[Federal Register: December 16, 2008 (Volume 73, Number 242)]
[Proposed Rules]
[Page 76453-76469]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de08-27]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Southwest Alaska Distinct Population Segment of the
Northern Sea Otter (Enhydra lutris kenyoni); Proposed Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R7-ES-2008-0105; 92210-1117-0000-FY08-B4]
RIN 1018-AV92
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Southwest Alaska Distinct Population Segment
of the Northern Sea Otter (Enhydra lutris kenyoni)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the southwest Alaska Distinct Population
Segment (DPS) of the northern sea otter (Enhydra lutris kenyoni) under
the Endangered Species Act of 1973, as amended (Act). In total,
approximately 15,225 square kilometers (km\2\) (5,879 square miles
(mi\2\)) fall within the boundaries of the proposed critical habitat
designation. The proposed critical habitat is located in Alaska.
DATES: We will accept comments received on or before February 17, 2009.
We must receive requests for public hearings, in writing, at the
address shown in the FOR FURTHER INFORMATION CONTACT section by January
30, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-ES-2008-0105; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
Detailed, colored maps of areas proposed as critical habitat in
this proposed rule are available for viewing at http://alaska.fws.gov/
fisheries/mmm/seaotters/criticalhabitat.htm. Hard copies of maps can be
obtained by contacting the Marine Mammals Mangement Office (see FOR
FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Douglas M. Burn, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/786-
3816. If you use a telecommunications device for the deaf (TDD), call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether the benefit of designation would outweigh
threats to the species caused by the designation, such that the
designation of critical habitat is prudent.
(2) Specific information on:
The amount and distribution of habitat of the southwest
Alaska DPS of the northern sea otter,
What areas occupied at the time of listing and that
contain features essential for the conservation of the species we
should include in the designation and why, and
What areas not occupied at the time of listing are
essential to the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities, and the benefits of including or excluding
areas that exhibit these impacts.
(5) Any areas that might be appropriate for exclusion from the
final designation under section 4(b)(2) of the Act.
(6) Special management considerations or protections that the
proposed critical habitat may require.
(7) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by email or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the southwest Alaska DPS of the northern sea otter,
refer to the final listing rule published in the Federal Register on
August 9, 2005 (70 FR 46366). More detailed information on northern sea
otter biology and ecology that is directly relevant to designation of
critical habitat is discussed under the Primary Constituent Elements
section below.
Description and Taxonomy
Sea otters are the only completely marine species of the aquatic
lutrinae, or otter subfamily of the family Mustelidae (skunks, weasels,
minks, badgers, and honey badgers) (Wozencraft 1993, pp. 310). In an
exhaustive systematic review and analysis of sea otter skull
morphology, Wilson et al. (1991, p. 33-34) concluded there were three
subspecies, the Russian sea otter (Enhydra lutris lutris) from Asia to
the Commander Islands, southern sea otter (E. l. nereis) from
California, and a newly described subspecies, the northern sea otter
(E. l. kenyoni), from Alaska.
Currently there are three population stocks of sea otters
recognized in Alaska, as defined under the Marine Mammal Protection Act
(16 U.S.C. 1361 et seq.): (1) Southeast Alaska; (2) southcentral
Alaska; and (3) southwest Alaska (Gorbics and Bodkin 2001, p. 632). The
southwest Alaska population
[[Page 76455]]
stock (DPS) is listed as threatened under the Act.
The sea otter is one of the largest mustelids, and the sexes are
moderately dimorphic (two distinct forms). Adult males attain weights
of 45 kilograms (kg) (99.2 pounds (lbs)) and total lengths of 148
centimeters (cm) (58.3 inches (in)), and adult females attain weights
of 36 kg (79.4 lbs) and total lengths of 140 cm (55.1 in). Size appears
to vary among populations and to a large extent may represent the
status of the population relative to available food resources.
Fur and the air trapped within it provide the primary source of
insulation and buoyancy for the sea otter, and in contrast to most
other marine mammals (which rely on a thick blubber layer), there is
little or no subcutaneous fat. The ability of the sea otter to
thermoregulate is dependent on maintaining the integrity of the pelage
(fur), in conjunction with an extremely high metabolic rate (as
discussed below). This requires a nearly constant, yet gradual, molt,
as well as frequent and vigorous grooming. The color of the pelage
ranges from light brown to nearly black. As animals age, they may
attain a grizzled appearance, with whitening occurring in the head,
neck, and torso regions. Newborn pups have a pale brown, woolly natal
pelage until about 3 months of age.
Distribution and Habitat
The southwest Alaska DPS of the northern sea otter ranges from Attu
Island at the western end of Near Islands in the Aleutians, east to
Kamishak Bay on the western side of lower Cook Inlet, and includes
waters adjacent to the Aleutian Islands, the Alaska Peninsula, the
Kodiak archipelago, and the Barren Islands.
As a species, sea otters occur only in the North Pacific Ocean. The
historical range includes coastal habitats around the Pacific Rim
between central Baja California and northern Japan. The range currently
occupied extends from southern California to northern Japan, with
extralimital sightings in central Baja California and near Wrangel
Island in the Chukchi Sea. The northward limits in distribution appear
related to the southern limits of sea ice, which can preclude access to
foraging habitat. Seasonal and inter-annual variation in the southern
extent of sea ice results in constriction and expansion of the sea
otter's northern range. During periods of advancing winter sea ice
along their northern range, sea otters occasionally become trapped and
sometimes die (Nikolaev 1965, p. 35; Schneider and Faro 1975, p. 91).
