[Federal Register Volume 70, Number 152 (Tuesday, August 9, 2005)]
[Rules and Regulations]
[Pages 46367-46386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15718]



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Part VI





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Determination of 
Threatened Status and Special Rule for the Southwest Alaska Distinct 
Population Segment of the Northern Sea Otter (Enhydra lutris keny

[[Page 46366]]

oni); Final Rule and Proposed Rule

  Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / Rules 
and Regulations  
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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; Determination of 
Threatened Status for the Southwest Alaska Distinct Population Segment 
of the Northern Sea Otter (Enhydra lutris kenyoni)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine 
threatened status for the southwest Alaska distinct population segment 
of the northern sea otter (Enhydra lutris kenyoni) 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 an overall population decline of at least 55-67 
percent since the mid-1980s. In some areas within southwest Alaska, the 
population has declined by over 90 percent during this time period. 
This final rule extends the Federal protection and recovery provisions 
of the Act to this population segment.

DATES: This rule is effective on September 8, 2005.

ADDRESSES: The complete file for this final rule is available for 
inspection, by appointment, during normal business hours at the Marine 
Mammals Management Office, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska 99503.

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

SUPPLEMENTARY INFORMATION:

Background

    This section has been updated from the proposed rule to incorporate 
comments from peer reviewers, and to include new survey results 
collected in 2003 and 2004.
    The sea otter (Enhydra lutris) is a mammal in the family Mustelidae 
and it is the only species in the genus Enhydra. The overall range of 
E. lutris from northern Japan to southern California is approximately 
10,000 kilometers (km) (6,212 miles (mi)). 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. The taxonomy of sea otters is complicated by the lack of 
historical information prior to their discovery in 1741, as well as the 
population bottlenecks (reductions in genetic diversity as a result of 
small population sizes) that resulted from commercial fur harvests that 
extirpated the species throughout much of its range. Figure 1 in the 
Proposed Rule illustrates the approximate ranges of the three currently 
recognized subspecies.
    The two subspecies of northern sea otter (E. l. kenyoni and E. l. 
lutris) are separated by an expanse of open water that measures 
approximately 320 km (200 mi) between the Near Islands of the United 
States and the Commander Islands in Russia. Wide, deep-water passes 
serve as a barrier to sea otter movements (Kenyon 1969), and 
interchange between these two subspecies is considered to be low. (See 
later sections on food habits and animal movements.) Genetic analyses 
show some similarities between sea otters in the Commander Islands and 
Alaska (Cronin et al. 1996), which indicates that movements between 
these areas has occurred, at least over evolutionary/geologic time 
scales.
    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.
    It is the smallest marine mammal in the world, except for the South 
American marine otter (Lontra (= Lutra) felina) (Reidman and Estes 
1990). Adult males average 130 centimeters (cm) (4.3 feet (ft)) in 
length and 30 kilograms (kg) (66 pounds (lb)) in weight; adult females 
average 120 cm (3.9 ft) in length and 20 kg (44 lb) 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 relatively high rate of metabolism as compared to 
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), but can also occur further 
seaward. 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 species 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, grazing by abundant 
sea urchin populations creates areas of low kelp abundance, known as 
urchin barrens (Estes and Harrold 1988).
    Sea otters generally occur in shallow water areas near the 
shoreline. They

[[Page 46367]]

primarily forage in shallow water areas less than 100 meters (m) (328 
ft) in depth, and the majority of all foraging dives take place in 
waters less than 30 m (98 ft) in depth (Bodkin et al. 2004). 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). While sea otters can also be found at greater 
distances from shore, this typically occurs in areas of, or near, 
shallow water. For example, a broad shelf of shallow water extends 
several miles from shore in Bristol Bay, along the north side of the 
Alaska Peninsula. 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).
    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 equilibrium density within the habitat, movement of individual 
sea otters appears to be largely dictated by environmental and social 
factors, 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 do 
not hold territories may move greater distances between resting and 
foraging areas than territorial males (Lensink 1962, Kenyon 1969, 
Riedman and Estes 1990, Estes and Tinker 1996).
    Juvenile males (1-2 years of age) are known 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. 2003).
    Sea otter movements are also influenced by local climatic 
conditions such as storm events, prevailing winds, and in some areas, 
tidal states. 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 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 State-owned waters, which include the 
area from mean high tide to 4.8 km (3 mi) 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 rest in the water, they can also haul 
out and rest on shore (Kenyon 1969). Female sea otters typically give 
birth in the water, however, they 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 the Service's 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. Most areas that have been studied 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 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). The interval between pups is typically 1 year.
    Estes (1990) estimated population growth rates ranging from 17-20 
percent per year for four northern sea otter populations expanding into 
unoccupied habitat. While Bodkin et al. (1999) also reported similar 
population growth rates, they also note that population growth rates in 
translocated populations were significantly greater than for remnant 
populations. After the initial period of growth, populations typically 
reach an equilibrium density, 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 of the Proposed 
Rule.
    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.

[[Page 46368]]

    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 in the Proposed Rule). 
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). 
All 6 of these remnant populations grew 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 
equilibrium density (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 final 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 (see Figure 3 of the 
Proposed Rule).
    Survey methods vary in different locations. In some parts of 
southwest Alaska, sea otters have been counted from boats or aircraft 
within a narrow band of water adjacent to the shoreline; in others, 
transects 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. One way 
to make this adjustment requires an independent estimate of the actual 
number of otters present in an area, also known as ``ground-truth,'' 
combined 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, either of which may be adjusted or 
unadjusted for sea otters not detected by observers. In areas where we 
compare unadjusted sea otter counts or estimates, we assume that there 
is no significant difference between the proportion of 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 various 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 of the Proposed Rule.
    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 percent 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         1976  11,681.......................  9,215  3,709 (AUG)
 Areas.                               * 1986  6,474  2,003       7,539  2,103 (OCT)
                                               (JUN).                        Schneider (1976).
                                                                             Brueggeman et al. (1988),
                                                                             Burn and Doroff (2005).
                                                                             ...................................
                                        2000  4,728  3,023       Burn and Doroff (2005).
                                               (MAY).
South Alaska Peninsula Offshore       * 1986  13,900  6,456      Brueggeman et al. (1988),
 Areas.                          ...........   (MAR).                        Burn and Doroff (2005).
                                 ...........  14,042  5,178
                                               (JUN).
                                              17,500  5,768
                                               (OCT).
                                        2001  1,005  1,597       Burn and Doroff (2005).
                                               (APR).
South Alaska Peninsula Islands.         1962  2,195........................  Kenyon (1969).
                                        1986  2,122........................  Brueggeman et al. (1988).
                                        1989  1,589........................  DeGange et al. (1995).
                                        2001  405..........................  Burn and Doroff (2005).
South Alaska Peninsula                  1989  2,632........................  DeGange et al. (1995).
 Shoreline.                             2001  2,651........................  Burn and Doroff (2005).
Kodiak Archipelago.............         1989  13,526  2,350....  DeGange et al. (1995).
                                        1994  9,817  5,169.....  Doroff et al. (in prep.).

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                                        2001  5,893  2,630.....  Doroff et al. (in prep.).
                                        2004  6,284  1,807.....  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 2005) 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 of the Proposed Rule) 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 
throughout 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 Aleutians 
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 Aleutians. Although the maximum size 
reached by the sea otter population is unknown, a habitat-based 
computer model estimates that the population in the late-1980s may have 
numbered approximately 74,000 individuals in the Aleutians (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 Aleutians since 1965, based on a comparison of 
the 1965 and 1992 survey results. Sea otter surveys conducted from 
skiffs during the mid-1990s also indicated substantial declines at 
several islands in the western and central Aleutians (Estes et al. 
1998). It was not known at the time if these observed declines were 
representative of the entire Aleutian sea otter population or merely a 
local phenomenon.
    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 8 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, which clearly indicated 
that sea otter abundance had declined throughout the archipelago.
    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) calculated that the decline proceeded at an 
average rate of -17.5 percent per year in the Aleutians. Although 
otters 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 harvest, and sea otters were believed to have been at 
equilibrium density at most of these islands in the mid-1960s.
    Doroff et al. (2003) used skiff-based counts at six islands in the 
western and central Aleutians as ground-truth data, and calculated that 
aerial observers detected roughly 28 percent of the sea otters present. 
Adjusting for otters not detected by observers, the estimated 
population size in April 2000 was 8,742 sea otters. Additional skiff-
based surveys at these islands conducted in the summer of 2003 
indicated that the sea otter population has declined by a further 63 
percent at an estimated annual rate of 29 percent per year (Estes et 
al. 2005). If the declines at these islands are representative of the 
Aleutian archipelago as a whole, the entire population in this area may 
number as few as 3,311 individuals.
    In July 2004, we also conducted aerial surveys of sea otters at 
several islands in the eastern Aleutians using the same methods as the 
2000 survey. Due to dense fog, we were only able to survey 223 km of 
the total shoreline (62 percent). In 2000 we counted 73 otters within 
this surveyed area, but only 38 otters there in 2004; a decline of 48 
percent, at an estimated annual rate of 15 percent per year (USFWS in 
litt.). These results indicate that similar to the western and central 
Aleutians, the sea otter decline has not abated in the eastern 
Aleutians.

