[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Proposed Rules]
[Pages 76454-76469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28897]



[[Page 76453]]

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Part II





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; Designation of Critical 
Habitat for the Southwest Alaska Distinct Population Segment of the 
Northern Sea Otter (Enhydra lutris kenyoni); Proposed Rule

  Federal Register / Vol. 73, No. 242 / Tuesday, December 16, 2008 / 
Proposed Rules  

[[Page 76454]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2008-0105; 92210-1117-0000-FY08-B4]
RIN 1018-AV92


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Southwest Alaska Distinct Population Segment 
of the Northern Sea Otter (Enhydra lutris kenyoni)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the southwest Alaska Distinct Population 
Segment (DPS) of the northern sea otter (Enhydra lutris kenyoni) under 
the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 15,225 square kilometers (km\2\) (5,879 square miles 
(mi\2\)) fall within the boundaries of the proposed critical habitat 
designation. The proposed critical habitat is located in Alaska.

DATES: We will accept comments received on or before February 17, 2009. 
We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by January 
30, 2009.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-ES-2008-0105; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).
    Detailed, colored maps of areas proposed as critical habitat in 
this proposed rule are available for viewing at http://alaska.fws.gov/fisheries/mmm/seaotters/criticalhabitat.htm. Hard copies of maps can be 
obtained by contacting the Marine Mammals Mangement Office (see FOR 
FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Douglas M. Burn, Marine Mammals 
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor 
Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/786-
3816. If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether the benefit of designation would outweigh 
threats to the species caused by the designation, such that the 
designation of critical habitat is prudent.
    (2) Specific information on:
     The amount and distribution of habitat of the southwest 
Alaska DPS of the northern sea otter,
     What areas occupied at the time of listing and that 
contain features essential for the conservation of the species we 
should include in the designation and why, and
     What areas not occupied at the time of listing are 
essential to the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts.
    (5) Any areas that might be appropriate for exclusion from the 
final designation under section 4(b)(2) of the Act.
    (6) Special management considerations or protections that the 
proposed critical habitat may require.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by email or fax or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the southwest Alaska DPS of the northern sea otter, 
refer to the final listing rule published in the Federal Register on 
August 9, 2005 (70 FR 46366). More detailed information on northern sea 
otter biology and ecology that is directly relevant to designation of 
critical habitat is discussed under the Primary Constituent Elements 
section below.

Description and Taxonomy

    Sea otters are the only completely marine species of the aquatic 
lutrinae, or otter subfamily of the family Mustelidae (skunks, weasels, 
minks, badgers, and honey badgers) (Wozencraft 1993, pp. 310). In an 
exhaustive systematic review and analysis of sea otter skull 
morphology, Wilson et al. (1991, p. 33-34) concluded there were three 
subspecies, the Russian sea otter (Enhydra lutris lutris) from Asia to 
the Commander Islands, southern sea otter (E. l. nereis) from 
California, and a newly described subspecies, the northern sea otter 
(E. l. kenyoni), from Alaska.
    Currently there are three population stocks of sea otters 
recognized in Alaska, as defined under the Marine Mammal Protection Act 
(16 U.S.C. 1361 et seq.): (1) Southeast Alaska; (2) southcentral 
Alaska; and (3) southwest Alaska (Gorbics and Bodkin 2001, p. 632). The 
southwest Alaska population

[[Page 76455]]

stock (DPS) is listed as threatened under the Act.
    The sea otter is one of the largest mustelids, and the sexes are 
moderately dimorphic (two distinct forms). Adult males attain weights 
of 45 kilograms (kg) (99.2 pounds (lbs)) and total lengths of 148 
centimeters (cm) (58.3 inches (in)), and adult females attain weights 
of 36 kg (79.4 lbs) and total lengths of 140 cm (55.1 in). Size appears 
to vary among populations and to a large extent may represent the 
status of the population relative to available food resources.
    Fur and the air trapped within it provide the primary source of 
insulation and buoyancy for the sea otter, and in contrast to most 
other marine mammals (which rely on a thick blubber layer), there is 
little or no subcutaneous fat. The ability of the sea otter to 
thermoregulate is dependent on maintaining the integrity of the pelage 
(fur), in conjunction with an extremely high metabolic rate (as 
discussed below). This requires a nearly constant, yet gradual, molt, 
as well as frequent and vigorous grooming. The color of the pelage 
ranges from light brown to nearly black. As animals age, they may 
attain a grizzled appearance, with whitening occurring in the head, 
neck, and torso regions. Newborn pups have a pale brown, woolly natal 
pelage until about 3 months of age.

Distribution and Habitat

    The southwest Alaska DPS of the northern sea otter 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.
    As a species, sea otters occur only in the North Pacific Ocean. The 
historical range includes coastal habitats around the Pacific Rim 
between central Baja California and northern Japan. The range currently 
occupied extends from southern California to northern Japan, with 
extralimital sightings in central Baja California and near Wrangel 
Island in the Chukchi Sea. The northward limits in distribution appear 
related to the southern limits of sea ice, which can preclude access to 
foraging habitat. Seasonal and inter-annual variation in the southern 
extent of sea ice results in constriction and expansion of the sea 
otter's northern range. During periods of advancing winter sea ice 
along their northern range, sea otters occasionally become trapped and 
sometimes die (Nikolaev 1965, p. 35; Schneider and Faro 1975, p. 91). 
Sea otters attempting to travel tens of kilometers over the Alaska 
Peninsula to access the ice-free Pacific were observed in 1971 and 1972 
(Schneider and Faro 1975, pp. 93-96) and again in 1982, 1999, and 2000 
(USGS unpub. data). Although some otters may succeed in such efforts, 
many apparently die from starvation or predation by wolves (Canis 
lupus), red foxes (Vulpes vulpes), and wolverines (Gulo gulo). Southern 
range limits are less well understood but appear to coincide with the 
southern limits of coastal upwelling, associated canopy-forming kelp 
forests, and the 20-22[deg] Celsius (68-72[deg] Fahrenheit) isotherm 
(Kenyon 1969, p. 135; Estes 1980, p. 133).
    Sea otters occupy and use all habitats within the nearshore marine 
ecosystem, from protected bays and estuaries to exposed outer coasts 
and offshore islands. Because they need to dive to the sea floor to 
forage (Bodkin 2001, p. 2616), the seaward limit of their usual 
distribution is defined by their diving ability and is approximated by 
the 100 meter (m) (328.1 feet (ft)) depth contour. While sea otters may 
be found at the surface in water deeper than 100 m (328.1 ft), either 
resting or swimming, they are most commonly observed in waters within a 
few km of shore (Riedman and Estes 1990, p. 22), and higher densities 
are frequently associated with shallow water (Laidre et al. 2002, p. 
1177). Bodkin and Udevitz (1999, p. 22) found 80 percent of the otters 
in Prince William Sound (PWS) where water depths are less than 40 m 
(131.2 ft), although the proportion of total habitat within this 
bathymetric zone was about 33 percent. Where relatively shallow waters 
or islands extend far offshore, sea otters can also be found in high 
densities (Kenyon 1969, p. 57). While they periodically haul out on 
intertidal or supratidal shores (flooded by very high tides), 
particularly during winter months, and generally remain close to the 
sea-land interface, no aspect of their life history requires leaving 
the ocean (Kenyon 1969, pp. 59-104; Riedman and Estes 1990, p. 24). 
Although sea otter habitat occurs in the nearshore marine environment, 
it is important to note that activities that occur in the broader 
Bering Sea and Gulf of Alaska ecosystems may affect their habitat and 
populations (Estes et al. 1998, p. 475).
    Sea otters forage in diverse bottom types, from fine mud and sand 
to rocky reefs. Recent research employing archival time depth recorders 
recovered from sea otters in southeast Alaska showed that 84 percent of 
foraging occurred in depths between 2-30 m (6.6-98.4 ft), and that 16 
percent of all foraging was between 30-100 m (98.4-328.1 ft) (Bodkin et 
al. 2004, p. 305). Maximum foraging depths averaged 61 m (200.1 ft) and 
ranged from 35-100 m (114.8-328.1 ft). Less than 2 percent of all 
foraging dives were greater than 55 m (180.4 ft). Females dove to 
depths less than 20 m (65.6 ft) on 85 percent of their foraging dives 
while males dove to depths greater than 45 m (147.6 ft) on 50 percent 
of their foraging dives. Recent research from California suggests these 
patterns may be similar among populations (Tinker et al. 2006, p. 148).

