[Federal Register Volume 62, Number 86 (Monday, May 5, 1997)]
[Rules and Regulations]
[Pages 24345-24355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11668]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 222 and 227
[Docket No. 961217358-6358-01; I.D. 041995B]
RIN 0648-XX77
Threatened Fish and Wildlife; Change in Listing Status of Steller
Sea Lions Under the Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: The Steller sea lion, Eumetopias jubatus, is currently listed
as threatened, pursuant to the Endangered Species Act (ESA), throughout
its range, which extends from California and associated waters to
Alaska, including the Gulf of Alaska (GOA) and Aleutian Islands, and
into the Bering Sea and North Pacific and into Russian waters and
territory. Based on biological information collected since the species
was listed as threatened in 1990, NMFS is now reclassifying Steller sea
lions as two distinct population segments under the ESA. The Steller
sea lion population segment west of 144 deg.W. long. (a line near Cape
Suckling, AK) is reclassified as endangered; the threatened listing is
being maintained for the remainder of the U.S. Steller sea lion
population.
EFFECTIVE DATE: June 4, 1997.
ADDRESSES: Requests for copies of this rule or a complete list of
references should be addressed to the Director, Office of Protected
Resources, National Marine Fisheries Service, 1315 East-West Highway,
Silver Spring, MD 20910
[[Page 24346]]
or the Director, Protected Resources Management Division, NMFS, Alaska
Regional Office, P.O. Box 21668, Juneau, AK 99802-1668.
FOR FURTHER INFORMATION CONTACT: Steve Zimmerman, 907-586-7235, or
Margot Bohan, 301-713-2322.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. population of Steller sea lions, which numbered close to
192,000 adults and juveniles (nonpups) 30 years ago, declined by 64
percent to less than 69,100 nonpups by 1989, with the majority of the
decline occurring in Alaska between the Kenai Peninsula and Kiska
Island. As a result of this precipitous decline, the species was listed
as threatened under provisions of the ESA in 1990 (55 FR 12645, April
5, 1990; see also, 55 FR 13488, April 10, 1990; 55 FR 49204, November
26, 1990; and, 55 FR 50005, December 4, 1990).
The current rule listing the Steller sea lion as a threatened
species contains a series of management measures to reduce direct
causes of mortality, to restrict opportunities for intentional and
unintentional harassment of Steller sea lions, and to minimize
disturbance and interference with Steller sea lion behavior, including
disruption of foraging behavior, especially at pupping and breeding
sites.
In conjunction with the listing, NMFS also appointed a Recovery
Team (Team) with the primary goal of developing a Recovery Plan (Plan)
to promote recovery of the Steller sea lion population to a level
appropriate to justify removal from ESA listings. The Plan was
published in December 1992, identifying factors limiting to the
population and recommending research and management actions to aid
population recovery.
As a result of ESA section 7 consultations on the effects of the
North Pacific federally-managed groundfish fisheries, NMFS developed
protective measures under the Magnuson Fishery Conservation and
Management Act (Magnuson-Stevens Act) to reduce the effects of certain
fisheries on Steller sea lion foraging (see 56 FR 28112, June 19, 1991;
57 FR 2683, January 23, 1992; and 58 FR 13561, March 12, 1993; current
protections are codified at 50 CFR Secs. 672.24(e) and 675.24(f)). In
1993, NMFS designated critical habitat for the species (at 58 FR 45269,
August 27, 1993), which includes all U.S. rookeries, major haulouts in
Alaska, horizontal and vertical buffer zones around these rookeries and
haulouts, and three aquatic foraging areas in North Pacific waters--
Seguam Pass, southeastern Bering Sea shelf and Shelikof Strait (50 CFR
226.12).
At the time that they were listed as threatened under the ESA, no
subpopulation distinction was identified for Steller sea lions. NMFS
determined that there was insufficient information available to
consider animals in different geographic regions as separate
populations. However, subsequent analysis of mitochondrial DNA provided
new information, leading to a conclusion that a distinct population
segment was identifiable (Bickham et al., 1996). Furthermore, based on
a phylogeographical analysis (Dizon et al., 1992) using Steller sea
lion population dynamics, data from tagging, branding and radio-
telemetry studies, phenotypic data, and genetics, NMFS has been able to
delineate two discrete population segments of Steller sea lions within
their geographic range: an eastern segment, which includes animals east
of Cape Suckling, AK (144 deg.W. long.) and a western segment, which
includes animals at and west of Cape Suckling, AK.
Since 1990, NMFS, the Alaska Department of Fish and Game (ADFG),
the Oregon Department of Fish and Wildlife, and the Canadian and
Russian governments have continued to assess the Steller sea lion
populations and to study the cause(s) of the decline. Results of 1990-
94 surveys to monitor abundance trends indicated that the number of
adults and juveniles continued to decline in Alaska (4 percent per
year) during that period. Since 1994, preliminary findings indicate an
overall decrease of 7.8 percent in nonpup numbers at trend sites
(rookeries and haulouts that have been counted during every major
survey) in Alaska. Pup numbers in the GOA and Aleutian Islands declined
at a rate of 8 percent per year during 1990-1994. In addition, a
partial survey of Steller sea lion pups conducted at nine rookeries
from Southeast Alaska to the eastern Aleutian Islands indicates a 6.1
percent decrease in pup numbers at surveyed sites since 1994.
Because this information indicates a continued decline, NMFS
initiated a formal population status review to determine whether a
change in listing status was warranted (58 FR 58318, November 1, 1993).
NMFS received 16 comments in response to the status review notice.
To complete the status review and to calculate the future trends of
the U.S. Steller sea lion populations, should the historical trends
persist, population viability analyses (PVAs) were prepared. NMFS
determined that PVAs were only necessary for the western population
segment, because the eastern population segment is likely to maintain
current abundance for the foreseeable future. Based on the 1985-94 and
1989-94 population trends, models of the declining western population
segment were developed to evaluate the probability of persistence of
the population over the foreseeable future (the next 100 years). Two
PVA models were developed based on a stochastic model of exponential
growth that required only count data and count variance to predict
future trends. Essentially, the models project the future population
trend, using the historical trend, and estimate the probabilities that
specific population sizes will be reached based on both the trend and
the observed variance around the historical trend. Only adult females
were considered as part of the model because this is the population
segment that dictates population growth in sea lions.
One model, an aggregate Kenai-Kiska Island (trend sites) model, was
based on the trajectory of the sum of the rookery populations within
the area. The second model was based on a simulation of the population
trajectories of individual rookeries in the Kenai-Kiska area.
Both models predicted that the Kenai-Kiska population would be
reduced to low levels within 100 years from the present if either the
1985-94 or the 1989-94 trend continues into the future. The Kenai-Kiska
regional model predicted a 100 percent probability of extinction within
100 years from the 1985-94 trend data, and a 65 percent probability of
extinction within 100 years if the 1989-94 trend continues.
Under each of these modeling scenarios, the results indicate that,
if either trend persists, the next 20 years will be crucial to the
survival of the western Alaska population of Steller sea lions.
