[Federal Register: February 11, 2004 (Volume 69, Number 28)]
[Proposed Rules]
[Page 6600-6621]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe04-46]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AI44
Endangered and Threatened Wildlife and Plants; Listing the
Southwest Alaska Distinct Population Segment of the Northern Sea Otter
(Enhydra lutris kenyoni) as Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), propose to list
the southwest Alaska distinct population segment of the northern sea
otter (Enhydra lutris kenyoni) as threatened under the authority of the
Endangered Species Act of 1973, as amended (Act). Once containing more
than half of the world's sea otters, this population segment has
undergone a precipitous population decline of at least 56-68 percent
since the mid-1980s.
DATES: We will consider comments on this proposed rule received until
the close of business on June 10, 2004. Requests for public hearings
must be received by us on or before April 12, 2004.
ADDRESSES: If you wish to comment, you may submit your comments and
materials concerning this proposal by any one of several methods:
1. You may submit written comments to the Supervisor, U.S. Fish and
Wildlife Service, Marine Mammals Management Office, 1011 East Tudor
Road, Anchorage, Alaska 99503.
2. You may hand deliver written comments to our office at the
address given above.
3. You may send comments by electronic mail (e-mail) to: fw7--
swakseaotter@fws.gov. See the Public Comments Solicited section below
for file format and other information about electronic filing.
[[Page 6601]]
FOR FURTHER INFORMATION CONTACT: Douglas Burn, (see ADDRESSES)
(telephone 907/786-3800; facsimile 907/786-3816).
SUPPLEMENTARY INFORMATION:
Background
The sea otter (Enhydra lutris) is a mammal in the family Mustelidae
and it is the only species in the genus Enhydra. There are three
recognized subspecies (Wilson et al. 1991): E. l. lutris, known as the
northern sea otter, occurs in the Kuril Islands, Kamchatka Peninsula,
and Commander Islands in Russia; E. l. kenyoni, also known as the
northern sea otter, has a range that extends from the Aleutian Islands
in southwestern Alaska to the coast of the State of Washington; and E.
l. nereis, known as the southern sea otter, occurs in coastal southern
California and is known as the southern sea otter. Figure 1 illustrates
the approximate ranges of the three subspecies.
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The two subspecies of northern sea otter are separated by an
expanse of open water that measures approximately 320 kilometers (km)
(200 miles (mi)) between the Commander Islands in Russia, at the
northeastern edge of the range of E. l. lutris, and the Near Islands of
the United States, which are the northwestern edge of the range of E.
l. kenyoni. Wide, deep-water passes are an effective barrier to sea
otter movements (Kenyon 1969) and thus interaction between these two
subspecies is considered very unlikely. (See later sections on food
habits and animal movements.)
The southernmost extent of the range of E. l. kenyoni is in
Washington state and British Columbia, and is the result of
translocations of sea otters from Alaska between 1969 and 1972 (Jameson
et al. 1982). The Washington and British Columbia population is
separated from the nearest sea otters in Alaska by a distance roughly
of 483 km (300 mi) to the north, and is separated from the southern sea
otter (E. l. nereis) by a distance of more than 965 km (600 mi) to the
south.
The sea otter is the smallest species of marine mammal in the
world. Adult males average 130 centimeters (cm) (4.3 feet (ft)) in
length and 30 kilograms (kg) (66 pounds (lbs)) in weight; adult females
average 120 cm (3.9 ft) in length and 20 kg (44 lbs) in weight (Kenyon
1969). The northern sea otter in Russian waters (E. l. lutris) is the
largest of the three subspecies, characterized as having a wide skull
with short nasal bones (Wilson et al. 1991). The southern sea otter (E.
l. nereis) is smaller and has a narrower skull with a long rostrum and
small teeth. The northern sea otter in Alaska (E. l. kenyoni) is
intermediate in size and has a longer mandible than either of the other
two subspecies.
Sea otters lack the blubber layer found in most marine mammals and
depend entirely upon their fur for insulation (Riedman and Estes 1990).
Their pelage consists of a sparse outer layer of guard hairs and an
underfur that is the densest mammalian fur in the world, averaging more
than 100,000 hairs per square centimeter (645,000 hairs per square
inch) (Kenyon 1969). As compared to pinnipeds (seals and sea lions)
that have a distinct molting season, sea otters molt gradually
throughout the year (Kenyon 1969).
Sea otters have a much higher rate of metabolism than land mammals
of similar size (Costa 1978; Costa and Kooyman 1982, 1984). To maintain
the level of heat production required to sustain them, sea otters eat
large amounts of food, estimated at 23-33 percent of their body weight
per day (Riedman and Estes 1990). Sea otters are carnivores that
primarily eat a wide variety of benthic (living in or on the sea floor)
invertebrates, including sea urchins, clams, mussels, crabs, and
octopus. In some parts of Alaska, sea otters also eat epibenthic
(living upon the sea floor) fishes (Estes et al. 1982; Estes 1990).
Much of the marine habitat of the sea otter in southwest Alaska is
characterized by a rocky substrate. In these areas, sea otters
typically are concentrated between the shoreline and the outer limit of
the kelp canopy (Riedman and Estes 1990). Sea otters also inhabit
marine environments that have soft sediment substrates, such as Bristol
Bay and the Kodiak archipelago. As communities of benthic invertebrates
differ between rocky and soft sediment substrate areas, so do sea otter
diets. In general, prey species in rocky substrate habitats include sea
urchins, octopus, and mussels, while in soft substrates, clams dominate
the diet.
Sea otters are considered a keystone species, strongly influencing
the composition and diversity of the nearshore marine environment they
inhabit (Estes et al. 1978). For example, studies of subtidal
communities in Alaska have demonstrated that, when sea otters are
abundant, epibenthic herbivores such as sea urchins will be present at
low densities whereas kelp, which are consumed by sea urchins, will
flourish. Conversely, when sea otters are absent, abundant sea urchin
populations create areas of low kelp abundance, known as urchin barrens
(Estes and Harrold 1988).
Sea otters generally occur in shallow water areas that are near the
shoreline. They primarily forage in shallow water areas less than 100
meters (m) (328 feet (ft)) in depth, and the majority of all foraging
dives take place in waters less than 40 m (131 ft) in depth. As water
depth is generally correlated with distance to shore, sea otters
typically inhabit waters within 1-2 km (0.62-1.24 mi) of shore (Riedman
and Estes 1990). One notable exception occurs along the coast of
Bristol Bay, along the north side of the Alaska Peninsula, where a
broad shelf of shallow water extends several miles from shore. Prior to
the onset of the sea otter population decline (described below), large
rafts of sea otters were commonly observed above this shelf of shallow
water at distances as far as 40 km (25 mi) from shore (Schneider 1976).
Since the end of the commercial fur harvests, movement patterns of
sea otters have been influenced by the processes of natural population
recolonization and the translocation of sea otters into former habitat.
While sea otters have been known to make long distance movements up to
350 km (217 mi) over a relatively short period of time when
translocated to new or vacant habitat (Ralls et al. 1992), the home
ranges of sea otters in established populations are relatively small.
Once a population has become established and has reached a relatively
steady state within the habitat, movement of individual sea otters
appears to be largely dictated by social behaviors and by factors in
the local environment, including gender, breeding status, age, climatic
variables (e.g. weather, tidal state, season), and human disturbance,
as described below.
Home range and movement patterns of sea otters vary depending on
the gender and breeding status of the otter. In the Aleutian Islands,
breeding males remain for all or part of the year within the bounds of
their breeding territory, which constitutes a length of coastline
anywhere from 100 m (328 ft) to approximately 1 km (0.62 mi). Sexually
mature females have home ranges of approximately 8-16 km (5-10 mi),
which may include one or more male territories. Male sea otters that
are not part of the breeding population do not hold territories and may
move greater distances between resting and foraging areas than breeding
males (Lensink 1962, Kenyon 1969, Riedman and Estes 1990, Estes and
Tinker 1996).
Studies of movement patterns of juvenile sea otters found that
juvenile males (1-2 years of age) were found to disperse later and for
greater distances, up to 120 km (75 mi), from their natal (birth) area
than 1-year-old females, for which the greatest distance traveled was
38 km (23.6 mi) (Garshelis and Garshelis 1984, Monnett and Rotterman
1988, Riedman and Estes 1990). Intraspecific aggression between
breeding males and juvenile sea otters may cause juvenile otters to
move from their natal areas to lower quality habitat (Ralls et al.
1996), and survival of juvenile sea otters, though highly variable, is
influenced by intraspecific aggression and dispersal (Ballachey et al.
in litt.).
Sea otter movements are also influenced by local climatic
conditions such as storm events, prevailing winds, and in some areas,
tidal state. Sea otters tend to move to protected or sheltered waters
(bays, inlets, or lees) during storm events or high winds. In calm
weather conditions, sea otters may be encountered further from shore
(Lensink 1962, Kenyon 1969). In the Commander Islands, Russia ,
weather, season, time of day, and human disturbance have been cited as
factors that induce sea
[[Page 6603]]
otter movement (Barabash-Nikiforov 1947, Barabash-Nikiforov et al.
1968).
Due to their dependence on shallow water feeding areas, most sea
otters in Alaska occur within 1-2 km (0.62-1.24 mi) from shore. Thus,
most sea otters are within State-owned waters, which include the area
from mean high tide to 4.8 km (3 miles) offshore, and any that go
further offshore are within the U.S. Exclusive Economic Zone, which
extends 370.4 km (200 nautical miles) seaward from the coast of the
United States.
