[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Proposed Rules]
[Pages 6600-6621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2844]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI44


Endangered and Threatened Wildlife and Plants; Listing the 
Southwest Alaska Distinct Population Segment of the Northern Sea Otter 
(Enhydra lutris kenyoni) as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to list 
the southwest Alaska distinct population segment of the northern sea 
otter (Enhydra lutris kenyoni) as threatened under the authority of the 
Endangered Species Act of 1973, as amended (Act). Once containing more 
than half of the world's sea otters, this population segment has 
undergone a precipitous population decline of at least 56-68 percent 
since the mid-1980s.

DATES: We will consider comments on this proposed rule received until 
the close of business on June 10, 2004. Requests for public hearings 
must be received by us on or before April 12, 2004.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments to the Supervisor, U.S. Fish and 
Wildlife Service, Marine Mammals Management Office, 1011 East Tudor 
Road, Anchorage, Alaska 99503.
    2. You may hand deliver written comments to our office at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to: 
<a href="/cdn-cgi/l/email-protection#e68091d1b99591878d9583878992928394a6809195c8818990"><span class="__cf_email__" data-cfemail="2c4a5b1b735f5b4d475f494d435858495e6c4a5b5f024b435a">[email protected]</span></a>. See the Public Comments Solicited section below 
for file format and other information about electronic filing.

[[Page 6601]]


FOR FURTHER INFORMATION CONTACT: Douglas Burn, (see ADDRESSES) 
(telephone 907/786-3800; facsimile 907/786-3816).

SUPPLEMENTARY INFORMATION:

Background

    The sea otter (Enhydra lutris) is a mammal in the family Mustelidae 
and it is the only species in the genus Enhydra. There are three 
recognized subspecies (Wilson et al. 1991): E. l. lutris, known as the 
northern sea otter, occurs in the Kuril Islands, Kamchatka Peninsula, 
and Commander Islands in Russia; E. l. kenyoni, also known as the 
northern sea otter, has a range that extends from the Aleutian Islands 
in southwestern Alaska to the coast of the State of Washington; and E. 
l. nereis, known as the southern sea otter, occurs in coastal southern 
California and is known as the southern sea otter. Figure 1 illustrates 
the approximate ranges of the three subspecies.

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    The two subspecies of northern sea otter are separated by an 
expanse of open water that measures approximately 320 kilometers (km) 
(200 miles (mi)) between the Commander Islands in Russia, at the 
northeastern edge of the range of E. l. lutris, and the Near Islands of 
the United States, which are the northwestern edge of the range of E. 
l. kenyoni. Wide, deep-water passes are an effective barrier to sea 
otter movements (Kenyon 1969) and thus interaction between these two 
subspecies is considered very unlikely. (See later sections on food 
habits and animal movements.)
    The southernmost extent of the range of E. l. kenyoni is in 
Washington state and British Columbia, and is the result of 
translocations of sea otters from Alaska between 1969 and 1972 (Jameson 
et al. 1982). The Washington and British Columbia population is 
separated from the nearest sea otters in Alaska by a distance roughly 
of 483 km (300 mi) to the north, and is separated from the southern sea 
otter (E. l. nereis) by a distance of more than 965 km (600 mi) to the 
south.
    The sea otter is the smallest species of marine mammal in the 
world. Adult males average 130 centimeters (cm) (4.3 feet (ft)) in 
length and 30 kilograms (kg) (66 pounds (lbs)) in weight; adult females 
average 120 cm (3.9 ft) in length and 20 kg (44 lbs) in weight (Kenyon 
1969). The northern sea otter in Russian waters (E. l. lutris) is the 
largest of the three subspecies, characterized as having a wide skull 
with short nasal bones (Wilson et al. 1991). The southern sea otter (E. 
l. nereis) is smaller and has a narrower skull with a long rostrum and 
small teeth. The northern sea otter in Alaska (E. l. kenyoni) is 
intermediate in size and has a longer mandible than either of the other 
two subspecies.
    Sea otters lack the blubber layer found in most marine mammals and 
depend entirely upon their fur for insulation (Riedman and Estes 1990). 
Their pelage consists of a sparse outer layer of guard hairs and an 
underfur that is the densest mammalian fur in the world, averaging more 
than 100,000 hairs per square centimeter (645,000 hairs per square 
inch) (Kenyon 1969). As compared to pinnipeds (seals and sea lions) 
that have a distinct molting season, sea otters molt gradually 
throughout the year (Kenyon 1969).
    Sea otters have a much higher rate of metabolism than land mammals 
of similar size (Costa 1978; Costa and Kooyman 1982, 1984). To maintain 
the level of heat production required to sustain them, sea otters eat 
large amounts of food, estimated at 23-33 percent of their body weight 
per day (Riedman and Estes 1990). Sea otters are carnivores that 
primarily eat a wide variety of benthic (living in or on the sea floor) 
invertebrates, including sea urchins, clams, mussels, crabs, and 
octopus. In some parts of Alaska, sea otters also eat epibenthic 
(living upon the sea floor) fishes (Estes et al. 1982; Estes 1990).
    Much of the marine habitat of the sea otter in southwest Alaska is 
characterized by a rocky substrate. In these areas, sea otters 
typically are concentrated between the shoreline and the outer limit of 
the kelp canopy (Riedman and Estes 1990). Sea otters also inhabit 
marine environments that have soft sediment substrates, such as Bristol 
Bay and the Kodiak archipelago. As communities of benthic invertebrates 
differ between rocky and soft sediment substrate areas, so do sea otter 
diets. In general, prey species in rocky substrate habitats include sea 
urchins, octopus, and mussels, while in soft substrates, clams dominate 
the diet.
    Sea otters are considered a keystone species, strongly influencing 
the composition and diversity of the nearshore marine environment they 
inhabit (Estes et al. 1978). For example, studies of subtidal 
communities in Alaska have demonstrated that, when sea otters are 
abundant, epibenthic herbivores such as sea urchins will be present at 
low densities whereas kelp, which are consumed by sea urchins, will 
flourish. Conversely, when sea otters are absent, abundant sea urchin 
populations create areas of low kelp abundance, known as urchin barrens 
(Estes and Harrold 1988).
    Sea otters generally occur in shallow water areas that are near the 
shoreline. They primarily forage in shallow water areas less than 100 
meters (m) (328 feet (ft)) in depth, and the majority of all foraging 
dives take place in waters less than 40 m (131 ft) in depth. As water 
depth is generally correlated with distance to shore, sea otters 
typically inhabit waters within 1-2 km (0.62-1.24 mi) of shore (Riedman 
and Estes 1990). One notable exception occurs along the coast of 
Bristol Bay, along the north side of the Alaska Peninsula, where a 
broad shelf of shallow water extends several miles from shore. Prior to 
the onset of the sea otter population decline (described below), large 
rafts of sea otters were commonly observed above this shelf of shallow 
water at distances as far as 40 km (25 mi) from shore (Schneider 1976).
    Since the end of the commercial fur harvests, movement patterns of 
sea otters have been influenced by the processes of natural population 
recolonization and the translocation of sea otters into former habitat. 
While sea otters have been known to make long distance movements up to 
350 km (217 mi) over a relatively short period of time when 
translocated to new or vacant habitat (Ralls et al. 1992), the home 
ranges of sea otters in established populations are relatively small. 
Once a population has become established and has reached a relatively 
steady state within the habitat, movement of individual sea otters 
appears to be largely dictated by social behaviors and by factors in 
the local environment, including gender, breeding status, age, climatic 
variables (e.g. weather, tidal state, season), and human disturbance, 
as described below.
    Home range and movement patterns of sea otters vary depending on 
the gender and breeding status of the otter. In the Aleutian Islands, 
breeding males remain for all or part of the year within the bounds of 
their breeding territory, which constitutes a length of coastline 
anywhere from 100 m (328 ft) to approximately 1 km (0.62 mi). Sexually 
mature females have home ranges of approximately 8-16 km (5-10 mi), 
which may include one or more male territories. Male sea otters that 
are not part of the breeding population do not hold territories and may 
move greater distances between resting and foraging areas than breeding 
males (Lensink 1962, Kenyon 1969, Riedman and Estes 1990, Estes and 
Tinker 1996).
    Studies of movement patterns of juvenile sea otters found that 
juvenile males (1-2 years of age) were found to disperse later and for 
greater distances, up to 120 km (75 mi), from their natal (birth) area 
than 1-year-old females, for which the greatest distance traveled was 
38 km (23.6 mi) (Garshelis and Garshelis 1984, Monnett and Rotterman 
1988, Riedman and Estes 1990). Intraspecific aggression between 
breeding males and juvenile sea otters may cause juvenile otters to 
move from their natal areas to lower quality habitat (Ralls et al. 
1996), and survival of juvenile sea otters, though highly variable, is 
influenced by intraspecific aggression and dispersal (Ballachey et al. 
in litt.).
    Sea otter movements are also influenced by local climatic 
conditions such as storm events, prevailing winds, and in some areas, 
tidal state. Sea otters tend to move to protected or sheltered waters 
(bays, inlets, or lees) during storm events or high winds. In calm 
weather conditions, sea otters may be encountered further from shore 
(Lensink 1962, Kenyon 1969). In the Commander Islands, Russia , 
weather, season, time of day, and human disturbance have been cited as 
factors that induce sea