On November 29-30, 1994, NMFS convened the Team to consider the
appropriate ESA listing status for the species and to evaluate the
adequacy of ongoing research and management programs. In the course of
that meeting and in subsequent letters to the Assistant Administrator
for Fisheries, NOAA, the Team recommended that NMFS list the Steller
sea lion as two distinct population segments, split to the east and
west of 144 deg.W. long. The Team recommended that the western
population segment be listed as endangered and that the eastern
population segment remain listed as threatened.
Based on the status review comments, recommendations from the
Steller sea lion recovery team, the International
[[Page 24347]]
Union for the Conservation of Nature's (IUCN) vulnerability criteria
and additional data and analyses compiled by NMFS (including genetics,
phenetics, population trend data, and data from tagging/branding
studies), NMFS issued a proposed rule and request for comments on
October 4, 1995 (60 FR 51968), to delineate two distinct population
segments of Steller sea lions and reclassify the segment west of 144
deg.W. long. as endangered, while maintaining the eastern segment as
threatened pursuant to the ESA.
II. Comments and Responses on Proposed Rule To Reclassify
NMFS received 14 comments on the proposed rule (60 FR 51968,
October 4, 1995) during the 90-day comment period. Four comments were
received from environmental groups, three comments were received from
Federal, state and local governments, one comment was received from an
academic institution, one comment was received from Alaskan Native
interest groups, four comments were received from fishing industry
groups, and one comment was received from a private individual. These
comments, which are discussed below, address the following issues:
Separate population listings, listing status, population viability
analysis, protective management measures, buffer zone exemptions and
research, and research funding.
Separate Population Listings
Comment: The majority of commenters were in support of the proposal
to separate the Steller sea lion species into two distinct segments.
One commenter, however, questioned the segmentation into two distinct
populations, as opposed to three or four populations. Another commenter
recommended designating the line separating the population segments at
147 deg. W. long., which is central Prince William Sound; this would
follow the Federal groundfish districts for the eastern and western
GOA. The commenter reasoned that this would still maintain the major
haulout and pupping areas of Prince William Sound in the western
population region, while enabling fishing to continue.
Response: NMFS was able to delineate two discrete populations of
Steller sea lions within their geographic range using the
phylogeographic method. Mitochondrial DNA analyses conducted on samples
taken from newborn pups on rookeries from Oregon, Alaska, and Russia
defined 52 haplotypes, which could be further grouped into eight
maternal lineages. Cluster analysis indicates that these lineages can
be divided into two genetically differentiated population segments, an
eastern and a western segment with separation at Prince William Sound.
Other supporting evidence for two discrete populations includes
distinct population trends, rookery site fidelity of tagged/branded
animals, and possible phenotypic differences (e.g., pup size, skull
size). These results were presented at the September 1994 Workshop on
the Use of Genetics Data to Diagnose Management Units, and the
conclusion of two distinct population segments was endorsed by the
workshop attendees.
NMFS' decision to separate the two populations at 144 deg. W.
long., as opposed to 147 deg. W. long., was also based largely on
genetics data and population trends. Steller sea lion declines have
occurred between 144 deg. W. and 147 deg. W. long.; such has not been
the case east of 144 deg. W. long. Few sea lions are found between
144 deg. W. long. and southeast Alaska where the population has been
more stable. West of 144 deg. W. long., however, sea lions are
distributed relatively continuously and are declining. NMFS will
continue genetics studies in order to better determine relationships
between population segments and among rookeries. Clarification of the
criteria used to determine the presence of distinct population segments
is outlined in this rule under section III. Final Policy on Population
Determinations.
Change in Listing Status
Comment: Several commenters indicated their support for a change in
the listing status of the western population from threatened to
endangered while maintaining a threatened status for the eastern
population. Comments were also received by NMFS to reclassify Steller
sea lions along the west coast of the U.S. (south of 49 deg. N. lat.)
to endangered. Other commenters stated that the current listing of the
species as threatened provides NMFS with sufficient regulatory
authority to protect Steller sea lions; therefore, a change in listing
status to endangered for the western population segment is not
necessary. In addition, delisting should be considered for the eastern
population segment.
Response: The ESA requires that listing and reclassification
decisions be made solely on the basis of the best scientific and
commercial information available regarding the species' population
status (section 4(b)(1)(A)). Each of the five factors described in
section 4(a)(1) of the ESA must be considered in making a listing
status determination and are discussed in this preamble under section
IV. Listing Procedures: Summary of Factors Affecting the Species.
Steller sea lions are declining throughout their range, except in
the eastern Aleutian Islands and Bering Sea (BSAI) regions where the
numbers are increasing slightly. Nevertheless, the abundance there
remains only a fraction of what it was 20 years ago. The Team reviewed
the data on population trends, the PVA analysis for the western
population segment in relation to the reclassification criteria in the
Plan, as well as the ESA definition of ``endangered,'' and concluded
that the western population segment should be listed as endangered.
NMFS concurs with the recommendations of the Team and the IUCN Seal
Specialist Group's listing criteria, which also recommend a
classification of endangered.
The Team also agreed that there was continued concern for the
eastern population segment of Steller sea lions, despite the fact that
its current abundance may be stable. The history of declines in the
eastern Aleutian Islands (Merrick et al., 1987) has shown that the
Alaska Steller sea lion population decline has not followed a constant
trajectory. Periods of apparent moderation in the decline seem to have
been interspersed with periods of acute decline throughout the overall
period of decline.
NMFS takes a risk-averse approach to downlisting or delisting
species protected under the ESA. Although adult counts in southeastern
Alaska are considered stable, preliminary data indicate a decline of
7.2 percent in 1995-96, and pup production decreased by 20.5 percent
between 1989-90 and 1994-95. Steller sea lion numbers at the southern
margin are declining and the range is shrinking.
Furthermore, during the nonbreeding season of animals from the
eastern and western population segments mix at sea and at haulout
sites. These animals cannot be visually differentiated, and animals
from the western population segment need to be protected under the ESA
wherever they occur.
Evaluating the population status of the eastern population segment
without a consideration of its place in the overall species population
is inappropriate. Prior to the decline, the proportion of Steller sea
lions that resided within the eastern population segment was less than
10 percent of the entire species abundance (NMFS, 1995). Because of the
western population segment's decline, the eastern population segment's
numerical significance has increased. Thus,
[[Page 24348]]
although for listing purposes the western and eastern population
segments may be considered discrete, the substantial decline that has
occurred represents a threat to the continued existence of the entire
species.
In consideration of the relatively small fraction of the entire
population segment that exists in the eastern part of the range, and
the limited knowledge of the underlying causes of the decline, the
eastern population segment should maintain its threatened status under
the ESA. The Team recommended that monitoring of the eastern population
segment be continued to determine if delisting is appropriate, and
delisting criteria will be developed by NMFS in consultation with the
Team.
Population Viability Analysis
Comment: One commenter stated that the PVA used to evaluate the
future trend of the U.S. Steller sea lion population was incomplete,
misleading and, if applied to humans, would predict that the human
population will increase to infinity. Another commenter indicated that
the PVA should be peer-reviewed by independent experts. Some commenters
expressed concern regarding the weight that would be given to the
results of the Steller sea lion PVA. They noted difficulties in
predicting future population trends with confidence when causal
relationships are not understood and suggested that NMFS use the PVA
results with caution in the listing status determination.