Sea otters attempting to travel tens of kilometers over the Alaska
Peninsula to access the ice-free Pacific were observed in 1971 and 1972
(Schneider and Faro 1975, pp. 93-96) and again in 1982, 1999, and 2000
(USGS unpub. data). Although some otters may succeed in such efforts,
many apparently die from starvation or predation by wolves (Canis
lupus), red foxes (Vulpes vulpes), and wolverines (Gulo gulo). Southern
range limits are less well understood but appear to coincide with the
southern limits of coastal upwelling, associated canopy-forming kelp
forests, and the 20-22[deg] Celsius (68-72[deg] Fahrenheit) isotherm
(Kenyon 1969, p. 135; Estes 1980, p. 133).
Sea otters occupy and use all habitats within the nearshore marine
ecosystem, from protected bays and estuaries to exposed outer coasts
and offshore islands. Because they need to dive to the sea floor to
forage (Bodkin 2001, p. 2616), the seaward limit of their usual
distribution is defined by their diving ability and is approximated by
the 100 meter (m) (328.1 feet (ft)) depth contour. While sea otters may
be found at the surface in water deeper than 100 m (328.1 ft), either
resting or swimming, they are most commonly observed in waters within a
few km of shore (Riedman and Estes 1990, p. 22), and higher densities
are frequently associated with shallow water (Laidre et al. 2002, p.
1177). Bodkin and Udevitz (1999, p. 22) found 80 percent of the otters
in Prince William Sound (PWS) where water depths are less than 40 m
(131.2 ft), although the proportion of total habitat within this
bathymetric zone was about 33 percent. Where relatively shallow waters
or islands extend far offshore, sea otters can also be found in high
densities (Kenyon 1969, p. 57). While they periodically haul out on
intertidal or supratidal shores (flooded by very high tides),
particularly during winter months, and generally remain close to the
sea-land interface, no aspect of their life history requires leaving
the ocean (Kenyon 1969, pp. 59-104; Riedman and Estes 1990, p. 24).
Although sea otter habitat occurs in the nearshore marine environment,
it is important to note that activities that occur in the broader
Bering Sea and Gulf of Alaska ecosystems may affect their habitat and
populations (Estes et al. 1998, p. 475).
Sea otters forage in diverse bottom types, from fine mud and sand
to rocky reefs. Recent research employing archival time depth recorders
recovered from sea otters in southeast Alaska showed that 84 percent of
foraging occurred in depths between 2-30 m (6.6-98.4 ft), and that 16
percent of all foraging was between 30-100 m (98.4-328.1 ft) (Bodkin et
al. 2004, p. 305). Maximum foraging depths averaged 61 m (200.1 ft) and
ranged from 35-100 m (114.8-328.1 ft). Less than 2 percent of all
foraging dives were greater than 55 m (180.4 ft). Females dove to
depths less than 20 m (65.6 ft) on 85 percent of their foraging dives
while males dove to depths greater than 45 m (147.6 ft) on 50 percent
of their foraging dives. Recent research from California suggests these
patterns may be similar among populations (Tinker et al. 2006, p. 148).
Previous Federal Actions
The southwest Alaska DPS of the northern sea otter was listed as
threatened on August 9, 2005 (70 FR 46366). Critical habitat was
considered to be prudent, but not determinable, and therefore was not
designated for this DPS at the time of listing. When a not determinable
finding is made, we must, within one year of the publication date of
the final listing rule, designate critical habitat, unless the
designation is found to be not prudent. On December 19, 2006, the
Center for Biological Diversity filed suit against the Service for
failure to designate critical habitat within the statutory time frame
(Center for Biological Diversity et al. v. Kempthorne et al., No. 1:06-
CV-02151-RMC (D.D.C. 2007)). On April 11, 2007, the U.S. District Court
for the District of Columbia entered an order approving a stipulated
settlement of the parties requiring the Service on or before November
30, 2008, to submit to the Federal Register a determination as to
whether designation of critical habitat for the southwest Alaska DPS is
prudent, and if so, to publish a proposed rule. We have subsequently
reaffirmed that critical habitat for the southwest Alaska DPS of the
northern sea otter is prudent. This proposed rule complies with the
court order and section 4(b)(2) of the Act. For more information on
previous Federal actions concerning the southwest Alaska DPS of the
northern sea otter, refer to the final listing rule published in the
Federal Register on August 9, 2005 (70 FR 46366).
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
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(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow the government or public to access private lands. Such
designation does not require implementation of restoration, recovery,
or enhancement measures by the landowner. Where the landowner seeks or
requests Federal agency funding or authorization for an activity that
may affect a listed species or critical habitat, the consultation
requirements of section 7 of the Act would apply. However, even in the
event of a destruction or adverse modification finding, the landowner's
obligation is not to restore or recover the species, but to implement
reasonable and prudent alternatives to avoid destruction or adverse
modification of critical habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species. Critical habitat designations identify, to
the extent known using the best scientific data available, habitat
areas that provide essential life cycle needs of the species (areas on
which are found the primary constituent elements, as defined at 50 CFR
424.12(b)). Occupied habitat that contains the features essential to
the conservation of the species meets the definition of critical
habitat only if those features may require special management
considerations or protection. Under the Act, we can designate
unoccupied areas as critical habitat only when we determine that the
best available scientific data demonstrate that the designation of that
area is essential to the conservation needs of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designated critical
habitat may not include all of the habitat areas that we may eventually
determine, based on scientific data not now available to the Service,
are necessary for the recovery of the species. For these reasons, a
critical habitat designation does not signal that habitat outside the
designated area is unimportant or may not be required for recovery of
the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we implement under section 7(a)(1) of the Act and our other
wildlife authorities. They are also subject to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, as
determined on the basis of the best available scientific information at
the time of the agency action. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may result in jeopardy findings in some cases. Similarly,
critical habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas occupied at the time of listing
that contain features essential to the conservation of the southwest
Alaska DPS of the northern sea otter, and areas unoccupied at the time
of listing that are essential to the conservation of the DPS, or both.
