6600 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

affected small and rural entities some 

relief from E911 by providing small 

entities with longer implementation 

periods than larger, more financially 

flexible entities that are better able to 

buy the equipment necessary to 

successful 911 and E911 

implementation and to first attract the 

attention of equipment manufacturers. 

We again seek comment on such 

possible alternatives. 

33. In its discussion of MSS, the 

Second Further Notice recognizes that 

although satellite carriers face unique 

technical difficulties in implementing 

both basic and enhanced 911 features, 

these difficulties are avoided to a larger 

extent when the carrier has an ancillary 

terrestrial component (ATC) to its 

service. Thus, in paragraphs 107–110, 

the Second Further Notice examines the 

impact of ATC on MSS providers’

ability to offer the same enhanced 911 

service that terrestrial wireless carriers 

provide. Paragraph 108 of the Second 

Further Notice notes that several 

commenters, thus far, have indicated 

that MSS basic and enhanced 911 

service can be improved with ATC. The 

Second Further Notice suggests 

alternative solutions to this problem, 

asking whether MSS providers with 

ATC should be allowed additional time 

(or transition periods) in order to come 

into compliance with terrestrial E911 

rules, and whether they can meet the 

location identification standards of 

§ 20.18 (47 CFR 20.18). The Second 

Further Notice also directs the Network 

Reliability and Interoperability Council 

to study issues associated with hand-off 

of calls between satellite and terrestrial 

components. 

34. As mentioned, the Second Further 

Notice seeks comment on reporting and 

recordkeeping proposals in connection 

with implementation of the MSS 

emergency call center requirement. Call 

center 911 service is a new form of 911 

service, and the Second Further Notice

seeks comment on the collection of call 

center data, including total volume of 

calls received during a given period, the 

number of calls requiring forwarding to 

a PSAP, and the success rate in handing 

off the call to an appropriate PSAP. The 

Second Further Notice suggests 

alternatives for this data collection, 

seeking comment on whether the 

information should simply be retained 

by service providers and available upon 

Commission request, whether the 

information should be submitted to the 

Commission on a regular basis, or 

whether the information should be 

submitted to a third party for review. In 

addition, the Second Further Notice

seeks comment on whether the 

proposed data collection/recordkeeping 

requirement should be subject to sunset 

provisions. 

35. The Second Further Notice, in 

paragraphs 113–117, examines potential 

911 and E911 requirements for multiline telephone systems. In that regard, 

the Commission considers whether to 

impose such regulations on a national 

basis or whether it is sufficient to rely 

on actions by state and local authorities 

to ensure reliable coverage. NENA and 

APCO, for example, have proposed 

Model Legislation that would allow 

states, through legislation, to adopt 

many of the standards and protocol 

association with delivering E911 

services through multi-line systems. 

Paragraph 117 considers adopting 

NENA’s proposed new section to our 

part 64 rules requiring that LEC central 

offices be provisioned to permit 

connection of MLTS equipment for 

E911 purposes in any accepted industry 

standard format, as defined by the 

Commission, requested by the MLTS 

operator. In connection with this 

recommendation, the Second Further 

Notice seeks comment on NEC’s 

recommendation that the Commission 

adopt the ANSI T1.628–2000 ISDN 

network interface standard as an 

‘‘accepted industry standard,’’ thereby 

requiring LECs to enable MLTS 

operators to use a more efficient means 

of interfacing with the network than is 

currently available in most instances. 

Additionally, the Second Further Notice

asked parties to comment on whether 

any rules that the Commission adopts 

may have a disproportionate impact on 

small entities and requested comment 

how it might ameliorate any such 

impacts. 

F. Federal Rules That Overlap, 

Duplicate, or Conflict With the Proposed 

Rules 

36. None. 

III. Ordering Clauses 

37. Pursuant to sections 1, 4(i), 7, 10, 

201, 202, 208, 214, 222(d)(4)(A)-(C), 

222(f), 222(g), 222(h)(1)(A), 222(h)(4)-

(5), 251(e)(3), 301, 303, 308, and 310 of 

the Communications Act of 1934, as 

amended, 47 U.S.C. 151, 154(i), 157, 

160, 201, 202, 208, 214, 222(d)(4)(A)–

(C), 222(f), 222(g), 222(h)(1)(A), 

222(h)(4)–(5), 251(e)(3), 301, 303, 308, 

310, this Report and Order is hereby 

adopted. 

