and from 
incidental takes in fisheries as separate bullets in the PDMP. The two 
categories interact and overlap.
    Comment 79: The State of Alaska stated that while monitoring for 
degradation of terrestrial and marine habitats is a proposed objective 
of this plan, there are no specific activities proposed in the draft 
PDMP to accomplish this objective.
    Response: In response to this comment we modified the PDMP to 
include activities that will help us monitor for degradation of 
terrestrial and marine habitats.
    Comment 80: The State of Alaska commented that NMFS should take 
steps to improve the clarity, consistency, and accuracy of its 
communication with the public regarding regulation of sea lions. They 
stated that effective protection of the resource depends on such 
clarity, and confusion about continuing regulations under the MMPA may 
increase when the public learns that the eastern DPS has been delisted 
under the ESA. They suggested that simple and obvious guidelines be 
presented. They stated that coordination among management and research 
entities should also be improved to ensure that researchers are given 
adequate time to provide information that will better inform management 
actions.
    Response: We agree that it is important to clearly communicate with 
the public on laws and regulations regarding Steller sea lions. NMFS 
and its partners have undertaken numerous outreach activities to 
improve the clarity of such communications. With regard to coordination 
among managers and researchers, we agree that researchers should have 
adequate time to develop research results.
    Comment 81: Various entities commented on their willingness and/or 
desire to be involved in implementing the PDMP. The USFWS at Farallon 
Islands Wildlife Refuge hopes to be included in any future monitoring 
efforts for Steller sea lions sponsored by NOAA. The NPS at Point Reyes 
National Seashore stated that they will continue to monitor the species 
at Point Reyes and provide NMFS with data as needed. The NPS at Glacier 
Bay National Park stated that they will continue to collaborate with 
NMFS and the Alaska Department of Fish and Game (ADF&G) to provide 
observations of marked Steller sea lions that occur in the park and to 
assist with the Alaska Marine Mammal Stranding network. The State of 
Alaska stated that ADF&G expects to contribute substantially to the 
population monitoring effort, and anticipates continuing to work with 
NMFS in finalizing and implementing the PDMP. The State of Alaska 
requested that NMFS cooperate with the State to the maximum extent 
practicable in the monitoring efforts and the finalizing of the PDMP.
    Response: We appreciate these comments and offers to participate in 
implementing the PDMP. We revised our list of partners in the PDMP 
accordingly. We met with the State of Alaska and sought their input on 
finalizing the PDMP, especially those parts of the PDMP that refer to 
monitoring within Alaska. Under the ESA, NMFS retains overall 
responsibility for ensuring that, post-delisting, sufficient monitoring 
is undertaken to verify that the recovered species remains secure from 
risk of extinction after the ESA protections are no longer are in 
force.

Comments on the Effects of Delisting the Eastern DPS on the Western DPS

    Comment 82: Hundreds of commenters expressed their concern about 
the effects of the proposed delisting on both the eastern DPS and the 
western DPS, stating that the action could or would jeopardize or harm 
the eastern DPS, as well as jeopardize or further endanger the western 
Steller sea lions that share the range of the eastern DPS. A commenter 
stated that, since trends strongly suggest that the eastern DPS and the 
western DPS are shifting towards each other (citing Pitcher et al. 2007 
and Mathews et al. 2011), and in light of recent evidence that Steller 
sea lions from both DPSs are living at the same rookeries in southeast 
Alaska, within the territory of the eastern DPS (citing Gelatt et al. 
2007), it is irresponsible to delist the eastern DPS and effectively 
remove ESA protections for western DPS sea lions living east of 144 
[deg]W longitude. A commenter stated that the draft Status Review fails 
to address this threat adequately. This commenter stated that the MMPA 
cannot protect against this threat because it authorizes take without 
providing a requirement or a means to discriminate between the eastern 
and western populations. Another commenter concluded NMFS should 
preserve ESA section 9 prohibitions on lethal take for all Steller sea 
lions to ensure that western DPS sea lions are protected against 
threats such as