While sea otters typically sleep in the water, they also haul out
and sleep on shore (Kenyon 1969). Female sea otters have also been
observed to give birth while on shore (Barabash-Nikiforov et al. 1968,
Jameson 1983). Although they typically haul out and remain close to the
water's edge, sea otters have been observed on land at distances up to
several hundred meters from the water (Riedman and Estes 1990). The
majority of coastal lands within the range of the southwest Alaska
population of the northern sea otter are part of our National Wildlife
Refuge (NWR) system, including Alaska Maritime NWR, Izembek NWR, Alaska
Peninsula/Becharof NWR, and Kodiak NWR. The National Park Service also
has large parcels of coastal lands in southwest Alaska, including
Katmai National Park and Aniakchak National Monument and Preserve. The
vast majority of remaining coastal lands in southwest Alaska are owned
by the State of Alaska and Alaska Native Corporations. Privately owned
lands constitute a very minor proportion of coastal lands in southwest
Alaska.
Female sea otters in Alaska live an estimated 15-20 years, while
male lifespan appears to be about 10-15 years (Calkins and Schneider
1985). First-year survival of sea otter pups is generally substantially
lower than that for prime age (2-10 years old) animals (Monson and
DeGange 1995, Monson et al. 2000). Male sea otters appear to reach
sexual maturity at 5-6 years of age (Schneider 1978, Garshelis 1983).
The average age of sexual maturity for female sea otters is 3-4 years,
but some appear to reach sexual maturity as early as 2 years of age.
The presence of pups and fetuses at different stages of development
throughout the year suggests that reproduction occurs at all times of
the year. Some areas show evidence of one or more seasonal peaks in
pupping (Rotterman and Simon-Jackson 1988).
Similar to other mustelids, sea otters can have delayed
implantation of the blastocyst (developing embryo) (Sinha et al. 1966).
As a result, pregnancy can have two phases: from fertilization to
implantation, and from implantation to birth (Rotterman and Simon-
Jackson 1988). The average time between copulation and birth is around
6-7 months. Female sea otters typically will not mate while accompanied
by a pup (Lensink 1962; Kenyon 1969; Schneider 1978; Garshelis et al.
1984). Although females are physically capable of producing pups
annually, the length of pup dependency may be the primary factor
determining pupping interval.
Maximum productivity rates have not been measured through much of
the sea otter's range in Alaska. Estes (1990) estimated a population
growth rate of 17-20 percent per year for four northern sea otter
populations expanding into unoccupied habitat. In areas where resources
are limiting or where populations are approaching equilibrium density,
slower rates of growth are expected. Equilibrium density is defined as
the average density, relatively stable over time, that can be supported
by the habitat (Estes 1990).
Distribution and Status
Historically, sea otters occurred throughout the coastal waters of
the north Pacific Ocean, from the northern Japanese archipelago around
the north Pacific rim to central Baja California, Mexico. The historic
distribution of sea otters is depicted in Figure 2.
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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.]
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Survey Area Year Count or estimate Source
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Aleutian Islands..................... 1965 9,700 Kenyon (1969).
1992 8,048 Evans et al. (1997).
2000 2,442 Doroff et al. (2003).
North Alaska Peninsula Offshore Areas 1976 11,681 Schneider (1976).
*1986 6,474 2,003 Brueggerman et al.
(JUN) (1988), Burn and
9,215 3,709 Doroff in prep.
(AUG)
7,539 2,103
(OCT)
South Alaska Peninsula Offshore Areas *1986 13,900 6,456 Brueggerman et al.
(MAR) (1988). Burn and
14,042 5,178 Doroff in prep.
(JUN)
17,500 5,768
(OCT)
2001 1,005 1,597 Burn and Doroff in
(APR) prep.
South Alaska Peninsula Islands....... 1962 2,195 Kenyon (1969).
1986 2,122 Brueggeman et al.
1989 1,589 (1988).
2001 405 DeGange et al. (1995).
Burn and Doroff in
prep.
South Alaska Peninsula Shoreline..... 1989 2,632 DeGange et al. (1995).
2001 2,651 Burn and Doroff in
prep.
Kodiak Archipelago................... 1989 13,526 2,350 DeGange et al. (1995).
1994 9,817 5,169 Doroff et al. (in
2001 5,893 2,630 prep.).
Doroff et al. (in
prep.).
Kamishak Bay......................... 2002 6,918 4,271 USGS in litt. (2002).
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* Estimates recalculated by the Service (Burn and Doroff in prep.) from original data of Brueggeman et al
(1988).
Aleutian Islands
The first systematic, large-scale population surveys of sea otters
in the Aleutian Islands (Figure 4A) were conducted from 1957 to 1965 by
Kenyon (1969). The descendants of two remnant colonies had expanded
throughout the Rat, Delarof, and western Andreanof Island groups. The
total unadjusted count for the entire Aleutian archipelago during the
1965 survey was 9,700 sea otters. In 1965, sea otters were believed to
have reached equilibrium densities at roughly one-third of the Aleutian
archipelago, ranging from Adak Island in the east to Buldir Island in
the west (Estes 1990). Islands in the other two-thirds of the
archipelago had few sea otters, and researchers expected additional
population growth in the Aleutian to occur through range expansion.
From the mid-1960's to the mid-1980's, otters expanded their range,
and presumably their numbers as well, until they had recolonized all
the major island groups in the Aleutian. Although the exact size of the
sea otter population at the onset of the decline is unknown, a habitat-
based computer model estimates the pre-decline population in the late-
1980s may have numbered approximately 74,000 individuals (Burn et al.
2003).
In a 1992 aerial survey of the entire Aleutian archipelago we
counted a total of 8,048 otters (Evans et al. 1997), approximately
1,650 (19 percent) fewer than the total reported for the 1965 survey.
Although sea otters had recolonized all major island groups, they had
unexpectedly declined in number by roughly 50 percent in portions of
the western and central Aleutian since 1965, based on a comparison of
the 1965 and 1992 survey results. Sea otter surveys conducted from
skiffs during the mid-1990s at several islands also indicated
substantial declines in the western and central Aleutians (Estes et al.
1998). It was not known at the time if these observed declines were due
to an actual reduction in numbers of sea otters or a redistribution of
otters between Aleutian Islands.
In April 2000, we conducted another complete aerial survey of the
Aleutian archipelago. We counted 2,442 sea otters, which is a 70-
percent decline from the count eight years previously (Doroff et al.
2003). Along the more than 5,000 km (3,107 miles) of shoreline
surveyed, sea otter density was at a uniformly low level. this result
showed clearly that a decline in abundance of sea otters in the
archipelago had occurred, as opposed to redistribution among islands.
The aerial and skiff survey data both indicate that the onset of
the decline began in the latter half of the 1980s or early 1990s.
Doroff et al. (2003) have calculated that the decline proceeded at an
average rate of -17.5 percent per year in the Aleutians. Although
otters had declined in all island groups within the archipelago, the
greatest declines were observed in the Rat, Delarof, and Andreanof
Island groups. this result was unexpected, as the remnant colonies in
these island groups were the first to recover from the effects of
commercial harvests, and sea otters were believed to have been at
equilibrium density at most of these islands in the mid-1960s.
The current estimate of the population in the Aleutian Islands is
8,742 sea otters. This estimate is based on results of the survey
conducted in April of 2000, adjusted for otters not detected.
Alaska Peninsula
Three remnant colonies (at False Pass, Sandman Reefs, and Shumagin
Islands) were believed to have existed near the western end of the
Alaska Peninsula
[[Page 6609]]
after commercial fur harvests ended in 1911 (Kenyon 1969). During
surveys in the late 1950s and early 1960s, substantial numbers of sea
otters were observed between Unimak Island and Amak Island (2,892 in
1965) on the north side of the Peninsula, and around Sanak Island and
the Sandman reefs (1,186 in 1962), and the Shumagin Islands on the
south side (1,352 in 1962) (Kenyon 1969).
As summarized in Table 1 and described below, surveys of sea otters
along the Alaska Peninsula have covered four areas, with the same
method being used in a given area. For the north Alaska Peninsula
offshore area (Figure 4B), shoreline counts are not an appropriate
survey method due to the broad, shallow shelf in Bristol Bay, a
condition under which sea otters occur further from the shore than
elsewhere. Consequently, the north Alaska Peninsula offshore area has
been surveyed from aircraft using north-south transects extending from
the shoreline out over the shelf. Using this method, Schneider (1976)
calculated an unadjusted population estimate of 11,681 sea otters on
the north side of the Alaska Peninsula in 1976, which he believed to
have been within the carrying capacity for that area. Brueggeman et al.
(1988) conducted replicate surveys of the same area during three time
periods in 1986. We re-analyzed the original 1986 survey data to
address computational errors in the survey report; our re-calculated
estimates range from 6,474-9,215 sea otters for this area for the three
surveys in 1986 (Burn and Doroff in prep.). In May 2000, we replicated
the survey design of Brueggeman et al. (1988) using identical survey
methods. The 2000 survey estimate of 4,728 sea otters indicates
abundance on the north side of the Alaska Peninsula had fallen by 27-49
percent in comparison with the minimum and maximum point estimates of
the 1986 survey (Burn and Doroff in prep.).
We believe the decline in this particular area may have been even
greater than these results indicate, as the severity of sea ice in
Bristol Bay makes the North Alaska Peninsula the only area where
seasonal differences in the distribution of otters are likely to occur.
Substantially more otters were counted in transects of the Port Moller
area in the May 2000 survey than in the 1986 surveys, which occurred
later in the year. Large aggregations of sea otters in Port Moller may
be a seasonal phenomenon related to sea ice; overflights in July and
August, when the sea ice has left, have not recorded large numbers of
sea otters in this area (B. Murphy, Alaska Department of Fish and Game,
in litt. 2002). Consequently, had the May 2000 survey been conduced
later (e.g. July or August) when the sea ice and the otters were more
dispersed, it seems likely that fewer would have been in the Port
Moller transect areas, which would have resulted in a lower count in
the 2000 survey.