Previous Federal Actions

    The southwest Alaska DPS of the northern sea otter was listed as 
threatened on August 9, 2005 (70 FR 46366). Critical habitat was 
considered to be prudent, but not determinable, and therefore was not 
designated for this DPS at the time of listing. When a not determinable 
finding is made, we must, within one year of the publication date of 
the final listing rule, designate critical habitat, unless the 
designation is found to be not prudent. On December 19, 2006, the 
Center for Biological Diversity filed suit against the Service for 
failure to designate critical habitat within the statutory time frame 
(Center for Biological Diversity et al. v. Kempthorne et al., No. 1:06-
CV-02151-RMC (D.D.C. 2007)). On April 11, 2007, the U.S. District Court 
for the District of Columbia entered an order approving a stipulated 
settlement of the parties requiring the Service on or before November 
30, 2008, to submit to the Federal Register a determination as to 
whether designation of critical habitat for the southwest Alaska DPS is 
prudent, and if so, to publish a proposed rule. We have subsequently 
reaffirmed that critical habitat for the southwest Alaska DPS of the 
northern sea otter is prudent. This proposed rule complies with the 
court order and section 4(b)(2) of the Act. For more information on 
previous Federal actions concerning the southwest Alaska DPS of the 
northern sea otter, refer to the final listing rule published in the 
Federal Register on August 9, 2005 (70 FR 46366).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and

[[Page 76456]]

    (2) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7 of the Act requires consultation on Federal actions 
that may affect critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by the landowner. Where the landowner seeks or 
requests Federal agency funding or authorization for an activity that 
may affect a listed species or critical habitat, the consultation 
requirements of section 7 of the Act would apply. However, even in the 
event of a destruction or adverse modification finding, the landowner's 
obligation is not to restore or recover the species, but to implement 
reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species. Critical habitat designations identify, to 
the extent known using the best scientific data available, habitat 
areas that provide essential life cycle needs of the species (areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)). Occupied habitat that contains the features essential to 
the conservation of the species meets the definition of critical 
habitat only if those features may require special management 
considerations or protection. Under the Act, we can designate 
unoccupied areas as critical habitat only when we determine that the 
best available scientific data demonstrate that the designation of that 
area is essential to the conservation needs of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be proposed as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include the recovery plan for the species, 
articles in peer-reviewed journals, conservation plans developed by 
States and counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designated critical 
habitat may not include all of the habitat areas that we may eventually 
determine, based on scientific data not now available to the Service, 
are necessary for the recovery of the species. For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated area is unimportant or may not be required for recovery of 
the species.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions we implement under section 7(a)(1) of the Act and our other 
wildlife authorities. They are also subject to the regulatory 
protections afforded by the section 7(a)(2) jeopardy standard, as 
determined on the basis of the best available scientific information at 
the time of the agency action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas occupied at the time of listing 
that contain features essential to the conservation of the southwest 
Alaska DPS of the northern sea otter, and areas unoccupied at the time 
of listing that are essential to the conservation of the DPS, or both. 
In proposing critical habitat for the southwest Alaska DPS of the 
northern sea otter, we reviewed the relevant information available, 
including peer-reviewed journal articles, unpublished reports, the 
final listing rule, and unpublished materials (such as survey results 
and expert opinions). In general, sea otters occupy the vast majority 
of the available habitat within southwest Alaska. Exceptions include 
portions of Kodiak Island where otters have yet to recolonize their 
former range, and there may also be some individual islands in the 
Aleutian archipelago where otters have disappeared (Doroff et al. 2003, 
p. 58). We are not currently proposing any areas outside the 
geographical area presently occupied by the DPS because designating 
only occupied areas is sufficient for the conservation of the species.
    We have also reviewed available information that pertains to the 
habitat requirements of this species including research published in 
peer-reviewed articles and presented in academic theses and agency 
reports. We also discussed habitat requirements with members of the 
southwest Alaska sea otter recovery team at several meetings. The sea 
otter recovery team includes representatives from University of Alaska 
Fairbanks, Fish and Wildlife Service, University of British Columbia, 
Marine Conservation Alliance, U.S. Geological Survey (USGS), Alaska 
Veterinary Pathology Services, Defenders of Wildlife, National Marine 
Fisheries Service, The Alaska SeaLife Center, Alaska Department of Fish 
and Game, Smithsonian National Zoological Park, The Alaska Sea Otter 
and Steller Sea Lion Commission, University of California Santa Cruz, 
University of Alaska Sea Grant Program, and Sand Point, Alaska.

[[Page 76457]]

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas occupied at 
the time of listing to propose as critical habitat, we consider areas 
containing the physical and biological features that are essential to 
the conservation of the species and may require special management 
considerations or protection. These features are the specific primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement for the conservation of the species. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific primary constituent elements (PCEs) for the 
southwest Alaska DPS from its biological needs, as described in the 
Background section of this proposed rule and the following information.

Space for Individual and Population Growth and for Normal Behavior

    Sea otters exhibit complex movement patterns related to habitat 
characteristics, social organization, and reproductive biology. It is 
likely that movements differ among populations depending on whether a 
population is at or near carrying capacity or has access to unoccupied 
suitable habitat into which it can expand (Riedman and Estes 1990, p. 
58). Most research into sea otter movements has been conducted where 
unoccupied habitat is available to dispersing animals. Early research 
in the Aleutian Islands by Kenyon (1969, p. 204) also found that males 
have larger home ranges than females and described the female sea 
otter's home range as including 8-16 km (5.0-9.9 mi) of contiguous 
coastline. Male sea otter home ranges are highly variable. For 
territorial (breeding) males, the area defended is smaller than that of 
a female range, but the territory is not necessarily defended year-
round and may include larger scale movements to more productive feeding 
grounds. Breeding may not occur until a male is older (7-10 years) and 
in an established population. Little is known about the home range of 
non-breeding males. In the listed region, where dramatic reduction in 
numbers have occurred, even less is known about movement patterns and 
home range sizes (A. Doroff, USFWS, pers. comm. 2008).
    At present, sea otters occur throughout nearly all of their former 
range in southwest Alaska, albeit at considerably lower densities than 
were present prior to the recent population decline that led to the 
listing of the DPS. Space for individual and population growth and for 
normal behavior does not appear to be a limiting factor for this DPS.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    The sea otter is a generalist predator, known to consume a wide 
variety of different prey species (Kenyon 1969, p. 110; Riedman and 
Estes 1990, p. 36; Estes and Bodkin 2002, p. 847). With few exceptions, 
their prey consist of sessile, or slow-moving, benthic invertebrates 
such as mollusks, crustaceans, and echinoderms, including sea urchins. 
Foraging occurs in habitats with rocky and soft sediment substrates 
between the high intertidal zone to depths slightly in excess of 100 m 
(328.1 ft). Preferred foraging habitat is generally in depths less than 
40 m (131.2 ft; Riedman and Estes 1990, p. 31), although studies in 
southeast Alaska have found that some animals forage mostly at depths 
from 40-80 m (131.2-262.5 ft; Bodkin et. al. 2004, p. 318).
    The diet of sea otters is usually studied by observing prey items 
brought to the surface for consumption, and therefore diet composition 
is usually expressed as a percentage of all identified prey that belong 
to a particular prey species or type. Although the sea otter is known 
to prey on a large number of species, only a few tend to predominate in 
the diet in any particular area. Prey type and size depends on 
location, habitat type, season, and length of occupation.
    Sea otters can be very diverse in their diets. Different habitats 
offer different types of prey. There are about 200 known prey species 
for sea otters, but the dominant ones that tend to sustain the 
population are crab, clam, urchin, and mussel. The predominately soft-
sediment habitats of southeast Alaska, Prince William Sound, and Kodiak 
Island support populations of clams that are the primary prey of sea 
otters. Throughout most of southeast Alaska, burrowing clams (species 
of Saxidomus, Protothaca, Macoma, and Mya) predominate in the sea 
otter's diet (Kvitek et al. 1993, p. 172). They account for more than 
50 percent of the identified prey, although urchins (S. droebachiensis) 
and mussels (Modiolis modiolis, Mytilus spp., and Musculus spp.) can 
also be important. In Prince William Sound and Kodiak Island, clams 
account for 34-100 percent of the otter's prey (Calkins 1978, p. 127; 
Doroff and Bodkin 1994, p. 202; Doroff and DeGange 1994, p. 706). 
Mussels (Mytilus trossulus) apparently become more important for sea 
otters as a prey base as the length of occupation by sea otters 
increases, ranging from 0 percent of their prey base at newly occupied 
sites at Kodiak to 22 percent of their prey base in long-occupied areas 
(Doroff and DeGange 1994, p. 709). Crabs (C. magister) were once 
important sea otter prey in eastern Prince William Sound, but 
apparently have been depleted by otter foraging and are no longer eaten 
in large numbers (Garshelis et al. 1986, p. 642). Sea urchins are minor 
components of the sea otter's diet in Prince William Sound and the 
Kodiak archipelago. In contrast, the diet in the Aleutian, Commander, 
and Kuril Islands is dominated by sea urchins and a variety of fin fish 
(Kenyon 1969, p. 116; Estes et al. 1982, p. 250). Sea urchins tend to 
dominate the diet of low-density sea otter populations, whereas more 
fishes are consumed in populations near equilibrium density (Estes et 
al. 1982, p. 250). For unknown reasons, fish are rarely consumed by sea 
otters in regions east of the Aleutian Islands.
    As the population has declined in the past 20 years throughout much 
of the range of the southwest Alaska DPS of the northern sea otter, 
prey species such as sea urchins have increased in both size and 
abundance (Estes et al. 1998, p. 474). Recent studies of sea otter body 
condition indicate improved overall health and suggest that limited 
nutritional resources were not the cause of the observed population 
decline (Laidre et al. 2006, p. 987). Although food, water, air, light, 
minerals, or other nutritional or physiological requirements do not 
appear to be a limiting factor, availability of sufficient prey 
resources and areas in which to forage is essential to the conservation 
of the DPS.