Response: NMFS believes that the PVA provides the best estimate of
extinction risk possible with existing population data and scientific
methods. It was submitted for review and approved by outside,
independent experts. The validity of the predictions made by the PVA
model(s) is conditioned on the validity of its premise. The central
premise in the PVA modeling is that the decreasing population pattern
of the past 25 years will continue into the distant future. The model
assumes that the decline will not abate, and, in fact, there is no
indication that it will. PVA models are not valid for increasing
populations (and the authors do not apply the model(s) to increasing
populations, such as the human population); therefore the commenter's
analogy regarding humans is not appropriate. The upper limit on the
size of the Steller sea lion population was ignored because the authors
of the PVA were trying to answer the question: How long will the
population persist if the present pattern of decline continues? The PVA
represents an exploration into that query alone. NMFS recognizes the
limitations of population modeling to accurately predict future trends
for this population. Thus, although the PVA results have been
considered in the status determination, these have not been given
greater weight than population trend data and the scientific opinion of
experts, both within and outside NMFS.
Protective Management Measures
Comment: Several commenters raised issues regarding the protective
measures currently in place to aid recovery of Steller sea lions. Some
commenters felt that additional/revised regulations were needed to
provide improved protection. One commenter questioned the efficacy of
the 3 nautical mile (nm) (5.5 kilometer (km)) buffer zones around
certain rookeries west of 150 deg.W. long., restricting all human
activities year-round. Another commenter indicated the need to support
full partnerships with coastal communities and develop cooperative
management programs. Two commenters suggested that NMFS, in
consultation with the Team, convene a panel of independent experts to
evaluate and make recommendations on the full range of fishery and
resource management practices that may be useful for reversing the
decline of Steller sea lions.
Response: Since the species' listing as threatened in 1990, NMFS
has implemented various protective measures for Steller sea lions under
the ESA and the Magnuson-Stevens Act. These measures are intended to
reduce intentional and unintentional mortality and harassment,
disturbance of breeding areas and reproduction, and the possible
effects of commercial fishing on the availability of Steller sea lion
prey.
The purposes of the buffer zones are: (1) To restrict opportunities
for individuals to shoot at sea lions and to facilitate the enforcement
of the restriction; (2) to reduce the likelihood of interactions with
sea lions such as accidents or incidental takings in areas where
concentrations of the animals are expected to be high; (3) to minimize
disturbances and interference with sea lion behavior, e.g., boating
activity, especially at pupping and breeding sites; and (4) to avoid or
minimize other related adverse effects (which could include prey
removal in the immediate areas surrounding the rookeries).
NMFS believes it is premature to propose changes to the Steller sea
lion protective measures, because: (1) More time is required to assess
what, if any, benefit has been derived from the actions currently in
place; and (2) given the limited knowledge of the sea lion/fishery prey
interaction and the effects of human disturbance, it is difficult to
identify meaningful management actions in addition to those already in
place. It will continue to be difficult to demonstrate a definitive
causal link between Steller sea lion decline and fishery-related
activities due to the complex nature of the interactions between
fisheries and marine mammals on a large scale.
Buffer Zone Exemptions
Comment: One commenter remarked that the 3 nm (5.5 km) approach
prohibition places an excessive burden on the Adak crab fleet by
precluding crab fishing activities. The commenter explained further
that the Adak crab fleet, by nature of fishing practices, fishing gear,
bycatch composition and observer requirements, can be shown to address
adequately each of the concerns associated with the restrictions of the
buffer areas without the imposition of such restrictions. The commenter
requested limited exemptions, waivers, or special permits for the Adak
crab fleet to fish within the buffer areas.
Response: A mechanism is provided under existing regulations (55 FR
49204, November 26, 1990) to allow the public to petition the Regional
Administrator, Alaska Region, NMFS, to issue exemptions for any
activity that has historically or traditionally occurred within a
buffer zone, is not likely to adversely affect sea lions, and for which
there is no readily available and acceptable alternative to conducting
the activity within a buffer zone. Notice of all such exemptions will
be published in the Federal Register.
Research and Research Funding
Comment: Several commenters recommended an expansion of existing
research efforts and offered specific recommendations for areas of
research. The majority of commenters urged NMFS to place emphasis on
investigating the temporal and spatial prey (fish) availability across
the foraging range of the Steller sea lion and on examining the impact
of changes in biomass of the forage fish/prey upon Steller sea lion.
One commenter questioned whether NMFS is currently accounting for all
catch and discards in groundfish fisheries, especially walleye pollock.
Cooperative research and monitoring programs were recommended with an
emphasis on the walleye pollock and other forage fish exploitation in
Russian waters of the Bering Sea. Commenters recommended that NMFS
reconvene the Team to review and revise the research priorities and
recommendations in the Plan based on existing data and information from
[[Page 24349]]
ongoing research. Support was expressed for use of a peer review
process, to examine plans for satellite telemetry studies, and food
habits/foraging ecology research.
Response: NMFS is addressing the majority of these comments through
the Steller Sea Lion Recovery Research Program, a federally-funded
effort, cooperatively implemented by NMFS and ADFG since 1992. The
Steller Sea Lion Recovery Research Program involves state and private
research entities and receives input from the Team. At the November 29-
30, 1994, Steller Sea Lion Recovery Team meeting, the Team concluded
that individual research peer review workshops were needed to review
research conducted to date and to define necessary changes in research
program emphasis. This peer review process is considered an essential
precursor to updating the Plan (revised Plan due in 1998).
NMFS intends to conduct peer reviews on several components of the
Steller Sea Lion Recovery Research Program. The general goals of
research peer review, as expressed by the Team, are to determine: (1)
Whether the research facilitates recovery or leads to the
identification of management actions to aid the species; (2) whether it
is cost effective; and (3) whether the work has been completed or has
reached a specified level of completion. More specifically, these
recovery program component reviews are intended to: (a) Evaluate
hypotheses being tested by the current suite of studies; (b) review
program design and methods; (c) review results obtained to date; (d)
evaluate whether current projects and methods are likely to adequately
address hypotheses proposed; (e) evaluate how studies being done fit
into the broader context of studies on Steller sea lions and their
ecosystems; (f) evaluate the degree of and need for coordination among
related studies; and (g) make recommendations for continuation,
modification, or deletion of specific studies.
Research peer review workshops will focus on four components of the
Steller Sea Lion Recovery Research Program: (1) Behavior--satellite
telemetry at-sea/behavior on land; (2) health/ physiology; (3) food
habits/feeding ecology, and; (4) prey competition studies. These
reviews will involve experts from outside NMFS and the Team to assess
research conducted to date and to identify appropriate future actions
that are most likely to stop the decline of Steller sea lions. This
peer review process is also considered an essential precursor to
updating the Recovery Plan. Steller sea lion peer review workshops are
tentatively scheduled to begin in the fall of 1997.
III. Final Policy on Population Determinations
Only a ``species'' may be listed as threatened or endangered under
the ESA. This term is defined under section 3 of the ESA to include any
subspecies of fish or wildlife and any distinct population segment of
any species of fish or wildlife that interbreeds when mature. On
February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS)
published a policy to clarify their interpretation of the phrase
``distinct population segment of any species of vertebrate fish or
wildlife'' for the purposes of listing, delisting, and reclassifying
species under the ESA (61 FR 4722).