In proposing critical habitat for the southwest Alaska DPS of the
northern sea otter, we reviewed the relevant information available,
including peer-reviewed journal articles, unpublished reports, the
final listing rule, and unpublished materials (such as survey results
and expert opinions). In general, sea otters occupy the vast majority
of the available habitat within southwest Alaska. Exceptions include
portions of Kodiak Island where otters have yet to recolonize their
former range, and there may also be some individual islands in the
Aleutian archipelago where otters have disappeared (Doroff et al. 2003,
p. 58). We are not currently proposing any areas outside the
geographical area presently occupied by the DPS because designating
only occupied areas is sufficient for the conservation of the species.
We have also reviewed available information that pertains to the
habitat requirements of this species including research published in
peer-reviewed articles and presented in academic theses and agency
reports. We also discussed habitat requirements with members of the
southwest Alaska sea otter recovery team at several meetings. The sea
otter recovery team includes representatives from University of Alaska
Fairbanks, Fish and Wildlife Service, University of British Columbia,
Marine Conservation Alliance, U.S. Geological Survey (USGS), Alaska
Veterinary Pathology Services, Defenders of Wildlife, National Marine
Fisheries Service, The Alaska SeaLife Center, Alaska Department of Fish
and Game, Smithsonian National Zoological Park, The Alaska Sea Otter
and Steller Sea Lion Commission, University of California Santa Cruz,
University of Alaska Sea Grant Program, and Sand Point, Alaska.
[[Page 76457]]
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied at
the time of listing to propose as critical habitat, we consider areas
containing the physical and biological features that are essential to
the conservation of the species and may require special management
considerations or protection. These features are the specific primary
constituent elements (PCEs) laid out in the appropriate quantity and
spatial arrangement for the conservation of the species. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific primary constituent elements (PCEs) for the
southwest Alaska DPS from its biological needs, as described in the
Background section of this proposed rule and the following information.
Space for Individual and Population Growth and for Normal Behavior
Sea otters exhibit complex movement patterns related to habitat
characteristics, social organization, and reproductive biology. It is
likely that movements differ among populations depending on whether a
population is at or near carrying capacity or has access to unoccupied
suitable habitat into which it can expand (Riedman and Estes 1990, p.
58). Most research into sea otter movements has been conducted where
unoccupied habitat is available to dispersing animals. Early research
in the Aleutian Islands by Kenyon (1969, p. 204) also found that males
have larger home ranges than females and described the female sea
otter's home range as including 8-16 km (5.0-9.9 mi) of contiguous
coastline. Male sea otter home ranges are highly variable. For
territorial (breeding) males, the area defended is smaller than that of
a female range, but the territory is not necessarily defended year-
round and may include larger scale movements to more productive feeding
grounds. Breeding may not occur until a male is older (7-10 years) and
in an established population. Little is known about the home range of
non-breeding males. In the listed region, where dramatic reduction in
numbers have occurred, even less is known about movement patterns and
home range sizes (A. Doroff, USFWS, pers. comm. 2008).
At present, sea otters occur throughout nearly all of their former
range in southwest Alaska, albeit at considerably lower densities than
were present prior to the recent population decline that led to the
listing of the DPS. Space for individual and population growth and for
normal behavior does not appear to be a limiting factor for this DPS.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The sea otter is a generalist predator, known to consume a wide
variety of different prey species (Kenyon 1969, p. 110; Riedman and
Estes 1990, p. 36; Estes and Bodkin 2002, p. 847). With few exceptions,
their prey consist of sessile, or slow-moving, benthic invertebrates
such as mollusks, crustaceans, and echinoderms, including sea urchins.
Foraging occurs in habitats with rocky and soft sediment substrates
between the high intertidal zone to depths slightly in excess of 100 m
(328.1 ft). Preferred foraging habitat is generally in depths less than
40 m (131.2 ft; Riedman and Estes 1990, p. 31), although studies in
southeast Alaska have found that some animals forage mostly at depths
from 40-80 m (131.2-262.5 ft; Bodkin et. al. 2004, p. 318).
The diet of sea otters is usually studied by observing prey items
brought to the surface for consumption, and therefore diet composition
is usually expressed as a percentage of all identified prey that belong
to a particular prey species or type. Although the sea otter is known
to prey on a large number of species, only a few tend to predominate in
the diet in any particular area. Prey type and size depends on
location, habitat type, season, and length of occupation.
Sea otters can be very diverse in their diets. Different habitats
offer different types of prey. There are about 200 known prey species
for sea otters, but the dominant ones that tend to sustain the
population are crab, clam, urchin, and mussel. The predominately soft-
sediment habitats of southeast Alaska, Prince William Sound, and Kodiak
Island support populations of clams that are the primary prey of sea
otters. Throughout most of southeast Alaska, burrowing clams (species
of Saxidomus, Protothaca, Macoma, and Mya) predominate in the sea
otter's diet (Kvitek et al. 1993, p. 172). They account for more than
50 percent of the identified prey, although urchins (S. droebachiensis)
and mussels (Modiolis modiolis, Mytilus spp., and Musculus spp.) can
also be important. In Prince William Sound and Kodiak Island, clams
account for 34-100 percent of the otter's prey (Calkins 1978, p. 127;
Doroff and Bodkin 1994, p. 202; Doroff and DeGange 1994, p. 706).