Offshore areas on the south side of the Alaska Peninsula (Figure
4B) were surveyed at three different time periods in 1986 (Brueggeman
et al. 1988). Noting computational errors in the survey report, we re-
analyzed the original 1986 survey data, resulting in estimates of
13,900-17,500 sea otters for the three surveys conducted in 1986 (Burn
and Doroff in prep.). We replicated the survey in April 2001, when our
estimate of 1,005 otters for the south Alaska Peninsula offshore area
indicated a decline in abundance of at least 93 percent when compared
with the minimum and maximum point estimates in this area from the 1986
surveys. Specific areas of high sea otter concentrations in 1986, such
as Sandman Reefs, were almost devoid of sea otters in 2001 (Burn and
Doroff in prep.).
Several island groups along the south side of the Alaska Peninsula
(Figure 4C; Pavlof and Shumagin Islands, as well as Sanak, Caton, and
Deer Islands) are another survey area. In 1962, Kenyon (1969) counted
1,900 otters along these islands. Twenty-four years later, in 1986,
Brueggeman et al. (1988) counted 2,122 otters in the same survey area.
In 1989, DeGange et al. (1995) counted 1,589 otters along the
shorelines of the islands that had been surveyed in 1962 and 1986,
which was approximately 16-28 percent fewer sea otters than were
reported in the earlier counts. This decrease was the first indication
of a sea otter population decline in the area of the Alaska Peninsula.
When we counted sea otters in these island groups in 2001 we recorded
only 405 individuals (Burn and Doroff in prep.), which is an 81-percent
decline from the 1986 count reported by Brueggeman et al. (1988).
The shoreline of the Alaska Peninsula from False Pass to Cape
Douglas (Figure 4D) is another survey area. In 1989, DeGange et al.
(1995) counted 2,632 sea otters along this stretch of shoreline. In
2001 we counted 2,651 sea otters (Burn and Doroff in prep.), nearly the
same as the 1989 count. When we subdivided and compared the results for
the eastern and western components of the survey areas, we found that
the count along the eastern end of the Peninsula, from Cape Douglas to
Castle Cape, increased approximately 20 percent, from 1,766 in 1989 to
2,115 in 2001. For the western end of the Peninsula from False Pass to
Castle Cape, however, there was evidence of a population decline, with
866 counted in 1989 as compared to 536 in 2001, a drop of almost 40
percent. (We also counted 42 sea otters along the shoreline of Unimak
Island in 2001, but there is no suitable baseline data for comparison.)
Based on what is known about sea otter movements and the distance
between the eastern and western ends of the Peninsula, we believe that
it is unlikely that these observations represent a change in
distribution.
The results from the different survey areas along the Alaska
Peninsula indicate various rates of change. Overall, the combined
counts for the Peninsula have declined by 65-72 percent since the mid-
1980s, based on the data presented in Table 1.
We have calculated an estimate of the current population for the
entire Alaska Peninsula, including an adjustment for otters not
detected by observers. In making this calculation, we first revised the
combined total number of sea otters observed during the most recent
surveys (8,789), to account for potential double-counting in an area of
overlap between two of the study areas along the Peninsula. We then
multiplied this revised number of otters (8,328) by the correction
factor of 2.38 provided by Evans et al. (1997) for the type of aircraft
used, to account for otters not detected by observers. The result is an
adjusted estimate of 19,821 sea otters along the Alaska Peninsula as of
2001 (Burn and Doroff in prep.).
Kodiak Archipelago
One of the remnant sea otter colonies in southwest Alaska is
thought to have occurred at the northern end of the Kodiak archipelago
(Figure 4D), near Shuyak Island. In 1959, Kenyon (1969) counted 395 sea
otters in the Shuyak Island area. Over the next 30 years, the sea otter
population in the Kodiak archipelago grew in numbers, and its range
expanded southward around Afognak and Kodiak Islands (Schneider 1976,
Simon-Jackson et al. 1984, Simon-Jackson et al. 1985). DeGange et al.
(1995) surveyed the Kodiak archipelago in 1989 and calculated an
adjusted population estimate of 13,526 sea otters. In July and August
1994, we conducted an aerial survey using the methods of Bodkin and
Udevitz (1999) and calculated an adjusted population estimate of 9,817,
approximately 27 percent lower than the estimate for 1989 (Doroff et
al. in prep.). Although both surveys corrected for animals not detected
by observers, differences in survey methods led to questions about
[[Page 6610]]
the ability to compare results between the two surveys. In June 2001,
we surveyed the Kodiak archipelago using the same observer, pilot, and
methods as in 1994. The result was an adjusted population estimate of
5,893 sea otters for the archipelago in 2001 (Doroff et al. in prep.),
which is a 40-percent decline in comparison to the 1994 estimate and a
56-percent decline from the 1989 estimate.
Kamishak Bay
Kamishak Bay is located on the west side of lower Cook Inlet, north
of Cape Douglas (Figure 4D). In 1994, Kamishak Bay was included as part
of a survey for marine birds and marine mammals in lower Cook Inlet
(Agler et al. 1995). The unadjusted population estimate of 5,914 sea
otters from the 1994 survey included sea otters from both the southwest
Alaska and the southcentral Alaska stocks (see section on Distinct
Vertebrate Population Segment, below), therefore an estimate for only
the Kamishak Bay area is not available. In the summer of 2002, the U.S.
Geological Survey (USGS), Biological Resources Division conducted an
aerial survey of lower Cook Inlet and the Kenai Fiords area. This
survey was designed, in part, to estimate sea otter abundance in
Kamishak Bay. The method used was identical to that of the 2001 aerial
survey of the Kodiak archipelago, which includes a correction factor
for sea otters not detected by the observer (Bodkin and Udevitz 1999).
Sea otters were relatively abundant within Kamishak Bay during the 2002
survey, with numerous large rafts of sea otters observed. The adjusted
estimate for the current sea otter population size in Kamishak Bay is
6,918 (USGS in litt. 2002). As no previous estimates for Kamishak Bay
exist, the population trend for this area is unknown.
Overall Comparison
The history of sea otters in southwest Alaska is one of commercial
exploitation to near extinction (1742 to 1911), protection under the
International Fur Seal Treaty (1911), and population recovery (post-
1911). By the mid- to late-1980s, sea otters in southwest Alaska had
grown in numbers and recolonized much of their former range. The
surveys conducted in various areas, described above, provide
information about the extent of declines within those areas. However,
due to differences in the years of the various baseline surveys for
different areas (1962, 1965, 1976, 1989), it is difficult to combine
those surveys as a basis for estimating the overall size of the sea
otter population throughout southwest Alaska at the onset of the
decline. Therefore, as part of our effort to evaluate information
reflecting the overall magnitude of the decline, we also have
considered information provided by Calkins and Schneider (1985), who
summarized sea otter population estimates worldwide based on data
collected through 1976. Much of the information they present is from
unpublished Alaska Department of Fish and Game survey results, and we
include this information as it is the only comprehensive reference for
estimating the overall magnitude of the sea otter decline in southwest
Alaska.
Calkins and Schneider (1985) provided estimates as of 1976,
adjusted for animals not detected by observers, for the Aleutian
Islands (55,100-73,700), north Alaska Peninsula (11,700-17,200), south
Alaska Peninsula (22,000-30,000) and Kodiak archipelago (4,000-6,000).
They did not report a specific estimate for the Kamishak Bay area,
which presumably was included within their estimate for the Kenai
Peninsula and Cook Inlet area (2,500-3,500 otters), and we are assuming
that half of the sea otters estimated for Kenai Peninsula and Cook
Inlet occurred in Kamishak Bay (1,250-1,750). Combining these
estimates, the sea otter population in the area encompassing the range
of the southwest Alaska population was believed to have numbered
between 94,050-128,650 animals as of 1976. As sea otters had not yet
fully recolonized southwest Alaska or reached equilibrium density in
all areas in 1976, additional population growth was expected.
Therefore, the overall population prior to the onset of the decline in
the 1980's probably was higher than the population estimate for 1976.
Our estimate for the current size of the southwest Alaska
population of the northern sea otter is 41,474 animals (Table 2). This
estimate is based on recent survey information, adjusted for animals
not detected.
Table 2.--Current Population Estimates for the Sea Otter in Southwest Alaska
[Alaska Peninsula and Unimak Island counts are adjusted using a correction factor of 2.38 for twin-engine
aircraft surveys of sea otters according to Evans et al. (1997). Aleutian Islands, Kodiak Archipelago, and
Kamishak Bay surveys are adjusted using survey-specific correction factors.]
----------------------------------------------------------------------------------------------------------------
Unadjusted Adjusted
Survey area Year count or count or Reference
estimate estimate
----------------------------------------------------------------------------------------------------------------
Aleutian Islands................ 2000 2,442 8,742 Doroff et al. (2003).
North Alaska Penninsula Offshore 2000 4,728 11,253 Burn and Doroff (in prep.).
Areas.
South Alaska Peninsula Offshore 2001 1,005 2,392 Burn and Doroff (in prep.).
Areas.
South Alaska Peninsula Shoreline 2001 \a\ 2,190 5,212 Burn and Doroff (in prep.).
South Alaska Peninsula Islands.. 2001 405 964 Burn and Doroff (in prep.).
Unimak Island................... 2001 42 100 Burn and Doroff (in prep.).
Kodiak Archipelago.............. 2001 ........... 5,893 Doroff et al. (in prep.).
