[Federal Register Volume 74, Number 194 (Thursday, October 8, 2009)]
[Rules and Regulations]
[Pages 51988-52012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24087]



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Part III





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; Final Rule

  Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / 
Rules and Regulations  

[[Page 51988]]


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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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating 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 15,164 square kilometers (km2) (5,855 
square miles (mi2)) fall within the boundaries of the 
critical habitat designation. All the critical habitat is located in 
Alaska.

DATES: This rule becomes effective on November 9, 2009.

ADDRESSES: The final rule and final economic analysis are available for 
viewing at http://regulations.gov. Detailed color maps of areas 
designated as critical habitat are available for viewing at http://alaska.fws.gov/fisheries/mmm/seaotters/criticalhabitat.htm. Supporting 
documentation we used in preparing this final rule is available for 
public inspection, by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, 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.

FOR FURTHER INFORMATION CONTACT: Douglas M. Burn, Wildlife Biologist, 
Marine Mammals Management Office (see ADDRESSES section). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the southwest Alaska distinct 
population segment (DPS) of the northern sea otter in this final 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), the proposed rule to 
designate critical habitat published in the Federal Register on 
December 16, 2008 (73 FR 76454), and the June 9, 2009 (74 FR 27271), 
notice of availability of the draft economic analysis (DEA). 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.

Previous Federal Actions

    We listed the southwest Alaska DPS of the northern sea otter as 
threatened on August 9, 2005 (70 FR 46366). We considered critical 
habitat to be prudent, but not determinable, and we therefore did not 
designate critical habitat for this DPS at the time of listing. When we 
make a not determinable finding, we must, within 1 year of the 
publication date of the final listing rule, designate critical habitat, 
unless we find designation 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, and we published a proposal to designate 
critical habitat for the southwest Alaska DPS of the northern sea otter 
in the Federal Register on December 16, 2008 (73 FR 76454). We accepted 
public comments on this proposal for 60 days, ending on February 17, 
2009. In response to requests from the public, we published a document 
(74 FR 21614) reopening the public comment period from May 8, 2009, 
through July 1, 2009. We also published a notice of availability of the 
economic analysis of critical habitat designation on June 9, 2009 (74 
FR 27271), and extended the public comment period through July 9, 2009. 
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).

Summary of Comments and Recommendations

    We requested written comments from the public during the public 
comment period on the proposed rule to designate critical habitat for 
the southwest Alaska DPS of the northern sea otter. During the public 
comment period, we also contacted appropriate Federal, State, and local 
agencies; Alaska Native organizations; and other interested parties and 
invited them to comment on the proposed rule to designate critical 
habitat for this DPS and the associated draft economic analysis (DEA).
    The comment period on the proposed critical habitat rule originally 
opened December 16, 2008 (73 FR 76454), and closed February 17, 2009. 
During that time, we received one request for a public hearing. On May 
8, 2009, we announced a public hearing, and reopened the public comment 
period from May 8, 2009, through July 1, 2009 (74 FR 21614). We held a 
public hearing on June 18, 2009, in Anchorage, Alaska. The public 
hearing was attended by nine people, and although telephone access was 
provided toll-free during the hearing, we received no calls. On June 9, 
2009, we published a notice of availability of the DEA, and we extended 
the public comment period through July 9, 2009, to allow interested 
parties to comment on both the proposed critical habitat rule and the 
associated DEA (74 FR 27271). From June 9 through July 9, 2009, we also 
operated a toll-free public comment hotline, which enabled callers to 
record their public comments, to be later transcribed and entered into 
the official record. We received no comments on the toll-free hotline.
    During the public comment periods, we received 28 sets of public 
comments directly addressing the proposed designation of critical 
habitat: 2 from Federal agencies, 1 from a State agency, 1 from a local 
government, and the remainder from organizations and individuals. At 
the June 18, 2009, public hearing, we received one comment directly 
addressing the proposed designation of critical habitat.

Peer Review

    In accordance with our policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we solicited expert 
opinions from 10 knowledgeable individuals with scientific expertise 
that included familiarity with the DPS, the geographic region in which 
it occurs, and conservation biology principles. We

[[Page 51989]]

received responses from two of the peer reviewers. We reviewed all 
comments received from the peer reviewers and the public for 
substantive issues and new information regarding critical habitat for 
the southwest Alaska DPS of the northern sea otter. These comments, 
which were aggregated by subject matter, are summarized and addressed 
below and are incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment 1: One peer reviewer questioned our characterization of how 
sea otters use various types of kelp habitat, specifically those of the 
genera Nereocystis and Macrocystis.
    Our Response: We have revised and clarified the discussion in the 
final rule based on this comment.
    Comment 2: One peer review commented that Alaria fistulosa (the 
primary canopy kelp in the Aleutians) is no longer classified as the 
genus Alaria, and stated that it has been re-named Druehlia fistulosa.
    Our Response: We have revised the final rule based on this comment.

Public Comments

Comments Related to Primary Constituent Elements (PCEs) and Proposed 
Critical Habitat Areas

    Comment 3: Several comments expressed concern that the area defined 
by the proposed PCEs (described below under ``Primary Constituent 
Elements'') may not contain sufficient prey resources to support the 
recovery of the southwest Alaska DPS, and should therefore be expanded 
in size. One commenter suggested that the seaward boundary should be 
set at the 30-meter (m) (98.4-feet (ft)) depth contour, but did not 
provide a justification for this value. Another commenter suggested it 
should be the 100-m (328.1 ft) depth contour based on the physiological 
limits of sea otter diving capability. Yet another commenter simply 
stated that the area of designated critical habitat should be doubled.
    Our Response: We agree that the presence of adequate prey resources 
is important for the conservation of the southwest Alaska DPS. While 
any of the options suggested by the commenters would include additional 
foraging areas in the designation of critical habitat, the commenters 
provide no clear scientific rationale for the specific water depths 
they suggested. The choice of the 100-m (328.1 ft) depth contour has a 
biological basis, as it delineates the physiological limits of sea 
otter diving capabilities. However, information on sea otter diving 
behavior indicates that the value of sea otter foraging habitat is 
inversely proportional to water depth. For example, research in 
southeast Alaska shows that 84 percent of foraging occurs in depths 
between 2 and 30m (6.6 and 98.4 ft), and female sea otters do the vast 
majority (85 percent) of their foraging in waters less than 20m (65.6 
ft) in depth. Recent research from California suggests these patterns 
may be similar among populations (Tinker et al. 2006, p. 148). Our 
selection of the 20-m (65.6-ft) depth contour therefore includes the 
majority of the most important sea otter foraging areas.
    The areas defined by the PCEs that we proposed for designation as 
critical habitat include the intertidal zone, as well as adjacent 
shallow waters where otters may feed while being relatively protected 
from marine predators. Sea otters do not appear to be limited by prey 
availability within the DPS, especially in areas where the population 
has declined the most, such as the Aleutian archipelago. A thorough 
analysis indicates that there is limited competition with commercial 
fishermen for sea otter prey resources throughout the range of the DPS 
(Funk 2003, p. 2). Because sea otters do not appear food limited, 
foraging areas that do not also provide shelter from predators (e.g., 
areas that occur in water depths ranging from 20 to 100m (65.6 to 328.1 
ft)) are not identified as a feature essential to the conservation of 
the sea otter and are therefore not included in this designation.
    Comment 4: Critical habitat should not be limited to areas that are 
currently occupied by sea otters, and should include historically 
occupied areas as well.
    Our Response: With the exception of some relatively small areas on 
Kodiak Island (included in our proposal), there is virtually no 
unoccupied habitat within the range of the southwest Alaska DPS. We 
also note that those areas of Kodiak Island are unoccupied because they 
had yet to be recolonized following protection by the 1911 Fur Seal 
Treaty that prohibited commercial fur harvests of sea otters. Lack of 
occupation by sea otters in this area is not a result of the recent 
population decline that led to the listing of this DPS as threatened.
    The areas defined by the PCEs and proposed for critical habitat are 
a subset of what we consider to be occupied sea otter habitat and are 
sufficient to provide for the conservation of the DPS. Sea otter 
densities are not uniform throughout the set of all possible sea otter 
habitat, however, and differ both longitudinally and perpendicularly 
with the shore. While the highest densities appear to occur in 
shallower waters that are closer to shore, we do not consider sea otter 
habitat that occurs further seaward than the proposed critical habitat 
(i.e., waters deeper that 20m (65.6 ft) in depth) to be unoccupied 
habitat, as otters are still observed there on occasion. We explain our 
reasoning for why these areas do not meet the definition of critical 
habitat in our response to Comment 3.
    Comment 5: Some areas in the Kodiak and Cook Inlet appear to have 
been inappropriately excluded from critical habitat designation.
    Our Response: We believe that this comment was submitted due to an 
artifact in one or more of the maps that were published on the 
Service's Region 7 web site. It is important to distinguish between the 
PCEs (and their associated criteria such as water depth or distance 
from the mean high tide line) and the ability to map them. With the 
exception of areas where the water depth drops off abruptly from shore, 
the 20-m (65.6-ft) depth contour typically constitutes the seaward 
extent of critical habitat. We believe that the scale of some of the 
maps may have given the appearance that areas were excluded from 
designation as critical habitat, when in reality they were not. In 
order to alleviate any confusion over the location of critical habitat, 
we intend to make GIS data layers available to the public once the 
designation is final.
    Comment 6: The Service should consider PCEs related to reproduction 
and the rearing of offspring.
    Our Response: Unlike other species that have identified breeding 
habitat, sea otters conduct all aspects of their life history in 
essentially the same places. Mothers with pups often seek shelter from 
rough seas, and though we did not explicitly address this in the 
proposed rule, the areas defined by the PCEs include nearshore waters 
that do provide shelter for mothers with pups. Recent studies using 
time-depth recorders indicate that female sea otters forage in 
shallower waters more than males, with the majority of their foraging 
effort occurring in waters less than 20m (65.6 ft) in depth (Bodkin et 
al. 2004, p. 305). Therefore, the identified PCEs already include areas 
that are essential for reproduction and the rearing of offspring. We 
have also expanded our discussion of this subject in this final rule.
    Comment 7: Maintaining large habitat patches that can facilitate 
movement between otter populations is essential to the conservation of 
this population.
    Our Response: With the exception of Unit 4 (Bristol Bay), the 
critical habitat occurs as contiguous zones around all

