[Federal Register Volume 77, Number 244 (Wednesday, December 19, 2012)]
[Rules and Regulations]
[Pages 75266-75297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30486]



[[Page 75265]]

Vol. 77

Wednesday,

No. 244

December 19, 2012

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Termination of the 
Southern Sea Otter Translocation Program; Final Rule

  Federal Register / Vol. 77, No. 244 / Wednesday, December 19, 2012 / 
Rules and Regulations  

[[Page 75266]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-FHC-2011-0046]; [FF09E32000-134-FXES11130900000]
RIN 1018-AX51


Endangered and Threatened Wildlife and Plants; Termination of the 
Southern Sea Otter Translocation Program

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule and record of decision.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are removing 
the regulations that govern the southern sea otter (Enhydra lutris 
nereis) translocation program, including the establishment of an 
experimental population of southern sea otters, and all associated 
management actions. Removal of the regulations terminates the program. 
We analyzed the environmental consequences of this action, and 
alternatives to it, in a final supplemental environmental impact 
statement (final SEIS), which we made available to the public on 
November 9, 2012. This Federal Register document records our decision 
to select the preferred alternative, Alternative 3C.

DATES: This rulemaking becomes effective January 18, 2013.

ADDRESSES: This final rulemaking and supporting documentation, 
including public comments, are available on the Internet at http://www.regulations.gov. In the search field, enter FWS-R8-FHC-2011-0046, 
which is the docket number. Then click on the Search button. On the 
resulting screen, you may view documents associated with the docket. 
Comments and materials received, as well as supporting documentation 
used in the preparation of this rulemaking, are also available for 
public inspection, by appointment, during normal business hours at the 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003.

FOR FURTHER INFORMATION CONTACT: Lilian Carswell, at the above Ventura 
street address, by telephone (805/644-1766), by facsimile (805/644-
3958), or by electronic mail ([email protected]). Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    With this final rulemaking, we are removing the regulations that 
govern the southern sea otter translocation program, including the 
establishment of an experimental population of southern sea otters, and 
all associated management actions. We are also amending the authority 
citation for 50 CFR part 17 by removing the reference to Public Law 
(Pub. L.) 99-625, the statute that authorized the Secretary to 
promulgate regulations establishing the southern sea otter 
translocation program. Removal of the regulations terminates the 
program. We are taking this action because we have determined that the 
southern sea otter translocation program has failed to fulfill its 
purpose, as outlined in the southern sea otter translocation plan, and 
that our recovery and management goals for the species cannot be met by 
continuing the program. Our conclusion is based, in part, on an 
evaluation of the program against specific failure criteria established 
at the program's inception.
    This action terminates the designation of the experimental 
population of southern sea otters, abolishes the southern sea otter 
translocation and management zones, eliminates the obligation to remove 
southern sea otters in perpetuity from an ``otter-free'' management 
zone, and removes the current requirement to remove southern sea otters 
from San Nicolas Island and the management zone upon termination of the 
program. As a result, it allows southern sea otters to expand their 
range naturally into southern California waters.
    We analyzed the environmental consequences of this action, and 
alternatives to it, in a final SEIS that we made available to the 
public on November 9, 2012 (77 FR 67302; 77 FR 67362). This Federal 
Register document records our decision to select the preferred 
alternative, Alternative 3C. We have prepared a final regulatory 
flexibility analysis (FRFA) to accompany this rulemaking.

Decision

    We published a final SEIS on November 9, 2012 (77 FR 67302; 77 FR 
67362), which evaluates options for continuing, revising, or 
terminating the southern sea otter translocation program, initiated in 
1987. The final SEIS describes the proposed action and alternatives 
under consideration and discloses the direct, indirect, and cumulative 
environmental effects of each of the alternatives. We analyzed six 
alternatives:
     No Action Alternative: Maintain the status quo. This 
alternative serves as the baseline for comparison with all other 
alternatives;
     Alternative 1: Resume implementation of the 1987 southern 
sea otter translocation plan;
     Alternative 2: Implement a modified southern sea otter 
translocation program with a smaller management zone;
     Alternative 3A: Terminate the southern sea otter 
translocation program based on a failure determination pursuant to 50 
CFR 17.84(d) and remove all sea otters residing within the 
translocation and management zones at the time the decision to 
terminate is made;
     Alternative 3B: Terminate the southern sea otter 
translocation program based on a failure determination pursuant to 50 
CFR 17.84(d) and remove only sea otters residing within the 
translocation zone at the time the decision to terminate is made;
     Alternative 3C (Preferred Alternative): Terminate the 
southern sea otter translocation program based on a failure 
determination pursuant to 50 CFR Sec.  17.84(d) and do not remove sea 
otters residing within the translocation or management zones at the 
time the decision to terminate is made.
    Comments: We received 12 comments on the final SEIS. These comments 
did not raise any new substantive issues regarding the final SEIS or 
this rulemaking. The comment letters and a summary of our responses are 
available on the Service's Web site at the internet address identified 
in the ADDRESSES section of this document.
    Based on a thorough review of the alternatives and their adverse 
and beneficial environmental consequences, as described in the final 
SEIS, the decision of the Service is to implement Alternative 3C, the 
preferred alternative. We are selecting Alternative 3C because we have 
determined that the southern sea otter translocation program has failed 
to fulfill its purpose, as outlined in the southern sea otter 
translocation plan, and that our recovery and management goals for the 
species cannot be met by continuing the program.
    The purpose of the southern sea otter translocation program was to: 
(1) Implement a primary recovery action for the southern sea otter; and 
(2) obtain data for assessing southern sea otter translocation and 
containment techniques, population dynamics, ecological relationships 
with the nearshore community, and effects on the donor population of 
removing individual southern sea otters for

[[Page 75267]]

translocation (52 FR 29754; August 11, 1987). The translocation of 
southern sea otters was intended to advance southern sea otter 
recovery, with the ultimate goal of delisting the species under the 
Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et 
seq.). Through translocation, we hoped to establish a self-sustaining 
southern sea otter population (experimental population) that would 
provide a safeguard in the event that the parent southern sea otter 
population was adversely affected by a catastrophic event, such as an 
oil spill.
    Our conclusion that the southern sea otter translocation program 
has failed is based on an in-depth evaluation of the translocation 
program (see Appendix C to the final SEIS). The translocation program 
evaluation compares results to date with the program's objectives and 
specific failure criteria established at the program's inception. We 
have determined that the translocation program meets failure criterion 
2. We also note that (1) the colony of southern sea otters at San 
Nicolas Island remains small, and its ability to become established and 
persist is uncertain; (2) establishment and maintenance of an isolated 
southern sea otter colony at San Nicolas Island will not provide an 
adequate safeguard should the mainland southern sea otter population be 
adversely affected by a catastrophic event; (3) attempts to limit 
natural range expansion of southern sea otters disrupt seasonal 
patterns of movement and hinder recovery of the southern sea otter; (4) 
capturing and moving sea otters out of a ``no-otter'' management zone 
has proven to be ineffective as a long-term management action, largely 
because of the difficulties inherent in sea otter capture, the ability 
of sea otters to return rapidly to the management zone, and the 
elevated mortality associated with the holding, transport, and release 
of sea otters; 5) the recovery strategy for the southern sea otter has 
changed since the original recovery plan was released in 1982, in part 
because of points 1-4 above; in the revised recovery plan for the 
southern sea otter (USFWS 2003), the recovery team recommends that we 
declare the translocation program a failure and discontinue maintenance 
of a ``no-otter'' management zone.
    Alternative 3C allows for the continued natural range expansion of 
sea otters into their historic range in southern California waters. 
This alternative reflects the recommendation made in the revised 
recovery plan, which advises against additional translocations and 
instead advocates allowing natural range expansion (USFWS 2003). In 
light of these and other considerations of effects on southern sea 
otters and on our ability to meet our mandates under the ESA and the 
Marine Mammal Protection Act of 1972, as amended (MMPA) (16 U.S.C. 1361 
et seq.), discussed in sections 6.7.3.3 and 6.7.11.1 of the final SEIS, 
we are selecting Alternative 3C.
    The No Action Alternative reflects baseline environmental 
conditions that have been in place since the suspension of containment 
in 1993. It serves as the baseline for comparison with the other 
alternatives, but we do not consider it to be a viable alternative 
because the legal regime reflected in the No Action Alternative 
(continuation of the translocation program without containment) is 
untenable. In 2001, we published a Notice of Policy (66 FR 6649; 
January 22, 2001) notifying the public that we would not implement the 
containment component of the translocation program pending completion 
of a supplemental environmental impact statement and a final evaluation 
of the program. In the notice, we acknowledged the conclusion of our 
2000 biological opinion that capture and removal (containment) of 
southern sea otters from the management zone--a key component of the 
translocation program--would likely jeopardize the continued existence 
and impede the recovery of the species. In light of our inability to 
implement the translocation program as designed and intended, we 
committed to a full and final evaluation of the program. We have now 
completed that evaluation and determined that the translocation program 
has failed. For additional discussion of the No Action Alternative, see 
our responses to comments below under the heading ``Positions on 
Proposed Action.''
    Alternatives 1 and 2 would entail resumption of implementation of 
the translocation program, including resumption of its containment 
component (though with differently configured management zones). 
However, we determined that resumption of containment would jeopardize 
the southern sea otter and violate Section 7 of the ESA (USFWS 2000). 
We based this conclusion, in part, on the recognition that reversal of 
southern sea otter population declines and expansion of the southern 
sea otter's range is essential to the survival and recovery of the 
species. In order to resume containment, we would have to reinitiate 
consultation under the ESA to consider any new information and conclude 
that continuation of the program would not jeopardize the southern sea 
otter. Resumption of sea otter containment could result in increased 
mortality of sea otters and disrupt behavior throughout the range of 
the species. It would also artificially restrict the southern sea 
otter's range, increasing its vulnerability to oil spills, disease, and 
stochastic events relative to the baseline. In combination, these 
effects would slow or prevent the recovery of the species. 
Additionally, it is now well established that sea otters can return 
rapidly to areas from which they have been removed; thus, our ability 
to influence sea otter movements by means of capture and removal is 
limited. Successful implementation of containment would likely require 
the repeated removals of some individuals. In light of these and other 
effects on southern sea otters and on our ability to meet our mandates 
under the ESA and the MMPA, discussed in sections 6.3.3.3, 6.3.11.1, 
6.4.3.3, and 6.4.11.1 of the final SEIS, we have not selected 
Alternatives 1 or 2.
    Alternatives 3A and 3B would recognize that the translocation 
program has failed, but they would be less likely to achieve our 
objectives than Alternative 3C. Alternatives 3A and 3B would require 
that we remove sea otters from the translocation zone and/or management 
zone at the time the decision to terminate the program was made. The 
attempted removal of sea otters from San Nicolas Island or the 
management zone, even over the short term, could result in increased 
mortality of the removed sea otters and temporarily disrupt behavior 
throughout the range of the species. Additionally, because sea otters 
can return rapidly to areas from which they have been removed (and can 
also potentially disperse to new areas), attempting these removals 
would be not only harmful but likely futile. In light of effects on 
southern sea otters and on our ability to meet our mandates under the 
ESA and the MMPA, discussed in sections 6.5.3.3, 6.5.11.1, 6.6.3.3, and 
6.6.11.1 of the final SEIS, we have not selected Alternatives 3A or 3B.
    We identified Alternative 3C as the environmentally preferable 
alternative. While the regulatory change in the status of sea otters in 
the Southern California Bight may result in indirect effects on gill 
and trammel net fisheries if additional depth restrictions are adopted 
in the future, we have determined that, on balance, Alternative 3C 
causes the least damage to the biological and physical environment, in 
that it would allow a ``keystone species'' to return to its former 
range off southern California and would help to restore the natural 
functioning of the nearshore marine ecosystem. For an in-depth

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discussion of the effects of sea otters on the nearshore marine 
ecosystem, see section 6.2.2 of the final SEIS.
    We have adopted all practicable means to avoid or minimize 
potential environmental harm from Alternative 3C. Natural range 
expansion of sea otters (which is occurring under baseline conditions 
and is expected to continue to occur under Alternative 3C) could affect 
the endangered white abalone (Haliotis sorenseni) and the endangered 
black abalone (Haliotis cracherodii) if sea otters encounter 
individuals that are not in cryptic or otherwise inaccessible habitat. 
We recognize our affirmative responsibilities under the ESA and fully 
support recovery efforts for endangered white and black abalone. To 
lessen the risk that natural range expansion of sea otters could 
interfere with recovery efforts for white and black abalone, we are 
committed to working closely with the National Marine Fisheries Service 
(NMFS) to share information that may affect recovery actions for these 
species. Specifically, we are working with NMFS to convene a working 
group composed of managers and scientists that have southern sea otter 
and abalone expertise to benefit the recovery of abalone and sea 
otters. We are also pursuing a Memorandum of Understanding with NMFS to 
formalize this and other cooperative efforts to facilitate the recovery 
of sea otters alongside the recovery of endangered abalone.
    While Alternative 3C (termination of the translocation program) is 
not anticipated to affect defense-related agency actions that are 
currently carried out within the translocation zone around San Nicolas 
Island, we acknowledge that Alternative 3C could result in an increased 
regulatory burden on the Department of Defense if actions significantly 
different from those currently being carried out are implemented in the 
future. To mitigate regulatory effects that may occur, we are 
continuing to work with the Department of Defense to identify possible 
mutually agreeable solutions, including streamlining ESA and MMPA 
compliance. While the Service does not have management authority for 
marine fisheries, we will also work closely with the California 
Department of Fish and Game (CDFG), NMFS, and affected fishers to 
identify and develop fishery management strategies, as feasible, to 
minimize effects on individual fishers.

Background

Previous Federal Actions

    On January 14, 1977, we listed the southern sea otter as a 
threatened species under the ESA on the basis of its small population 
size, its greatly reduced range, and the potential risk from oil spills 
(42 FR 2965). We established a recovery team for the species in 1980 
and approved a recovery plan on February 3, 1982. In the recovery plan, 
we identified the translocation of southern sea otters as an effective 
and reasonable recovery action, acknowledging that a translocated 
southern sea otter colony could impact shellfish fisheries that had 
developed in areas formerly occupied by southern sea otters. The 
objectives of southern sea otter translocation, as stated in the 1982 
recovery plan, included: (1) Establishing a second colony (or colonies) 
sufficiently distant from the parent population such that a smaller 
portion of the southern sea otter range would be affected in the event 
of a large-scale oil spill; and (2) establishing a database for 
identifying the optimal sustainable population level for the southern 
sea otter. We anticipated that translocation would ultimately result in 
a larger population size and a more continuous distribution of animals 
throughout the southern sea otter's historic range.
    Under the ESA, the Secretary has inherent authority to establish 
new or translocated populations of listed species. Section 10(j) of the 
ESA provides the Secretary with additional flexibility to relax the 
protective provisions of the ESA when translocating a population of a 
listed species by allowing the Secretary to designate the translocated 
population as an experimental population. However, the southern sea 
otter is protected under both the ESA and the MMPA, and at the time, 
the MMPA did not contain similar provisions. This inconsistency was 
resolved in the case of the southern sea otter translocation program by 
the passage of Public Law 99-625 (Fish and Wildlife Programs: 
Improvement; Section 1. Translocation of California Sea Otters) on 
November 7, 1986, which specifically authorized development of a 
translocation plan for southern sea otters administered in cooperation 
with the affected State.
    If the Secretary of the Interior chose to develop a translocation 
plan under Public Law 99-625, the plan was required to include: (1) The 
number, age, and sex of southern sea otters proposed to be relocated; 
(2) the manner in which southern sea otters were to be captured, 
translocated, released, monitored, and protected; (3) specification of 
a zone into which the experimental population would be introduced 
(translocation zone); (4) specification of a zone surrounding the 
translocation zone that did not include the range of the parent 
population or adjacent range necessary for the recovery of the species 
(management zone); (5) measures, including an adequate funding 
mechanism, to isolate and contain the experimental population; and (6) 
a description of the relationship of the implementation of the plan to 
the status of the species under the ESA and determinations under 
section 7 of the ESA. The purposes of the management zone were to: (1) 
Facilitate the management of southern sea otters and the containment of 
the experimental population within the translocation zone; and (2) 
prevent, to the maximum extent feasible, conflicts between the 
experimental population and fishery resources within the management 
zone. Any southern sea otter found within the management zone was to be 
treated as a member of the experimental population. We were required to 
use all feasible, nonlethal means to capture southern sea otters in the 
management zone and to return them to the translocation zone or to the 
range of the parent population.
    On August 15, 1986, we published a proposed rule to establish an 
experimental population of southern sea otters at San Nicolas Island, 
Ventura County, California, in conjunction with a management zone from 
which sea otters would be excluded (51 FR 29362). Concurrently, we 
released a draft environmental impact statement (EIS) that analyzed the 
impacts of six alternatives, which included establishing a program to 
translocate southern sea otters from their then-current range along the 
central coast of California to areas of the northern coast of 
California, the southern coast of Oregon, or San Nicolas Island off the 
coast of southern California. We identified translocation to San 
Nicolas Island as our preferred alternative, with the management zone 
including the coastline from Point Conception to the Mexican border and 
all of the offshore islands except San Nicolas Island. On May 8, 1987, 
we made available our final EIS (52 FR 17486). A detailed translocation 
plan meeting the requirements of Public Law 99-625 was included as an 
appendix to the final EIS. On August 11, 1987, we published a final 
rule providing implementing regulations for the translocation program 
(52 FR 29754); these regulations are codified at 50 CFR 17.84(d). These 
regulations define the boundaries of the translocation and management 
zones, provide the framework for the program, and include a set of 
criteria for determining if the

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translocation should be considered a failure.

Implementation of the Translocation Program

    The purpose of the southern sea otter translocation program was to: 
(1) Implement a primary recovery action for the southern sea otter; and 
(2) obtain data for assessing southern sea otter translocation and 
containment techniques, population dynamics, ecological relationships 
with the nearshore community, and effects on the donor population of 
removing individual southern sea otters for translocation (52 FR 29754; 
August 11, 1987). The translocation of southern sea otters was intended 
to advance southern sea otter recovery, with the ultimate goal of 
delisting the species under the ESA. Through translocation, we hoped to 
establish a self-sustaining southern sea otter population (experimental 
population) that would provide a safeguard in the event that the parent 
southern sea otter population was adversely affected by a catastrophic 
event, such as an oil spill. We expected that, to achieve this aim, the 
colony at San Nicolas Island would need to grow to a size such that it 
could remain viable while furnishing up to 25 sea otters per year for 
up to 3 years to repopulate affected areas of the parent range. Based 
on the magnitude of oil spills that had occurred up to that time, San 
Nicolas Island appeared to be sufficiently distant from the parent 
range to provide a reasonable safeguard in the event of such a 
catastrophic occurrence.
    On August 24, 1987, we began to implement the translocation plan by 
moving groups of southern sea otters from the coast of central 
California to San Nicolas Island. The translocation plan allowed for a 
maximum of 70 southern sea otters to be moved to San Nicolas Island 
during the first year of the program (USFWS 1987). This number could be 
supplemented with up to 70 animals annually (up to 250 total) in 
subsequent years, if necessary, to ensure the success of the 
translocation and to prevent the colony from declining into an 
irreversible downward trend. Assuming that a core population of 70 
southern sea otters could be maintained through translocation, we 
anticipated that the experimental population could be established 
within as few as 5 or 6 years. In this context, the term 
``established'' had a specific meaning: When at least 150 southern sea 
otters resided at the island, and the population had a minimum annual 
recruitment of 20 animals (52 FR 29754; August 11, 1987).
    Between August 1987 and March 1990, we captured 252 southern sea 
otters along the central California coast and released 140 at San 
Nicolas Island. More than 100 of the captured sea otters were deemed 
unsuitable for translocation and released near their capture sites, and 
6 of the 252 animals died of stress-related conditions before 
translocation to San Nicolas Island. Some sea otters died as a result 
of translocation, many swam back to the parent population, and some 
moved into the management zone. As of March 1991, approximately 14 
independent (non-pup) southern sea otters (10 percent of those 
translocated) were thought to remain at the island.
    Because of the unexpected mortalities and high emigration 
encountered during the first year, we amended our regulations for the 
translocation program in 1988 (53 FR 37577; September 27, 1988). The 
amendments were intended to minimize stress on captured sea otters, to 
improve the survival of translocated animals, and to minimize the 
dispersal of translocated sea otters from the translocation zone. 
Specifically, we provided more flexibility in selecting the ages of sea 
otters for translocation, eliminated the restriction to capture them 
only within an August to mid-October timeframe, eliminated the 
requirement to move a specified number of sea otters previously 
implanted with transmitters, provided the flexibility either to 
transport them immediately or to hold them on the mainland before 
releasing them at San Nicolas Island, and eliminated the requirement to 
translocate a minimum of 20 animals at a time.
    The fate of approximately half the sea otters taken to San Nicolas 
Island was never determined, although an intense effort was made to 
locate translocated animals at San Nicolas Island, in the management 
zone, and in the parent range. In 1991, we stopped translocating sea 
otters to San Nicolas Island due to high rates of dispersal and poor 
survival. However, we continued monitoring the sea otters remaining in 
the translocation zone.
    In December 1987, in coordination with CDFG, we began capturing and 
moving southern sea otters that entered the designated management zone. 
Containment efforts were intended to keep the management zone free of 
otters, in accordance with Public Law 99-625 and our implementing 
regulations. Containment operations consisted of three interdependent 
activities: (1) Surveillance of the management zone; (2) capture of 
southern sea otters in the management zone; and (3) relocation of 
captured animals to the parent range or San Nicolas Island.
    Between December 1987 and February 1993, 24 southern sea otters 
were captured, removed from the management zone, and released in the 
parent range. Of these, two sea otters were captured twice in the 
management zone, despite being released at the northern end of the 
parent range after their first removal. In February 1993, two sea 
otters that had been recently captured in the management zone were 
found dead shortly after their release in the range of the parent 
population. In total, four sea otters were known or suspected to have 
died within 2 weeks of being moved from the management zone. We were 
concerned that sea otters were dying as a result of our containment 
efforts; therefore, in 1993, we suspended all sea otter capture 
activities in the management zone to evaluate capture and transport 
methods. We recognized that available capture techniques, which had 
proven to be less effective and more labor-intensive than originally 
predicted, were not an efficient means of containing sea otters. From 
1993 to 1997, few sea otters were reported in the management zone, and 
there appeared to be no immediate need to address sea otter 
containment. In 1997, CDFG notified us that it intended to end its sea 
otter research project and would no longer be able to assist if we 
resumed capturing sea otters in the management zone.
    In 1998, a group of approximately 100 southern sea otters moved 
from the parent range into the northern end of the management zone, 
inaugurating a pattern of seasonal movements of large numbers of sea 
otters into and out of the management zone. Subsequent radio-telemetry 
studies have determined that these animals are moving great distances 
throughout their range and are an important component of the population 
(i.e., the same territorial males that hold territories and sire pups 
within the center of the range may be found seasonally aggregated in 
``male areas,'' often at the range ends) (Tinker et al. 2006). At the 
same time, rangewide counts of the southern sea otter population 
indicated a decline of approximately 10 percent between 1995 and 1998. 
In light of the decline in the southern sea otter population, we were 
concerned about the potential effects on the parent population of 
moving the large number of southern sea otters that had moved into the 
management zone. We asked the Southern Sea Otter Recovery Team, a team 
of biologists with expertise pertinent to southern sea otter recovery, 
for their recommendation