Kamishak Bay.................... 2002 ........... 6,918 USGS Unpublished data.
-------------
Total....................... ........... ........... 41,474 .......................................
----------------------------------------------------------------------------------------------------------------
\a\ Does not include a count of 461 sea otters from False Pass to Seal Cape, which was also surveyed as part of
the south Alaska Peninsula Offshore Areas survey.
The 1976 population estimate based on the work of Calkins and
Schneider (1985) is not directly comparable to our current estimate
because of somewhat different survey approaches and estimation
techniques. Nevertheless, the results provide a basis for at least a
rough comparison of the overall extent of the decline of sea otters in
southwest Alaska. When compared to the estimate of 94,050-128,650 from
Calkins and Schneider (1985), our current estimate of approximately
41,500 sea otters is 53,000-87,000 lower, which is 56-68 percent lower
than the estimate for 1976.
[[Page 6611]]
Translocated Sea Otter Populations
As part of efforts to re-establish sea otters in portions of their
historical range, otters from Amchitka Island (part of the Aleutian
Islands) were translocated to other areas outside the range of what we
now recognize as the southwest Alaska distinct population segment, but
within the range of E. l. kenyoni (Jameson et al. 1982). These
translocation efforts met with varying degrees of success. From 1965 to
1969, 412 otters (89 percent from Amchitka Island, and 11 percent from
Prince William Sound, which is in southcentral Alaska, outside the
range of the southwest Alaska DPS) were translocated to six sites in
southeast Alaska (Jameson et al. 1982). Since that time, these
translocated populations have grown rapidly in numbers and expanded
their range. The most recent surveys conducted between 1994 and 1996
estimated 12,632 otters in southeast Alaska (USFWS 2002b).
Sea otters from Amchitka Island also were translocated to
Washington and Oregon, and to British Columbia, Canada, between 1969
and 1972 (Jameson et al. 1982). Sea otters translocated to British
Columbia were captured at Amchitka Island and Prince William Sound; the
otters translocated to Washington and Oregon were captured at Amchitka
Island only. The British Columbia and Washington populations have grown
in number and expanded their range, while the Oregon population
disappeared. The most recent estimates of population size are 550 in
Washington and 2,000 in British Columbia (Jameson and Jeffries 2001;
Watson et al. 1997). Although these populations, as well as sea otters
in southeast Alaska, are descended from sea otters at Amchitka Island,
they are geographically isolated from the southwest Alaska population
and their parent population by hundreds of kilometers (see section
entitled Distinct Vertebrate Population Segment, below) and are not
included in this proposed listing action.
The total number of otters removed from Amchitka as part of this
translocation program was just over 600 animals (Jameson et al. 1982).
Estes (1990) estimated that the sea otter population at Amchitka Island
remained essentially stable at more than 5,000 otters between 1972 and
1986, and consequently there is no evidence that removals for the
translocation program have been a contributing factor in the current
population decline.
Previous Federal Action
Based on the results of the April 2000 sea otter survey in the
Aleutian Islands, we added sea otters in the Aleutians to our list of
candidate species in August of 2000 (65 FR 67343). On October 25, 2000,
we received a petition from the Center for Biological Diversity
(Center) in Berkeley, California, requesting that we list the Aleutian
population of the northern sea otter as endangered. As we already had
identified sea otters in the Aleutians as a candidate species, we
considered the petition to be a second, redundant petition, and in
accordance with our petition management guidance (61 FR 36075) did not
make an additional 90-day or 12-month finding on this petition. On
November 14, 2000, we received a Notice of Intent to sue from the
Center challenging our decision not to propose to list sea otters in
the Aleutians under the Act. We responded to the Center that funds were
not available during Fiscal Year 2001 to prepare a proposed listing
rule.
On August 21, 2001, we received a petition from the Center to
designate the Alaska stock of sea otters (State-wide) as depleted under
the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.). Under
the MMPA, a marine mammal species or population stock is considered to
be depleted when it is below its Optimum Sustainable Population (OSP)
level. The OSP is defined in the MMPA as: ``the number of animals which
will result in the maximum productivity of the population or the
species, keeping in mind the carrying capacity of the habitat and the
health of the ecosystem of which they form a constituent element.'' In
accordance with the MMPA, we published a notice in the Federal Register
on September 6, 2001, announcing the receipt of this petition (66 FR
4661). On November 2, 2001, we published our finding on the petition in
the Federal Register (66 FR 55693). While we acknowledged the evidence
of a population decline in the southwest Alaska stock, the best
available information suggested that the southeast Alaska stock was
increasing, and the southcentral Alaska stock was either stable or
increasing. We found that the petitioned action was not warranted under
the MMPA for the following reasons: (1) The best estimate of the
population size for the entire state of Alaska was greater than the
value presented in the petition; (2) based on the best estimate of
population size, the Alaska stock of sea otters was above OSP level;
and (3) recent information had identified the existence of three stocks
of sea otters in Alaska: southwest, southcentral, and southeast
(Gorbics and Bodkin 2001). The boundaries of these three stocks are
depicted in Figure 5.
BILLING CODE 4310-55-P
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[[Page 6613]]
We recently revised the MMPA stock assessment reports for sea
otters in Alaska. Draft stock assessment reports identifying the three
stocks of sea otters were made available for public review and comment
from March 28 to June 26, 2002 (67 FR 14959). The sea otter stock
assessment reports were finalized on August 20, 2002, and notice of
their availability was published on October 9, 2002 (67 FR 62979).
On January 11, 2002, we received a petition from the Sea Otter
Defense Initiative (SODI), a project of the Earth Island Institute, in
Deer Isle, Maine. The petition requested that we emergency and
permanently list the southwest Alaska stock of sea otters as
endangered. We responded to SODI that, based on the best available
population estimate that we prepared in response to the Center's
petition to list the Alaska stock of sea otters as depleted under the
MMPA, an emergency listing of the southwest Alaska stock was not
warranted. We also notified SODI that we had begun the preparation of
this proposed rule during Fiscal Year 2002.
Based on additional sea otter surveys along the Alaska Peninsula
and Kodiak archipelago, and the identification of multiple stocks of
sea otters in Alaska, we expanded the candidate species designation on
June 3, 2002, to include the geographic range of the southwest Alaska
stock of the northern sea otter. Notification of this change was
included in our June 13, 2002, notice of review of candidate species
(67 FR 40657).
Distinct Vertebrate Population Segment
Pursuant to the Act, we must consider for listing any species,
subspecies, or, for vertebrates, any distinct population segment (DPS)
of these taxa if there is sufficient information to indicate that such
action may be warranted. To interpret and implement the DPS provision
of the Act and Congressional guidance, the Service and the National
Marine Fisheries Service published, on December 21, 1994, a draft
Policy Regarding the Recognition of Distinct Vertebrate Population
Segments Under the Endangered Species Act and invited public comments
on it (59 FR 65885). After review of comments and further
consideration, the Services adopted the interagency policy as issued in
draft form, and published it in the Federal Register on February 7,
1996 (61 FR 4722). This policy addresses the recognition of DPSs for
potential listing actions. The policy allows for more refined
application of the Act that better reflects the biological needs of the
taxon being considered, and avoids the inclusion of entities that do
not require its protective measures.
Under our DPS policy, three elements are considered in a decision
regarding the status of a possible DPS as endangered or threatened
under the Act. These are applied similarly for additions to the list of
endangered and threatened species, reclassification, and removal from
the list. They are: (1) Discreteness of the population segment in
relation to the remainder of the taxon; (2) the significance of the
population segment to the taxon to which it belongs; and (3) the
population segment's conservation status in relation to the Act's
standards for listing (i.e., is the population segment, when treated as
if it were a species, endangered or threatened?). A systematic
application of the above elements is appropriate, with discreteness
criteria applied first, followed by significance analysis. Discreteness
refers to the isolation of a population from other members of the
species and we evaluate this based on specific criteria. We determine
significance by using the available scientific information to determine
the DPS's importance to the taxon to which it belongs. If we determine
that a population segment is discrete and significant, we then evaluate
it for endangered or threatened status based on the Act's standards.
Discreteness
Under our Policy Regarding the Recognition of Distinct Vertebrate
Population Segments, a population segment of a vertebrate species may
be considered discrete if it satisfies either one of the following
conditions:
1. It is markedly separated from other populations of the same
taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation.
2. It is delimited by international governmental boundaries within
which differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
The focus of our DPS evaluation is the subspecies E. l. kenyoni,
which occurs from the west end of the Aleutian Islands in Alaska, to
the coast of the State of Washington (Wilson et al. 1991), as depicted
in Figure 1. To the west of the Aleutian Islands, the sea otters in
Russia are recognized as a separate subspecies, E. l. lutris. To the
east of the Aleutians, a discontinuity in sea otter distribution occurs
at Cook Inlet. This discontinuity also was specifically recognized
during the process of identifying marine mammal stocks under the MMPA,
and is reflected by the boundary separating the southwest Alaska stock
of sea otters from the southcentral stock, as shown in Figure 4.
Although sea otters inhabit both the eastern and western shores of
lower Cook Inlet, their distribution around the Inlet is not contiguous
because the presence of winter sea ice in upper Cook Inlet forms a
natural break in sea otter distribution. This break in sea otter
distribution in the upper portion of the Inlet persists throughout the
ice-free portions of the year as well (Rotterman and Simon-Jackson
1988).
In the lower portion of Cook Inlet, a different type of barrier
exists in the form of an expanse of deep water. The distance across
lower Cook Inlet ranges from 50-90 km (31-56 miles). While sea otters
are physically capable of swimming these distances, the water depths of
up to 260 m (142 fathoms) and lack of food resources for sea otters in
deep water areas makes such movements across this open water area quite
unlikely.