Cover or Shelter

    Estes et al. (1998, p. 473) believe the decline of sea otters in 
southwest Alaska is the result of increased predation, most likely by 
killer whales (Orcinus orca). These authors examined a suite of 
information and concluded that the recent population decline was likely 
not due to food limitation, disease, or

[[Page 76458]]

reduced productivity. Several lines of evidence, including increased 
frequency of killer whale attacks and significantly higher mortality 
rates in Kuluk Bay on Adak Island, as compared to Clam Lagoon, a 
protected area that is inaccessible to killer whales, also support this 
conclusion (Estes et al. 1998, p. 473).
    A shift in distribution toward the shoreline has also been observed 
in the western and central Aleutian Islands, which may allow otters 
easier escape onto the land. In August 2007, the Service and USGS 
conducted skiff-based surveys in the Near and Rat Island groups in the 
western Aleutians. In addition to recording the number and approximate 
location of every otter sighting, observers also recorded the 
approximate distance to the nearest shore. The median distance to shore 
for 811 sea otters observed was 10 m (32.8 ft); 90 percent of all 
otters observed were within 100 m (328.1 ft) (USFWS unpublished 
information). Aerial survey data indicate that in some areas, the 
majority of the remaining sea otter population inhabits sheltered bays 
and coves, which may also provide protection from marine predators 
(USFWS unpublished information).
    Canopy-forming kelps (including species of Macrocystis, Alaria, and 
to a lesser extent Nereocystis), provide resting habitat (Kenyon 1969, 
p. 57; Riedman and Estes 1990, p. 23), and may also provide protection 
from marine predators (C. Matkin, personal communication). Kelp forests 
occur primarily in waters less than 20 m (65.6 ft) in depth (O'Clair 
and Lindstrom 2000, pp. 41, 57). In addition, killer whales may be less 
likely to forage in shallow, constricted areas less than 2 m (6.6 ft) 
in depth (C. Matkin, personal communication).
    Based on our understanding of threats to the southwest Alaska DPS, 
we believe that features that provide protection from marine predators, 
especially killer whales, are essential to the conservation of the DPS.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    There appears to be a positive relationship between shoreline 
complexity and sea otter density (Riedman and Estes 1990, p. 23). 
Although not obligatory, headlands, coves, and bays appear to offer 
preferred resting habitat, particularly to females with pups, 
presumably because they provide protection from high wind and sea 
conditions. Surveys of sea otters in southwest Alaska do not indicate 
that pup production is a limiting factor for the DPS (USFWS and USGS 
unpublished information).

Habitats Protected From Disturbance or Representative of the 
Historical, Geographical, and Ecological Distributions of the Species

    Within the range of the southwest Alaska DPS of the northern sea 
otter, the vast majority of sea otter habitats are undisturbed, and are 
representative of the historical, geographical, and ecological 
distributions of the species.

Primary Constituent Elements for the Southwest Alaska DPS of the 
Northern Sea Otter

    Within the geographical area occupied by the southwest Alaska DPS 
of the northern sea otter at the time of listing, we must identify the 
primary constituent elements (PCEs) laid out in the appropriate 
quantity and spatial arrangement essential to the conservation of the 
DPS (i.e., the essential physical and biological features) that may 
require special management considerations or protections.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species, we have determined that 
the southwest Alaska DPS of the northern sea otter's PCEs are:
    (1) Shallow, rocky areas where marine predators are less likely to 
forage, which are waters less than 2 m (6.6 ft) in depth,
    (2) Nearshore waters that may provide protection or escape from 
marine predators, which are those within 100 m (328.1 ft) from the mean 
high tide line and
    (3) Kelp forests that provide protection from marine predators, 
which occur in waters less than 20 m (65.6 ft) in depth.
    (4) Prey resources within the areas identified by PCEs 1-3 that are 
present in sufficient quantity and quality to support the energetic 
requirements of the species.
    We propose units for designation because each of these units 
contains sufficient PCEs to support at least one of the species' life 
history functions. Some units contain all of these and support multiple 
life processes, while some units contain only a portion of PCEs, 
necessary to support the species' particular use of that habitat.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the occupied 
areas contain features that are essential to the conservation of the 
species and that may require special management considerations or 
protections. The range of the southwest Alaska DPS of the northern sea 
otter is sparsely populated by humans. There are only 31 populated 
communities located within an area that contains approximately 18,000 
km (11,184 mi) of coastline. The human population within the range of 
the DPS is approximately 17,000 persons living in 31 communities (State 
of Alaska Department of Commerce, Community, and Economic Development 
Database 2006). The scale of human activities that occur within the 
proposed critical habitat areas is exceedingly small. Potential 
activities that could harm the identified physical and biological 
features include, but are not limited to, dredging or filling 
associated with construction of airports, seaports, and harbors; 
commercial shipping; and oil and gas development and production.
    Pollution from various potential sources, including oil spills from 
vessels, or discharges from oil and gas drilling and production, could 
render areas containing the identified physical and biological features 
unsuitable for use by sea otters, effectively negating the conservation 
value of these features. Because of the vulnerabilities to pollution 
sources, these features may require special management or protection 
through such measures as placing conditions on Federal permits or 
authorizations to stimulate special operational restraints, mitigative 
measures, or technological changes.
    The shipping industry transports various types of petroleum 
products both as fuel and cargo within the range of the southwest 
Alaska DPS. Information about the types and quantities of both 
persistent and non-persistent oil has been summarized in a report on 
vessel traffic within the Aleutians subarea (Nuka Research and Planning 
Group 2006). Persistent fuels such as 6 bunker oil, bunker C, 
and IFO 380 have low dissipation and evaporation rates, and will remain 
on the surface of marine waters or along shorelines much longer than 
non-persistent fuel such as diesel, gasoline, and aviation fuel. 
Approximately 3,100 ship voyages occur through the Aleutians each year. 
Most of these voyages are by bulk and general freight ships (1,300) and 
container ships (1,200). The median fuel capacity for bulk and general 
freight ships is 470,000 gallons of persistent fuel oil; for container 
ships, the median capacity is 1.6 million gallons of persistent fuel 
oil. In addition, there are about 265 voyages by motor vehicle carriers 
with an estimated average fuel capacity of 500,000 gallons of 
persistent fuel oil.