[[Page 51990]]

islands and mainland Alaska within the range of the southwest Alaska 
DPS. Movement within any discrete patch of critical habitat is not 
restricted. We therefore interpret this comment to be addressing the 
movement between discrete patches, for example, between islands and 
island groups in Units 1, 2, 3, and 5.
    During the course of recolonization of their range during the 20th 
century, sea otter movements of this kind occurred from occupied 
islands to unoccupied ones. However, current conditions differ in that 
the waters around most (if not all) of these islands remain inhabited, 
but by lower densities of sea otters. We believe, based on the best 
available information, that recovery can occur with a minimal amount of 
dispersal between islands. Therefore, designation of large patches of 
area connecting islands (or island groups) as critical habitat is not 
essential to the conservation of the DPS.
    Comment 8: The offshore waters in Unit 4 should be designated as 
critical habitat due to their likely importance in fulfilling PCE 
categories 1 (shallow, rocky areas in waters less than 2m (6.6 ft) in 
depth) and 2 (waters within 100m (328.1 ft) of the mean high tide 
line).
    Our Response: Although we could apply the criteria for PCEs 1 and 2 
to this unit, the area they delineate does not contain the physical and 
biological features, and therefore would not serve the same function as 
it does in the other critical habitat units. Rocky substrates and kelp 
beds are scarce in Unit 4 (Bristol Bay), and we applied these PCEs to 
the one place where they occur to delineate subunit 4a (Amak Island). 
Shallow, rocky areas where marine predators are less likely to forage 
(PCE 1) are scarce throughout the remainder of Unit 4. This commenter 
correctly noted that because of the bathymetry in Bristol Bay, otters 
can forage at greater distances from shore. Unlike our survey 
information from several islands in critical habitat Unit 1 (Western 
Aleutians), we have no information that indicates that nearshore waters 
(PCE 2) provide protection or escape from marine predators, which may 
be due to the lack of PCE 1 in these areas. Therefore, we do not 
believe the application of PCEs 1 and 2 within Unit 4 would identify 
features that provide cover and shelter from marine predators, and 
would be essential to the conservation of the DPS.
    Comment 9: It is not clear that the proposed PCEs will provide for 
range expansion and the conservation of the species.
    Our Response: With the exception of some relatively small areas on 
Kodiak Island, sea otters currently occupy all their former range. 
Therefore, range expansion will likely not be necessary for the 
conservation of the southwest Alaska DPS.
    Comment 10: The Service should consider combining all proposed 
``Primary Constituent Elements'' (PCEs) instead of using them 
independently to define critical habitat.
    Our Response: Each PCE has its own explicit criterion, and for the 
purposes of clarity we believe that it is best to list them 
individually. The individual PCEs laid out in the appropriate quantity 
and spatial arrangement essential for the conservation of the species 
define the physical and biological features that are essential for the 
conservation of the DPS. Although it is not a requirement, most of the 
areas that were proposed for designation as critical habitat do contain 
all four PCEs.
    Comment 11: The amount of critical habitat is excessive, and the 
criteria used to designate critical habitat should be narrowed in order 
to select more discrete areas of critical habitat that are essential to 
the conservation of the species so that habitat designations are 
biologically meaningful.
    Our Response: As stated in the proposed rule, we determined that 
the physical and biological features that are essential for the 
conservation of the southwest Alaska DPS of the northern sea otter are 
those that provide cover and shelter from marine predators, as well as 
the prey resources that occur in those areas. We are limited in our 
understanding of sea otter habitat use and also by our ability to map 
these features beyond a certain scale. We identified the physical and 
biological features essential to the conservation of the DPS based on 
the best scientific information related to sea otter life history 
requirements. This commenter was particularly concerned with the 
underlying rationale for PCEs 1 and 2. We note that there is 
considerable spatial overlap in areas defined by the first three PCEs. 
For example, all of the areas delineated by PCE 1 (shallow, rocky areas 
in waters less than 2m (6.6 ft) in depth) and the vast majority of 
areas delineated by PCE 2 (waters within 100m (328.1 ft) of the mean 
high tide line) are contained within the area delineated by PCE 3 (kelp 
forests in waters less than 20m (65.6 ft) in depth). Our rationale for 
choosing these areas is summarized in the ``Primary Constituent 
Elements for the Southwest Alaska DPS of the Northern Sea Otter'' 
section.

Comments Related to Consultation Under Section 7 of the Act

    Comment 12: Some activities that may be subject to consultation 
under section 7 of the Act were omitted from the proposed rule to 
designate critical habitat for sea otters in southwest Alaska.
    Our Response: The proposed rule contained examples of the types of 
activities that the Service can reasonably expect to consult on under 
section 7 of the Act, but it was not intended to be a complete list of 
all possible activities. All Federal agencies have the obligation under 
section 7 of the Act to consult on actions they conduct, fund, or 
permit, that may affect a federally listed species or destroy or 
adversely modify its designated critical habitat. As such, the Service 
is not limited to consulting on only those activities listed in either 
the proposed or final rules for designation of critical habitat.
    Comment 13: Special management considerations and protections that 
may result from consultations under section 7 of the Act were omitted 
from the proposed rule.
    Our Response: The special management considerations and protections 
in the proposed rule were included for example purposes. The specific 
types of management actions, such as reasonable and prudent measures, 
will be determined on a case-by-case basis during the process of 
consulting under section 7 of the Act. The Service is not limited to 
only those special management considerations and protections listed in 
either the proposed or final rules for designation of critical habitat.
    Comment 14: The designation of critical habitat may result in 
changes to development projects, including delays and added costs.
    Our Response: Since the southwest Alaska DPS of the northern sea 
otter was listed as threatened in August 2005, all Federal agencies 
have had the obligation to consult with the Service to ensure that the 
activities they conduct, fund, or carry out, are not likely to 
jeopardize the continued existence of the DPS. Numerous consultations 
in accordance with this obligation have been conducted with multiple 
Federal agencies, and must be conducted in the future, regardless of 
whether or not critical habitat is designated. Federal agencies that 
consult with the Service have the obligation to work within the 
statutory timelines of section 7 consultations, and plan their 
activities accordingly to avoid delay. Non-Federal entities that 
require Federal permits for

[[Page 51991]]

development projects should also be aware of the consultation 
requirement, and factor the time needed for consultations into their 
plans and schedules. As consultations are already required under the 
jeopardy standard, the additional consultation standard of destruction 
or adverse modification of critical habitat are not anticipated to 
result in significant project delays. Modifications to projects due to 
critical habitat are not expected to add significant monetary costs 
(see section on ``Economic Analysis'' below).
    Comment 15: Subsistence harvest of sea otters should be regulated 
within critical habitat.
    Our Response: Subsistence harvest of sea otters from the southwest 
Alaska DPS is allowable under section 10(e) of the Act and section 
101(b) of the Marine Mammal Protection Act (MMPA). Permits are not 
required under either the Act or the MMPA for Alaska Natives to harvest 
sea otters for subsistence uses, although hides and skulls must be 
tagged to fulfill reporting requirements. There is no Federal nexus 
that would require consultation under section 7 of the Act; therefore, 
the critical habitat designation would not provide a mechanism to 
regulate subsistence harvest.
    Comment 16: The proposed critical habitat designation does not 
adequately address the impacts of entanglement in fishing gear.
    Our Response: Critical habitat designation is not the appropriate 
mechanism to address the impacts of sea otter entanglement in fishing 
gear. The majority of designated critical habitat occurs within State 
of Alaska waters. Therefore, most of the fisheries that occur within 
critical habitat are not federally managed. Other regulatory mechanisms 
to address the issue of entanglement in these fisheries are available 
under the Act, such as provisions under section 10 of the Act (e.g., 
Habitat Conservation Plans). For those fisheries that have a Federal 
nexus, the Service will consult with the National Marine Fisheries 
Service to determine if the fishery will: (1) Jeopardize the southwest 
Alaska DPS of the northern sea otter; and (2) adversely modify or 
destroy their critical habitat.