[[Page 6603]]

otter movement (Barabash-Nikiforov 1947, Barabash-Nikiforov et al. 
1968).
    Due to their dependence on shallow water feeding areas, most sea 
otters in Alaska occur within 1-2 km (0.62-1.24 mi) from shore. Thus, 
most sea otters are within State-owned waters, which include the area 
from mean high tide to 4.8 km (3 miles) offshore, and any that go 
further offshore are within the U.S. Exclusive Economic Zone, which 
extends 370.4 km (200 nautical miles) seaward from the coast of the 
United States.
    While sea otters typically sleep in the water, they also haul out 
and sleep on shore (Kenyon 1969). Female sea otters have also been 
observed to give birth while on shore (Barabash-Nikiforov et al. 1968, 
Jameson 1983). Although they typically haul out and remain close to the 
water's edge, sea otters have been observed on land at distances up to 
several hundred meters from the water (Riedman and Estes 1990). The 
majority of coastal lands within the range of the southwest Alaska 
population of the northern sea otter are part of our National Wildlife 
Refuge (NWR) system, including Alaska Maritime NWR, Izembek NWR, Alaska 
Peninsula/Becharof NWR, and Kodiak NWR. The National Park Service also 
has large parcels of coastal lands in southwest Alaska, including 
Katmai National Park and Aniakchak National Monument and Preserve. The 
vast majority of remaining coastal lands in southwest Alaska are owned 
by the State of Alaska and Alaska Native Corporations. Privately owned 
lands constitute a very minor proportion of coastal lands in southwest 
Alaska.
    Female sea otters in Alaska live an estimated 15-20 years, while 
male lifespan appears to be about 10-15 years (Calkins and Schneider 
1985). First-year survival of sea otter pups is generally substantially 
lower than that for prime age (2-10 years old) animals (Monson and 
DeGange 1995, Monson et al. 2000). Male sea otters appear to reach 
sexual maturity at 5-6 years of age (Schneider 1978, Garshelis 1983). 
The average age of sexual maturity for female sea otters is 3-4 years, 
but some appear to reach sexual maturity as early as 2 years of age. 
The presence of pups and fetuses at different stages of development 
throughout the year suggests that reproduction occurs at all times of 
the year. Some areas show evidence of one or more seasonal peaks in 
pupping (Rotterman and Simon-Jackson 1988).
    Similar to other mustelids, sea otters can have delayed 
implantation of the blastocyst (developing embryo) (Sinha et al. 1966). 
As a result, pregnancy can have two phases: from fertilization to 
implantation, and from implantation to birth (Rotterman and Simon-
Jackson 1988). The average time between copulation and birth is around 
6-7 months. Female sea otters typically will not mate while accompanied 
by a pup (Lensink 1962; Kenyon 1969; Schneider 1978; Garshelis et al. 
1984). Although females are physically capable of producing pups 
annually, the length of pup dependency may be the primary factor 
determining pupping interval.
    Maximum productivity rates have not been measured through much of 
the sea otter's range in Alaska. Estes (1990) estimated a population 
growth rate of 17-20 percent per year for four northern sea otter 
populations expanding into unoccupied habitat. In areas where resources 
are limiting or where populations are approaching equilibrium density, 
slower rates of growth are expected. Equilibrium density is defined as 
the average density, relatively stable over time, that can be supported 
by the habitat (Estes 1990).

Distribution and Status

    Historically, sea otters occurred throughout the coastal waters of 
the north Pacific Ocean, from the northern Japanese archipelago around 
the north Pacific rim to central Baja California, Mexico. The historic 
distribution of sea otters is depicted in Figure 2.

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[[Page 6604]]

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    Prior to commercial exploitation, the range-wide estimate for the 
species was 150,000-300,000 individuals (Kenyon 1969, Johnson 1982). 
Commercial hunting of sea otters began shortly after the Bering/
Chirikof expedition to Alaska in 1741. Over the next 170 years, sea 
otters were hunted to the brink of extinction first by Russian, and 
later by American fur hunters.
    Sea otters became protected from commercial harvests under the 
International Fur Seal Treaty of 1911, when only 13 small remnant 
populations were known to still exist (Figure 2). The entire species at 
that time may have been reduced to only 1,000-2,000 animals. Two of the 
13 remnant populations (Queen Charlotte Island and San Benito Islands) 
subsequently became extinct (Kenyon 1969, Estes 1980). The remaining 11 
populations began to grow in number, and expanded to recolonize much of 
the former range. Six of the remnant populations (Rat Islands, Delarof 
Islands, False Pass, Sandman Reefs, Shumagin Islands, and Kodiak 
Island) were located within the bounds of what we now recognize as the 
southwest Alaska population of the northern sea otter (see Distinct 
Vertebrate Population Segment, below). These remnant populations grew 
rapidly during the first 50 years following protection from further 
commercial hunting. At several locations in the Aleutian Islands, the 
rapid growth of sea otter populations appears to have initially 
exceeded the carrying capacity of the local environment, as sea otter 
abundance at these islands then declined, either by starvation or 
emigration, eventually reaching what has been described as ``relative 
equilibrium'' (Kenyon 1969).

Population Trends of Sea Otters in Southwest Alaska

    The following discussion of population trends is related to the 
southwest Alaska distinct population segment of sea otters addressed in 
this proposed rule. The southwest Alaska population ranges from Attu 
Island at the western end of Near Islands in the Aleutians, east to 
Kamishak Bay on the western side of lower Cook Inlet, and includes 
waters adjacent to the Aleutian Islands, the Alaska Peninsula, the 
Kodiak archipelago, and the Barren Islands (Figure 3).

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    Survey procedures vary in different locations. In some parts of 
southwest Alaska, sea otters have been counted in a narrow band of 
water adjacent to the shoreline; in others, transects by boat or plane 
have been used to sample an area, and the resulting sea otter density 
is extrapolated to generate a population estimate for the entire study 
area. Like survey efforts of most species, detection of all the 
individuals present is not always possible. Sea otters spend 
considerable time under water, and it is not possible to detect 
individuals that are below the surface at the time a survey is 
conducted. Also, observers do not always detect every individual 
present on the surface. Only a few surveys have been conducted using 
methods that allow for calculation of a correction factor to adjust for 
the estimated proportion of otters not detected by observers. Making 
such an adjustment entails having an independent estimate of the number 
of otters present in an area, also known as ``ground-truth,'' and 
combining it with the regular survey data in order to calculate a 
correction factor to adjust for sea otters not detected during the 
survey. Thus, survey results can be of several types: They can be 
direct counts or estimates, and in either case they may be adjusted or 
unadjusted for sea otters not detected by observers.
    In the following discussion of population trends, results are 
presented separately for surveys conducted in the Aleutian Islands, the 
Alaska Peninsula, the Kodiak Archipelago, and Kamishak Bay. For the 
Alaska Peninsula, results are presented for the separate surveys that 
have been conducted for north Peninsula offshore areas, south Peninsula 
offshore areas, south Alaska Peninsula Islands, and the South Alaska 
Peninsula shoreline. The general locations of the survey areas are 
depicted in Figure 4 A-D.

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[[Page 6608]]

    Unless otherwise specified, the survey results are unadjusted for 
otters not detected by observers. Within each study area, recent 
surveys were conducted using methods similar to those used in the past, 
so that counts or estimates would be as comparable as possible with 
baseline information for that area. Although there may be slight 
differences in the time of year that surveys were conducted, we do not 
believe these timing differences hinder comparisons of survey results 
because otters are likely to remain in the same general area, as they 
are not migratory. A summary of sea otter survey data from each survey 
area within the southwest Alaska population is presented in Table 1, 
followed by a narrative description of the results for each area.

                      Table 1.--Summary of Sea Otter Population Surveys in Southwest Alaska
 [Estimates include 95% confidence intervals where available. Estimates for the Kodiak archipelago and Kamishak
                         Bay are the only values adjusted for sea otters not detected.]
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             Survey Area                  Year              Count or estimate                     Source
----------------------------------------------------------------------------------------------------------------
Aleutian Islands.....................       1965  9,700                                  Kenyon (1969).
                                            1992  8,048                                  Evans et al. (1997).
                                            2000  2,442                                   Doroff et al. (2003).
North Alaska Peninsula Offshore Areas       1976  11,681                                 Schneider (1976).
                                           *1986  6,474 <plus-minus<ls-thn-eq> 2,003     Brueggerman et al.
                                                   (JUN)                                  (1988), Burn and
                                                  9,215 <plus-minus<ls-thn-eq> 3,709      Doroff in prep.
                                                   (AUG)
                                                  7,539 <plus-minus<ls-thn-eq> 2,103
                                                   (OCT)
South Alaska Peninsula Offshore Areas      *1986  13,900 <plus-minus<ls-thn-eq> 6,456    Brueggerman et al.
                                                   (MAR)                                  (1988). Burn and
                                                  14,042 <plus-minus<ls-thn-eq> 5,178     Doroff in prep.
                                                   (JUN)
                                                  17,500 <plus-minus<ls-thn-eq> 5,768
                                                   (OCT)
                                            2001  1,005 <plus-minus<ls-thn-eq> 1,597     Burn and Doroff in
                                                   (APR)                                  prep.
South Alaska Peninsula Islands.......       1962  2,195                                  Kenyon (1969).
                                            1986  2,122                                  Brueggeman et al.
                                            1989  1,589                                   (1988).
                                            2001  405                                    DeGange et al. (1995).
                                                                                         Burn and Doroff in
                                                                                          prep.
South Alaska Peninsula Shoreline.....       1989  2,632                                  DeGange et al. (1995).
                                            2001  2,651                                  Burn and Doroff in
                                                                                          prep.
Kodiak Archipelago...................       1989  13,526 <plus-minus<ls-thn-eq> 2,350    DeGange et al. (1995).
                                            1994  9,817 <plus-minus<ls-thn-eq> 5,169     Doroff et al. (in
                                            2001  5,893 <plus-minus<ls-thn-eq> 2,630      prep.).
                                                                                         Doroff et al. (in
                                                                                          prep.).
Kamishak Bay.........................       2002  6,918 <plus-minus<ls-thn-eq> 4,271     USGS in litt. (2002).
----------------------------------------------------------------------------------------------------------------
* Estimates recalculated by the Service (Burn and Doroff in prep.) from original data of Brueggeman et al
  (1988).