[[Page 66166]]

intentional or unintentional take that may occur as a result of lifting 
ESA protections from eastern DPS Steller sea lions.
    Response: We share the concern regarding the potential effects of 
delisting the eastern DPS on animals from the western DPS. Jemison et 
al. (2013) documented the regular movement of Steller sea lions from 
both the eastern DPS and western DPS across the defined DPS boundary. 
It is clear that individuals originating from some parts of the western 
DPS, including members of both sexes, utilize habitat east of 144 
[deg]W longitude for a variety of reasons.
    Jemison et al. (2013) analyzed sea lions branded as pups in each 
DPS from 2000-2010 to estimate probabilities of a sea lion born in one 
DPS being seen within the range of the other DPS. They found that males 
from both populations regularly traveled across the DPS boundary; that 
western DPS females sometimes travel east of 144 [deg]W longitude, but 
eastern DPS females rarely traveled west of 144 [deg]W longitude; and, 
that some western DPS females have permanently emigrated to the east, 
reproducing at two established rookeries east of 144 [deg]W longitude. 
They report that western DPS animals began moving east in the 1990s 
following steep population declines in the central Gulf of Alaska. They 
conclude that it is unclear whether eastward movement across the DPS 
boundary is due to less optimal conditions in the west or a reflection 
of favorable conditions in the east.
    Despite the regular movement of western DPS animals from some parts 
of the western DPS to areas east of 144 [deg]W longitude, data indicate 
that the probability of occurrence of a western DPS animal east of this 
demarcation declines with distance from the boundary, that it is 
highest in southeast Alaska, and that at some distance from the 
western/eastern DPS boundary the probability of occurrence of a western 
DPS animal becomes negligible. Jemison et al. (2013) reported that over 
85% of all western DPS Steller sea lions observed east of the boundary 
were at locations in the northern region of southeast Alaska.
    We disagree that delisting the eastern DPS effectively removes 
protections from endangered western DPS animals occurring east of east 
of 144 [deg]W longitude. Take of all Steller sea lions occurring east 
of east of 144 [deg]W longitude will remain prohibited under the MMPA, 
and take of western DPS Steller sea lions is also prohibited under the 
ESA regardless of where the animal is found. Following publication of 
this final rule, NMFS will separately consider whether additional 
protection is needed for western DPS Steller sea lions in those parts 
of their range east of 144 [deg]W longitude.

Summary of Peer Review Process

    In accordance with our Interagency Cooperative Policy on Peer 
Review (59 FR 34270; July 1, 1994), we requested expert review of 
drafts of the Status Review, the PDMP, and the proposed rule. This 
policy requires NMFS to solicit independent expert review from at least 
three qualified specialists. NMFS solicited such expert reviews from 
four non-federal scientists with expertise in population ecology and 
management of eastern DPS Steller sea lions. Input from this peer 
review of the earlier draft of the Status Review was incorporated into 
the version of the draft Status Review that was released for public 
comment. Further, during the public comment period on the proposed 
rule, NMFS solicited peer review of these documents from seven experts: 
two from academia, two from a Canadian federal resource agency, two who 
had relevant expertise and were from other offices within NOAA, and a 
former state biologist with expertise on Steller sea lions. Four of 
these seven were the same as the people who reviewed the draft status 
review prior to its release. One of these four (an academic reviewer) 
notified us that he was not available, and the two federal reviewers 
did not respond. Thus, on the draft status review released for public 
comment, we received comments from four reviewers, three of whom have 
expertise on Steller sea lions (and who had reviewed an earlier draft 
of the document), and the fourth who has particular expertise on 
potential climate change effects. We have considered all of the peer 
review comments received, summarized the content of this expert input 
below, and where applicable, responded to the comments below.