NMFS used the criteria in this policy to assess the presence of
distinct population segments of Steller sea lions. The policy outlines
three elements to be considered in deciding the status of a possible
distinct population segment as endangered or threatened under the ESA:
(1) Discreteness of the population segment in relation to the
remainder of the species to which it belongs.
(2) The significance of the population segment to the species to
which it belongs.
(3) The population segment's conservation status in relation to the
Act's standards for listing (i.e., is the population segment, when
treated as if it were a species, endangered or threatened?).
Discreteness: A population segment of a vertebrate species may be
considered discrete if it satisfies either one of the following
conditions: (a) It is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors (quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation); or (b) it is
delimited by international governmental boundaries within which
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the ESA.
The former criterion is particularly relevant for Steller sea
lions. Genetic studies provide the strongest evidence that discrete
population segments of Steller sea lions exist. Bickham et al. (1996)
collected genetic samples from 224 Steller sea lion pups on rookeries
in Russia, the Aleutian Islands, the western and central GOA,
southeastern Alaska, and Oregon. Mitochondrial DNA analyses of these
samples identified a total of 52 haplotypes (sets of alleles of closely
linked genes that tend to be inherited together, uniquely identifying a
chromosome) that could be further grouped together into eight lineages.
Bickham et al. (1996) found a distinct break in haplotype distribution
between the four western localities and the two eastern localities.
Cluster analysis indicated that the eight lineages could be subdivided
into two genetically differentiated populations, with the division at
about Prince William Sound. Ono (1993) conducted similar analyses on
samples obtained from 11 Steller sea lions on Ano Nuevo Island, CA, and
found seven haplotypes. Six of these were identical to those identified
from southeastern Alaska and Oregon by Bickham et al. (1996), and one
was unique to Ano Nuevo Island, CA.
Tagging and branding studies provide further evidence that the
breeding behavior of Steller sea lions probably reduces opportunities
for genetic mixing among rookeries although Steller sea lions have been
documented to travel large distances during the non-breeding season.
The majority of females marked as pups, then later resighted as adults,
have returned to their rookery of birth to breed (Calkins & Pitcher,
1982; NMFS, 1995). The few resighted females observed breeding at
rookeries other than their natal site were all at rookeries near their
birth rookery. This apparent natal site fidelity not only reduces
genetic mixing among rookeries, but it also makes it less likely that
declining rookeries will be bolstered by recruitment from other
rookeries.
Satellite telemetry studies also provide evidence of ``homing''
behavior in Steller sea lions. Generally, tracked sea lions forage from
a central place (either a rookery or nearby haulout) and return to that
place at the end of a foraging trip that may vary in duration from
hours to months (Merrick et al. 1994).
Population trend data provide further evidence of separation among
these two population segments. The Steller sea lion population east of
Cape Suckling (with the exception of the portion in southern
California) has remained stable since the 1970s, whereas the population
to the west has declined dramatically. It is also worth noting that the
only break in the distribution of Steller sea lions along the Alaskan
coast occurs in the Yakutat area, near the proposed longitudinal border
that would delineate the western and eastern population segments.
Loughlin (1994) used the phylogeographic approach proposed by
[[Page 24350]]
Dizon et al. (1992) to discern population discreteness in Steller sea
lions. Loughlin concluded, based on an evaluation of distribution,
population response, phenotypic, and genotypic data, that Steller sea
lions should be managed as two discrete populations, with the
separation point at about 144 deg.W. long.
Significance: If a population segment is considered discrete under
one or more of the above conditions, its biological and ecological
significance should then be considered. In carrying out this
examination, NMFS considered available scientific evidence of the
discrete population segment's importance to the taxon to which it
belongs. This consideration included, but was not limited to, the
following: (a) Persistence of the discrete population segment in an
ecological setting unusual or unique for this taxon; (b) evidence that
loss of the discrete population segment would result in a significant
gap in the range of a taxon; (c) evidence that the discrete population
segment represents the only surviving natural occurrence of a taxon
that may be more abundant elsewhere as an introduced population outside
its historic range; or (d) evidence that the discrete population
segment differs markedly from other populations of the species in its
genetic characteristics.
Because precise circumstances are likely to vary considerably from
case to case, it is not possible to describe prospectively all the
classes of information that might bear on the biological and ecological
importance of a discrete population segment.
In the case of Steller sea lions, the eastern and western
population segments (including the Russian population), make up the
entire range of the species. Extinction of either population segment
would represent a substantial loss to the ecological and genetic
diversity of the species as a whole. The importance of each of the
population segments indicates that the significance criterion of the
policy is satisfied.
Status: If a population segment is discrete and significant (i.e.,
it is a distinct population segment), its evaluation for endangered or
threatened status will be based on the ESA definition of those terms
and, primarily, a review of the factors enumerated in section 4(a) for
determining whether a species is endangered or threatened. In the
following section of this notice, the conservation status of each
Steller sea lion population segment is evaluated and discussed within
these contexts.
IV. Status Listing Procedures: Summary of Factors Affecting the
Species
Species may be determined to be endangered or threatened due to one
or more of five factors described in section 4(a)(1) of the ESA. These
factors, as they apply to the western and eastern Steller sea lions
population segments, are discussed below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Western Population Segment: Steller sea lions breed, pup, and seek
rest and refuge on relatively remote islands and points of land along
the Alaska coastline. There is no evidence that the availability of
rookery or haulout space is a limiting factor for this species. As the
number of animals in the western population segment continues to
decline, some rookeries and haulouts have been abandoned and the
availability of suitable terrestrial habitat is increasing. Terrestrial
habitat destruction and modification do not appear to be significant
issues for this population segment, or have a significant role in its
population decline.
There are indications that Steller sea lion declines may be related
to changes in the availability or quality of sea lion prey, as a result
of environmental changes or human activities (Alverson, 1991; Calkins
and Goodwin, 1988; Loughlin and Merrick, 1991; Merrick et al., 1987;
NMFS, 1992; NMFS, 1995). This issue is discussed in more detail below
in the section analyzing other factors affecting the species.
Eastern Population Segment: Modification or destruction of habitat,
including both terrestrial and aquatic habitat, does not appear to be a
significant factor affecting Steller sea lions in southeast Alaska. In
Oregon, human disturbance of sea lions at Three Arch Rock and Oxford
Reef was found to have a significant effect on the number of Steller
sea lions using these sites (R. Brown, pers. comm.; NMFS, 1992). State
regulations have been implemented, however, to restrict vessel traffic
and reduce human disturbance in these areas.