38. The Commission’s Office of 

Consumer and Government Affairs, 

Reference Information Center, shall 

send a copy of this Report and Order 

and Second Further Notice of Proposed 

Rulemaking, including the Final 

Regulatory Flexibility Analysis and the 

Initial Regulatory Flexibility Analysis, 

to the Chief Counsel for Advocacy of the 

Small Business Administration.

List of Subjects in 47 CFR Parts 20, 25, 

64, and 68 

Communications common carriers, 

satellite communications.

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary.

[FR Doc. 04–2125 Filed 2–10–04; 8:45 am] 

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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.

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: 

fw7_swakseaotter@fws.gov. See the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing.

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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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6604 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

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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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.] 

Survey Area Year Count or estimate Source 

Aleutian Islands ......................................................... 1965 

1992 

2000

9,700 

8,048 

2,442

Kenyon (1969). 

Evans et al. (1997). 

Doroff et al. (2003). 

North Alaska Peninsula Offshore Areas ................... 1976 11,681 Schneider (1976). 

*1986 6,474 ± 2,003 (JUN) 

9,215 ± 3,709 (AUG) 

7,539 ± 2,103 (OCT) 

Brueggerman et al. (1988), Burn and Doroff in 

prep. 

South Alaska Peninsula Offshore Areas ................... *1986 13,900 ± 6,456 (MAR) 

14,042 ± 5,178 (JUN) 

17,500 ± 5,768 (OCT) 

Brueggerman et al. (1988). Burn and Doroff in 

prep. 

2001 1,005 ± 1,597 (APR) Burn and Doroff in prep. 

South Alaska Peninsula Islands ............................... 1962 

1986 

1989 

2001

2,195 

2,122 

1,589 

405

Kenyon (1969). 

Brueggeman et al. (1988). 

DeGange et al. (1995). 

Burn and Doroff in prep. 

South Alaska Peninsula Shoreline ............................ 1989 

2001

2,632 

2,651

DeGange et al. (1995). 

Burn and Doroff in prep. 

Kodiak Archipelago ................................................... 1989 

1994 

2001 

13,526 ± 2,350 

9,817 ± 5,169 

5,893 ± 2,630

DeGange et al. (1995). 

Doroff et al. (in prep.). 

Doroff et al. (in prep.). 

Kamishak Bay ........................................................... 2002 6,918 ± 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 mid1980’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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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 doublecounting 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, SimonJackson 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 

6610 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

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.] 

Survey area Year 

Unadjusted 

count or

estimate 

Adjusted 

count or

estimate 

Reference 

Aleutian Islands .................................................................................. 2000 2,442 8,742 Doroff et al. (2003). 

North Alaska Penninsula Offshore Areas .......................................... 2000 4,728 11,253 Burn and Doroff (in prep.). 

South Alaska Peninsula Offshore Areas ............................................ 2001 1,005 2,392 Burn and Doroff (in prep.). 

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. 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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.

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Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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 SimonJackson 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 boatbased 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 

6614 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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 mid1980s (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 

6616 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

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 oilcontaminated 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. 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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 mammaleating 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 

6618 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

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, openwater 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 

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 6619

priorities. It will also describe sitespecific 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 byproducts 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; 

6620 Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 

(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: Exsec@ios.doi.gov. 

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.

Federal Register / Vol. 69, No. 28 / Wednesday, February 11, 2004 / Proposed Rules 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:

§ 17.11 Endangered and threatened 

wildlife.

* * * * *

(h) * * *

Species 

Historic range 

Vertebrate population 

where endangered or 

threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS 

* * * * * * * 

Otter, northern sea ..... Enhydra lutris 

kenyoni.

U.S.A. (AK, WA, OR, 

CA).

Southwest Alaska, 

from Attu Island to 

Western Cook Inlet, 

incuding Bristol 

Bay, the Kodiak Archipelago, and the 

Barren Islands.

T ................ NA NA 

* * * * * * * 

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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

50 CFR Parts 223 and 635

[Docket No. 040202035–4035–01; I.D. 

112403A]

RIN 0648–AR80

Atlantic Highly Migratory Species 

(HMS); Pelagic Longline Fishery

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce.

ACTION: Proposed rule; request for 

comments; public hearings.