Comments Requesting Exclusions of Areas From Critical Habitat 
Designation

    Comment 17: The exclusion of developed areas such as harbors and 
marinas is inappropriate, as these structures may also be used for 
resting or foraging.
    Our Response: This exclusion covers the physical structures that 
create a harbor or marina, such as piers, docks, jetties, and 
breakwaters, as they do not contain the necessary PCEs themselves. It 
is almost certain that harbors and marinas do not contain PCE 3 (kelp 
forests). The waters contained within harbors and marinas may provide 
cover and shelter from marine predators, and are therefore not excluded 
from this designation.
    One of these commenters also expressed concern that the exclusion 
of these areas was the equivalent of a ``categorical exclusion'' from 
all section 7 consultation requirements. Regardless of critical habitat 
designation, the Service has the obligation to consult on activities 
such as demolition, repair, or construction when a Federal nexus 
exists. While the structures themselves are not designated as critical 
habitat, the impacts of these activities will be considered against 
both the jeopardy standard, and the adverse modification standard for 
any adjacent designated critical habitat.
    Comment 18: Areas immediately surrounding inhabited communities 
should be excluded from designation as critical habitat for economic 
purposes. One of these commenters specified that the excluded areas 
should extend a distance of up to 1.6 kilometers (km) (1 mile (mi)) 
radius from each inhabited community. Another of these commenters also 
questioned the benefit to sea otters of including these areas in the 
critical habitat designation.
    Our Response: We believe important benefits exist for designating 
critical habitat in the vicinity of inhabited communities. Although 
critical habitat immediately adjacent to inhabited communities 
constitutes a relatively small proportion of the overall critical 
habitat designation, the physical and biological features identified by 
the PCEs provide protection from marine predators comparable to the 
protection provided by similar features located in areas that are 
distant from such communities. In addition, we believe that designated 
critical habitat in the vicinity of inhabited communities has a unique 
informational benefit that critical habitat in more remote areas does 
not.
    The Final Economic Analysis (FEA) identified the incremental costs 
associated with designation of critical habitat for the southwest 
Alaska DPS of the northern sea otter. Given the very small estimated 
annual costs associated with all consultations due to the critical 
habitat, and the small estimated costs per consultation expected to be 
borne by third parties, individual communities in southwest Alaska are 
not expected to bear significant costs due to critical habitat 
designation. The FEA estimated that the additional economic impacts 
expected from designation of critical habitat as proposed would amount 
to an increase of 1.8 percent above the baseline impacts in the absence 
of critical habitat designation. Oil spill planning and response 
activities are expected to bear a majority of these costs. The economic 
impacts of critical habitat are estimated to be approximately $58,900 
per year over the entire range of the DPS assuming a 7 percent discount 
rate. Of these costs, the FEA estimates that $54,900 of the annual 
costs (93 percent) will be related to administrative costs of 
consultations under section 7 of the Act. The majority of these costs 
for consultations related to water quality, construction, and other 
activities will be borne by the Service and the Federal action agency. 
Third parties to these consultations are only expected to bear $513-
$875 per consultation in administrative costs related to the 
incremental costs of critical habitat designation for informal and 
formal consultations, respectively. The total actual costs to any 
single community will ultimately depend on the number of activities in 
that community that are subject to consultation under section 7 of the 
Act, as well as the complexity of such consultations, that will dictate 
whether informal or formal consultation is required.
    Accordingly, after thorough consideration, we are not exercising 
our discretion to exclude areas in and around inhabited communities in 
southwest Alaska from critical habitat designation, due to the 
insignificant costs estimated to be borne by individual communities as 
a result of the designation of critical habitat, the important 
protections the designation of critical habitat near communities will 
afford the DPS, and the unique educational and informational benefits 
of designating critical habitat there.
    Comment 19: The Department of the Navy requested that areas 
contiguous to islands in Unit 5 should be excluded from designation as 
critical habitat due to their national security importance. The areas 
requested for exclusion are used for a variety of training activities 
that are considered vital to continued readiness of U.S. Navy forces. 
The Department of the Navy is concerned that designation of critical 
habitat in this area ``may restrict or prohibit implementation of 
various training and testing requirements.'' They further state that 
the ability to conduct training exercises in these areas ``on a short 
notice basis'' is necessary for the Department of the Navy to ``achieve 
its required level of operational readiness.''

[[Page 51992]]

    Our Response: Section 4(b)(2) of the Act allows the Secretary to 
use his discretion to exclude areas from critical habitat for reasons 
of national security if the Secretary determines the benefits of such 
an 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.
    We understand the Navy's interest in conducting its training 
exercises on a short notice basis so as to achieve its required level 
of operational readiness. We believe, however, that the Navy's goals 
are not incompatible with the designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter for a number of reasons. 
The Navy has, and continues to have, an ongoing obligation to consult 
with the Service to ensure that the activities they conduct, fund, or 
carry out are not likely to jeopardize the continued existence of the 
southwest Alaska DPS of the northern sea otter since it was listed as 
threatened in August 2005. This obligation to consult exists regardless 
of whether or not critical habitat for northern sea otter is 
designated.
    The estimated time and costs associated with consideration of sea 
otter critical habitat is expected to be extremely small. This point is 
underscored in the FEA, which explains that due to the minimal amount 
of time critical habitat designation is expected to add to the 
consultation process, the associated costs are insignificant.
    The Service will work with the Navy to consult on their activities 
under section 7 of the Act efficiently in an attempt to avoid any 
delays to national security activities. There are additional 
consultation mechanisms that may be available to further expedite the 
Navy's consultations and enhance the Navy's ability to conduct training 
exercises in the areas requested for exclusion on a short-notice basis. 
One such mechanism is a programmatic consultation, which would consider 
the impacts of multiple training exercises over multiple years. A 
programmatic consultation would remove or reduce the need to consult on 
a case-by-case basis.
    In the event that the imminent need arises for an activity that is 
not covered by an existing programmatic consultation, the Act provides 
a mechanism for dealing with emergencies (e.g., national defense or 
security emergencies) that would require expedited consultation (50 CFR 
402.05). In these instances, if the proposed activity was determined to 
be a national defense or security emergency, the Service would work 
with the Department of the Navy to evaluate the expected impacts to sea 
otters and their critical habitat, and to develop protective measures 
during the emergency consultation. The designation of critical habitat 
is not expected to impact the timing of emergency consultations.
    In our consideration of the Navy's request for an exclusion, we 
wish to emphasize the important role of critical habitat designation in 
informing Federal, State, and local governments and the public of the 
importance of critical habitat areas to listed species and the parties' 
respective consultation obligations under section 7 of the Act.
    We also note that designation of critical habitat in this area 
provides conservation benefits to a substantial portion of the 
southwest Alaska DPS of the northern sea otter. Results of the most 
recent aerial survey of the Kodiak archipelago, conducted in 2004, 
indicate that this area contained approximately 11,000 sea otters at 
that time, which represents more than 20 percent of the estimated 
population size for the entire southwest Alaska DPS (USFWS 2008). The 
area requested for exclusion (3,418 km\2\ (1,320 mi\2\)) is 
approximately 23 percent of the total area, and 51 percent of the area 
of Unit 5. Inclusion of these areas as critical habitat will insure 
that consultations with the Department of the Navy and other Federal 
agencies will include both jeopardy and adverse modification analyses 
for a significant portion of the southwest Alaska DPS.
    In short, the Navy has an obligation to consult with the Service on 
the effects of its military readiness activities on the southwest 
Alaska DPS of the northern sea otter regardless of the designation of 
critical habitat in this final rule. As a result, any delays and costs 
associated with sea otter critical habitat designation are expected to 
be minimal. Moreover, the Act contains mechanisms that may be 
applicable to further expedite the Navy's consultations. In light of 
these considerations, as well as the important protections and 
educational benefits afforded by the designation of critical habitat 
for the southwest Alaska DPS of the northern sea otter, the Secretary 
has decided not to exercise his discretion to exclude the areas 
requested by the Navy from our critical habitat designation for 
national security reasons.
    Comment 20: Fishing gear, including lines, nets, and anchors 
associated with commercial sport and subsistence salmon fishing on 
Kodiak Island and elsewhere in southwest Alaska, should be explicitly 
excluded from designation as critical habitat.
    Our Response: Critical habitat is defined as the physical and 
biological features that are essential to the conservation of the 
listed entity, and that may require special management considerations 
or protections. From this definition, critical habitat designation does 
not apply to privately owned items such as fishing gear, even when such 
gear is used in geographic areas designated as critical habitat.
    Comment 21: Some of the areas proposed for designation as critical 
habitat are currently managed by the State of Alaska, and do not meet 
the second part of the definition of critical habitat as they are 
already protected and therefore do not require additional special 
management considerations or protection.
    Our Response: We acknowledge that some areas that were proposed for 
designation as critical habitat geographically overlap with some areas 
managed by the State of Alaska. The areas managed by the State include 
those covered by: (1) Alaska Department of Natural Resources (ADNR) 
Area Plans; and (2) Alaska Department of Fish and Game (ADFG) Special 
Area designations and plans. Within the range of the southwest Alaska 
DPS, three ADNR plans (Bristol Bay, Kodiak, and Kenai Peninsula) 
overlap with portions of proposed critical habitat units 3, 4, and 5. 
In addition, the easternmost portion of critical habitat unit 2 is 
included within the geographic coverage of the Bristol Bay plan. Some 
of the areas proposed for critical habitat are also contained with 
existing ADFG ``Special Areas,'' such as State game refuges, critical 
habitat areas, and sanctuaries. Specifically, the Izembek State Refuge 
intersects with portions of both proposed subunit 4a (Amak Island) and 
subunit 4b (Izembek Lagoon). The Port Moller State Critical Habitat 
Area intersects with portions of subunit 4c (Port Moller/Herendeen 
Bay). And lastly, the Tugidak Island State Critical Habitat Area and 
the McNeil River Sanctuary intersect with portions of Unit 5 (Kodiak, 
Kamishak, Alaska Peninsula).
    We acknowledge the efforts by the State to provide management 
protections that benefit listed species and their habitat. However, 
these areas meet the definition of critical habitat under the Act, 
which is the habitat essential to the conservation of the species that 
may require special management considerations or protections. Thus, 
whether habitat requires additional special management because some 
protections may already exist for it under State of Alaska law does not 
determine whether that habitat