[[Page 76459]]

There are also approximately 22 voyages by tanker ships transporting 
about 400 million gallons of refined oil. The figures quoted above are 
for the Aleutians subarea only, which includes the North Pacific great 
circle route from the west coast of North America to Asia. Information 
about shipping traffic that occurs in other parts of the southwest 
Alaska DPS is not well-documented, though it is presumably on a much 
smaller scale compared to what occurs through the Aleutians.
    Numerous instances of vessel incidents have been documented in the 
Aleutians over the past 15 years, including loss of maneuverability, 
grounding, and oil spills (Nuka Research and Planning Group 2006, p. 
29). Nearly 500 incidents affecting the seaworthiness of U.S. vessels 
were reported in the Aleutians from 1990 through July 2006. U.S. 
vessels reporting incidents were usually smaller than foreign vessels, 
and were primarily fishing vessels. An additional 48 incidents 
affecting seaworthiness of foreign vessels were reported between 1991 
and July 2006. The bulk grain ship M/V Selendang Ayu which ran aground 
on Unalaska Island in December 2004, is known to have resulted in the 
death of two sea otters. The long-term impacts of that spill on sea 
otter habitat use are not yet known.
    Various safeguards have been established since the 1989 Exxon 
Valdez oil spill to minimize the likelihood of another spill of 
catastrophic proportions in Prince William Sound. Tankers, other 
vessels, fuel barges, and onshore storage facilities are potential 
sources of oil and fuel spills that could affect sea otters in the 
southwest Alaska DPS. A review of the Alaska Department of 
Environmental Conservation database indicates no crude-oil spills were 
reported within the range of the southwest Alaska DPS during the 10-
year period from July 1, 1995, to June 30, 2005. Of the 520 reported 
spills of refined products, 82 percent were from vessels; most of these 
(70 percent) involved quantities smaller than 10 gallons. The majority 
of vessel spills occurred in the western Aleutian (149), eastern 
Aleutian (107), and Kodiak, Kamishak, Alaska Peninsula (130) management 
units. Only 7 spills were reported where the quantity was greater than 
5,000 gallons of material. The largest was the M/V Selendang Ayu, which 
spilled 321,052 gallons of IFO 380 fuel and an additional 14,680 
gallons of diesel.
    In 2006, the U.S. Coast Guard, the State of Alaska, and the 
National Academies of Science met to begin plans for the development of 
a comprehensive risk assessment for the Aleutian Islands. Although the 
probability of occurrence of a catastrophic oil spill may be relatively 
small, the potential for disastrous consequences suggest that measures 
to prevent or respond to spills may be important to the recovery of the 
southwest Alaska DPS. The Coast Guard and Maritime Transportation Act 
of 2004 (H.R. 2443) requires oil-spill contingency plans for vessels 
over 400 gross tons that call on U.S. ports. In addition to contingency 
plans for vessels of this size class, the Alaska Department of 
Environmental Conservation (ADEC) has both a unified spill-response 
plan as well as 10 Subarea plans. The southwest Alaska DPS is covered 
by the Aleutian, Bristol Bay, Kodiak, and Cook Inlet Subarea plans. In 
addition, ADEC is developing Geographic Response Strategies (GRS) that 
are designed to be a supplement to the Subarea Contingency Plans for 
Oil and Hazardous Substances Spills and Releases. The GRS are the 
current standard for site-specific oil-spill-response planning in 
Alaska.
    The first and primary phase of an oil-spill response is to contain 
and remove the oil at the scene of the spill or while it is still on 
the open water, thereby reducing or eliminating impacts on shorelines 
or sensitive habitats. If some of the spilled oil escapes the first-
phase containment and removal, the second, but no less important, phase 
is to intercept, contain, and remove the oil in the nearshore area. The 
intent of phase two is the same as phase one: remove the spilled oil 
before it affects sensitive environments. If phases one and two are not 
fully successful, a third phase (GRS) is designed to protect sensitive 
areas in the path of the oil. The purpose of phase three is to protect 
selected sensitive areas from the impacts of a spill or to minimize 
that impact to the maximum extent practical. Proposed critical habitat 
for the southwest Alaska DPS of the northern sea otter will be 
incorporated into the GRS system to facilitate this additional level of 
spill response.
    Existing commercial fishing activities, and their target species 
(which are not considered prey for sea otters), within southwest Alaska 
primarily occur outside of the areas proposed as critical habitat in 
this rule (Funk 2003, p. 2). With the exception of oil spills from 
shipwrecks, we do not believe that existing commercial fishing 
activities in southwest Alaska have the potential to harm the 
identified physical and biological features for the southwest Alaska 
DPS of the northern sea otter.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat for the southwest 
Alaska DPS of the northern sea otter in areas that were occupied at the 
time of listing and contain sufficient PCEs: (1) To support life 
history functions essential to the conservation of the DPS, and (2) 
which may require special management considerations or protection. Much 
of the range of the DPS occurs within the Aleutian archipelago, and 
although it is possible that otters have disappeared from some of the 
small islands since the time of listing, we have no information that 
indicates any portion should be considered unoccupied habitat. As a 
result, we consider the Aleutian archipelago to be occupied habitat.
    Unlike habitats for terrestrial species, some of the various 
characteristics of sea otter habitat are poorly mapped. Although 
shoreline boundaries are reasonably well-documented, the bathymetric 
data for southwest Alaska exist at a variety of spatial resolutions. 
Benthic substrate types are also poorly mapped. Other features, such as 
the distribution and abundance of sea otter prey species, and the 
spatial extent of kelp beds, may be dynamic over time. This lack of 
specificity makes it difficult to explicitly identify and map areas 
that contain the PCEs for this DPS beyond a certain geographic scale.
    Areas that provide protection from marine predators are likely the 
most essential to the conservation of this DPS. Despite the absence of 
information necessary to map these areas with precision, we can define 
criteria that will contain the essential PCEs. Kelp forests that 
provide resting habitat and protection from marine predators occur 
primarily in waters less than 20 m (65.6 ft) in depth (O'Clair and 
Lindstrom 2000, pp. 41, 57). In addition to identifying an approximate 
seaward extent of kelp forests, the 20-m (65.6-ft) depth contour also 
encompasses the nearshore shallow areas (less than 2 m (6.6 ft)) where 
marine predators may be less likely to forage. The 20-m (65.6-ft) depth 
contour also has considerable overlap with the nearshore (<100 m (328.1 
ft)) areas where otters can escape predators by hauling out on land. 
Areas of shallow water less than 20 m (65.6 ft) in depth that are not 
contiguous with the mean high tide line may provide less protection 
from marine predators. Nearshore marine waters ranging from mean high 
tide to 20 m (65.6 ft) in water depth or that occur within 100 m (328.1 
ft) of the mean high tide line (or both) therefore contain the 
necessary PCEs for protection from marine predators

[[Page 76460]]

(Figure 1). Based on numerous studies of sea otter foraging depths, as 
well as the distribution of the remaining sea otter population in 
nearshore, shallow water areas, we believe that the areas defined by 
PCEs 1-3 also contain sufficient sea otter prey resources. We have no 
reason to believe that any of the areas within the proposed critical 
habitat designation are unable to support the energetic requirements of 
this species.
[GRAPHIC] [TIFF OMITTED] TP16DE08.000

    When determining proposed critical habitat boundaries within this 
proposed rule, we made every effort to avoid including developed areas 
that lack PCEs for the southwest Alaska DPS of the northern sea otter. 
The scale of the map we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed areas, such as piers, docks, harbors, marinas, jetties, 
and breakwaters. Any such structures inadvertently left inside critical 
habitat boundaries shown on the map of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, Federal actions involving 
these areas would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the PCEs in the adjacent critical 
habitat.