SUMMARY: This proposed rule would 

reduce bycatch and bycatch mortality of 

sea turtles caught incidentally in the 

Atlantic and Gulf of Mexico HMS 

pelagic longline fisheries, consistent 

with the requirements of the 

Endangered Species Act (ESA). Based 

upon the results of an experiment in the 

Northeast Distant (NED) statistical 

reporting area and information 

indicating that the level of incidental 

takes of sea turtles established for the 

HMS pelagic longline fishery has been 

exceeded, NMFS proposes to implement 

new sea turtle bycatch mitigation 

measures throughout the fishery, 

including the NED statistical reporting 

area, and to reopen the NED closed area. 

Through experimentation in the NED, 

certain hook and bait measures have 

proven to be effective at reducing sea 

turtle bycatch, and are expected to 

reduce bycatch mortality and 

interactions with these species. The 

proposed bycatch mitigation measures 

include mandatory pelagic longline 

circle hook and bait requirements, and 

mandatory possession and use of 

onboard equipment to reduce sea turtle 

bycatch mortality. The intent of this 

proposed action is to reduce 

interactions with, and post-release 

mortality of, threatened and endangered 

sea turtles in HMS pelagic longline 

fisheries to comply with the ESA and 

the Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act).

DATES: Written comments on the 

proposed rule must be received no later 

than 5 p.m., eastern standard time, on 

March 15, 2004. NMFS will hold public 

hearings from March 2, 2004, through 

March 9, 2004. See ADDRESSES for 

specific locations, dates, and times.

ADDRESSES: The public hearing 

locations, dates and times are:

1. Tuesday, March 2, 2004 - North 

Dartmouth, MA, 7 - 9 p.m. University of 

Massachusetts at Dartmouth, 285 Old 

Westport Road, Deon Building, Room 

105, North Dartmouth, MA 02747–2300;

2. Thursday, March 4, 2004 - New 

Orleans, LA, 7 - 9 p.m. New Orleans 

Airport Hilton Hotel, 901 Airline Drive, 

Kenner, LA 70062; and

3. Tuesday, March 9, 2004 - Manteo, 

NC, 7 - 9 p.m. North Carolina Aquarium 

on Roanoke Island, 374 Airport Road, 

Manteo, NC 27954–0967.

Written comments on the proposed 

rule should be submitted to Christopher 

Rogers, Chief, Highly Migratory Species 

(HMS) Management Division (SF/1), 

National Marine Fisheries Service, 1315 

East-West Highway, Silver Spring, MD 

20910. Comments may be sent via 

facsimile (fax) to 301–713–1917. 

Comments on this proposed rule may 

also be submitted by e-mail. The 

mailbox address for providing e-mail 

comments is: 

0648AR80.PROPOSED@noaa.gov. 

Include in the subject line of the e-mail 

comment the following document 

identifier: 0648–AR80. For copies of the 

Draft Supplemental Environmental 

Impact Statement/Regulatory Impact 

Review/Initial Regulatory Flexibility 

Analysis (DSEIS/RIR/IRFA), contact 

Russell Dunn at (727) 570–5447.

FOR FURTHER INFORMATION CONTACT:

Russell Dunn, Greg Fairclough, or 

Richard A. Pearson at (727) 570–5447 or 

fax (727) 570–5656.

SUPPLEMENTARY INFORMATION: The 

Atlantic tuna and swordfish fisheries 

are managed under the authority of the 

Magnuson-Stevens Act and the Atlantic 

Tunas Convention Act (ATCA). Atlantic 

sharks are managed under the authority 

of the Magnuson-Stevens Act. The 

Fishery Management Plan for Atlantic 

Tunas, Swordfish, and Sharks (HMS 

FMP), finalized in 1999, is implemented 

by regulations at 50 CFR part 635. The 

Atlantic pelagic longline fishery is also 

subject to the requirements of the ESA 

and the Marine Mammal Protection Act 

(MMPA).

Management History of Sea Turtle 

Bycatch Reduction

Under the ESA, Federal agencies must 

consult with either the U.S. Fish and 

Wildlife Service or NMFS whenever 

they authorize, fund, or carry out an 

action that may adversely affect a 

threatened or endangered species or its 

designated critical habitat. In the case of 

marine fisheries, the NMFS Office of 

Sustainable Fisheries consults with its 

Office of Protected Resources. After 

consultation, NMFS issues a Biological