[[Page 51993]]

meets the definition of ``critical'' under the Act. In fact, the 
presence of protections under State law demonstrates that special 
management considerations or protections may be necessary.
    This interpretation of the definition of critical habitat is 
consistent with the plain language of the Act, and its underlying 
policies. The Act specifically provides that ``all Federal departments 
and agencies shall utilize their authorities in furtherance of the 
purposes of this chapter,'' including the conservation of listed 
species and their habitat. Alternative State protections, even if they 
were considered to be equivalent or superior to critical habitat 
designation for the species' conservation, are not a functional 
substitute for critical habitat designation.
    We have examined the types of protections that exist under State 
law to assess their effectiveness in protecting sea otter habitat. 
While ADNR Area Plans and ADFG special areas consider impacts to fish 
and wildlife resources and their habitat, neither of these types of 
protections are specifically designed to address sea otter concerns.
    Regarding threatened and endangered species, all ADNR Area Plans 
contain the following guidelines:

    All land use activities will be conducted consistent with state 
and federal Endangered Species Acts to avoid jeopardizing the 
continued existence of threatened or endangered species of animals 
or plants, to provide for their continued use of an area, and to 
avoid modification or destruction of their habitat. Specific 
mitigation recommendations should be identified through interagency 
consultation for any land use activity that potentially affects 
threatened or endangered species.

    Neither the sea otter nor its habitat is protected under the State 
Endangered Species Act, and thus receive no protections under that 
statute or the ADNR Area Plans. The protections in the ADNR Area Plans 
are limited to those provided in the Federal Act. Thus, absent the 
designation of critical habitat under the Federal Act, no consideration 
will be afforded for critical habitat under this provision in the ADNR 
Area Plans.
    Although the ADNR plans contain important goals and objectives for 
the protection of sensitive areas, which may include sea otter habitat, 
they do not specify criteria for how these objectives will be achieved. 
The management guidance provided by these plan designations does not 
contain clear standards to ensure that important sea otter habitat will 
be effectively protected. We have similar concerns regarding the 
effectiveness of the ADFG special area protections. In special areas, 
the primary mechanism for habitat protection is the requirement that a 
``special area permit'' be obtained for many land and water use 
activities, including construction activities, destruction of 
vegetation, excavation, dredging, filling, and energy exploration, 
development, and production (5 AAC 95.420(a)). However, the plans lack 
measurable criteria for determining whether and how a particular 
activity subject to a permit application meets the dual goals of 
maintaining, protecting and enhancing habitat and maintaining public 
use, and do not provide assurances that the areas will be protected.
    Therefore, we conclude that the areas managed by the State of 
Alaska meet the statutory definition of critical habitat under the Act. 
We also conclude that the existing management protections for these 
areas are not a substitute for Federal critical habitat designation. 
Because of this, and in light of the benefits of critical habitat 
designation, the Secretary has decided not to exercise his discretion 
to exclude these areas covered by existing State of Alaska management 
from our designation of critical habitat for the southwest Alaska DPS 
of the northern sea otter.
    Comment 22: Various areas where human activities occur, including 
fishing, mining, logging, and oil and gas exploration, development, and 
production, should be excluded from designation as critical habitat. 
One commenter specifically requested exclusion of areas in Cook Inlet/
Eastern Alaska Peninsula/Kodiak Island identified through the economic 
analysis as economically important, and two log transfer facilities in 
Kazakof Bay on Afognak Island.
    Our Response: Several commenters expressed concern about the 
designation of critical habitat in areas of human activities. Although 
the reason(s) were not explicitly stated, we presume the concern was 
related to the potential economic impacts that may result from critical 
habitat designation. As explained above under comment 19, the FEA 
concluded that the economic impacts of critical habitat including, but 
not limited to, the activities listed above, is estimated to be 
approximately $58,900 per year over the range of the entire DPS 
assuming a 7 percent discount rate. Third parties to section 7 
consultations on activities such as those listed above are only 
expected to bear $513-$875 per consultation in administrative costs 
related to the incremental costs of critical habitat designation for 
informal and formal consultations, respectively. Thus, third parties to 
consultations on activities such as fishing, mining, and logging are 
not expected to bear any significant costs due to critical habitat 
designation.
    We outline our rationale for why the physical and biological 
features are considered essential elsewhere in this final rule (see 
``Primary Constituent Elements''). We also present the benefits of 
designating critical habitat later in this final rule, such as 
protections to the species by considering critical habitat in section 7 
consultations, and the educational and information benefits of 
designation (see ``Benefits of Designating Critical Habitat''). 
Therefore, in light of these benefits and the minimal costs to third 
parties, the Secretary has decided not to exercise his discretion to 
exclude any areas from critical habitat based on economic reasons.
    Comment 23: One commenter requested that Chignik Bay be excluded 
from critical habitat designation.
    Our Response: No supporting information was provided by this 
commenter. As a result, the Secretary has decided not to exercise his 
discretion to exclude Chignik Bay for economic reasons (see our 
response to Comment 22 above) or other relevant factors, and this area 
has not been excluded from our designation of critical habitat.

Comments Related to the Process of Designating Critical Habitat

    Comment 24: The public comment period for the proposed critical 
habitat designation was too short.
    Our Response: The applicable regulations implementing the Act and 
the Administrative Procedure Act require us to provide 60 days for 
public review and comment on a proposed rule designating critical 
habitat. The Service provided 60 days for public comment initially, and 
subsequently reopened the public comment period to allow additional 
public comments from May 8 through July 9, 2009. In addition, we held a 
public hearing on June 18, 2009, in Anchorage, Alaska, and we operated 
a toll-free public comment hotline from June 9 through July 9, 2009, to 
enable callers to record their comments, which were later transcribed. 
We also conducted extensive outreach to notify the public of these 
additional public comment opportunities. Collectively, therefore, the 
amount of time provided for public comment from the publication of the 
proposed rule in December 2008 through July 2009 was effectively 
greater than 6 months. Given the above, we believe we provided

[[Page 51994]]

sufficient time and means for the public to comment on the proposed 
rule.
    Comment 25: The Service should consult directly with communities 
and Alaska Native Tribes within the proposed critical habitat area.
    Our Response: The Service conducted extensive public outreach with 
organizations, communities, and Alaska Natives within the range of the 
southwest Alaska DPS of the northern sea otter. We responded to all 
requests for additional information from various organizations and 
communities before submitting the proposed rule to designate critical 
habitat to the Federal Register. The Service remains committed to 
working with Alaska Natives on this and other issues regarding 
federally listed species and designated critical habitat. Further, as 
discussed later in this final rule, we have determined that there are 
no Native Alaskan Tribal lands within the boundaries of this 
designation of critical habitat for the sea otter.
    Comment 26: The Service should hold public hearings in several 
communities in southwest Alaska.
    Our Response: The communities suggested as sites for public 
hearings are located in relatively remote areas of southwest Alaska. 
Although we acknowledge the value of face-to-face meetings, the 
logistical difficulties of holding hearings in these southwest Alaska 
communities made them impractical. Instead, we used other methods to 
increase the opportunity for residents to provide comments verbally, as 
well as in writing. We held one public hearing in Anchorage, Alaska, on 
June 18, 2009, and provided telephone access for individuals who were 
unable to attend the hearing in person. We received one comment from 
attendees and received no calls during the hearing. To increase public 
access, we also established a toll-free ``public comment hotline'' that 
operated for the duration of the reopened public comment period, which 
occurred from June 9 through July 9, 2009. We received no comments on 
the public comment hotline. We believe these accommodations provided 
sufficient time and means for the public to comment on the proposed 
rule.
    Comment 27: The Service should consider all research, not just its 
own, in the designation of critical habitat.
    Our Response: In preparing this critical habitat designation, the 
Service thoroughly considered any and all relevant information about 
sea otters and their habitat. The vast majority of research used in the 
determination of PCEs and critical habitat was from non-Service 
sources. As such, we believe that we used the best available scientific 
and commercial information on developing this critical habitat 
designation. The supporting documentation we used in preparing this 
rule is available for public inspection (see ADDRESSES).