[[Page 75270]]

regarding the capture and removal of southern sea otters in the 
management zone. The recovery team recommended that we not move 
southern sea otters from the management zone to the parent population 
because moving large groups of southern sea otters and releasing them 
within the parent range would be disruptive to the social structure of 
the parent population. We agreed with their recommendation.
    In order to notify stakeholders of our intended course of action, 
we held two public meetings in August 1998. At these meetings, we 
provided information on the status of the translocation program, 
solicited general comments and recommendations, and announced that we 
intended to reinitiate consultation under section 7 of the ESA for the 
containment program and to begin the process of evaluating the failure 
criteria established for the translocation program. Subsequent to these 
meetings, the group of technical consultants (a body composed of 
representatives from the fishery and environmental communities, as well 
as State and Federal agencies) to the Southern Sea Otter Recovery Team 
was expanded to assist in evaluating the translocation program. We 
provided updates on the translocation program and the status of the 
southern sea otter population to the California Coastal Commission, the 
Marine Mammal Commission, and the California Fish and Game Commission 
in 1998 and 1999.
    In March 1999, we distributed a draft evaluation of the 
translocation program to interested parties for their comment. The 
draft document included the recommendation that we declare the 
translocation program a failure because fewer than 25 sea otters 
remained in the translocation zone, and reasons for the translocated 
sea otters' emigration or mortality could not be identified or 
remedied. We received comments from State and Federal agencies and the 
public following release of the draft for review. Some comments 
supported declaring the translocation program a failure, while others 
opposed it. The majority of respondents cited new information that 
became available after publication of our 1987 EIS and record of 
decision for the program. Many respondents encouraged us to look at new 
alternatives that were not identified in our 1987 EIS or corresponding 
implementing regulations.
    During the same period, we prepared a draft biological opinion, 
pursuant to section 7 of the ESA, evaluating the containment aspects of 
the southern sea otter translocation program. We distributed the draft 
to interested parties for comment on March 19, 1999, and issued a final 
biological opinion on July 19, 2000. Our reinitiation of consultation 
was prompted by the receipt of substantial new information on the 
population status, behavior, and ecology of the southern sea otter that 
revealed adverse effects of containment that were not previously 
considered. In the biological opinion, we cited the following 
information and circumstances as prompting reinitiation:
    (1) In 1998 and 1999, southern sea otters moved into the management 
zone in much greater numbers than in previous years;
    (2) Analysis of carcasses indicated that southern sea otters were 
being exposed to environmental contaminants and diseases that could be 
affecting the health of the population throughout California;
    (3) Rangewide counts of southern sea otters indicated that numbers 
were declining;
    (4) Recent information, in particular the observed effects of the 
Exxon Valdez oil spill, indicated that southern sea otters at San 
Nicolas Island would not be isolated from the potential effects of a 
single large oil spill; and
    (5) The capture and release of large groups of southern sea otters 
could result in substantial adverse effects on the parent population.
    The biological opinion concluded with our assessment that 
continuation of the containment program would likely jeopardize the 
continued existence of the species on the grounds that: (1) Reversal of 
the southern sea otter's population decline is essential to the 
survival and recovery of the species, whereas continuation of 
containment could cause the direct deaths of individuals and disrupt 
social behavior in the parent range, thereby exacerbating population 
declines; and (2) expansion of the southern sea otter's distribution is 
essential to the survival and recovery of the species, whereas 
continuation of the containment program would artificially restrict the 
range to the area north of Point Conception, thereby increasing the 
vulnerability of the species to oil spills, disease, and stochastic 
events.
    On July 27, 2000, we published in the Federal Register a notice of 
intent to prepare a supplement to our 1987 EIS on the southern sea 
otter translocation program (65 FR 46172), and on January 22, 2001, we 
issued a policy statement regarding the capture and removal of southern 
sea otters in the designated management zone (66 FR 6649). Based on our 
July 2000 biological opinion, we determined that the containment of 
southern sea otters was not consistent with the requirement of the ESA 
to avoid jeopardy to the species. The notice advised the public that we 
would not capture and remove southern sea otters from the management 
zone pending completion of our reevaluation of the southern sea otter 
translocation program, which would include the preparation of a 
supplement to our 1987 EIS and release of a final evaluation of the 
translocation program that contains an analysis of failure criteria.
    Public scoping meetings were announced in the July 27, 2000, issue 
of the Federal Register (65 FR 46172) and were held in Santa Barbara, 
California, on August 15, 2000, and in Monterey, California, on August 
17, 2000. We also convened the technical consultants to the Southern 
Sea Otter Recovery Team on September 26, 2000, to discuss scoping of 
the supplement. In April 2001, we published a scoping report that 
identified alternatives we would consider in the supplement and 
summarized comments received during the scoping period.
    On April 3, 2003, we made available our Final Revised Recovery Plan 
for the Southern Sea Otter (68 FR 16305; USFWS 2003, http://www.fws.gov/ventura/). This document updated the original recovery plan 
published in 1982. The revised recovery plan incorporated significant 
revisions, including a shift in focus from translocation as a primary 
recovery action to efforts to reduce the mortality of prime-aged 
animals. Based on the recommendations of the recovery team, the revised 
recovery plan concluded that additional translocations were not the 
best way to accomplish the objective of increasing the range and number 
of southern sea otters in California. According to the revised plan, 
range expansion of sea otters in California would occur more rapidly if 
the existing population were allowed to recover autonomously than it 
would under a recovery program that included actively translocating sea 
otters. The revised plan also recommended that it would be in the best 
interest of southern sea otter recovery to declare the translocation 
program a failure, to discontinue maintenance of an otter-free zone, 
and to allow the sea otters currently at San Nicolas Island to remain 
there.
    On October 7, 2005, we made available a draft supplemental 
environmental impact statement (draft SEIS) on the translocation 
program (70 FR 58737). A draft evaluation of the translocation program 
was included as Appendix C. We solicited comments on both the draft 
SEIS and the draft evaluation during the public comment period, which 
began October 7, 2005 (70

[[Page 75271]]

FR 58737), and ended March 6, 2006 (70 FR 77380; December 30, 2005). 
Comments we received during the 5-month comment period, including those 
addressing the translocation program evaluation, are summarized in 
Appendix G to the revised draft SEIS.
    On August 26, 2011, we made available a revised draft SEIS on the 
translocation program, a proposed rulemaking, and an accompanying 
initial regulatory flexibility analysis (76 FR 53381). A revised draft 
evaluation of the translocation program was again included as Appendix 
C. We solicited comments on the revised draft SEIS, revised draft 
evaluation of the translocation program, proposed rulemaking, and 
initial regulatory flexibility analysis during the 60-day public 
comment period, which began August 26, 2011 and ended October 24, 2011 
(76 FR 53381). We reopened the comment period on November 4, 2011 for 
an additional 18 days, until November 21, 2011 (76 FR 68393). On 
November 9, 2012, we made available a final SEIS (77 FR 67302; 77 FR 
67362). Comments we received during the comment period, including those 
addressing the revised draft evaluation of the translocation program, 
are summarized in Appendix G to the final SEIS.
    Approximately 50 independent southern sea otters currently exist at 
San Nicolas Island. Dependent pups are frequently observed with these 
animals. Data from quarterly counts indicate that the population has 
fluctuated between 13 and 51 independent animals since July 1990. One 
sea otter pup was born at San Nicolas Island during the first year of 
the translocation program (1987-88), and new pups have been observed in 
each subsequent year. At least 174 pups are known to have been born at 
the island since the program's inception.
    At present, all of the southern sea otters at San Nicolas Island 
are believed to be offspring of those originally translocated to the 
island. This is because the original animals were translocated 25 years 
ago, and the average life expectancy of southern sea otters in the wild 
is 10 to 15 years. Although it is possible that sea otters could 
disperse from the mainland range to San Nicolas Island, we have no 
information to indicate that any exchange of animals between these two 
locations has occurred subsequent to the return of many of the 
translocated sea otters to the mainland range in the early years of the 
program. To date, we have gathered a significant amount of data to 
assess capture, transport, reintroduction, and containment techniques. 
However, the goal of implementing a primary recovery action for the 
southern sea otter remains unfulfilled. The original intention, to 
create a colony that would provide a safeguard in the event that the 
parent southern sea otter population was adversely affected by a 
catastrophic event, such as an oil spill, has not been accomplished.
    We have selected the preferred alternative in the final SEIS, which 
is to terminate the southern sea otter translocation program and, 
further, to allow southern sea otters in the former translocation and 
management zones to remain there upon termination of the program. The 
preferred alternative reflects the recommendations of the revised 
recovery plan for the southern sea otter (USFWS 2003). This final 
rulemaking and record of decision documents our selection of the 
preferred alternative, Alternative 3C, and implements it. Allowing sea 
otters to remain at San Nicolas Island and in the management zone upon 
termination of the translocation program is contrary to 50 CFR 
17.84(d)(8)(vi)), which required removal of sea otters from both 
locations if the translocation program were to be terminated. This 
rulemaking terminates the southern sea otter translocation program 
through removal of the regulations at 50 CFR 17.84(d) that established 
and governed implementation of the translocation program. Among the 
regulatory requirements that are eliminated by the removal of 50 CFR 
17.84(d), in its entirety, is the previous requirement to remove sea 
otters from San Nicolas Island and from the management zone if the 
translocation program were terminated.
    Termination of the translocation program through this rulemaking is 
not anticipated to affect defense-related agency actions that are 
currently carried out within the translocation zone around San Nicolas 
Island. The provisions of the MMPA have remained applicable under 
Public Law 99-625 to defense-related activities in that zone, and 
despite the low threshold for MMPA authorization of military activities 
(i.e., disturb or is likely to disturb a marine mammal or injure or has 
the significant potential to injure a marine mammal), the Navy has not 
required MMPA authorization for any of its activities there to date. 
Therefore, defense-related activities of the type currently carried out 
at San Nicolas are unlikely to need authorization under the generally 
higher thresholds of the Endangered Species Act.

Summary of Comments and Recommendations

    In the August 26, 2011, proposed rulemaking and notice of 
availability, we requested comments concerning any aspect of the 
proposal and the accompanying revised draft SEIS (including the revised 
draft evaluation of the translocation program) and initial regulatory 
flexibility analysis (76 FR 53381). We provided a 60-day comment 
period, which closed on October 24, 2011 (76 FR 53381). In response to 
a request from the California Sea Urchin Commission, we reopened the 
comment period on November 4, 2011 for an additional 18 days, until 
November 21, 2011 (76 FR 68393; November 4, 2011).
    We sent notifications about the proposal and supporting documents 
to Federal and State agencies, Congressional representatives, 
conservation groups, industry organizations, other entities, and 
numerous private citizens who may be affected or had expressed an 
interest in the proposal. We issued a news release on August 26, 2011, 
and published newspaper advertisements announcing public hearings in 
the Ventura County Star, Santa Barbara News Press, and Santa Cruz 
Sentinel. We held public informational open houses and public hearings 
in Ventura (September 27, 2011), Santa Barbara (October 4, 2011), and 
Santa Cruz, California (October 6, 2011). Approximately 190 people 
attended the public hearings, and 68 provided testimony. During the two 
comment periods, which totaled 78 days, we received 6,843 comment 
letters, postcards, and emails. Among the comment letters were 5 
petitions with 12,514 signatories.
    Most of the comments (approximately 99 percent) expressed support 
for termination of the translocation program generally or for the 
proposed action specifically. We received numerous substantive comments 
on the revised draft SEIS and revised draft evaluation of the 
translocation program that were also pertinent to the proposed 
rulemaking. We developed the following summary of comments to address 
the major issues raised during the comment period that are pertinent to 
the proposed rulemaking. Some of the comments are relevant to the 
revised draft SEIS or revised draft evaluation of the translocation 
program as well. We refer readers to Appendix G of the final SEIS for 
responses to all comments submitted during the comment period.
Positions on Proposed Action
    Comment: Approximately 750 commenters and 12,500 signatories to

[[Page 75272]]

petitions expressed support for the proposed action (Alternative 3C) 
for one or more of the following reasons: Range expansion is important 
for sea otter recovery; sea otters are a native, keystone species in 
kelp forest habitats; the presence of sea otters would enhance 
biodiversity in southern California waters; the presence of sea otters 
would enhance the economy by producing benefits for tourism and 
industries that depend on ocean health; sea otters have an intrinsic 
right to recolonize and make use of their historic habitat, the 
nearshore marine environment, without human-imposed restrictions.
    Our Response: Thank you for your comments. They have been noted and 
will be included in the administrative record for this action.
    Comment: Approximately 6,000 commenters did not specifically 
identify an alternative but expressed support for terminating the 
translocation program and ending the ``no-otter'' zone for one or more 
of the following reasons: Range expansion is important for sea otter 
recovery; sea otters are a native, keystone species in kelp forest 
habitats; the presence of sea otters would enhance biodiversity in 
southern California waters; the presence of sea otters would enhance 
the economy by producing benefits for tourism and industries that 
depend on ocean health; sea otters have an intrinsic right to 
recolonize and make use of their historic habitat, the nearshore marine 
environment, without human-imposed restrictions.
    Our Response: Thank you for your comments. They have been noted and 
will be included in the administrative record for this action.
    Comment: Implementing the No Action Alternative is the best way to 
allow sea otters to expand their range into southern California while 
still maintaining the incidental take exemptions provided in Public Law 
99-625 for the fisheries.
    Our Response: The No Action Alternative is not a viable 
alternative. While the environmental consequences of the No Action 
Alternative are the same as baseline environmental conditions and as 
such form an integral part of our analysis, the legal regime reflected 
in the No Action Alternative (continuation of the translocation program 
without containment) is not a reasonable path forward. In the revised 
draft SEIS and final SEIS, we considered the following additional 
alternatives: resume implementation of the translocation program 
(Alternative 1), modify it (Alternative 2), or terminate it 
(Alternatives 3A-3C). In 2001, we published a Notice of Policy (66 FR 
6649; January 22, 2001) notifying the public that we would not 
implement the containment component of the translocation program 
pending completion of a supplemental environmental impact statement and 
a final evaluation of the program. In the notice, we acknowledged the 
conclusion of our 2000 biological opinion that capture and removal 
(containment) of southern sea otters from the management zone--a key 
component of the translocation program--would likely jeopardize the 
continued existence and impede the recovery of the species. In light of 
our inability to implement the translocation program as designed and 
intended, we committed to a full and final evaluation of the program. 
We have also faced litigation over the translocation program twice 
during the past 12 years: First, for failing to implement the 
containment component of the translocation program, and second, for 
failing to complete our evaluation of whether the translocation program 
has failed. In resolution of the second lawsuit, we committed to 
evaluating whether the translocation program has failed under 50 CFR 
17.84(d)(8), and if we determined the program has failed, to promulgate 
a final rulemaking to terminate the program. Continuing to maintain the 
status quo, which is reflected in the No Action Alternative, when we 
cannot implement the translocation program as intended by Congress in 
Public Law 99-625 and have concluded in our evaluation of the 
translocation program that the program has failed and does not further 
recovery of the southern sea otter, is not reasonable, and cannot be 
justified on the basis that it would maintain current incidental take 
exemptions for fisheries. We prepared a final SEIS and completed a 
final evaluation of the translocation program. This rulemaking reflects 
our decision to implement the proposed action (Alternative 3C).
Fisheries
    Comment: Closing additional areas outside 3 miles along the 
coastline between Santa Barbara and Port Hueneme, Santa Barbara and 
Ventura Counties, to gill and trammel net fishing, will devastate the 
halibut and white seabass fisheries. Sea otters have not been observed 
in this area, and two seasons of observation by NMFS observers did not 
document any interactions.
    Our Response: The Service does not have management authority for 
gill and trammel net fisheries, and this rulemaking does not include a 
proposal to close any area to fishing. We do not advocate closures in 
areas where sea otters do not occur. We are aware that sea otters are 
currently very rare in the area we have analyzed as being potentially 
subject to fishery closures, although individual sea otters likely 
occasionally transit it. As a result, it is expected that at present 
the potential for interactions between sea otters and gill and trammel 
net gear is extremely low. However, if the southern sea otter range 
expands as expected, the potential for interactions will likely 
increase in the future.
    Comment: The Service should monitor the actual migration of sea 
otters and adjust regulations as needed to protect local fisheries from 
premature and unwarranted closure. The Service should also treat the 
drift-net and set-net fisheries differently because drift gear is 
deployed overnight, and few or no sea otters have been observed 
swimming or foraging 3 to 5 miles offshore at night.
    Our Response: The Service does not have management authority for 
gill and trammel net fisheries, and this rulemaking does not include a 
proposal to close any area to fishing. We do not advocate closures in 
areas where sea otters do not occur. The shore-based method of radio-
tracking sea otters (which generally requires both the ability to 
receive a radio signal and visibility) has limited both night-time and 
far-offshore observations of sea otters. However, time-depth recorders, 
which are not subject to a shore-bias and do not require visibility, 
indicate that sea otters frequently forage and travel at night. 
Therefore we do not concur that the drift-net and set-net fisheries 
pose widely different risks to sea otters.
    Comment: The Service has grossly underestimated the value of the 
white seabass fishery by using a 10-year average ex-vessel price rather 
than current market values.
    Our Response: In order to allow for the comparison of different 
alternatives across many different impact topics, it is necessary to 
maintain a consistent methodology. In our analysis of impacts, we use a 
10-year average to establish the baseline for commercial fisheries 
landings and ex-vessel revenues. The ex-vessel value of all fisheries 
tends to fluctuate according to demand and available supply. For some 
fisheries, the ex-vessel price will be higher at the end of this 
period, whereas for others, the price will be highest during the middle 
or at the beginning of this period. We use a 10-year average to dampen 
these fluctuations and standardize ex-vessel values for inflation to 
2009 dollars.

[[Page 75273]]

    Comment: It appears that the Service has already decided what its 
recommendation to CDFG will be regarding potential gill and trammel net 
closures and that comments submitted during the comment period will not 
be considered.
    Our Response: The Service does not have management authority for 
gill and trammel net fisheries, and this rulemaking does not include a 
proposal to close any area to fishing. We do not advocate closures in 
areas where sea otters do not occur. Our analysis of effects on these 
fisheries presents a low estimate (no additional closure) and a high 
estimate (immediate closure of the area to 104 meters (m) (341 feet 
(ft)). Our intention is not to advocate for such a closure but to 
disclose the maximum potential effect on these fisheries, while also 
acknowledging that this effect might not occur at all.
    Comment: The multiplied retail value of halibut and white seabass 
is 100 to 200 percent higher to the consumer than the ex-vessel price. 
These multiplied retail values should be presented in addition to ex-
vessel values.
    Our Response: A detailed economic analysis for this rulemaking and 
associated alternatives is included in a final SEIS, available at 
http://www.fws.gov/ventura/species_information/so_sea_otter/index.html. We include an estimate of the regional economic impacts in 
the analysis of effects on commercial fisheries under each alternative 
in that document. Because our primary intent in this rulemaking is to 
characterize effects on particular industries and not on the regional 
economy as a whole, we do not present multiplied effects here.
    Comment: The Service should offer mitigation for the financial 
hardship that will result from gill and trammel net closures associated 
with the proposed action.
    Our Response: The Service does not have management authority for 
gill and trammel net fisheries, and this rulemaking does not include a 
proposal to close any area to fishing. We do not advocate closures in 
areas where sea otters do not occur. Nevertheless, we recognize that 
additional gill and trammel net closures imposed by the State or NMFS 
are a potential indirect consequence of the change in regulatory status 
of sea otters under this rulemaking. We remain committed to working 
cooperatively with these management agencies to ameliorate any economic 
effects as they deem appropriate and feasible.
    Comment: Impacts to the shellfish industry are overstated. While we 
appreciate the Service's desire to err on the side of caution by 
overestimating, rather than underestimating, impacts on fisheries, we 
are concerned that the agency's approach is fueling misconceptions that 
the otters' return to southern California will result in the end not 
only of shellfish fisheries, but of fisheries in general.
    Our Response: Our assumption that under a scenario involving 
natural range expansion, sea otters will eliminate fisheries for sea 
urchins, lobsters, crabs, and sea cucumbers is based in part on data on 
proportional prey consumption by sea otters in southern California and 
in part on past interactions between sea otters and shellfish fisheries 
along the central coast (Estes and VanBlaricom 1985). Based on recent 
observations of proportional prey consumption by sea otters at San 
Nicolas Island (Bentall 2005), it is probable that sea urchin fisheries 
will be more heavily impacted than crab or lobster fisheries. However, 
because we lack data on absolute abundance of the prey species in 
question and the level at which fisheries for lobsters, crabs, and sea 
cucumbers would become inviable, we conservatively assume that these 
fisheries cannot coexist with sea otters once an area of range has been 
fully reclaimed. Although effects may be overestimated, they represent 
a reasonable upper bound and are sufficient to inform our 
decisionmaking. We note that these effects occur equally under the 
baseline and under this rulemaking.
    Comment: The Service misdefines the baseline in a manner that 
overestimates landings and does not account for reduced catches in many 
fisheries in recent years. The Service should revise its estimates to 
provide an accurate baseline that reflects the current state of fishing 
landings and revenue.
    Our Response: Cyclic variations in populations, adverse weather, 
market demand, and other factors influence catch from one year to the 
next. We use a 10[hyphen]year average to account for such fluctuations 
in estimating the baseline ex[hyphen]vessel value of fisheries. While 
we recognize that using a 10[hyphen]year average to determine a 
baseline for effects on landings under the various alternatives will 
overestimate these effects if a fishery is in decline, we consider this 
approach to be more reasonable than basing 10[hyphen]year projections 
on only 1 or 2 years of data.
Incidental Take
    Comment: If the only acceptable number of sea otter 'takes' is 
zero, the Service should be addressing other, non-fishery, impacts, 
such as propeller strikes.
    Our Response: Termination of the southern sea otter translocation 
program entails the removal of all associated regulatory provisions, 
such as the exemption from the incidental take prohibitions of the ESA 
and the MMPA for activities within the management zone. Allowable 
incidental take of sea otters in southern California commercial 
fisheries will thus be zero, as it is throughout the remainder of the 
southern sea otter's range, because such take cannot be authorized 
under section 118 of the MMPA. Boat strikes remain a low but persistent 
source of sea otter mortality. Many such strikes appear to occur as 
boats exit harbors. We continue to work with enforcement authorities to 
ensure compliance with speed limits in and near harbors.
    Comment: The Service should work with fishermen to provide 
incidental catch authorization for sea otters, as is available for 
other marine mammals.
    Our Response: Section 118 of the MMPA, which governs the incidental 
taking of marine mammals in the course of commercial fishing 
operations, does not apply to southern sea otters. Section 118 of the 
MMPA would need to be amended before the incidental taking of southern 
sea otters in commercial fisheries could be authorized.
    Comment: The Service does not adequately present the importance of 
the U.S. Navy (Navy) agreeing to have sea otters translocated to San 
Nicolas provided the Navy was given exemption from ESA and MMPA 
requirements.
    Our Response: We acknowledge that the Navy agreed to allow sea 
otters to be translocated to San Nicolas Island provided it was given 
an exemption from ESA and MMPA requirements for southern sea otters. 
However, we note that the MMPA exemption applies only to the management 
zone, not the translocation zone. Our observations of the colony to 
date suggest that the presence of southern sea otters at San Nicolas 
Island is compatible with naval operations. We appreciate the Navy's 
cooperation in establishing and implementing the translocation program 
and the Navy's continuing contribution to southern sea otter recovery 
efforts.
Expansion and Health of the Southern Sea Otter Population
    Comment: The proposed action does not address the real problem for 
southern sea otter recovery: disease resulting from degraded water 
quality.
    Our Response: Addressing disease is one component of the overall 
recovery strategy for southern sea otters. That strategy is outlined in 
the Final Revised Recovery Plan for the Southern Sea Otter (USFWS 
2003). The translocation