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 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 used in a given area. For the north Alaska Peninsula offshore 
area (Figure 4B of the Proposed Rule), 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 2005). In May 2000, we 
replicated the survey design of Brueggeman et al. (1988) using 
identical

[[Page 46370]]

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 2005).
    The largest aggregations of sea otters in May 2000 were observed in 
Port Moller. This concentration of sea otters has been described as a 
seasonal phenomenon, as surveys conducted later in the summer have not 
recorded similar numbers of sea otters (B. Murphy, Alaska Department of 
Fish and Game, in litt. 2002). To test this assumption, we conducted 
sea otter surveys in the Port Moller, Herendeen Bay, and Nelson Lagoon 
areas in May and July 2004 (USFWS in litt. 2004). Sea otter abundance 
was high during both survey periods, so it is not clear to what degree 
there may be seasonal use of these areas.
    Offshore areas on the south side of the Alaska Peninsula (Figure 4B 
of the Proposed Rule) 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 2005). 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 when surveyed in 2001 (Burn and Doroff 2005).
    Several island groups along the south side of the Alaska Peninsula 
(Figure 4C of the Proposed Rule; 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 2005), which is an 
81-percent decline from the 1986 count reported by Brueggeman et al. 
(1988). We conducted additional aerial surveys at 13 of these islands 
in May and July of 2004 using similar methods as in 2001. Sea otter 
counts at these islands declined a further 33 percent from 268 to 179 
in the past 3 years (USFWS in litt. 2004). Similar to recent surveys in 
the Aleutians, these results indicate that the sea otter population 
decline in this area has not abated.
    The southern shoreline of the Alaska Peninsula from False Pass to 
Cape Douglas (Figure 4D of the Proposed Rule) 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 2005), 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 sea otter density along the eastern end of 
the Peninsula, from Cape Douglas to Castle Cape, increased 
approximately 4 percent, from 1989 to 2001 (Burn and Doroff 2005). For 
the western end of the Peninsula from False Pass to Castle Cape, 
however, there was evidence of a population decline, with sea otter 
density falling by 35 percent over the same time period. 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. In May 2004 we 
conducted an aerial survey of Sutwick Island and counted only 23 sea 
otters along the shoreline. In May 2001 we counted 73 otters in this 
area, which is further evidence that the sea otter decline in southwest 
Alaska has not abated (USFWS in litt).
    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 sea otter population for the 
entire Alaska Peninsula using the most recent survey data, 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.

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 of the Proposed Rule), 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.). 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. prep.), which is a 
40-percent decline in comparison to the 1994 estimate and a 56-percent 
decline from the 1989 estimate.
    In summer 2004 we surveyed the Kodiak archipelago using the same 
methods as in 1994 and 2001 and estimated the current population size 
at 6,284 sea otters. While this represents a slight increase since 
2001, the estimates are not significantly different from one another (Z 
= 0.24, p = 0.81; Doroff et al. in prep.). Although these results 
suggest that, in contrast to the Aleutian archipelago and Alaska 
Peninsula study areas, the sea otter population in the Kodiak 
archipelago likely has not declined in the past several years; the 
current estimate remains 36 percent lower than in 1994, and 54 percent 
lower than in 1989.

Kamishak Bay

    Kamishak Bay is located on the west side of lower Cook Inlet, north 
of Cape Douglas (Figure 4D of the Proposed Rule). In the summer of 
2002, the U.S. Geological Survey (USGS), Biological Resources 
Discipline conducted an aerial survey of lower Cook Inlet and the

[[Page 46371]]

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 geographic extent and magnitude of declines 
within those areas. 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 from survey data 
collected 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 current estimate of the size of the southwest Alaska population 
of the northern sea otter, which includes the 2004 estimate for the 
Kodiak archipelago, is 41,865 animals (Table 2). This estimate is based 
on range-wide survey information collected from 2000-2004, and is 
adjusted for animals not detected. As recent site-specific surveys 
indicate the decline has not abated in the Aleutian archipelago and 
south Alaska Peninsula study areas, it is possible that the current 
population size in 2004 is actually lower.

                   Table 2.--Recent 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 Peninsula Offshore            2000        4,728       11,253  Burn and Doroff (2005).
 Areas.
South Alaska Peninsula Offshore            2001        1,005        2,392  Burn and Doroff (2005).
 Areas.
South Alaska Peninsula Shoreline..         2001      a 2,190        5,212  Burn and Doroff (2005).
South Alaska Peninsula Islands....         2001          405          964  Burn and Doroff (2005).
Unimak Island.....................         2001           42          100  Burn and Doroff (2005).
Kodiak Archipelago................         2004  ...........        6,284  Doroff et al. (in prep.).
Kamishak Bay......................         2002  ...........        6,918  USGS Unpublished data.
                                   --------------
    Total.........................  ...........  ...........      41,865
----------------------------------------------------------------------------------------------------------------
\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 to 128,650 
from Calkins and Schneider (1985), the current estimate of 
approximately 41,865 sea otters is 52,185 to 86,785 lower, which is 55 
to 67 percent less than the estimate for 1976.

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) and Prince William Sound 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). In the first 20 years following translocation, these populations 
grew in numbers and expanded their range (Pitcher 1989).

[[Page 46372]]

The most recent survey of southeast Alaska, conducted in the summers of 
2002 and 2003, estimated the sea otter population at just over 9,000 
individuals (USGS in litt. 2003). Comparing this survey with skiff 
survey data from the late 1980s, it appears that further range 
expansion and population growth in southeast Alaska has not occurred in 
the past decade.
    Sea otters from Alaska also were translocated to Washington, 
Oregon, and 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 743 in Washington and 2,000 in 
British Columbia (Jameson and Jefferies 2004; Watson et al. 1997). 
Although these populations, as well as sea otters in southeast Alaska, 
are at least in part 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 Distinct 
Vertebrate Population Segment) 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 were 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 on August 22, 2000 (65 FR 67343). The Center for 
Biological Diversity (Center) filed a petition to list the Aleutian 
population of the northern sea otter as endangered on October 26, 2000. 
Although the petition referred to it as the ``Aleutian population,'' 
the verbal description of the geographic extent corresponded to the 
southwest Alaska DPS. 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 at that time 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 of the Proposed Rule.
    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) (March 28, 2002). 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 on February 1, 2002, informing them 
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).
    The Center filed a second Notice of Intent to sue on May 5, 2003, 
and on December 4, 2003, the Center and the Turtle Island Restoration 
Network (TIRN) filed a lawsuit against Assistant Secretary for Fish and 
Wildlife and Parks Craig Manson, Secretary of the Interior Gale Norton, 
and the U.S. Fish and Wildlife Service for failure to comply with non-
discretionary provisions of the Act. Specifically, the plaintiffs 
challenged the defendants' determination that processing the Center's 
October 26, 2000, petition was ``warranted but precluded'' by higher 
listing actions. Plaintiffs also challenged the defendants' failure to 
issue 90-day and 12-month findings on the petition, and for failure to 
implement an effective system to monitor the status of the southwest 
Alaska DPS. Finally, the plaintiffs challenged the defendants' adoption 
and implementation of their 1996 Petition Management Guidance policy 
for processing petitions that request the listing of candidate species.
    On February 11, 2004, we published the proposed rule to list the 
southwest Alaska DPS of the northern sea otter as threatened (69 FR 
6600). On May 13, 2004, the December 4, 2003, lawsuit by the Center and 
TIRN was voluntarily dismissed.