Mussels (Mytilus trossulus) apparently become more important for sea
otters as a prey base as the length of occupation by sea otters
increases, ranging from 0 percent of their prey base at newly occupied
sites at Kodiak to 22 percent of their prey base in long-occupied areas
(Doroff and DeGange 1994, p. 709). Crabs (C. magister) were once
important sea otter prey in eastern Prince William Sound, but
apparently have been depleted by otter foraging and are no longer eaten
in large numbers (Garshelis et al. 1986, p. 642). Sea urchins are minor
components of the sea otter's diet in Prince William Sound and the
Kodiak archipelago. In contrast, the diet in the Aleutian, Commander,
and Kuril Islands is dominated by sea urchins and a variety of fin fish
(Kenyon 1969, p. 116; Estes et al. 1982, p. 250). Sea urchins tend to
dominate the diet of low-density sea otter populations, whereas more
fishes are consumed in populations near equilibrium density (Estes et
al. 1982, p. 250). For unknown reasons, fish are rarely consumed by sea
otters in regions east of the Aleutian Islands.
As the population has declined in the past 20 years throughout much
of the range of the southwest Alaska DPS of the northern sea otter,
prey species such as sea urchins have increased in both size and
abundance (Estes et al. 1998, p. 474). Recent studies of sea otter body
condition indicate improved overall health and suggest that limited
nutritional resources were not the cause of the observed population
decline (Laidre et al. 2006, p. 987). Although food, water, air, light,
minerals, or other nutritional or physiological requirements do not
appear to be a limiting factor, availability of sufficient prey
resources and areas in which to forage is essential to the conservation
of the DPS.
Cover or Shelter
Estes et al. (1998, p. 473) believe the decline of sea otters in
southwest Alaska is the result of increased predation, most likely by
killer whales (Orcinus orca). These authors examined a suite of
information and concluded that the recent population decline was likely
not due to food limitation, disease, or
[[Page 76458]]
reduced productivity. Several lines of evidence, including increased
frequency of killer whale attacks and significantly higher mortality
rates in Kuluk Bay on Adak Island, as compared to Clam Lagoon, a
protected area that is inaccessible to killer whales, also support this
conclusion (Estes et al. 1998, p. 473).
A shift in distribution toward the shoreline has also been observed
in the western and central Aleutian Islands, which may allow otters
easier escape onto the land. In August 2007, the Service and USGS
conducted skiff-based surveys in the Near and Rat Island groups in the
western Aleutians. In addition to recording the number and approximate
location of every otter sighting, observers also recorded the
approximate distance to the nearest shore. The median distance to shore
for 811 sea otters observed was 10 m (32.8 ft); 90 percent of all
otters observed were within 100 m (328.1 ft) (USFWS unpublished
information). Aerial survey data indicate that in some areas, the
majority of the remaining sea otter population inhabits sheltered bays
and coves, which may also provide protection from marine predators
(USFWS unpublished information).
Canopy-forming kelps (including species of Macrocystis, Alaria, and
to a lesser extent Nereocystis), provide resting habitat (Kenyon 1969,
p. 57; Riedman and Estes 1990, p. 23), and may also provide protection
from marine predators (C. Matkin, personal communication). Kelp forests
occur primarily in waters less than 20 m (65.6 ft) in depth (O'Clair
and Lindstrom 2000, pp. 41, 57). In addition, killer whales may be less
likely to forage in shallow, constricted areas less than 2 m (6.6 ft)
in depth (C. Matkin, personal communication).
Based on our understanding of threats to the southwest Alaska DPS,
we believe that features that provide protection from marine predators,
especially killer whales, are essential to the conservation of the DPS.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
There appears to be a positive relationship between shoreline
complexity and sea otter density (Riedman and Estes 1990, p. 23).
Although not obligatory, headlands, coves, and bays appear to offer
preferred resting habitat, particularly to females with pups,
presumably because they provide protection from high wind and sea
conditions. Surveys of sea otters in southwest Alaska do not indicate
that pup production is a limiting factor for the DPS (USFWS and USGS
unpublished information).
Habitats Protected From Disturbance or Representative of the
Historical, Geographical, and Ecological Distributions of the Species
Within the range of the southwest Alaska DPS of the northern sea
otter, the vast majority of sea otter habitats are undisturbed, and are
representative of the historical, geographical, and ecological
distributions of the species.
Primary Constituent Elements for the Southwest Alaska DPS of the
Northern Sea Otter
Within the geographical area occupied by the southwest Alaska DPS
of the northern sea otter at the time of listing, we must identify the
primary constituent elements (PCEs) laid out in the appropriate
quantity and spatial arrangement essential to the conservation of the
DPS (i.e., the essential physical and biological features) that may
require special management considerations or protections.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, we have determined that
the southwest Alaska DPS of the northern sea otter's PCEs are:
(1) Shallow, rocky areas where marine predators are less likely to
forage, which are waters less than 2 m (6.6 ft) in depth,
(2) Nearshore waters that may provide protection or escape from
marine predators, which are those within 100 m (328.1 ft) from the mean
high tide line and
(3) Kelp forests that provide protection from marine predators,
which occur in waters less than 20 m (65.6 ft) in depth.
(4) Prey resources within the areas identified by PCEs 1-3 that are
present in sufficient quantity and quality to support the energetic
requirements of the species.