Summary of Peer Reviewer Comments

    All peer reviewers agreed with NMFS's proposal to delist the 
eastern DPS of Steller sea lion. Of the four peer reviewers who 
reviewed the released versions of the documents, Peer Reviewer 1 
concluded that the draft Status Review provides a thorough review of 
the background, biology, available data, and likely threats to the 
eastern DPS. Peer Reviewer 1 stated that the proposed rule provides a 
thorough and efficient review of the status of the eastern DPS and 
whether the DPS qualifies for removal from the ESA list of threatened 
species. Peer Reviewer 2 stated that all of the relevant literature and 
assessment documents are referenced in the draft Status Review and 
that, overall, the status review is thorough and well-written. Peer 
Reviewer 2 expressed full agreement with all of the key conclusions of 
the proposed rule and the draft Status Review and recommended that this 
DPS be delisted. Peer Reviewer 3 concluded that the proposed rule and 
draft Status Review make a compelling case that the eastern DPS is not 
currently at risk and should be delisted. Peer Reviewer 4 stated that 
the draft Status Review does an excellent job of summarizing current 
knowledge about population delineations, basic biology, and population 
assessment of Steller sea lions relative to evaluating the delisting 
criteria established by the Recovery Team. Peer Reviewer 4 concluded 
that the draft Status Review presents clear factual information and has 
drawn appropriate conclusions that are well supported by current 
knowledge.
    Peer Reviewer Comment on Status: Peer Reviewer 3 suggested that the 
proposed rule and draft Status Review be revised to allow for the 
possibility that the eastern DPS was never at risk. However, this peer 
reviewer stated that he/she did not think a retrospective analysis of 
the 1997 status is necessary nor should it be a priority.
    Response: NMFS does not agree that the status review should be 
revised to allow for the possibility that this species was never 
threatened. The ESA listing of the Steller sea lion as a single species 
occurred prior to the recognition of western and eastern DPSs of 
Steller sea lions. The original listing followed widespread intentional 
take throughout parts of the range of what is now the eastern DPS, as 
well as other actions that led to the considerable reduction in 
population size and loss of rookeries. At the time of the recognition 
of separate DPSs with differing listing statuses, data were 
insufficient to determine that factors causing declines in the western 
DPS or a lack of recovery in the southern part of the eastern DPS would 
not spread to other parts of the range of the eastern DPS. Hence, 
because the eastern DPS was at risk of becoming endangered within the 
foreseeable future, listing of the eastern DPS under the ESA remained 
appropriate. This allowed us to have a longer period of sustained 
increase over which to gain confidence that the growth of the eastern 
DPS was not temporary and was not likely to reverse after a short 
period. The protections afforded by the ESA likely facilitated the 
recovery of the eastern DPS.
    Peer Reviewer Comment on Habitat: Regarding section 3.2.1 of the 
Status

[[Page 66167]]

Review (NMFS 2013a), Peer Reviewer 2 recommended that NMFS add that, in 
the region between Cape St. Elias and Cross Sound, there are few areas 
with rocky shorelines and no offshore islands that are preferred 
habitats for Steller sea lions hauling out and pupping/breeding. Thus, 
there is habitat discontinuity between these locations.
    Response: We modified section 3.2.1 of the Status Review to include 
this information.
    Peer Reviewer Comments on the PDMP: Peer Reviewer 4 believes that 
consideration should be given to broadening PDMP partnerships by 
including academic and other non-government organizations with Steller 
sea lion research expertise as Regional Collaborators.
    Response: We agree and have broadened our list of partnerships by 
including academic and other non-government organizations with Steller 
sea lion research expertise as Regional Collaborators.

Conclusions and Listing Determination

    Based on information in the Recovery Plan and review of new 
information discussed in the Status Review, including information 
received from public and peer reviewer comments, we find the following:
     The biological (demographic) criterion for delisting 
identified in the Recovery Plan has been met.
     None of the residual or emerging potential threats 
evaluated under the five ESA section 4(a)(1) factors, individually or 
cumulatively, is likely to result in the species becoming in danger of 
extinction within the foreseeable future throughout all or a 
significant portion of the range of the DPS.
     NMFS has taken actions to address the ESA Listing Factor 
Criteria set forth in the Recovery Plan.
     Following delisting of the eastern DPS, the MMPA and other 
laws and regulations, if effectively implemented, should promote the 
continued recovery of the eastern DPS of Steller sea lions such that it 
is not likely to become in danger of extinction within the foreseeable 
future throughout all or a significant portion of its range.
    Therefore, NMFS finds that removal of the eastern DPS of the 
Steller sea lion from the list of threatened species is warranted 
because the DPS no longer meets the definition of a threatened species. 
We intend to implement the PDMP for ten years beyond delisting to 
ensure that recovery continues.