Proposed Critical Habitat Designation

    We are proposing five units as critical habitat for the southwest 
Alaska DPS of the northern sea otter. In 2006, the Service convened a 
Recovery Team to develop a recovery plan for the southwest Alaska DPS 
of the northern sea otter. As of the publication date of this proposed 
rule, the Recovery Team has met five times, and a draft recovery plan 
is in preparation. As the range of the southwest Alaska DPS of the 
northern sea otter includes approximately 18,000 km (11,184.7 mi) of 
coastline, the team has proposed that the DPS be subdivided into 5 
management units, based on criteria such as habitat type and population 
trajectory. In the interest of clarity, we propose designating critical 
habitat units that correspond to the management units proposed by the 
Recovery Team. Only those areas within each management unit that meet 
the criteria identified above are being proposed as critical habitat--
namely, those areas that contain one or more PCEs and may require 
special management considerations or protection. Detailed, colored maps 
of areas proposed as critical habitat in this proposed rule are 
available for viewing at http://alaska.fws.gov/fisheries/mmm/seaotters/criticalhabitat.htm. Hard copies of maps can be obtained by contacting 
the Marine Mammals

[[Page 76461]]

Management Office (see FOR FURTHER INFORMATION CONTACT).
    The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for the DPS. Table 1 shows the occupied units. The 5 units we propose 
as critical habitat are: (1) Western Aleutian Unit; (2) Eastern 
Aleutian Unit; (3) South Alaska Peninsula Unit; (4) Bristol Bay Unit; 
and (5) Kodiak, Kamishak, Alaska Peninsula Unit.

                  Table 1--Occupancy of Northern Sea Otters by Proposed Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                                                                                 Estimated size   State/Federal
               Unit                  Occupied at time of  Currently  occupied?     of unit in    ownership ratio
                                          listing?                               km\2\  (mi\2\)      (percent)
----------------------------------------------------------------------------------------------------------------
1. Western Aleutian...............  Yes.................  Yes.................      1,551 (599)            100/0
2. Eastern Aleutian...............  Yes.................  Yes.................        893 (345)            100/0
3. South Alaska Peninsula.........  Yes.................  Yes.................    4,945 (1,909)            85/15
4. Bristol Bay....................  Yes.................  Yes.................      1,080 (417)             96/4
    4a. Amak Island...............  Yes.................  Yes.................          31 (12)            77/23
    4b. Izembek Lagoon............  Yes.................  Yes.................        337 (130)            100/0
    4c. Port Moller/Herendeen Bay.  Yes.................  Yes.................        712 (275)             94/6
5. Kodiak, Kamishak, Alaska         Yes.................  Yes.................    6,757 (2,609)            89/11
 Peninsula.
                                   -----------------------------------------------------------------------------
        Total.....................  ....................  ....................   15,226 (5,879)            90/10
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all proposed critical habitat 
units, and reasons why they meet the definition of critical habitat for 
the southwest Alaska DPS of the northern sea otter, below. Calculation 
of areas for units and subunits that include the 20-m (65.6-ft) depth 
contour as a criterion are approximations estimated from GIS data 
layers of hydrographic survey data compiled by the National Oceanic and 
Atmospheric Administration (NOAA), the U.S. Geological Survey, and the 
Service. Consultations under section 7 of the Act should use the best 
available bathymetric data on a case-by-case basis. In some instances, 
these data may be based on other units of measurement (such as feet or 
fathoms), in which case the bathymetric contour that is closest to 20 m 
(65.6 ft) should be used. For users of NOAA nautical charts, the 10-
fathom (60-ft) depth contour is a suitable approximation for the 20-m 
(65.6-ft) depth contour.
    Although no lands above mean high tide are proposed as critical 
habitat, ownership of lands adjacent to critical habitat may be of 
interest to reviewers of this proposal (Table 2).

                    Table 2--Ownership Status of Lands Adjacent to Proposed Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                  Federal                           Private       Alaska Native
                    Unit                         (percent)     State (percent)     (percent)        (percent)
----------------------------------------------------------------------------------------------------------------
1. Western Aleutian.........................             80.2              0.0              0.0             19.8
2. Eastern Aleutian.........................             10.2              0.0              0.0             89.8
3. South Alaska Peninsula...................             21.1              0.4              0.0             78.5
4. Bristol Bay..............................             36.7             41.5              0.0             21.8
    4a. Amak Island.........................            100.0              0.0              0.0              0.0
    4b. Izembek Lagoon......................             89.4              0.0              0.0             10.6
    4c. Port Moller/Herendeen Bay...........              4.9             66.1              0.0             29.0
5. Kodiak, Kamishak, Alaska Peninsula.......             30.2             17.4              0.0             52.4
                                             -------------------------------------------------------------------
    Total...................................             37.9              8.5              0.0             53.6
----------------------------------------------------------------------------------------------------------------

Unit 1: Western Aleutian Unit

    Unit 1 consists of at least 1,551 km\2\ (599 mi\2\), collectively, 
of the nearshore marine waters ranging from the mean high tide line to 
the 20-m (65.6-ft) depth contour as well as waters occurring within 100 
m (328.1 ft) of the mean high tide line. Hydrographic survey data in 
the vicinity of Atka and Amlia islands is insufficient to delineate the 
20-m (65.6-ft) depth contour, so our area calculation may slightly 
underestimate the total area of this unit. This unit ranges from Attu 
Island in the west to Kagamil Island in the east, was occupied at the 
time of listing, and is currently occupied. The majority (80.2 percent) 
of the lands bordering this unit are federally owned within the Alaska 
Maritime National Wildlife Refuge. In addition, all of the proposed 
critical habitat within this unit is located within State of Alaska 
waters (defined as those within 3 mi (4.82 km) of mean high tide).
    The Western Aleutian Unit contains all of the PCEs essential for 
the conservation of the southwest Alaska DPS of the northern sea otter. 
Special management considerations and protections may be needed to 
minimize the risk of oil and other hazardous-material spills from 
commercial shipping within the region and along the northern great 
circle route.

Unit 2: Eastern Aleutian Unit

    Unit 2 consists of an estimated 893 km\2\ (345 mi\2\), 
collectively, of the nearshore marine waters ranging from the mean high 
tide line to the 20-m (65.6-ft) depth contour as well as waters 
occurring within 100 m (328.1 ft) of the mean high tide line. This unit 
ranges from Samalga Island in the west to Ugamak Island in the east, 
was occupied at the time of listing, and is currently occupied. The 
majority (89.8 percent) of the lands bordering this unit are owned or 
selected (but not yet conveyed) by Alaska Natives. In addition, all of 
the proposed critical habitat within this unit is located within State 
of Alaska waters.

[[Page 76462]]

    The Eastern Aleutian Unit contains all of the PCEs essential for 
the conservation of the southwest Alaska DPS of the northern sea otter. 
Special management considerations and protections may be needed to 
minimize the risk of oil and other hazardous-material spills from 
commercial shipping within the region and along the northern great 
circle route.

Unit 3: South Alaska Peninsula Unit

    Unit 3 consists of an estimated 4,945 km\2\ (1,909 mi\2\), 
collectively, of the nearshore marine waters ranging from the mean high 
tide line to the 20-m (65.6-ft) depth contour as well as waters 
occurring within 100 m (328.1 ft) of the mean high tide line. Available 
hydrographic survey data for this unit have considerably lower spatial 
resolution than the other units. This unit ranges from Unimak Island in 
the west to Castle Cape in the east, was occupied at the time of 
listing, and is currently occupied. The majority (78.5 percent) of the 
lands bordering this unit are owned or selected (but not yet conveyed) 
by Alaska Natives. The vast majority (85 percent) of the proposed 
critical habitat within this unit is located within State of Alaska 
waters.
    The South Alaska Peninsula Unit contains all of the PCEs essential 
for the conservation of the southwest Alaska DPS of the northern sea 
otter. Special management considerations and protections may be needed 
to minimize the risk of oil and other hazardous-material spills from 
commercial shipping within this region and along the northern great 
circle route.

Unit 4: Bristol Bay Unit

    Unit 4 consists of an estimated 1,080 km\2\ (417 mi\2\) of the 
nearshore marine environment. This unit is further subdivided into 3 
subunits: (4a) Amak Island; (4b) Izembek Lagoon; and (4c) Port Moller/
Herendeen Bay. With the exception of Amak Island, the coastline 
contained within this unit is relatively simple and lacks kelp forests. 
For most of this unit, the 20-m (65.6-ft) depth contour used as a 
criterion for critical habitat in other units does not identify 
features that provide protection from marine predators, and is 
applicable only to the Amak Island subunit. Other criteria are used to 
identify the Izembek Lagoon and Port Moller/Herendeen Bay subunits, as 
described below. All three subunits within the Bristol Bay unit were 
occupied at the time of listing, and are currently occupied. Additional 
information about each subunit is included below.