Summary of Comments and Recommendations

    In the February 11, 2004, proposed rule, we requested all 
interested parties to submit factual reports, information, and comments 
that might contribute to development of a final determination. A 120-
day public comment period closed on June 10, 2004. We contacted 
appropriate Federal agencies, State agencies, county and city 
governments, Alaska Native Tribes and tribal organizations, scientific 
organizations,

[[Page 46373]]

affected landowners and other interested parties to request comments. 
The Secretary personally announced this action and issued a press 
release on February 5, 2004, notifying the public of the proposed 
listing and comment period. Newspaper articles appeared in the 
Anchorage Daily News and Los Angeles Times on February 6, 2004, that 
also notified the public about the proposed listing and comment period. 
We requested 5 peer reviewers to comment on the proposed rule in 
compliance with our policy, published in the Federal Register on July 
1, 1994 (59 FR 34270). We held public meetings at 6 locations in 
Alaska: Cold Bay (May 3, 2004), King Cove (May 4, 2004), Anchorage (May 
13, 2004), Kodiak (May 19, 2004), Sand Point (May 24, 2004), and 
Unalaska (May 27, 2004). These meetings were attended by approximately 
50 people in total.
    We received requests for public hearings in Kodiak, Unalaska, Sand 
Point, and Dillingham, Alaska, and held one public hearing in Kodiak, 
Alaska on May 19, 2004, immediately following a public meeting. We 
published an announcement of the public hearing in the Federal Register 
on May 5, 2004 (69 FR 25055), the Anchorage Daily News on May 9, 2004, 
and the Kodiak Daily Mirror on May 14, 17, 18, and 19, 2004. The public 
hearing was attended by 18 individuals in person, and 5 more by 
teleconference.
    In accordance with Secretarial Order 3225 regarding the Act and 
subsistence uses in Alaska, we engaged in government-to-government 
consultation with Alaska Native tribes. Since 1997, we have signed 
cooperative agreements annually with The Alaska Sea Otter and Steller 
Sea Lion Commission (TASSC) to fund their activities. As a tribally-
authorized Alaska Native Organization, TASSC represents the interests 
of sea otter hunters throughout the State of Alaska. We attended TASSC 
board meetings during the preparation of the proposed rule and public 
comment period, regularly briefing their board of commissioners and 
staff on relevant issues. In addition to working closely with TASSC, we 
sent copies of the proposed rule to 52 Alaska Native Tribal Councils 
specifically requesting their comments on this listing action.
    During the public comment period, we received a total of 6,860 
comments by letter (27), facsimile (4), e-mail (6,819), and public 
hearing testimony (10). We received comments from Alaska Native Tribes 
and tribal organizations, Federal commissions, State agencies, local 
governments, commercial fishing organizations, conservation 
organizations, and private citizens. Seventeen commenters opposed the 
listing, and 6,831 supported it. The remaining 12 commenters expressed 
neither opposition or support for the listing, but voiced concerns 
about the possible effects of listing. The vast majority of comments 
were the result of an organized e-mail campaign that produced 6,787 
identical comments in support of the listing. Most of the comments that 
were opposed to the listing were from residents of southwest Alaska. 
Several comments were received after the public comment period closed.
    We revised the final rule to reflect comments and information we 
received during the comment period. We address substantive comments 
concerning the rule below. Comments of a similar nature are grouped 
together (referred to as ``Issues'' for the purpose of this summary).

Issue 1: Sea Otter Population Decline

    Comment 1: One commenter stated that the current population level 
of sea otters in southwest Alaska does not warrant listing under the 
Act. Two other commenters noted that following protection from 
commercial hunting in 1911, the sea otter population recovered from as 
low as 1,000-2,000 individuals.
    Our Response: Our determination that the southwest Alaska DPS of 
the northern sea otter warrants listing as threatened is based on the 
observed declining population trend, rather than the absolute number of 
sea otters remaining. The definition of a threatened species is one 
that is likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. Recent surveys 
conducted in 2003 and 2004 indicate that the population decline has not 
abated in several areas within southwest Alaska. If the decline 
continues at the observed rates, the population may become extirpated 
throughout portions of its range within the next decade (Estes et al. 
2005), at which point the DPS may be in danger of extinction. 
Therefore, the southwest Alaska DPS of the northern sea otter meets the 
definition of threatened, as it is likely to become endangered in the 
foreseeable future.
    Although sea otters rebounded from an estimated 1,000-2,000 
individuals after the cessation of commercial hunting, those remaining 
otters were distributed in 13 isolated colonies. The current 
distribution of sea otters is different in that they occur throughout 
their former range, but at extremely low densities in most areas. 
Otters are now absent, or nearly so at some of the smaller islands in 
the Aleutian archipelago to the point where it is possible that Allee 
effects (reduced productivity at low population densities) may occur 
(Estes et al. 2005).
    The recovery of sea otters following the cessation of commercial 
hunting demonstrated that the species has the potential for recovery 
once the cause of its decline has been removed. As the cause of the 
current decline is not known with certainty, the future recovery of the 
southwest Alaska DPS of the northern sea otter is likewise uncertain.
    Comment 2: Several commenters state that sea otters have not really 
declined, they have simply moved to other areas.
    Our Response: Aerial surveys that documented the geographic extent 
and magnitude of the sea otter decline covered the vast majority of 
available sea otter habitat in southwest Alaska, so it is highly 
unlikely that there has been a redistribution of otters within the 
region. As sea otters typically inhabit relatively small home ranges, 
it is also unlikely that there has been such a large-scale emigration 
of animals outside southwest Alaska. The magnitude of the decline is 
estimated to be more than 50,000 otters, so it is highly unlikely that 
redistribution on this scale would go unnoticed. Survey data in 
adjacent areas, such as the Commander Islands, Russia to the west, and 
Kachemak Bay, Kenai Fiords, and Prince William Sound to the east, do 
not show population increases that would account for animal movements. 
See Population Trends of Sea Otters in Southwest Alaska.
    Comment 3: Several commenters were critical of the survey data used 
to estimate the sea otter population size and trend. Specific 
criticisms included the age of the survey data used, the length of time 
between surveys, differences in timing of surveys, differences in 
methods, and the variability of the estimates.
    Our Response: We used the best scientific information available to 
estimate sea otter population size and trend. Although some survey data 
is now 3-4 years old, more recent surveys in 2003 and 2004 indicate 
that the sea otter population decline has not abated. Although the 
length of time between surveys makes it difficult to estimate the onset 
of the population decline, it does not affect our ability to estimate 
the magnitude of the decline. Differences in timing of surveys is 
likely not a factor because study areas were large enough that movement 
of individual otters would have minimal effect on the overall 
population estimate. To the greatest extent possible, aerial surveys

[[Page 46374]]

of sea otters in southwest Alaska have been conducted using similar 
methods to earlier surveys to allow for direct comparison of results. 
While some of the sea otter population estimates (such as the pre-
decline surveys along the Alaska Peninsula) have considerable 
variability, the magnitude of the decline in these areas is so great 
that the likelihood that the population has not declined is exceedingly 
small.
    Comment 4: Several commenters questioned whether sea otters have 
declined in some areas within southwest Alaska. Three commenters stated 
that there has been no decline of sea otters in the Kodiak archipelago, 
and five commenters cited survey data that suggests the population at 
Unalaska Island has been stable for the past 4 years.
    Our Response: The results of our summer 2004 aerial survey of the 
Kodiak archipelago indicate that the sea otters in this area may not 
have continued to decline since 2001; however, the two estimates are 
not significantly different statistically. The current estimate remains 
36 percent lower than in 1994, and 54 percent lower than in 1989 
(Doroff et al. in prep.).
    Doroff et al. (2003) estimated that the onset of the decline in the 
Aleutians occurred in the late 1980s or early 1990s. In 1992, observers 
recorded 554 sea otters along the shoreline of Unalaska island. In 
2000, only 374 otters were observed, which is a decline of 32 percent 
over the intervening 8-year period. By the time that skiff survey data 
from Unalaska were collected beginning in 1999, the majority of the 
decline had already occurred. It is not possible to determine sea otter 
population trends from the Unalaska skiff survey data, as it has not 
been standardized by the amount of survey effort to allow for a valid 
comparison over time.
    Comment 5: Several commenters stated that the sea otters have 
exceeded the carrying capacity of the environment, and that decline is 
part of a natural cycle. Some commenters stated that archaeological 
data shows that changes in sea otter abundance have occurred over time.
    Our Response: As sea otters recolonized their former range during 
the 20th century, the typically observed pattern was for initial rapid 
population growth, followed by a period of decline until the population 
reached equilibrium density. The driving factor in the subsequent 
decline was prey scarcity, which led to either starvation and/or 
emigration of otters. If sea otters had in fact exceeded the carrying 
capacity of the environment, we would expect to see fewer prey and more 
starving sea otters, neither of which have been observed. Contrary to 
this expectation, the biomass of sea urchins, the preferred prey 
species of sea otters in the Aleutians, is significantly greater in 
areas where otters have declined, and sea otter carcasses are 
relatively scarce (Estes et al. 1998).
    We are aware of some recent archaeological information from a small 
number of sites that indicates the presence of sea otter remains in 
midden sites has fluctuated over long time scales; however, several 
interpretations are possible from these data. For example, it is not 
known if the abundance of items in these sites is a function of their 
abundance in the environment or hunter selectivity. It is also not 
clear if cultural uses of sea otters may have varied over time, 
resulting in changes in the deposition of bones present in middens. For 
example, if otters were harvested for their pelts only and the 
remainder of the carcass were not retrieved, it is unlikely that their 
bones would be represented in midden sites.
    Comment 6: One commenter stated that the use of counts in some 
areas and estimates in other areas was confusing.
    Our Response: We revised the rule to clarify the difference between 
the counts and estimates in an earlier section (see Population Trends 
of Sea Otters in Southwest Alaska). While there are differences between 
the two types of surveys, in all cases we compare counts with counts 
and estimates with estimates to determine sea otter population trends.
    Comment 7: One commenter stated that there are no reliable 
estimates of pre-decline abundance of sea otters in southwest Alaska.
    Our Response: We acknowledge that the data record for sea otters in 
southwest Alaska is sparse, and that with the exception of Calkins and 
Schneider (1985), there are no comprehensive population estimates for 
the pre-decline population. Burn et al. (2003) used computer models to 
estimate the carrying capacity and pre-decline abundance of sea otters 
in the Aleutian islands, and their result was comparable to that of 
Calkins and Schneider (1985). Regardless of the lack of a comprehensive 
pre-decline estimate, comparisons between baseline (1986-1992) and 
recent (2000-2001) surveys clearly indicate that the sea otter 
population in southwest Alaska has undergone a substantial decline. 
Furthermore, aerial and skiff-based surveys conducted in 2003 and 2004 
indicate that the decline has not abated throughout much of the region.
    Comment 8: One commenter stated that there appears to be different 
rates of decline between the different study areas within southwest 
Alaska.
    Our Response: This observation is correct. In addition to 
differences in the overall magnitude of the decline between study 
areas, there are also differences in the estimated annual rates of 
decline between regions as well as time periods. For example, Doroff et 
al. (2003) estimated that sea otters declined at an annual rate of 17.5 
percent per year during the 1990s. During the same time period, sea 
otters in the Kodiak archipelago declined at an estimated rate of 6-7 
percent per year (Doroff et al. in prep.). More recently, otters in the 
western and central Aleutians have declined by an estimated 29 percent 
per year between 2000 and 2003 (Estes et al. 2005). As the cause of the 
decline is not known with certainty, it is unclear why there are 
differences in the estimated rates of decline. That the rates are 
different does not alter the fact that the sea otter population has 
declined significantly throughout much of southwest Alaska.