Surveys conducted for sea otters and other species in the area of
Lower Cook Inlet confirm the discontinuity of sea otters in this area.
In the summer of 1993, Agler et al. (1995) conducted boat-based surveys
of marine birds and mammals, including sea otters, in Lower Cook Inlet.
During approximately 1,574 km (978 miles) of survey effort, only one
sea otter was observed in the center of the Inlet. More recently,
during an aerial survey of sea otters conducted in the summer of 2002,
no otters were observed on 324 km (201 miles) of transects flown across
the center of Cook Inlet (USGS in litt. 2002).
Information gathered incidental to surveys of other species also
indicates that sea otters rarely occur in the offshore areas of lower
Cook Inlet, further confirming the discontinuity of sea otters in this
area. NMFS has conducted aerial surveys of beluga whales,
Delphinapterus leucas, in Cook Inlet since 1993. In addition to beluga
whales, observers recorded observations of other marine mammals,
including sea otters. During these surveys, which covered a combined
total of 11,583 km (7,197 miles) of systematic transects flown across
the inlet over several years, no sea otters were observed in the
deeper, offshore areas of Cook Inlet (Rugh et al. 2000). The NMFS also
conducted a marine mammal observer program during the Cook Inlet salmon
drift and set gillnet fisheries in 1999 and 2000 (Fadely and Merklein
2001). During this period with several thousand hours of observations,
no sea otters were recorded in the offshore
[[Page 6614]]
areas of Cook Inlet. Given the amount of survey effort that has been
expended, the almost complete lack of observations in deeper offshore
waters indicates that there is little exchange of sea otters between
the eastern and western shores of lower Cook Inlet.
The population of sea otters represented by the southwest Alaska
stock is genetically different from both the southcentral and southeast
Alaska stocks. Studies using mitochondrial DNA analysis identified ten
different genotypes within the range of sea otters; six of these ten
different genotypes are found in Alaska (Sanchez 1992, Bodkin et al.
1992, Cronin et al. 1996). Gorbics and Bodkin (2001) demonstrated that
mitochondrial DNA haplotype frequencies (a descriptive genetic
characteristic) differ significantly among sea otters from southwest
Alaska (west of Cook Inlet) compared to those from southcentral Alaska
(east of Cook Inlet) and southeast Alaska.
Additional genetic analysis of both mitochondrial and nuclear
(microsatellite) DNA (these are two different approaches for examining
genetic diversity) has shown similar patterns of genetic
differentiation and supports the identification of multiple populations
of sea otters in Alaska. As mitochondrial DNA is maternally inherited,
it can only be used to assess gene flow in females. Analysis of nuclear
genetic markers, such as microsatellite DNA, can be used to assess gene
flow by both males and females and provide a better quantification of
genetic differentiation than mitochondrial DNA alone (Cronin et al.
2002). Pairwise comparisons of both mitochondrial and nuclear DNA
between individual sampling locations from southwest and southcentral
Alaska had 40 significant differences out of 60 comparisons (67%). In
addition, tests of heterogeneity between pooled sampling locations
showed significant differences between sea otters in southwest and
southcentral Alaska in three out of three tests (Cronin et al. 2002).
These genetic differences are most likely the result of little or no
movement of animals across stock boundaries (Gorbics and Bodkin 2001).
The boundary between the southwest and southcentral stocks of sea
otters is in the area of Cook Inlet, and the aforementioned genetic
differences and lack of observations from the center of Cook Inlet
indicate that sea ice and deep water constitute physical barriers that
effectively limit animal movements between the southwest and
southcentral Alaska stocks of sea otters.
Sea otters in southwest and southcentral Alaska also differ
morphologically. Comparison of 10 skull characteristics between 26
adult sea otters from Amchitka Island and 42 sea otters from Prince
William Sound showed numerous statistically significant differences,
with the Amchitka otters being the larger of the two (Gorbics and
Bodkin 2001).
These genetic and morphological differences were part of the basis
for identification of sea otter population stocks under the MMPA (USFWS
2002a, USFWS 2002b, USFWS 2002c). The Service and NMFS have adopted the
methods of Dizon et al. (1992), who outlined four criteria for
consideration when identifying marine mammal population stocks: (1)
Distribution; (2) population response; (3) morphology; and (4)
genetics. Applying these criteria to the best available scientific
information, Gorbics and Bodkin (2001) identified three stocks of sea
otters in Alaska, the southwest, southcentral, and southeast stocks,
with ranges as depicted in Figure 5.
In summary, sea otters from the Aleutians Islands to the middle of
Cook Inlet are a population that differs from other sea otters in
several respects. Sea otters to the west of the Aleutians are
recognized as belonging to a different taxon, the subspecies E. l.
lutris. Within the taxon E. l. kenyoni, there are physical barriers to
movement across the upper and the lower portions of Cook Inlet, and
there are morphological and genetic differences between sea otters that
correspond to the southwest and southcentral Alaska stocks that we
identified under the MMPA, with Cook Inlet being the boundary
separating these stocks. The geographic separation between the
southwest and southeast Alaska stocks is even greater than between the
southwest and southcentral Alaska stocks. In addition, Bodkin et al.
(1999) note that haplotype frequencies in southeast Alaska (a
translocated population) differed significantly from both ``parent''
stocks.
Based on our consideration of the best scientific information
available, we find that the southwest Alaska population of the northern
sea otter that occurs from the Aleutian Islands to Cook Inlet,
corresponding to the southwest Alaska stock as identified by us
previously under the MMPA (Figure 5), is markedly separated from other
populations of the same taxon as a consequence of physical factors, and
there is genetic and morphological discontinuity that is evidence of
this separation. Therefore, the southwest Alaska population of the
northern sea otter meets the criterion of discreteness under our Policy
Regarding the Recognition of Distinct Vertebrate Population Segments.
Significance
If we determine a population segment is discrete, we next consider
available scientific evidence of its significance to the taxon to which
it belongs. Our policy states that this consideration may include, but
is not limited to, the following:
1. Persistence of the discrete population segment in an ecological
setting unusual or unique for the taxon,
2. Evidence that loss of the discrete population segment would
result in a significant gap in the range of the taxon,
3. Evidence that the discrete population segment represents the
only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range, or
4. Evidence that the discrete population segment differs markedly
from other populations of the species in its genetic characteristics.
The sea otter population that corresponds to the southwest Alaska
stock contains over 60 percent of the range for the subspecies E. l.
kenyoni. Following protection from commercial exploitation in 1911, sea
otters recovered quickly in southwest Alaska, which is a remote part of
the State. In the mid-1980s, biologists believed that 94 percent of the
subspecies E. l. kenyoni, and 84 percent of the world population,
existed in southwest Alaska (Calkins and Schneider 1985). Despite the
recent population decline, current information indicates that roughly
half of all sea otters in the subspecies E. l. kenyoni exist in the
southwest Alaska population. Thus, the loss of this population segment
would result in a significant gap in the range of the taxon because it
comprises 60 percent of the range and approximately half of the
population of the subspecies. In addition, the best scientific
information available demonstrates the southwest Alaska population
differs significantly from the southcentral and southeast Alaska stocks
in terms of genetic characteristics (Gorbics and Bodkin 2001).
Therefore, we find that the southwest Alaska population segment is
significant to the taxon to which it belongs because the loss of this
segment would result in a significant gap in the range of the taxon,
and because there is evidence that it differs markedly from other
populations of the taxon in its genetic characteristics.
Summary of Discreteness and Significance Evaluations
Based on the above consideration of the southwest Alaska population
of the northern sea otter's discreteness and its
[[Page 6615]]
significance to the remainder of the taxon, we find that it is a
distinct population segment, or DPS, as described under our Policy
Regarding the Recognition of Distinct Vertebrate Population Segments.
The population's discreteness is due to its separation from other
populations of the same taxon as a consequence of physical factors, and
there are morphological and genetic differences from the remainder of
the taxon that are evidence of this separation. The population
segment's significance to the remainder of the taxon is due principally
to the significant gap that its loss would represent in the range of
the taxon, and also to the fact that it differs markedly from other
populations of the species in its genetic characteristics. We refer to
this population segment as the southwest Alaska DPS for the remainder
of this proposed rule.
Conservation Status
Pursuant to the Act, we must consider for listing any species,
subspecies, or, for vertebrates, any distinct population segment of
these taxa, if there is sufficient information to indicate that such
action may be warranted. We have evaluated the conservation status of
the southwest Alaska DPS of the northern sea otter in order to make a
determination relative to whether it meets the Act's standards for
listing the DPS as endangered or threatened. Based on the definitions
provided in section 3 of the Act, endangered means the DPS is in danger
of extinction throughout all or a significant portion of its range, and
threatened means the DPS is likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range.
Summary of Factors Affecting the Species
Section 4 of the Act and regulations (50 CFR part 424) promulgated
to implement the listing provisions of the Act set forth the procedures
for adding species to the Federal list. As defined in section 3 of the
Act, the term ``species'' includes any subspecies of fish or wildlife
or plants, and any distinct population segment of any species or
vertebrate fish or wildlife which interbreeds when mature. We may
determine a species to be an endangered or threatened species due to
one or more of the five factors described in section 4(a)(1) of the
Act. These factors, and their application to the southwest Alaska DPS
of the northern sea otter, are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Habitat destruction or modification are not known to be major
factors in the decline of the southwest Alaska DPS of the northern sea
otter. At present, no curtailment of range has occurred, as sea otters
still persist throughout the range of the DPS, albeit at markedly
reduced densities. However, as there is no evidence to suggest that the
decline has abated, it is possible that additional losses may occur
that would curtail the range of sea otters in southwest Alaska.