Comments on the Economic Analysis

    Comment 28: The Executive Summary should include a description of 
the difference between baseline and incremental impacts and which is 
the appropriate consideration of cost under the Act's critical habitat 
inquiry.
    Our Response: Paragraph 6 on page ES-2 of the draft economic 
analysis defines the baseline and incremental impacts; these 
definitions are further detailed in Chapter 2. Section 2.1 summarizes 
the case history describing the reason for providing both categories of 
impacts, quantifying them separately, in the economic analysis.
    Comment 29: Two comments provided on the draft economic analysis 
state that the analysis needs to quantify the benefits of critical 
habitat designation. Specifically, one comment argues that the analysis 
should employ results of work by John Loomis on the economic benefits 
of southern sea otter protection in California as it is directly 
relevant. The comment states that the economic analysis is not correct 
in concluding that the Southwest Alaska DPS does not generate tourism 
benefit because of the remote nature of the proposed critical habitat 
area. Although tourism activity may be lower in Alaska habitat than in 
California habitat, the comment asserts that sea otters in Alaska do 
provide some tourism benefit that should be quantified. The comment 
further states that the economic analysis does not attempt to develop 
estimates of passive use values, noting that beneficiaries include all 
U.S. citizens who hold existence values for the sea otters. The comment 
cites a 2000 Land Economics article by Loomis concluding that even 
small changes in population levels of threatened and endangered species 
can generate large welfare impacts and that the economic analysis 
should attempt to construct a range of potential population changes 
that might result from critical habitat designation, for example, via 
expert interviews. Another comment notes that potential ancillary 
economic benefits of critical habitat may stem from the protection of 
ecosystem services, increasing recreational and wildlife-viewing 
opportunities, and concurrent conservation of other species.
    Our Response: Section 8.2 of the draft economic analysis describes 
Dr. Loomis' research related to the value of sea otter conservation in 
California, providing the quantitative results. The Loomis study 
estimates the tourism and nonmarket economic values per sea otter from 
an increase in the population of 196 otters expected to result from a 
translocation program. As detailed in the draft economic analysis, to 
estimate tourism benefits Loomis transfers a point estimate of benefits 
of wildlife viewing from a group thesis from the University of Santa 
Barbara (Aldrich et al., 2001). He adjusts this estimate to narrow the 
value to the benefits specifically of viewing sea otter using a 1985 
Hageman study developed for the National Marine Fisheries Service. 
Loomis accordingly estimates tourism benefits in Southern California of 
$13,220 to $69,000 in income and 0.53 to 2.8 jobs per otter. Loomis 
employs benefits transfer techniques using the Hageman study and a 1996 
Loomis and White meta-analysis to determine a range for the non-market 
value of an increase in sea otter population of 196. The resulting 
benefit to California households is $2.32 to $5.81 per household.
    The draft economic analysis agrees that the Loomis study evidences 
that real social welfare benefits are associated with expansions in sea 
otter populations. The Loomis study, however, does not provide an 
adequate basis to quantify the specific benefits of sea otter critical 
habitat designation. Regarding the tourism benefits, while the 
commodities (sea otters) being valued are similar in the Loomis study 
and the draft economic analysis, the potentially affected populations 
(Southern California versus Southwest Alaska) are not. The Southern 
California sea otter population is comparatively significantly more 
accessible for wildlife viewing. In fact, the Loomis study only applies 
the estimated per otter tourism benefits in Southern California to 
those otters determined to be accessible for viewing. While some otter 
viewing may occur in Southwest Alaska, the remote character of the 
habitat is not comparable to Southern California habitat. With regard 
to the nonmarket (e.g., existence and option) values, the Loomis study 
models a specific policy scenario of otter population changes (increase 
of 196 otters) to derive per otter value estimates. The potential 
effect on otter populations of the conservation efforts forecast to 
occur in the baseline and incremental scenarios of the draft economic 
analysis is unknown. While the comment suggests surveying experts to 
determine how critical habitat may affect otter populations in order to 
estimate a total

[[Page 51995]]

nonmarket benefit, Service biologists are not able to project 
population effects of the regulation.
    Finally, neither the Loomis study nor the draft economic analysis 
provides a quantitative estimate of the total ecosystem service 
benefits. The Loomis study provides a value per acre for coastal 
ecosystems of $7,600 per acre citing a 1997 Costanza et al. study. 
Section 8.3 of the draft economic analysis highlights the potential 
categories of ecosystem service benefits associated with otter 
conservation by unit across the proposed critical habitat designation. 
These benefit categories include improved water quality, aesthetic 
benefits, regional economic benefits, and improved health of other, 
coexisting species.
    Comment 30: One comment states that the economic analysis is 
deficient in not at least providing speculative estimates of 
incremental costs related to the critical habitat designation for oil 
and gas development projects. The comment highlights the following 
possible impacts on any oil and gas development that might occur in the 
area of the proposed designation: Increased costs of permitting oil and 
gas development projects; delay costs; decreased investment, 
exploration, and lease sales, resulting in decreased revenue accruing 
to the State of Alaska; community-level impacts, including loss of 
jobs, etc.; and natural gas supply issues, resulting in increased costs 
of natural gas. The commenter believes the draft economic analysis 
should assess the impact of the need to build in a timing window for 
seismic exploration, additional restrictions on drilling, seismic 
surveys, pipeline routes, helicopter overflights, and barging 
operations. The commenter expressed particular concern about potential 
oil and gas activity in Unit 4C, Port Moller-Herendeen Bay.
    Our Response: Section 4.4 of the economic analysis describes 
potential impacts of critical habitat for the sea otter on oil and gas 
activities. As described in the analysis, oil and gas development is 
reasonably foreseeable within or in offshore areas that may affect 
critical habitat areas in the future. Experts in the field of oil and 
gas development in Alaska, however, assert that forecasting any 
specific scenario predicting the scope and scale of oil and gas 
development in this area would be speculative. In addition, the Service 
has not consulted on oil and gas activity as relates to the sea otter. 
Because the Service has not yet consulted on oil and gas activities 
associated with sea otters, and because the Service plans to address 
future planned activities on a case-by-case basis, it is not possible 
to predict specific conservation efforts for the sea otter at this 
time. However, the FEA discusses potential project modifications that 
the Service might request for sea otter based on past examples from 
consultations involving the Steller's eider, a listed bird species with 
designated critical habitat that overlaps sea otter critical habitat. 
From these consultations project modifications have resulted in 
increased costs to operators rather than limitations on the industry's 
ability to survey or develop oil and gas resources in critical habitat 
areas. Past conservation measures have included development of 
Geographic Response Strategies for an area, hiring an experienced 
onboard monitor for active vessels and aerial species monitoring.
    Comment 31: The State of Alaska describes that the economic 
analysis should provide a more comprehensive estimate of the 
incremental costs of critical habitat on a potential offshore-onshore 
pipeline at Port Moller-Herendeen Bay and of docks and utility 
corridors on the south side of the Alaska Peninsula. While the specific 
timing and location of these projects are uncertain, the comment argues 
the economic analysis should provide an estimated range of potential 
costs.
    Our Response: Chapter 4 of the draft economic analysis discusses 
the potential for construction and operation of a pipeline to transport 
oil and/or gas from Bristol Bay and points northward to an outlet on 
the south side of the Alaska Peninsula, which may include building a 
pipeline across the Alaska Peninsula. The analysis cites a recent study 
which estimates that an additional 482.8 km (300 miles) of pipeline 
will need to be constructed to support the oil and gas industry within 
the North Aleutian Basin over the next 50 years. The final economic 
analysis includes discussion of the four potential Trans-Peninsula 
Transportation Corridors identified in the Bristol Bay Area Plan, one 
of which may be located at the southern end of the Port Moller-
Herendeen Bay critical habitat unit. The analysis also notes that the 
Bristol Bay Area Plan has identified the Port Moller-Herendeen Bay Area 
as having ``modest'' potential for oil and gas development, and that 
``one possible use for land at the back of Herendeen Bay [is for it] to 
be used for trans-peninsular transport and associated development.'' 
The analysis describes that the State of Alaska has identified the Port 
Moller-Herendeen Bay area as being a promising area for locating this 
pipeline.
    Specific plans for timing and location of the pipeline do not 
exist; siting of the pipeline and associated support facilities will 
depend on where the natural gas resources are located. Thus, the 
analysis presents information about the potential locations of 
pipelines within critical habitat, but does not quantify specific 
impacts of otter conservation on any project.
    Comment 32: The State of Alaska notes that the economic analysis 
presents estimates of potential costs for 3-D seismic surveys in Cook 
Inlet but that an estimate of costs for similar projects in Bristol Bay 
would be more informative and likely much higher.
    Our Response: As described above and in Chapter 4 of the draft 
economic analysis, the Service has not consulted on oil and gas 
activity as it relates to the sea otter. However, the analysis 
discusses available examples from the one past consultation on seismic 
surveying involving the Steller's eider. This consultation occurred in 
Cook Inlet. Thus, no information is currently available to inform an 
analysis of potential impacts of sea otters on seismic survey 
activities in Bristol Bay. The final economic analysis now notes the 
State's assertion that costs for potential, similar projects in Bristol 
Bay may cost more than the Cook Inlet example due to the comparatively 
remote nature of Bristol Bay.
    Comment 33: The State of Alaska states that economic analysis 
describes, ``a history of opposition to oil and gas development within 
the region,'' referencing assumptions made in 1985 regarding oil and 
gas production in the 1994 to 1999 time frame. However, no production 
was allowed in that timeframe due to a Presidential moratorium and a 
Congressional moratorium following the 1989 Exxon Valdez oil spill. 
Since that time, the Peninsula Borough, Bristol Bay Borough, and 
Aleutians East Borough signed a Memorandum of Understanding with the 
State affirming support and cooperation to facilitate responsible oil 
and gas development in the region.
    Our Response: Section 4.4 of the final economic analysis clarifies 
that recent Memoranda of Understanding have been signed by local 
residents in support of responsible oil and gas development in the 
Bristol Bay region.
    Comment 34: A comment provided on the draft economic analysis 
highlights a series of potential transportation projects, generally 
related to potential future oil and gas development activity, and 
states that incremental increases in the cost of constructing these 
projects associated with critical habitat