We propose units for designation because each of these units
contains sufficient PCEs to support at least one of the species' life
history functions. Some units contain all of these and support multiple
life processes, while some units contain only a portion of PCEs,
necessary to support the species' particular use of that habitat.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the occupied
areas contain features that are essential to the conservation of the
species and that may require special management considerations or
protections. The range of the southwest Alaska DPS of the northern sea
otter is sparsely populated by humans. There are only 31 populated
communities located within an area that contains approximately 18,000
km (11,184 mi) of coastline. The human population within the range of
the DPS is approximately 17,000 persons living in 31 communities (State
of Alaska Department of Commerce, Community, and Economic Development
Database 2006). The scale of human activities that occur within the
proposed critical habitat areas is exceedingly small. Potential
activities that could harm the identified physical and biological
features include, but are not limited to, dredging or filling
associated with construction of airports, seaports, and harbors;
commercial shipping; and oil and gas development and production.
Pollution from various potential sources, including oil spills from
vessels, or discharges from oil and gas drilling and production, could
render areas containing the identified physical and biological features
unsuitable for use by sea otters, effectively negating the conservation
value of these features. Because of the vulnerabilities to pollution
sources, these features may require special management or protection
through such measures as placing conditions on Federal permits or
authorizations to stimulate special operational restraints, mitigative
measures, or technological changes.
The shipping industry transports various types of petroleum
products both as fuel and cargo within the range of the southwest
Alaska DPS. Information about the types and quantities of both
persistent and non-persistent oil has been summarized in a report on
vessel traffic within the Aleutians subarea (Nuka Research and Planning
Group 2006). Persistent fuels such as 6 bunker oil, bunker C,
and IFO 380 have low dissipation and evaporation rates, and will remain
on the surface of marine waters or along shorelines much longer than
non-persistent fuel such as diesel, gasoline, and aviation fuel.
Approximately 3,100 ship voyages occur through the Aleutians each year.
Most of these voyages are by bulk and general freight ships (1,300) and
container ships (1,200). The median fuel capacity for bulk and general
freight ships is 470,000 gallons of persistent fuel oil; for container
ships, the median capacity is 1.6 million gallons of persistent fuel
oil. In addition, there are about 265 voyages by motor vehicle carriers
with an estimated average fuel capacity of 500,000 gallons of
persistent fuel oil.
[[Page 76459]]
There are also approximately 22 voyages by tanker ships transporting
about 400 million gallons of refined oil. The figures quoted above are
for the Aleutians subarea only, which includes the North Pacific great
circle route from the west coast of North America to Asia. Information
about shipping traffic that occurs in other parts of the southwest
Alaska DPS is not well-documented, though it is presumably on a much
smaller scale compared to what occurs through the Aleutians.
Numerous instances of vessel incidents have been documented in the
Aleutians over the past 15 years, including loss of maneuverability,
grounding, and oil spills (Nuka Research and Planning Group 2006, p.
29). Nearly 500 incidents affecting the seaworthiness of U.S. vessels
were reported in the Aleutians from 1990 through July 2006. U.S.
vessels reporting incidents were usually smaller than foreign vessels,
and were primarily fishing vessels. An additional 48 incidents
affecting seaworthiness of foreign vessels were reported between 1991
and July 2006. The bulk grain ship M/V Selendang Ayu which ran aground
on Unalaska Island in December 2004, is known to have resulted in the
death of two sea otters. The long-term impacts of that spill on sea
otter habitat use are not yet known.
Various safeguards have been established since the 1989 Exxon
Valdez oil spill to minimize the likelihood of another spill of
catastrophic proportions in Prince William Sound. Tankers, other
vessels, fuel barges, and onshore storage facilities are potential
sources of oil and fuel spills that could affect sea otters in the
southwest Alaska DPS. A review of the Alaska Department of
Environmental Conservation database indicates no crude-oil spills were
reported within the range of the southwest Alaska DPS during the 10-
year period from July 1, 1995, to June 30, 2005. Of the 520 reported
spills of refined products, 82 percent were from vessels; most of these
(70 percent) involved quantities smaller than 10 gallons. The majority
of vessel spills occurred in the western Aleutian (149), eastern
Aleutian (107), and Kodiak, Kamishak, Alaska Peninsula (130) management
units. Only 7 spills were reported where the quantity was greater than
5,000 gallons of material. The largest was the M/V Selendang Ayu, which
spilled 321,052 gallons of IFO 380 fuel and an additional 14,680
gallons of diesel.
In 2006, the U.S. Coast Guard, the State of Alaska, and the
National Academies of Science met to begin plans for the development of
a comprehensive risk assessment for the Aleutian Islands. Although the
probability of occurrence of a catastrophic oil spill may be relatively
small, the potential for disastrous consequences suggest that measures
to prevent or respond to spills may be important to the recovery of the
southwest Alaska DPS. The Coast Guard and Maritime Transportation Act
of 2004 (H.R. 2443) requires oil-spill contingency plans for vessels
over 400 gross tons that call on U.S. ports. In addition to contingency
plans for vessels of this size class, the Alaska Department of
Environmental Conservation (ADEC) has both a unified spill-response
plan as well as 10 Subarea plans. The southwest Alaska DPS is covered
by the Aleutian, Bristol Bay, Kodiak, and Cook Inlet Subarea plans. In
addition, ADEC is developing Geographic Response Strategies (GRS) that
are designed to be a supplement to the Subarea Contingency Plans for
Oil and Hazardous Substances Spills and Releases. The GRS are the
current standard for site-specific oil-spill-response planning in
Alaska.