[[Page 75274]]

program was not intended or designed to address every action necessary 
to recover the southern sea otter. The objectives of southern sea otter 
translocation, as stated in the 1982 recovery plan, included: (1) 
Establishing a second colony (or colonies) sufficiently distant from 
the parent population such that a smaller portion of the southern sea 
otter range would be affected in the event of a large-scale oil spill; 
and (2) establishing a database for identifying the optimal sustainable 
population level for the southern sea otter. Our translocation program 
evaluation concludes that the translocation program has failed under 
one of the specific failure criteria set forth in 50 CFR 17.84(d)(8) 
and has also failed to achieve its overall recovery objectives. 
Maintaining an otter-free zone as provided in the translocation plan 
would prevent the natural range expansion of southern sea otters; that 
is, it would preclude the natural repopulation of southern California 
waters by southern sea otters and is detrimental to southern sea otter 
recovery. Additionally, it would make it difficult, if not impossible, 
to reach the Optimum Sustainable Population level for sea otters in 
California under the MMPA.
    We recognize the importance of addressing disease in southern sea 
otters, but that issue is beyond the scope and specific objectives of 
the translocation program and is not relevant to our determination that 
the translocation has failed to achieve its primary recovery goal of 
producing a second, self[hyphen]sustaining population of sea otters 
that could produce sufficient numbers of sea otters to repopulate the 
mainland range in the event of catastrophic mortality and has failed 
under the specific regulatory criteria established to evaluate the 
program. Further, the commenter is incorrect in assuming that solely 
addressing water quality issues is sufficient to bring about the 
recovery and delisting of the southern sea otter. The occurrence of 
infectious disease in sea otters resulting from land-borne pathogens 
appears to be related synergistically to exposure to harmful algal 
blooms and to nutritional stress (food limitation). These factors often 
interact in complex ways that we are just beginning to understand. For 
example, lower per-capita food availability leads to poorer body 
condition and greater reliance on suboptimal prey, which increases 
exposure and susceptibility to novel disease-causing pathogens, which 
may be further exacerbated by chronic domoic acid exposure) (Tinker, 
pers. comm. 2012). We are continuing to support research to understand 
these complex processes in order to identify management actions that 
target areas with the maximum growth potential for sea otters and thus 
the maximum effect on recovery.
    While a reasonable range of alternatives associated with the 
translocation program was analyzed in our final SEIS, this rulemaking 
does not in any way preclude continued efforts to understand and 
address disease in sea otters. In fact, because food limitation 
increases exposure and susceptibility to disease, the natural movement 
of sea otters into areas with higher prey abundance, such as will 
continue to occur under the current action, will likely result in a 
lower incidence of disease in those sea otters.
    Comment: The Service should address the problem of Toxoplasma 
gondii from cat feces.
    Our Response: The pathways by which sea otters are becoming exposed 
to Toxoplasma gondii are more complex than were at first recognized. 
Until recently, it was believed that cats (both domesticated and wild) 
were the only definitive host for this protozoal parasite. However, the 
widespread exposure of other marine mammals to T. gondii, including 
those whose habitat is mostly pelagic and distant from human population 
centers, as well as recent laboratory analyses, have suggested that 
there may be a definitive host in the marine environment (for example, 
Jensen et al. 2010). If sea otters are being exposed by this route, 
then efforts to control cat feces will have no effect on T. gondii 
exposure in sea otters. The relative contribution of parasites from 
wild felids versus domestic or feral cats is also an outstanding 
question (one that is currently under investigation, for example, 
Miller et al. 2008); efforts to control domestic cat feces will have no 
effect on sea otter exposure to T. gondii parasites from wild felids. 
Finally, recent research indicates that T. gondii is only one of a 
number of closely related protozoan parasites that infect sea otters 
(Sarcocystus neurona is another), and genetic work has revealed that in 
many cases sea otters and other marine mammals actually have co-
infections of multiple parasite species (for example, Gibson et al. 
2011, Colegrove et al. 2011). A better understanding of the sources of 
the various parasite genotypes, the routes by which they are entering 
marine food webs, and the degree to which they have significant health 
impacts on sea otters is needed before specific management actions can 
be recommended. We are continuing to support research to understand the 
pathways by which sea otters are being exposed to Toxoplasma gondii and 
other parasites and the effects of these parasites on recovery.
    Comment: The issues regarding the sea otter translocation program 
are not about striking a balance between economics and 
environmentalism, but about doing what is right. Hijacking a program 
intended to nurse the sea otter population back to healthy abundance in 
order to preserve declining industries, at the expense of those very 
populations, is not right.
    Our Response: Thank you for your comment. It has been noted and 
will be included in the administrative record for this action.
    Comment: The southern sea otter population needs to expand into 
southern California beyond Point Conception if this species is ever to 
recover its original range. Sea otters are also an important functional 
element of the coastal marine ecosystem in that region (Estes et al., 
2011). Preventing their recovery by any means would be contrary to the 
conservation and management goals of the Service under the both the ESA 
and the MMPA.
    Our Response: We agree. This rulemaking allows for the continued 
natural range expansion of sea otters into their historic range in 
southern California waters. Our decision reflects the recommendation 
made in the revised recovery plan, which advises against additional 
translocations and instead advocates allowing natural range expansion 
(USFWS 2003).
    Comment: A recent population viability analysis (PVA) conducted by 
Dr. Daniel Doak demonstrates that increases in the southern sea otter 
population and the probability of meeting the Service's recovery goals 
for the species substantially differ depending on whether zonal 
management is terminated and sea otters are allowed to remain at San 
Nicolas Island. The likelihood of recovery, resulting in the delisting 
of the southern sea otter, and even the likelihood of uplisting the 
otter to endangered status will be significantly influenced depending 
on whether the management zone is maintained or abandoned. Termination 
of zonal management and removal of the exclusion zone will result in a 
14 percent increase in the probability of the southern sea otter 
meeting the recovery criteria at the end of the 10-year period adopted 
by the Service. This outcome translates into a greater than 55 percent 
proportional reduction in risk if zonal management is terminated. 
Lesser differentials in the probability of recovery have been 
considered

[[Page 75275]]

unacceptable for other listed species. These results support the 
conclusion that continuing the containment program would hinder 
recovery and violate the conservation mandate. Clearly, the Service 
cannot meet its affirmative duty to achieve recovery when it is 
carrying out an action that makes species conservation and delisting 
significantly less likely. The Service's conclusions, supported by this 
most recent analysis, make clear that continuation of the containment 
program would violate the Service's section 7(a)(1) obligations. The 
program must be declared a failure and ended.
    In addition, when the PVA takes into account the well-documented 
but poorly understood periodic dips in the southern sea otter 
population, it shows that maintenance of the containment zone does 
result in 4.4 to 5.6 percent risk of the southern sea otter population 
dipping below the threshold for uplisting it to endangered status under 
the ESA. While these risks are not significant in and of themselves, 
they do highlight the nontrivial risk that uplisting could take place, 
despite current growth trends.
    Finally, as Doak demonstrates, the number of otters that would have 
to be captured and moved to maintain the management zone program is 
very large, resulting in unacceptably high sea otter mortality and 
requiring the Service to spend significant funds to enforce the ``no-
otter zone.'' An average of at least 45 otters would have to be 
pursued, captured, and translocated each year, in perpetuity. Over the 
next 10 years, a total of 393 otters would have to be removed from the 
management zone. Using the Service's expected mortality rate of 17 
percent, an expected 66-67 otters would die as a direct result of the 
containment program.
    Our Response: We have incorporated the results of the referenced 
population viability analysis (Doak 2011) into our analysis.
Retention of the Sea Otter Colony at San Nicolas Island
    Comment: If the Service declares the translocation program a 
failure, it should remove sea otters from San Nicolas Island. Leaving 
them there is counter to all of the discussions, commitments, and 
intentions expressed during development of the original plan and rule.
    Our Response: The commenter recommends that the Service remove the 
small but healthy population of southern sea otters from San Nicolas 
Island if we terminate the translocation program because that is the 
commitment we made when the program was initiated 25 years ago. Our 
decision to declare the program a failure but to retain sea otters at 
San Nicolas Island is based in part on the recognition, gained from our 
experience implementing the translocation program, that if sea otters 
were removed from the island, some would return, some would die, and 
the introduction of these sea otters into the mainland population would 
likely further stress that food[hyphen]limited population. During 
public hearings, one fisherman reported that he and other fishermen had 
discussed the issue and recognized that if the San Nicolas Island 
population were removed, some sea otters would likely return 
immediately to San Nicolas Island (just as many returned immediately to 
the mainland range after being translocated to San Nicolas Island) and 
stated that although they believed the program should not be declared a 
failure, they did not want sea otters to be removed from San Nicolas 
Island if the program were declared a failure. We conclude that removal 
of southern sea otters from San Nicolas Island, if it were determined 
to be allowable under the ESA, would not further the species' survival 
or its recovery. It is for this reason that we proposed terminating the 
translocation program, including removing the existing regulatory 
requirement to remove sea otters from San Nicolas Island, and requested 
public review and comment on this issue.
    Comment: The small population at San Nicolas Island should not be 
captured and translocated elsewhere. We are particularly concerned that 
the relocation of sea otters from San Nicolas Island back to the 
mainland could result in increased risk of mortality due in part to the 
stress associated with capture, handling, and time out of water, and in 
part to the general lack of familiarity of the animals with their new 
environments. Previous translocation efforts have shown that such 
stress and mortality are both significant and inevitable. Further, 
competition with the resident sea otter populations in the central part 
of the California coast would be detrimental to both populations 
competing for limited food resources.
    Our Response: We agree. Our decision to declare the program a 
failure but to retain sea otters at San Nicolas Island is based in part 
on the recognition that if sea otters were removed from the island, 
some would return, some would die, and the introduction of these sea 
otters into the mainland population would likely further stress that 
food[hyphen]limited population.
    Comment: Since the zonal management system was first implemented, 
substantial new information on the population status, behavior, and 
ecology of the southern sea otter has revealed that effects of 
containment that were not previously considered have continued to 
develop and placed a renewed importance on retention of the San Nicolas 
Island population. Recent studies have demonstrated that moving sea 
otters from San Nicolas Island and the ``otter-free'' zone into the 
central part of the range would have potentially deleterious effects on 
social structure and could greatly exacerbate problems involving 
competition in a very food-limited area. Removal of southern sea otters 
from San Nicolas Island will result in the direct deaths of individuals 
(presumably at the same 17 percent rate specified in the 2000 
biological opinion) and the disruption of social behavior in the parent 
population, in that those affected individuals will have reduced 
potential for survival and reproduction. In order to avoid these 
negative consequences and meet the requirements of ESA Section 7(a)(2), 
southern sea otters should be left at San Nicolas Island according to 
Alternative 3C.
    Our Response: Relocating sea otters from the management zone and 
San Nicolas Island to the northern or central portion of the existing 
range would increase competition among sea otters, especially in areas 
of the central coast now thought to be food-limited (see Tinker et al. 
2008), disrupt natural behaviors, and likely result in the deaths of 
otherwise healthy animals. The incidental injury or death of sea otters 
removed from San Nicolas Island or the management zone would likely be 
unavoidable. The relocation of sea otters results in increased risk of 
mortality due in part to the stress associated with capture, handling, 
and time out of water, and in part to the general lack of familiarity 
of the animals with their new environments (Estes et al., n.d.). Sea 
otters that have learned to forage in prey-rich environments (such as 
San Nicolas Island) may experience additional stress or even starvation 
resulting from their inability to find adequate food in prey-limited 
areas of the mainland range. For males, there may be an added risk of 
death or injury from encountering territorial males in unfamiliar 
habitats (Estes et al., n.d.). Some sea otters would likely attempt to 
return to their location of capture, depleting their energy reserves 
and increasing their risk of mortality. Overall, relocating sea otters 
from San Nicolas Island or the management zone to the mainland range 
would be

[[Page 75276]]

disruptive, harmful, or possibly lethal, both to the relocated animals 
and to those in the receiving population. The effects of removing the 
population of southern sea otters from San Nicolas Island and 
relocating them into the parent population would be similar to those 
analyzed in the 2000 biological opinion that resulted in our jeopardy 
determination. Prior to making a decision to remove otters from San 
Nicolas Island, we would have to complete a formal internal Section 7 
consultation under the ESA and determine that such relocation would not 
result in jeopardy to southern sea otters.
Impacts on Other Species and the Ecosystem
    Comment: The Service admits that ``sea otter range expansion along 
the central California coast is known to have reduced abalone 
population levels and size distributions'' but concludes there is no 
conflict between the preferred alternative and white abalone survival 
and recovery. Introducing an apex predator into abalone habitat will 
have significant, if not fatal, consequences for the future of this 
endangered species.
    Our Response: Potential future effects on white abalone of this 
action are identical to baseline conditions. Currently, southern sea 
otters are present at San Nicolas Island and are naturally recolonizing 
their historic range in the management zone. Under this action, those 
conditions will continue. The National Oceanic and Atmospheric 
Administration (NOAA), the federal agency with ESA jurisdiction over 
the endangered white abalone, has stated that it ``supports USFWS' 
efforts to recover southern sea otters throughout their range,'' and 
NMFS, which NOAA oversees, has stated that it ``does not support the 
alternatives that involve some level of sea otter removal from the 
management and/or translocation zones'' (NOAA 2011).
    The effect of this action is not to ``introduce'' an apex predator 
into abalone habitat as the commenter suggests. Rather, it would 
continue baseline conditions of natural sea otter range expansion. Sea 
otters are naturally recolonizing their historic range, which formerly 
encompassed the entire range of white abalone until sea otters were 
hunted to near extinction during the 18th and 19th centuries. Sea 
otters and white abalone coevolved. We note that white abalone were 
federally listed as endangered not because of sea otter predation but 
because of dramatic declines in abundance due primarily to 
overharvesting for human consumption (66 FR 29046; May 29, 2001). Sea 
otters have been absent from nearly all of the range of white abalone 
since approximately 1850 (Scammon 1968). Therefore, very little is 
known about the specific ecology of sea otter-white abalone 
interactions. According to one researcher with specific expertise with 
white abalone, ``sea otters and abalone have coexisted historically. 
Many abalone traits are probably the result of selection by sea otters. 
To that end, sea otters will probably deplete abalone abundance, but 
not extirpate them. [* * *] [W]hite abalone have a depth refuge from 
otters'' (Lafferty, pers. comm. 2012).
    Nevertheless, we acknowledge that populations that have been 
reduced to very low densities are subject to risks that healthy 
populations are not and that sea otters may consume white abalone where 
their geographic and depth ranges overlap. We recognize our affirmative 
responsibilities under the ESA and fully support recovery efforts for 
endangered white abalone. To lessen the risk that natural range 
expansion of sea otters (which would occur both under baseline 
conditions and under alternatives that terminate the translocation 
program) could interfere with recovery efforts for white abalone, we 
are committed to working closely with NMFS, CDFG, and the White Abalone 
Recovery Team to share information that may affect recovery actions for 
this species. We are also pursuing a Memorandum of Understanding with 
NMFS to formalize our agencies' mutual commitment to cooperate in 
facilitating both southern sea otter and abalone recovery efforts.
    Comment: The Service's preferred alternative threatens both the 
survival and the recovery of black abalone. Although the Service admits 
that black abalone ``have nearly been extirpated in southern California 
waters,'' the Service apparently sees no problem with introducing a 
voracious apex predator into an already precarious circumstance for 
black abalone.
    Our Response: Potential future effects on black abalone of this 
action are identical to baseline conditions. We conducted an internal 
biological evaluation of the proposed rulemaking on the black abalone 
under Section 7(a)(2) of the Act and concluded that the proposed 
rulemaking would have no effect on the species or black abalone 
critical habitat. Currently, southern sea otters are present at San 
Nicolas Island and are naturally recolonizing their historic range in 
the management zone. Under this action, those conditions will continue. 
NOAA, the federal agency with ESA jurisdiction over the endangered 
black abalone, has stated that it ``supports USFWS' efforts to recover 
southern sea otters throughout their range,'' and NMFS has stated that 
it ``does not support the alternatives that involve some level of sea 
otter removal from the management and/or translocation zones'' (NOAA 
2011).
    The effect of this action is not to ``introduce'' an apex predator 
into abalone habitat as the commenter suggests. Rather, it would 
continue baseline conditions of natural sea otter range expansion. Sea 
otters are naturally recolonizing their historic range, which formerly 
overlapped with much of the range of black abalone until sea otters 
were hunted to near extinction during the 18th and 19th centuries. Sea 
otters and black abalone coevolved. The extirpation of southern sea 
otters from most of their former range is considered to have been 
responsible for the large aggregations of black abalone evident in 
California and Mexico during the nineteenth and twentieth centuries 
(Haaker et al. 2001). We note that black abalone were federally listed 
as endangered not because of sea otter predation but because of 
dramatic declines in abundance due to disease and overfishing (74 FR 
1937; January 14, 2009, Van Blaricom et al. 2009).
    Nevertheless, we acknowledge that the severe reduction of black 
abalone populations as a result of human overexploitation and disease 
has rendered them more vulnerable to all sources of mortality, 
including natural sources such as predation by marine organisms. The 
final status review for black abalone ranks the severity of the overall 
threat level posed by sea otter predation as ``medium'' (see Table 6, 
Van Blaricom et al. 2009). It notes that although sea otters are known 
to prey on black abalone, the quantitative ecological strength of the 
interaction is poorly understood (Van Blaricom et al. 2009). In its 
responses to comments in the final critical habitat designation for 
black abalone, NMFS states, ``the best available data do not support 
the idea that sea otter predation was a major factor in the decline of 
black abalone populations or that it will inhibit the recovery of the 
species'' (76 FR 66806; October 27, 2011).
    We recognize our affirmative responsibilities under the ESA and 
fully support recovery efforts for endangered black abalone. To lessen 
the risk that natural range expansion of sea otters (which would occur 
both under baseline conditions and under this action) could interfere 
with recovery efforts for black abalone, we are committed to working 
closely with NMFS, CDFG, and the Black Abalone Recovery Team (once it