Issue 2: DPS Justification

    Comment 9: Two commenters stated that the sea otter population in 
southwest Alaska does not meet the test of discreteness because it is 
not genetically distinct from translocated populations. One commenter 
also noted that studies indicate there is further genetic 
differentiation of sea otters within southwest Alaska. This commenter 
also stated that there is no long-term genetic separation in 
evolutionary time, and that there is nothing genetically special about 
sea otters in southwest Alaska. Lastly, this commenter stated that the 
proposed rule did not consider all available genetics information.
    Our Response: Genetic distinctness may be important in recognizing 
some DPS's, but this kind of evidence is not specifically required in 
order for a DPS to be recognized. Genetic information can play two 
different roles in the evaluation of whether a population should be 
recognized as a distinct vertebrate population segment for the purposes 
of listing under the Act. First, quantitative genetic information may, 
but is not required to, provide evidence that the population is 
markedly separated from other populations and thus meets the DPS 
policy's criterion of being discrete. The DPS policy's standard for 
discreteness is meant to allow an entity given DPS status under the Act 
to be adequately defined and

[[Page 46375]]

described. The standard adopted is believed to allow entities 
recognized under the Act to be identified without requiring an 
unreasonably rigid test for distinctness. At the same time, the 
standard does not require absolute separation of a DPS from other 
members of its species, because this can rarely be demonstrated in 
nature for any population of organisms. Second, genetic characteristics 
that differ markedly from other populations may be one consideration in 
evaluating the DPS's biological and ecological significance to the 
taxon in which it belongs.
    We considered all available genetic information in our discreteness 
evaluation. Some of these studies were specifically conducted to look 
at population structuring, while others were designed to look at the 
amount of genetic variability of both remnant and translocated sea 
otter populations. All existing sea otter populations have experienced 
at least one genetic bottleneck caused by the commercial fur harvests 
from 1741 to 1911. Translocated populations experienced a second 
bottleneck, as it is likely that only an unknown portion of the 
available genetic diversity was sampled in the process of moving sea 
otters into other areas (Larson et al. 2002). Furthermore, we can 
consider an entity eligible for listing if the entity meets the third 
factor of our DPS policy: 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 of its 
historic range.
    Rather than rely on genetic information alone to determine if sea 
otters in southwest Alaska are markedly separated from other 
populations, we gave considerable weight to the work of Gorbics and 
Bodkin (2001), who followed the phylogeographic approach of Dizon et 
al. (1992) to identify stock structure. We believe that this approach, 
which considers multiple lines of evidence including distribution, 
population response, morphology, and genetics, provides a more robust 
assessment of separation than any single technique alone.
    Comment 10: One commenter stated that morphological differences 
between sea otters may reflect differences in environmental conditions, 
rather than genetic differences.
    Our Response: We agree with this observation, which is one reason 
we did not base our determination of discreteness for the DPS on 
morphological information alone. As outlined in our response to comment 
9, we relied upon a method that considered multiple types of 
information including morphology, genetics, and geographic distribution 
(Dizon et al. 1992).
    Comment 11: One commenter and one peer reviewer questioned whether 
Cook Inlet constitutes a barrier to sea otter movements.
    Our Response: As the historical distribution of sea otters prior to 
the onset of commercial fur harvests in 1741 included ice-free waters 
of the Pacific rim from northern Japan to Baja, Mexico, it is clear 
that expanses of deep water such as Cook Inlet do not constitute an 
impenetrable barrier to animal movements. Available survey information 
suggests that this may not be a common occurrence, however. In 
accordance with our DPS policy, absolute reproductive isolation is not 
a prerequisite to recognition of a DPS. This would be an impracticably 
stringent standard, and one that would not be satisfied even by some 
recognized species that are known to sustain a low frequency of 
interbreeding with related species.
    Comment 12: One commenter stated that the Service subdivided the 
Alaska population into three population stocks under the MMPA in order 
to invoke the Act and list sea otters in southwest Alaska as a DPS.
    Our Response: The Service initially proposed the identification of 
three stocks of sea otters in Alaska in March 1998 (63 FR 10936). The 
preparation of three draft stock assessment reports occurred prior to 
both the initial publication of information about the sea otter decline 
in the Aleutians (Estes et al. 1998) and completion of aerial surveys 
that determined the geographic extent and magnitude of the decline. Our 
proposal of three sea otter stocks in 1998 was challenged by the Alaska 
Sea Otter Commission (ASOC, name now changed to TASSC), an Alaska 
Native Organization, in accordance with Section 117(b)(2) of the MMPA. 
The Service and ASOC entered into a memorandum of agreement to resolve 
this disagreement. After additional genetic analysis addressing the 
issue of stock identification was completed, in March 2002 we once 
again proposed the identification of three stocks of sea otters in 
Alaska (67 FR 14959). ASOC did not challenge the proposal, and we 
finalized the stock assessment reports in August 2002 (67 FR 62979). 
The identification of three stocks of sea otters in Alaska was based on 
the best available scientific information, that had been published in 
peer-reviewed scientific journals and was reviewed and approved by the 
Alaska Regional Scientific Review Group that advises the Service on our 
stock assessment reports.
    Comment 13: One commenter stated that the sea otter population in 
southwest Alaska does not meet the test of significance because other 
genetic information suggests other population groupings are possible.
    Our Response: This comment cited studies that indicate there is a 
degree of genetic similarity between sea otters in the Commander 
Islands, Russia, and California with otters in southwest Alaska. We 
relied on the most recent and generally scientifically accepted 
taxonomic classification of the sea otter by Wilson et al. (1991) to 
determine the significance of the southwest Alaska DPS to both the 
species (Enhydra lutris) and the subspecies (Enhydra lutris kenyoni). 
The loss of this population would result in a significant gap of over 
2,500 km (1,552 miles) in the range of both the species and subspecies.
    Criteria for judging the significance of a DPS includes, but is not 
limited to, the four examples listed in our DPS policy (see Distinct 
Vertebrate Population Segment). Of the 11 surviving remnant populations 
present in 1911, 6 occurred within the range of the southwest Alaska 
DPS. Although otters were translocated from Amchitka Island, they were 
most likely descended from only one remnant colony. Therefore we 
believe the extinction of this DPS would constitute a loss of a 
significant portion of the genetic diversity of the taxon.