In California, the reason for the decline of Steller sea lions is
not known. Former rookery habitat has been abandoned (San Miguel
Island), and some other rookeries (Ano Nuevo Island, Farallon Islands)
are at lower than historical abundance levels. The availability of
suitable terrestrial habitat does not appear to be a factor in the sea
lion decline in parts of California. A redistribution of Steller sea
lions from disturbed to undisturbed habitats, however, has been
reported in the Farallon Islands (D. Ainley in NMFS, 1992), which may
be indicative of unreported disturbance limiting habitat use in other
areas. Similarly, with respect to aquatic habitat, changes in the
availability and quality of Steller sea lion prey resources due to
natural cycles, fisheries, and toxic substances may be a factor in
observed population trends in California.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Western and Eastern Population Segments: Steller sea lion pups were
harvested commercially in the past, with significant levels of harvest
occurring in eastern Aleutian Islands and the GOA during the 1960s and
early 70s. Commercial harvest of Steller sea lions has not occurred
since 1972. In the past, there have been reports of people shooting at
Steller sea lions at rookeries and haulout sites and in the water near
boats. Although illegal, shooting of sea lions may still continue, but
the magnitude and significance of this mortality source is not known.
While the commercial harvest and illegal shooting of Steller sea lions
may have been significant factors in past declines, especially with
respect to the western population segment, these harvests probably are
not a major or substantial cause of recent population changes. In
addition, in some cases, the animals may be disturbed as a result of
recreational activities.
Intentional lethal takings of small numbers of Steller sea lions
for scientific purposes have occurred in the past. Since the 1990 ESA
listing, however, scientists have relied on non-lethal sampling
techniques. Research often results in the temporary harassment and
occasionally results in the injury of Steller sea lions. Prior to 1990,
a small number of animals were taken from the wild for public display
purposes, but no such removals have been authorized since listing.
While occasionally the subject of observation and harassment,
especially in some areas, Steller sea lions usually are not utilized
for educational purposes in a manner that would have a significant
negative impact on the animals. The utilization of Steller sea lions
for scientific or educational purposes has not been a significant or
contributing factor that has affected either population segment.
C. Disease or Predation
Western and Eastern Population Segments: Sharks and killer whales
are
[[Page 24351]]
known to prey on Steller sea lions, primarily pups. The magnitude and
significance of predator-related mortality, however, is not known.
Natural mortality from predation is not currently considered to be a
significant factor for either Steller sea lion population segment.
Nonetheless, should the western population segment continue to decline
and the amount of mortality resulting from natural predation by killer
whales remain unchanged, natural mortality could exacerbate the
decline, especially in some areas of the western population.
Studies to assess the significance of disease in the Steller sea
lion population are ongoing. To date, researchers have not found any
evidence that disease is a significant factor affecting either
population of Steller sea lions. Various pathogens have been isolated
from animals collected by researchers or carcasses found on the beach,
but their significance to the overall population remains unclear. One
area of ongoing research is determining the role, if any, of pathogens
in the relatively high rate of abortions observed in GOA Steller sea
lions.
D. The Inadequacy of Existing Regulatory Mechanisms
NMFS has the authority to implement regulations necessary to
protect Steller sea lions under the ESA and the MMPA. Similarly, under
the Magnuson-Stevens Act, NMFS has the authority to regulate fishing
activities that may be affecting sea lions, directly or indirectly.
However, whether existing regulatory mechanisms and protective
regulations are adequate is difficult to evaluate because of the lack
of a clear cause and effect relationship between human activities and
the decline in the western population segment. Various regulations that
have been implemented, or that have been suggested or proposed for
implementation, are considered below.
Take prohibitions: Under the MMPA, it is unlawful for any person
subject to the jurisdiction of the United States to take a marine
mammal on the high seas or in waters or lands under U.S. jurisdiction.
``Take'' is defined as harass, hunt, capture, collect or kill or
attempt to harass, hunt, capture, collect or kill any marine mammal.
Certain exceptions from the prohibitions on taking are provided.
Similarly, under the ESA, certain statutory prohibitions apply once
a species is listed as endangered. For example, under section 9 of the
ESA, no person subject to the jurisdiction of the United States may
take such a species within the U.S., the territorial sea of the U.S.,
or upon the high seas. ``Take'' is defined as harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in such conduct. Certain exceptions are provided.
Often prohibitions similar to the section 9 prohibitions for
endangered species are implemented by regulation with respect to
species that are listed as threatened. Such action was not taken with
respect to Steller sea lions when the species originally was listed as
threatened in 1990, in part, because similar take prohibitions existed
under the MMPA, and in part, because of the difficulty of authorizing
incidental takings if such prohibitions had been implemented. However,
at the time of the listing, or shortly subsequent to the listing,
stringent protective measures, including the following, were
implemented: Regulations prohibiting the discharge of firearms;
designation of buffer zones; designation of critical habitat; and
restrictions on fishing activities.
Regulations prohibiting the discharge of firearms: Regulations,
issued in conjunction with the original listing of Steller sea lions as
threatened, prohibit the discharge of firearms at or near these
animals. Although intentional lethal taking of sea lions was already
prohibited at the time of the listing, there had been reports of
firearm use to deter sea lions from interfering with fishing
operations.
In a separate action, NMFS recently proposed regulations and
guidelines for deterring marine mammals as required under amended
section 101(a)(4) of the MMPA (60 FR 22345, May 5, 1995). When these
regulations and guidelines are finalized, the use of any firearms to
deter marine mammals from interacting with fishing gear or catch will
be prohibited. In addition, new section 118(a)(5) of the MMPA prohibits
intentional lethal taking of any marine mammal during commercial
fishing operations, except in defense of human life (60 FR 6036, Feb.
1, 1995).
The firearm prohibition, issued at the time of the original listing
of Steller sea lions as threatened, is viewed, in general, as adequate;
NMFS will continue to implement this protective measure for both the
eastern and western population segments.
No approach in buffer areas: Regulations issued at the time Steller
sea lions were originally listed as threatened, prohibited any vessel
from approaching within three miles of specific Steller sea lion
rookeries; likewise, approach on non-private land within one-half mile
of these specific rookery sites was prohibited. A variety of exceptions
was provided.
The purposes of the buffer areas are to restrict opportunities for
individuals to shoot at sea lions and to facilitate enforcement of this
restriction; to reduce interactions with sea lions, such as accidents
or incidental takings, in areas where concentrations of these animals
are expected to be high; to minimize disturbance and interference with
sea lion behavior including foraging behavior, especially at pupping
and breeding sites; and to avoid or minimize other human impacts and
related adverse effects. To date, these regulations are generally
viewed as effective. Based on the review of logbooks and overflights
conducted by the U.S. Coast Guard, NMFS has found few instances of
entry into these zones.
NMFS will continue to implement the existing regulatory buffer
zones in the western area. At this time, NMFS is not proposing
additional protective zones in the western or eastern area. NMFS
regional research and management staff are reviewing the ongoing
Steller sea lion program and looking at developing an action plan for
future research and management directions. Consideration is being given
to the development of an experiment for assessing the efficacy of
closure zones.