Subunit 4a: Amak Island Subunit

    Subunit 4a consists of an estimated 31 km\2\ (12 mi\2\), 
collectively, of the nearshore marine waters ranging from the mean high 
tide line to the 20-m (65.6-ft) depth contour as well as waters 
occurring within 100 m (328.1 ft) of the mean high tide line. This 
subunit surrounds Amak Island in Bristol Bay, was occupied at the time 
of listing, and is currently occupied. Large groups of sea otters have 
been observed within the kelp forests within this subunit (USFWS 
unpublished information). All of the lands bordering this unit are 
federally owned within the Alaska Maritime National Wildlife Refuge. 
Most (77 percent) of the proposed critical habitat within this subunit 
is located within State of Alaska waters, a small portion of which (1.2 
km\2\, 0.46 mi\2\) is also located within the boundaries of the Izembek 
State Game Refuge.
    The Amak Island Subunit contains all of the PCEs essential for the 
conservation of the southwest Alaska DPS of the northern sea otter. 
Special management considerations and protections may be needed to 
minimize the risk of oil and other hazardous-material spills from 
commercial shipping within Bristol Bay. In addition, offshore oil and 
gas development are under consideration in the Lease Sale Area 92 in 
the North Aleutian Basin region immediately offshore from this unit. An 
environmental impact statement is in preparation, and will be completed 
prior to the lease sale. Additional management considerations and 
protections may be needed to minimize the risk of crude-oil spills 
associated with oil and gas development and production that may impact 
this subunit.

Subunit 4b: Izembek Lagoon Subunit

    Subunit 4b consists of an estimated 337 km\2\ (130 mi\2\) of the 
nearshore marine environment within the Izembek Lagoon and Moffett 
Lagoon systems. Sea otters are known to frequent the lagoon system and 
regularly haul out on the islands and sandbars that form the northern 
boundary of these systems, such as Glen, Operl, and Neumann Islands 
(USFWS unpublished information). Large numbers of otters have also been 
observed hauling out along the edges of the sea ice within the lagoon 
in winter (USFWS unpublished information). This subunit was occupied at 
the time of listing, and is currently occupied. The majority (89.4 
percent) of the lands bordering this unit are federally owned within 
the Izembek National Wildlife Refuge. The proposed critical habitat 
within this subunit is located within State of Alaska waters, most of 
which (99 percent) is also within the boundaries of the Izembek State 
Game Refuge.
    The Izembek Lagoon Subunit contains some of the PCEs (1, 2 and 4) 
essential for the conservation of the southwest Alaska DPS of the 
northern sea otter. Special management considerations and protections 
may be needed to minimize the risk of oil and other hazardous-material 
spills from commercial shipping within Bristol Bay. In addition, 
offshore oil and gas development are under consideration in the Lease 
Sale Area 92 in the North Aleutian Basin region immediately offshore 
from this subunit. Additional management considerations and protections 
may be needed to minimize the risk of crude-oil spills associated with 
oil and gas development and production that may impact this subunit.

Subunit 4c: Port Moller/Herendeen Bay Subunit

    Subunit 4c consists of an estimated 712 km\2\ (275 mi\2\) of the 
nearshore marine environment within the Port Moller and Herendeen Bay 
systems. This subunit was occupied at the time of listing, and is 
currently occupied. Aerial surveys conducted in 2000 and 2004, as well 
as additional reported observations, indicate that these areas may 
contain several thousand sea otters at any given time (Burn and Doroff 
2005, p. 277; USFWS unpublished information). The seaward boundary of 
this subunit extends from Point Edward on the Alaska Peninsula to the 
western tip of Walrus Island, and from Wolf Point on the eastern tip of 
Walrus Island to Entrance Point on the Alaska Peninsula. The majority 
(66.1 percent) of the lands bordering to this unit are owned or 
selected (but not yet conveyed) by the State of Alaska. Most (94 
percent) of the critical habitat within this subunit is located within 
State of Alaska waters, with a portion (140.8 km\2\ (54.4 mi\2\)) 
located within the boundaries of the Port Moller State Critical Habitat 
area.
    The Port Moller/Herendeen Subunit contains some of the PCEs (1,2, 
and 4) essential for the conservation of the southwest Alaska DPS of 
the northern sea otter. Special management considerations and 
protections may be needed to minimize the risk of oil and other 
hazardous-material spills from commercial shipping within Bristol Bay. 
In addition, offshore oil and gas development are under consideration 
in the Lease Sale Area 92 in the North Aleutian Basin region 
immediately offshore from this subunit. Additional management 
considerations and

[[Page 76463]]

protections may be needed to minimize the risk of crude-oil spills 
associated with oil and gas development and production that may impact 
this subunit.

Unit 5: Kodiak, Kamishak, Alaska Peninsula Unit

    Unit 5 consists of an estimated 6,757 km\2\ (2,609 mi\2\), 
collectively, of the nearshore marine environment ranging from the mean 
high tide line to the 20-m (65.6-ft) depth contour as well as waters 
occurring within 100 m (328.1 ft) of the mean high tide line. Available 
hydrographic survey data for parts of this unit have considerably lower 
spatial resolution than the other units. This unit ranges from Castle 
Cape in the west to Tuxedni Bay in the east, and includes the Kodiak 
archipelago. This unit was occupied at the time of listing, and is 
currently occupied. Slightly more than half (52.4 percent) of the lands 
bordering this unit are either owned or selected (but not yet conveyed) 
by Alaska Natives. The majority (89 percent) of the proposed critical 
habitat within this unit is located within State of Alaska waters, a 
small portion which (41.0 km\2\, 15.8 mi\2\) is also located within the 
boundaries of the Tugidak Island State Critical Habitat area.
    The Kodiak, Kamishak, Alaska Peninsula Unit contains all the PCEs 
essential for the conservation of the southwest Alaska DPS of the 
northern sea otter. Special management considerations and protections 
may be needed to minimize the risk of oil and other hazardous-material 
spills from commercial shipping within this region.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5th and 9th Circuit Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et. al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species.
    In addition, under section 7(a)(4) of the Act, Federal agencies 
must confer with the Service on any agency action that is likely to 
result in destruction or adverse modification of proposed critical 
habitat.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act 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 to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
we document compliance with the requirements of section 7(a)(2) through 
our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect the southwest Alaska DPS of the 
northern sea otter or its designated critical habitat require section 7 
consultation under the Act. Activities on State, Tribal, local, or 
private lands requiring a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the 
Act) or involving some other Federal action (such as funding from the 
Federal Highway Administration, Federal Aviation Administration, or the 
Federal Emergency Management Agency) are subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not federally funded or authorized do not require section 7 
consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
PCEs to an extent that appreciably reduces the conservation value of 
critical habitat for the southwest Alaska DPS of the northern sea 
otter.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the southwest Alaska DPS of the northern sea otter 
include, but are not limited to:

[[Page 76464]]

    (1) Actions that would directly impact the PCEs that provide 
protection from marine predators. Such activities could include, but 
are not limited to, dredging, filling, and construction of docks, 
seawalls, pipelines, or other structures. Loss of the PCEs could result 
in increased predation pressure on the remaining sea otter population, 
and potentially affect the conservation of the DPS.
    (2) Actions that would reduce the availability of sea otter prey 
species. Such activities could include, but are not limited to, 
dredging, filling, construction of docks, seawalls, pipelines, or other 
structures, and development of new fisheries for sea otter prey 
species. Otters that are using critical habitat for protection from 
marine predators must also be able to feed in these areas. Activities 
that reduce availability of prey may cause otters to forage outside of 
these protective areas, thus increasing their vulnerability to 
predators.
    (3) Actions that would render critical habitat areas unsuitable for 
use by sea otters. Such activities could include, but are not limited 
to, human disturbance or pollution from a variety of sources, including 
discharges from oil and gas drilling and production or spills of crude 
oil, fuels, or other hazardous materials from vessels, primarily in 
harbors or other construction ports for marine vessels. While it is not 
legal to discharge fuel or other hazardous materials, it does happen 
more often in these areas than in other areas. These activities could 
displace sea otters from areas that provide protection from marine 
predators.