[[Page 51996]]

designation should be considered. Specific projects of concern include 
the Alaska Peninsula Regional Transportation Corridor, Community 
Transportation Plans, port and harbor projects, and the three Trans-
Peninsula Transportation Corridors identified in the Bristol Bay Area 
Plan.
    Our Response: Section 5.1 of the analysis considers potential 
impacts to transportation projects, including airports, ports, and 
harbors. Forecast projects were determined through communication with 
both the Federal Aviation Administration and Alaska Department of 
Transportation, along with publicly available transportation plans from 
these agencies. The final economic analysis incorporates a discussion 
of the potential transportation projects described in the comment; 
these transportation projects, however, are largely land-based. For 
example, the Regional Transportation Corridors and Community 
Transportation Projects in the Bristol Bay Area Plan, including the 
Chigniks Road Intertie, are all ground transportation projects. Because 
these projects do not involve construction in marine waters, it is 
unclear how they would be affected by otter conservation.
    Comment 35: One commenter notes that the draft economic analysis 
does not quantify impacts to other types of energy projects (e.g., 
wind, wave, and geothermal projects). The commenter states that the 
Makah Bay offshore Wave Energy Pilot Project described in the economic 
analysis could be used to generate an estimate of incremental costs for 
similar projects in the study area. The comment also mentions that a 
geothermal project near Naknek is currently being permitted.
    Our Response: The economic analysis addresses potential impacts to 
tidal energy projects in Section 5.1.4. This section includes a 
discussion of all tidal energy projects that have received a 
preliminary permit from FERC. Outside of the Naknek project, the 
comment does not provide new information about specific projects not 
included in the analysis.
    With respect to impacts on wave energy projects, little is known 
for the critical habitat area. While the Makah Bay Wave Energy Pilot 
Project discussed in the analysis is suggestive of potential project 
modifications that could be undertaken to reduce threats to the otter 
and its habitat, Makah Bay is in Washington State, and conditions are 
thought to be distinctly different from those being designated as 
critical habitat in Alaska. Further, no wave energy projects are 
currently proposed in critical habitat areas.
    At this time, there do not appear to be any plans for offshore wind 
farms within the proposed critical habitat designation. It is therefore 
likewise uncertain whether and to what extent such projects may occur 
in the proposed designation.
    Finally, Chapter 5 of the final economic analysis is revised to 
describe the potential for geothermal energy development in critical 
habitat areas, in particular the proposed Naknek project in the 
vicinity of Unit 5. As discussed, the Aleutian Islands have a high 
potential for geothermal energy development. However, similar to future 
oil and gas development, the location of potential future geothermal 
projects is unknown at this time. Because no consultations on 
geothermal projects have occurred for otters, the scope of potential 
project modifications for the sea otter is also unknown. With respect 
to the Naknek geothermal project and associated transmission lines, 
these do not appear to be located near the proposed critical habitat. 
It is, therefore, unclear how the Naknek project would be affected by 
the designation.

Other Comments

    Comment 36: The proposed rule mischaracterizes the importance of 
this area to the State and its citizens. The proposed rule states, 
``The scale of human activities that occur within the proposed critical 
habitat areas is exceedingly small.''
    Our Response: The statement from the proposed rule shown above was 
not intended in any way to diminish the importance of southwest Alaska. 
Rather, it was included to illustrate that, for the most part, the 
range of sea otter habitat in southwest Alaska is relatively free from 
human disturbance. We have clarified this point in this final rule.
    Comment 37: One commenter stated that based on their observations 
of sea otter movements between Kamishak Bay and the Kenai Peninsula, 
the areas north of Cape Douglas should be excluded from critical 
habitat designation. This commenter also suggested that sea otters in 
the Barren Islands also belong to the southcentral Alaska population 
stock, and this area should also be excluded from critical habitat 
designation.
    Our Response: This comment addresses the discreteness aspect of the 
DPS justification, which was part of the August 9, 2005, final listing 
rule (70 FR 46366). We recognize that the issue of sea otter movements 
across Cook Inlet is not fully clear; however, the best available 
scientific information indicates that the waters of Cook Inlet are the 
appropriate boundary between the southwest and southcentral Alaska 
population stocks of sea otters (Gorbics and Bodkin 2001, p. 636). 
Additional studies using tagged sea otters, as well as genetic analysis 
of sea otters from Kamishak Bay, Kachemak Bay, and the Barren Islands, 
would be helpful in addressing this issue. In the meantime, we are 
required to designate critical habitat for the southwest Alaska DPS of 
the northern sea otter, which includes lower western Cook Inlet, north 
of Cape Douglas, and also the Barren Islands. As such, nearshore marine 
waters in these areas that contain the identified PCEs are included in 
our critical habitat designation.

Summary of Changes From the 2008 Proposed Rule

    Comments on our December 2008 proposed rule (73 FR 76454) to 
designate critical habitat varied considerably. While some commenters 
stated that our proposed designation did not include sufficient area 
for the conservation of the southwest Alaska DPS of the northern sea 
otter, they did not provide specific supporting information relative to 
additional PCEs that would expand the extent of the critical habitat 
designation. Other commenters stated that our proposed designation 
encompassed too large an area, and several requested that specific 
areas be excluded from designation based on economic reasons, on 
existing management plans that obviate the need for special management 
considerations or protections, and for national security reasons. We 
considered these requests for exclusion, and for the reasons explained 
previously in our responses to public comments, we do not exclude any 
areas from the final designation.
    We refined the GIS data layers used to map critical habitat since 
the proposed rule was published in December 2008, resulting in slight 
changes to the size of some units. Other than this slight revision, our 
final designation of critical habitat is essentially unchanged from 
what we proposed in December 2008.

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
    (2) Specific areas outside the geographical area occupied by a 
species

[[Page 51997]]

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 private landowners. 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 finding of destruction or adverse modification, 
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.

Primary Constituent Elements (PCEs)

    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 our proposed rule published at 73 FR 76454 on 
December 16, 2008, 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,

[[Page 51998]]

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 are 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 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, Druehlia, 
and 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).

[[Page 51999]]

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).
    Bodkin et al. (2004, p. 305) found that 85 percent of all foraging 
dives by female sea otters were in waters less than 20 m (65.6 ft) in 
depth. Although this study was conducted in southeast Alaska, 
additional studies using time-depth recorders indicate that female sea 
otters predominantly forage in shallower water than males.

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 is undisturbed, and is 
representative of the historical, geographical, and ecological 
distributions of the species. Changes in climatic conditions, due to 
both ``normal'' climate variability (Hunt and Stabeno 2005, p. 300) and 
human activities (Schumacher and Kruse 2005, p. 283), are expected to 
modify both the physical environment and the biota within the range of 
the southwest Alaska DPS. It would be expected that climate change 
would have more impact on sea otters at the southern end of the range, 
but this expectation should be tempered by the realization that 
atmospheric changes can influence ecosystems in many complex ways. For 
example, increased atmospheric carbon dioxide is causing increased 
ocean acidification, in turn inhibiting the process of calcification in 
virtually all ocean-dwelling species. It is not clear whether climate 
change will affect sea otter recovery. Therefore it will be important 
to monitor these changes and to evaluate them in regard to sea otter 
ecology and population dynamics.

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;
    3. Kelp forests that provide protection from marine predators, 
which occur in waters less than 20 m (65.6 ft) in depth; and
    4. Prey resources within the areas identified by PCEs 1, 2, and 3 
that are present in sufficient quantity and quality to support the 
energetic requirements of the species.
    This final critical habitat designation encompasses those areas 
containing the PCEs necessary to support one or more of the species' 
life history functions and laid out in the appropriate quantity and 
spatial arrangement essential to the conservation of the DPS. All units 
in this designation contain some or all of the PCEs and support 
multiple life processes.

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). As a consequence, the range of the sea otter habitat in 
southwest Alaska is relatively free of human disturbances. 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. The 
following discussion of these activities is not intended to be a 
comprehensive list of all potential activities for which the Service 
may consult under section 7 of the Act, but rather a list of those we 
believe, based on current available information, are reasonably likely 
to occur.
    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. 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.

[[Page 52000]]

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 2008, the U.S. Coast Guard, the State of Alaska, and the 
National Academies of Science completed the development of a 
comprehensive risk assessment for the Aleutian Islands (Transportation 
Research Board of the National Academies 2008, 225 pp.) Although the 
probability of occurrence of a catastrophic oil spill may be relatively 
small, the potential for disastrous consequences suggests 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. 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 critical habitat areas 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

    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 designating 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). In general, the range of designated critical habitat 
encompasses all areas that have been historically occupied by the DPS.
    We have 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, as well as through 
email exchanges. 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. Information from these 
recovery team discussions was fully considered and incorporated as 
appropriate into this critical habitat designation.
    We are designating 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.

[[Page 52001]]

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 (less than 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 (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, 2, 
and 3 also contain sufficient sea otter prey resources. We have no 
reason to believe that any of the areas within the critical habitat 
designation are unable to support the energetic requirements of this 
species.
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR08OC09.001

BILLING CODE 4310-55-C
    When determining critical habitat boundaries within this final 
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,

[[Page 52002]]

and breakwaters. Any such structures inadvertently left inside critical 
habitat boundaries shown on the map of this final rule have been 
excluded by text in the final rule and are not designated 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.

