[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Proposed Rules]
[Pages 77602-77605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31232]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 101124581-0584-01]
RIN 0648-XA046
Endangered and Threatened Species; 90-Day Finding on Petitions To
Delist the Eastern Distinct Population Segment of the Steller Sea Lion
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding; request for information.
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SUMMARY: We (NMFS) announce a 90-day finding on two petitions to delist
the eastern Distinct Population Segment (DPS) of the Steller Sea Lion
(Eumetopias jubatus) under the Endangered Species Act of 1973, as
amended (ESA). We find that the petitions present substantial
scientific or commercial information indicating that the petitioned
action may be warranted. We are continuing our status review of this
DPS to determine if the petitioned action is warranted. To ensure that
the status review is comprehensive, we are again soliciting scientific
and commercial information regarding this species from any interested
party.
DATES: Information and comments must be submitted to NMFS by February
11, 2011.
ADDRESSES: You may submit comments, identified by RIN 0648-XA046, by
any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http//www.regulations.gov.
Follow the instructions for submitting comments.
Hand-delivery: Assistant Regional Administrator, Protected
Resources Division, NMFS, Alaska Regional Office, Attn: Ellen
Sebastian, Juneau Federal Building, 709 West 9th Street, Room 420A,
Juneau, AK 99802-1668.
Mail: P.O. Box 21668, Juneau, AK 99802.
Facsimile (fax): (907) 586-7557.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All Personal Identifying Information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit Confidential Business
[[Page 77603]]
Information or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter N/A in the required fields, if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file
formats only.
The petitions may be viewed at: http://www.alaskafisheries.noaa.gov./protectedresources/stellers/edps/
status.htm.
FOR FURTHER INFORMATION CONTACT: Dr. Lisa Rotterman, NMFS, Alaska
Region, (907) 271-1692; Kaja Brix, NMFS, Alaska Region, (907) 586-7235;
or Lisa Manning, NMFS, Office of Protected Resources, (301) 713-1401.
SUPPLEMENTARY INFORMATION:
ESA Statutory Provisions and Policy Considerations
The Administrative Procedure Act and ESA enable an interested
person to petition for the listing or delisting of a species,
subspecies, or DPS of a vertebrate species which interbreeds when
mature (5 U.S.C. 553(e), 16 U.S.C.1533(b)(3)(A)). ESA-implementing
regulations issued by NMFS and the U.S. Fish and Wildlife Service (FWS)
also establish procedures for receiving and considering petitions to
revise the lists and for conducting periodic reviews of listed species
(50 CFR 424.01).
Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires
that the Secretary of Commerce (Secretary) make a finding as to whether
a petition to delist a species presents substantial scientific or
commercial information indicating the petitioned action may be
warranted. ESA implementing regulations define ``substantial
information'' as the amount of information that would lead a reasonable
person to believe the measure proposed in the petition may be warranted
(50 CFR 424.14(b)(1)). In determining whether substantial information
exists for a petition to list a species, we take into account several
factors, including information submitted with, and referenced in, the
petition and all other information readily available in our files. To
the maximum extent practicable, this finding is to be made within 90
days of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the
finding is to be published promptly in the Federal Register. If the
Secretary finds that a petition presents substantial information
indicating that the requested action may be warranted, the Secretary
must conduct a status review of the species concerned.
Section 4(b)(3)(B) requires the Secretary to make a finding as to
whether or not the petitioned action is warranted within 12 months of
the receipt of the petition. The Secretary has delegated the authority
for these actions to the NOAA Assistant Administrator for Fisheries. In
making the 12-month finding whether the petitioned action is warranted,
we will also determine whether the eastern DPS continues to qualify as
a threatened species.
The ESA defines an endangered species as ``any species which is in
danger of extinction throughout all or a significant portion of its
range'' (ESA section 3(6)). A threatened species is defined as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range'' (ESA section 3(19)). The basis for the determination of a
species' status under the ESA is provided in section 4 of the ESA.
Under the ESA, a listing determination can address a species,
subspecies, or a DPS of a vertebrate species which interbreeds when
mature (16 U.S.C. 1532 (16)). Under section 4(a)(1) of the ESA, a
species may be determined to be threatened or endangered as a result of
any one of the following factors:
(A) Present or threatened destruction, modification, or curtailment
of habitat or range;
(B) Over-utilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) Inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
Regulations implementing the ESA instruct NMFS to consider these
same factors when determining whether to delist a species, a
subspecies, or a DPS (50 CFR 424.11(d)).
Listing determinations are made solely on the basis of the best
scientific and commercial data available, after conducting a review of
the status of the species and taking into account efforts made by any
state or foreign nation to protect such species.