Aleutian Islands

    The first systematic, large-scale population surveys of sea otters 
in the Aleutian Islands (Figure 4A) were conducted from 1957 to 1965 by 
Kenyon (1969). The descendants of two remnant colonies had expanded 
throughout the Rat, Delarof, and western Andreanof Island groups. The 
total unadjusted count for the entire Aleutian archipelago during the 
1965 survey was 9,700 sea otters. In 1965, sea otters were believed to 
have reached equilibrium densities at roughly one-third of the Aleutian 
archipelago, ranging from Adak Island in the east to Buldir Island in 
the west (Estes 1990). Islands in the other two-thirds of the 
archipelago had few sea otters, and researchers expected additional 
population growth in the Aleutian to occur through range expansion.
    From the mid-1960's to the mid-1980's, otters expanded their range, 
and presumably their numbers as well, until they had recolonized all 
the major island groups in the Aleutian. Although the exact size of the 
sea otter population at the onset of the decline is unknown, a habitat-
based computer model estimates the pre-decline population in the late-
1980s may have numbered approximately 74,000 individuals (Burn et al. 
2003).
    In a 1992 aerial survey of the entire Aleutian archipelago we 
counted a total of 8,048 otters (Evans et al. 1997), approximately 
1,650 (19 percent) fewer than the total reported for the 1965 survey. 
Although sea otters had recolonized all major island groups, they had 
unexpectedly declined in number by roughly 50 percent in portions of 
the western and central Aleutian since 1965, based on a comparison of 
the 1965 and 1992 survey results. Sea otter surveys conducted from 
skiffs during the mid-1990s at several islands also indicated 
substantial declines in the western and central Aleutians (Estes et al. 
1998). It was not known at the time if these observed declines were due 
to an actual reduction in numbers of sea otters or a redistribution of 
otters between Aleutian Islands.
    In April 2000, we conducted another complete aerial survey of the 
Aleutian archipelago. We counted 2,442 sea otters, which is a 70-
percent decline from the count eight years previously (Doroff et al. 
2003). Along the more than 5,000 km (3,107 miles) of shoreline 
surveyed, sea otter density was at a uniformly low level. this result 
showed clearly that a decline in abundance of sea otters in the 
archipelago had occurred, as opposed to redistribution among islands.
    The aerial and skiff survey data both indicate that the onset of 
the decline began in the latter half of the 1980s or early 1990s. 
Doroff et al. (2003) have calculated that the decline proceeded at an 
average rate of -17.5 percent per year in the Aleutians. Although 
otters had declined in all island groups within the archipelago, the 
greatest declines were observed in the Rat, Delarof, and Andreanof 
Island groups. this result was unexpected, as the remnant colonies in 
these island groups were the first to recover from the effects of 
commercial harvests, and sea otters were believed to have been at 
equilibrium density at most of these islands in the mid-1960s.
    The current estimate of the population in the Aleutian Islands is 
8,742 sea otters. This estimate is based on results of the survey 
conducted in April of 2000, adjusted for otters not detected.

Alaska Peninsula

    Three remnant colonies (at False Pass, Sandman Reefs, and Shumagin 
Islands) were believed to have existed near the western end of the 
Alaska Peninsula

[[Page 6609]]

after commercial fur harvests ended in 1911 (Kenyon 1969). During 
surveys in the late 1950s and early 1960s, substantial numbers of sea 
otters were observed between Unimak Island and Amak Island (2,892 in 
1965) on the north side of the Peninsula, and around Sanak Island and 
the Sandman reefs (1,186 in 1962), and the Shumagin Islands on the 
south side (1,352 in 1962) (Kenyon 1969).
    As summarized in Table 1 and described below, surveys of sea otters 
along the Alaska Peninsula have covered four areas, with the same 
method being used in a given area. For the north Alaska Peninsula 
offshore area (Figure 4B), shoreline counts are not an appropriate 
survey method due to the broad, shallow shelf in Bristol Bay, a 
condition under which sea otters occur further from the shore than 
elsewhere. Consequently, the north Alaska Peninsula offshore area has 
been surveyed from aircraft using north-south transects extending from 
the shoreline out over the shelf. Using this method, Schneider (1976) 
calculated an unadjusted population estimate of 11,681 sea otters on 
the north side of the Alaska Peninsula in 1976, which he believed to 
have been within the carrying capacity for that area. Brueggeman et al. 
(1988) conducted replicate surveys of the same area during three time 
periods in 1986. We re-analyzed the original 1986 survey data to 
address computational errors in the survey report; our re-calculated 
estimates range from 6,474-9,215 sea otters for this area for the three 
surveys in 1986 (Burn and Doroff in prep.). In May 2000, we replicated 
the survey design of Brueggeman et al. (1988) using identical survey 
methods. The 2000 survey estimate of 4,728 sea otters indicates 
abundance on the north side of the Alaska Peninsula had fallen by 27-49 
percent in comparison with the minimum and maximum point estimates of 
the 1986 survey (Burn and Doroff in prep.).
    We believe the decline in this particular area may have been even 
greater than these results indicate, as the severity of sea ice in 
Bristol Bay makes the North Alaska Peninsula the only area where 
seasonal differences in the distribution of otters are likely to occur. 
Substantially more otters were counted in transects of the Port Moller 
area in the May 2000 survey than in the 1986 surveys, which occurred 
later in the year. Large aggregations of sea otters in Port Moller may 
be a seasonal phenomenon related to sea ice; overflights in July and 
August, when the sea ice has left, have not recorded large numbers of 
sea otters in this area (B. Murphy, Alaska Department of Fish and Game, 
in litt. 2002). Consequently, had the May 2000 survey been conduced 
later (e.g. July or August) when the sea ice and the otters were more 
dispersed, it seems likely that fewer would have been in the Port 
Moller transect areas, which would have resulted in a lower count in 
the 2000 survey.
    Offshore areas on the south side of the Alaska Peninsula (Figure 
4B) were surveyed at three different time periods in 1986 (Brueggeman 
et al. 1988). Noting computational errors in the survey report, we re-
analyzed the original 1986 survey data, resulting in estimates of 
13,900-17,500 sea otters for the three surveys conducted in 1986 (Burn 
and Doroff in prep.). We replicated the survey in April 2001, when our 
estimate of 1,005 otters for the south Alaska Peninsula offshore area 
indicated a decline in abundance of at least 93 percent when compared 
with the minimum and maximum point estimates in this area from the 1986 
surveys. Specific areas of high sea otter concentrations in 1986, such 
as Sandman Reefs, were almost devoid of sea otters in 2001 (Burn and 
Doroff in prep.).
    Several island groups along the south side of the Alaska Peninsula 
(Figure 4C; Pavlof and Shumagin Islands, as well as Sanak, Caton, and 
Deer Islands) are another survey area. In 1962, Kenyon (1969) counted 
1,900 otters along these islands. Twenty-four years later, in 1986, 
Brueggeman et al. (1988) counted 2,122 otters in the same survey area. 
In 1989, DeGange et al. (1995) counted 1,589 otters along the 
shorelines of the islands that had been surveyed in 1962 and 1986, 
which was approximately 16-28 percent fewer sea otters than were 
reported in the earlier counts. This decrease was the first indication 
of a sea otter population decline in the area of the Alaska Peninsula. 
When we counted sea otters in these island groups in 2001 we recorded 
only 405 individuals (Burn and Doroff in prep.), which is an 81-percent 
decline from the 1986 count reported by Brueggeman et al. (1988).
    The shoreline of the Alaska Peninsula from False Pass to Cape 
Douglas (Figure 4D) is another survey area. In 1989, DeGange et al. 
(1995) counted 2,632 sea otters along this stretch of shoreline. In 
2001 we counted 2,651 sea otters (Burn and Doroff in prep.), nearly the 
same as the 1989 count. When we subdivided and compared the results for 
the eastern and western components of the survey areas, we found that 
the count along the eastern end of the Peninsula, from Cape Douglas to 
Castle Cape, increased approximately 20 percent, from 1,766 in 1989 to 
2,115 in 2001. For the western end of the Peninsula from False Pass to 
Castle Cape, however, there was evidence of a population decline, with 
866 counted in 1989 as compared to 536 in 2001, a drop of almost 40 
percent. (We also counted 42 sea otters along the shoreline of Unimak 
Island in 2001, but there is no suitable baseline data for comparison.) 
Based on what is known about sea otter movements and the distance 
between the eastern and western ends of the Peninsula, we believe that 
it is unlikely that these observations represent a change in 
distribution.
    The results from the different survey areas along the Alaska 
Peninsula indicate various rates of change. Overall, the combined 
counts for the Peninsula have declined by 65-72 percent since the mid-
1980s, based on the data presented in Table 1.
    We have calculated an estimate of the current population for the 
entire Alaska Peninsula, including an adjustment for otters not 
detected by observers. In making this calculation, we first revised the 
combined total number of sea otters observed during the most recent 
surveys (8,789), to account for potential double-counting in an area of 
overlap between two of the study areas along the Peninsula. We then 
multiplied this revised number of otters (8,328) by the correction 
factor of 2.38 provided by Evans et al. (1997) for the type of aircraft 
used, to account for otters not detected by observers. The result is an 
adjusted estimate of 19,821 sea otters along the Alaska Peninsula as of 
2001 (Burn and Doroff in prep.).

Kodiak Archipelago

    One of the remnant sea otter colonies in southwest Alaska is 
thought to have occurred at the northern end of the Kodiak archipelago 
(Figure 4D), near Shuyak Island. In 1959, Kenyon (1969) counted 395 sea 
otters in the Shuyak Island area. Over the next 30 years, the sea otter 
population in the Kodiak archipelago grew in numbers, and its range 
expanded southward around Afognak and Kodiak Islands (Schneider 1976, 
Simon-Jackson et al. 1984, Simon-Jackson et al. 1985). DeGange et al. 
(1995) surveyed the Kodiak archipelago in 1989 and calculated an 
adjusted population estimate of 13,526 sea otters. In July and August 
1994, we conducted an aerial survey using the methods of Bodkin and 
Udevitz (1999) and calculated an adjusted population estimate of 9,817, 
approximately 27 percent lower than the estimate for 1989 (Doroff et 
al. in prep.). Although both surveys corrected for animals not detected 
by observers, differences in survey methods led to questions about

[[Page 6610]]

the ability to compare results between the two surveys. In June 2001, 
we surveyed the Kodiak archipelago using the same observer, pilot, and 
methods as in 1994. The result was an adjusted population estimate of 
5,893 sea otters for the archipelago in 2001 (Doroff et al. in prep.), 
which is a 40-percent decline in comparison to the 1994 estimate and a 
56-percent decline from the 1989 estimate.

Kamishak Bay

    Kamishak Bay is located on the west side of lower Cook Inlet, north 
of Cape Douglas (Figure 4D). In 1994, Kamishak Bay was included as part 
of a survey for marine birds and marine mammals in lower Cook Inlet 
(Agler et al. 1995). The unadjusted population estimate of 5,914 sea 
otters from the 1994 survey included sea otters from both the southwest 
Alaska and the southcentral Alaska stocks (see section on Distinct 
Vertebrate Population Segment, below), therefore an estimate for only 
the Kamishak Bay area is not available. In the summer of 2002, the U.S. 
Geological Survey (USGS), Biological Resources Division conducted an 
aerial survey of lower Cook Inlet and the Kenai Fiords area. This 
survey was designed, in part, to estimate sea otter abundance in 
Kamishak Bay. The method used was identical to that of the 2001 aerial 
survey of the Kodiak archipelago, which includes a correction factor 
for sea otters not detected by the observer (Bodkin and Udevitz 1999). 
Sea otters were relatively abundant within Kamishak Bay during the 2002 
survey, with numerous large rafts of sea otters observed. The adjusted 
estimate for the current sea otter population size in Kamishak Bay is 
6,918 (USGS in litt. 2002). As no previous estimates for Kamishak Bay 
exist, the population trend for this area is unknown.