Final Critical Habitat Designation

    We are designating 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 final 
rule, the Recovery Team has met six 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 are 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 designated 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 designated as critical habitat in this final 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 Management Office (see ADDRESSES).
    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 Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                                                                            Estimated size of    State/Federal
             Unit               Occupied at time of   Currently  occupied?    unit in km\2\     ownership ratio
                                      listing?                                   (mi\2\)           (percent)
----------------------------------------------------------------------------------------------------------------
1. Western Aleutian..........  Yes..................  Yes.................        1,551 (599)              100/0
2. Eastern Aleutian..........  Yes..................  Yes.................          832 (321)              100/0
3. South Alaska Peninsula....  Yes..................  Yes.................      4,946 (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  Yes..................  Yes.................          712 (275)               94/6
     Bay.
5. Kodiak, Kamishak, Alaska    Yes..................  Yes.................      6,755 (2,607)              89/11
 Peninsula.
                              ----------------------------------------------------------------------------------
        Total................  .....................  ....................     15,164 (5,853)              90/10
----------------------------------------------------------------------------------------------------------------

    We present brief descriptions of all 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 designated as critical 
habitat, ownership of lands adjacent to critical habitat may be of 
interest to readers of this final rule (Table 2).

                         Table 2--Ownership Status of Lands Adjacent to Critical Habitat
----------------------------------------------------------------------------------------------------------------
                                                      Federal          State          Private      Alaska Native
                      Unit                           (percent)       (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

[[Page 52003]]

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 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 Aleutan Unit
    Unit 2 consists of an estimated 832 km\2\ (321 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 by (but not yet conveyed to) Alaska Natives. In addition, all 
the critical habitat within this unit is located within State of Alaska 
waters.
    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 4,946 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 by (but not yet 
conveyed to) Alaska Natives. The vast majority (85 percent) of the 
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 subunit are 
federally owned within the Alaska Maritime National Wildlife Refuge. 
Most (77 percent) of the 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 subunit. 
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 subunit are federally owned within 
the Izembek National Wildlife Refuge. The 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.

[[Page 52004]]

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 subunit are owned or 
selected by (but not yet conveyed to) 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 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 6,755 km\2\ (2,607 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 by (but not yet 
conveyed to) Alaska Natives. The majority (89 percent) of the critical 
habitat within this unit is located within State of Alaska waters, and 
a small portion (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 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

[[Page 52005]]

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:
    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

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 designated in this rule 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 critical habitat designation.

Exclusions Under Section 4(b)(2) of the Act

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.
    In the following sections, we address a number of general issues 
that are relevant to our analysis under section 4(b)(2) of the Act.

Benefits of Designating Critical Habitat

    The process of designating critical habitat as described in the Act 
requires that the Service identify those areas within the geographical 
area occupied by the species at the time of listing on which are found 
the physical or biological features essential to the conservation of 
the species that may require special management considerations or 
protection, and those areas outside the geographical area

[[Page 52006]]

occupied by the species at the time of listing that are essential for 
the conservation of the species. In identifying those areas, the 
Service must consider the recovery needs of the species, such that, on 
the basis of the best scientific and commercial data available at the 
time of designation, the features essential to the conservation of the 
DPS and habitat that is identified, if managed or protected, could 
provide for the survival and recovery of the DPS.
    The identification of areas that contain the features essential to 
the conservation of the DPS, or are otherwise essential for the 
conservation of the DPS if outside the geographical area occupied by 
the DPS at the time of listing, is a benefit resulting from the 
designation. The critical habitat designation process includes peer 
review and public comment on the identified physical and biological 
features and areas, and provides a mechanism to educate landowners, 
State and local governments, and the public regarding the potential 
conservation value of an area. This helps focus and promote 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for the DPS, and is valuable to land owners and 
managers in developing conservation management plans for identified 
areas, as well as for any other identified occupied habitat or suitable 
habitat that may not be included in the areas the Service identifies as 
meeting the definition of critical habitat.
    In general, critical habitat designation always has educational 
benefits; however, in some cases, they may be redundant with other 
educational effects. For example, habitat conservation plans (HCPs) 
have significant public input and may largely duplicate the educational 
benefits of a critical habitat designation. There are currently no HCPs 
in place that cover any areas within this critical habitat designation 
for the southwest Alaska DPS of the northern sea otter. Including lands 
in critical habitat also would inform State agencies and local 
governments about areas that could be conserved under State laws or 
local ordinances.
    The consultation provisions under section 7(a)(2) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with the Service on actions that 
may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects to critical habitat 
is a separate and different analysis from that of the effects to the 
species. Therefore, the difference in outcomes of these two analyses 
represents the regulatory benefit of critical habitat. For some 
species, and in some locations, the outcome of these analyses will be 
similar, because effects to habitat will often also result in effects 
to the species. However, the regulatory standard is different, as the 
jeopardy analysis investigates the action's impact to survival and 
recovery of the species, while the adverse modification analysis 
investigates the action's effects to the designated critical habitat's 
contribution to conservation. This will, in some instances, lead to 
different results and different regulatory requirements. Thus, critical 
habitat designations may provide greater benefits to the recovery of a 
species than would listing alone.
    For the southwest Alaska DPS of the northern sea otter, when 
consulting under section 7(a)(2) of the Act for activities in 
designated critical habitat, independent analyses would be made for 
jeopardy and adverse modification. In consultations on projects where 
surveys detect high densities of sea otters or low densities of sea 
otters combined with abundant PCEs, there is not likely to be a 
quantifiable difference between the jeopardy analysis and the adverse 
modification analysis as we estimate take for this subspecies in terms 
of square kilometers of occupied habitat, and the Act requires Federal 
agencies to minimize the impact of the taking on the DPS that may 
result from implementation of a proposed action. Furthermore, any 
upfront modifications made to the project description to minimize the 
project's impact on the critical habitat designation will also minimize 
the impacts of the taking of individuals on the DPS as a whole.
    There are two limitations to the regulatory effect of critical 
habitat. First, a consultation is only required where there is a 
Federal nexus (an action authorized, funded, or carried out by any 
Federal agency)--if there is no Federal nexus, the critical habitat 
designation of private lands, by itself, does not restrict actions that 
may destroy or adversely modify critical habitat. Second, the 
designation only limits destruction or adverse modification. By its 
nature, the prohibition on adverse modification is designed to ensure 
that the conservation role and function of those areas that contain the 
physical and biological features essential to the conservation of the 
species, or of unoccupied areas that are essential for the conservation 
of the species, are not appreciably reduced. Critical habitat 
designation alone, however, does not require private property owners to 
undertake specific steps toward recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when the 
Service concurs in writing that the proposed Federal action is not 
likely to adversely affect the species or critical habitat. However, if 
we determine through informal consultation that adverse impacts are 
likely to occur, then formal consultation is initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of listed species or result in destruction or 
adverse modification of designated critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may recommend 
additional conservation measures to minimize adverse effects to the 
primary constituent elements, but such measures would be discretionary 
on the part of the Federal agency. A biological opinion that concludes 
in a determination of no destruction or adverse modification would not 
include the implementation of any reasonable and prudent alternative, 
as these are provided for the proposed Federal action only when our 
biological opinion results in an adverse modification conclusion.
    As stated above, the designation of critical habitat does not 
require that any management or recovery actions take place on the lands 
included in the designation. Even in cases where consultation is 
initiated under section 7(a)(2) of the Act, the end result of 
consultation is to avoid jeopardy to the species or adverse 
modification of its critical habitat, but not necessarily to manage 
critical habitat or institute recovery actions on critical habitat. 
Conversely, voluntary conservation efforts implemented through 
management plans institute proactive actions over the lands they 
encompass and are put in place to remove or reduce known threats to a 
species or its habitat, therefore implementing recovery actions. We 
believe that in many instances the regulatory benefit of critical 
habitat is minimal when compared to the conservation benefit that can 
be achieved through implementing HCPs under section 10 of the Act or 
other habitat management plans.

[[Page 52007]]