Regulations implementing the ESA provide the rules for revising the
Lists of Endangered and Threatened Wildlife and Plants (50 CFR 424).
The regulations provide criteria for determining species to be
endangered or threatened. In addition to identifying the factors that
NMFS should consider when determining whether to delist a species, a
subspecies, or a DPS, the ESA implementing regulations state that a
species may be delisted for one or more of the following reasons: The
species is extinct or has been extirpated from its previous range; the
species has recovered and is no longer endangered or threatened; or
investigations show the best scientific or commercial data available
when the species was listed, or the interpretation of such data, were
in error (50 CFR 424.11(d)).
Background
The Steller sea lion (Eumetopias jubatus) was listed as a
threatened species under the ESA on April 5, 1990 (55 FR 12645).
Critical habitat was designated on August 27, 1993 (58 FR 45269), based
on the location of terrestrial rookery and haulout sites, spatial
extent of foraging trips, and availability of prey. In 1997, based on
demographic and genetic dissimilarities, we designated two DPSs of
Steller sea lions under the ESA: A western DPS and an eastern DPS (62
FR 24345, 62 FR 30772). Due to persistent decline, the western DPS was
reclassified as endangered, while the increasing eastern DPS remained
classified as threatened.
We completed the first recovery plan for Steller sea lions in
December 1992. At that time, the entire species was listed as
threatened under the ESA. Because that recovery plan became obsolete
after the reclassification of Steller sea lions into two distinct
population segments (DPS) in 1997, and because nearly all of the
recovery actions contained in the first plan had been completed, NMFS
assembled a new Steller Sea Lion Recovery Team (Team) in 2001 to assist
NMFS in revising the Recovery Plan and further promote conservation of
the species. In March, 2008, NMFS released a Revised Recovery Plan for
the Steller Sea Lion: Eastern and Western Distinct Population Segments
(Recovery Plan). The 2008 Recovery Plan states that, in 2002, the
number of individuals in the eastern DPS was estimated to be between
46,000 and 58,000 and that this population had been increasing at
approximately 3 percent per year since the late 1970s (Pitcher et al.
2007, as cited in NMFS 2008:x). The Executive Summary of the 2008
Recovery Plan states that the eastern DPS appears to have recovered
from the predator control programs of the 20th century, which
extirpated animals at rookeries and haulouts, no substantial threats
are currently evident, and the population continues to increase at
approximately 3 percent per year (NMFS 2008). The 2008 Recovery Plan
also summarizes that:
``* * * no threats to continued recovery were identified for the
eastern DPS. Although several factors affecting the western DPS also
affect the eastern DPS (e.g., environmental
[[Page 77604]]
variability, killer whale predation, toxic substances, disturbance,
shooting), these threats do not appear to be at a level sufficient
to keep this population from continuing to recover, given the long
term sustained growth of the population as a whole. However,
concerns exist regarding global climate change and the potential for
the southern part of the range (i.e., California) to be adversely
affected. Future monitoring should target this southern portion of
the range'' (NMFS 2008:xiii).''
It further states, ``The primary action[s] [recommended] in the
plan [are] to initiate a status review for the eastern DPS and consider
removing it from the Federal List of Endangered Wildlife and Plants.''
(NMFS 2008:xvi). The 2008 Recovery Plan identifies the following
delisting criteria:
1. The population has increased at an average annual growth rate of
3 percent per year for 30 years.
2. The ESA listing factor criteria are met. NMFS (2008: viv).
The Recovery Plan states that when the first of these criteria has been
met, NMFS will evaluate the ESA listing factor criteria to determine
whether to delist the eastern DPS.
On June 29, 2010, we provided notice of the initiation of a 5-year
status review of the eastern DPS of Steller sea lion under the ESA and
opened a public comment period (75 FR 37385, June 29, 2010; 75 FR
38979, Wednesday, July 7, 2010). The agency subsequently re-opened a
second public comment period (75 FR 53272, August 31, 2010). A 5-year
status review is a periodic process conducted to ensure that the
listing classification of a species is accurate, and it is based on the
best scientific and commercial data available at the time of the
review. On the basis of such reviews under section 4(c)(2)(B) of the
ESA, we determine whether or not any species should be removed from the
list (delisted), or reclassified from endangered to threatened or from
threatened to endangered.
Analysis of the Petitions
On August 30, 2010, we received a petition from the States of
Washington and Oregon to delist the eastern DPS of Steller sea lion
under the ESA. On September 1, 2010, the Secretary of Commerce received
a petition from the State of Alaska to delist the eastern DPS of
Steller sea lion. Both petitions contend that the eastern DPS of
Steller sea lions has recovered, is not in danger of extinction now,
and is not likely to be in danger in the foreseeable future. Because we
received two petitions within a short period of time that requested the
same action, we have considered the two petitions jointly in making our
90-day finding.