Issue 3: Causes of the Decline

    Comment 14: Several commenters stated that the cause of the decline 
is unknown. Other commenters stated that the decline was not caused by 
human activities, and one commenter stated that killer whales are not 
responsible for the decline.
    Our Response: We agree that the cause of the decline is not known 
with certainty. Although there is still considerable disagreement 
within the scientific community, the weight of evidence at this time 
suggests that the cause of the decline may be increased predation by 
killer whales. It is not a requirement for listing under the Act that 
the threat to a species be caused by human activities, nor is it a 
requirement that the cause be known at the time of listing.
    Comment 15: One commenter stated that none of the five factors 
under the Act are applicable in this instance.
    Our Response: The third factor in the five factor analysis 
identified in section 4(a)(1) of the Act is Disease or Predation. As 
stated in our response to comment 14, the best available scientific 
information suggests that the cause of

[[Page 46376]]

the decline may be predation by killer whales, so this factor is 
applicable to the sea otter decline.
    The fourth factor in the five factor analysis is the Inadequacy of 
Existing Regulatory Mechanisms. The MMPA of 1972 is the primary 
existing statute that protects sea otters in U.S. waters, yet the 
southwest Alaska DPS of sea otters has declined despite these existing 
protections. Additional provisions that would regulate subsistence 
harvest and minimize incidental take in fisheries are not likely to 
help conserve the DPS, as the impact of these factors is believed to be 
negligible.
    The remaining three factors in the five factor analysis (Habitat, 
Overutilization, and Other Natural or Manmade factors), while likely 
not causes of the current decline, could become threats to the DPS. If 
the current population trend continues, sea otters may disappear from 
parts of the range of the DPS, and the remaining areas of high 
concentration may be more vulnerable to catastrophic events such as 
disease epidemics and oil spills.
    Comment 16: Several commenters expressed concern over the impacts 
of a variety of human activities, including commercial fisheries, fish 
waste from processors, oil spills, and contaminants.
    Our Response: As stated in our response to comment 15, we do not 
believe that these activities have played a significant role in the sea 
otter decline in southwest Alaska, and do not pose an immediate threat 
to the DPS. We anticipate that these factors will be more fully 
considered during the development of a recovery plan.

Issue 4: Threatened vs. Endangered Status

    Comment 17: There were 6,814 commenters who stated that the 
southwest Alaska DPS of the northern sea otter should be listed as 
endangered rather than threatened. Although these commenters did not 
express a rationale for listing at the endangered level, one other 
commenter stated that the magnitude of the decline in the Aleutian 
islands, which constitute a ``significant portion of the range,'' 
warrants listing the DPS as endangered.
    Our Response: The southwest Alaska DPS contains areas with diverse 
population trends, including: (1) The Aleutians and portions of the 
Alaska Peninsula that have declined precipitously and are continuing to 
decline; (2) the Kodiak archipelago, which has declined overall but not 
during the past 3 years; and (3) Port Moller and Kamishak Bay, which do 
not appear to have declined, and continue to support high 
concentrations of sea otters that have the potential to recolonize the 
rest of the DPS. The population trend in the Aleutian archipelago, 
which constitutes approximately 30 percent of the available habitat 
within the range of the DPS, is a cause for concern: The continuation 
of the current trends could lead to the loss of all of the otters in 
that area in the foreseeable future. Although that loss would not 
result in the extinction of the DPS, it might put the DPS in danger of 
extinction at that time (see Conclusion of Status Evaluation). 
Therefore, a designation of threatened status is most appropriate for 
the southwest Alaska DPS of the northern sea otter.

Issue 5: Subsistence Harvest

    Comment 18: Several commenters stated that the subsistence harvest 
of sea otters by Alaska Natives is contributing to the sea otter 
decline, and that the removal of 100 otters per year from the 
population is not prudent. Several other commenters stated that the 
subsistence harvest is not contributing to the decline.
    Our Response: The best available scientific information does not 
indicate that the subsistence harvest has had a major impact on the 
southwest Alaska DPS of the northern sea otter. Some of the largest 
observed sea otter declines have occurred in areas where subsistence 
harvest is either nonexistent (the Near and Rat islands in the 
Aleutians) or extremely low (the Shumagin and Pavlof islands). The 
majority of the subsistence harvest in southwest Alaska occurs in the 
Kodiak archipelago, where the level of subsistence harvest ranged from 
0.4-1.3 percent of the estimated population size from 1989'2001 (Doroff 
et al. in prep.). Given the estimated population growth rate of 10 
percent per year estimated for the Kodiak archipelago by Bodkin et al. 
(1999), we would expect that these harvest levels by themselves would 
not cause a population decline.
    Section 10(e) of the Act provides an exemption that allows Alaska 
Natives to take endangered or threatened species for subsistence 
purposes. The Service may only prescribe regulations on subsistence 
harvest if we determine that such taking materially and negatively 
affects the endangered or threatened species. Areas within the 
southwest Alaska DPS with the steepest population declines, such as the 
Aleutian islands, have virtually no subsistence harvest due to minimal 
human habitation. The majority of the subsistence harvest occurs in the 
Kodiak archipelago, where the harvest has been well below the estimated 
population growth rate. Given the geographic distribution and historic 
levels of the subsistence harvest relative to the size of the sea otter 
population, we do not believe the harvest is materially and negatively 
affecting the DPS at this time. If the sea otter population continues 
to decline in southwest Alaska, however, it is possible that the 
harvest of 100 otters per year could materially and negatively impact 
the remaining population, and regulation of the harvest would be 
warranted.
    Comment 19: One commenter stated that the subsistence harvest 
should be managed. Conversely, several commenters expressed concern 
that the rights of Alaska Natives to take sea otters for subsistence 
should be protected.
    Our Response: In order to regulate the subsistence harvest of sea 
otters by Alaska Natives, the Secretary would have to make a 
determination that the harvest was materially and negatively impacting 
the DPS, and promulgate regulations under Section 10(e)(4) of the Act. 
In addition, once it is listed as threatened under the Act, the 
southwest Alaska stock of the northern sea otter will automatically be 
considered ``depleted'' under the MMPA, and the Secretary could 
prescribe regulations of the subsistence harvest under section 
101(b)(3) of the MMPA. In order to do so, the Secretary would be 
responsible for demonstrating that such regulations are ``supported by 
substantial evidence on the basis of the record as a whole.'' As stated 
in the response to Comment 18, we do not believe that the subsistence 
harvest poses an immediate threat to the southwest Alaska DPS; 
therefore, regulation of the harvest is not warranted at this time.
    Comment 20: Several other commenters expressed concern that listing 
under the Act may result in the prohibition on export of authentic 
Native handicrafts made from sea otters.
    Our Response: Our regulations at 50 CFR 17.31 of the Act outline 
prohibited activities, including import or export of listed species 
from the United States. As we do not believe the current level of 
subsistence harvest poses a threat to the southwest Alaska DPS, in 
today's Federal Register, we proposed the promulgation of a special 
rule under Section 4(d) of the Act that would align the provisions of 
the Act relating to the creation, shipment, and sale of the authentic 
native handicrafts and clothing by Alaska Natives with what is already 
allowed under the MMPA. Export for commercial purposes is prohibited 
under both the MMPA and the Act, and would not be authorized under the 
proposed special rule.

[[Page 46377]]

Issue 6: Impacts of Listing

    Comment 21: Several commenters expressed concern that listing under 
the Act may result in additional regulation of commercial fisheries in 
southwest Alaska. Other commenters expressed concern about the impacts 
of listing on harbor and dock projects in the region.
    Our Response: The best available scientific information indicates 
that interactions between commercial fisheries and sea otters, either 
in the form of competition for prey species or entanglement in gear, do 
not pose an immediate threat to sea otters in southwest Alaska. 
Information on fishery interactions is limited, however, and additional 
observer programs directed at fisheries with the greatest potential for 
entanglement of sea otters is recommended.
    Harbor and dock projects that have a Federal nexus and that may 
affect listed species require interagency consultation under Section 7 
of the Act. Those projects that are likely to adversely affect the 
species must undergo formal consultation, which may result in minor 
changes to the project design to minimize the impact to sea otters.
    Lastly, while economic impacts are considered when designating 
critical habitat for a listed species, they do not factor into 
decisions about listing.

Issue 7: Critical Habitat

    Comment 22: Several commenters state that habitat protection is 
important for the survival of sea otters in southwest Alaska. Other 
commenters stated that it was unclear how critical habitat will be 
designated. Yet another commenter stated that critical habitat should 
not be broadly defined, and that shallow coves and lagoons may be 
important for sea otters as refugia from predators.
    Our Response: Although there is no evidence to suggest that loss of 
habitat has been a contributing factor in the sea otter decline, we 
agree that habitat protection may be an important factor in the 
recovery of the population. However, the extent of critical habitat is 
not yet determinable. The Service specifically requested input on this 
subject during the public comment period, and we are currently 
considering how best to delineate critical habitat for the southwest 
Alaska DPS of the northern sea otter. Once we are able to determine the 
geographic extent of critical habitat, it will be designated through a 
separate rulemaking process that will include an opportunity for public 
review and comment.
    Comment 23: One peer reviewer and one commenter stated that if 
killer whale predation is the cause of the sea otter decline, then the 
true critical habitat for this DPS may actually be further offshore in 
areas not inhabited by the otters themselves. That is, changes in 
killer whale habitat may be responsible for increased predation of sea 
otters.
    Our Response: We find that designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter is not determinable at 
this time because we are unable to identify the physical and biological 
features essential to the conservation of this DPS. See Critical 
Habitat. We will consider designating critical habitat for this species 
later, as allowed under the Act when the Service considers critical 
habitat ``not determinable'' at the time of listing.