Quotas on incidental takings: On April 30, 1994, the reauthorized
and amended MMPA established a new regime to govern the take of marine
mammals incidental to commercial fishing operations; the new regime
replaces the interim exemption program established in 1988. Under the
1988 Interim Marine Mammal Exemption Program, up to 1,350 Steller sea
lions were authorized to be taken annually incidental to commercial
fisheries, and emergency regulatory actions were required if more than
1,350 animals were incidentally killed in any year. The new MMPA
management regime replaced the previous quota system and focuses on
reducing the incidental mortality and serious injury of marine mammals
from strategic stocks, i.e., those population segments that are listed
as endangered or threatened under the ESA, those stocks that are listed
as depleted under the MMPA, and those stocks for which human-caused
mortality exceeds the estimated potential biological removal (PBR) (the
1994 Amendments to the MMPA defined PBR as the maximum level of
animals, not including natural mortalities, that can be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population). Under this new regime, NMFS is
[[Page 24352]]
required to permit the take of endangered and threatened marine mammals
incidental to commercial fishing under section 101(a)(5)(E) of the
MMPA, provided that (1) the incidental mortality and serious injury
would have a negligible impact on the affected species or stock, (2) a
recovery plan for that species or stock has been developed or is being
developed, and (3) where required under section 118 of the MMPA, a
monitoring program has been established, vessels are registered, and a
take reduction plan has been developed or is being developed. A take
reduction plan, once developed, is intended to assist in the recovery
of the species and should include recommendations for regulatory or
voluntary measures to reduce incidental mortality due to commercial
fisheries.
To determine which stocks should be considered strategic and what
level of take could be considered negligible, stock assessment reports
were developed in 1995 for each Steller sea lion stock (population
segment). These stock assessment reports compiled the available data on
population size and trend, calculated a PBR level for each stock, and
described, to the extent possible, the known sources of human
mortality, including takes in commercial fisheries.
Based primarily on the low level of known incidental takes relative
to the PBR level, NMFS determined negligible impact and issued an
Incidental Take Statement (60 FR 45399, August 31, 1995) authorizing,
under section 7(b)(4) of the ESA, takings from the western population
segment of Steller sea lions incidental to commercial fisheries for a
period of 2 years, and incidental takings from the eastern population
segment for a period of 3 years. Due to the listing change and because
many fisheries that interact with Steller sea lions in Alaska are not
currently monitored by observers, there may be a need to reassess the
negligible impact determination and reconsult under section 7.
NMFS is in the process of designing monitoring programs to be
conducted in the unobserved fisheries in Alaska, including fisheries
expected to incidentally take Steller sea lions. NMFS also will be
preparing updated stock assessments in the coming year, reexamining the
estimated mortality rates incidental to commercial fisheries and
considering the next steps, if necessary, toward take reduction.
Subsistence harvests: Under section 10(e) of the ESA, prohibitions
on the taking of threatened and endangered species normally do not
apply to takings by Alaska Natives if such taking is primarily for
subsistence purposes. To date, no action has been taken to regulate, or
otherwise manage, the subsistence harvest of Steller sea lions by
Alaska Native groups. The subsistence harvest may have some localized
impact on survival, but its impact upon the survival of the overall
populations is not considered significant. If subsistence takings
materially and negatively affect the species in the future, Federal
regulations or restrictions may be imposed only after a hearing and
decision on the record.
Section 119 of the MMPA allows the Secretary of Commerce
(Secretary) to enter into cooperative agreements with Alaska Native
organizations to conserve marine mammals and provide co-management of
subsistence uses. In 1994, an interim Alaska Native Steller Sea Lion
Commission (Commission) consisting of representatives from western
Alaska communities that take Steller sea lions for subsistence needs
was formed to improve communication among indigenous communities that
use sea lions, to advocate for conservation of Steller sea lions, to
advocate for protection of customary and traditional rights of
indigenous peoples with regard to access and use of sea lions, and to
serve as the focal point for development of co-management agreements
with NMFS. Local hunter groups have also formed on St. Paul and St.
George Islands to draft and implement guidelines to make their
subsistence harvests more efficient. NMFS has met with these groups to
discuss compliance with the guidelines, reduction of the strike/loss
ratio, hunter education, Native/government information exchange and
increased participation in the collection of biological samples.
Through co-management agreements between NMFS and the Commission or
local hunter groups, self-management and regulation of the subsistence
harvest by Alaska Natives will be developed.
Critical habitat: Currently, designated critical habitat for
Steller sea lions includes all rookeries, major haulouts, 3000-ft zones
landward, seaward, and skyward of these sites, and aquatic foraging
zones in Shelikof Strait, Seguam Pass and on the eastern Bering Sea
Shelf. West of 150 deg. W. long., critical habitat aquatic zones around
rookeries and major haulouts extend to 20nm from the site boundary. In
Oregon and California, critical habitat includes rookeries and 3000-ft
zones landward, seaward, and skyward of these sites.
Critical habitat provides the public and other Federal agencies
with notice of particular areas and features that are essential to the
conservation of Steller sea lions. Consultation under section 7(a)(2)
of the ESA is required for any agency action that may affect critical
habitat. NMFS believes that the current designation of critical habitat
is adequate and is not proposing to revise this designation at this
time.
Restrictions on fishing activities: Although the relationship
between commercial fisheries and the ability of Steller sea lions to
obtain adequate food is not clear, a change in food availability,
especially for juvenile Steller sea lions, is a leading hypothesis for
the continuing decline in the western population segment. The GOA/BSAI
management area is the geographic region where Steller sea lions have
experienced the greatest population decline and is also an area where
large commercial fisheries have developed. As a result, NMFS has
implemented protective regulations to reduce the possible effects of
certain commercial groundfish fisheries on Steller sea lions,
especially the groundfish fisheries of the GOA and the BSAI.
Many of the Steller sea lion's preferred prey species are harvested
by commercial fisheries in this region, and food availability to
Steller sea lions may be affected by fishing. Because of concerns that
commercial fisheries in these essential sea lion habitats could deplete
prey abundance, NMFS amended the BSAI and GOA groundfish fishery
management plans. Under the Magnuson-Stevens Act, NMFS: (1) Prohibited
trawling year-round within 10 nm of listed GOA and BSAI Steller sea
lion rookeries; (2) prohibited trawling within 20 nm of the Akun,
Akutan, Sea Lion Rock, Agligadak, and Seguam rookeries during the BSAI
winter pollock roe fishery to mitigate concentrated fishing effort on
the southeastern Bering Sea shelf and in Seguam Pass; and (3) placed
spatial allocation on the GOA pollock harvest to divert fishing effort
away from sea lion foraging areas.
NMFS also seasonally expanded the 10 nm no-trawl zone around Ugamak
Island in the eastern Aleutians to 20 nm (58 FR 13561, March 12, 1993).
The expanded seasonal ``buffer'' at Ugamak Island better encompassed
Steller sea lion winter habitats and juvenile foraging areas in the
eastern Aleutian Islands region during the BSAI winter pollock fishery.
Consultations under section 7 of the ESA have been conducted on
annual total allowable catch specifications for the GOA and BSAI
fisheries, as well as all other changes in the fishery. Current
regulations limiting the groundfish
[[Page 24353]]
fisheries in the GOA and BSAI were implemented under the Magnuson-
Stevens Act. NMFS and the NPFMC have instituted changes so that Steller
sea lion (and other marine mammal) concerns are now routinely
considered in the fishery management decision making and quota
specification process. The Team has recommended that NMFS evaluate the
need for additional measures in order to enhance food availability near
rookeries and haulouts in the western area. As stated earlier, NMFS is
looking at developing a program to investigate the efficacy of current
regulations and to address future research and management directions.