Economic Analysis

    In order to consider economic impacts, we conducted an economic 
analysis to estimate the potential economic effect of the designation. 
The DEA (dated May 20, 2009) was made available for public review and 
comment from June 9, 2009, to July 9, 2009 (74 FR 27271). Substantive 
comments and information received on the DEA are summarized above in 
the ``Public Comments'' section and are incorporated into the final 
analysis, as appropriate. Taking the public comments and any relevant 
new information into consideration, the Service completed a final 
economic analysis (FEA) (dated August 6, 2009) of the designation that 
updates the DEA.
    The primary purpose of the economic analysis is to estimate the 
potential incremental economic impacts associated with the designation 
of critical habitat for the southwest Alaska DPS of the northern sea 
otter. The information is intended to assist the Secretary in making 
decisions about whether the benefits of excluding particular areas from 
the designation outweigh the benefits of including those areas in the 
designation. The economic analysis considers the economic efficiency 
effects that may result from the designation. In the case of habitat 
conservation, efficiency effects generally reflect the ``opportunity 
costs'' associated with the commitment of resources to comply with 
habitat protection measures (such as lost economic opportunities 
associated with restrictions on land use). It also addresses how 
potential economic impacts are likely to be distributed, including an 
assessment of any local or regional impacts of habitat conservation and 
the potential effects of conservation activities on government 
agencies, private businesses, and individuals. The economic analysis 
measures lost economic efficiency associated with residential and 
commercial development and public projects and activities, such as 
economic impacts on water management and transportation projects, 
Federal lands, small entities, and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector. Finally, the economic analysis looks retrospectively at costs 
that have been incurred since the date we listed the southwest Alaska 
DPS of the northern sea otter as threatened on August 9, 2005 (70 FR 
46366), and considers those costs that may occur in the years following 
the designation of critical habitat, with the timeframes for this 
analysis varying by activity.
    The economic analysis focuses on the direct and indirect costs of 
the rule. However, economic impacts to land use activities can exist in 
the absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The economic analysis examines activities taking place both within 
and adjacent to the designation. It estimates impacts based on 
activities that are ``reasonably foreseeable'' including, but not 
limited to, activities that are currently authorized, permitted, or 
funded, or for which proposed plans are currently available to the 
public. Accordingly, the analysis bases estimates on activities that 
are likely to occur within a 20-year timeframe, from when the proposed 
rule became available to the public (73 FR 76454; December 16, 2008). 
The 20-year timeframe was chosen for the analysis because, as the time 
horizon for an economic analysis is expanded, the assumptions on which 
the projected number of projects and cost impacts associated with those 
projects are based become increasingly speculative.
    The primary potential incremental economic impacts attributed to 
the critical habitat designation are expected to be related to oil 
spill planning and response (19 percent), marine and coastal 
construction activities (22 percent), and water quality management (36 
percent). The FEA estimates total potential incremental economic 
impacts in areas designated as critical habitat over the next 20 years 
to be $668,000 ($58,900 annualized) in present value terms using a 7 
percent discount rate (including areas considered for exclusion under 
section 4(b)(2) of the Act).
    The FEA estimates the largest impacts of the critical habitat rule 
will result from administrative costs of consultation under section 7 
of the Act. If the rate of consultations continues into the future at a 
similar rate and distribution as past consultations, an estimated 600 
consultations will occur over the 20-year time frame for the analysis. 
These costs result from the need to address adverse modification in a 
consultation that would occur even in the absence of critical habitat. 
These total additional administrative costs that can be attributed to 
the designation of critical habitat are estimated to be approximately 
$623,000 using a 7 percent discount rate, or about $54,900 annualized. 
These incremental costs represent an increase of 31 percent above the 
baseline costs associated with consultations that address the jeopardy 
standard alone.
    We have considered and evaluated the potential economic impact of 
the critical habitat designation under 4(b)(2) of the Act, as 
identified in the FEA. Based on this evaluation, we believe the 
economic impacts associated with the designation here are neither 
significant nor disproportionate. As a result, and in light of the 
benefits of critical habitat designation discussed previously, we are 
not excluding any areas from critical habitat based on economic 
reasons. The final economic analysis is available at http://www.regulations.gov or upon request from the Marine Mammals Management 
Office (see ADDRESSES).

Application of Section 4(b)(2)--Impacts to National Security

    Under section 4(b)(2) of the Act, we consider whether there are an 
impacts to national security that may exist from the designation of 
critical habitat. Section 4(b)(2) allows the Secretary to exclude areas 
from critical habitat for reasons of national security if the Secretary 
determines the benefits of such an 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.
    The Department of the Navy requested that we exclude approximately 
3,418 km\2\ (1,320 mi\2\) in Unit 5 from designation as critical 
habitat for national security reasons. After thorough consideration of 
this request and an analysis of the respective benefits of including 
these lands and excluding these lands from critical habitat, we have 
not excluded the requested areas from final designation as critical 
habitat, as explained above in our response to comment 19.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2), we consider any other relevant impacts from 
critical habitat designation, in addition to economic impacts and 
impacts on national security. We consider a number of factors, 
including whether landowners have developed any HCPs or other 
management plans for the area, and whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at

[[Page 52008]]

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 final rule, we have determined that there are 
currently no HCPs, management plans, or conservation partnerships for 
the southwest Alaska DPS of the northern sea otter, and this final 
designation does not include any tribal lands. We anticipate no impact 
to tribal lands, partnerships, or HCPs from this critical habitat 
designation. Thus, we are not excluding any areas from this final 
designation based on other relevant impacts.
    Accordingly, given the relatively small potential economic effects 
and other effects of designating critical habitat for the southwest 
Alaska DPS of the northern sea otter, and the regulatory, educational 
and informational benefits of critical habitat, we are not excluding 
any areas from the final designation.

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

    We also make one editorial change to the northern sea otter's entry 
in the List of Endangered and Threatened Wildlife at 50 CFR 17.11(h). 
Specifically, we 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). This 
editorial change will 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--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
final rule is not significant and has not reviewed this final rule 
under Executive Order 12866 (E.O. 12866). OMB bases its determination 
upon the following four criteria:
    1. 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.
    2. Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    3. Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    4. Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to 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 effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. However, no regulatory flexibility analysis is 
required if the head of an agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on our FEA of the designation, we provide our analysis for 
determining whether the designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter will result in a 
significant economic impact on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors with less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation, as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter will affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities, such 
as oil spill planning and response, oil and gas exploration and 
development, marine and coastal construction activities, and water 
quality management. Specifically, we identified 12 small entities that 
may be affected by these activities (3 are in the deep sea freight 
transportation business, 2 are in the general construction business, 3 
are government jurisdictions, and 4 are in the seafood processing 
business). In estimating the numbers of small entities potentially 
affected, we considered whether the activities of these entities may 
entail any Federal involvement. Critical habitat designation will not 
affect activities that do not have any Federal involvement; designation 
of critical habitat affects activities conducted, funded, or authorized 
by Federal agencies.
    Once this critical habitat designation takes effect, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. Consultations to 
avoid the destruction or adverse modification of critical habitat will 
be incorporated into the existing consultation process.
    In order to determine whether it is appropriate for our agency to 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities, we considered in the FEA the 
potential impacts resulting from implementation of conservation actions 
related to the designation of critical habitat for the southwest Alaska 
DPS of the northern sea otter on each of the 12 small entities 
discussed above. As described in Appendix A of the FEA, the potential 
impacts are likely to be associated with construction, oil spill 
response activities, and water quality issues. The average annualized 
incremental impacts to small entities ranges from $2,407 for seafood 
processors to $4,367 for deep sea freight transporters, applying a 7 
percent discount rate. We therefore conclude that costs to small 
entities will not be significant. Please refer to the FEA for a more 
detailed discussion of potential economic impacts.
    In summary, we have considered whether the designation will result 
in a significant economic impact on a substantial number of small 
entities. We have identified 12 small entities that may be impacted by 
the critical habitat designation. For the above reasons and based on 
currently available information, we certify that the designation will 
not have a significant economic impact on a substantial number of small 
business entities. Therefore, a regulatory flexibility analysis is not 
required.

[[Page 52009]]

Energy Supply, Distribution, or Use--Executive Order 13211

    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 critical habitat unit. We do 
not expect this final rule to significantly affect energy supplies, 
distribution (including shipping channels), or use because most oil and 
gas development activities will not overlap with the habitats used by 
northern sea otters, and we do not expect the activities to cause 
significant alteration of the PCEs. Any proposed development project 
likely will have to undergo section 7 consultation to ensure that the 
actions will 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 will 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.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    1. This rule will 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.'' 
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 does not apply, nor does 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    2. We do not believe that this rule will significantly or uniquely 
affect small governments because the areas being designated as critical 
habitat 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.

Takings--Executive Order 12630

    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. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. The takings 
implications assessment concludes that this 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--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final 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 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--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule

[[Page 52010]]

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 are 
designating critical habitat in accordance with the provisions of the 
Act. This final 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 (44 U.S.C. 3501 et seq.)

    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.

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), 
and Secretarial Order 3225 (Endangered Species Act and Subsistence Uses 
in Alaska), we readily acknowledge our responsibilities to work 
directly with Alaska Natives 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 Alaska Natives. As all 
critical habitat units designated in this final rule occur seaward from 
the mean high tide line, we have determined that there are no Alaska 
Native lands occupied at the time of listing that contain the features 
essential for the conservation of the southwest Alaska DPS of the 
northern sea otter. Therefore, we have not designated any critical 
habitat for the southwest Alaska DPS of the northern sea otter on 
Alaska Native lands.
    We do not expect this rule to have any impact on Alaska Native 
subsistence activities. All subsistence hunting takes 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.

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 assertion 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), cert. denied 
516 U.S. 1042 (1996)).

References Cited

    A complete list of all references cited in this final rulemaking is 
available upon request from the Field Supervisor, Marine Mammals 
Management Office (see ADDRESSES).

Author(s)

    The primary authors of this package are staff members of the Marine 
Mammals Management Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. 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
------------------------------------------------------    Historic range       where endangered or        Status         When      Critical     Special
           Common name              Scientific name                                threatened                           listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Otter, northern sea.............  Enhydra lutris       U.S.A., (AK, WA)...  Southwest Alaska, from    T                      764    17.95(a)    17.40(p)
                                   kenyoni.                                  Attu Island to Western
                                                                             Cook Inlet, including
                                                                             Bristol Bay, the Kodiak
                                                                             Archipelago, and the
                                                                             Barren Islands.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
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.

[[Page 52011]]

    (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;
    (iii) Kelp forests, which occur in waters less than 20 m (65.6 ft) 
in depth; and
    (iv) Prey resources within the areas identified in paragraphs 
(2)(i), (2)(ii), and (2)(iii) of this entry 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 of critical habitat for the southwest Alaska 
DPS of the northern sea otter follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR08OC09.002

BILLING CODE 4310-55-C
    (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.

[[Page 52012]]

    (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, Aliksemit, 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, Kumlik, 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: September 23, 2009.
Jane Lyder,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-24087 Filed 10-7-09; 8:45 am]
BILLING CODE 4310-55-P