Post-Delisting Monitoring Plan (PDMP)

    NMFS developed a PDMP to govern monitoring following delisting. As 
directed in our PDMP guidance (USFWS and NMFS 2008), the primary goal 
of this monitoring is to ensure that the status of the eastern DPS ``. 
. . does not deteriorate, and if a substantial decline in the species, 
. . . or an increase in threats is detected, to take measures to halt 
the decline so that re-proposing it as a threatened or endangered 
species is not needed.'' If a population decline or an increase in 
threats is detected, NMFS will take measures in collaboration with the 
States and other partners to prevent the species from becoming 
threatened again. The draft PDMP was included as an appendix to the 
draft Status Review, was released for public comment, and was revised 
in consideration of that comment.
    The PDMP has three primary goals:
     Monitor the population to detect changes in trends in pup 
production and adult/juvenile (non-pup) counts and vital rates 
(survival and birth rates), and to continue to assess how movement 
across the western-eastern DPS boundary may be affecting non-pup counts 
in each DPS.
     Monitor threats that potentially could affect the 
sustainability of the recovery of the eastern DPS.
     Determine if there is a northward extension of the 
patterns observed in southern California where rookeries were 
abandoned, or in parts of central California, such as the Farallon 
Islands, where population increase either did not occur or occurred 
only weakly, and hence where population density is low or becoming 
lower; if the breeding and feeding ranges of this species are 
continuing to shift northward; and if range contraction is occurring.
    The PDMP also provides response triggers to prompt additional 
evaluation and appropriate response. If necessary, NMFS could increase 
the sensitivity of status and trend monitoring; design research to 
determine causes of changes in population trend or declines in pup 
production or vital rates; work with States, tribes, or other entities 
to exercise their regulatory authorities to alleviate known or 
suspected threats; utilize the MMPA to protect the species and/or its 
habitat; extend the monitoring period; re-evaluate the significance of 
threats to the eastern DPS; or evaluate re-listing the eastern DPS of 
Steller sea lion under the ESA.

Effects of the Delisting

    This final rule will eliminate the protection afforded to the 
eastern DPS of Steller sea lions under the ESA. It will not affect the 
ESA status of the endangered western DPS of Steller sea lions. All 
Steller sea lions will continue to receive protections under the MMPA.
    Due to this final rule, Federal agencies will no longer be required 
to consult with NMFS under section 7 of the ESA in the event activities 
they authorize, fund, or carry out may affect the eastern DPS of 
Steller sea lions. This rule does not remove or otherwise affect the 
ongoing requirement for Federal agencies, pursuant to section 7 of the 
ESA, to ensure that any action they fund, authorize, or carry out is 
not likely to jeopardize the continued existence of the western DPS of 
Steller sea lions or result in the destruction or adverse modification 
of designated critical habitat.
    Critical habitat for the Steller sea lion remains in effect for the 
listed, endangered western DPS, as the designated critical habitat 
continues to support the western DPS's important biological functions 
(e.g., feeding and resting). NMFS will re-examine in a separate 
rulemaking the existing critical habitat designation to consider any 
new and pertinent sources of information, including the delisting of 
the eastern DPS. In the interim, during ESA section 7 consultations for 
federal actions that may affect currently designated Steller sea lion 
critical habitat, NMFS will address effects to such habitat in terms of 
effects to those physical and biological features essential to the 
conservation of the western DPS.
    The only regulatory changes resulting from this final rule that are 
germane to the endangered western DPS of Steller sea lions are the 
removal of the prohibition on the discharge of firearms at or within 
100 yards of a Steller sea lion east of 144 [deg]W, and the 
recodification of protections and exemptions for the western DPS 
currently within 50 CFR 223.202 to 50 CFR 224.103.
    ESA section 9 prohibitions apply to endangered species by operation 
of law and may be extended to threatened species by regulation under 
section 4(d) of the ESA. The section 9 prohibitions for eastern DPS 
animals are removed with this final rule but section 9 prohibitions for 
western DPS animals continue to apply. When we recognized two DPSs of 
Steller sea lions, listed the western DPS as endangered, and listed the 
eastern DPS as threatened, we extended the section 9 prohibitions to 
the eastern DPS (62 FR 24345; May 5, 1997). Following publication of 
this final rule, NMFS will separately consider whether additional 
protection is needed for western DPS Steller sea lions in those parts 
of their range east of 144 [deg]W. longitude.
    Notwithstanding the deletion of 50 CFR 223.202 and the removal of 
the prohibition against the discharge of