No regulatory additions or changes are being proposed at this time.
Other regulatory mechanisms: The inadequacy of other regulatory
mechanisms has been suggested as a factor in the decline or
vulnerability of both Steller sea lion populations. Comments received
on the status review notice included suggestions that additional
regulations were needed to protect Steller sea lions, particularly at
haulout and rookery sites, from the effects of Federal land management
activities, including oil and gas exploration and development.
In most cases, other agencies, such as the Minerals Management
Service and the U.S. Forest Service, regulate these types of
activities. These agencies are expected to consult with NMFS under
section 7 of the ESA to ensure that their actions are not likely to
jeopardize the continued existence of listed species or to destroy or
adversely modify critical habitat. Comments received concerning the
adequacy of current regulations issued by other agencies will be
considered during the consultation process.
Conclusions regarding the inadequacy of existing regulatory
mechanisms: A final determination with respect to whether existing
regulatory mechanisms are adequate is difficult to make, given the lack
of a clear cause of the decline. NMFS recognizes the importance of
further examination of the adequacy and the benefits of existing
regulations. However, in some cases, even after further study, it may
be difficult or impossible to make definitive determinations about the
adequacy of specific regulations because of the lack of understanding
of all the mechanisms contributing to the decline or vulnerability of
Steller sea lion populations.
Nevertheless, because of the separation of the species into
distinct population segments and the status reclassification, various
agency actions, likely to affect Steller sea lions, may be subject to
reinitiation of consultation under section 7 of the ESA.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Other factors also may affect either or both populations of Steller
sea lions. In particular, removals of Steller sea lions from the wild,
resulting from direct and incidental takings, may be a contributing
factor in past and continuing declines. Change in food availability is
another factor that may be causing declines. Contaminants are also a
concern. These other factors are discussed in more detail in the
following sections.
Removals from the Western Population Segment: Steller sea lions
interact with commercial fisheries, and, historically, many have been
reported incidentally taken in fisheries in the GOA and BSAI. Estimates
of the total number of Steller sea lions taken in commercial trawl
fisheries in these waters from 1966 through 1988 have exceeded 20,000
animals (NMFS, 1995). Incidental catch appears to have been a
contributing factor in the population decline in some areas of the
Aleutian Islands and GOA during certain time periods.
Alaska Native subsistence hunters have been estimated to take about
350-500 Steller sea lions annually in recent years; virtually all of
the subsistence harvest in Alaska occurs within the range of the
western population segment (Wolfe & Mischler, 1993; 1994; 1995). These
removals have some localized impact; should the western population
segment continue to decline and the subsistence harvest continue at the
same level, these removals may become significant to the survival of
the overall populations.
Removals from the Eastern Population Segment: Accurate data on
incidental takes of Steller sea lions in other fisheries in southeast
Alaska, Oregon, and California are not available, but estimates from
available sources are low. Alaska Native takes of Steller sea lions
within the eastern population segment have been estimated at less than
10 animals annually (Wolfe & Mischler, 1993; 1994; 1995).
Food availability for the western population segment: Steller sea
lions are opportunistic feeders, feeding primarily on schooling fish,
such as walleye pollock, Atka mackerel, herring, and capelin. Declines
in sea lion abundance may be related to changes in the availability of
sea lion prey. Changes in the quantity or quality of available prey
could have a chronic negative influence on the health and fitness of
individual sea lions, resulting in reduced reproductive potential,
increased susceptibility to disease, or death (Loughlin & Merrick,
1989). Calkins and Goodwin (1988) observed that Steller sea lions
collected in the Kodiak Island area in 1985-86 were significantly
smaller at age than animals collected from 1975-78, and hypothesized
that nutritional stress was the cause. Juvenile sea lions, which are
less adept foragers, may be most affected by changes in food
availability. Demographic studies at Ugamak and Marmot Island rookeries
suggest that juvenile survival has been greatly reduced over the last
20 years, and that this reduced juvenile survival may be the proximate
cause of the population decline (NMFS, 1995). The role of food
availability in the population decline remains unclear and is being
investigated by researchers.
The BSAI and GOA commercial groundfish fisheries target important
prey species of Steller sea lions, notably walleye pollock and Atka
mackerel. Whether these fisheries actually deplete food resources of
Steller sea lions is unclear. Analyses that have compared fishery
harvests with changes in Steller sea lion abundance have been
inconclusive, but the limitations of the available data may confound
results (Loughlin & Merrick, 1989; Ferrero & Fritz, 1994).
One hypothesis is that where and how fisheries operate is
significant to Steller sea lions, even if overall fishery removal
levels are conservative of fish stocks. Fisheries that harvest large
quantities of fish in relatively small geographic areas and short
periods of time may deplete the local abundance of fishery resources.
When such a fishery occurs in important Steller sea lion foraging
habitat and targets, or has a significant bycatch of, Steller sea lion
prey species (as the walleye pollock and Atka mackerel fisheries do),
the fishery may make it more difficult for sea lions to obtain food.
This is likely to be more important in the winter when alternate food
resources are fewer and sea lion metabolic costs higher, and to be more
significant to newly-weaned juveniles, which are less adept foragers.
Based on this hypothesis, NMFS established no-groundfish-trawl zones
around listed Steller sea lion rookeries in the GOA and BSAI (to reduce
harvest in important foraging habitats), and created geographic fishery
allocation areas in the GOA for walleye pollock (to disperse fishing
effort).
The hypothesized change in prey availability to Steller sea lions
could also be related to environmental change. Changes in the abundance
of several species of fish, shellfish, birds, and
[[Page 24354]]
other marine mammals in the BSAI and GOA have been documented over the
last 20 years. In particular, some important forage fish stocks, such
as capelin and sand lance, appeared to have declined in both the BSAI
and GOA during the 1970s and 1980s. Some of these observed changes in
the ecosystem can be linked to human activities (e.g., fisheries,
marine mammal harvests, hatcheries) whereas others appear to be related
to natural phenomena (e.g., oceanic temperature changes).
Contaminants affecting both population segments: Concern has been
expressed about the possible adverse effects of anthropogenic
contaminants on the health and productivity of Steller sea lions,
particularly in the western population segment and in California.
Presently, the significance, if any, of toxic substances in Steller sea
lion population declines is not known, and additional research is
warranted.
V. Final Determination
NMFS has determined that the best available evidence indicates that
Steller sea lions should be managed as two discrete population segments
and that the threatened classification for the eastern segment and the
endangered classification for the western segment are appropriate.
Available data on population trends indicate that the western
population segment of Steller sea lions is in danger of extinction
throughout all or a significant part of its range. This population had
exhibited a precipitous, large population decline at the time that the
Steller sea lion was listed as a threatened species in 1990 and has
continued to decline since the listing. Therefore, the western
population segment of Steller sea lions is reclassified as an
endangered species under the ESA.
The eastern population segment was originally listed as a
threatened species in 1990 when the entire species was listed. The
eastern population segment has exhibited a stable population trend for
the last 15 years; however, NMFS believes that the large decline within
the overall U.S. population threatens the continued existence of the
entire species. This is particularly true, since the underlying causes
of the decline remain unknown, and thus, unpredictable. Therefore,
despite the apparent stability of the eastern population segment, NMFS
is maintaining a threatened listing for this portion of the geographic
range.