Issue 8: Interagency Consultation and Recovery Planning

    Comment 24: One reviewer stated that interagency consultation under 
Section 7 of the Act will not be an effective means of enhancing the 
sea otter population in southwest Alaska.
    Our Response: The purpose of interagency consultation is to 
determine if activities with a Federal nexus may affect listed species. 
Although we cannot identify any human activities that have been 
directly responsible for the sea otter decline, interagency 
consultation will help minimize the impacts of future activities on the 
recovery of the DPS.
    Comment 25: One commenter stated that the Service should promptly 
form a recovery team and begin the process of recovery planning.
    Our Response: We agree that recovery planning should commence as 
soon as possible, and have been working throughout the listing process 
with potential members of a recovery team. We anticipate forming the 
recovery team and beginning the process of recovery planning within the 
first year following publication of this final rule.
    Comment 26: Several commenters stated that, as there is no evidence 
that human activities are directly responsible for the sea otter 
decline, a recovery plan will not be effective. Similarly, several 
other commenters stated that there are no human actions that can be 
taken that would increase the sea otter population in southwest Alaska.
    Our Response: We believe that it is premature to conclude that 
there are no human actions that could be taken to conserve the sea 
otter population in southwest Alaska. This issue will be more 
appropriately addressed in the recovery planning process. Although 
there is no evidence to suggest that human activities are directly 
responsible for the decline, we also believe that the development of a 
recovery plan will help identify potential future threats to the 
southwest Alaska DPS of the northern sea otter. Protection from these 
threats would become even more important should the population continue 
to decline. For example, although there is no evidence to suggest that 
oil spills have caused the sea otter decline, there may be areas of 
high concentrations of sea otters that could benefit from additional 
spill response planning and protection measures. The recent spill from 
the M/V Selendang Ayu underscores the unpredictable, and potentially 
catastrophic, effects of oil spills in southwest Alaska.
    Comment 27: One commenter proposed that sea otters could be 
translocated from southeast to southwest Alaska to help reverse the 
population decline.
    Our Response: As evidenced by the success of translocations to 
southeast Alaska, Washington State, and British Columbia, Canada, this 
technique has been effective at re-establishing sea otter populations 
in areas where they had been extirpated by commercial fur harvests. 
Specific measures to help conserve the sea otter population in 
southwest Alaska will be considered during the recovery planning 
process.
    Comment 28: One commenter proposed that management authority for 
sea otters should be transferred to the Alaska Department of Fish and 
Game.
    Our Response: The MMPA delegates authority for sea otters in U.S. 
waters to the Secretary of the Interior. Sections 109(b) and 109(f) of 
the MMPA outline the procedure for transfer of management authority 
from Federal to State jurisdiction. Any transfer of authority must be 
initiated by a request from the State, which has not occurred.

Issue 9: Research Needs

    Comment 29: Several commenters stated that additional research is 
needed, including studies into the cause of the decline, the genetic 
structure of sea otter populations in Alaska, population surveys, 
tagging and tracking individual otters, and fisheries observer 
programs, prior to listing the population under the ESA.
    Our Response: We fully agree that additional research is needed to 
help determine the cause of the sea otter decline as well as identify 
future threats to the southwest Alaska DPS. In April 2002 we convened a 
workshop in Anchorage, Alaska, to review available information 
regarding the sea otter

[[Page 46378]]

decline in southwest Alaska and develop recommendations for future 
research. In April 2004, a second similar workshop was hosted by the 
Alaska SeaLife Center in Seward, Alaska. We have continued to monitor 
the population at several locations throughout southwest Alaska, and 
have initiated several studies in conjunction with the U.S. Geological 
Survey, Alaska SeaLife Center, and TASSC.
    The need for additional research does not preclude us from listing 
the DPS at this time, as the Act requires us to consider the best 
scientific and commercial data available. Although some of these 
studies are ongoing now, to postpone this listing action until 
additional research has been completed would not improve the status of 
the species, and would not be in keeping with the mandates of the Act.

Issue 10: The Listing Process

    Comment 30: Several commenters stated that the Service did not 
follow standard operating procedures and Secretarial Order 3225 
regarding government-to-government consultation with Alaska Native 
Tribes.
    Our Response: As detailed in the introduction to this section of 
the final rule, the Service actively engaged in consultation with 
Alaska Native Tribes in southwest Alaska. From the time that we 
developed plans to conduct the aerial survey of sea otters in the 
Aleutians in January 2000 until publication of the proposed rule in 
February 2004, the Service kept TASSC, a tribally authorized 
organization, fully informed on this issue. The Service attended 
multiple board meetings each year to present updated information on 
survey plans and results, as well as progress on the development of the 
proposed rule. In addition to board meetings, we provided TASSC with 
monthly updates on these issues. Following publication of the proposed 
rule, the Service actively solicited comments from 52 Alaska Native 
Tribes within the range of the southwest Alaska DPS of the northern sea 
otter. We received comments on the proposed rule from six tribal 
councils, as well as TASSC and the Aleut Marine Mammal Commission, both 
tribally-authorized Alaska Native Organizations.
    Comment 31: Several commenters stated that the listing action was 
not initiated by individuals, communities, or organizations within 
southwest Alaska.
    Our Response: It is not a requirement of the Act that listing 
actions be initiated by residents of the area where the species, 
subspecies, or DPS occurs. The listing action was initiated by the 
Service, the Federal agency with management responsibility for sea 
otters in U.S. waters. Biologists from the Marine Mammals Management 
Office in Anchorage, Alaska, conducted the aerial surveys of sea otters 
in 2000 and 2001 that determined the geographic extent and magnitude of 
the decline. Based on the results of these surveys, the Service 
designated sea otters in the Aleutians as a candidate species in August 
2000. We later expanded candidate species designation to encompass the 
range of the southwest Alaska DPS in June 2002.
    Comment 32: The Service did not follow its own policy on the 
recognition of distinct vertebrate population segments under the Act 
(61 FR 4722).
    Our Response: As detailed in our responses to earlier comments, the 
Service followed the DPS policy. We first examined the discreteness of 
the population segment in relation to the remainder of the species to 
which it belongs. Next we determined the significance of the population 
segment to the species to which it belongs, and finally, we evaluated 
the population segment's conservation status in relation to the Act's 
standards for listing. In doing so, we found that the sea otters in 
southwest Alaska meet the definition of a DPS (see Distinct Vertebrate 
Population Segment).
    Comment 33: One commenter stated that the public comment period was 
inconvenient.
    Our Response: The typical public comment period for a proposed rule 
to list a species under the Act is 60 days. Understanding that many 
residents of southwest Alaska rely on subsistence and/or commercial 
fishing, and that these activities are seasonal in nature, we 
established a 120-day public comment period to give people more time to 
review and comment on the proposed rule. We also scheduled the public 
comment period to avoid conflict with summer fishing activities.

Peer Review

    In accordance with our July 1, 1994, Interagency Cooperative Policy 
for Peer Review in Act Activities (59 FR 34270), we solicited review 
from five experts in the fields of ecology, conservation, genetics, 
taxonomy, pathology, and management. Three of these experts have direct 
experience with sea otters in Alaska, and the other two experts are 
well-known marine mammal biologists. The purpose of such a review is to 
ensure that listing decisions are based on scientifically sound data, 
assumptions, and analyses, including input from appropriate experts. 
Two reviewers sent us letters during the public comment period. Neither 
reviewer expressed support or opposition to the listing of the 
southwest Alaska DPS of the northern sea otter as threatened, but both 
provided corrections on minor factual issues, interpretation of data, 
and citations. Their information has been incorporated, as appropriate.