Human-induced habitat effects occur primarily in the form of
removal of some of the prey species used by sea otters as a result of
resource use such as commercial fishing, which occurs throughout
southwest Alaska. While there are some fisheries for benthic
invertebrates in southwest Alaska, there is little competition for prey
resources due to the limited overlap between the geographic
distribution of sea otters and fishing effort. In addition, the total
commercial catch of prey species used by sea otters is relatively small
(Funk 2003).
In studies of sea otters in the Aleutians, there was no evidence
that sea otters are nutritionally stressed in that area, and foraging
behavior, measured as percent feeding success, has increased during the
1990's (Estes et al. 1998).
Development of harbors and channels by dredging may affect sea
otter habitat on a local scale by disturbing the sea floor and benthic
invertebrates that sea otters eat. Typically, the number and size of
these activities are small relative to the overall range of the DPS.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Following 170 years of commercial exploitation, sea otters were
protected in 1911 under the International Fur Sea Treaty, which
prohibited further hunting. In 1972, the Marine Mammal Protection Act
(MMPA) established a moratorium on the take of all marine mammals in
U.S. waters. Section 101(b) of the MMPA provides an exemption for
Alaska Natives to take marine mammals for subsistence purposes.
Although the Native exemption was established in 1972, subsistence
harvest of sea otters did not begin in earnest until the mid-1980s
(Simon-Jackson 1988). In October 1988, we initiated the marine mammal
Marking, Tagging, and Reporting Program (MTRP) to monitor the harvest
of sea otter, polar bear (Ursus maritimus), and Pacific walrus
(Odobenus rosmarus divergens) in Alaska (50 CFR 18.23(f)). The majority
of the sea otter harvest occurs in southeast and southcentral Alaska.
Information from the MTRP estimates the subsistence harvest of sea
otters from the southwest Alaska DPS averaged less than 100 sea otters
per year during the 1990s (Burn and Doroff in prep.). Based on the
magnitude of the current decline, the impact of the subsistence harvest
is negligible.
Scientific research on sea otters occurs primarily as aerial and
skiff surveys of abundance, and such surveys are conducted infrequently
(once every few years) and when they occur, they last for very short
durations of time. During the 1990s, 198 otters were captured and
released as part of health monitoring and radio telemetry studies at
Adak and Amchitka (T. Tinker, University of California at Santa Cruz,
in litt. 2003). Based on the magnitude of the current decline, we do
not believe that the impact of surveys, or the impact of capture/
release activities, is a significant factor.
Translocations of sea otters from southwest Alaska to other areas
also has occurred. These translocations took place from 1965 to 1972,
and involved removal of a total of just over 600 sea otters from
Amchitka Island (Jameson et al. 1982). Estes (1990) estimated that the
sea otter population at Amchitka Island remained essentially stable at
more than 5,000 otters between 1972 and 1986, and consequently there is
no evidence that removals for the translocation program have resulted
in overutilization.
C. Disease or Predation
Fish processing operations produce large quantities of organic
waste, which can affect the health of sea otters on a local scale. In
some areas of Alaska, sea otters have been observed consuming fish
waste. Necropsies of carcasses recovered in Orca Inlet, Prince William
Sound (which is not within the range of the southwest Alaska DPS),
revealed that some otters in these areas had developed parasitic
infections and fish bone impactions that contributed to the deaths of
these animals (Ballachey et al. 2002, King et al. 2000). Measures such
as heating and grinding waste materials, or barging it further
offshore, have proven successful at eliminating these impacts. There is
no evidence that the fish processing operations are resulting in
disease on any substantial scope or scale for the southwest Alaska DPS
of the northern sea otter.
The cause of the sea otter decline in the Aleutians has been
explored by reviewing available data on sea otter
[[Page 6616]]
reproduction, survival, distribution, habitat, and environmental
contaminants. Estes et al. (1998) concluded that the observed sea otter
declines there were most likely the result of increased adult
mortality. While disease, pollution, and starvation may all influence
sea otter mortality, no evidence available at this time suggests these
factors are contributing to the decline in the Aleutians.
The weight of evidence of available information suggests that
predation by killer whales (Orcinus orca) may be the most likely cause
of the sea otter decline in the Aleutian Islands (Estes et al. 1998).
Data that support this hypothesis include: (1) A significant increase
in the number of killer whale attacks on sea otters during the 1990s
(Hatfield et al. 1998); (2) scarcity of beachcast otter carcasses that
would be expected if disease or starvation were occurring; and (3)
markedly lower mortality rates between sea otters in a sheltered lagoon
(where killer whales cannot go) as compared to an adjacent exposed bay.
Similar detailed studies have not yet been conducted in other areas
within the southwest Alaska DPS, and the role of killer whale predation
on sea otters outside of the Aleutians is unknown. (See the discussion
of Factor E, below, for additional information concerning killer
whales.)
Besides killer whales, other predators on sea otters include white
sharks (Carcharodon carcharias), brown bears (Ursus arctos), and
coyotes (Canis latrans) (Riedman and Estes 1990). Carcasses of sea
otter pups have been observed in bald eagle (Haliaeetus leucocephalus)
nests (Sherrod et al. 1975). Although there is anecdotal information
regarding shark attacks on sea otters in Alaska, we believe that the
impact of sharks and predators other than killer whales on the
southwest Alaska DPS of the northern sea otter is negligible.
D. The Inadequacy of Existing Regulatory Mechanisms
The MMPA (16 U.S.C. 1361), enacted in 1972, is an existing
regulatory mechanism that involves sea otters. The MMPA placed a
moratorium on the taking of marine mammals in U.S. waters. Similar to
the definition of ``take'' under section 3 of the ESA, ``take'' is
defined under the MMPA as ``harass, hunt, capture, or kill, or attempt
to harass, hunt, capture or kill'' (16 U.S.C. 1362). The MMPA does not
include provisions for restoration of depleted species or population
stocks, and does not provide measures for habitat protection.
Section 101(b) of the MMPA provides an exemption to allow Alaska
Natives to take marine mammals for subsistence purposes. The MMPA does
not allow any regulation of the subsistence harvest prior to a finding
of depletion. By definition, a marine mammal species or stock that is
designated as ``threatened'' or ``endangered'' under the Endangered
Species Act is also classified as ``depleted'' under the MMPA. The
converse is not true, however, as a marine mammal species or stock may
be designated as depleted under the MMPA, but not be listed as
threatened under the ESA. As stated earlier, current levels of
subsistence harvest of sea otters, which amounted to fewer than 100 sea
otters per year during the 1990s, are believed to have a negligible
impact on this DPS, and is therefore not a cause for concern at this
time.
Section 118 of the MMPA addresses the taking of marine mammals
incidental to commercial fishing operations. This section, which was
added to the MMPA in 1994, establishes a framework that authorizes the
incidental take of marine mammals during commercial fishing activities.
In addition, this section outlines mechanisms to monitor and reduce the
level of incidental take. Information from monitoring programs
administered by NMFS indicates that interactions between sea otters and
commercial fisheries result in less than one instance of mortality or
serious injury per year within the southwest Alaska DPS and are,
therefore, not a cause for concern at this time (USFWS 2002a).
Northern sea otters are not on the State of Alaska lists of
endangered species or species of special concern. Alaska Statutes
sections 46.04 200-210 specify State requirements for Oil and Hazardous
Substance Discharge and Prevention Contingency Plans. These sections
include prohibitions against oil spills and provide for the development
of contingency plans to respond to spills should they occur. The
potential impacts of oil spills on sea otters are addressed in Factor
E.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Sea otters are particularly vulnerable to contamination by oil
(Costa and Kooyman 1981). As they rely solely on fur for insulation,
frequent grooming is essential to maintain the insulative properties of
the fur. Vigorous grooming bouts generally occur before and after
feeding episodes and rest periods. Oiled sea otters are highly
susceptible to hypothermia resulting from the reduced insulative
properties of oil-matted fur. Contaminated sea otters also are
susceptible to the toxic effects from oil ingested while grooming. In
addition, volatile hydrocarbons may affect the eyes and lung tissues of
sea otters in oil-contaminated habitats and contribute to mortality.
The sea otter's vulnerability to oil was clearly demonstrated
during the Exxon Valdez oil spill in 1989, when thousands of sea otters
were killed in Prince William Sound, Kenai Fiords, the Kodiak
archipelago, and the Alaska Peninsula. Although the spill occurred
hundreds of miles outside the range of the southwest Alaska DPS of the
northern sea otter, an estimated 905 sea otters from this population
segment died as a result of the spill (Handler 1990, Doroff et al.
1993, DeGange et al. 1994).
Although numerous safeguards have been established since the Exxon
Valdez oil spill to minimize the likelihood of another spill of
catastrophic proportions in Prince William Sound, vessels and fuel
barges are a potential source of oil spills that could impact sea
otters in southwest Alaska. Since 1990 in Alaska, more than 4,000
spills of oil and chemicals on water have been reported to the U.S.
Coast Guard National Response Center. Of these, nearly 1,100 occurred
within the range of the southwest Alaska DPS of the northern sea otter.
Reported spills include a variety of quantities (from a few gallons to
thousands of gallons) and materials (primarily diesel fuel, gasoline,
and lubricating oils). Reports of direct mortality of sea otters as a
result of these spills are lacking and the impact of chronic oiling on
sea otters in general, or on the southwest Alaska DPS, is unknown.
Also, despite the fact that locations such as boat harbors have higher
occurrences of small spills than more remote areas, individual sea
otters have been observed to frequent some harbors for years. The
overall health, survivorship, and reproductive success of these otters
is not known.