[[Page 66168]]

firearms at or within 100 yards of a Steller sea lion east of 144 
[deg]W, the take of all Steller sea lions, including take by 
harassment, will continue to be prohibited under the MMPA, unless 
specifically authorized by NMFS or exempted from the MMPA's moratorium 
on take.
    A species or population stock that is listed as an endangered 
species or a threatened species under the ESA is considered 
``depleted'' and a ``strategic stock'' under the MMPA. Thus, the 
delisting of the eastern DPS of Steller sea lion under the ESA will 
likely lead to two modifications to classifications of the eastern DPS 
of Steller sea lion under the MMPA: from its current classification as 
a ``strategic stock'' and as a ``depleted'' species to a new 
classification as a ``non-strategic stock'' and/or as not depleted. In 
consultation with one or more of three regional Scientific Review 
Groups, and following public review and comment, NMFS prepares annual 
marine mammal stock assessment reports. The stock assessments reports 
for ``strategic stocks'' are reviewed annually whereas those for non-
strategic stocks are reviewed every three years, or when new 
information becomes available. Thus, if the eastern DPS (eastern 
``stock'' under the MMPA) is reclassified as a non-strategic stock, the 
review of its stock assessment report may become less frequent. NMFS 
will consider redesignating the eastern stock of Steller sea lions as 
non-strategic and not depleted under the MMPA following review by the 
Alaska Scientific Review Group in 2014.

Description of Regulatory Changes

    This final rule removes the eastern DPS of Steller sea lions from 
the list of threatened species in 50 CFR 223.102.
    Section 223.202 established various protective measures for 
threatened eastern DPS Steller sea lions, including a specific 
prohibition on discharging a firearm at or within 100 yards of a 
Steller sea lion, a prohibition on vessel transit within 3 nautical 
miles of specific Steller sea lion rookery sites, and a list of certain 
exemptions to some of those same protections. We are deleting 50 CFR 
223.202, and we are recodifying these protections and exemptions for 
the western DPS as appropriate within 50 CFR 224.103.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA de-listing 
actions. (See NOAA Administrative Order 216-6.)

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analyses required by the Regulatory 
Flexibility Act are not applicable to the de-listing process. In 
addition, this rule is exempt from review under E.O. 12866. This final 
rule does not contain a collection of information requirement for the 
purposes of the Paperwork Reduction Act.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this final rule.

E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175 outlines the responsibilities of the 
Federal Government in matters affecting tribal interests. Section 161 
of Public Law 108-199 (188 Stat. 452), as amended by section 518 of 
Public Law 108-447 (118 Stat. 3267), directs all Federal agencies to 
consult with Alaska Native corporations on the same basis as Indian 
tribes under E.O. 13175.
    NMFS has coordinated with Alaska Native communities regarding 
eastern DPS of Steller sea lion management issues through the Sea Otter 
and Steller Sea Lion Commission (TASSC). NMFS has briefed TASSC on this 
delisting action at TASSC annual meetings and provided updates 
regarding the timeline for the eastern DPS of Steller sea lion status 
review. Prior to the release of the proposed rule, NMFS was in also in 
contact with the Makah Tribe. Following publication of the proposed 
rule, we notified the Columbia River Inter-Tribal Fish Commission and 
the Makah Tribe. At various stages of the process from the notice of 
initiation of the 5-year review through the publication of the proposed 
rule, NMFS received comments, information, and/or other input from the 
Columbia River Inter-Tribal Fish Commission, the Makah Tribe, and the 
Northwest Indian Fisheries Commission. NMFS considered all of the 
comments received from Alaska Native organizations and Pacific 
Northwest tribal organizations at these various stages. We have 
addressed those comments in this final rule. NMFS did not receive any 
formal requests to consult on the proposed action.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://alaskafisheries.noaa.gov and is 
available upon request from the NMFS office in Juneau, Alaska (see 
ADDRESSES).