Overall Comparison

    The history of sea otters in southwest Alaska is one of commercial 
exploitation to near extinction (1742 to 1911), protection under the 
International Fur Seal Treaty (1911), and population recovery (post-
1911). By the mid- to late-1980s, sea otters in southwest Alaska had 
grown in numbers and recolonized much of their former range. The 
surveys conducted in various areas, described above, provide 
information about the extent of declines within those areas. However, 
due to differences in the years of the various baseline surveys for 
different areas (1962, 1965, 1976, 1989), it is difficult to combine 
those surveys as a basis for estimating the overall size of the sea 
otter population throughout southwest Alaska at the onset of the 
decline. Therefore, as part of our effort to evaluate information 
reflecting the overall magnitude of the decline, we also have 
considered information provided by Calkins and Schneider (1985), who 
summarized sea otter population estimates worldwide based on data 
collected through 1976. Much of the information they present is from 
unpublished Alaska Department of Fish and Game survey results, and we 
include this information as it is the only comprehensive reference for 
estimating the overall magnitude of the sea otter decline in southwest 
Alaska.
    Calkins and Schneider (1985) provided estimates as of 1976, 
adjusted for animals not detected by observers, for the Aleutian 
Islands (55,100-73,700), north Alaska Peninsula (11,700-17,200), south 
Alaska Peninsula (22,000-30,000) and Kodiak archipelago (4,000-6,000). 
They did not report a specific estimate for the Kamishak Bay area, 
which presumably was included within their estimate for the Kenai 
Peninsula and Cook Inlet area (2,500-3,500 otters), and we are assuming 
that half of the sea otters estimated for Kenai Peninsula and Cook 
Inlet occurred in Kamishak Bay (1,250-1,750). Combining these 
estimates, the sea otter population in the area encompassing the range 
of the southwest Alaska population was believed to have numbered 
between 94,050-128,650 animals as of 1976. As sea otters had not yet 
fully recolonized southwest Alaska or reached equilibrium density in 
all areas in 1976, additional population growth was expected. 
Therefore, the overall population prior to the onset of the decline in 
the 1980's probably was higher than the population estimate for 1976.
    Our estimate for the current size of the southwest Alaska 
population of the northern sea otter is 41,474 animals (Table 2). This 
estimate is based on recent survey information, adjusted for animals 
not detected.

                  Table 2.--Current Population Estimates for the Sea Otter in Southwest Alaska
    [Alaska Peninsula and Unimak Island counts are adjusted using a correction factor of 2.38 for twin-engine
   aircraft surveys of sea otters according to Evans et al. (1997). Aleutian Islands, Kodiak Archipelago, and
                  Kamishak Bay surveys are adjusted using survey-specific correction factors.]
----------------------------------------------------------------------------------------------------------------
                                                Unadjusted    Adjusted
           Survey area                Year       count or     count or                  Reference
                                                 estimate     estimate
----------------------------------------------------------------------------------------------------------------
Aleutian Islands................         2000        2,442        8,742  Doroff et al. (2003).
North Alaska Penninsula Offshore         2000        4,728       11,253  Burn and Doroff (in prep.).
 Areas.
South Alaska Peninsula Offshore          2001        1,005        2,392  Burn and Doroff (in prep.).
 Areas.
South Alaska Peninsula Shoreline         2001    \a\ 2,190        5,212  Burn and Doroff (in prep.).
South Alaska Peninsula Islands..         2001          405          964  Burn and Doroff (in prep.).
Unimak Island...................         2001           42          100  Burn and Doroff (in prep.).
Kodiak Archipelago..............         2001  ...........        5,893  Doroff et al. (in prep.).
Kamishak Bay....................         2002  ...........        6,918  USGS Unpublished data.
                                                           -------------
    Total.......................  ...........  ...........       41,474  .......................................
----------------------------------------------------------------------------------------------------------------
\a\ Does not include a count of 461 sea otters from False Pass to Seal Cape, which was also surveyed as part of
  the south Alaska Peninsula Offshore Areas survey.

    The 1976 population estimate based on the work of Calkins and 
Schneider (1985) is not directly comparable to our current estimate 
because of somewhat different survey approaches and estimation 
techniques. Nevertheless, the results provide a basis for at least a 
rough comparison of the overall extent of the decline of sea otters in 
southwest Alaska. When compared to the estimate of 94,050-128,650 from 
Calkins and Schneider (1985), our current estimate of approximately 
41,500 sea otters is 53,000-87,000 lower, which is 56-68 percent lower 
than the estimate for 1976.

[[Page 6611]]

Translocated Sea Otter Populations

    As part of efforts to re-establish sea otters in portions of their 
historical range, otters from Amchitka Island (part of the Aleutian 
Islands) were translocated to other areas outside the range of what we 
now recognize as the southwest Alaska distinct population segment, but 
within the range of E. l. kenyoni (Jameson et al. 1982). These 
translocation efforts met with varying degrees of success. From 1965 to 
1969, 412 otters (89 percent from Amchitka Island, and 11 percent from 
Prince William Sound, which is in southcentral Alaska, outside the 
range of the southwest Alaska DPS) were translocated to six sites in 
southeast Alaska (Jameson et al. 1982). Since that time, these 
translocated populations have grown rapidly in numbers and expanded 
their range. The most recent surveys conducted between 1994 and 1996 
estimated 12,632 otters in southeast Alaska (USFWS 2002b).
    Sea otters from Amchitka Island also were translocated to 
Washington and Oregon, and to British Columbia, Canada, between 1969 
and 1972 (Jameson et al. 1982). Sea otters translocated to British 
Columbia were captured at Amchitka Island and Prince William Sound; the 
otters translocated to Washington and Oregon were captured at Amchitka 
Island only. The British Columbia and Washington populations have grown 
in number and expanded their range, while the Oregon population 
disappeared. The most recent estimates of population size are 550 in 
Washington and 2,000 in British Columbia (Jameson and Jeffries 2001; 
Watson et al. 1997). Although these populations, as well as sea otters 
in southeast Alaska, are descended from sea otters at Amchitka Island, 
they are geographically isolated from the southwest Alaska population 
and their parent population by hundreds of kilometers (see section 
entitled Distinct Vertebrate Population Segment, below) and are not 
included in this proposed listing action.
    The total number of otters removed from Amchitka as part of this 
translocation program was just over 600 animals (Jameson et al. 1982). 
Estes (1990) estimated that the sea otter population at Amchitka Island 
remained essentially stable at more than 5,000 otters between 1972 and 
1986, and consequently there is no evidence that removals for the 
translocation program have been a contributing factor in the current 
population decline.

Previous Federal Action

    Based on the results of the April 2000 sea otter survey in the 
Aleutian Islands, we added sea otters in the Aleutians to our list of 
candidate species in August of 2000 (65 FR 67343). On October 25, 2000, 
we received a petition from the Center for Biological Diversity 
(Center) in Berkeley, California, requesting that we list the Aleutian 
population of the northern sea otter as endangered. As we already had 
identified sea otters in the Aleutians as a candidate species, we 
considered the petition to be a second, redundant petition, and in 
accordance with our petition management guidance (61 FR 36075) did not 
make an additional 90-day or 12-month finding on this petition. On 
November 14, 2000, we received a Notice of Intent to sue from the 
Center challenging our decision not to propose to list sea otters in 
the Aleutians under the Act. We responded to the Center that funds were 
not available during Fiscal Year 2001 to prepare a proposed listing 
rule.
    On August 21, 2001, we received a petition from the Center to 
designate the Alaska stock of sea otters (State-wide) as depleted under 
the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.). Under 
the MMPA, a marine mammal species or population stock is considered to 
be depleted when it is below its Optimum Sustainable Population (OSP) 
level. The OSP is defined in the MMPA 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.'' In 
accordance with the MMPA, we published a notice in the Federal Register 
on September 6, 2001, announcing the receipt of this petition (66 FR 
4661). On November 2, 2001, we published our finding on the petition in 
the Federal Register (66 FR 55693). While we acknowledged the evidence 
of a population decline in the southwest Alaska stock, the best 
available information suggested that the southeast Alaska stock was 
increasing, and the southcentral Alaska stock was either stable or 
increasing. We found that the petitioned action was not warranted under 
the MMPA for the following reasons: (1) The best estimate of the 
population size for the entire state of Alaska was greater than the 
value presented in the petition; (2) based on the best estimate of 
population size, the Alaska stock of sea otters was above OSP level; 
and (3) recent information had identified the existence of three stocks 
of sea otters in Alaska: southwest, southcentral, and southeast 
(Gorbics and Bodkin 2001). The boundaries of these three stocks are 
depicted in Figure 5.

BILLING CODE 4310-55-P

[[Page 6612]]

[GRAPHIC] [TIFF OMITTED] TP11FE04.052

BILLING CODE 4310-55-C

[[Page 6613]]

    We recently revised the MMPA stock assessment reports for sea 
otters in Alaska. Draft stock assessment reports identifying the three 
stocks of sea otters were made available for public review and comment 
from March 28 to June 26, 2002 (67 FR 14959). The sea otter stock 
assessment reports were finalized on August 20, 2002, and notice of 
their availability was published on October 9, 2002 (67 FR 62979).
    On January 11, 2002, we received a petition from the Sea Otter 
Defense Initiative (SODI), a project of the Earth Island Institute, in 
Deer Isle, Maine. The petition requested that we emergency and 
permanently list the southwest Alaska stock of sea otters as 
endangered. We responded to SODI that, based on the best available 
population estimate that we prepared in response to the Center's 
petition to list the Alaska stock of sea otters as depleted under the 
MMPA, an emergency listing of the southwest Alaska stock was not 
warranted. We also notified SODI that we had begun the preparation of 
this proposed rule during Fiscal Year 2002.
    Based on additional sea otter surveys along the Alaska Peninsula 
and Kodiak archipelago, and the identification of multiple stocks of 
sea otters in Alaska, we expanded the candidate species designation on 
June 3, 2002, to include the geographic range of the southwest Alaska 
stock of the northern sea otter. Notification of this change was 
included in our June 13, 2002, notice of review of candidate species 
(67 FR 40657).