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 sufficient information indicates 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 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

[[Page 46379]]

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 of the Proposed Rule. To the west of the Aleutian Islands, 
the sea otters in Russia are recognized as a separate subspecies, E. l. 
lutris. Although sea otters in Russia are also delimited by an 
international governmental boundary, differences in control of 
exploitation, management of habitat, conservation status, and 
regulatory mechanisms are not clear. Russia includes the sea otter as a 
species that is recovering in its Red Data Book of the Russian 
Federation (the Red Data Book is a listing of species afforded special 
recognition or legal protection within Russia). Sea otters in Russia 
are under jurisdiction of the Ministry of Natural Resources, and are 
protected from all hunting, although poaching remains a concern. The 
distance between the Near Islands in the Aleutians to the Commander 
Islands in Russia is approximately 320 km (200 mi), and the amount of 
interchange between the two subspecies is believed to be low because of 
the long distance between island groups over deep water.
    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 
unlikely. The degree to which this barrier limits sea otter movements 
is not known with certainty.
    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. The 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 areas of Cook Inlet. Given 
the amount of survey effort that has been expended, the almost complete 
lack of observations in deeper offshore waters suggests that there may 
be only limited exchange of sea otters between the eastern and western 
shores of lower Cook Inlet.
    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).
    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 of the Proposed Rule.
    Within the range of the southwest Alaska stock of the northern sea 
otter, we recognize that there are differences in the rates and 
magnitude of population decline since the mid-1980s. Although there is 
some evidence of additional genetic differentiation within the 
southwest Alaska stock (Cronin et al. 2002), the best available 
scientific information on taxonomy, genetics, and morphometrics does 
not support identification of additional sea otter stocks at this time. 
The stock assessment process outlined in Section 117 of the MMPA 
includes oversight by Regional Scientific Review Groups (SRGs) composed 
of non-Federal marine mammal experts. The information upon which the 
Service based currently recognized stock structure was reviewed by the 
Alaska Regional SRG, who concurred with the identification of three sea 
otter stocks in Alaska. As both the identification of marine mammal 
stocks under the MMPA and the discreteness evaluation of a DPS under 
the Act are based upon similar criteria, we believe that the 
appropriate geographic extent for this DPS corresponds to the entire 
southwest Alaska stock, rather than any smaller area within the stock 
boundary.
    In summary, sea otters from the Aleutian Islands to lower western 
Cook Inlet are a population that differs from other sea otters in 
several respects. Sea otters to the west of the Aleutians are 
geographically separated by an expanse of approximately 320 km of open 
water and an international boundary, and 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 some 
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.
    Based on our consideration of the best scientific information 
available, we find

[[Page 46380]]

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 of the Proposed Rule), 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 current geographic 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 of E. lutris, existed in southwest 
Alaska (Calkins and Schneider 1985). Loss of this population segment 
would result in a significant gap of more than 2,500 km (1,553 mi.), in 
both the current and historical range of the species, E. lutris. Loss 
of this DPS would result in the loss of a ``major geographic area'' to 
both the species and subspecies.
    The range of the southwest Alaska DPS contains 6 of the 11 remnant 
sea otter populations that survived the commercial fur harvests. 
Descendants of only one of these remnant populations (Amchitka) have 
been translocated beyond the boundaries of the DPS to southeast Alaska, 
Washington State, and British Columbia, Canada. The genetic diversity 
of the other 5 remnant populations within the southwest Alaska DPS 
occurs nowhere else in the world. Loss of this DPS would therefore 
result in a significant loss of genetic diversity of both the species 
E. lutris and subspecies E. lustris kenyoni. The worldwide population 
of sea otters underwent a genetic bottleneck as a result of commercial 
fur harvests; additional loss of genetic diversity may reduce overall 
fitness of both the species and subspecies.
    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 and the segment 
contains a significant amount of genetic diversity of the taxon.

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 significance to the 
remainder of the taxon, we find that it is a distinct population 
segment. 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. In addition, this population segment represents a 
considerable portion of the overall genetic variability of the species. 
We refer to this population segment as the southwest Alaska DPS 
throughout this final 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. As there is no evidence to suggest that the decline 
has abated, it is possible that additional population losses may occur 
that would curtail the range of sea otters in southwest Alaska. In 
particular, sea otters in the western and central Aleutian islands, and 
Shumagin and Pavlof islands, have declined by an order of magnitude or 
more, and recent survey data indicates the decline continues in these 
areas. If this trend continues, the range of sea otters in the 
southwest Alaska DPS may contract within the foreseeable future.
    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).

[[Page 46381]]

    Development of harbors and channels by dredging may affect sea 
otter habitat on a local scale by disturbing the sea floor and 
affecting benthic invertebrates that sea otters eat. There are 
approximately 40 communities located within the range of the southwest 
Alaska DPS. As harbor and dredging projects typically impact an area of 
50 hectares or less, we consider the overall impact of these projects 
on sea otter habitat to be negligible.
Catastrophic oil spills have the potential to adversely modify sea 
otter habitat, and are discussed in detail under Factor E.
    Considering the broad range of the southwest Alaska DPS of the 
northern sea otter, along with the relatively minimal amount of human 
habitation and activities in this region, destruction or modification 
of habitat is not a threat to the continued existence of this DPS in 
the foreseeable future. If current population trends continue, however, 
the range of sea otters within the DPS may contract. Areas of higher 
otter concentrations may be more susceptible to catastrophic events 
such as oil spills, disease epidemics, and severe weather conditions 
that could remove a significant portion of the remaining sea otter 
population.
    The most recent example of a catastrophic event occurred on 
December 8, 2004, when the M/V Selendang Ayu, a 225-m (738-ft) 
freighter lost power and ran aground near Spray Cape on Unalaska 
Island. The vessel split apart, spilling approximately 40,000 of the 
estimate 500,000 gallons of intermediate fuel oil 380 (IFO 380). It is 
uncertain how many otters were in the vicinity at the time of the 
spill, but as of January 31, 2005, two oiled otter carcassed had been 
recovered by response workers. The full impacts of this vessel 
grounding will likely not be known for several years. If a vessel of 
this size were to run aground in one of the remaining areas of high sea 
otter abundance, the potential exists for serious impacts to the 
remaining population.

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 Seal Treaty, which 
prohibited further hunting. In 1972, the 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, appreciable numbers of sea otters were not harvested 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 reported sea otter harvest occurs in southeast 
and southcentral Alaska. Information from the MTRP estimates that the 
subsistence harvest has removed fewer than 1,400 sea otters from the 
southwest Alaska DPS since 1989 (average = 85/year; range = 24 to 180/
year). The majority of this harvest occurred in the Kodiak archipelago, 
where levels ranged from 0.4 to 1.3 percent of the estimated population 
size, which is well below the estimated growth rate of the population 
(Doroff et al. in prep.). Although the average harvest in Kodiak from 
2001 to 2003 was 76 otters per year, recent survey results indicate 
that the sea otter population was relatively stable over that time 
period. Based on the geographic extent and magnitude of the decline, it 
appears that the current levels of subsistence harvest do not pose an 
immediate threat to the southwest Alaska DPS. The impact of the 
subsistence harvest will continue to be evaluated to insure that the 
level of harvest does not materially and negatively affect the DPS in 
the future.
    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). In 2004, sea otters from the southwest Alaska DPS were 
captured as part of a multi-agency health monitoring study. All of the 
60 otters captured in this study were released back into the wild. All 
future scientific research on the southwest Alaska DPS will require 
permits under Section 10 of the Act. In addition, review of permit 
applications will require the Service to consult pursuant to Section 7 
of the Act. Based on the magnitude of the current decline and the 
statutory permit review requirements, we do not believe that the impact 
of surveys, or the impact of capture/release activities, will be a 
significant threat in the immediate future.
    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.
    As there is no commercial use of sea otters in the United States, 
and recreational, scientific, and educational use have been regulated 
under the MMPA of 1972, we do not expect these factors will increase in 
the foreseeable future. Based on a review of historical harvest 
patterns, we also do not expect the subsistence harvest to increase in 
the foreseeable future.

C. Disease or Predation

    Parasitic infection was identified as a cause of increased 
mortality of sea otters at Amchitka Island in 1951 (Rausch 1953). These 
highly pathogenic infestations were apparently the result of sea otters 
foraging on fish, combined with a weakened body condition brought about 
by nutritional stress. More recently, sea otters have been impacted by 
parasitic infections resulting from the consumption of 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 their deaths (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 reproduction, 
survival, distribution, habitat, and environmental contaminants. Estes 
et al. (1998) concluded that the observed sea otter decline was 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 
significantly contributing to the decline in the Aleutians. If the 
declining population

[[Page 46382]]

trend continues and sea otters disappear from portions of the range of 
the southwest Alaska DPS, however, the remaining otters that persist in 
areas of higher concentration may be more vulnerable to disease 
epidemics.
    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) the number of observed attacks fits 
expectations from computer models of killer whale energetics; (3) the 
scarcity of beachcast otter carcasses that would be expected if disease 
or starvation were occurring; and (4) 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.
    Doroff et al. (2003) speculated that killer whale predation on sea 
otters was density dependent, and that as of the April 2000 aerial 
survey of the Aleutians, a steady state between predator and prey may 
have been attained. Recent skiff survey results of Estes et al. (2005) 
indicate that further sea otter declines occurred between 2000 and 
2003, so it is not clear if a steady state between predator and prey 
had been reached, or whether other factors were involved in the 
continuing decline in the Aleutians.
    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 as 
threatened under the Act (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 Steller 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 increasingly 
rare, the killer whales that preyed on them may have expanded their 
diet to include the even smaller, and calorically inferior, 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. If these 
hypotheses are correct, and prey selection by killer whales is closely 
tied to the availability of other species, we would not expect this 
threat to decrease in the future, perhaps until populations of other 
prey species recover in numbers, or transient killer whale populations 
decrease.
    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, available data does 
not suggest that the impact of sharks and predators other than killer 
whales on the southwest Alaska DPS of the northern sea otter is 
significant.