The first and primary phase of an oil-spill response is to contain
and remove the oil at the scene of the spill or while it is still on
the open water, thereby reducing or eliminating impacts on shorelines
or sensitive habitats. If some of the spilled oil escapes the first-
phase containment and removal, the second, but no less important, phase
is to intercept, contain, and remove the oil in the nearshore area. The
intent of phase two is the same as phase one: remove the spilled oil
before it affects sensitive environments. If phases one and two are not
fully successful, a third phase (GRS) is designed to protect sensitive
areas in the path of the oil. The purpose of phase three is to protect
selected sensitive areas from the impacts of a spill or to minimize
that impact to the maximum extent practical. Proposed critical habitat
for the southwest Alaska DPS of the northern sea otter will be
incorporated into the GRS system to facilitate this additional level of
spill response.
Existing commercial fishing activities, and their target species
(which are not considered prey for sea otters), within southwest Alaska
primarily occur outside of the areas proposed as critical habitat in
this rule (Funk 2003, p. 2). With the exception of oil spills from
shipwrecks, we do not believe that existing commercial fishing
activities in southwest Alaska have the potential to harm the
identified physical and biological features for the southwest Alaska
DPS of the northern sea otter.
Criteria Used To Identify Critical Habitat
We are proposing to designate critical habitat for the southwest
Alaska DPS of the northern sea otter in areas that were occupied at the
time of listing and contain sufficient PCEs: (1) To support life
history functions essential to the conservation of the DPS, and (2)
which may require special management considerations or protection. Much
of the range of the DPS occurs within the Aleutian archipelago, and
although it is possible that otters have disappeared from some of the
small islands since the time of listing, we have no information that
indicates any portion should be considered unoccupied habitat. As a
result, we consider the Aleutian archipelago to be occupied habitat.
Unlike habitats for terrestrial species, some of the various
characteristics of sea otter habitat are poorly mapped. Although
shoreline boundaries are reasonably well-documented, the bathymetric
data for southwest Alaska exist at a variety of spatial resolutions.
Benthic substrate types are also poorly mapped. Other features, such as
the distribution and abundance of sea otter prey species, and the
spatial extent of kelp beds, may be dynamic over time. This lack of
specificity makes it difficult to explicitly identify and map areas
that contain the PCEs for this DPS beyond a certain geographic scale.
Areas that provide protection from marine predators are likely the
most essential to the conservation of this DPS. Despite the absence of
information necessary to map these areas with precision, we can define
criteria that will contain the essential PCEs. Kelp forests that
provide resting habitat and protection from marine predators occur
primarily in waters less than 20 m (65.6 ft) in depth (O'Clair and
Lindstrom 2000, pp. 41, 57). In addition to identifying an approximate
seaward extent of kelp forests, the 20-m (65.6-ft) depth contour also
encompasses the nearshore shallow areas (less than 2 m (6.6 ft)) where
marine predators may be less likely to forage. The 20-m (65.6-ft) depth
contour also has considerable overlap with the nearshore (<100 m (328.1
ft)) areas where otters can escape predators by hauling out on land.
Areas of shallow water less than 20 m (65.6 ft) in depth that are not
contiguous with the mean high tide line may provide less protection
from marine predators. Nearshore marine waters ranging from mean high
tide to 20 m (65.6 ft) in water depth or that occur within 100 m (328.1
ft) of the mean high tide line (or both) therefore contain the
necessary PCEs for protection from marine predators
[[Page 76460]]
(Figure 1). Based on numerous studies of sea otter foraging depths, as
well as the distribution of the remaining sea otter population in
nearshore, shallow water areas, we believe that the areas defined by
PCEs 1-3 also contain sufficient sea otter prey resources. We have no
reason to believe that any of the areas within the proposed critical
habitat designation are unable to support the energetic requirements of
this species.
[GRAPHIC] [TIFF OMITTED] TP16DE08.000
When determining proposed critical habitat boundaries within this
proposed rule, we made every effort to avoid including developed areas
that lack PCEs for the southwest Alaska DPS of the northern sea otter.
The scale of the map we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed areas, such as piers, docks, harbors, marinas, jetties,
and breakwaters. Any such structures inadvertently left inside critical
habitat boundaries shown on the map of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, Federal actions involving
these areas would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the PCEs in the adjacent critical
habitat.
Proposed Critical Habitat Designation
We are proposing five units as critical habitat for the southwest
Alaska DPS of the northern sea otter. In 2006, the Service convened a
Recovery Team to develop a recovery plan for the southwest Alaska DPS
of the northern sea otter. As of the publication date of this proposed
rule, the Recovery Team has met five times, and a draft recovery plan
is in preparation. As the range of the southwest Alaska DPS of the
northern sea otter includes approximately 18,000 km (11,184.7 mi) of
coastline, the team has proposed that the DPS be subdivided into 5
management units, based on criteria such as habitat type and population
trajectory. In the interest of clarity, we propose designating critical
habitat units that correspond to the management units proposed by the
Recovery Team. Only those areas within each management unit that meet
the criteria identified above are being proposed as critical habitat--
namely, those areas that contain one or more PCEs and may require
special management considerations or protection. Detailed, colored maps
of areas proposed as critical habitat in this proposed rule are
available for viewing at http://alaska.fws.gov/fisheries/mmm/seaotters/
criticalhabitat.htm. Hard copies of maps can be obtained by contacting
the Marine Mammals
[[Page 76461]]
Management Office (see FOR FURTHER INFORMATION CONTACT).
The critical habitat areas we describe below constitute our current
best assessment of areas that meet the definition of critical habitat
for the DPS. Table 1 shows the occupied units. The 5 units we propose
as critical habitat are: (1) Western Aleutian Unit; (2) Eastern
Aleutian Unit; (3) South Alaska Peninsula Unit; (4) Bristol Bay Unit;
and (5) Kodiak, Kamishak, Alaska Peninsula Unit.