Distinct Vertebrate Population Segment

    Pursuant to the Act, we must consider for listing any species, 
subspecies, or, for vertebrates, any distinct population segment (DPS) 
of these taxa if there is sufficient information to indicate that such 
action may be warranted. To interpret and implement the DPS provision 
of the Act and Congressional guidance, the Service and the National 
Marine Fisheries Service published, on December 21, 1994, a draft 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments Under the Endangered Species Act and invited public comments 
on it (59 FR 65885). After review of comments and further 
consideration, the Services adopted the interagency policy as issued in 
draft form, and published it in the Federal Register on February 7, 
1996 (61 FR 4722). This policy addresses the recognition of DPSs for 
potential listing actions. The policy allows for more refined 
application of the Act that better reflects the biological needs of the 
taxon being considered, and avoids the inclusion of entities that do 
not require its protective measures.
    Under our DPS policy, three elements are considered in a decision 
regarding the status of a possible DPS as endangered or threatened 
under the Act. These are applied similarly for additions to the list of 
endangered and threatened species, reclassification, and removal from 
the list. They are: (1) Discreteness of the population segment in 
relation to the remainder of the taxon; (2) the significance of the 
population segment to the taxon to which it belongs; and (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?). A systematic 
application of the above elements is appropriate, with discreteness 
criteria applied first, followed by significance analysis. Discreteness 
refers to the isolation of a population from other members of the 
species and we evaluate this based on specific criteria. We determine 
significance by using the available scientific information to determine 
the DPS's importance to the taxon to which it belongs. If we determine 
that a population segment is discrete and significant, we then evaluate 
it for endangered or threatened status based on the Act's standards.

Discreteness

    Under our Policy Regarding the Recognition of Distinct Vertebrate 
Population Segments, 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 Act.
    The focus of our DPS evaluation is the subspecies E. l. kenyoni, 
which occurs from the west end of the Aleutian Islands in Alaska, to 
the coast of the State of Washington (Wilson et al. 1991), as depicted 
in Figure 1. To the west of the Aleutian Islands, the sea otters in 
Russia are recognized as a separate subspecies, E. l. lutris. To the 
east of the Aleutians, a discontinuity in sea otter distribution occurs 
at Cook Inlet. This discontinuity also was specifically recognized 
during the process of identifying marine mammal stocks under the MMPA, 
and is reflected by the boundary separating the southwest Alaska stock 
of sea otters from the southcentral stock, as shown in Figure 4. 
Although sea otters inhabit both the eastern and western shores of 
lower Cook Inlet, their distribution around the Inlet is not contiguous 
because the presence of winter sea ice in upper Cook Inlet forms a 
natural break in sea otter distribution. This break in sea otter 
distribution in the upper portion of the Inlet persists throughout the 
ice-free portions of the year as well (Rotterman and Simon-Jackson 
1988).
    In the lower portion of Cook Inlet, a different type of barrier 
exists in the form of an expanse of deep water. The distance across 
lower Cook Inlet ranges from 50-90 km (31-56 miles). While sea otters 
are physically capable of swimming these distances, the water depths of 
up to 260 m (142 fathoms) and lack of food resources for sea otters in 
deep water areas makes such movements across this open water area quite 
unlikely.
    Surveys conducted for sea otters and other species in the area of 
Lower Cook Inlet confirm the discontinuity of sea otters in this area. 
In the summer of 1993, Agler et al. (1995) conducted boat-based surveys 
of marine birds and mammals, including sea otters, in Lower Cook Inlet. 
During approximately 1,574 km (978 miles) of survey effort, only one 
sea otter was observed in the center of the Inlet. More recently, 
during an aerial survey of sea otters conducted in the summer of 2002, 
no otters were observed on 324 km (201 miles) of transects flown across 
the center of Cook Inlet (USGS in litt. 2002).
    Information gathered incidental to surveys of other species also 
indicates that sea otters rarely occur in the offshore areas of lower 
Cook Inlet, further confirming the discontinuity of sea otters in this 
area. NMFS has conducted aerial surveys of beluga whales, 
Delphinapterus leucas, in Cook Inlet since 1993. In addition to beluga 
whales, observers recorded observations of other marine mammals, 
including sea otters. During these surveys, which covered a combined 
total of 11,583 km (7,197 miles) of systematic transects flown across 
the inlet over several years, no sea otters were observed in the 
deeper, offshore areas of Cook Inlet (Rugh et al. 2000). The NMFS also 
conducted a marine mammal observer program during the Cook Inlet salmon 
drift and set gillnet fisheries in 1999 and 2000 (Fadely and Merklein 
2001). During this period with several thousand hours of observations, 
no sea otters were recorded in the offshore

[[Page 6614]]

areas of Cook Inlet. Given the amount of survey effort that has been 
expended, the almost complete lack of observations in deeper offshore 
waters indicates that there is little exchange of sea otters between 
the eastern and western shores of lower Cook Inlet.
    The population of sea otters represented by the southwest Alaska 
stock is genetically different from both the southcentral and southeast 
Alaska stocks. Studies using mitochondrial DNA analysis identified ten 
different genotypes within the range of sea otters; six of these ten 
different genotypes are found in Alaska (Sanchez 1992, Bodkin et al. 
1992, Cronin et al. 1996). Gorbics and Bodkin (2001) demonstrated that 
mitochondrial DNA haplotype frequencies (a descriptive genetic 
characteristic) differ significantly among sea otters from southwest 
Alaska (west of Cook Inlet) compared to those from southcentral Alaska 
(east of Cook Inlet) and southeast Alaska.
    Additional genetic analysis of both mitochondrial and nuclear 
(microsatellite) DNA (these are two different approaches for examining 
genetic diversity) has shown similar patterns of genetic 
differentiation and supports the identification of multiple populations 
of sea otters in Alaska. As mitochondrial DNA is maternally inherited, 
it can only be used to assess gene flow in females. Analysis of nuclear 
genetic markers, such as microsatellite DNA, can be used to assess gene 
flow by both males and females and provide a better quantification of 
genetic differentiation than mitochondrial DNA alone (Cronin et al. 
2002). Pairwise comparisons of both mitochondrial and nuclear DNA 
between individual sampling locations from southwest and southcentral 
Alaska had 40 significant differences out of 60 comparisons (67%). In 
addition, tests of heterogeneity between pooled sampling locations 
showed significant differences between sea otters in southwest and 
southcentral Alaska in three out of three tests (Cronin et al. 2002). 
These genetic differences are most likely the result of little or no 
movement of animals across stock boundaries (Gorbics and Bodkin 2001). 
The boundary between the southwest and southcentral stocks of sea 
otters is in the area of Cook Inlet, and the aforementioned genetic 
differences and lack of observations from the center of Cook Inlet 
indicate that sea ice and deep water constitute physical barriers that 
effectively limit animal movements between the southwest and 
southcentral Alaska stocks of sea otters.
    Sea otters in southwest and southcentral Alaska also differ 
morphologically. Comparison of 10 skull characteristics between 26 
adult sea otters from Amchitka Island and 42 sea otters from Prince 
William Sound showed numerous statistically significant differences, 
with the Amchitka otters being the larger of the two (Gorbics and 
Bodkin 2001).
    These genetic and morphological differences were part of the basis 
for identification of sea otter population stocks under the MMPA (USFWS 
2002a, USFWS 2002b, USFWS 2002c). The Service and NMFS have adopted the 
methods of Dizon et al. (1992), who outlined four criteria for 
consideration when identifying marine mammal population stocks: (1) 
Distribution; (2) population response; (3) morphology; and (4) 
genetics. Applying these criteria to the best available scientific 
information, Gorbics and Bodkin (2001) identified three stocks of sea 
otters in Alaska, the southwest, southcentral, and southeast stocks, 
with ranges as depicted in Figure 5.
    In summary, sea otters from the Aleutians Islands to the middle of 
Cook Inlet are a population that differs from other sea otters in 
several respects. Sea otters to the west of the Aleutians are 
recognized as belonging to a different taxon, the subspecies E. l. 
lutris. Within the taxon E. l. kenyoni, there are physical barriers to 
movement across the upper and the lower portions of Cook Inlet, and 
there are morphological and genetic differences between sea otters that 
correspond to the southwest and southcentral Alaska stocks that we 
identified under the MMPA, with Cook Inlet being the boundary 
separating these stocks. The geographic separation between the 
southwest and southeast Alaska stocks is even greater than between the 
southwest and southcentral Alaska stocks. In addition, Bodkin et al. 
(1999) note that haplotype frequencies in southeast Alaska (a 
translocated population) differed significantly from both ``parent'' 
stocks.
    Based on our consideration of the best scientific information 
available, we find that the southwest Alaska population of the northern 
sea otter that occurs from the Aleutian Islands to Cook Inlet, 
corresponding to the southwest Alaska stock as identified by us 
previously under the MMPA (Figure 5), is markedly separated from other 
populations of the same taxon as a consequence of physical factors, and 
there is genetic and morphological discontinuity that is evidence of 
this separation. Therefore, the southwest Alaska population of the 
northern sea otter meets the criterion of discreteness under our Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments.

Significance

    If we determine a population segment is discrete, we next consider 
available scientific evidence of its significance to the taxon to which 
it belongs. Our policy states that 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 the 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.
    The sea otter population that corresponds to the southwest Alaska 
stock contains over 60 percent of the range for the subspecies E. l. 
kenyoni. Following protection from commercial exploitation in 1911, sea 
otters recovered quickly in southwest Alaska, which is a remote part of 
the State. In the mid-1980s, biologists believed that 94 percent of the 
subspecies E. l. kenyoni, and 84 percent of the world population, 
existed in southwest Alaska (Calkins and Schneider 1985). Despite the 
recent population decline, current information indicates that roughly 
half of all sea otters in the subspecies E. l. kenyoni exist in the 
southwest Alaska population. Thus, the loss of this population segment 
would result in a significant gap in the range of the taxon because it 
comprises 60 percent of the range and approximately half of the 
population of the subspecies. In addition, the best scientific 
information available demonstrates the southwest Alaska population 
differs significantly from the southcentral and southeast Alaska stocks 
in terms of genetic characteristics (Gorbics and Bodkin 2001). 
Therefore, we find that the southwest Alaska population segment is 
significant to the taxon to which it belongs because the loss of this 
segment would result in a significant gap in the range of the taxon, 
and because there is evidence that it differs markedly from other 
populations of the taxon in its genetic characteristics.

Summary of Discreteness and Significance Evaluations

    Based on the above consideration of the southwest Alaska population 
of the northern sea otter's discreteness and its

[[Page 6615]]

significance to the remainder of the taxon, we find that it is a 
distinct population segment, or DPS, as described under our Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments. 
The population's discreteness is due to its separation from other 
populations of the same taxon as a consequence of physical factors, and 
there are morphological and genetic differences from the remainder of 
the taxon that are evidence of this separation. The population 
segment's significance to the remainder of the taxon is due principally 
to the significant gap that its loss would represent in the range of 
the taxon, and also to the fact that it differs markedly from other 
populations of the species in its genetic characteristics. We refer to 
this population segment as the southwest Alaska DPS for the remainder 
of this proposed rule.