List of Subjects

50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 224

    Endangered marine and anadromous species.

    Dated: October 21, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Acting Deputy Assistant Administrator for Regulatory 
Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority:  16 U.S.C. 1531-1543.

[[Page 66169]]

Sec.  223.102  [Amended]

0
2. In Sec.  223.102, the table is amended by removing and reserving 
paragraph (a)(2).


Sec.  223.202  [Removed]

0
3. Section 223.202 is removed.

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
4. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
5. In Sec.  224.103, revise paragraph (d) to read as follows:


Sec.  224.103  Special prohibitions for endangered marine mammals.

* * * * *
    (d) Special prohibitions relating to endangered Steller sea lion 
protection.--(1) General Prohibitions. The following regulatory 
provisions shall apply to the western population of Steller sea lions:
    (i) No discharge of firearms. Except as provided in paragraph 
(d)(2) of this section, no person subject to the jurisdiction of the 
United States may discharge a firearm at or within 100 yards (91.4 
meters) of a Steller sea lion west of 144 [deg]W longitude. A firearm 
is any weapon, such as a pistol or rifle, capable of firing a missile 
using an explosive charge as a propellant.
    (ii) No approach in buffer areas. Except as provided in paragraph 
(d)(2) of this section:
    (A) No owner or operator of a vessel may allow the vessel to 
approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion 
rookery site listed in paragraph (d)(1)(iii) of this section;
    (B) No person may approach on land not privately owned within one-
half statutory mile (0.8 kilometers) or within sight of a Steller sea 
lion rookery site listed in paragraph (d)(1)(iii) of this section, 
whichever is greater, except on Marmot Island; and
    (C) No person may approach on land not privately owned within one 
and one-half statutory miles (2.4 kilometers) or within sight of the 
eastern shore of Marmot Island, including the Steller sea lion rookery 
site listed in paragraph (d)(1)(iii) of this section, whichever is 
greater.
    (iii) Listed sea lion rookery sites. Listed Steller sea lion 
rookery sites consist of the rookeries in the Aleutian Islands and the 
Gulf of Alaska listed in Table 1.