Currently, there is no oil and gas production within the range of
the southwest Alaska DPS of the northern sea otter. Proposed Outer
Continental Shelf (OCS) oil and gas lease sales are planned, however,
for lower Cook Inlet. Based on a review of the draft Environmental
Impact Statement for these lease sales, it is our opinion that the
potential impacts of this development on the southwest Alaska DPS will
be negligible as sea otters occur primarily in the nearshore zone and
the lease sale area is at least three miles off shore. Therefore, sea
otters do not significantly overlap with the lease sale area.
[[Page 6617]]
Contaminants may also affect sea otters and their habitat.
Potential sources of contaminants include local sources at specific
sites in Alaska, and remote sources outside of Alaska. One category of
contaminants that has been studied are polychlorinated biphenyls
(PCBs), which may originate from a wide variety of sources. Data from
blue mussels collected from the Aleutian Islands in southwest Alaska
through southeast Alaska indicate background concentrations of PCBs at
most sampling locations, with ``hot spots'' of high PCB concentrations
evident at Adak (Sweeper Cove), Dutch Harbor, and Amchitka.
Notwithstanding these ``hot spots,'' PCB levels in samples from
southwest Alaska actually are lower than those in southeast Alaska
sites. The PCB concentrations found in liver tissues of sea otters from
the Aleutians were similar to or higher than those causing reproductive
failure in captive mink (Estes et al. 1997, Giger and Trust 1997), but
the toxicity of PCBs to sea otters is unknown. Population survey data
for the Adak Island area indicates normal ratios of mothers and pups,
which suggests that reproduction in sea otters is not being suppressed
in sea otters in that area (Tinker and Estes 1996). As PCB's typically
inhibit reproduction rather than cause adult mortality, these findings
do not suggest a reproductive impact due to PCBs. Sample sizes were
limited, however, and data needed to fully evaluate the potential role
of PCBs and other environmental contaminants in the observed sea otter
population decline are incomplete. In summary, a conclusive link
between the sea otter decline and the effects of specific contaminants
in their habitat has not been established.
Sea otters are sometimes taken incidentally in commercial fishing
operations. Information from the NMFS list of fisheries indicates that
entanglement leading to injury or death occurs infrequently in set net,
trawl, and finfish pot fisheries within the range of the southwest
Alaska DPS of the northern sea otter (67 FR 2410, January 17, 2002).
During the summers of 1999 and 2000, NMFS conducted a marine mammal
observer program in Cook Inlet for salmon drift and set net fisheries.
No mortality or serious injury of sea otters was observed in either of
these fisheries in Cook Inlet (Fadely and Merklein 2001). Similarly,
preliminary results from an ongoing observer program for the Kodiak
salmon set net fishery also report only four incidents of entanglement
of sea otters, with no mortality or serious injury (M. Sternfeld, NMFS,
in litt. 2003). Additional marine mammal observer programs will
continue to improve our understanding of this potential source of sea
otter mortality.
The hypothesis that killer whales may be the principal cause of the
sea otter decline suggests that there may have been significant changes
in the Bering Sea ecosystem (Estes et al. 1998). For the past several
decades, harbor seals (Phoca vitulina) and Steller sea lions
(Eumetopias jubatus), the preferred prey species of transient, marine
mammal-eating killer whales, have been in decline throughout the
western north Pacific. In 1990, Steller sea lions were listed under the
Act as threatened under the ESA (55 FR 49204). Their designation was
later revised to endangered in western Alaska, and threatened in
eastern Alaska, with the dividing line located at 144 degrees west
longitude (62 FR 24345). Estes et al. (1998) hypothesized that killer
whales may have responded to declines in their preferred prey species,
harbor seals and Stellar sea lions, by broadening their prey base to
include sea otters. While the cause of sea lion and harbor seal
declines is the subject of much debate, it is possible that changes in
composition and abundance of forage fish as a result of climatic
changes and/or commercial fishing practices may be contributing
factors.
It also recently has been hypothesized that the substantial
reduction of large whales from the North Pacific Ocean as a result of
post-World War II industrial whaling may be the ultimate cause of the
decline of several species of marine mammals in the north Pacific
(Springer et al. 2003). Killer whales are considered to be the foremost
natural predator of large whales. By the early 1970's, the biomass of
large whales had been reduced by 95 percent, a result attributed to
commercial harvesting. This reduction may have caused killer whales to
begin feeding more intensively on smaller coastal marine mammals such
as sea lions and harbor seals. As those species became increasing rare,
the killer whales that preyed on them may have expanded their diet to
include the even smaller and calorically less profitable, sea otter.
The information supporting this theory is still under review. Although
the proximate cause of the current sea otter decline may be predation
by killer whales, the ultimate cause remains unknown.
Conclusion of Status Evaluation
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by the southwest Alaska DPS of the northern sea otter in
determining to propose this rule. The Act defines an endangered species
as one that is in danger of extinction throughout all or a significant
portion of its range. A threatened species is one that is likely to
become an endangered species in the foreseeable future throughout all
or a significant portion of its range.
To date, investigations of the cause(s) of the sea otter decline
have been limited to the Aleutian islands; little research has been
conducted in other portions of the southwest Alaska DPS. Although
killer whale predation has been hypothesized to be responsible for the
sea otter decline in the Aleutian islands, the cause(s) of the decline
throughout southwest Alaska are not definitively known.
At present, sea otters have not been extirpated from any portion of
the range of the southwest Alaska DPS, however they have been reduced
to markedly lower densities, particularly in the Aleutian Islands and
south Alaska Peninsula areas. Recent survey information indicates that
the southwest Alaska DPS has declined by at least 56-68 percent during
the past 10-15 years. Estimated rates of decline have been as great as
17.5 percent per year in the Aleutian archipelago (Doroff et al. 2003).
At present, we have no evidence to indicate that the decline has
abated, and we have no reason to expect that the decline will cease. If
the trend were to continue at the overall estimated decline rates for
the southwest Alaska DPS, which range from 5.2-10.6 percent per year,
the DPS would be further reduced from its current level by 66-89
percent in 20 years, and could become extirpated in portions of its
range.
Regardless of its cause, the severity and widespread nature of the
decline in the southwest Alaska sea otter DPS is quite serious. The
decline may be due to predation by killer whales, which in turn may be
the result of changes in the ecosystem. Also, regardless of what the
reason for the decline may be, at present we have no evidence to
indicate that the decline has abated, and we have no reason to expect
that the decline will cease. Given the current population size and
distribution, we do not believe the DPS is presently in danger of
extinction throughout all or a significant portion of its range. Based
on our evaluation of the best available scientific information,
however, we believe it is likely to become an endangered species in the
foreseeable future throughout all or a significant portion of its
range. Therefore, we are proposing to list the
[[Page 6618]]
southwest Alaska DPS of the northern sea otter as threatened.
Critical Habitat
Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' is defined in section 3 as meaning the
use of all methods and procedures needed to bring the species to the
point at which listing under the Act is no longer necessary.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies shall insure that any action
they authorize, fund, or carry out is not likely to result in the
destruction or adverse modification of designated critical habitat.
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
we designate critical habitat at the time a species is determined to be
endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state
that designation of critical habitat is not prudent when one or both of
the following situations exist--(1) the species is threatened by taking
or other activity and the identification of critical habitat can be
expected to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
Our regulations (50 CFR 424.12(a)(2)) further state that critical
habitat is not determinable when one or both of the following
situations exist: (1) Information sufficient to perform required
analysis of the impacts of the designation is lacking, or (2) the
biological needs of the species are not sufficiently well known to
permit identification of an area as critical habitat.
Delineation of critical habitat requires identification of the
physical and biological habitat features that are essential to the
conservation of the species. In general terms, critical habitat for the
southwest Alaska DPS of the northern sea otter may be a function of
several factors, including: (1) Water depth; (2) proximity to shore;
and (3) sheltered areas that provide refuge from rough weather and/or
aquatic predators. Unlike other marine mammal species such as seals and
sea lions, sea otters do not occur at high-density focal areas such as
rookeries and haulout sites. Although they are occasionally observed on
land, sea otters are typically distributed at low densities throughout
shallow, nearshore marine waters. In addition to nearshore foraging
areas, sea otters may move from exposed, open-water areas, into
protected bays, lagoons, and inlets when inclement weather produces
large waves. These sheltered areas may be important resting areas for
sea otters, especially mothers with dependent pups. In addition, some
sheltered areas may provide refuge from aquatic predators, such as
killer whales and sharks.
With respect to whether it is prudent to designate critical habitat
for the southwest Alaska DPS of the northern sea otter at the time of
listing, such a designation would not be expected to increase the
threat to the DPS. However, information sufficient to perform the
required analysis of the impacts of the designation of critical habitat
is lacking at this time. Further, at this time the identification of
specific physical and biological features and specific areas for
consideration as critical habitat is complicated by uncertainty as to
the extent to which habitat may or may not be a limiting factor for
this DPS, resulting in uncertainty as to which specific areas might be
essential to the conservation of the species and thus meet a key aspect
of the definition of critical habitat. Consequently, the designation of
critical habitat for the southwest DPS of the northern sea otter is not
determinable at this time. In the Public Comments Solicited section of
this proposed rule we specifically request information regarding
critical habitat. If the listing of the DPS becomes final, we then will
consider whether to propose the designation of critical habitat.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against taking and harm are
discussed below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) requires Federal agencies to confer informally with us
on any action that is likely to jeopardize the continued existence of a
species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. If a species is subsequently
listed, section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with us under the provisions of
section 7(a)(2) of the Act.