[[Page 75277]]

has been convened), to share information that may affect recovery 
actions for this species. We are also pursuing a Memorandum of 
Understanding with NMFS to formalize our agencies' mutual commitment to 
cooperate in facilitating both southern sea otter and abalone recovery 
efforts.
    Comment: Section 7(a)(2) of the ESA requires that every Federal 
agency ``shall * * * insure that any action authorized, funded, or 
carried out by such agency * * * is not likely to jeopardize the 
continued existence of any endangered species or threatened species or 
result in the destruction or adverse modification of habitat of such 
species which is determined * * * to be critical.'' 16 U.S.C. 
1536(a)(2). The Service simply cannot ensure that the preferred 
alternative will not jeopardize the continued existence of endangered 
abalone. Section 7(a)(1) of the ESA requires that the Secretary of the 
Interior review programs administered by the Interior Department and 
utilize such programs in furtherance of the purposes of the ESA. 16 
U.S.C. 1536(a)(1). The failure to take action to protect the endangered 
white abalone and the endangered black abalone violates this mandatory 
duty. Further, allowing unlimited sea otter range expansion is an 
action that will result in a taking of endangered white and black 
abalone in violation of the prohibition set forth in Sec.  9(a)(1)(B) 
of the ESA, 16 U.S.C. 1538(a)(1)(B). In sum, the Service is proposing a 
preferred alternative that likely violates the ESA at several levels. 
First, the agency action will allow unlimited sea otter range 
expansion, which will result in a prohibited taking of endangered 
abalones. Second, the Service has failed to implement its Sec.  7(a)(1) 
responsibilities because it has failed to fully and adequately consider 
the impact of its actions on the survival and recovery of endangered 
abalone and to affirmatively take action to protect these abalone. 
Finally, the Service is proposing an action that will jeopardize the 
continued existence of endangered abalone in violation of Sec.  
7(a)(2).
    Our Response: We have carefully considered the effects of this 
rulemaking on endangered white and black abalone and black abalone 
critical habitat. We note that the effects of this rulemaking are 
identical to baseline conditions. We conducted an internal biological 
evaluation of the proposed rulemaking on the endangered abalone 
species, designated critical habitat for black abalone, and the 
southern sea otter under Section 7(a)(2) of the Act and concluded that 
the proposed rulemaking would have no effect on the two abalone species 
or black abalone critical habitat and is not likely to adversely affect 
the southern sea otter. Thus, we have met our obligations under Section 
7(a)(2). Currently, southern sea otters are present at San Nicolas 
Island and are naturally recolonizing their historic range in the 
management zone. Under the proposed action, those conditions will 
continue. NOAA has stated that it ``supports USFWS' efforts to recover 
southern sea otters throughout their range,'' and NMFS has stated that 
it ``does not support the alternatives that involve some level of sea 
otter removal from the management and/or translocation zones'' (NOAA 
2011).
    We recognize our affirmative responsibilities under the ESA and 
fully support recovery efforts for endangered white and black abalone. 
To lessen the risk that natural range expansion of sea otters (which 
would occur both under baseline conditions and under alternatives that 
terminate the translocation program) could interfere with recovery 
efforts for white or black abalone, we are committed to working closely 
with NMFS, CDFG, the White Abalone Recovery Team, and the Black Abalone 
Recovery Team (once it has been convened), to share information that 
may affect recovery actions for these species. We are also pursuing a 
Memorandum of Understanding with NMFS to formalize our agencies' mutual 
commitment to cooperate in facilitating both southern sea otter and 
abalone recovery efforts.
    Resumption of the containment component of the translocation 
program could potentially benefit abalone by preventing the effects of 
sea otter predation predicted under future baseline conditions and 
Alternative 3C. However, we determined that resumption of containment 
would jeopardize the southern sea otter and violate Section 7 of the 
ESA (USFWS 2000). We based this conclusion, in part, on the recognition 
that reversal of southern sea otter population declines and expansion 
of the southern sea otter's range is essential to the survival and 
recovery of the species. In order to resume containment, we would have 
to reinitiate consultation under the ESA to consider any new 
information and conclude that continuation of the program would not 
jeopardize the southern sea otter. Resumption of sea otter containment 
could result in increased mortality of sea otters and disrupt behavior 
throughout the range of the species. Additionally, it would 
artificially restrict the southern sea otter's range, increasing its 
vulnerability to oil spills, disease, and stochastic events relative to 
the baseline. In combination, these effects would slow or prevent the 
recovery of the species.
    We are not at liberty to jeopardize the southern sea otter in order 
to benefit listed abalone species. Given these circumstances and the 
ESA mandate that the Service and NMFS seek to recover threatened and 
endangered species, the best--and currently the only legal--approach 
available to us is to cooperate with NMFS to facilitate recovery 
actions that benefit both species and minimize adverse effects on both 
species. This approach is in furtherance of, and not violative of, our 
obligations under both sections 7(a)(1) and 7(a)(2) of the ESA. The 
commenter's assertion that the Service is ``taking'' abalone by failing 
to restrict sea otters from inhabiting their historic range reflects a 
misunderstanding of the ESA. Southern sea otters are naturally 
expanding into their former range. The Service could deter range 
expansion only by taking affirmative action to contain sea otters and 
return them to the parent range. The Service may not take such 
affirmative action because containment would jeopardize the continued 
existence of the southern sea otter (USFWS 2000). Thus, any effects 
that southern sea otter range expansion may have on abalone are a 
function of the natural migration and predation patterns of the sea 
otter and not the result of--or attributable to any--action on the part 
of the Service.
    Comment: NMFS does not support the alternatives that involve some 
level of sea otter removal from the management and/or translocation 
zones, as this has proven to be biologically, economically, and/or 
logistically infeasible. However, NMFS is concerned about the potential 
conflict of the preferred alternative with the goals of recovering the 
federally listed abalone over the long term (beyond the 10-year 
timeframe). NMFS believes that the likelihood and intensity of the 
conflict can be mitigated by creating a working group composed of 
managers and scientists that have southern sea otter and abalone 
expertise. NMFS would like the Service to make a commitment to 
organizing a working group that is focused on minimizing impacts of the 
preferred alternative to potentially affected ESA species managed by 
NMFS.
    Our Response: The Service supports recovery efforts for white and 
black abalone and is committed to working closely with NMFS to share 
information that may affect recovery actions for these species. Toward 
that goal, we are pursuing an MOU with NMFS. This action further meets 
our obligations under Section 7(a)(1) of the Act. We agree that 
convening a working group

[[Page 75278]]

composed of managers and scientists that have southern sea otter and 
abalone expertise would be beneficial for the recovery of white and 
black abalone, and we will work with NMFS to convene this group.
    Comment: Several other species of shellfish (besides abalone) will 
also see their populations plummet, perhaps to endangered status, if 
the preferred alternative is adopted. The Service states that sea 
otters ``consume an amount of food equivalent to 23 to 33 percent of 
their body weight per day.'' Having admitted this fact, the Service 
never considers its implications for the future of California's 
shellfish. Those implications are made clear by examining what will 
happen to commercial fishermen if the preferred alternative is adopted. 
As scientists have noted, ``Unless the sea otter is eventually 
contained, the State's Pismo clam, sea urchin, abalone, certain crab, 
and possibly lobster fisheries will be precluded. Sea otters do not 
extirpate these shellfish stocks, they merely reduce the exposed 
biomass to densities well below those necessary for profitable 
commercial exploitation or satisfactory recreational use.''
    Our Response: We acknowledge that sea otters are likely to decrease 
the densities of benthic invertebrates within the sea otters' dive 
depth range as they recolonize their historic habitat. However, the 
commenter does not offer any information to support the assertion that 
sea otters would cause shellfish populations to decline to ``endangered 
status'' and does not identify which species are the subject of this 
concern. The statement quoted by the commenter notes that although sea 
otters may reduce the noncryptic portion of certain shellfish 
populations to densities that cannot sustain profitable commercial 
fisheries, ``sea otters do not extirpate these shellfish stocks.'' We 
disagree with the commenter's assertion that we do not consider the 
implications of sea otter prey consumption on shellfish populations 
currently exploited by commercial fisheries in California. We 
considered the implications of sea otter range expansion (and the 
restriction of natural range expansion) on shellfish fisheries in 
detail in our analysis of the program.
    Comment: NOAA's Office of National Marine Sanctuaries uses 
ecosystem-based management approaches to protect our Nation's most 
vital coastal and marine natural and cultural resources. We believe the 
proposed action (Alternative 3C) furthers an ecosystem-based management 
approach by allowing sea otters to recover naturally through expansion 
from central California into their historic range to the south. We 
support terminating the southern sea otter translocation program and 
are committed to research and monitoring with our Federal and State 
partners to assess changes to the marine ecosystem. We commend the 
Service in proposing to terminate the failed translocation program and 
in proposing a course of action that has the potential to reverse the 
decline in sea otter population numbers.
    Our Response: Thank you for your comment. It has been noted and 
will be included in the administrative record for this action.
Failure Determination
    Comment: The Service is basing its failure determination on 
Criterion 2. However, it is difficult to understand how the failure 
criteria have been met. There are now 50+ sea otters on the island, and 
the population has been growing at an average of 7 percent per year. 
The Service's determination that the translocation program has failed 
is a political construct. Given that the 1930s Big Sur population of 
40-50 otters was the source of the 2,800 sea otters currently in the 
mainland range, it is obvious that the San Nicolas population could 
serve the same function if necessary after a large oil spill. As such, 
the translocation program is not a failure under the intent of Public 
Law 99-625.
    Our Response: Public Law 99-625 did not address the prospect of the 
program's failure. The failure criteria were established at the 
inception of the translocation program based on the scientific judgment 
of the agency biologists who designed the program. These criteria are 
codified at 50 CFR 17.84(d) in the rule implementing the translocation 
program. The final translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria at 50 CFR 17.84(d)(8). In that 
evaluation, we conclude that the translocation program has failed to 
fulfill its primary purpose as a recovery action and that, measured 
against the specific regulatory failure criteria governing the 
translocation program, the program has failed under Criterion 2.
    Under Criterion 2, the count of southern sea otters at San Nicolas 
Island is based on the number present within 3 years from the initial 
transplant--not on the number present as of 2012, 25 years after the 
initial transplant. The initial high rate of dispersal of translocated 
sea otters from San Nicolas Island is the primary cause of failure 
under Criterion 2 not only because of its direct effect on the 
subsequent size of the San Nicolas Island colony, but also because of 
its implications for the recovery strategy at the heart of the program: 
The intended function of the San Nicolas Island population as a self-
sustaining ``reserve colony for providing stock to restore subsequently 
damaged areas'' in the southern sea otter's range (52 FR 29754; August 
11, 1987). The high rate of dispersal of translocated sea otters 
suggests it is unlikely that the colony will ever be large enough to 
supply the numbers of sea otters necessary to perform a successful 
translocation and reestablishment of the population in the mainland 
range if the parent population were reduced or eliminated by a 
catastrophic event. The translocation program has not achieved its 
primary recovery goal of producing a second, self[hyphen]sustaining 
population of sea otters that could produce sufficient numbers of sea 
otters to repopulate the mainland range in the event of catastrophic 
mortality.
    The fact that a remnant population of southern sea otters numbering 
approximately 50 animals in 1914 (Bryant 1915) grew over the course of 
nearly a century in essentially unrestricted habitat to the current 
mainland population size of 2,711 animals (in 2010) does not contradict 
our finding that the translocation program has failed. Rather, it 
emphasizes the precariousness of both the mainland population and the 
San Nicolas Island colony and the need for continued range expansion. 
It should be noted that, based in part on data gained while 
implementing the translocation program, the recovery strategy has 
fundamentally changed. The revised recovery plan recommends against 
additional translocations and instead advocates allowing natural range 
expansion (USFWS 2003).
    Comment: Implementing regulations for the translocation program (52 
FR 29754; August 11, 1987) state that the Service must conduct a full 
evaluation into the probable causes of failure prior to declaring the 
translocation a failure. If the causes can be determined and if legal, 
reasonable remedial measures can be identified and implemented, then 
consideration is to be given to continuing to maintain the translocated 
population. Evaluation of the program's failure has not been conducted 
in accordance with the regulations. There are several theories for sea 
otter mortality and fecundity that have not been considered in the 
analysis, and an investigation of alternative implementation methods 
that would maintain the translocated population

[[Page 75279]]

has not been adequately conducted. Finally, there has been no real 
consideration of maintaining portions of the program. If capturing and 
relocating otters has negative effects, consideration should be given 
to terminating only those portions of the program.
    Our Response: We describe our efforts to determine and remedy the 
causes of failure in our translocation program evaluation. We have 
concluded that the translocation program has failed under Criterion 2. 
We conclude that emigration from San Nicolas Island is the primary 
reason that substantially fewer than 25 otters remained in the 
translocation zone within 3 years of the initial transplant. We do not 
agree that we have failed to give adequate consideration to remedial 
measures that would enable continuation of the translocation program. 
Although we modified the program significantly after the first year in 
an attempt to reduce emigration and otherwise reduce sea otter 
mortality associated with the program, we were unable to remedy the 
situation. Therefore, failure Criterion 2 has been met. The 
translocation program evaluation discusses the translocation and 
containment results, including remedial efforts undertaken to address 
program implementation concerns, and their relationship to the failure 
criteria in detail. We are unable to address the commenter's assertion 
that there are ``several theories for sea otter mortality and fecundity 
that have not been considered in the analysis'' because the commenter 
does not identify or describe these theories. Because translocation and 
containment are integral, required components of the translocation 
program under the authorizing legislation, the program, if it were to 
continue, could not continue without both components.
    Comment: The proposed rulemaking states that the ``experimental 
population has fluctuated in number since 1993, and now appears to be 
increasing overall.'' This statement is misleading and does not 
adequately represent the population's present status. Three-year 
average counts (used statewide to estimate sea otter abundance) have 
increased every year on San Nicolas Island since 1997, with the 
exception of 1 year where the 3-year average dropped by less than 0.5 
otters (2005). This is not a fluctuating population, but rather an 
increasing population, with the 2011 count reaching 54 otters and pups.
    Our Response: Different methodologies are used for the counts along 
the mainland and at San Nicolas Island. Three-year running averages 
based on an annual census are not used to characterize population 
trends at San Nicolas Island as they are for the mainland population. 
Because it is a small island with a limited coastline, counts are 
conducted there quarterly, and the high quarterly count is adopted as 
the official count for the year. The high count for 2011 was 48 
independent sea otters plus 5 pups. Although on average the San Nicolas 
Island colony has been growing at an annual rate of approximately 7 
percent since its low point in 1993, this rate has been variable from 
year to year. Specifically, the number of independent (non-pup) sea 
otters at San Nicolas Island decreased (relative to the previous year's 
count) in 1995, 1997, 1998, 2004, 2005, and 2009. Therefore, we do not 
consider the statement misleading, and we have retained the original 
language.
    Comment: The translocation has not failed. Instead, the Fish and 
Wildlife Service had unrealistic expectations for when certain 
milestones would be reached. Indeed, the revised draft SEIS admits the 
Service's expectations were unrealistic and further admits that the 
translocation population is a successfully reproducing population in 
terms of numbers and growth. Rather than recognize these data and 
reevaluate the Service's original expectations, the Service has chosen 
to declare the translocation a failure. To reach that conclusion, the 
Service has ignored the best scientific data available and has used 
evaluation standards found nowhere in the existing regulations. The 
Service has simply minted new standards to evaluate the translocation 
without complying with the Administrative Procedure Act.
    Our Response: The translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria contained in the rule at 50 
CFR 17.84(d) that established the translocation program. We have 
concluded that the translocation program has failed to fulfill its 
primary purpose as a recovery action. Additionally, in our formal 
review of the program, we have determined that the program has failed 
under Criterion 2 of the specific regulatory failure criteria at 50 CFR 
17.84(d)(8). Thus the commenter is incorrect in asserting that we 
relied on new evaluation standards not found in the regulations. It is 
the commenter who appears to suggest that we should disregard the 
regulatory failure criteria, stating that ``the Fish and Wildlife 
Service had unrealistic expectations for when certain milestones would 
be reached * * * and should reevaluate [its] expectations.''
    Comment: The potential for a catastrophic spill of the same 
magnitude of the Exxon Valdez was present when the translocation was 
planned and implemented. Then, it was not perceived as a problem. Then, 
the establishment of the San Nicolas Island population was 
``essential'' for sea otter recovery. Today, with no change in the size 
of a potential spill, but with the addition of new and improved 
navigation and safety programs, the Service claims a sudden and new 
awareness of the threat of an oil spill, and the San Nicolas Island 
translocation is somehow a failure. If the translocation is a failure 
because it is within the range of a catastrophic oil spill, then so too 
is the preferred alternative of range expansion. The Service cannot use 
the catastrophic oil spill scenario to declare translocation a failure 
without simultaneously admitting the preferred alternative cannot meet 
its objective. The Service is using a fatally flawed double standard to 
declare translocation a failure.
    Our Response: Our conclusion that the program has failed is based 
on our analysis of the regulatory failure criteria in 50 CFR 
17.84(d)(8). We determined that the program has failed under Criterion 
2. We did not conclude--contrary to the commenter's assertion--that the 
translocation program failed because the population of southern sea 
otters at San Nicolas Island is within the range of a potential 
catastrophic oil spill. However, our evaluation of the translocation 
program does recognize that although the potential for a spill of the 
magnitude of the Exxon Valdez disaster may have existed when the 
translocation program was initiated, that risk was not adequately 
appreciated. Our experience until then had led us to expect that San 
Nicolas Island was sufficiently distant from the mainland population to 
serve as a reasonable safeguard for sea otters in the event of an oil 
spill. The Exxon Valdez spill demonstrated (and the Deepwater Horizon 
spill further demonstrated) that this is not the case. The evaluation 
of the translocation program thus acknowledges that not only is the San 
Nicolas Island population too small to produce sufficient numbers of 
sea otters to repopulate the mainland range in the event of 
catastrophic mortality, but that San Nicolas Island is not sufficiently 
distant from the mainland range to insulate the San Nicolas Island 
population from the effects of a catastrophic oil spill within the 
mainland range. The evaluation of the translocation program also 
recognizes that containment was far more difficult

[[Page 75280]]

to achieve than expected and that the recovery strategy for southern 
sea otters has fundamentally changed (USFWS 2003), such that we now 
recognize that allowing southern sea otters to naturally expand their 
range is key to the future recovery of the species.
    In summary, we have concluded that the translocation program has 
met failure Criterion 2 and that the overarching recovery goal of the 
program--the establishment of a distant population of southern sea 
otters at San Nicolas Island to provide a source population of sea 
otters should the mainland population experience catastrophic 
mortality--cannot be achieved because (1) the population at San Nicolas 
Island is much too small to provide an adequate source population of 
sea otters, (2) even if the San Nicolas Island population were 
eventually to become ``established,'' a substantial number of sea 
otters translocated to the parent range would likely emigrate back to 
the island and thus not repopulate the parent range; and (3) the San 
Nicolas Island population is not sufficiently distant from the parent 
population to be insulated from the effects of a catastrophic oil 
spill. In addition, artificially restricting the natural range of 
southern sea otters through containment--a required component of the 
translocation program--is not only detrimental to the recovery of the 
species but, if resumed, is likely to jeopardize the continued 
existence of the species in violation of the ESA.
    Comment: The second underlying basis for the Service's decision to 
declare translocation a failure is the assertion that the San Nicolas 
Island population is small and its future uncertain. That is far 
different than saying the San Nicolas Island population is still not 
critical to the recovery of southern sea otters. The fact that the 
Service's preferred alternative is to leave the sea otters at San 
Nicolas Island, even after declaring the translocated population a 
failure, proves that the translocation did not fail and that the San 
Nicolas Island population is important for sea otter recovery.
    Our Response: The translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria provided in the rule at 50 CFR 
17.84(d) that established the translocation program. We have determined 
that program has failed under Criterion 2. We have also concluded that 
the translocation program has failed to fulfill its primary purpose as 
a recovery action and noted that the San Nicolas Island population 
remains small, its future is uncertain, and it is unlikely that it will 
ever be able to produce sufficient numbers of sea otters to repopulate 
the mainland range in the event of catastrophic mortality, which was 
the primary recovery goal of the translocation program. This conclusion 
does not mean that the San Nicolas Island population of southern sea 
otters is unimportant or that its removal from the island would not 
result in adverse consequences. Indeed, the Service's decision to 
declare the program a failure but to retain sea otters at San Nicolas 
Island is based in part on the recognition that if sea otters were 
removed from the island, some would return, some would die, and the 
introduction of these sea otters into the mainland population would 
likely further stress that food[hyphen]limited population. Our 
recognition of the value of maintaining in place the small but stable 
San Nicolas population, which is reflected in this rulemaking, does not 
mean that the translocation has been successful as evaluated against 
the specific regulatory failure criteria in 50 CFR 17.84(d) or against 
the overarching recovery goals of the translocation program. As we 
explain in detail in the translocation program evaluation, the program 
has failed under both measurements.
    Comment: The intent of the translocation program was to establish a 
breeding nucleus of 70 sea otters. That 70 would expand into an 
established population of 150. To achieve the breeding nucleus, the 
plan was to translocate 70 sea otters in the first year of the program. 
That number would be supplemented with up to 70 sea otters annually, to 
a total of 250 that could be moved. However, the Service translocated 
only 140 sea otters between 1987 and 1990, 56 percent of the 250 
originally planned to be part of the translocation. Given that the 
Service stopped the actual translocation at just over 50 percent of the 
original objective, it is arbitrary and capricious to judge success of 
the current population level at San Nicolas Island based on the 
original assumptions about when and how population levels would be 
achieved if 250 sea otters were translocated. Since the Service elected 
to implement only half of the translocation program, transferring to 
San Nicolas Island only about half of the number allowed to be placed 
there, the actual standard should not be 25. It is only half of that, 
in which case Criterion 2 is not met because, within 3 years of the 
initial transplant, 17 sea otters were at the Island.
    If the full translocation program had been implemented, it is 
reasonable to assume we would now have a breeding nucleus of 70 animals 
and would be moving toward the population level of 150. At the current 
reproduction rate, which is approximately 10 percent annually, the San 
Nicolas Island population should reach 70 within 4 years. Even the 
Service admits the initial objective of 70 sea otters at San Nicolas 
Island will occur. The fact that this event may not have occurred as 
rapidly as the Service hoped does not mean the translocation program 
failed, particularly when the Service's implementation of the program 
is a principal cause of the delay. In light of these facts, the Service 
should recognize under its existing regulatory authority that the 
translocation has not failed. The Service simply did not give the 
translocation sufficient time to achieve the population objectives 
given the reduction in the number of animals actually translocated.
    Our Response: The translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria contained in the rule at 50 
CFR 17.84(d) that established the translocation program. We have 
determined that the program has failed under Criterion 2. The number of 
sea otters translocated to San Nicolas Island is not a factor 
considered in any of the failure criteria, including Criterion 2. We 
disagree with the commenter's assertion that it is arbitrary and 
capricious to determine failure by the standards specifically 
established in the translocation rule for that purpose.
    Nevertheless, it should be noted that the translocation plan did 
not require that 250 sea otters be translocated but rather authorized 
the Service to translocate ``up to'' 250 sea otters. The Service 
captured the maximum number of sea otters allowed by the translocation 
plan. Of these, 139 (plus 1 rehabilitated pup) were deemed to be 
appropriate for translocation. The commenter suggests that because the 
Service did not move the maximum allowable numbers of sea otters to San 
Nicolas Island, it is unfair to conclude that the translocation has 
failed. Under the translocation rule, an established population at San 
Nicolas Island is defined as a minimum of 150 healthy sea otters, with 
a minimum annual recruitment of 20 sea otters. A stabilized population 
consists of a minimum of 70 sea otters under the rule. In fact, the 
Service translocated 69 sea otters, one fewer than the maximum number 
allowed during a 1-year period, to San Nicolas Island during the first 
year, and yet, at the end of that year, a total of