Conservation Status

    Pursuant to the Act, we must consider for listing any species, 
subspecies, or, for vertebrates, any distinct population segment of 
these taxa, if there is sufficient information to indicate that such 
action may be warranted. We have evaluated the conservation status of 
the southwest Alaska DPS of the northern sea otter in order to make a 
determination relative to whether it meets the Act's standards for 
listing the DPS as endangered or threatened. Based on the definitions 
provided in section 3 of the Act, endangered means the DPS is in danger 
of extinction throughout all or a significant portion of its range, and 
threatened means the DPS is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal list. As defined in section 3 of the 
Act, the term ``species'' includes any subspecies of fish or wildlife 
or plants, and any distinct population segment of any species or 
vertebrate fish or wildlife which interbreeds when mature. We may 
determine a species to be an endangered or threatened species due to 
one or more of the five factors described in section 4(a)(1) of the 
Act. These factors, and their application to the southwest Alaska DPS 
of the northern sea otter, are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Habitat destruction or modification are not known to be major 
factors in the decline of the southwest Alaska DPS of the northern sea 
otter. At present, no curtailment of range has occurred, as sea otters 
still persist throughout the range of the DPS, albeit at markedly 
reduced densities. However, as there is no evidence to suggest that the 
decline has abated, it is possible that additional losses may occur 
that would curtail the range of sea otters in southwest Alaska.
    Human-induced habitat effects occur primarily in the form of 
removal of some of the prey species used by sea otters as a result of 
resource use such as commercial fishing, which occurs throughout 
southwest Alaska. While there are some fisheries for benthic 
invertebrates in southwest Alaska, there is little competition for prey 
resources due to the limited overlap between the geographic 
distribution of sea otters and fishing effort. In addition, the total 
commercial catch of prey species used by sea otters is relatively small 
(Funk 2003).
    In studies of sea otters in the Aleutians, there was no evidence 
that sea otters are nutritionally stressed in that area, and foraging 
behavior, measured as percent feeding success, has increased during the 
1990's (Estes et al. 1998).
    Development of harbors and channels by dredging may affect sea 
otter habitat on a local scale by disturbing the sea floor and benthic 
invertebrates that sea otters eat. Typically, the number and size of 
these activities are small relative to the overall range of the DPS.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Following 170 years of commercial exploitation, sea otters were 
protected in 1911 under the International Fur Sea Treaty, which 
prohibited further hunting. In 1972, the Marine Mammal Protection Act 
(MMPA) established a moratorium on the take of all marine mammals in 
U.S. waters. Section 101(b) of the MMPA provides an exemption for 
Alaska Natives to take marine mammals for subsistence purposes. 
Although the Native exemption was established in 1972, subsistence 
harvest of sea otters did not begin in earnest until the mid-1980s 
(Simon-Jackson 1988). In October 1988, we initiated the marine mammal 
Marking, Tagging, and Reporting Program (MTRP) to monitor the harvest 
of sea otter, polar bear (Ursus maritimus), and Pacific walrus 
(Odobenus rosmarus divergens) in Alaska (50 CFR 18.23(f)). The majority 
of the sea otter harvest occurs in southeast and southcentral Alaska. 
Information from the MTRP estimates the subsistence harvest of sea 
otters from the southwest Alaska DPS averaged less than 100 sea otters 
per year during the 1990s (Burn and Doroff in prep.). Based on the 
magnitude of the current decline, the impact of the subsistence harvest 
is negligible.
    Scientific research on sea otters occurs primarily as aerial and 
skiff surveys of abundance, and such surveys are conducted infrequently 
(once every few years) and when they occur, they last for very short 
durations of time. During the 1990s, 198 otters were captured and 
released as part of health monitoring and radio telemetry studies at 
Adak and Amchitka (T. Tinker, University of California at Santa Cruz, 
in litt. 2003). Based on the magnitude of the current decline, we do 
not believe that the impact of surveys, or the impact of capture/
release activities, is a significant factor.
    Translocations of sea otters from southwest Alaska to other areas 
also has occurred. These translocations took place from 1965 to 1972, 
and involved removal of a total of just over 600 sea otters from 
Amchitka Island (Jameson et al. 1982). Estes (1990) estimated that the 
sea otter population at Amchitka Island remained essentially stable at 
more than 5,000 otters between 1972 and 1986, and consequently there is 
no evidence that removals for the translocation program have resulted 
in overutilization.

C. Disease or Predation

    Fish processing operations produce large quantities of organic 
waste, which can affect the health of sea otters on a local scale. In 
some areas of Alaska, sea otters have been observed consuming fish 
waste. Necropsies of carcasses recovered in Orca Inlet, Prince William 
Sound (which is not within the range of the southwest Alaska DPS), 
revealed that some otters in these areas had developed parasitic 
infections and fish bone impactions that contributed to the deaths of 
these animals (Ballachey et al. 2002, King et al. 2000). Measures such 
as heating and grinding waste materials, or barging it further 
offshore, have proven successful at eliminating these impacts. There is 
no evidence that the fish processing operations are resulting in 
disease on any substantial scope or scale for the southwest Alaska DPS 
of the northern sea otter.
    The cause of the sea otter decline in the Aleutians has been 
explored by reviewing available data on sea otter

[[Page 6616]]

reproduction, survival, distribution, habitat, and environmental 
contaminants. Estes et al. (1998) concluded that the observed sea otter 
declines there were most likely the result of increased adult 
mortality. While disease, pollution, and starvation may all influence 
sea otter mortality, no evidence available at this time suggests these 
factors are contributing to the decline in the Aleutians.
    The weight of evidence of available information suggests that 
predation by killer whales (Orcinus orca) may be the most likely cause 
of the sea otter decline in the Aleutian Islands (Estes et al. 1998). 
Data that support this hypothesis include: (1) A significant increase 
in the number of killer whale attacks on sea otters during the 1990s 
(Hatfield et al. 1998); (2) scarcity of beachcast otter carcasses that 
would be expected if disease or starvation were occurring; and (3) 
markedly lower mortality rates between sea otters in a sheltered lagoon 
(where killer whales cannot go) as compared to an adjacent exposed bay. 
Similar detailed studies have not yet been conducted in other areas 
within the southwest Alaska DPS, and the role of killer whale predation 
on sea otters outside of the Aleutians is unknown. (See the discussion 
of Factor E, below, for additional information concerning killer 
whales.)
    Besides killer whales, other predators on sea otters include white 
sharks (Carcharodon carcharias), brown bears (Ursus arctos), and 
coyotes (Canis latrans) (Riedman and Estes 1990). Carcasses of sea 
otter pups have been observed in bald eagle (Haliaeetus leucocephalus) 
nests (Sherrod et al. 1975). Although there is anecdotal information 
regarding shark attacks on sea otters in Alaska, we believe that the 
impact of sharks and predators other than killer whales on the 
southwest Alaska DPS of the northern sea otter is negligible.

D. The Inadequacy of Existing Regulatory Mechanisms

    The MMPA (16 U.S.C. 1361), enacted in 1972, is an existing 
regulatory mechanism that involves sea otters. The MMPA placed a 
moratorium on the taking of marine mammals in U.S. waters. Similar to 
the definition of ``take'' under section 3 of the ESA, ``take'' is 
defined under the MMPA as ``harass, hunt, capture, or kill, or attempt 
to harass, hunt, capture or kill'' (16 U.S.C. 1362). The MMPA does not 
include provisions for restoration of depleted species or population 
stocks, and does not provide measures for habitat protection.
    Section 101(b) of the MMPA provides an exemption to allow Alaska 
Natives to take marine mammals for subsistence purposes. The MMPA does 
not allow any regulation of the subsistence harvest prior to a finding 
of depletion. By definition, a marine mammal species or stock that is 
designated as ``threatened'' or ``endangered'' under the Endangered 
Species Act is also classified as ``depleted'' under the MMPA. The 
converse is not true, however, as a marine mammal species or stock may 
be designated as depleted under the MMPA, but not be listed as 
threatened under the ESA. As stated earlier, current levels of 
subsistence harvest of sea otters, which amounted to fewer than 100 sea 
otters per year during the 1990s, are believed to have a negligible 
impact on this DPS, and is therefore not a cause for concern at this 
time.
    Section 118 of the MMPA addresses the taking of marine mammals 
incidental to commercial fishing operations. This section, which was 
added to the MMPA in 1994, establishes a framework that authorizes the 
incidental take of marine mammals during commercial fishing activities. 
In addition, this section outlines mechanisms to monitor and reduce the 
level of incidental take. Information from monitoring programs 
administered by NMFS indicates that interactions between sea otters and 
commercial fisheries result in less than one instance of mortality or 
serious injury per year within the southwest Alaska DPS and are, 
therefore, not a cause for concern at this time (USFWS 2002a).
    Northern sea otters are not on the State of Alaska lists of 
endangered species or species of special concern. Alaska Statutes 
sections 46.04 200-210 specify State requirements for Oil and Hazardous 
Substance Discharge and Prevention Contingency Plans. These sections 
include prohibitions against oil spills and provide for the development 
of contingency plans to respond to spills should they occur. The 
potential impacts of oil spills on sea otters are addressed in Factor 
E.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Sea otters are particularly vulnerable to contamination by oil 
(Costa and Kooyman 1981). As they rely solely on fur for insulation, 
frequent grooming is essential to maintain the insulative properties of 
the fur. Vigorous grooming bouts generally occur before and after 
feeding episodes and rest periods. Oiled sea otters are highly 
susceptible to hypothermia resulting from the reduced insulative 
properties of oil-matted fur. Contaminated sea otters also are 
susceptible to the toxic effects from oil ingested while grooming. In 
addition, volatile hydrocarbons may affect the eyes and lung tissues of 
sea otters in oil-contaminated habitats and contribute to mortality.
    The sea otter's vulnerability to oil was clearly demonstrated 
during the Exxon Valdez oil spill in 1989, when thousands of sea otters 
were killed in Prince William Sound, Kenai Fiords, the Kodiak 
archipelago, and the Alaska Peninsula. Although the spill occurred 
hundreds of miles outside the range of the southwest Alaska DPS of the 
northern sea otter, an estimated 905 sea otters from this population 
segment died as a result of the spill (Handler 1990, Doroff et al. 
1993, DeGange et al. 1994).
    Although numerous safeguards have been established since the Exxon 
Valdez oil spill to minimize the likelihood of another spill of 
catastrophic proportions in Prince William Sound, vessels and fuel 
barges are a potential source of oil spills that could impact sea 
otters in southwest Alaska. Since 1990 in Alaska, more than 4,000 
spills of oil and chemicals on water have been reported to the U.S. 
Coast Guard National Response Center. Of these, nearly 1,100 occurred 
within the range of the southwest Alaska DPS of the northern sea otter. 
Reported spills include a variety of quantities (from a few gallons to 
thousands of gallons) and materials (primarily diesel fuel, gasoline, 
and lubricating oils). Reports of direct mortality of sea otters as a 
result of these spills are lacking and the impact of chronic oiling on 
sea otters in general, or on the southwest Alaska DPS, is unknown. 
Also, despite the fact that locations such as boat harbors have higher 
occurrences of small spills than more remote areas, individual sea 
otters have been observed to frequent some harbors for years. The 
overall health, survivorship, and reproductive success of these otters 
is not known.
    Currently, there is no oil and gas production within the range of 
the southwest Alaska DPS of the northern sea otter. Proposed Outer 
Continental Shelf (OCS) oil and gas lease sales are planned, however, 
for lower Cook Inlet. Based on a review of the draft Environmental 
Impact Statement for these lease sales, it is our opinion that the 
potential impacts of this development on the southwest Alaska DPS will 
be negligible as sea otters occur primarily in the nearshore zone and 
the lease sale area is at least three miles off shore. Therefore, sea 
otters do not significantly overlap with the lease sale area.