Table 1--Occupancy of Northern Sea Otters by Proposed Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
Estimated size State/Federal
Unit Occupied at time of Currently occupied? of unit in ownership ratio
listing? km\2\ (mi\2\) (percent)
----------------------------------------------------------------------------------------------------------------
1. Western Aleutian............... Yes................. Yes................. 1,551 (599) 100/0
2. Eastern Aleutian............... Yes................. Yes................. 893 (345) 100/0
3. South Alaska Peninsula......... Yes................. Yes................. 4,945 (1,909) 85/15
4. Bristol Bay.................... Yes................. Yes................. 1,080 (417) 96/4
4a. Amak Island............... Yes................. Yes................. 31 (12) 77/23
4b. Izembek Lagoon............ Yes................. Yes................. 337 (130) 100/0
4c. Port Moller/Herendeen Bay. Yes................. Yes................. 712 (275) 94/6
5. Kodiak, Kamishak, Alaska Yes................. Yes................. 6,757 (2,609) 89/11
Peninsula.
-----------------------------------------------------------------------------
Total..................... .................... .................... 15,226 (5,879) 90/10
----------------------------------------------------------------------------------------------------------------
We present brief descriptions of all proposed critical habitat
units, and reasons why they meet the definition of critical habitat for
the southwest Alaska DPS of the northern sea otter, below. Calculation
of areas for units and subunits that include the 20-m (65.6-ft) depth
contour as a criterion are approximations estimated from GIS data
layers of hydrographic survey data compiled by the National Oceanic and
Atmospheric Administration (NOAA), the U.S. Geological Survey, and the
Service. Consultations under section 7 of the Act should use the best
available bathymetric data on a case-by-case basis. In some instances,
these data may be based on other units of measurement (such as feet or
fathoms), in which case the bathymetric contour that is closest to 20 m
(65.6 ft) should be used. For users of NOAA nautical charts, the 10-
fathom (60-ft) depth contour is a suitable approximation for the 20-m
(65.6-ft) depth contour.
Although no lands above mean high tide are proposed as critical
habitat, ownership of lands adjacent to critical habitat may be of
interest to reviewers of this proposal (Table 2).
Table 2--Ownership Status of Lands Adjacent to Proposed Critical Habitat
----------------------------------------------------------------------------------------------------------------
Federal Private Alaska Native
Unit (percent) State (percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
1. Western Aleutian......................... 80.2 0.0 0.0 19.8
2. Eastern Aleutian......................... 10.2 0.0 0.0 89.8
3. South Alaska Peninsula................... 21.1 0.4 0.0 78.5
4. Bristol Bay.............................. 36.7 41.5 0.0 21.8
4a. Amak Island......................... 100.0 0.0 0.0 0.0
4b. Izembek Lagoon...................... 89.4 0.0 0.0 10.6
4c. Port Moller/Herendeen Bay........... 4.9 66.1 0.0 29.0
5. Kodiak, Kamishak, Alaska Peninsula....... 30.2 17.4 0.0 52.4
-------------------------------------------------------------------
Total................................... 37.9 8.5 0.0 53.6
----------------------------------------------------------------------------------------------------------------
Unit 1: Western Aleutian Unit
Unit 1 consists of at least 1,551 km\2\ (599 mi\2\), collectively,
of the nearshore marine waters ranging from the mean high tide line to
the 20-m (65.6-ft) depth contour as well as waters occurring within 100
m (328.1 ft) of the mean high tide line. Hydrographic survey data in
the vicinity of Atka and Amlia islands is insufficient to delineate the
20-m (65.6-ft) depth contour, so our area calculation may slightly
underestimate the total area of this unit. This unit ranges from Attu
Island in the west to Kagamil Island in the east, was occupied at the
time of listing, and is currently occupied. The majority (80.2 percent)
of the lands bordering this unit are federally owned within the Alaska
Maritime National Wildlife Refuge. In addition, all of the proposed
critical habitat within this unit is located within State of Alaska
waters (defined as those within 3 mi (4.82 km) of mean high tide).
The Western Aleutian Unit contains all of the PCEs essential for
the conservation of the southwest Alaska DPS of the northern sea otter.
Special management considerations and protections may be needed to
minimize the risk of oil and other hazardous-material spills from
commercial shipping within the region and along the northern great
circle route.
Unit 2: Eastern Aleutian Unit
Unit 2 consists of an estimated 893 km\2\ (345 mi\2\),
collectively, of the nearshore marine waters ranging from the mean high
tide line to the 20-m (65.6-ft) depth contour as well as waters
occurring within 100 m (328.1 ft) of the mean high tide line. This unit
ranges from Samalga Island in the west to Ugamak Island in the east,
was occupied at the time of listing, and is currently occupied. The
majority (89.8 percent) of the lands bordering this unit are owned or
selected (but not yet conveyed) by Alaska Natives. In addition, all of
the proposed critical habitat within this unit is located within State
of Alaska waters.
[[Page 76462]]
The Eastern Aleutian Unit contains all of the PCEs essential for
the conservation of the southwest Alaska DPS of the northern sea otter.
Special management considerations and protections may be needed to
minimize the risk of oil and other hazardous-material spills from
commercial shipping within the region and along the northern great
circle route.
Unit 3: South Alaska Peninsula Unit
Unit 3 consists of an estimated 4,945 km\2\ (1,909 mi\2\),
collectively, of the nearshore marine waters ranging from the mean high
tide line to the 20-m (65.6-ft) depth contour as well as waters
occurring within 100 m (328.1 ft) of the mean high tide line. Available
hydrographic survey data for this unit have considerably lower spatial
resolution than the other units. This unit ranges from Unimak Island in
the west to Castle Cape in the east, was occupied at the time of
listing, and is currently occupied. The majority (78.5 percent) of the
lands bordering this unit are owned or selected (but not yet conveyed)
by Alaska Natives. The vast majority (85 percent) of the proposed
critical habitat within this unit is located within State of Alaska
waters.