                                          Table 1 to Sec.   224.103--Listed Steller Sea Lion Rookery Sites \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     From                                            To
            Island             ----------------------------------------------------------------------------------------------   NOAA          Notes
                                         Lat.                    Long.                   Lat.                  Long.            Chart
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Outer I....................  59[deg]20.5 N.........  150[deg]23.0 W........  59[deg]21.0 N........  150[deg]24.5 W.......     16681  S quadrant.
2. Sugarloaf I................  58[deg]53.0 N.........  152[deg]02.0 W........                                                   16580  Whole island.
3. Marmot I...................  58[deg]14.5 N.........  151[deg]47.5 W........  58[deg]10.0 N........  151[deg]51.0 W.......     16580  SE quadrant.
4. Chirikof I.................  55[deg]46.5 N.........  155[deg]39.5 W........  55[deg]46.5 N........  155[deg]43.0 W.......     16580  S quadrant.
5. Chowiet I..................  56[deg]00.5 N.........  156[deg]41.5 W........  56[deg]00.5 N........  156[deg]42.0 W.......     16013  S quadrant.
6. Atkins I...................  55[deg]03.5 N.........  159[deg]18.5 W........                                                   16540  Whole island.
7. Chernabura I...............  54[deg]47.5 N.........  159[deg]31.0 W........  54[deg]45.5 N........  159[deg]33.5 W.......     16540  SE corner.
8. Pinnacle Rock..............  54[deg]46.0 N.........  161[deg]46.0 W........                                                   16540  Whole island.
9. Clubbing Rks (N)...........  54[deg]43.0 N.........  162[deg]26.5 W........                                                   16540  Whole island.
Clubbing Rks (S)..............  54[deg]42.0 N.........  162[deg]26.5 W........                                                   16540  Whole Island.
10. Sea Lion Rks..............  55[deg]28.0 N.........  163[deg]12.0 W........                                                   16520  Whole island.
11. Ugamak I..................  54[deg]14.0 N.........  164[deg]48.0 W........  54[deg]13.0 N........  164[deg]48.0 W.......     16520  E end of island.
12. Akun I....................  54[deg]18.0 N.........  165[deg]32.5 W........  54[deg]18.0 N........  165[deg]31.5 W.......     16547  Billings Head
                                                                                                                                         Bight.
13. Akutan I..................  54[deg]03.5 N.........  166[deg]00.0 W........  54[deg]05.5 N........  166[deg]05.0 W.......     16520  SW corner, Cape
                                                                                                                                         Morgan.
14. Bogoslof I................  53[deg]56.0 N.........  168[deg]02.0 W........                                                   16500  Whole island.
15. Ogchul I..................  53[deg]00.0 N.........  168[deg]24.0 W........                                                   16500  Whole island.
16. Adugak I..................  52[deg]55.0 N.........  169[deg]10.5 W........                                                   16500  Whole island.
17. Yunaska I.................  52[deg]42.0 N.........  170[deg]38.5 W........  52[deg]41.0 N........  170[deg]34.5 W.......     16500  NE end.
18. Seguam I..................  52[deg]21.0 N.........  172[deg]35.0 W........  52[deg]21.0 N........  172[deg]33.0 W.......     16480  N coast,
                                                                                                                                         Saddleridge Pt.
19. Agligadak I...............  52[deg]06.5 N.........  172[deg]54.0 W........                                                   16480  Whole island.
20. Kasatochi I...............  52[deg]10.0 N.........  175[deg]31.5 W........  52[deg]10.5 N........  175[deg]29.0 W.......     16480  N half of
                                                                                                                                         island.
21. Adak I....................  51[deg]36.5 N.........  176[deg]59.0 W........  51[deg]38.0 N........  176[deg]59.5 W.......     16460  SW Point, Lake
                                                                                                                                         Point.
22. Gramp rock................  51[deg]29.0 N.........  178[deg]20.5 W........                                                   16460  Whole island.
23. Tag I.....................  51[deg]33.5 N.........  178[deg]34.5 W........                                                   16460  Whole island.
24. Ulak I....................  51[deg]20.0 N.........  178[deg]57.0 W........  51[deg]18.5 N........  178[deg]59.5 W.......     16460  SE corner,
                                                                                                                                         Hasgox Pt.
25. Semisopochnoi.............  51[deg]58.5 N.........  179[deg]45.5 E........  51[deg]57.0 N........  179[deg]46.0 E.......     16440  E quadrant,
                                                                                                                                         Pochnoi Pt.
Semisopochnoi.................  52[deg]01.5 N.........  179[deg]37.5 E........  52[deg]01.5 N........  179[deg]39.0 E.......     16440  N quadrant,
                                                                                                                                         Petrel Pt.
26. Amchitka I................  51[deg]22.5 N.........  179[deg]28.0 E........  51[deg]21.5 N........  179[deg]25.0 E.......     16440  East Cape.
27. Amchitka I................  51[deg]32.5 N.........  178[deg]49.5 E........                                                   16440  Column Rocks.
28. Ayugadak Pt...............  51[deg]45.5 N.........  178[deg]24.5 E........                                                   16440  SE coast of Rat
                                                                                                                                         Island.
29. Kiska I...................  51[deg]57.5 N.........  177[deg]21.0 E........  51[deg]56.5 N........  177[deg]20.0 E.......     16440  W central, Lief
                                                                                                                                         Cove.
30. Kiska I...................  51[deg]52.5 N.........  177[deg]13.0 E........  51[deg]53.5 N........  177[deg]12.0 E.......     16440  Cape St.
                                                                                                                                         Stephen.
31. Walrus I..................  57[deg]11.0 N.........  169[deg]56.0 W........                                                   16380  Whole island.
32. Buldir I..................  52[deg]20.5 N.........  175[deg]57.0 E........  52[deg]23.5 N........  175[deg]51.0 E.......     16420  Se point to NW
                                                                                                                                         point.
33. Agattu I..................  52[deg]24.0 N.........  173[deg]21.5 E........                                                   16420  Gillion Point.
34. Agattu I..................  52[deg]23.5 N.........  173[deg]43.5 E........  52[deg]22.0 N........  173[deg]41.0 E.......     16420  Cape Sabak.
35. Attu I....................  52[deg]54.5 N.........  172[deg]28.5 E........  52[deg]57.5 N........  172[deg]31.5 E.......     16681  S Quadrant.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline at mean lower low water to the second
  set of coordinates; or, if only one set of geographic coordinates is listed, the site extends around the entire shoreline of the island at mean lower
  low water.