[[Page 75281]]

only 20 sea otters remained at the island. The following year, after 
making modifications to the program to increase the likelihood that sea 
otters would be successfully translocated, we translocated 57 
additional sea otters to San Nicolas Island, again not far below the 
maximum number of otters allowed to be translocated in a given year. At 
the end of 2 years (and a total translocation of 126 sea otters) even 
fewer sea otters--only 17--remained at San Nicolas Island. The 
translocation rule itself states that following the initial 
translocation of 70 sea otters the first year, ``it is not likely that 
supplemental translocation after the initial 70 will involve more than 
small numbers of southern sea otters'' 50 CFR 17.84(d)(2). In our third 
and final attempt to translocate sea otters, we moved an additional 14 
sea otters to San Nicolas Island. At the end of that year--the third 
year of the translocation--only 15 adult and subadult sea otters and 3 
dependent pups remained at the island out of a total of 140 
translocated sea otters.
    We have concluded that the high dispersal rate of sea otters from 
San Nicolas Island is the primary reason that the population was so 
small after 3 years of translocation effort and why, 25 years after the 
initial translocation, the population is far from becoming 
``established'' under the translocation rule, and has yet even to reach 
``stabilized'' status. The commenter's hypothesis that simply 
translocating more sea otters to San Nicolas would have resulted in an 
established population or even a stabilized population today or would 
have avoided failure under Criterion 2 is unsupported by the facts 
surrounding the translocation.
    That a population size of 70 animals or more may eventually be 
attained at San Nicolas Island is not relevant to our determination of 
failure. As indicated above, the translocation rule defines an 
established population as a minimum of 150 healthy male and female 
otters, originating from a breeding nucleus of 70 sea otters, not a 
total of 70 sea otters originating from a breeding nucleus of 12 or 
fewer animals. Over the 25 years it has been in existence, the 
translocation program has never come close to achieving its primary 
goal of producing a second, self-sustaining population of sea otters at 
San Nicolas Island that could produce sufficient numbers of sea otters 
to repopulate the mainland range in the event of catastrophic 
mortality. The initial high rate of dispersal of translocated sea 
otters from San Nicolas Island is the primary cause of failure under 
Criterion 2 not only because of its direct effect on the subsequent 
size of the San Nicolas Island colony, but also because of its 
implications for the recovery strategy at the heart of the program: the 
intended function of the San Nicolas Island population as a self-
sustaining ``reserve colony for providing stock to restore subsequently 
damaged areas'' in the southern sea otter's range (52 FR 29754; August 
11, 1987). The high rate of dispersal of translocated sea otters from 
San Nicolas Island following 3 years of translocation effort refutes 
the commenter's speculation that simply translocating more otters to 
San Nicolas Island would have resulted in a larger current population 
at San Nicolas Island. The high rate of dispersal of translocated sea 
otters also suggests it is unlikely that the colony will ever be large 
enough to remain viable and to supply the numbers of sea otters 
necessary to perform a successful translocation and reestablishment of 
the population in the mainland range if the parent population were 
reduced or eliminated by a catastrophic event. It should be noted that, 
based in part on data gained while implementing the translocation 
program, the recovery strategy has fundamentally changed. The revised 
recovery plan recommends against additional translocations and instead 
advocates allowing natural range expansion (USFWS 2003).
    Comment: Four other factors confirm the success of the 
translocation: (1) Virtually all of the sea otters at San Nicolas 
Island are offspring of the originally translocated population, 
indicating there is a healthy and successfully reproducing population 
at San Nicolas Island; (2) at least 150 pups have been born at San 
Nicolas Island, further confirming the presence of a healthy 
reproducing population; (3) the San Nicolas Island population is 
reproducing at a rate of 10 percent annually, which is better than the 
5-6 percent rate of the parent population; and (4) the San Nicolas 
Island population is healthier than the parent population, in that a 
comparison of the translocated population with the parent population 
found that the ``length and mass at age and the age-specific mass-to-
length ratios were significantly greater for sea otters at San Nicolas 
Island than in the central population.'' This does not sound like a 
failed population. It sounds like a population that is healthier than 
the parent population.
    Our Response: While the commenter is correct that the San Nicolas 
Island colony is successfully reproducing, that it has grown since its 
low point in the early 1990s at an average annual rate that exceeds the 
growth rate of the mainland population (although the overall average 
annual growth rate has dropped from 9 percent to 7 percent with the 
inclusion of the past several years of data), and that sea otters at 
San Nicolas Island exhibit greater mass-to-length body ratios than 
those in the mainland range, these facts do not alter our assessment 
that the translocation program has failed.
    The commenter seeks to substitute new standards for those clearly 
outlined in the translocation plan and implementing regulations for the 
program. The translocation program evaluation assesses the program in 
relation to the objectives for which it was undertaken and the specific 
regulatory failure criteria contained in the rule at 50 CFR 17.84(d) 
that established the translocation program. We have determined that the 
program has failed under Criterion 2. The initial high rate of 
dispersal of translocated sea otters from San Nicolas Island is the 
primary cause of failure under Criterion 2 not only because of its 
direct effect on the subsequent size of the San Nicolas Island colony, 
but also because of its implications for the recovery strategy at the 
heart of the program: the intended function of the San Nicolas Island 
population as a self-sustaining ``reserve colony for providing stock to 
restore subsequently damaged areas'' in the southern sea otter's range 
(52 FR 29754; August 11, 1987). The high rate of dispersal of 
translocated sea otters suggests it is unlikely that the colony will 
ever be large enough to remain viable and to supply the numbers of sea 
otters necessary to perform a successful translocation and 
reestablishment of the population in the mainland range if the parent 
population were reduced or eliminated by a catastrophic event. The 
translocation program has not achieved its primary recovery goal of 
producing a second, self-sustaining population of sea otters that could 
produce sufficient numbers of sea otters to repopulate the mainland 
range in the event of catastrophic mortality.
    Comment: The Service incorrectly concludes that ``the creation of 
an established southern sea otter population at San Nicolas Island does 
not appear to be achievable.'' The facts regarding the status, trend, 
and health of the San Nicolas Island population belie that conclusion.
    Our Response: We make this statement because the translocation rule 
at 50 CFR 17.84(d)(1)(vi) defines an ``established experimental 
population'' of southern sea otters as ``an estimated combined minimum 
of 150 healthy male and female otters residing within the translocation 
zone, little or no

[[Page 75282]]

emigration into the management zone occurring, and a minimum annual 
recruitment to the experimental population in the translocation zone of 
20 sea otters for at least 3 years of the latest 5-year period, or 
replacement yield sufficient to maintain the experimental population at 
or near carrying capacity during the postestablishment and growth phase 
or carrying capacity phase of the experimental population.'' The logic 
underlying this definition is explained in the preamble to the final 
rule implementing the translocation program: ``The Service does not 
consider the mere presence of sea otters in the translocation zone an 
indication that a new population is established. If a catastrophic 
event were to decimate a portion of the parent population, it is 
possible that the relocated otters could be used to restore the damaged 
portion of the parent population; however, it would also likely 
eliminate the value of the new population to serve as a reserve colony 
for providing stock to restore subsequently damaged areas and it could 
eliminate the reproductive viability of the colony such that the 
remaining animals could not be self-sustaining. Therefore, to be 
considered established it must be a reproductively viable unit, capable 
of maintaining itself even if 25 animals are removed each year for 1 to 
3 years or replacement yield is sufficient to maintain the experimental 
population at or near carrying capacity during the post-establishment 
and growth phase or carrying capacity phase for the purposes of 
repairing damage to the parent population'' (52 FR 29754; August 11, 
1987).
    Two circumstances make achievement of this objective unlikely. 
First, the future of the San Nicolas Island colony is uncertain. Its 
small population size (hence its susceptibility to demographic as well 
as environmental stochasticity) makes it difficult to predict when, if 
ever, the population may become ``established.'' Second, if the San 
Nicolas Island colony were to become ``established'' at some point in 
the future (with a population size of 150 southern sea otters and an 
annual recruitment of 20 animals), our experience with the 
translocation of southern sea otters to San Nicolas Island indicates 
that if a catastrophic event were to affect the parent population, it 
is unlikely that we would be able to reestablish a viable southern sea 
otter population by moving small numbers of animals (25) from San 
Nicolas Island to the parent population annually over a 3-year period. 
The high emigration apparently inherent in sea otter translocations 
combined with the small number of animals available to be moved would 
make it unlikely that a core population could become established in the 
damaged area.
    Comment: The Service's conclusion that the San Nicolas Island 
translocation has failed is arbitrary and capricious under the 
Administrative Procedure Act. The Supreme Court has held an agency 
action is arbitrary and capricious if the agency (1) has relied on 
factors Congress has not intended it to consider, (2) entirely failed 
to consider an important aspect of the problem, (3) offered an 
explanation for its decision that runs counter to the evidence before 
the agency, or (4) has offered an explanation for its action that is so 
implausible it could not be ascribed to a difference of view or the 
product of agency expertise. Here, at a minimum, the Service has 
offered an explanation for its decision that runs counter to the 
evidence.
    Our Response: The translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria contained in the rule at 50 
CFR 17.84(d). We have determined that the translocation program has 
failed under Criterion 2 of the specific regulatory failure criteria at 
50 CFR 17.84(d)(8). We have also concluded that the translocation 
program has failed to fulfill its primary purpose as a recovery action. 
The translocation program evaluation provides a clear and rational 
explanation for our failure determination based on a careful review of 
the facts surrounding the translocation in relation to the regulatory 
failure criteria and the program's recovery purpose. We reject the 
commenter's assertion that the evaluation of the translocation program 
is arbitrary or capricious or counter to the evidence before us.
    Comment: The primary purpose of the translocation program was to 
increase the population toward the delisting level. That objective is 
met. The Service's failure finding is without merit.
    Our Response: The primary purpose of the translocation program was 
not simply to increase the number of southern sea otters but to achieve 
a primary recovery action for the species. The translocation rule at 50 
CFR 17.84(d) quotes the recovery plan (USFWS 1982) at length to 
elucidate the relationship of the translocation program to recovery: 
``Sea otter translocation, if properly designed and implemented, should 
provide the necessary foundation for ultimately obtaining the Recovery 
Plan's objective and restoring the southern sea otter to a non-
threatened status and maintaining OSP by: (i) Establishing a second 
colony (or colonies) sufficiently distant from the present population 
such that a smaller portion of southern sea otters will be jeopardized 
in the event of a large-scale oil spill and (ii) establishing a data 
base for identifying the optimal sustainable population level for the 
sea otter.'' The translocation program has not achieved its primary 
recovery goal. In fact, based in part on data gained while implementing 
the translocation program, the recovery strategy has fundamentally 
changed. The revised recovery plan recommends against additional 
translocations and instead advocates allowing natural range expansion 
(USFWS 2003).
    Comment: The Service uses newly minted standards to reach its 
conclusion that the translocation program has failed. One of these 
newly minted standards is that the translocated population is small and 
its ability to become established is uncertain. However, the applicable 
regulations set a minimum acceptable population for translocated sea 
otters at 25, a number well below the current population of 46. That 
the population is small is not the relevant standard. The existing 
regulatory standards for declaring translocation a failure are not 
satisfied.
    Our Response: The translocation program evaluation assesses the 
program in relation to the objectives for which it was undertaken and 
the specific regulatory failure criteria contained in the rule at 50 
CFR 17.84(d). We have concluded that the translocation program has 
failed to fulfill its primary purpose as a recovery action. 
Additionally, in our formal review of the program, we have determined 
that the program has failed under Criterion 2 of the specific 
regulatory failure criteria at 50 CFR 17.84(d)(8). Thus the commenter 
is incorrect in asserting that we relied on new standards not found in 
the regulations. The commenter proposes that the Service rewrite 
regulatory failure Criterion 2 in the translocation rule to provide 
that a minimum of 25 sea otters must be present today at San Nicolas 
Island and not as of 1990, which was 3 years following the initial 
translocation, as the criterion states. The commenter's interpretation 
of failure Criterion 2 is at odds with its plain language and 
disregards the primary recovery goal underlying the translocation 
program. The goal of the program was not simply to create a small, 
distant colony of sea otters. The

[[Page 75283]]

goal of the program was to establish a distant population of at least 
150 healthy male and female otters residing with a minimum annual 
recruitment of 20 sea otters (50 CFR 17.84(d)(1)(vi)).
    The logic underlying this definition is explained in the preamble 
to the final rule implementing the translocation program: ``The Service 
does not consider the mere presence of sea otters in the translocation 
zone an indication that a new population is established. If a 
catastrophic event were to decimate a portion of the parent population, 
it is possible that the relocated otters could be used to restore the 
damaged portion of the parent population; however, it would also likely 
eliminate the value of the new population to serve as a reserve colony 
for providing stock to restore subsequently damaged areas and it could 
eliminate the reproductive viability of the colony such that the 
remaining animals could not be self-sustaining. Therefore, to be 
considered established, it must be a reproductively viable unit, 
capable of maintaining itself even if 25 animals are removed each year 
for 1 to 3 years or replacement yield is sufficient to maintain the 
experimental population at or near carrying capacity during the post-
establishment and growth phase or carrying capacity phase for the 
purposes of repairing damage to the parent population'' (52 FR 29754; 
August 11, 1987). The population of southern sea otters at San Nicolas 
Island--even after 25 years--has yet to reach the status of an 
``established'' or even a ``stabilized'' population as defined by the 
translocation rule at 50 CFR 17.84(d)(1)(vi) or (vii) and is unlikely 
ever to serve the recovery purpose envisioned for it under the 
translocation program.
    Comment: Another newly minted standard set forth to judge the 
translocation is that there were issues associated with the original 
capture program, which ceased over 14 years ago. The applicable 
regulations required that captured animals be transported to the 
relocation area no more than 5 days after capture (50 CFR 
17.84(d)(3)(ii) and (iii)). Often, however, those time requirements 
were not observed, and the animals were kept in temporary holding areas 
for much longer periods. Further, many animals were subjected to 
questionable and dangerous surgical procedures to implant tracking 
devices. Several failed to survive the surgery. Problems associated 
with the prior capture and transport process resulted not from 
weaknesses in the transport program but from the Service's actions. 
Such problems could have been remedied. Thus, the Service's complaints 
about the capture and transfer program are suspect. These problems have 
nothing to do with the current status of the San Nicolas Island 
population.
    Our Response: It is unclear whether the commenter is referring to 
the containment portion of the program, which was suspended in 1993 
(now 19 years ago), or the translocation portion of the program, which 
is described in the specific section of the rule that the commenter 
cites. In the translocation program evaluation, we summarize the 
history of the translocation program, including the difficulties we 
experienced capturing and moving sea otters both into the translocation 
zone and out of the management zone, in order to provide an honest and 
accurate assessment of the program. That several otters died either 
during or as a likely consequence of translocation or containment is a 
fact. However, we have concluded that the translocation program is a 
failure because it has failed to achieve its overarching recovery 
purpose and, specifically, because it has failed under Criterion 2 of 
the regulatory failure criteria established in the translocation rule 
at 50 CFR 17.84(d)(8). Thus the commenter is incorrect in asserting 
that our failure determination is based on new standards not found in 
the regulations.
    With regard to the commenter's specific assertions about the 
transport process, we estimate that 6 sea otters out of a total of 252 
sea otters captured for potential translocation died of stress-related 
causes prior to transport. We made changes in our translocation 
procedures prior to the second year of the program in an effort to 
decrease the time between capture and release and thereby reduce stress 
on captured sea otters. We also made changes to containment operations 
to reduce stress on captured sea otters. The initial strategy of 
releasing sea otters at their known original capture sites in the 
mainland range resulted, in most cases, in lengthy travel times and 
additional handling of the animals. To reduce this source of stress on 
captured sea otters, we revised our strategy to release recaptured 
animals at more easily accessible sites in the northern portion of the 
parent range. Despite the increased distance, the accessibility of 
these sites reduced transport times and resulted, we believed, in 
reduced stress and the improved well-being of moved sea otters. We also 
hoped that releasing animals at the northern end of the range would 
reduce the likelihood that animals would return to the management zone 
because of the greater distances they would have to travel. Despite 
these changes, in February 1993, two sea otters that had been recently 
captured in the management zone were found dead shortly after their 
release in the range of the parent population. Of the 24 sea otters 
captured in the management zone from 1987 to 1993, removal from the 
management zone was known or suspected to have killed 4 sea otters 
within 2 weeks. These deaths led to a determination to suspend 
containment of sea otters in the management zone.
    The commenter is correct that none of these problems is the primary 
reason the San Nicolas Island population declined so precipitously 
after the translocation of 140 otters to the island. We consider the 
emigration of translocated sea otters from the island to be the primary 
reason for the population's initial (and hence continued) small size.
    Comment: The Service has asserted that it is ``unable to evaluate 
whether the program has failed under Criterion 3 because we never 
reached the minimum number of sea otters at San Nicolas Island required 
to complete the transplant phase of the program.'' Given the 
significant decline in the population evident 2 years after the 
effective end of the transplant phase, and the lack of substantial 
population growth in the intervening 19 years, the Coalition (Defenders 
of Wildlife, Friends of the Sea Otter, The Humane Society of the United 
States, the Monterey Bay Aquarium, and Oceans Public Trust Initiative, 
a project of Earth Island Institute's International Marine Mammal 
Project) believes that the spirit and intent of Criterion 3 have been 
met and that these facts provide an additional basis for declaring the 
translocation a failure.
    While the Service is correct that the minimum population was never 
reached at San Nicolas Island, that does not mean that Criterion 3 
cannot be evaluated. In 1992, two years following the effective end of 
the transplant phase in 1990, the San Nicolas Island population was a 
mere 13 sea otters, down from 140 released at San Nicolas Island 
originally. Thus, rather than witnessing reasonable population levels 
and evidence of recruitment of otters born to translocated animals, 
project managers observed a dramatic decline in the population at San 
Nicolas Island during the transplant phase of the translocation. Based 
on the plain language of the regulation and the population numbers 
present at the required time of evaluation, the translocation must be 
declared a failure.
    Our Response: We acknowledge in the translocation program 
evaluation that although we never achieved the

[[Page 75284]]

requisite number of 70 sea otters to consider the transplant phase 
completed and thus cannot evaluate the program under Criterion 3, from 
a practical perspective the transplant phase ended with the 
translocation of the last sea otter to San Nicolas Island in 1990. At 
that time, after the translocation of 140 sea otters to the island, 14 
independent sea otters remained. Two years later, 13 independent sea 
otters remained, and despite evidence of pupping, there appeared to be 
little or no recruitment into the population. Criterion 3 clearly does 
not anticipate that the ``significant declines'' to which it refers 
would occur immediately upon the release of sea otters at the island, 
such that even with the transport of 140 sea otters, we were still 
unable to retain, at any one time, the minimum number of 70 sea otters 
at the island. In this sense, the program may be seen as having failed 
more dramatically than was anticipated under Criterion 3.
    Unlike Criterion 3, Criterion 2 effectively captures the realized 
outcome of immediate significant declines and a resulting core 
population size well below the threshold of 70 animals. We note that, 
under 50 CFR 17.84(d)(8), a determination that any one of the failure 
criteria has been met is sufficient to declare that the translocation 
program has failed (50 CFR 17.84(d)(8)). We have determined that the 
program has failed under Criterion 2.
    Comment: The Service states in the draft evaluation of the 
translocation program that ``[t]echnically, criterion 4 has not been 
met.'' We disagree. The Service has reached the conclusion that 
``containment cannot be successfully accomplished,'' and thus the 
standard for failure has been met. Pursuant to 50 CFR 17.84(d)(8)(iv), 
the translocation has failed if ``FWS determines * * * that sea otters 
are dispersing from the translocation zone and becoming established 
within the management zone in sufficient numbers to demonstrate that 
containment cannot be successfully accomplished.'' This standard is: 
[M]eant to be applied when it becomes apparent that, over time, (one 
year or more), otters are relocating from the translocation zone to the 
management zone in such numbers that: (1) An independent breeding 
colony is likely to become established within the management zone; or 
(2) they could cause economic damage to fishery resources within the 
management zone. It is expected that [FWS] could make this 
determination within a year, provided that sufficient information is 
available. The key element of this criterion is otters ``becoming 
established within the management zone in sufficient numbers to 
demonstrate that containment cannot be successfully accomplished.''
    While southern sea otters have not moved from the translocation 
zone to the management zone, since 1998, 50-150 southern sea otters 
have seasonally moved from the parent range to the management zone. The 
Service determined that containing this emigration is ineffective as a 
long-term management action and stated: ``The difficulties associated 
with sea otter capture and transport, our concern for the welfare of 
animals removed from the management zone, the adverse effects of sea 
otter containment on the parent population, and the adverse effects on 
fisheries are concerns regardless of whether sea otters enter the 
management zone from the parent range or from San Nicolas Island.'' 
Further, as the Service concluded in the 2000 biological opinion, 
continuing the containment policy will likely jeopardize the continued 
existence of the southern sea otter. This finding prohibits the Service 
from continuing the containment program under section 7(a)(2) of the 
ESA. Therefore, Criterion 4 has been satisfied because, as the Service 
has determined, containment ``cannot be accomplished.'' While the sea 
otters entering the management zone are not from the San Nicolas Island 
population, they nevertheless have led the Service to conclude that 
containment is not feasible and would violate the ESA, and therefore, 
the program should be declared a failure.
    Our Response: We acknowledge that successful containment of sea 
otters, or maintenance of an ``otter-free'' management zone is likely 
infeasible and cannot be accomplished by simply capturing animals in 
the management zone and moving them to another location. Returning 
southern sea otters that have migrated south into the management zone 
from the mainland range back to the parent population would likely 
result in jeopardy to the species. Moving southern sea otters that 
entered the management zone from the mainland range to San Nicolas 
Island would likely result in dispersal of the sea otters from the 
island back into the management zone or back into the parent 
population, as occurred during the initial translocation phase of the 
translocation program. Thus, containment of southern sea otters from 
the management zone would likely be unsuccessful. Nevertheless, 
applying the literal language of failure Criterion 4, which refers to 
southern sea otters dispersing from the translocation zone into the 
management zone rather than to southern sea otters dispersing into the 
management zone from the mainland range, we have not changed our 
conclusion that the translocation program has not met this criterion.
    Comment: The Service determined that ``[c]riterion 5 has not been 
met.'' We disagree, and we believe that the Service's own statements 
about the prospects for the San Nicolas Island population support a 
failure determination under Criterion 5. Pursuant to 50 CFR 
17.84(d)(8)(v), the translocation has failed if the: [H]ealth and well-
being of the experimental population should become threatened to the 
point that the colony's continued survival is unlikely, despite the 
protections given to it by [FWS], State, and applicable laws and 
regulations. An example would be if an overriding military action for 
national security was proposed that would threaten to devastate the 
colony and the removal of otters was determined to be the only viable 
way of preventing the loss of the colony. The health and well-being of 
the SNI population is seriously in question due to its small size, 
vulnerability to an oil spill, epizootic, or other catastrophic event, 
and potential lack of genetic diversity due to the small parent 
population. In the Service's brief explanation of its conclusion 
regarding Criterion 5, it states that ``[t]here are no proposed 
Federal, State or local actions that threaten to devastate the 
colony.'' While this is true, it is not the proper basis to evaluate 
Criterion 5. The proper consideration is the likelihood of the SNI 
population's survival. In this regard, the Service points out that the 
population has ``persisted,'' but it has also stated ``it is not 
certain that the San Nicolas colony will persist.'' Given the Service's 
own doubts about the future viability of the San Nicolas Island 
population, the Service should follow the plain language of Criterion 5 
and declare the translocation program a failure on that basis.
    Our Response: We agree with the commenter that the San Nicolas 
Island colony remains vulnerable due to its small size and the 
potential for an oil spill, epizootic, or other catastrophic event. 
Nevertheless, there are no proposed actions that would threaten to 
devastate the colony. We have not changed our reasoning regarding 
whether the translocation program has met Criterion 5.
Procedural and Legal Issues
    Comment: The Service's ``preferred alternative'' violates the 
intent of Congress in passing Public Law 99-625. The law established a 
dual mandate to protect the sport and commercial