Both petitions make multiple references to statements, information,
and conclusions from the aforementioned 2008 Revised Recovery Plan, and
literature cited within this document. For example, the conclusion
section of the State of Alaska petition states:
``In the 2008 Recovery Plan, NMFS concluded that ``[n]o threats
to recovery [of the Eastern DPS of the Steller sea lion] have been
identified and the population has been increasing for over 25 years,
new rookeries have been created, and the population is at historical
high levels.'' 2008 Recovery Plan at VII-7.''
Additionally, new information that was not available at the time of
the 2008 Recovery Plan, but that was readily available in our files
upon receipt of the petitions, was presented in the petitions. For
example, the petition from the States of Oregon and Washington refers
to a recently published paper when they state:
``Boyd (2010) concluded that ``the eastern and western segments
of the population have probabilities of persistence that mean they
do not meet the criteria for classification as endangered and it
would be reasonable to de-list them''.''
The State of Alaska's petition cites new aerial survey information
provided in a memorandum from the Alaska Fishery Science Center to the
Alaska Region Protected Resources Division of NMFS. This memorandum
reported that Steller sea lion pup production in Southeast Alaska
(eastern DPS) totaled 7,462 pups in 2009, with 7,443 counted at the 5
major rookeries where 5,510 had been counted in 2005.
The petitions also present some new information that was not
readily available in our files. For example, the petition from the
States of Oregon and Washington cites unpublished data from studies of
Steller sea lions by the Oregon and Washington Departments of Wildlife
to support their conclusion that
``None of the potential natural or manmade causes for population
decline examined in the western population range appear to be having
negative impacts on eastern stock sea lions occurring in Oregon and
Washington * * *.''
This petition also provides preliminary results of non-pup abundance
survey data from 1976-2008 collected by the Oregon Department of
Wildlife, and the Petitioners report that unpublished data from surveys
conducted by the Washington Department of Fish and Wildlife (WDFW)
along the Washington coast show both increasing Steller sea lion
numbers at haulout areas as well as increasing numbers of newborn pups
at several locations over recent years. The Petitioners further contend
that the available data demonstrate 31 years of population growth in
the area of the primary Steller sea lion rookeries in U.S. waters south
of Alaska (citing Pitcher et al., 2007). Based on the information
presented and referenced in the petition, as well as all other
information readily available in our files, we find that the petitions
present substantial information indicating that the petitioned action
may be warranted.
Status Review and Solicitation of New Information
As a result of this finding, we will continue our ongoing status
review to determine whether the delisting of the eastern DPS of Steller
sea lion under the ESA is warranted. We intend that any final action
resulting from this status review will be as accurate and as effective
as possible. Therefore, to ensure that the status review is complete
and based on the best available scientific and commercial information,
we are opening another public comment period for 60 days to solicit
comments, suggestions, data, and information from the public, concerned
governmental agencies, Native American tribes, conservation groups, the
scientific community, industry, and any other interested parties
concerning the status of the eastern DPS of the Steller sea lion
(Eumetopias jubatus) throughout its range, including, but not limited
to information on:
(A) Species biology, including, but not limited to, population
trends, distribution and abundance, demographics, habitat use and
requirements, genetics, and foraging ecology; (B) habitat conditions,
including, but not limited to, amount, distribution, and suitability of
habitat; (C) the effects of conservation measures that have been
implemented to benefit the species; (D) status and trends of threats;
and (E) other new information, data, or corrections, including, but not
limited to, taxonomic or nomenclatural changes, identification of
erroneous information contained in the list, and improved analytical
methods.
Upon completion of the status review, and within 12 months of our
receipt of the first petition to delist this DPS, we must make one of
the following findings: (1) The petitioned action is not warranted, in
which case the Secretary shall promptly publish such finding in the
Federal Register and so notify the petitioner; (2) the petitioned
action is warranted, in which case the Secretary shall promptly publish
in the Federal Register a proposed regulation to implement the action
pursuant to 50 CFR 424.16; or (3) the petitioned action
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is warranted, but that (A) the immediate proposal and timely
promulgation of a regulation to implement the petitioned action is
precluded because of other pending proposals to list, delist, or
reclassify species, and (B) expeditious progress is being made to list,
delist, or reclassify qualified species, in which case such findings
shall be promptly published in the Federal Register together with a
description and evaluation of the reasons and data on which the finding
is based.
We will base our findings on a review of the best scientific and
commercial information available, including information received during
the public comment periods opened during this status review.
Authority: 16 U.S.C. 1531 et seq.
Dated: December 8, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2010-31232 Filed 12-10-10; 8:45 am]
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