[[Page 6617]]

    Contaminants may also affect sea otters and their habitat. 
Potential sources of contaminants include local sources at specific 
sites in Alaska, and remote sources outside of Alaska. One category of 
contaminants that has been studied are polychlorinated biphenyls 
(PCBs), which may originate from a wide variety of sources. Data from 
blue mussels collected from the Aleutian Islands in southwest Alaska 
through southeast Alaska indicate background concentrations of PCBs at 
most sampling locations, with ``hot spots'' of high PCB concentrations 
evident at Adak (Sweeper Cove), Dutch Harbor, and Amchitka. 
Notwithstanding these ``hot spots,'' PCB levels in samples from 
southwest Alaska actually are lower than those in southeast Alaska 
sites. The PCB concentrations found in liver tissues of sea otters from 
the Aleutians were similar to or higher than those causing reproductive 
failure in captive mink (Estes et al. 1997, Giger and Trust 1997), but 
the toxicity of PCBs to sea otters is unknown. Population survey data 
for the Adak Island area indicates normal ratios of mothers and pups, 
which suggests that reproduction in sea otters is not being suppressed 
in sea otters in that area (Tinker and Estes 1996). As PCB's typically 
inhibit reproduction rather than cause adult mortality, these findings 
do not suggest a reproductive impact due to PCBs. Sample sizes were 
limited, however, and data needed to fully evaluate the potential role 
of PCBs and other environmental contaminants in the observed sea otter 
population decline are incomplete. In summary, a conclusive link 
between the sea otter decline and the effects of specific contaminants 
in their habitat has not been established.
    Sea otters are sometimes taken incidentally in commercial fishing 
operations. Information from the NMFS list of fisheries indicates that 
entanglement leading to injury or death occurs infrequently in set net, 
trawl, and finfish pot fisheries within the range of the southwest 
Alaska DPS of the northern sea otter (67 FR 2410, January 17, 2002). 
During the summers of 1999 and 2000, NMFS conducted a marine mammal 
observer program in Cook Inlet for salmon drift and set net fisheries. 
No mortality or serious injury of sea otters was observed in either of 
these fisheries in Cook Inlet (Fadely and Merklein 2001). Similarly, 
preliminary results from an ongoing observer program for the Kodiak 
salmon set net fishery also report only four incidents of entanglement 
of sea otters, with no mortality or serious injury (M. Sternfeld, NMFS, 
in litt. 2003). Additional marine mammal observer programs will 
continue to improve our understanding of this potential source of sea 
otter mortality.
    The hypothesis that killer whales may be the principal cause of the 
sea otter decline suggests that there may have been significant changes 
in the Bering Sea ecosystem (Estes et al. 1998). For the past several 
decades, harbor seals (Phoca vitulina) and Steller sea lions 
(Eumetopias jubatus), the preferred prey species of transient, marine 
mammal-eating killer whales, have been in decline throughout the 
western north Pacific. In 1990, Steller sea lions were listed under the 
Act as threatened under the ESA (55 FR 49204). Their designation was 
later revised to endangered in western Alaska, and threatened in 
eastern Alaska, with the dividing line located at 144 degrees west 
longitude (62 FR 24345). Estes et al. (1998) hypothesized that killer 
whales may have responded to declines in their preferred prey species, 
harbor seals and Stellar sea lions, by broadening their prey base to 
include sea otters. While the cause of sea lion and harbor seal 
declines is the subject of much debate, it is possible that changes in 
composition and abundance of forage fish as a result of climatic 
changes and/or commercial fishing practices may be contributing 
factors.
    It also recently has been hypothesized that the substantial 
reduction of large whales from the North Pacific Ocean as a result of 
post-World War II industrial whaling may be the ultimate cause of the 
decline of several species of marine mammals in the north Pacific 
(Springer et al. 2003). Killer whales are considered to be the foremost 
natural predator of large whales. By the early 1970's, the biomass of 
large whales had been reduced by 95 percent, a result attributed to 
commercial harvesting. This reduction may have caused killer whales to 
begin feeding more intensively on smaller coastal marine mammals such 
as sea lions and harbor seals. As those species became increasing rare, 
the killer whales that preyed on them may have expanded their diet to 
include the even smaller and calorically less profitable, sea otter. 
The information supporting this theory is still under review. Although 
the proximate cause of the current sea otter decline may be predation 
by killer whales, the ultimate cause remains unknown.

Conclusion of Status Evaluation

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the southwest Alaska DPS of the northern sea otter in 
determining to propose this rule. The Act defines an endangered species 
as one that is in danger of extinction throughout all or a significant 
portion of its range. A threatened species is one that is likely to 
become an endangered species in the foreseeable future throughout all 
or a significant portion of its range.
    To date, investigations of the cause(s) of the sea otter decline 
have been limited to the Aleutian islands; little research has been 
conducted in other portions of the southwest Alaska DPS. Although 
killer whale predation has been hypothesized to be responsible for the 
sea otter decline in the Aleutian islands, the cause(s) of the decline 
throughout southwest Alaska are not definitively known.
    At present, sea otters have not been extirpated from any portion of 
the range of the southwest Alaska DPS, however they have been reduced 
to markedly lower densities, particularly in the Aleutian Islands and 
south Alaska Peninsula areas. Recent survey information indicates that 
the southwest Alaska DPS has declined by at least 56-68 percent during 
the past 10-15 years. Estimated rates of decline have been as great as 
17.5 percent per year in the Aleutian archipelago (Doroff et al. 2003). 
At present, we have no evidence to indicate that the decline has 
abated, and we have no reason to expect that the decline will cease. If 
the trend were to continue at the overall estimated decline rates for 
the southwest Alaska DPS, which range from 5.2-10.6 percent per year, 
the DPS would be further reduced from its current level by 66-89 
percent in 20 years, and could become extirpated in portions of its 
range.
    Regardless of its cause, the severity and widespread nature of the 
decline in the southwest Alaska sea otter DPS is quite serious. The 
decline may be due to predation by killer whales, which in turn may be 
the result of changes in the ecosystem. Also, regardless of what the 
reason for the decline may be, at present we have no evidence to 
indicate that the decline has abated, and we have no reason to expect 
that the decline will cease. Given the current population size and 
distribution, we do not believe the DPS is presently in danger of 
extinction throughout all or a significant portion of its range. Based 
on our evaluation of the best available scientific information, 
however, we believe it is likely to become an endangered species in the 
foreseeable future throughout all or a significant portion of its 
range. Therefore, we are proposing to list the

[[Page 6618]]

southwest Alaska DPS of the northern sea otter as threatened.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' is defined in section 3 as meaning the 
use of all methods and procedures needed to bring the species to the 
point at which listing under the Act is no longer necessary.
    The primary regulatory effect of critical habitat is the section 
7(a)(2) requirement that Federal agencies shall insure that any action 
they authorize, fund, or carry out is not likely to result in the 
destruction or adverse modification of designated critical habitat.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state 
that designation of critical habitat is not prudent when one or both of 
the following situations exist--(1) the species is threatened by taking 
or other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species. 
Our regulations (50 CFR 424.12(a)(2)) further state that critical 
habitat is not determinable when one or both of the following 
situations exist: (1) Information sufficient to perform required 
analysis of the impacts of the designation is lacking, or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat.
    Delineation of critical habitat requires identification of the 
physical and biological habitat features that are essential to the 
conservation of the species. In general terms, critical habitat for the 
southwest Alaska DPS of the northern sea otter may be a function of 
several factors, including: (1) Water depth; (2) proximity to shore; 
and (3) sheltered areas that provide refuge from rough weather and/or 
aquatic predators. Unlike other marine mammal species such as seals and 
sea lions, sea otters do not occur at high-density focal areas such as 
rookeries and haulout sites. Although they are occasionally observed on 
land, sea otters are typically distributed at low densities throughout 
shallow, nearshore marine waters. In addition to nearshore foraging 
areas, sea otters may move from exposed, open-water areas, into 
protected bays, lagoons, and inlets when inclement weather produces 
large waves. These sheltered areas may be important resting areas for 
sea otters, especially mothers with dependent pups. In addition, some 
sheltered areas may provide refuge from aquatic predators, such as 
killer whales and sharks.
    With respect to whether it is prudent to designate critical habitat 
for the southwest Alaska DPS of the northern sea otter at the time of 
listing, such a designation would not be expected to increase the 
threat to the DPS. However, information sufficient to perform the 
required analysis of the impacts of the designation of critical habitat 
is lacking at this time. Further, at this time the identification of 
specific physical and biological features and specific areas for 
consideration as critical habitat is complicated by uncertainty as to 
the extent to which habitat may or may not be a limiting factor for 
this DPS, resulting in uncertainty as to which specific areas might be 
essential to the conservation of the species and thus meet a key aspect 
of the definition of critical habitat. Consequently, the designation of 
critical habitat for the southwest DPS of the northern sea otter is not 
determinable at this time. In the Public Comments Solicited section of 
this proposed rule we specifically request information regarding 
critical habitat. If the listing of the DPS becomes final, we then will 
consider whether to propose the designation of critical habitat.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against taking and harm are 
discussed below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) requires Federal agencies to confer informally with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If a species is subsequently 
listed, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with us under the provisions of 
section 7(a)(2) of the Act.
    Several Federal agencies are expected to have involvement under 
section 7 of the Act regarding the southwest Alaska DPS of the northern 
sea otter. The National Marine Fisheries Service may become involved 
through their permitting authority for crab and ground fisheries. The 
Environmental Protection Agency may become involved through their 
permitting authority for the Clean Water Act. The U.S. Corps of 
Engineers may become involved through its responsibilities and 
permitting authority under section 404 of the Clean Water Act and 
through future development of harbor projects. Minerals Management 
Service may become involved through administering their programs 
directed toward offshore oil and gas development. The Denali Commission 
may be involved through their potential funding of fueling and power 
generation projects. The U.S. Coast Guard may become involved through 
their development of docking facilities.
    The listing of the southwest Alaska DPS of the northern sea otter 
would subsequently lead to the development of a recovery plan for this 
species. Such a plan will bring together Federal, State, local agency, 
and private efforts for the conservation of this species. A recovery 
plan establishes a framework for interested parties to coordinate 
activities and to cooperate with each other in conservation efforts. 
The plan will set recovery priorities, identify responsibilities, and 
estimate the costs of the tasks necessary to accomplish the