These determinations allow for a differentiation between the two
populations that acknowledges the different individual population
segment trends, but does not lose sight of the overall trend for the
species.
NMFS Policies on Endangered and Threatened Wildlife
On July 1, 1994, NMFS, jointly with the USFWS, published a series
of new policies regarding listings under the ESA, including a policy to
identify, to the maximum extent possible, those activities that would
or would not constitute a violation of section 9 of the ESA (59 FR
34272).
Identification of those activities that would constitute a
violation of Section 9 of the ESA: Section 9 of the ESA prohibits
certain activities that directly or indirectly affect endangered and
threatened species. Under the ESA (section 9 and regulations), it is
illegal to take (includes harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture or collect) or to attempt to take any endangered
and most threatened species. Activities considered by the NMFS to
constitute a ``take'' of an endangered or threatened Steller sea lion
include:
1. Shooting at or near a Steller sea lion. An example would be an
individual who shoots at a Steller sea lion to deter or distract it
from taking fish off the individual's fishing gear; another example is
shooting a Steller sea lion with a paint ball gun.
2. Collecting Steller sea lion parts. The ESA prohibits the
collection of an endangered species or parts therefrom. Therefore, it
would be illegal to collect parts from a dead Steller sea lion that has
washed ashore.
3. Pursuing or harassing Steller sea lions. An example would be
pursuing a Steller sea lion in an attempt to watch its behavior or to
obtain a better view of it from a vessel. These illegal activities can
be committed by guided marine life tour operators as well as individual
recreational boaters. Persons who wish to view Steller sea lions would
be required to avoid any actions that harass the Steller sea lion or
actions that would constitute pursuit of Steller sea lions either in
the water or on land. Trying to get the perfect photograph may result
in actions that constitute harassment or pursuit of a Steller sea lion.
4. Approaching within 3 nm of a listed Steller sea lion rookery
site. This includes, but is not limited to, transiting through the
rookery site in a vessel, anchoring within any rookery site or fishing
within any rookery site.
5. The take of Steller sea lions for the production of authentic
native articles of handicrafts and clothing only. The ESA only provides
for the non-wasteful taking of endangered species for subsistence
purposes. If taken for this purpose, however, Native Alaskans are
allowed to create authentic native articles of handicraft and clothing
from non-edible byproducts.
This list is not exhaustive. It is provided to give the reader some
examples of the types of activities that would be considered by the
Agency as constituting a ``take'' of an endangered or threatened
Steller sea lion under the ESA and regulations.
By operation of law, the section 9 prohibitions apply directly to
the western stock of Steller sea lions. In this rule, pursuant to
enforcement concerns, we are also extending these prohibitions to the
eastern stock which remains threatened. Because the reclassified
eastern and western population segments of Steller sea lions are
physically indistinguishable and both segments are capable of
traversing great distances, it will be exceedingly difficult to
determine that a particular Steller belongs to a particular population.
Extension of the section 9 prohibitions to all Steller sea lions would
obviate this concern.
With regard to activities that may affect Steller sea lions or
their habitat, and whose likelihood of violation of section 9 is
uncertain, NMFS Alaska Regional Office (see ADDRESSES) should be
contacted to assist in determining whether a particular activity
constitutes a prohibited act under section 9.
Classification
Section 4(b)(1) of the ESA restricts the information that may be
considered when assessing species for listing. Based on this limitation
and the opinion in Pacific Legal Foundation v. Andrus, 657 F.2d 829
(6th Cir. 1981), listing actions under the ESA are excluded from the
normal requirements of the National Environmental Policy Act.
As noted in the Conference report on the 1982 amendments to the ESA
(H.R. Conf. Rep. No. 835, 97th Cong., 2d Sess 20. (1982)), economic
considerations have no relevance to determinations regarding the status
of species. Therefore, the economic analysis requirements of Executive
Order 12866, and the Regulatory Flexibility Act are not applicable to
the listing process.
Dated: April 29, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries.
List of Subjects
50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and
[[Page 24355]]
recordkeeping requirements, Transportation.
50 CFR Part 227
Endangered and threatened species, Exports, Imports, Marine
mammals, Transportation.
For the reasons set out in the preamble, 50 CFR parts 222 and 227
are amended as follows:
PART 222--ENDANGERED FISH OR WILDLIFE
1. The authority citation for part 222 is revised to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart D, Sec. 222.32 also
issued under 16 U.S.C. 1361 et seq.
2. In Sec. 222.23, paragraph (a) is amended by adding the following
material after ``Saimaa seal (Phoca hispida saimensis);'' to read as
follows:
Sec. 222.23 Permits for scientific purposes or to enhance the
propagation or survival of the affected endangered species.
(a) * * * Steller sea lion (Eumetopias jubatus), western
population, which consists of Steller sea lions from breeding colonies
located west of 144 deg.W. long.; * * *
* * * * *
3. Section 222.33 is added to subpart D to read as follows:
Sec. 222.33 Special prohibitions relating to endangered Steller sea
lion protection.
General. The regulatory provisions set forth in part 227, which
govern threatened Steller sea lions, shall also apply to the western
population of Steller sea lions, which consists of all Steller sea
lions from breeding colonies located west of 144 deg.W. long.
PART 227--THREATENED FISH AND WILDLIFE
4. The authority citation for part 227 is revised to read as
follows:
Authority: 16 U.S.C. 1531-1543; subpart B, Sec. 227.12 also
issued under 16 U.S.C. 1361 et seq.
5. In Sec. 227.4, paragraph (e) is revised to read as follows:
Sec. 227.4 Enumeration of threatened species.
* * * * *
(e) Steller (northern) sea lion (Eumetopias jubatus), eastern
population, which consists of all Steller sea lions from breeding
colonies located east of 144 deg.W. longitude.
* * * * *
6. In Sec. 227.12, paragraph (a) introductory text is added, and
the paragraph (a) heading, paragraphs (a)(4) and (b)(2) are revised to
read as follows:
Sec. 227.12 Steller sea lion.
(a) General prohibitions. The prohibitions of section 9 of the Act
(16 U.S.C. 1538) and the following regulatory provisions shall apply to
the eastern population of Steller sea lions:
* * * * *
(4) Commercial Fishing Operations. The incidental mortality and
serious injury of endangered and threatened Steller sea lions in
commercial fisheries can be authorized in compliance with sections
101(a)(5) and 118 of the Marine Mammal Protection Act.
(b) * * *
(2) Official activities. The taking of Steller sea lions must be
reported within 30 days to the Regional Administrator, Alaska Region.
Paragraph (a) of this section does not prohibit or restrict a Federal,
state or local government official, or his or her designee, who is
acting in the course of official duties from:
(i) Taking a Steller sea lion in a humane manner, if the taking is
for the protection or welfare of the animal, the protection of the
public health and welfare, or the nonlethal removal of nuisance
animals; or
(ii) Entering the buffer areas to perform activities that are
necessary for national defense, or the performance of other legitimate
governmental activities.
* * * * *
[FR Doc. 97-11668 Filed 4-30-97; 4:00 pm]
BILLING CODE 3510-22-P