[[Page 75285]]

fisheries of Southern California from the effects of sea otters, both 
biologically and legally, along with establishing a viable otter 
population at San Nicolas Island.
    Our Response: Public Law 99[hyphen]625 authorized--but did not 
require--the Service to develop and implement a southern sea otter 
translocation plan. It set forth certain components that such a plan 
must contain, if developed, including provisions to minimize conflict 
between sea otters and shellfish fisheries. Implementing regulations 
for the translocation program (52 FR 29754; August 11, 1987) 
specifically address the possibility that the translocation program 
could fail. We have determined that the translocation program 
authorized under Public Law 99[hyphen]625 has failed and should be 
terminated.
    Comment: The Marine Mammal Commission supports the Service's plan 
to retain the existing otter population at San Nicolas Island and give 
it an opportunity to become fully established. The Southern Sea Otter 
Recovery Team advised the same, and the Service's biological opinion 
also recognized that capture and removal would pose an unnecessary risk 
to the San Nicolas Island otters and the population as a whole. 
However, the applicable regulations do not contain such an option. 
Therefore, to address this concern, the Marine Mammal Commission 
recommends that, as part of a proposed rulemaking to terminate the sea 
otter translocation, the Fish and Wildlife Service include proposed 
amendments to Sec.  17.84(d)(8)(vi) to eliminate the requirement that 
sea otters at San Nicolas Island be returned to the parent population 
and complete that part of the rulemaking prior to making a final 
failure determination. It is our understanding that the Service intends 
to repeal Sec.  17.84(d) in its entirety in the contemplated 
rulemaking. If this is the case, it may be necessary for the Service to 
include different effective dates for different provisions, so that 
paragraph (d)(8)(vi) is amended prior to repeal of paragraph (d) as a 
whole. Only in that way can the Service ensure that it will not be 
required to remove otters from San Nicolas Island as a consequence of 
making a failure determination.
    Our Response: The Service appreciates the concern of the Marine 
Mammal Commission regarding elimination of the existing regulatory 
requirement to remove otters from San Nicolas Island and from the 
management zone prior to declaring the program a failure. We do not 
consider a two-step regulatory process to be legally required to 
terminate the program. We have been very clear in the draft SEIS, 
revised draft SEIS, final SEIS, and in our Federal Register notice on 
the proposed rulemaking (76 FR 53381; August 26, 2011) that the 
proposed action is to terminate the program while allowing southern sea 
otters to remain at San Nicolas Island and in the management zone. We 
have held public hearings and requested public comment on the proposed 
action. The means of effectuating this action is to remove, in its 
entirety, the translocation rule at 50 CFR 17.84(d), which governs the 
establishment, goals, operation, and termination of the translocation 
program. By removing the translocation rule in its entirety through the 
final rulemaking, we are eliminating all of the internal components of 
the rule, including the requirements to remove sea otters from San 
Nicolas Island and from the management zone following a determination 
that the program has failed.
    This rulemaking process is consistent with that set forth in 50 CFR 
17.84(d)(8), which requires the Service to amend the rule to terminate 
the program if we determine the program has failed. The only difference 
is that we are eliminating the rule in its entirety--including the 
requirement to remove sea otters from the management zone and San 
Nicolas Island--rather than amending the rule to terminate the program 
while leaving the removal requirements in place. Given the significant 
opportunities we have provided to stakeholders and members of the 
public to review and comment on the proposed action, we do not agree 
that a two-step rulemaking process, which would require the 
development, publication, and public comment and review of a separate 
intervening amendment to 50 CFR 17.84(d)(8) to eliminate the obligation 
to remove southern sea otters from San Nicolas Island and the 
management zone prior to elimination of 50 CFR 17.84(d) in its 
entirety, is necessary. Indeed, the extensive public comment we 
received on the draft SEIS, the revised draft SEIS, and the proposed 
rulemaking to remove 50 CFR 17.84(d) demonstrates that members of the 
public are well informed about the proposed action and its 
consequences. We note that the obligation to remove sea otters from San 
Nicolas Island and from the management zone in the event of a failure 
determination is not triggered under 50 CFR 17.84(d) until the rule has 
been amended to terminate the translocation program. For that reason, 
we consider the Marine Mammal Commission's concern that we would be 
compelled to remove sea otters upon declaration of failure and prior to 
finalization of the proposed rulemaking that eliminates the removal 
requirement to be misplaced.
    Comment: The Marine Mammal Commission notes that the Service issued 
a biological opinion under Section 7 of the ESA in July 2000 finding 
that continuing to carry out otter containment activities in the 
management zone would jeopardize the continued existence of the 
southern sea otter. Based on that opinion, the Service published a 
policy statement on 22 January 2001 (66 FR 6649) that it would no 
longer capture and remove sea otters found in the management zone. 
Presumably, the rationale for that biological opinion and the Service's 
policy about removing sea otters also applies to sea otters within the 
translocation zone. If this is the case, the Marine Mammal Commission 
believes that this issue should be discussed within the scope of this 
rulemaking and reflected in the administrative record. This would 
provide an alternative legal basis to support a decision not to remove 
otters from the translocation zone upon finalizing a failure 
determination. That is, even if the translocation regulations are 
interpreted as requiring that otters be removed from the translocation 
zone, the Service would have a sound basis for arguing that doing so 
would constitute jeopardy and that adherence to the requirements of 
Section 7 takes precedence over the provisions of Public Law 99-625 and 
its implementing regulations.
    Our Response: Our decision to declare the program a failure but to 
retain sea otters at San Nicolas Island is based in part on the 
recognition that if sea otters were removed from the island, some would 
return, some would die, and the introduction of these sea otters into 
the mainland population would likely further stress that 
food[hyphen]limited population. The effects of moving large numbers of 
otters from the management zone back into the parent population were 
thoroughly evaluated in our 2000 biological opinion on the containment 
component of the translocation program (USFWS 2000). We concluded that 
moving large numbers of sea otters back into the parent range was 
likely to jeopardize the continued existence of the species. The 
effects of removing the population of southern sea otters from San 
Nicolas Island and relocating them into the parent population would be 
similar to those analyzed in the 2000 biological opinion that resulted 
in our jeopardy determination. Prior to removing sea otters from San 
Nicolas Island, we would have to complete a formal internal Section 7 
consultation

[[Page 75286]]

under the ESA and determine that such relocation would not result in 
jeopardy to southern sea otters.
    Comment: Termination of the translocation program does not change 
the statutory status of sea otters translocated under the program. 
Without amending the statute, once translocated, the translocated 
population of sea otters remains under the special status afforded by 
Public Law 99-625.
    Our Response: Public Law 99-625 authorized but did not require the 
Secretary to develop and implement the translocation plan. The statute 
further provided that if the Secretary chose to develop and implement 
such a plan, it must include a translocation zone and a management 
zone. The translocation and management zones are component parts of the 
translocation plan implemented by the Secretary and were designated by 
regulation when the translocation program was put in place (52 FR 
29754; August 11, 1987) and codified at 50 CFR 17.84(d). Termination of 
the program, also by regulation, eliminates the zones to which the 
provisions defining the status of sea otters found in those zones are 
attached.
    Comment: The difference between the No Action Alternative and the 
proposed action, Alternative 3C, is minor and is not supported by 
adequate comparative analysis and science, even though the No Action 
Alternative is a valid option. As such, a decision to follow 
Alternative 3C over the No Action Alternative, or some combination of 
the two, is arbitrary and capricious.
    Our Response: The environmental consequences of the No Action 
Alternative (status quo) and Alternative 3C (the proposed action) are 
identical except with respect to changes in the regulatory status of 
sea otters in southern California that would occur under Alternative 
3C. Under Alternative 3C, the exemptions from the take prohibitions of 
the ESA and/or MMPA that currently exist in the management zone and 
translocation zone would end.
    The No Action Alternative is not a viable alternative. It would 
continue the translocation program, even though the program has failed 
to meet its primary recovery objective, and even though a primary 
component of the program--maintenance of an otter-free zone--cannot be 
legally implemented. It would also legally restrict, though without an 
ability to enforce that restriction, the natural movement of southern 
sea otters southward from central California into their historic range 
in the Southern California Bight, in contravention of the recovery 
needs of the species. Alternative 3C, on the other hand, would 
terminate the translocation program while leaving in place the San 
Nicolas Island population of southern sea otters and any sea otters in 
the management zone. It would contribute to the recovery of southern 
sea otters by allowing for natural range expansion and the continuation 
of the San Nicolas Island population free of the artificial boundaries 
and legal strictures imposed pursuant to Public Law 99-625.
    Comment: The California Coastal Commission has stated unequivocally 
that any decision by the Service to declare the translocation a 
failure, to terminate the management zone, and to allow sea otters to 
remain at San Nicolas Island will require a determination by the 
Coastal Commission regarding the consistency of any such action with 
California's coastal zone management plan as to the impact on 
commercial fisheries.
    Our Response: On June 14, 2012, by a unanimous vote, the California 
Coastal Commission concurred with the consistency determination that 
the Service submitted for the termination of the southern sea otter 
translocation program. The Commission found the project to be 
consistent to the maximum extent practicable with the California 
Coastal Management Program.
    Comment: Because the zonal management program is in violation of 
section 7(a)(2) of the ESA, it is not hard to find that the program 
also violates the Service's affirmative duty to conserve the species 
under section 7(a)(1) of the ESA to pursue sea otter conservation. The 
ESA defines ``conservation'' as ``the use of all methods and 
procedures, which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this chapter are no longer necessary.'' The courts construe this 
duty to be a strong mandate on the Secretary and the Service to not 
carry out programs adverse to species recovery and conservation. The 
Service has concluded that containment practices are ineffective and 
harmful to sea otters, and thus they can no longer be supported as 
conservation measures for the benefit of the species. Therefore, the 
Service must discontinue any containment actions and leave all 
remaining southern sea otters at San Nicolas Island. Failing to do so 
would be directly contrary to conservation. Thus, the obligations 
imposed on the Service under section 7(a)(1) require a complete end to 
the translocation and containment program.
    Our Response: This rulemaking terminates the southern sea otter 
translocation program, including any containment actions, and retains 
sea otters at San Nicolas Island.
    Comment: The Service is obligated to act in accordance with the 
Recovery Plans it develops for listed species. In Friends of Blackwater 
v. Salazar, 772 F.Supp.2d 232 (D.D.C. 2011), the court held that the 
Service violated the protections of Section 4 by deciding to delist a 
species based on considerations not included in the management actions 
and conservation and survival goals included in their recovery plan. 
While the recovery plan may be a guidance document, the Service is 
bound by its definitions of ``recovery.'' Id. Here, the recovery plan 
acknowledges that the southern sea otter's recovery is dependent on the 
termination of zonal management and allowing the existing San Nicolas 
Island population to remain in its current location. This finding 
similarly ``binds'' the Service to act accordingly and finalize the 
proposed rulemaking.
    Our Response: One of the high-priority recovery actions identified 
in the Final Revised Recovery Plan for the Southern Sea Otter (USFWS 
2003) is to evaluate the translocation program in light of changed 
circumstances and determine whether one or more failure criteria have 
been met. While we have analyzed a full range of alternatives, 
including resuming implementation of the program, we recognize that 
this rulemaking reflects the recommendations made by the Southern Sea 
Otter Recovery Team and affords the best opportunity for sea otter 
recovery.
    Comment: Congress set forth specific requirements in Public Law 99-
625 that would govern the establishment and implementation of the 
management zone. One of these requirements is the mandate that the 
management zone be established so as to ``not include the existing 
range of the parent population or adjacent range where expansion is 
necessary for the recovery of the species.'' As explained in the 
legislative history, in creating the zone to provide sufficient room 
for range expansion the Service ``must accommodate, among other 
important biological needs, the feeding behavior of the sea otter.'' 
Thus, foraging, as well as all other biological needs of the sea otter, 
were required to be taken into account in establishing this zone. The 
zone boundaries, as currently determined, are not in compliance with 
these requirements. As stated in the 2003 recovery plan, natural range 
expansion is necessary to achieve recovery. In addition, the Doak 
analysis confirms that zonal management will greatly impede recovery 
and that large

[[Page 75287]]

numbers of sea otters would have to be moved continuously, resulting in 
mortality and negative effects on the parent population. Over the 10-
year period contemplated by the Service, Dr. Doak anticipates that 393 
sea otters would have to be removed from the management zone, resulting 
in an anticipated 67 deaths.
    Our Response: Portions of the central California range are now 
food-limited, which further suggests the necessity of range expansion 
for sea otter recovery. This rulemaking reflects the recovery strategy 
of allowing natural range expansion.
    Comment: The containment program violates Public Law 99-625, and 
the Service accordingly must declare it a failure. Public Law 99-
625(b)(4), in stating the purpose of the management zone, requires that 
the ``Service shall use all feasible non-lethal means and measures'' to 
implement the containment policy and remove otters from the management 
zone (emphasis added). The history of the containment program and the 
available containment methods and technologies have proven that the 
capture and removal of sea otters cannot be undertaken by nonlethal 
means. Many sea otters are certain to die as a result of capture and 
removal. The Service's 2000 biological opinion notes that ``the stress 
of being captured, held in captivity, and (for some individuals) 
undergoing surgery to implant tracking devices resulted in a mortality 
rate that was higher than the anticipated mortality rate of three to 
five percent (Benz, pers. comm. in Service 1987b) that had been 
expected to result from the handling of southern sea otters during 
translocation.'' The 2000 biological opinion also states that, ``[b]y 
the time of the 1993 draft evaluation, seven southern sea otters had 
died at Monterey Bay Aquarium while waiting to be translocated to San 
Nicolas Island or after surgery to implant radios, three died at San 
Nicolas Island while waiting to be released, one died after being 
captured in the parent range for translocation and released at the 
point of capture, and four died within two weeks of being released 
after being captured during containment activities.'' This level of 
mortality is far higher than what was anticipated when the containment 
program was developed. The Service's current estimate of expected 
mortality of 17 percent is far higher than the 1987 biological 
opinion's estimates of three to five percent, and can in no reasonable 
way be interpreted as ``non-lethal'' as required under Public Law 99-
625.
    Our Response: Comment noted. We acknowledge that the level of 
mortality resulting from the capture and relocation of sea otters was 
higher than anticipated.
    Comment: There is nothing in Public Law 99-625 that requires the 
removal of the San Nicolas Island sea otters. Public Law 99-625 refers 
only to the removal of any sea otters in the management zone. The fact 
that Congress considered whether to require the removal of sea otters 
after a failure determination, and declined to include the 
translocation zone in the area from which capture would occur, 
indicates an intention to allow the animals to remain at San Nicolas 
Island. The absence of any statutory requirement for removal of animals 
from San Nicolas Island also confirms the discretion available to the 
Service for this purpose.
    Our Response: Public Law 99-625 authorized but did not mandate the 
development and implementation of the translocation program. Nor did 
Public Law 99-625 address the potential failure of the program. The 
command in the legislation to remove sea otters from the management 
zone applies while the plan is in effect. By rulemaking implementing 
the translocation program, the Service specified criteria to evaluate 
whether the program is a failure and set forth the consequences of a 
failure determination, which included an obligation to remove sea 
otters from the management zone and from San Nicolas Island (50 CFR 
17.84(d)). By removing the translocation rule in its entirety through 
the present rulemaking, we are eliminating all of the internal 
components of the rule at 50 CFR 17.84(d), including the requirements 
to remove sea otters from San Nicolas Island and from the management 
zone following a determination that the program has failed.

Assessment of Failure Criteria Identified in Translocation Plan

    Public Law 99-625 authorized southern sea otter translocation and 
provided requirements for a southern sea otter translocation plan 
should we pursue such a plan. It did not address the possibility of the 
program's failure. As a consequence, it did not specify criteria that 
would be used to determine whether the program had failed, nor did it 
recommend actions that should be taken in the case of failure. When we 
developed the translocation plan and implementing regulations for the 
program, we received public comment asking us to define what 
constituted failure of the program and what actions we would take if 
the program failed. We responded by delineating specific failure 
criteria in the 1987 Translocation Plan (52 FR 29754; August 11, 1987).
    The purpose of the failure criteria was to identify circumstances 
under which we would generally consider the translocation program to 
have failed. The five failure criteria were defined before any 
translocations of southern sea otters were undertaken and without the 
benefit of what we know today about the translocation, containment, and 
recovery needs of southern sea otters. The criteria focus on the status 
of the translocated population and, in hindsight, do not address all 
the circumstances that are relevant to a complete evaluation of the 
program. For example, the failure criteria do not address the 
possibility that containment might not be successfully accomplished 
because of southern sea otters entering the management zone from the 
mainland range rather than from the population at San Nicolas Island, 
the possibility that the founding population of the San Nicolas Island 
colony might be fewer than 70 animals, or even the possibility that an 
``established'' population at San Nicolas Island (as defined at 52 FR 
29754; August 11, 1987) may be insufficient to attain the recovery 
goals established for the program. Similarly, the failure criteria do 
not anticipate the possibility that the capture and relocation of sea 
otters from the management zone could result in the deaths of some 
animals. Ultimately, failure is determined by our inability to attain 
the objectives of the translocation program, which are clearly set out 
in the final rule for the establishment of an experimental population 
of southern sea otters (52 FR 29754; August 11, 1987).
    In the final translocation program evaluation (Appendix C to the 
final SEIS), we find that the translocation program meets failure 
criterion 2. A summary of our analysis of each failure criterion in the 
final translocation program evaluation is given below.
    Criterion 1: If, after the first year following initiation of 
translocation or any subsequent year, no translocated southern sea 
otters remain within the translocation zone, and the reasons for 
emigration or mortality cannot be identified and/or remedied.
    Criterion 1 has not been met. Southern sea otters have been 
observed in the translocation zone at San Nicolas Island every year 
since the beginning of the program.
    Criterion 2: If, within 3 years from the initial transplant, fewer 
than 25 southern sea otters remain in the translocation zone and the 
reason for emigration or mortality cannot be identified and/or 
remedied.
    Criterion 2 has been met. The initial transplant occurred in August 
1987. Within 3 years of the initial transplant

[[Page 75288]]

(August 1990), a maximum of 17 sea otters (14 independent animals and 3 
pups) resided in the translocation zone.
    We chose to delay declaring the translocation program a failure in 
1990 because southern sea otters were reproducing, dispersal into the 
management zone had abated, and CDFG expressed a desire to continue 
zonal management of southern sea otters. Although sea otters at the 
island continue to reproduce, the colony remains small to this day; 
dispersal of sea otters from the parent range into the management zone 
is now regularly occurring; and CDFG informed us in 1997 that it would 
no longer be able to assist us if we resumed capturing sea otters in 
the management zone.
    We consider emigration from San Nicolas Island to be the primary 
reason for the small size of the population (17 sea otters, including 
pups) remaining at the island within 3 years of the initial transplant. 
Fifty-four (54) translocated sea otters were later detected elsewhere 
(either back in the mainland range or in southern California waters). 
The number of sea otters resighted in the mainland range (36), despite 
the absence of a focused effort to identify them there (efforts were 
focused instead at San Nicolas Island and in the management zone), 
suggests that additional sea otters may have returned without being 
detected. There is some evidence of sea otter mortality at San Nicolas 
Island (three sea otters were found dead at San Nicolas Island within 
days of being translocated), but no additional deaths of translocated 
sea otters at San Nicolas Island were verified. Of the animals that 
remain unaccounted for, it seems likely that most either emigrated 
successfully and escaped further detection or attempted to emigrate but 
died before reaching suitable habitat.
    Although high rates of dispersal had been seen in all earlier sea 
otter translocations (Estes et al. 1989), we believed that the 
translocation to San Nicolas Island would not result in the significant 
dispersal of animals because of the abundance of prey items, the 
apparent suitability of the habitat, and the perceived barrier imposed 
by the surrounding deep water. After the first year of translocation, 
we made significant changes to the program with the intent of 
minimizing or eliminating emigration (53 FR 37577; September 27, 1988). 
These changes were implemented during the second year of the program, 
when we selected younger sea otters for translocation, transported sea 
otters more quickly and in smaller groups, abandoned the use of holding 
pens at the island, and released newly translocated sea otters in the 
vicinity of sea otters already residing at the island. Despite our 
efforts, none of these changes appeared to result in a decrease in 
emigration. In the final year of the translocation effort, we attempted 
to gain more information on sea otter movements by implanting radio 
transmitters in sea otters immediately prior to their transport to San 
Nicolas Island. Two of the initial three southern sea otters that 
received implants died before they could be transported to the island, 
causing us to abandon this effort.
    We conclude that the translocation program has failed under 
criterion 2. We conclude that emigration from San Nicolas Island is the 
primary reason that substantially fewer than 25 otters remained in the 
translocation zone within 3 years of the initial transplant. Although 
we modified the program significantly after the first year in an 
attempt to reduce emigration and otherwise reduce sea otter mortality 
associated with the program, we were unable to remedy the situation. 
Therefore, failure criterion 2 has been met.
    The fact that the translocation program has failed under criterion 
2 does not necessarily mean that the sea otter colony at San Nicolas 
Island is destined to disappear. In fact, it appears to have a low 
cumulative probability of extinction (Carswell 2008). However, the 
final rule establishing the program clearly states, ``The Service does 
not consider the mere presence of sea otters in the translocation zone 
as an indication that a new population is established'' (52 FR 29754 at 
29774; August 11, 1987). The colony would be considered ``established'' 
when at least 150 southern sea otters resided at the island and the 
population had a minimum annual recruitment of 20 animals (52 FR 29754 
at 29774; August 11, 1987). The initial high rate of dispersal of 
translocated sea otters from San Nicolas Island is the primary cause of 
failure under this criterion not only because of its direct effect on 
the subsequent size of the San Nicolas Island colony, but also because 
of its implications for the recovery strategy at the heart of the 
program: the intended function of the San Nicolas Island population as 
a self-sustaining ``reserve colony for providing stock to restore 
subsequently damaged areas'' in the southern sea otter's range (52 FR 
29754 at 29774; August 11, 1987). The high rate of dispersal of 
translocated sea otters suggests it is unlikely that the colony will 
ever be large enough to supply the numbers of sea otters necessary to 
perform a successful translocation and reestablishment of the 
population in the mainland range if the parent population were reduced 
or eliminated by a catastrophic event.
    Criterion 3: If, after 2 years following the completion of the 
transplant phase, the experimental population is declining at a 
significant rate, and the translocated southern sea otters are not 
showing signs of successful reproduction (that is to say no pupping is 
observed); however, termination of the project under this and the 
previous criterion may be delayed, if reproduction is occurring and the 
degree of dispersal into the management zone is small enough that the 
effort to remove southern sea otters from the management or no-otter 
zone would be acceptable to us and the affected State.
    We are unable to evaluate whether the program has failed under 
criterion 3 because we never reached the minimum number of sea otters 
at San Nicolas Island required to complete the transplant phase of the 
program. The translocation plan defines the transplant phase as ending 
when there are at least 70 healthy southern sea otters of mixed ages 
and sexes within the translocation zone and we determine that the 
population is increasing due to natural reproduction. Although we 
translocated twice this number, we never achieved the requisite core 
population of 70 animals.
    From a practical perspective, however, the transplant phase ended 
when the last sea otter was translocated to the island in 1990. The 
population declined at a significant rate from the program's inception 
in 1987 to 1993, at which time the number of independent sea otters at 
the island was 12. Although pups were observed from 1987 to 1993, there 
appeared to be little or no recruitment into the population. The 15 sea 
otters at the island in 1993 (12 independent animals and 3 pups) were 
fewer than the minimum number (25) required to avoid a declaration of 
failure under failure criterion 2; however, under provisions of failure 
criterion 3 we could delay termination of the program because pupping 
was occurring and dispersal of translocated sea otters into the 
management zone had abated.
    The experimental population has fluctuated in number since 1993, 
and now appears to be increasing overall; reproduction continues to 
occur. Although pupping is occurring, it is not certain that the San 
Nicolas colony will persist. If it does persist, it will have been 
founded on a small subset of the core number of 70 healthy sea otters 
of mixed ages and sexes that were intended to found the population, a 
fact that has implications for the genetic makeup of the resulting 
population. The current rate of emigration from the