[[Page 6619]]

priorities. It will also describe site-specific management actions 
necessary to achieve the conservation of the southwest Alaska DPS of 
the northern sea otter. Additionally, pursuant to Section 6 of the Act, 
we would be able to grant funds to the State of Alaska for management 
actions promoting the conservation of the southwest Alaska DPS of the 
northern sea otter.
    Section 9 of the Act prohibits take of endangered wildlife. The Act 
defines take to mean harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect or to attempt to engage in any such conduct. 
However, the Act also provides for the authorization of take and 
exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth 
in section 10 of the Act. For federally funded or permitted activities, 
take of listed species may be allowed through the consultation process 
of section 7 of the Act. The Service has issued regulations (50 CFR 
17.31) that generally apply to threatened wildlife the prohibitions 
that section 9 of the Act establishes with respect to endangered 
wildlife. Our regulations for threatened wildlife also provide that a 
``special rule'' under section 4(d) of the Act can be tailored for a 
particular threatened species. In that case, the general regulations 
for some section 9 prohibitions do not apply to that species, and the 
special rule contains the prohibitions, and exemptions, necessary and 
appropriate to conserve that species. The Act provides for an exemption 
for Alaska Natives in section 10(e) that allows any Indian, Aleut, or 
Eskimo who is an Alaskan Native who resides in Alaska to take a 
threatened or endangered species if such taking is primarily for 
subsistence purposes. Non-edible by-products of species taken pursuant 
to section 10(e) may be sold in interstate commerce when made into 
authentic native articles of handicrafts and clothing. It is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Further, it is illegal for any 
person to commit, to solicit another person to commit, or cause to be 
committed, any of these acts. Certain exceptions to the prohibitions 
apply to our agents and State conservation agencies.
    The Act provides for the issuance of permits to carry out otherwise 
prohibited activities involving threatened or endangered wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.22 and 17.23. Such permits are available for scientific 
purposes, to enhance the propagation or survival of the species, and/or 
for incidental take in the course of otherwise lawful activities. 
Permits are also available for zoological exhibitions, educational 
purposes, or special purposes consistent with the purposes of the Act. 
Requests for copies of the regulations on listed species and inquiries 
about prohibitions and permits may be addressed to the Endangered 
Species Coordinator, U.S. Fish and Wildlife Service, 1011 East Tudor 
Road, Anchorage, Alaska 99503.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
likely constitute a violation of section 9 of the Act. The intent of 
this policy is to increase public awareness of the effects of the 
listing on proposed and ongoing activities within a species' range.
    For the southwest DPS of the northern sea otter, we believe that, 
based on the best available information, the following activities are 
unlikely to result in a violation of section 9, provided these 
activities are carried out in accordance with existing regulations and 
permit requirements:
    (1) Possession, delivery, or movement, including interstate 
transport of authentic native articles of handicrafts and clothing made 
from northern sea otters that were collected prior to the date of 
publication in the Federal Register of a final regulation adding the 
southwest Alaska DPS of the northern sea otter to the list of 
threatened species;
    (2) Sale, possession, delivery, or movement, including interstate 
transport of authentic native articles of handicrafts and clothing made 
from sea otters from the southwest Alaska DPS that were taken and 
produced in accordance with section 10(e) of the Act;
    (3) Any action authorized, funded, or carried out by a Federal 
agency that may affect the southwest Alaska DPS of the northern sea 
otter, when the action is conducted in accordance with an incidental 
take statement issued by us under section 7 of the Act;
    (4) Any action carried out for the scientific research or to 
enhance the propagation or survival of the southwest Alaska DPS of the 
northern sea otter that is conducted in accordance with the conditions 
of a section 10(a)(1)(A) permit; and
    (5) Any incidental take of the southwest Alaska DPS of the northern 
sea otter resulting from an otherwise lawful activity conducted in 
accordance with the conditions of an incidental take permit issued 
under section 10(a)(1)(B) of the Act. Non-Federal applicants may design 
a habitat conservation plan (HCP) for the species and apply for an 
incidental take permit. HCPs may be developed for listed species and 
are designed to minimize and mitigate impacts to the species to the 
greatest extent practicable.
    We believe the following activities could potentially result in a 
violation of section 9 and associated regulations at 50 CFR 17.3 with 
regard to the southwest DPS of the northern sea otter; however, 
possible violations are not limited to these actions alone:
    (1) Unauthorized killing, collecting, handling, or harassing of 
individual sea otters;
    (2) Possessing, selling, transporting, or shipping illegally taken 
sea otters or their pelts;
    (3) Unauthorized destruction or alteration of the nearshore marine 
benthos that actually kills or injures individuals sea otters by 
significantly impairing their essential behavioral patterns, including 
breeding, feeding or sheltering; and,
    (4) Discharge or dumping of toxic chemicals, silt, or other 
pollutants (i.e., sewage, oil, pesticides, and gasoline) into the 
nearshore marine environment that actually kills or injures individuals 
sea otters by significantly impairing their essential behavioral 
patterns, including breeding, feeding or sheltering.
    We will review other activities not identified above on a case-by-
case basis to determine whether they may be likely to result in a 
violation of section 9 of the Act. We do not consider these lists to be 
exhaustive and provide them as information to the public. You may 
direct questions regarding whether specific activities may constitute a 
violation of section 9 to the Field Supervisor, U.S. Fish and Wildlife 
Service, Anchorage Ecological Services Field Office, 605 West 4th 
Avenue, Room G-62, Anchorage, Alaska 99501.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this DPS;
    (2) The location of any additional populations of this DPS;

[[Page 6620]]

    (3) The specific physical and biological features to consider, and 
specific areas that meet the definition of critical habitat and that 
should or should not be considered for critical habitat designation as 
provided by section 4 of the Act;
    (4) Additional information concerning the range, distribution, and 
size of this DPS; and
    (5) Current or planned activities in the subject area and their 
possible impacts on this DPS.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods, as listed above 
in ADDRESSES. If you submit comments by e-mail, please submit them as 
an ASCII file format and avoid the use of special characters and 
encryption. Please include ``Attn: [RIN 1018-AI44]'' and your name and 
return address in your e-mail message. If you do not receive a 
confirmation from the system that we have received your e-mail message, 
contact us directly by calling our Marine Mammals Management Office at 
phone number 907/786-3800. Please note that this e-mail address will be 
closed out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. Anonymous comments will not be considered. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    We will take into consideration your comments and any additional 
information received on this DPS when making a final determination 
regarding this proposal. The final determination may differ from this 
proposal based upon the information we receive.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists for peer review of this 
proposed rule. The purpose of such review is to ensure that listing 
decisions are based on scientifically sound data, assumptions, and 
analyses. We will send these peer reviewers copies of this proposed 
rule immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed listing of this species. We will summarize the opinions of 
these reviewers in the final decision document, and we will consider 
their input as part of our process of making a final decision on the 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. You may request a public hearing on this proposed rule. 
Your request for a hearing must be made in writing and filed at least 
15 days prior to the close of the public comment period. Address your 
request to the Supervisor (see ADDRESSES section). We will schedule at 
least one public hearing on this proposal, if requested, and announce 
the date, time, and place of any hearings in the Federal Register and 
local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite your comments on how to make this 
proposal easier to understand including answers to questions such as 
the following: (1) Is the discussion in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the proposal? (2) Does 
the proposal contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the proposal (groupings and order 
of sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? What else could we do to make the proposal easier to 
understand? Send a copy of any comments that concern how we could make 
this rule easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C. Street NW., Washington, 
DC 20240. You may also e-mail the comments to this address: 
<a href="/cdn-cgi/l/email-protection#b4f1ccc7d1d7f4dddbc79ad0dbdd9ad3dbc2"><span class="__cf_email__" data-cfemail="b6f3cec5d3d5f6dfd9c598d2d9df98d1d9c0">[email protected]</span></a>.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined under 
the authority of the National Environmental Policy Act of 1969, in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval of the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.). This proposed rule 
will not impose new recordkeeping or reporting requirements on State or 
local governments, individuals, business, or organizations. We may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

References Cited

    A complete list of all references cited in this proposal is 
available upon request. You may request a list of all references cited 
in this document from the Supervisor, Marine Mammals Management Office 
(see ADDRESSES).

Author

    The primary author of this proposed rule is Douglas M. Burn, Marine 
Mammals Management Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.


[[Page 6621]]


    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under MAMMALS, to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                  Vertebrate population
-----------------------------------------------------------     Historic range      where endangered or     Status       When      Critical     Special
            Common name                 Scientific name                                  threatened                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
MAMMALS
 
                                                                      * * * * * * *
Otter, northern sea................  Enhydra lutris         U.S.A. (AK, WA, OR,    Southwest Alaska,              T   ..........         NA          NA
                                      kenyoni.               CA).                   from Attu Island to
                                                                                    Western Cook Inlet,
                                                                                    incuding Bristol
                                                                                    Bay, the Kodiak
                                                                                    Archipelago, and the
                                                                                    Barren Islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: December 9, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 04-2844 Filed 2-10-04; 8:45 am]
BILLING CODE 4310-55-P


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