Exemptions and Exclusions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    Eareckson Air Station, located on Shemya Island within the western 
Aleutian unit has a completed INRMP that was last updated in 2007. This 
INRMP recognizes the importance of kelp beds to sea otters (U.S. Air 
Force 2007, p. 39), and notes that the only impacts to kelp may be from 
occasional barge traffic. In addition to Eareckson, the Air Force has a 
completed INRMP for 4 inactive sites (Nikolski, Driftwood Bay, Port 
Moller, and Port Heiden) within the range of the southwest Alaska DPS 
(U.S. Air Force 2001). All of these sites were deactivated between 1977 
and 1978, and either demolished or removed between 1988 and 1994. Of 
these, the Port Heiden site is the only one that includes shoreline 
areas. All critical habitat described in this proposal occurs below the 
mean high tide line and is therefore not within the boundaries of the 
Department of Defense facility. Therefore, there are no Department of 
Defense lands with a completed INRMP within the proposed critical 
habitat designation.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If, based on 
this analysis, we make the determination that the benefits of excluding 
a particular area outweigh the benefits of including it in the 
designation, then we can exclude the area only if such exclusion would 
not result in the extinction of the species.
    Under section 4(b)(2) of the Act, we must consider all relevant 
impacts, including economic impacts. We consider a number of factors in 
a section 4(b)(2) analysis. For example, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. We also consider whether the 
landowners have developed any habitat conservation plans (HCPs) for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the southwest 
Alaska DPS of the northern sea otter are not owned or managed by the 
Department of Defense, there are currently no HCPs for the southwest 
Alaska DPS of the northern sea otter, and the proposed designation does 
not include any tribal lands or trust resources.
    We anticipate no impact to national security, Tribal lands, or HCPs 
from this proposed critical habitat designation. Based on the best 
available information, we believe that all of these proposed critical 
habitat units contain the features essential to the southwest Alaska 
DPS of the northern sea otter. At this time, we have not analyzed areas 
for which the benefits of exclusion outweigh the

[[Page 76465]]

benefits of inclusion; therefore we are not identifying any specific 
exclusions for the final rule designating critical habitat for the DPS. 
However, during the development of a final designation, we will be 
considering economic and other relevant impacts and additional 
conservation plans, if available, public comments, and other new 
information such that areas may be excluded from the final critical 
habitat designation under section 4(b)(2) of the Act.

Economics

    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for economic reasons if the Secretary determines 
that the benefits of such exclusion exceed the benefits of designating 
the area as critical habitat. However, this exclusion cannot occur if 
it will result in the extinction of the species concerned.
    In compliance with section 4(b)(2) of the Act, we are preparing an 
analysis of the economic impacts of proposing critical habitat for the 
southwest Alaska DPS of the northern sea otter to evaluate the 
potential economic impact of the designation. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://www.regulations.gov, or from the Marine 
Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). We may 
exclude areas from the final rule based on the information in the 
economic analysis.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert 
opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We have invited these peer reviewers 
to comment during this public comment period on our specific 
assumptions and conclusions in this proposed designation of critical 
habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, our final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days of the date of publication of this 
proposal (see the DATES section). Send your request to the person named 
in the FOR FURTHER INFORMATION CONTACT section. We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register and local newspapers 
at least 15 days before the first hearing.

Editorial Changes to the Table at 50 CFR 17.11(h)

    We also propose certain editorial changes to the northern sea 
otter's entry in the List of Endangered and Threatened Wildlife at 50 
CFR 17.11(h). First, we would update the entry to accurately reflect 
the citation of the special rule for this DPS, which was published on 
August 15, 2006, at 71 FR 46864. In that final rule, we inadvertently 
neglected to update the entry to note the special rule at 50 CFR 
17.40(p). Second, we are providing the ``When Listed'' date for the 
entry. That date was not included when we published the final rule 
listing the southwest Alaska DPS of the northern sea otter as 
threatened (70 CFR 46366). These editorial changes would help ensure 
the entry for the northern sea otter in the List of Endangered and 
Threatened Wildlife at 50 CFR 17.11(h) is complete and accurate.

Required Determinations

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (E.O. 12866). OMB bases its determination upon 
the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and E.O. 
12866. This draft economic analysis will provide the required factual 
basis for the RFA finding. Upon completion of the draft economic 
analysis, we will announce availability of the draft economic analysis 
of the proposed designation in the Federal Register and reopen the 
public comment period for the proposed designation. We will include 
with this announcement, as appropriate, an initial regulatory 
flexibility analysis or a certification that the rule will not have a 
significant economic impact on a substantial number of small entities 
accompanied by the factual basis for that determination. We have 
concluded that deferring the RFA finding until completion of the draft 
economic analysis is necessary to meet the purposes and requirements of 
the RFA. Deferring the RFA finding in this manner will ensure that we 
make a sufficiently informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.''

[[Page 76466]]

These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule would significantly or 
uniquely affect small governments because the areas being proposed for 
critical habitat designation occur within State of Alaska waters. The 
State of Alaska does not fit the definition of ``small governmental 
jurisdiction.'' Waters adjacent to Native-owned lands are still owned 
and managed by the State of Alaska. In most cases, development around 
Native villages is happening with funding from Federal or State sources 
(or both). Therefore, a Small Government Agency Plan is not required. 
However, we will further evaluate this issue as we conduct our economic 
analysis, and review and revise this assessment as warranted.

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the southwest Alaska DPS of the northern sea otter in a 
takings implications assessment. The takings implications assessment 
concludes that this proposed designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter does not pose 
significant takings implications for lands within or affected by the 
designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in Alaska. The designation of 
critical habitat in areas currently occupied by the southwest Alaska 
DPS of the northern sea otter imposes no additional restrictions to 
those currently in place and, therefore, has little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because the areas that 
contain the features essential to the conservation of the species are 
more clearly defined, and the primary constituent elements of the 
habitat necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the southwest Alaska DPS of the 
northern sea otter.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency 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.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et 
seq.) in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This determination 
was upheld by the Circuit Court of the United States for the Ninth 
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one

[[Page 76467]]

of the methods listed in the ADDRESSES section. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. As all the proposed critical habitat 
units occur seaward from the mean high tide line, we have determined 
that there are no tribal lands occupied at the time of listing that 
contain the features essential for the conservation, and no tribal 
lands essential for the conservation, of the southwest Alaska DPS of 
the northern sea otter. Therefore, we have not proposed designation of 
critical habitat for the southwest Alaska DPS of the northern sea otter 
on tribal lands.
    We do not expect the proposed critical habitat to have any impact 
on tribal subsistence activities. All subsistence hunting would take 
place in or on State lands or waters. Unless subsistence hunting is 
determined to be ``materially and negatively impacting the DPS,'' then 
harvest would not be regulated.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Offshore oil and gas development are under consideration in the Lease 
Sale Area 92 in the North Aleutian Basin region immediately offshore 
from the three subunits of the Bristol Bay proposed critical habitat 
unit. We do not expect this proposed rule to significantly affect 
energy supplies, distribution (including shipping channels), or use 
because most oil and gas development activities would not overlap with 
the habitats used by northern sea otters, and we would not expect the 
activities to cause significant alteration of the PCEs. Any proposed 
development project likely would have to undergo section 7 consultation 
to ensure that the actions would not destroy or adversely modify 
designated critical habitat. Consultations may entail modifications to 
the project to minimize the potential adverse effects to northern sea 
otter critical habitat. A spill-response plan would have to be 
developed to minimize the chance that a spill would have negative 
effects on sea otters or critical habitat. However, we conduct 
thousands of consultations every year throughout the United States, and 
in almost all cases, we are able to accommodate both project and 
species' needs. We expect that to be the case here. Therefore, this 
action is not a significant energy action, and no Statement of Energy 
Effects is required. However, we will further evaluate this issue as we 
conduct our economic analysis, and review and revise this assessment as 
warranted.