[[Page 75289]]

island is unknown, but we now know that the deep ocean channels 
surrounding the island do not present the anticipated barrier to 
dispersal.
    Criterion 4: If we determine, in consultation with the affected 
State and the Marine Mammal Commission, that southern sea otters are 
dispersing from the translocation zone and becoming established within 
the management zone in sufficient numbers to demonstrate that 
containment cannot be successfully accomplished. This standard is not 
intended to apply to situations in which individuals or small numbers 
of southern sea otters are sighted within the management zone or 
temporarily manage to elude capture. Instead it is meant to be applied 
when it becomes apparent that, over time (1 year or more), southern sea 
otters are relocating from the translocation zone to the management 
zone in such numbers that: (1) An independent breeding colony is likely 
to become established within the management zone; or (2) they could 
cause economic damage to fishery resources within the management zone. 
It is expected that we could make this determination within a year, 
provided that sufficient information is available.
    Technically, criterion 4 has not been met. This criterion clearly 
specifies that the program would be declared a failure if sea otters 
moved from the translocation zone and became established in the 
management zone. The criterion does not strictly apply if animals 
immigrate into the management zone from the parent range. Nevertheless, 
beginning in 1998, large groups (50 to 150 individuals) of sea otters 
have seasonally moved into the management zone from the parent range. 
Since 2006, monthly surveys have counted an average of 40 otters with 
considerable variation over time (standard deviation of +/- 19) (K.D. 
Lafferty, USGS, pers. comm. 2011). In January 2011, three pups were 
detected, suggesting that a permanent breeding colony may be 
establishing itself in the management zone. Commercial fishing 
interests contend that local shellfish populations available to the 
fishery have been reduced by the presence of these sea otters.
    The difficulties associated with sea otter capture and transport, 
our concern for the welfare of animals removed from the management 
zone, the adverse effects of sea otter containment on the parent 
population, and the adverse effects on fisheries are concerns 
regardless of whether sea otters enter the management zone from the 
parent range or from San Nicolas Island. Although criterion 4 is 
specific and applies only to sea otters originating from San Nicolas 
Island, our experience with sea otters entering the management zone 
from either the parent range or the translocation zone indicates that 
successful containment of sea otters, or maintenance of an ``otter-
free'' management zone, cannot be accomplished by simply capturing 
animals in the management zone and moving them to another location.
    Criterion 5: If the health and well-being of the experimental 
population should become threatened to the point that the colony's 
continued survival is unlikely, despite Federal and State laws. An 
example would be if an overriding military action for national security 
was proposed that would threaten to devastate the colony and the 
removal of southern sea otters was determined to be the only viable way 
of preventing loss of the colony.
    Criterion 5 has not been met. The experimental population at San 
Nicolas Island, although small and vulnerable, has persisted. There are 
no proposed Federal, State, or local actions that threaten to devastate 
the colony. The Department of Defense is responsible for the majority 
of human activity at San Nicolas Island. They have conferred with us 
and given consideration to southern sea otters when developing projects 
at San Nicolas Island. To date, no projects have posed a threat to the 
colony.

Conclusion

    We therefore conclude that the translocation program has failed 
under Criterion 2. Criterion 3 cannot be evaluated. Criteria 1, 4, and 
5 have not been met.
    The primary purpose of the southern sea otter translocation program 
was to advance southern sea otter recovery, with the ultimate goal of 
delisting the species. Based on a broader evaluation of the 
translocation program against the goals for which it was undertaken and 
current recovery goals, in concert with the failure criteria 
established for the program's assessment, we again conclude that the 
translocation program has failed. It has failed to fulfill its purpose, 
and our recovery and management goals for the species cannot be met by 
continuing the program.
    The San Nicolas Island sea otter colony remains small, and its 
future is uncertain. Even if the colony were to become established, the 
resulting population would not likely be sufficient to ensure survival 
of the species should the parent population be adversely affected by a 
widespread catastrophic event. Recovery of the southern sea otter will 
ultimately depend on the growth and expansion of the southern sea 
otter's range. Although we recognize that there are conflicts between 
an expanding sea otter population and fisheries that have developed in 
the absence of sea otters, zonal management of sea otters has proven to 
be ineffective and compromises the ability of the species to recover.
    We therefore terminate the translocation program and remove the 
regulations at 50 CFR 17.84(d) in their entirety. This action:
    [cir] Terminates the designation of the experimental population of 
southern sea otters;
    [cir] Abolishes the southern sea otter translocation and management 
zones;
    [cir] Eliminates future actions, required under the previous 
regulations, to capture and relocate southern sea otters for the 
purposes of establishing an experimental population or restricting 
movements of southern sea otters into an ``otter-free'' management 
zone; and
    [cir] Allows southern sea otters to continue to expand their range 
naturally into southern California waters.
    Removal of the translocation program regulations in their entirety 
also eliminates the previous requirement at 50 CFR 17.84(d)(8)(vi) to 
remove southern sea otters from San Nicolas Island and from the 
management zone upon termination of the program.

Regulatory Environment

    Public Law 99-625 states that the Service, through the Secretary of 
the Interior, ``may'' develop and implement a plan for the relocation 
and management of sea otters, and then goes on to specify what must be 
included if such a plan is developed. Therefore, termination of the 
translocation program and removal of the regulations governing the 
program renders the specific provisions of Public Law 99-625 
inoperative. The translocation and management zones are abolished, and 
the exemptions under Public Law 99-625 from the duty to consult under 
section 7 of the ESA for defense-related activities within the former 
translocation zone and for all Federal activities within the former 
management zone, as well as the exemption from the incidental take 
prohibitions of the ESA and the MMPA for activities within the former 
management zone, end.
    Under both the ESA and the MMPA, incidental take is prohibited 
unless it has been authorized. Any incidental take by a Federal agency 
(authorized through the ESA section 7 process) or by a State or tribal 
government or private entity (authorized through the ESA section 10 
process) also has to be

[[Page 75290]]

authorized under the MMPA. Section 101(a)(5)(A) of the MMPA states that 
we may authorize the taking of small numbers of marine mammals within a 
specified geographical region over periods of not more than 5 
consecutive years, provided we find that the total of such taking 
during the period will have a negligible impact on the species or 
stock. Section 101(a)(5)(D) allows for similar authorization, for not 
more than 1 year for the incidental taking by harassment of only small 
numbers of marine mammals. Provisions specific to military readiness 
activities may also apply to the authorization of incidental take under 
the MMPA for defense-related agency actions.
    The incidental take authorization provisions under section 
101(a)(5) of the MMPA apply to activities other than commercial 
fishing. Take incidental to commercial fishing is authorized under 
different provisions of the MMPA. However, because of specific 
amendments to the provisions under section 118 of the MMPA, incidental 
take of southern sea otters in commercial fisheries cannot be 
authorized under the MMPA. Therefore, incidental take of southern sea 
otters by commercial fisheries in southern California waters is 
prohibited, as it is throughout the remainder of the range of the 
species (north of Point Conception). All intentional take of southern 
sea otters continues to be prohibited unless authorized under both the 
ESA and the MMPA.
    Federal agencies proposing actions (including the permitting or 
funding of actions proposed by non-Federal entities) that may affect 
southern sea otters anywhere in southern California waters, including 
all actions planned within the former management zone and defense-
related actions in the former translocation zone, are required to 
consult with the Service under section 7 of the ESA, as they do within 
the remainder of the species' range. Under section 7, we must determine 
whether a proposed Federal action is likely to jeopardize the continued 
existence of the southern sea otter. Our determination is made through 
the issuance of a biological opinion at the conclusion of the 
consultation stating our opinion whether the action, if carried out as 
proposed, is likely to jeopardize the continued existence of the 
species. If we conclude the proposed action would likely result in 
jeopardy, we also indicate any reasonable and prudent alternatives to 
the proposed action that would meet its intended purpose while avoiding 
jeopardy to the southern sea otter. If a proposed action is likely to 
jeopardize the continued existence of the southern sea otter, it may 
not go forward unless the Federal action agency applies for and is 
granted an exemption under section 7(h) of the ESA. If we determine 
that the proposed Federal action is not likely to jeopardize the 
continued existence of the southern sea otter, we may include an 
incidental take statement that exempts take of sea otters incidental to 
the proposed action from the take prohibition of section 9 of the ESA. 
Our incidental take statement would include terms and conditions that 
must be complied with to minimize the effects of any incidental take by 
the Federal action agency. In addition, the entity conducting the 
action would need to obtain incidental take authorization under the 
MMPA, as discussed above.
    The exemption under State law for incidental take of southern sea 
otters in the management zone also ends with this action. While 
California Fish and Game Code Section 4700 generally prohibits the take 
of southern sea otters, section 8664.2 of the Fish and Game Code 
provides that ``the taking of a sea otter that is incidental to, and 
not for the purpose of, the carrying out of an otherwise lawful 
activity within the sea otter management zone * * * is not a violation 
of the California Endangered Species Act * * * or Section 4700.'' 
Section 8664.2 further provides, ``this section shall become 
inoperative if the sea otter translocation experiment is declared a 
failure pursuant to the provisions of Public Law 99-625.'' Recently, 
California amended the Natural Community Conservation Planning Act to 
allow CDFG to authorize the incidental take of fully protected species, 
including the southern sea otter, that are conserved under an approved 
Natural Community Conservation Plan (Cal. Fish and Game Code Sec.  
2835).
    To the extent otherwise allowable under State law, proposed non-
Federal activities in California that would result in take of southern 
sea otters will require an incidental take permit from the Service 
under section 10(a)(1)(B) of the ESA. Among other requirements, an 
applicant for an incidental take permit under section 10(a)(1)(B) of 
the ESA must submit a conservation plan that we find minimizes and 
mitigates the impacts of the proposed take to the maximum extent 
practicable. In addition, we must find that the proposed take will 
avoid appreciably reducing the likelihood of the survival and recovery 
of the southern sea otter in the wild.

Economic Analysis

    An economic analysis for this rulemaking and associated 
alternatives is included in our final SEIS on the translocation of 
southern sea otters. A copy of the final SEIS is posted on http://www.regulations.gov and may also be obtained from the Ventura Fish and 
Wildlife Office (see ADDRESSES section). When compared to the existing 
baseline (suspension of southern sea otter translocation and 
containment), this rulemaking and subsequent actions have no economic 
effects except possible indirect effects that may occur as a result of 
regulatory changes. The benefits to fisheries that may result from 
enforcing a southern sea otter management zone and retaining incidental 
take exemptions within this zone are included in our economic analysis 
for comparative purposes.

Required Determinations

Regulatory Planning and Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA, as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever a Federal 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 (such as small businesses, small 
organizations, and small government jurisdictions) (5 U.S.C. 601 et 
seq.). However, no regulatory flexibility analysis is required if the 
head of an agency certifies that the

[[Page 75291]]

rule would not have a significant economic impact on a substantial 
number of small entities. Thus, for a regulatory flexibility analysis 
to be required, impacts must exceed a threshold for ``significant 
impact'' and a threshold for a ``substantial number of small 
entities.'' See 5 U.S.C. 605(b). SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule would not have a significant economic impact on 
a substantial number of small entities.
    Federal courts have held that an RFA analysis should be limited to 
impacts on entities subject to the requirements of the regulation, but 
not entities that may be indirectly affected by the regulation. This 
rulemaking directly affects only southern sea otters, with respect to 
their regulatory status in southern California waters under the ESA and 
MMPA. Economic effects potentially resulting from future regulatory 
changes applicable to commercial fisheries are indirect. Potential 
effects of sea otter range expansion on the nearshore marine 
environment, including the availability of certain prey species for 
harvest by commercial fishers, are identical to effects under baseline 
conditions and are also indirect. Because the Service does not have 
direct regulatory authority over marine fisheries, there are no direct 
effects on small businesses from the proposed termination of the 
translocation program. Therefore we certify that this rulemaking will 
not have a significant economic impact on a substantial number of small 
entities and a regulatory flexibility analysis is not required. 
Notwithstanding our certification, we acknowledge that in its guidance 
to Federal agencies on conducting screening analyses, the Small 
Business Administration (SBA) recommends considering impacts on 
entities that may be indirectly affected by the proposed regulation. 
Therefore, we prepared a Final Regulatory Flexibility Analysis (FRFA), 
which we briefly summarize below, to accompany this rulemaking.
    The Service is terminating the southern sea otter translocation 
program and allowing all sea otters currently in southern California 
waters to remain there. We are taking this action because we concluded, 
in a final translocation program evaluation, that the program has 
failed to meet its objectives and that our recovery and management 
goals for the species under the ESA and MMPA cannot be met by 
continuing it. The Service has management authority for the southern 
sea otter, which is listed as ``threatened'' under the ESA and is 
considered ``depleted'' under the MMPA, and is authorized by 
regulations (50 CFR 17.84(d)(8)) implementing the translocation program 
under Public Law 99-625 to promulgate a rule to terminate the 
translocation program if we determine the program has failed.
Summary of Economic Analysis
    A detailed economic analysis for this rulemaking and associated 
alternatives is included in the final SEIS. The following discussion 
estimates the baseline and the expected economic effects of terminating 
the southern sea otter translocation program.
    The purpose of this rulemaking is to terminate the southern sea 
otter translocation program, to allow all sea otters to remain where 
they are upon termination of the program, and to remove the 
experimental population designation from the sea otters at San Nicolas 
Island. This action allows southern sea otters to recolonize their 
historic range throughout southern California. We define the baseline 
(status quo) as the current physical and regulatory environment (that 
is to say the biological and socioeconomic environment resulting from 
management practices that have been in place since 1993). These 
practices include the suspension of containment activities in the 
management zone. Using the current physical and regulatory environment 
(rather than the environment as it might be today if containment 
activities had not been suspended) as the baseline is essential to an 
accurate characterization of present conditions and to predictions of 
how conditions would change under each of the alternatives in the final 
SEIS. Under baseline (current) conditions, southern sea otter movement 
throughout the species' range is not restricted or contained. Under 
this rulemaking, containment activities will not be resumed. Southern 
sea otters continue to have the ability, as they have since 1993, to 
expand their range into southern California waters southeast of Point 
Conception, and to increase in number at San Nicolas Island. 
Accordingly, the economic effects of both the baseline and this 
rulemaking are the same (in that sea otters are allowed to expand their 
range naturally in both cases) except in the case of potential indirect 
economic effects on gill and trammel net fisheries stemming from 
regulatory changes, which we describe below. This statement should not 
be interpreted to mean that economic changes are not expected to occur 
as a result of natural range expansion. An expanding sea otter 
population will have numerous effects, including effects on certain 
commercial and recreational fisheries and the industries that depend on 
them. Effects of all the alternatives under consideration in the final 
SEIS are examined in detail in that document, including an alternative 
that would entail resuming full implementation of the translocation 
program and its associated translocation and management zones 
(Alternative 1), the economic effects of which we present here for 
comparison.
    Here and in the final SEIS, we limit the quantitative analysis to a 
10-year time horizon. (In the final SEIS, we additionally describe 
long-term economic and other effects, but in qualitative terms only.) 
The rationale for limiting the quantitative analysis to 10 years is 
based in part on the extent of uncertainty involved in predicting sea 
otter range expansion, in part on the indirect nature of most projected 
impacts (and hence possible changes over time in the relationship 
between sea otter presence and resultant impacts), and in part on the 
uncertainty associated with management regimes and economic conditions 
beyond 10 years.
    The uncertainty involved in predicting range expansion stems from: 
(1) The possibility that the southern sea otter range expansion model 
(Tinker et al. 2008a), although it is the best available, may not 
capture all population dynamics that might ultimately prove to be 
relevant to range expansion; and (2) the possibility that future 
variation in the vital rates and movements of southern sea otters, on 
which predictions are based, will be different from what has been 
observed in the past. The uncertainty arising from the indirect nature 
of most impacts stems from the fact that (1) any departure from 
predicted range expansion will also change associated impacts, and (2) 
changes in the ecosystem resulting from the presence of sea otters may 
occur differently than anticipated because of changes in a multitude of 
other variables unrelated to the presence of sea otters, such as global 
climate change, the spread of novel diseases or invasive species, or 
human activity (overexploitation of marine organisms, inputs of 
pollutants, and so forth). The uncertainty associated with management 
regimes and economic conditions results from the fact that (1) 
fisheries may open, close, or be subject to permit or gear restrictions 
for reasons unrelated to the presence or absence of sea otters, and (2) 
commercial fisheries revenues are driven largely by market forces 
(which are themselves influenced by the global economic environment)

[[Page 75292]]

that determine consumer demand. Because of these manifold sources of 
uncertainty, we consider it unreasonable to attempt to establish a 
baseline for the impact topics we consider, and thus to attempt to 
quantify impacts, beyond a limited time horizon. Although the choice of 
10 years rather than 5 or 15 years is somewhat arbitrary, a review of 
past changes in southern sea otter population dynamics and commercial 
fisheries landings indicates that a 10-year time horizon represents a 
reasonable timeframe within which to quantify impacts. Whether sea 
otters will reoccupy other areas of the Southern California Bight in 
subsequent years will be a function of sea otter demographic rates, 
food supply, and other variables. Based on past rates of range 
expansion, it is expected that sea otters will not be present in most 
areas of southern California for decades.
    To capture some of the uncertainty involved in forecasting range 
expansion, we present range expansion in terms of upper and lower 
confidence bounds. To the extent that the range expansion model 
captures the key population dynamics and that future variation in vital 
rates and movements is not fundamentally different from the range of 
variation already observed, these bounds have a 95-percent probability 
of encompassing the realized range expansion. Within the 10-year time 
horizon, economic effects are projected for two areas where sea otter 
numbers are expected to increase under baseline conditions: (1) The 
coastline from Point Conception to Carpinteria (lower 95 percent 
confidence bound) or Oxnard (upper 95 percent confidence bound), and 
(2) San Nicolas Island. We project that an expanding sea otter 
population will have economic effects on commercial fisheries (sea 
urchin, crab, lobster, and sea cucumber), recreational fisheries 
(lobster), and the sea urchin processing industry in southern 
California. Assumptions underlying the economic analysis are described 
in Chapter 6 of the final SEIS. Numerous other noneconomic effects are 
expected to occur as a result of sea otter range expansion within 10 
years. We discuss these effects in the final SEIS, but because these 
effects are difficult or impossible to quantify in economic terms, we 
do not discuss them here.
    Baseline. Selected fisheries, both commercial (sea urchin, crab, 
lobster, and sea cucumber) and recreational (lobster), will likely be 
eliminated in mainland coastline areas predicted to be reoccupied by 
sea otters over the next 10 years: Point Conception to Carpinteria 
(lower bound) or Oxnard (upper bound). These fisheries are also likely 
to be affected, to some degree, by a growing sea otter population at 
San Nicolas Island. During this period, commercial sea urchin landings 
averaging 56,360 to 61,016 pounds annually along the affected portion 
of the mainland coastline are expected to be eliminated. Average annual 
landings at San Nicolas Island are expected to be reduced from 351,333 
pounds to 324,280 pounds. These losses represent 1 percent and 0.2 
percent, respectively, of annual commercial sea urchin landings in 
southern California. Commercial lobster landings averaging 54,674 to 
75,649 pounds annually along the affected portion of the mainland 
coastline are expected to be eliminated. Average annual landings at San 
Nicolas Island are expected to be reduced from 41,622 pounds to 38,417 
pounds. These losses represent 8 to 11 percent and 0.4 percent, 
respectively, of annual commercial lobster landings in southern 
California. Commercial crab landings averaging 253,572 to 385,743 
pounds annually along the affected portion of the mainland coastline 
are expected to be eliminated. Average annual landings at San Nicolas 
Island are expected to be reduced from 10,634 pounds to 9,816 pounds. 
These losses represent 23 to 35 percent and 0.06 percent, respectively, 
of annual commercial crab landings in southern California. Commercial 
sea cucumber landings averaging 155,714 to 158,636 pounds annually 
along the affected portion of the mainland coastline are expected to be 
eliminated. Average annual landings at San Nicolas Island are expected 
to be reduced from 53,683 to 49,549 pounds. These losses represent 27 
to 28 percent and 1.5 percent, respectively, of annual commercial sea 
cucumber landings in southern California. Also during this 10-year 
period, the seafood processing industry would be affected by the 
declining sea urchin harvest. However, because the decline in sea 
urchin harvest represents less than 2 percent of the sea urchin harvest 
in southern California over the next 10 years, anticipated impacts on 
the seafood processing industry will be negligible.
    With respect to the recreational lobster fishing industry, trips on 
commercial passenger fishing vessels (CPFVs) along the affected 
mainland coastline are negligible. Trips at San Nicolas Island are 
expected to be reduced from an annual average of 434 to 401. This loss 
represents approximately 0.5 percent of total recreational lobster 
fishing trips taken annually in southern California on CPFVs, assuming 
recreational lobster fishers do not choose to fish from CPFVs at a 
different location. Information from the limited number of lobster 
report cards returned from 2008 through 2011 indicates that, under the 
baseline, if all lobster trips (both private and CPFV) are eliminated 
as a result of sea otter recolonization of the coastline to Carpinteria 
(lower bound) or Oxnard (upper bound) within the next 10 years, then 
the total number of trips in the Southern California Bight will be 
reduced by 3-7 percent. Because the proportion of trips to San Nicolas 
Island is already so small relative to the total number of trips in the 
Southern California Bight, the projected increase in the number of sea 
otters at San Nicolas Island would not be expected to have a detectable 
effect there. These proportional reductions should be considered 
provisional because they are based on limited data.
    In the longer term, those areas reoccupied by sea otters will 
likely cease to support commercial and recreational shellfish 
fisheries, but the magnitude and timing of this potential change is 
unknown.
    Economic Effects of Rulemaking (Alternative 3C). This rulemaking 
will not result in economic effects beyond those described above for 
baseline conditions, except in the case of potential indirect economic 
effects stemming from regulatory changes, namely the elimination of 
incidental take exemptions associated with the management zone upon 
termination of the translocation program. Federal agencies planning 
activities that may affect sea otters in southern California will be 
required to consult with the Service under the ESA, and if their 
activities would result in take of southern sea otters, to seek 
authorization for incidental take under both the ESA and the MMPA. The 
economic effects of this change are expected to be negligible in the 
context of already existing consultation and permitting requirements 
for other endangered or threatened species and marine mammals under the 
ESA and MMPA, particularly in light of the fact that few otherwise 
legal activities result in take of southern sea otters and the 
expectation that sea otters will not be present in most areas of 
southern California for decades. If otherwise allowable under 
applicable State law, non-Federal activities that would result in take 
of southern sea otters in California will require an incidental take 
permit from the Service under the ESA and authorization for incidental 
take of sea otters under the MMPA. Incidental take of southern sea 
otters in commercial fisheries cannot be