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    (iv) Commercial Fishing Operations. The incidental mortality and 
serious injury of endangered Steller sea lions in commercial fisheries 
can be authorized in compliance with sections 101(a)(5) and 118 of the 
Marine Mammal Protection Act.
    (2) Exceptions--(i) Permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
paragraph (d)(1) of this section in accordance with and subject to the 
provisions of part 222, subpart C of this chapter--General Permit 
Procedures.
    (ii) Official activities. The taking of Steller sea lions must be 
reported within 30 days to the Regional Administrator, Alaska Region. 
Paragraph (d)(1) of this section does not prohibit or restrict a

[[Page 66199]]

Federal, state or local government official, or his or her designee, 
who is acting in the course of official duties from:
    (A) Taking a Steller sea lion in a humane manner, if the taking is 
for the protection or welfare of the animal, the protection of the 
public health and welfare, or the nonlethal removal of nuisance 
animals; or
    (B) Entering the buffer areas to perform activities that are 
necessary for national defense, or the performance of other legitimate 
governmental activities.
    (iii) Subsistence takings by Alaska natives. Paragraph (d)(1) of 
this section does not apply to the taking of Steller sea lions for 
subsistence purposes under section 10(e) of the Act.
    (iv) Emergency situations. Paragraph (d)(1)(ii) of this section 
does not apply to an emergency situation in which compliance with that 
provision presents a threat to the health, safety, or life of a person 
or presents a significant threat to the vessel or property.
    (v) Exemptions. Paragraph (d)(1)(ii) of this section does not apply 
to any activity authorized by a prior written exemption from the 
Regional Administrator, Alaska Region, National Marine Fisheries 
Service. Concurrently with the issuance of any exemption, the Assistant 
Administrator will publish notice of the exemption in the Federal 
Register. An exemption may be granted only if the activity will not 
have a significant adverse effect on Steller sea lions, the activity 
has been conducted historically or traditionally in the buffer zones, 
and there is no readily available and acceptable alternative to or site 
for the activity.
    (vi) Navigational transit. Paragraph (d)(1)(ii) of this section 
does not prohibit a vessel in transit from passing through a strait, 
narrows, or passageway listed in this paragraph if the vessel proceeds 
in continuous transit and maintains a minimum of 1 nautical mile from 
the rookery site. The listing of a strait, narrows, or passageway does 
not indicate that the area is safe for navigation. The listed straits, 
narrows, or passageways include the following:

------------------------------------------------------------------------
              Rookery                     Straits, narrow, or pass
------------------------------------------------------------------------
Akutan Island.....................  Akutan Pass between Cape Morgan and
                                     Unalga Island.
Clubbing Rocks....................  Between Clubbing Rocks and Cherni
                                     Island.
Outer Island......................  Wildcat Pass between Rabbit and
                                     Ragged Islands.
------------------------------------------------------------------------

    (3) Penalties. (i) Any person who violates this section or the Act 
is subject to the penalties specified in section 11 of the Act, and any 
other penalties provided by law.
    (ii) Any vessel used in violation of this subsection or the 
Endangered Species Act is subject to forfeiture under section 
11(e)(4)(B) of the Act.
* * * * *
[FR Doc. 2013-25261 Filed 11-1-13; 8:45 am]
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