Several Federal agencies are expected to have involvement under
section 7 of the Act regarding the southwest Alaska DPS of the northern
sea otter. The National Marine Fisheries Service may become involved
through their permitting authority for crab and ground fisheries. The
Environmental Protection Agency may become involved through their
permitting authority for the Clean Water Act. The U.S. Corps of
Engineers may become involved through its responsibilities and
permitting authority under section 404 of the Clean Water Act and
through future development of harbor projects. Minerals Management
Service may become involved through administering their programs
directed toward offshore oil and gas development. The Denali Commission
may be involved through their potential funding of fueling and power
generation projects. The U.S. Coast Guard may become involved through
their development of docking facilities.
The listing of the southwest Alaska DPS of the northern sea otter
would subsequently lead to the development of a recovery plan for this
species. Such a plan will bring together Federal, State, local agency,
and private efforts for the conservation of this species. A recovery
plan establishes a framework for interested parties to coordinate
activities and to cooperate with each other in conservation efforts.
The plan will set recovery priorities, identify responsibilities, and
estimate the costs of the tasks necessary to accomplish the
[[Page 6619]]
priorities. It will also describe site-specific management actions
necessary to achieve the conservation of the southwest Alaska DPS of
the northern sea otter. Additionally, pursuant to Section 6 of the Act,
we would be able to grant funds to the State of Alaska for management
actions promoting the conservation of the southwest Alaska DPS of the
northern sea otter.
Section 9 of the Act prohibits take of endangered wildlife. The Act
defines take to mean harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect or to attempt to engage in any such conduct.
However, the Act also provides for the authorization of take and
exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth
in section 10 of the Act. For federally funded or permitted activities,
take of listed species may be allowed through the consultation process
of section 7 of the Act. The Service has issued regulations (50 CFR
17.31) that generally apply to threatened wildlife the prohibitions
that section 9 of the Act establishes with respect to endangered
wildlife. Our regulations for threatened wildlife also provide that a
``special rule'' under section 4(d) of the Act can be tailored for a
particular threatened species. In that case, the general regulations
for some section 9 prohibitions do not apply to that species, and the
special rule contains the prohibitions, and exemptions, necessary and
appropriate to conserve that species. The Act provides for an exemption
for Alaska Natives in section 10(e) that allows any Indian, Aleut, or
Eskimo who is an Alaskan Native who resides in Alaska to take a
threatened or endangered species if such taking is primarily for
subsistence purposes. Non-edible by-products of species taken pursuant
to section 10(e) may be sold in interstate commerce when made into
authentic native articles of handicrafts and clothing. It is also
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Further, it is illegal for any
person to commit, to solicit another person to commit, or cause to be
committed, any of these acts. Certain exceptions to the prohibitions
apply to our agents and State conservation agencies.
The Act provides for the issuance of permits to carry out otherwise
prohibited activities involving threatened or endangered wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.22 and 17.23. Such permits are available for scientific
purposes, to enhance the propagation or survival of the species, and/or
for incidental take in the course of otherwise lawful activities.
Permits are also available for zoological exhibitions, educational
purposes, or special purposes consistent with the purposes of the Act.
Requests for copies of the regulations on listed species and inquiries
about prohibitions and permits may be addressed to the Endangered
Species Coordinator, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, Alaska 99503.
It is our policy, published in the Federal Register on July 1, 1994
(59 FR 34272), to identify, to the maximum extent practicable at the
time a species is listed, those activities that would or would not
likely constitute a violation of section 9 of the Act. The intent of
this policy is to increase public awareness of the effects of the
listing on proposed and ongoing activities within a species' range.
For the southwest DPS of the northern sea otter, we believe that,
based on the best available information, the following activities are
unlikely to result in a violation of section 9, provided these
activities are carried out in accordance with existing regulations and
permit requirements:
(1) Possession, delivery, or movement, including interstate
transport of authentic native articles of handicrafts and clothing made
from northern sea otters that were collected prior to the date of
publication in the Federal Register of a final regulation adding the
southwest Alaska DPS of the northern sea otter to the list of
threatened species;
(2) Sale, possession, delivery, or movement, including interstate
transport of authentic native articles of handicrafts and clothing made
from sea otters from the southwest Alaska DPS that were taken and
produced in accordance with section 10(e) of the Act;
(3) Any action authorized, funded, or carried out by a Federal
agency that may affect the southwest Alaska DPS of the northern sea
otter, when the action is conducted in accordance with an incidental
take statement issued by us under section 7 of the Act;
(4) Any action carried out for the scientific research or to
enhance the propagation or survival of the southwest Alaska DPS of the
northern sea otter that is conducted in accordance with the conditions
of a section 10(a)(1)(A) permit; and
(5) Any incidental take of the southwest Alaska DPS of the northern
sea otter resulting from an otherwise lawful activity conducted in
accordance with the conditions of an incidental take permit issued
under section 10(a)(1)(B) of the Act. Non-Federal applicants may design
a habitat conservation plan (HCP) for the species and apply for an
incidental take permit. HCPs may be developed for listed species and
are designed to minimize and mitigate impacts to the species to the
greatest extent practicable.
We believe the following activities could potentially result in a
violation of section 9 and associated regulations at 50 CFR 17.3 with
regard to the southwest DPS of the northern sea otter; however,
possible violations are not limited to these actions alone:
(1) Unauthorized killing, collecting, handling, or harassing of
individual sea otters;
(2) Possessing, selling, transporting, or shipping illegally taken
sea otters or their pelts;
(3) Unauthorized destruction or alteration of the nearshore marine
benthos that actually kills or injures individuals sea otters by
significantly impairing their essential behavioral patterns, including
breeding, feeding or sheltering; and,
(4) Discharge or dumping of toxic chemicals, silt, or other
pollutants (i.e., sewage, oil, pesticides, and gasoline) into the
nearshore marine environment that actually kills or injures individuals
sea otters by significantly impairing their essential behavioral
patterns, including breeding, feeding or sheltering.
We will review other activities not identified above on a case-by-
case basis to determine whether they may be likely to result in a
violation of section 9 of the Act. We do not consider these lists to be
exhaustive and provide them as information to the public. You may
direct questions regarding whether specific activities may constitute a
violation of section 9 to the Field Supervisor, U.S. Fish and Wildlife
Service, Anchorage Ecological Services Field Office, 605 West 4th
Avenue, Room G-62, Anchorage, Alaska 99501.
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to this DPS;
(2) The location of any additional populations of this DPS;
[[Page 6620]]
(3) The specific physical and biological features to consider, and
specific areas that meet the definition of critical habitat and that
should or should not be considered for critical habitat designation as
provided by section 4 of the Act;
(4) Additional information concerning the range, distribution, and
size of this DPS; and
(5) Current or planned activities in the subject area and their
possible impacts on this DPS.
If you wish to comment, you may submit your comments and materials
concerning this proposal by any one of several methods, as listed above
in ADDRESSES. If you submit comments by e-mail, please submit them as
an ASCII file format and avoid the use of special characters and
encryption. Please include ``Attn: [RIN 1018-AI44]'' and your name and
return address in your e-mail message. If you do not receive a
confirmation from the system that we have received your e-mail message,
contact us directly by calling our Marine Mammals Management Office at
phone number 907/786-3800. Please note that this e-mail address will be
closed out at the termination of the public comment period.
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. There also may be circumstances in which
we would withhold from the rulemaking record a respondent's identity,
as allowable by law. If you wish us to withhold your name and/or
address, you must state this prominently at the beginning of your
comment. Anonymous comments will not be considered. We will make all
submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.
We will take into consideration your comments and any additional
information received on this DPS when making a final determination
regarding this proposal. The final determination may differ from this
proposal based upon the information we receive.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will solicit the expert opinions of at least three
appropriate and independent specialists for peer review of this
proposed rule. The purpose of such review is to ensure that listing
decisions are based on scientifically sound data, assumptions, and
analyses. We will send these peer reviewers copies of this proposed
rule immediately following publication in the Federal Register. We will
invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and conclusions regarding the
proposed listing of this species. We will summarize the opinions of
these reviewers in the final decision document, and we will consider
their input as part of our process of making a final decision on the
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. You may request a public hearing on this proposed rule.
Your request for a hearing must be made in writing and filed at least
15 days prior to the close of the public comment period. Address your
request to the Supervisor (see ADDRESSES section). We will schedule at
least one public hearing on this proposal, if requested, and announce
the date, time, and place of any hearings in the Federal Register and
local newspapers at least 15 days prior to the first hearing.
Clarity of the Rule
Executive Order 12866 requires agencies to write regulations that
are easy to understand. We invite your comments on how to make this
proposal easier to understand including answers to questions such as
the following: (1) Is the discussion in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the proposal? (2) Does
the proposal contain technical language or jargon that interferes with
its clarity? (3) Does the format of the proposal (groupings and order
of sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? What else could we do to make the proposal easier to
understand? Send a copy of any comments that concern how we could make
this rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C. Street NW., Washington,
DC 20240. You may also e-mail the comments to this address:
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.
[[Page 6621]]
2. Section 17.11(h) is amended by adding the following, in
alphabetical order under MAMMALS, to the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
----------------------------------------------------------- Historic range where endangered or Status When Critical Special
Common name Scientific name threatened listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
MAMMALS
* * * * * * *
Otter, northern sea................ Enhydra lutris U.S.A. (AK, WA, OR, Southwest Alaska, T .......... NA NA
kenyoni. CA). from Attu Island to
Western Cook Inlet,
incuding Bristol
Bay, the Kodiak
Archipelago, and the
Barren Islands.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: December 9, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 04-2844 Filed 2-10-04; 8:45 am]
BILLING CODE 4310-55-P