D. The Inadequacy of Existing Regulatory Mechanisms

    The MMPA (16 U.S.C. 1361), enacted in 1972, is an existing 
regulatory mechanism that protects 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 Act, ``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.
    The MMPA defines depleted as a species or population stock that is 
below its optimum sustainable population (OSP), which is defined 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.'' By definition, a marine mammal species or stock 
that is designated as ``threatened'' or ``endangered'' under the 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 or endangered 
under the Act.
    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 due to commercial fishing. 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). An analysis of State-managed fisheries in southwest 
Alaska reached a similar conclusion that there is little geographic 
overlap between sea otters and commercial fishing activities (Funk 
2003).
    Although the MMPA contains provisions to regulate the take of sea 
otters by Alaska Natives and to reduce the level of incidental take in 
commercial fisheries, we do not believe that these impacts pose an 
immediate threat to the southwest Alaska DPS. Therefore, the MMPA is 
inadequate to prevent the continuing decline of sea otters in southwest 
Alaska.
    Northern sea otters are not on the State of Alaska list 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

[[Page 46383]]

of contingency plans to respond to spills should they occur. The 
potential impacts of oil spills on sea otters are addressed below 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, 
sea otters must groom themselves frequently 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 Fjords, 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 in particular, 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 boat harbors for 
years without apparent adverse impacts. The overall health, survival, 
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 3 miles off shore. Therefore, sea 
otters do not significantly overlap with the lease sale area. As 
demonstrated by the Exxon Valdez oil spill, however, spilled oil can 
impact sea otters at great distances from the initial release site.
    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 low 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 that area (Tinker and Estes 1996). As PCBs typically inhibit 
reproduction rather than cause adult mortality, these findings do not 
suggest a reproductive impact due to PCBs. As sample sizes in these 
studies were limited, the 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 link between the 
sea otter decline and the effects of specific contaminants in their 
environment 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 (Manly et al. 2003). 
Additional marine mammal observer programs will continue to improve our 
understanding of this potential source of sea otter mortality.
    The distribution of sea otters in the southwest Alaska DPS now 
occurs at markedly low densities throughout much of their range, with 
some areas of higher concentrations. The consequence of this 
distribution is that Allee effects (as the probability of individuals 
to find mates is reduced) may occur in areas of low otter density 
(Estes et al. 2005). Conversely, areas of higher otter concentrations 
are more susceptible to stochastic events such as oil spills, disease 
epidemics, and severe weather conditions that could adversely affect a 
significant portion of the remaining sea otter population.

Conclusion of Status Evaluation

    In making this determination, 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. 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. Our status evaluation indicates that 
Threatened status is most appropriate for the southwest Alaska DPS of 
the northern sea otter.
    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

[[Page 46384]]

the sea otter decline in the Aleutian Islands, the cause(s) of the 
decline throughout southwest Alaska are not definitively known. As 
detailed earlier in the response to public comments, it is not 
necessary to identify the cause of the decline with certainty to 
warrant listing of a species, subspecies, or DPS.
    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. These areas of decline are balanced by 
other areas, such as Port Moller and Kamishak Bay, which do not appear 
to have declined and continue to maintain high concentrations of sea 
otters.
    Recent survey information indicates that the southwest Alaska DPS 
has declined by at least 55 to 67 percent overall since the mid-1980s, 
and sea otters now occur at extremely low densities throughout much of 
the range of the DPS. Estimated annual rates of decline are sensitive 
to the geographic area and time period in question. The most recent 
survey data available indicate that within areas that continue to 
decline, annual rates range from 12.5 percent per year at islands along 
the south side of the Alaska Peninsula (USFWS in litt. 2004), to 15 
percent per year in the eastern Aleutians (USFWS in litt. 2004) to 29 
percent per year in the western and central Aleutians (Estes et al. 
2005).
    With the exception of the Kodiak archipelago, we have no evidence 
to indicate that the decline has abated; indeed, recent surveys 
indicate that the decline has continued throughout much of the 
southwest Alaska DPS, and we have no reason to expect that the decline 
in these areas will cease in the foreseeable future. Because the 
remaining areas of high sea otter concentrations have shown no evidence 
of declines to date, the DPS is currently not in danger of extinction. 
Consequently, the DPS does not meet the definition of endangered at the 
present time. If the decline continues at recently observed rates, 
however, sea otters could become extirpated in some portions of the 
range in the foreseeable future. Based on threats to the remaining 
population, including stochastic events, and our uncertainty regarding 
the cause of the decline, the DPS could become in danger of extinction 
at that time. Therefore, we are listing the southwest Alaska DPS of the 
northern sea otter as threatened, as it is likely to become endangered 
in the foreseeable future throughout all or a significant portion of 
its range.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the 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. 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. In 
addition, we are unable at this time to make a determination that 
designation of critical habitat would not be beneficial to the species. 
Therefore, we believe that designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter would be prudent.
    Our implementing regulations (50 CFR 424.12(a)(2)) state that 
critical habitat is not determinable if information sufficient to 
perform the required analyses of impacts of the designation is lacking, 
or if the biological needs of the species are not sufficiently well 
known to permit identification of an area as suitable habitat. We find 
that designation of critical habitat for the southwest Alaska DPS of 
the northern sea otter is not determinable at this time because we are 
unable to identify the physical and biological features essential to 
the conservation of this DPS. Although we are able to identify sea 
otter habitat in a broad sense, without a clear understanding of the 
cause of the population decline, we are unable to delineate areas in 
which are found those physical and biological features that are--(1) 
Essential to the conservation of the species, and (2) which may require 
special management considerations or protection. When a ``'not 
determinable''' finding is made, we must, within one year of the 
publication date of the final listing rule, propose critical habitat, 
unless the designation is found to be not prudent. We will continue to 
protect the southwest Alaska DPS of the northern sea otter and their 
habitat through the recovery process and section 7 consultations to 
assist Federal agencies in avoiding jeopardizing this DPS.

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 Service will consult with itself on a variety of 
activities within southwest Alaska, such as Refuge operations and 
research permits. The National Marine Fisheries Service may become 
involved through their permitting authority for crab and groundfish 
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. The Minerals Management 
Service may become

[[Page 46385]]

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. Other Federal agencies and departments, such as the 
National Park Service and Department of Defense, may conduct activities 
in southwest Alaska that will require consultation.
    The listing of the southwest Alaska DPS of the northern sea otter 
will lead to the development of a recovery plan for this species. The 
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 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 will 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. In 
accordance with our regulations, these prohibitions extend to 
threatened wildlife as well (50 CFR 17.31(a)). 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 
a separate Section 4(d) rulemaking action published in today's Federal 
Register, we propose a special rule for the Alaska DPS of northern sea 
otters that would align the provisions of the Act relating to the 
creation, shipment, and sale of authentic Native handicrafts and 
clothing by Alaska Natives with what is already allowed under the MMPA. 
Thus the proposed rule would provide for the conservation of sea 
otters, while at the same time accommodating Alaska Natives' 
subsistence, cultural, and economic interests. See the proposed special 
rule published in today's Federal Register for complete details.
    It is 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 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.
    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 individual 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.,

[[Page 46386]]

sewage, oil, pesticides, and gasoline) into the nearshore marine 
environment that actually kills or injures individual 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.

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 final 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 final rule 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 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

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
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 where                     When       Critical     Special
                                                             Historic range         endangered or        Status       listed      habitat       rules
            Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
              MAMMALS
 
                                                                      * * * * * * *
Otter, northern sea...............  Enhydra lutris        U.S.A. (AK, WA).....  Southwest Alaska,               T  ...........           NA           NA
                                     kenyoni.                                    from Attu Island to
                                                                                 Western Cook Inlet,
                                                                                 including Bristol
                                                                                 Bay, the Kodiak
                                                                                 Archipelago, and
                                                                                 the Barren Islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: August 1, 2005.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 05-15718 Filed 8-4-05; 2:04 pm]
BILLING CODE 4310-55-P