References Cited

    A complete list of all references cited in this proposed rulemaking 
is available upon request from the Field Supervisor, Marine Mammals 
Management Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary author of this package is the Marine Mammals Management 
Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road, 
Anchorage, AK 99503.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.11(h), revise the entry for ``Otter, northern sea'' 
under ``MAMMALS'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where                                         Critical     Special
                                                       Historic range      endangered  or         Status          When listed       habitat      rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
 
                                                                      * * * * * * *
Otter, northern sea............  Enhydra lutris      U.S.A., (AK, WA)..  Southwest Alaska,   T..............  August 9, 2005....    17.95(a)    17.40(p)
                                  kenyoni.                                from Attu Island
                                                                          to Western Cook
                                                                          Inlet, including
                                                                          Bristol Bay, the
                                                                          Kodiak
                                                                          Archipelago, and
                                                                          the Barren
                                                                          Islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 76468]]

    3. In Sec.  17.95, amend paragraph (a) by adding an entry for 
``Northern Sea Otter (Enhydra lutris kenyoni), Southwest Alaska 
Distinct Population Segment,'' in the same alphabetical order that the 
species appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Northern Sea Otter (Enhydra lutris kenyoni), Southwest Alaska Distinct 
Population Segment
    (1) Critical habitat units are in Alaska, as described below.
    (2) The primary constituent elements of critical habitat for the 
southwest Alaska distinct population segment (DPS) of the northern sea 
otter are:
    (i) Shallow, rocky areas where marine predators are less likely to 
forage, which are in waters less than 2 m (6.6 ft) in depth;
    (ii) Nearshore waters within 100 m (328.1 ft) from the mean high 
tide line; and
    (iii) Kelp forests, which occur in waters less than 20 m (65.6 ft) 
in depth.
    (iv) Prey resources within the areas identified by PCEs 1-3 that 
are present in sufficient quantity and quality to support the energetic 
requirements of the species.
    (3) Critical habitat does not include manmade structures 
(including, but not limited to, docks, seawalls, pipelines, or other 
structures) and the land on which they are located existing within the 
boundaries on the effective date of this rule.
    (4) Critical habitat map units. Boundaries of critical habitat were 
derived from GIS data layers of hydrographic survey data developed by 
the National Oceanic and Atmospheric Administration. To estimate the 
size of each critical habitat unit, the data were projected into Alaska 
Standard Albers Conical Equal Area on the North American Datum of 1983. 
Given the large geographic range of this DPS, some two-dimensional 
areas appear as one-dimensional features at these map scales.
    (5) Note: Index Map for critical habitat for the southwest Alaska 
DPS of the northern sea otter follows:
[GRAPHIC] [TIFF OMITTED] TP16DE08.001


[[Page 76469]]


    (6) Unit 1: Western Aleutian. All contiguous waters from the mean 
high tide line to the 20-m (65.6-ft) depth contour as well as waters 
within 100 m (328.1 ft) of the mean high tide line that occur adjacent 
to the following islands: Adak, Agattu, Alaid, Amatignak, Amchitka, 
Amlia, Amukta, Anagaksik, Asuksak, Atka, Attu, Aziak, Bobrof, Buldir, 
Carlisle, Chagula, Chuginadak, Chugul, Crone, Davidof, Elf, Gareloi, 
Great Sitkin, Herbert, Igitkin, Ilak, Kagalaska, Kagamil, Kanaga, Kanu, 
Kasatochi, Kavalga, Khvostof, Kiska, Koniuji, Little Kiska, Little 
Sitkin, Little Tanaga, Nizki, Ogliuga, Oglodak, Rat, Sadatanak, 
Sagchudak, Salt, Seguam, Segula, Semisopochnoi, Shemya, Skagul, 
Tagadak, Tagalak, Tanaga, Tanaklak, and Ulak.
    (7) Unit 2: Eastern Aleutian. All contiguous waters from the mean 
high tide line to the 20-m (65.6-ft) depth contour as well as waters 
within 100 m (328.1 ft) of the mean high tide line that occur adjacent 
to the following islands: Aiktak, Akutan, Amaknak, Arangula, Atka, 
Avatanak, Baby Islands, Bogoslof, Egg, Hog, Kaligagan, Rootok, Samalga, 
Sedanka, Tigalda, Ugamak, Umnak, Unalaska, Unalga, and Vsevidof.
    (8) Unit 3: South Alaska Peninsula. All contiguous waters from the 
mean high tide line to the 20-m (65.6-ft) depth contour as well as 
waters within 100 m (328.1 ft) of the mean high tide line that occur 
adjacent to the Alaska Peninsula from False Pass (54.242[deg] N, 
163.363[deg] W) to Castle Cape (56.242[deg] N, 158.117[deg] W), and 
adjacent to the following islands: Andronica, Atkins, Big Koniuji, 
Bird, Brother, Caton, Chankliut, Chernabura, Cherni, Chiachi, Deer, 
Dolgoi, Egg, Goloi, Guillemot, Inner Iliask, Jacob, Karpof, Korovin, 
Little Koniuji, Mitrofania, Nagai, Near, Outer Iliask, Paul, Peninsula, 
Pinusuk, Poperechnoi, Popof, Road, Sanak, Shapka, Simeonof, Spectacle, 
Spitz, Turner, Ukolnoi, Ukolnoi, Unga, and Unimak Island from Scotch 
Cap (54.390[deg] N, 164.745[deg] W) to False Pass.
    (9) Unit 4: Bristol Bay. This unit contains three subunits:
    (i) Subunit 4a: Amak Island. All contiguous waters from the mean 
high tide line to the 20-m (65.6-ft) depth contour as well as waters 
within 100 m (328.1 ft) of the mean high tide line that occur adjacent 
to Amak Island.
    (ii) Subunit 4b: Izembek Lagoon. All waters from mean high tide 
line that occur within the polygon bounded by Glen, Operl, and Neumann 
Islands to the north and the Alaska Peninsula to the south, and further 
defined by the following latitude/longitude coordinates: 55.249[deg] N, 
162.990[deg] W; 55.255[deg] N, 162.984[deg] W from Cape Glazenap to 
Glen Island; 55.324[deg] N, 162.901[deg] W; 55.333[deg] N, 162.888[deg] 
W from Glen Island to Operl Island; 55.409[deg] N, 162.683[deg] W; 
55.408[deg] N, 162.621[deg] W from Operl Island to Neumann Island; and 
55.447[deg] N, 162.582[deg] W; 55.447[deg] N, 162.577[deg] W from 
Neumann Island to Moffet Point.
    (iii) Subunit 4c: Port Moller/Herendeen Bay. All waters from mean 
high tide line that occur within the polygon bounded by Walrus Island 
to the north and the Alaska Peninsula to the south, and further defined 
by the following latitude/longitude coordinates: 56.000[deg] N, 
160.877[deg] W; 56.020[deg] N, 160.854[deg] W from Point Edward to 
Walrus Island; and 56.020[deg] N, 160.805[deg] W; 55.979[deg] N, 
160.584[deg] W from Wolf Point to Entrance Point.
    (10) Unit 5: Kodiak, Kamishak, Alaska Peninsula. All contiguous 
waters from the mean high tide line to the 20-m (65.6-ft) depth contour 
as well as waters within 100 m (328.1 ft) of the mean high tide line 
that occur adjacent to the Alaska Peninsula from Castle Cape (56[deg] 
14.5' N, 158[deg] 7.0' W) eastward to Cape Douglas (58.852[deg] N, 
153.250[deg] W), and northward in Cook Inlet to Redoubt Point 
(60.285[deg] N, 152.417[deg] W), and adjacent to the following islands: 
Afognak, Aghik, Aghiyuk, Aiaktalik, Akhiok, Aliksemik, Amook, Anowik, 
Ashiak, Atkulik, Augustine, Ban, Bare, Bear, Central, Chirikof, Chisik, 
Chowiet, Dark, David, Derickson, Dry Spruce, Eagle, East Amatuli, East 
Channel, Garden, Geese, Hartman, Harvester, Hydra, Kak, Kateekuk, 
Kiliktagik, Kiukpalik, Kodiak, Kulik, Long, Marmot, Miller, Nakchamik, 
Ninagiak, Nord, Nordyke, Poltava, Raspberry, Sally, Shaw, Shuyak, 
Sitkalidak, Sitkanak, Spruce, Sud, Sugarloaf, Suklik, Sundstrom, 
Sutwick, Takli, Terrace, Tugidak, Twoheaded, Ugak, Ugalushik, Uganik, 
Unavikshak, Ushagat, West Amatuli, West Augustine, West Channel, Whale, 
and Woody.
* * * * *

     Dated: December 1, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-28897 Filed 12-15-08; 8:45 am]
BILLING CODE 4310-55-P