[[Page 75293]]

authorized under the MMPA. Therefore, incidental take of southern sea 
otters in commercial fisheries throughout southern California is 
prohibited, as it is currently prohibited in the remainder of the range 
of the species (north of Point Conception, California).
    Gill and trammel nets are known to be lethal to sea otters (Herrick 
and Hanan 1988; Wendell et al. 1986; Cameron and Forney 2000; Carretta 
2001; Forney et al. 2001). Therefore, the regulatory changes associated 
with this rulemaking may indirectly affect portions of the commercial 
halibut and white seabass fisheries utilizing gill and trammel net 
gear. The use of gill and trammel nets is already banned throughout 
much of California. With respect to southern California, the Marine 
Resources Protection Act of 1990 (California Constitution Article 10B) 
prohibits the use of gill and trammel nets in waters less than 70 
fathoms or within 1 mile of the Channel Islands, whichever is less, and 
generally within 3 nautical miles offshore of the mainland coast from 
Point Arguello to the Mexican border. However, some areas within 
southern California waters are characterized by a relatively shallow 
shelf that extends beyond the area currently closed to gill net 
fishing. The primary fisheries using gill and trammel net gear in these 
areas target halibut and white seabass. Effects on these fisheries 
would occur if the State or NMFS acted, in response to regulatory 
changes associated with this rulemaking, to extend the existing gill 
and trammel net closure in southern California waters to depths that 
protect southern sea otters (that is to say depths that encompass 99 
percent of all known dives). Furthermore, effects would occur only in 
areas where sea otters are not already fully protected, and likely only 
in areas that sea otters were expected to recolonize in the near 
future. (A closure to protect sea otters would not likely be imposed in 
areas where sea otters did not occur and were not expected to occur in 
the near future.) No effects would occur at San Nicolas Island because 
incidental take by commercial fisheries is currently prohibited within 
the translocation zone and will continue to be prohibited with 
termination of the program.
    Estimated annualized costs for the commercial halibut fishery range 
from $0 (no additional closure) to $250,000 (immediate closure of the 
affected area), representing a loss of 0 to 21 percent to the 
commercial halibut fishery in southern California. To calculate the 
present value for a 10-year time period, the social discount rates of 3 
percent and 7 percent are applied per OMB guidance. The 10-year 
present-value impact to the commercial halibut fishery would be 
approximately $2.2 million discounted at 3 percent or $1.7 million 
discounted at 7 percent. Estimated annualized costs for the white 
seabass fishery range from $0 (no additional closure) to $285,000 
(immediate closure of the affected area), representing a loss of 0 to 
42 percent to the commercial white seabass fishery in southern 
California. The 10-year present-value impact to the commercial white 
seabass fishery would be approximately $2.3 million discounted at 3 
percent or $1.7 million discounted at 7 percent. Estimates of maximum 
effects represent an upper bound. Realized effects are likely to be 
lower because (1) the appropriate State or Federal authority may not 
impose an immediate closure and (2) participants in the fishery already 
using alternate gear would benefit from the increased availability of 
halibut and white seabass.
    Economic Effects from Enforcement of the Management Zone 
(Alternative 1). As discussed, this rulemaking (Alternative 3C) will 
not result in any additional economic effects compared to the baseline 
except the potential indirect effects stemming from regulatory changes 
summarized above. For comparison purposes, we present the economic 
effects that would occur if southern sea otters were excluded from the 
management zone through a resumption of zonal management under 
Alternative 1. These effects are further detailed in the final SEIS. 
Implementation of sea otter containment in the management zone would 
affect the coastline southeast of Point Conception. Sea otters have 
been seasonally sighted in the Cojo Anchorage area since 1998. Since 
2006, monthly surveys have counted an average of 40 otters with 
considerable variation over time (standard deviation of  
19) (K.D. Lafferty, USGS, pers. comm. 2011). The enforcement of 
containment in the management zone, if fully successful, would remove 
any sea otters from these areas and reestablish an otter-free 
management zone, thereby possibly increasing fishery harvests and also 
increasing the Service's administrative costs. The cost to the Service 
of implementing a zonal management program to contain southern sea 
otter range expansion over 10 years would total approximately $4.3 
million discounted at 7 percent or $5.6 million discounted at 3 
percent.
    Effects on fisheries could occur due to (1) increased shellfish 
populations resulting from the elimination of sea otter predation 
currently occurring within the management zone (in other words, the 
restoration of a pre-sea-otter baseline), and (2) increased shellfish 
populations due to the future containment of sea otters. These 
estimates differ from the baseline not only in direction but also in 
magnitude because the baseline does not account for effects on 
commercial and recreational fisheries that would result from the 
removal of sea otters that are currently in the management zone. If sea 
otter containment in the management zone were to be enforced and fully 
successful, then the estimated annualized ex-vessel revenue benefit for 
the commercial sea urchin, lobster, crab, and sea cucumber fisheries 
would be $184,000 to $186,000, $420,000 to $530,000, $210,000 to 
$310,000, and $116,000 to $118,000, respectively, relative to the 
baseline. To calculate the present value for a 10-year time period, the 
social discount rates of 3 percent and 7 percent are applied per OMB 
guidance. Discounted at 3 percent, the 10-year present value impact for 
the commercial sea urchin, lobster, crab, and sea cucumber fisheries 
would be $1.4 to $1.5 million, $3.2 to $4.1 million, $1.6 to $2.4 
million, and $893,000 to $903,000, respectively. Discounted at 7 
percent, the 10-year present value impact for the commercial sea 
urchin, lobster, crab, and sea cucumber fisheries would be $1.1 
million, $2.3 to $2.9 million, $1.1 to $1.7 million, and $641,000 to 
$653,000, respectively. Minor positive effects on the sea urchin 
processing industry could result from an increase in sea urchin 
landings, depending on operating capacity and consumer demand. 
Recreational lobster fishing trips on CPFVs may increase along the 
coastline from Point Conception to Santa Barbara, but this increase is 
expected to result in negligible economic benefit because the mainland 
coastline is not an important area for recreational lobster fishing 
from CPFVs. Information from the limited number of lobster report cards 
returned from 2008 through 2011 suggests that 3-7 percent of the total 
number of recreational lobster fishing trips (including CPFV trips) in 
the Southern California Bight occur along the portion of mainland 
coastline that is expected to be affected by natural range expansion 
under baseline conditions during the next 10 years. Alternative 1 would 
prevent the reduction in trips expected under baseline conditions from 
occurring. Effects at San Nicolas Island are the same as under the 
baseline.
Effects on Small Businesses
    Potential impacts to small businesses, such as owners of halibut 
fishing vessels

[[Page 75294]]

and white seabass fishing vessels, are summarized below. For more 
information pertaining to the economic impacts, please refer to the 
final SEIS.
    The SBA defines a ``small business'' as one with an annual revenue 
or number of employees that meets or is below an established size 
standard. The SBA ``small business'' size standard is $4 million for 
``Finfish Fishing'' and ``Shellfish Fishing'' (North American Industry 
Code (NAICS) 114111 and 114112) and fewer than 500 employees for 
``Fresh and Frozen Seafood Processing'' (NAICS 311712). Most of the 
businesses in the finfish and shellfish fishing industries have fewer 
than 5 employees, and all of the businesses in the seafood processing 
industry have fewer than 500 employees. Therefore, all businesses 
participating in these industries are considered ``small businesses.'' 
The numbers of commercial fishing vessels participating in selected 
southern California fisheries in the area expected to be affected 
within 10 years and in southern California as a whole are shown in 
Table 1. Although some establishments may own more than one vessel, we 
utilize the vessel estimate provided by CDFG to ensure a conservative 
approach to our analysis of the number and proportion of small entities 
affected (i.e., we may overestimate the number and proportion of small 
entities affected).
[GRAPHIC] [TIFF OMITTED] TR19DE12.012

Impacts on Small Businesses Due to This Rule (Alternative 3C)
    This rulemaking does not result in any effects on small entities, 
relative to the baseline, except potential indirect economic impacts 
stemming from regulatory changes by the State or NMFS. Thus, the sea 
urchin, lobster, crab, sea cucumber, and recreational fishing 
industries are not affected by this rulemaking. However, an additional 
gill and trammel net closure, if imposed by the appropriate State or 
Federal authority in response to the elimination of incidental take 
exemptions associated with the management zone, would affect portions 
of the halibut and white seabass fisheries utilizing gill and trammel 
net gear in Santa Barbara County and Ventura County within the next 10 
years. Industries in Los Angeles, Orange, San Diego, Santa Barbara, and 
Ventura Counties (hereafter referred to collectively as ``southern 
California'') are included in the analysis because of their proximity 
to the affected area.
    Estimates of the relative impact on vessels and the number of 
vessels affected may be overestimates because the data available to us 
do not allow us

[[Page 75295]]

to account for vessels participating in multiple fisheries. 
Additionally, estimates of relative impact are averages (that is to 
say, some vessels will be more affected than others in the same 
fishery). All estimates of decreases in ex-vessel revenues assume that 
fishers would not choose to fish elsewhere or with alternate gear and 
hence would not supplement their revenues or increase harvest pressure 
in other areas. Finally, ex-vessel values reflect gross rather than net 
revenues and thus overestimate impacts because they fail to account for 
the savings in boat fuel and labor that could be reemployed elsewhere 
if commercial fishing activity in affected areas were reduced. Ex-
vessel revenue and vessel number data are from CDFG.
    Table 2 shows the potential indirect effects if the appropriate 
State or Federal authority closes additional areas to gill and trammel 
net fishing in Santa Barbara and Ventura Counties. Potential indirect 
annualized effects on the commercial halibut fishery range from $0 (no 
additional closure) to $250,467 (immediate closure of the affected 
area), representing a loss to the commercial halibut fishery in 
southern California of 0 to 41 percent of landings made using gill and 
trammel net gear only (or 0 to 21 percent of all halibut landings) 
relative to the baseline. Potential indirect annualized effects on the 
commercial white seabass fishery range from $0 (no additional closure) 
to $284,638 (immediate closure of the affected area), representing a 
loss to the commercial white seabass fishery in southern California of 
0 to 44 percent of landings made using gill and trammel net gear only 
(or 0 to 42 percent of all white seabass landings) relative to the 
baseline.

    Table 2--Estimated Maximum Annual Impact on Ex-Vessel Revenue for Selected Fisheries From This Rulemaking
                                                     (2009$)
----------------------------------------------------------------------------------------------------------------
                                       Total annualized industry gross       Annual gross revenue decrease per
                                          revenue loss  (2012-2021)                    small business
----------------------------------------------------------------------------------------------------------------
Halibut fishery (with set and      $250,467..............................  $13,182.
 drift gill nets).
Seabass fishery (with set and      $284,638..............................  $15,813.
 drift gill nets).
Sea urchin fishery...............  no impact.............................  no impact.
Spiny lobster fishery............  no impact.............................  no impact.
Crab fishery.....................  no impact.............................  no impact.
Sea cucumber fishery.............  no impact.............................  no impact.
----------------------------------------------------------------------------------------------------------------

Impacts on Small Businesses Due to Alternative 1
    For comparison purposes, we analyze the effects on small entities 
that would occur if southern sea otters were excluded from the 
management zone through a resumption of zonal management (full 
implementation of the translocation program) as detailed in the final 
SEIS under Alternative 1. These effects are also indirect and stem from 
estimated impacts of sea otter predation on species targeted by 
commercial shellfish fisheries. If zonal management were resumed as 
described under Alternative 1 in the revised draft SEIS, the following 
industries would be affected, relative to the baseline: (1) Shellfish 
Fishing (NAICS 114112), and (2) Seafood Manufacturing (NAICS 3117). 
Industries that support recreational lobster fishing (i.e., CPFVs) are 
not included here because economic impacts to those entities are 
expected to be negligible, as shown in the baseline section. Under 
baseline conditions, changes over the next 10 years are expected to 
occur along the coastlines of Santa Barbara County and Ventura County 
as a result of a naturally expanding sea otter population. Alternative 
1 would prevent this expansion and would entail the removal of sea 
otters currently residing within the management zone. Enforcement of a 
management zone, if successful, would benefit commercial shellfish 
fisheries because competition with sea otters would be eliminated. 
Industries in southern California are included in the analysis because 
of their proximity to the affected area. Within the shellfish fishing 
industry, we analyze four fisheries in depth: the sea urchin fishery, 
lobster fishery, crab fishery, and sea cucumber fishery. These 
predation effects are expected to occur under the baseline and under 
implementation of this rulemaking, but would not occur if sea otters 
were excluded from all southern California waters except those 
surrounding San Nicolas Island, as would be required under Alternative 
1.
    Impacts under Alternative 1 are summarized in Table 3. Potential 
indirect annualized effects on the commercial sea urchin fishery are 
estimated to be $184,054 to $186,140 relative to the baseline, 
representing a gain to the commercial sea urchin fishery in southern 
California of 3 percent of landings relative to the baseline. Potential 
indirect annualized effects on the commercial lobster fishery are 
estimated to be $419,812 to $528,611 relative to the baseline, 
representing a gain to the commercial lobster fishery in southern 
California of 6 to 7 percent of landings relative to the baseline. 
Potential indirect annualized effects on the commercial crab fishery 
are estimated to be $207,601 to $311,647 relative to the baseline, 
representing a gain to the commercial crab fishery in southern 
California of 15 to 16 percent of landings relative to the baseline. 
Potential indirect effects on the commercial sea cucumber fishery are 
estimated to be $116,157 to $118,338 relative to the baseline, 
representing a gain to the commercial sea cucumber fishery in southern 
California of 15 percent of landings relative to the baseline. Minor 
positive indirect effects on the sea urchin processing industry could 
result from an increase in sea urchin landings, depending on operating 
capacity and consumer demand. Thirty-two (32) seafood product 
preparation and packaging entities meet the SBA ``small business'' size 
standard in southern California. Maximum benefits would reflect the 
gain to the commercial sea urchin fishery in southern California of 3 
percent of landings relative to the baseline.

[[Page 75296]]



      Table 3--Estimated Annual Ex-Vessel Revenue Benefit for Selected Fisheries From Alternative 1 (2009$)
----------------------------------------------------------------------------------------------------------------
                                      Annualized industry gross revenue    Gross revenue annual impact per small
                                             benefit (2012-2021)                          business
----------------------------------------------------------------------------------------------------------------
Sea urchin fishery...............  $184,054 to $186,140..................  $9,307 to $10,225.
Spiny lobster fishery............  $419,812 to $528,611..................  $17,052 to $18,253.
Crab fishery.....................  $207,601 to $311,647..................  $5,373 to $6,106.
Sea cucumber fishery.............  $116,157 to $118,338..................  $7,889 to $8,935.
Halibut fishery (with set and      no impact.............................  no impact.
 drift gill nets).
Seabass fishery (with set and      no impact.............................  no impact.
 drift gill nets).
----------------------------------------------------------------------------------------------------------------

    Under Alternative 1, the regulatory environment for fishing would 
remain unchanged relative to the baseline. Because any potential 
effects on the portion of the halibut and seabass fisheries using gill 
and trammel net gear would stem from regulatory changes, there is no 
effect on these two fisheries.
    Under Alternative 1, impacts to the sea urchin processing industry 
would be a positive function of the change in sea urchin landings. 
Impacts to the sea urchin processing industry would be dependent upon 
whether individual companies are operating at capacity and whether they 
are capable of processing different seafood products. If companies are 
operating at capacity, then there may be room for growth in the 
industry for an additional company. If companies are not operating at 
capacity, then revenues may increase in relation to any increase in raw 
product. Companies receiving sea urchins harvested along the affected 
coastline would be disproportionately affected. Because of the expected 
3 percent increase in sea urchin inputs from the Southern California 
Bight, Alternative 1 is not expected to have a significant impact on 
the seafood processing industry.

Small Business Regulatory Enforcement Fairness Act

    Amendment of title 50 of the Code of Federal Regulations to remove 
Sec.  17.84(d) is not a major rule under 5 U.S.C. 804(2). Our economic 
analysis concludes that removal of 50 CFR 17.84(d):
     Would not have an annual effect on the economy of $100 
million or more. The maximum annualized ex-vessel revenue loss to the 
halibut and white seabass industries would be $535,105 (10-year present 
value of $4.5 million discounted at 7 percent and $3.4 million 
discounted at 3 percent).
     Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
     Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Service makes the following findings:
     This rulemaking would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, 
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 tribal 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 tribal 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.''
    This rulemaking to terminate the southern sea otter translocation 
program does not impose a legally binding duty on non-Federal 
government entities or private parties.
     This rulemaking will not significantly or uniquely affect 
small governments because it will not produce a mandate of $100 million 
or greater in any year; that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. This determination is 
based on the economic analysis prepared as part of the final SEIS on 
the sea otter translocation program. As such, a Small Government Agency 
Plan is not required.

Takings

    In accordance with Executive Order 12630, this rulemaking will not 
have significant implications concerning taking of private property by 
the Federal Government. While small segments of the fishing industry 
may be indirectly affected by changes resulting from termination of the 
southern sea otter translocation program, fishery resources are public 
resources in which private entities have no Constitutionally protected 
property interest. This rulemaking will substantially advance a 
legitimate government interest (conservation and recovery of listed 
species) and will not present a bar to all reasonable and expected 
beneficial use of private property.

Federalism Assessment

    In accordance with Executive Order 13132, the amendment to title 50 
of the Code of Federal Regulations to remove Sec.  17.84(d) does not 
have significant Federalism effects. A Federalism assessment is not 
required. The amendment will not have substantial direct effects on the 
State, in the relationship between the Federal Government and the 
State, or on the distribution of power and responsibilities among the 
various levels of government. In keeping with Department of the 
Interior policy, we requested information from, and coordinated with, 
the State of California

[[Page 75297]]

to the extent possible on the development of this rulemaking.

Civil Justice Reform

    In accordance with Executive Order 12988, the amendment to Title 50 
of the Code of Federal Regulations to remove Sec.  17.84(d) does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    The amendment to Title 50 of the Code of Federal Regulations to 
remove Sec.  17.84(d) does not contain any information collection 
requirements for which Office of Management and Budget approval under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., is required. The 
proposed amendment will not impose new recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations.

National Environmental Policy Act

    We have considered this action with respect to the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
determined that this action required the preparation of an 
environmental impact statement. A final SEIS is available at http://www.regulations.gov, at http://www.fws.gov/ventura/, or by contacting 
the Ventura Fish and Wildlife Office (see ADDRESSES section).

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), Executive Order 13175, and the Department of 
the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a Government-to-Government basis. We have evaluated possible 
effects on federally recognized Indian Tribes and have determined that 
there are no effects.

Energy Supply, Distribution, or Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rulemaking is not 
expected to significantly affect energy supplies, distribution, and 
use. Although adoption of this rulemaking will result in additional 
consultation requirements for energy activities that may affect 
southern sea otters, in the context of the current regulatory 
environment, it would not significantly affect energy supplies, 
distribution, and use. Therefore, this action is not a significant 
energy action, and no Statement of Energy Effects is required.

Endangered Species Act

    In accordance with the requirements under section 7 of the 
Endangered Species Act of 1973, as amended, (16 U.S.C. 1531 et seq.), 
we have evaluated the effects of this action on the endangered white 
abalone, the endangered black abalone, and designated critical habitat 
for the black abalone. We determined that this action will have no 
effect on these species or designated critical habitat. In addition, we 
performed an internal Service consultation and found that the effects 
of this action are not likely to adversely affect the southern sea 
otter.

References Cited

    A complete list of all references cited in this rulemaking is 
available on http://www.regulations.gov or upon request from the 
Ventura Fish and Wildlife Office (see ADDRESSES section).

Author

    The primary author of this rulemaking is Lilian Carswell of the 
Ventura Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, for the reasons set forth in the preamble, 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 is revised to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. In Sec.  17.11(h), in the List of Endangered and Threatened Wildlife 
under Mammals, amend the entries for ``Otter, southern sea (Enhydra 
lutris nereis)'' as follows:
0
a. Revise the first entry; and
0
b. Remove the second entry.
    The revision reads as follows:


Sec.  17.11  Endangered and threatened wildlife.

    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
         Scientific name                Common name                                threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Otter, southern sea..............  Enhydra lutris        West Coast, U.S.A.   Entire.............  T                        21           NA           NA
                                    nereis.               (CA, OR, WA) south
                                                          to Mexico (Baja
                                                          California).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec.  17.84  [Amended]

0
3. Amend Sec.  17.84 by removing and reserving paragraph (d).

    Dated: December 13, 2012.
Michael J. Bean,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-30486 Filed 12-18-12; 8:45 am]
BILLING CODE 4310-55-P