The South Alaska Peninsula Unit contains all of the PCEs essential
for the conservation of the southwest Alaska DPS of the northern sea
otter. Special management considerations and protections may be needed
to minimize the risk of oil and other hazardous-material spills from
commercial shipping within this region and along the northern great
circle route.
Unit 4: Bristol Bay Unit
Unit 4 consists of an estimated 1,080 km\2\ (417 mi\2\) of the
nearshore marine environment. This unit is further subdivided into 3
subunits: (4a) Amak Island; (4b) Izembek Lagoon; and (4c) Port Moller/
Herendeen Bay. With the exception of Amak Island, the coastline
contained within this unit is relatively simple and lacks kelp forests.
For most of this unit, the 20-m (65.6-ft) depth contour used as a
criterion for critical habitat in other units does not identify
features that provide protection from marine predators, and is
applicable only to the Amak Island subunit. Other criteria are used to
identify the Izembek Lagoon and Port Moller/Herendeen Bay subunits, as
described below. All three subunits within the Bristol Bay unit were
occupied at the time of listing, and are currently occupied. Additional
information about each subunit is included below.
Subunit 4a: Amak Island Subunit
Subunit 4a consists of an estimated 31 km\2\ (12 mi\2\),
collectively, of the nearshore marine waters ranging from the mean high
tide line to the 20-m (65.6-ft) depth contour as well as waters
occurring within 100 m (328.1 ft) of the mean high tide line. This
subunit surrounds Amak Island in Bristol Bay, was occupied at the time
of listing, and is currently occupied. Large groups of sea otters have
been observed within the kelp forests within this subunit (USFWS
unpublished information). All of the lands bordering this unit are
federally owned within the Alaska Maritime National Wildlife Refuge.
Most (77 percent) of the proposed critical habitat within this subunit
is located within State of Alaska waters, a small portion of which (1.2
km\2\, 0.46 mi\2\) is also located within the boundaries of the Izembek
State Game Refuge.
The Amak Island Subunit contains all of the PCEs essential for the
conservation of the southwest Alaska DPS of the northern sea otter.
Special management considerations and protections may be needed to
minimize the risk of oil and other hazardous-material spills from
commercial shipping within Bristol Bay. In addition, offshore oil and
gas development are under consideration in the Lease Sale Area 92 in
the North Aleutian Basin region immediately offshore from this unit. An
environmental impact statement is in preparation, and will be completed
prior to the lease sale. Additional management considerations and
protections may be needed to minimize the risk of crude-oil spills
associated with oil and gas development and production that may impact
this subunit.
Subunit 4b: Izembek Lagoon Subunit
Subunit 4b consists of an estimated 337 km\2\ (130 mi\2\) of the
nearshore marine environment within the Izembek Lagoon and Moffett
Lagoon systems. Sea otters are known to frequent the lagoon system and
regularly haul out on the islands and sandbars that form the northern
boundary of these systems, such as Glen, Operl, and Neumann Islands
(USFWS unpublished information). Large numbers of otters have also been
observed hauling out along the edges of the sea ice within the lagoon
in winter (USFWS unpublished information). This subunit was occupied at
the time of listing, and is currently occupied. The majority (89.4
percent) of the lands bordering this unit are federally owned within
the Izembek National Wildlife Refuge. The proposed critical habitat
within this subunit is located within State of Alaska waters, most of
which (99 percent) is also within the boundaries of the Izembek State
Game Refuge.
The Izembek Lagoon Subunit contains some of the PCEs (1, 2 and 4)
essential for the conservation of the southwest Alaska DPS of the
northern sea otter. Special management considerations and protections
may be needed to minimize the risk of oil and other hazardous-material
spills from commercial shipping within Bristol Bay. In addition,
offshore oil and gas development are under consideration in the Lease
Sale Area 92 in the North Aleutian Basin region immediately offshore
from this subunit. Additional management considerations and protections
may be needed to minimize the risk of crude-oil spills associated with
oil and gas development and production that may impact this subunit.
Subunit 4c: Port Moller/Herendeen Bay Subunit
Subunit 4c consists of an estimated 712 km\2\ (275 mi\2\) of the
nearshore marine environment within the Port Moller and Herendeen Bay
systems. This subunit was occupied at the time of listing, and is
currently occupied. Aerial surveys conducted in 2000 and 2004, as well
as additional reported observations, indicate that these areas may
contain several thousand sea otters at any given time (Burn and Doroff
2005, p. 277; USFWS unpublished information). The seaward boundary of
this subunit extends from Point Edward on the Alaska Peninsula to the
western tip of Walrus Island, and from Wolf Point on the eastern tip of
Walrus Island to Entrance Point on the Alaska Peninsula. The majority
(66.1 percent) of the lands bordering to this unit are owned or
selected (but not yet conveyed) by the State of Alaska. Most (94
percent) of the critical habitat within this subunit is located within
State of Alaska waters, with a portion (140.8 km\2\ (54.4 mi\2\))
located within the boundaries of the Port Moller State Critical Habitat
area.
The Port Moller/Herendeen Subunit contains some of the PCEs (1,2,
and 4) essential for the conservation of the southwest Alaska DPS of
the northern sea otter. Special management considerations and
protections may be needed to minimize the risk of oil and other
hazardous-material spills from commercial shipping within Bristol Bay.
In addition, offshore oil and gas development are under consideration
in the Lease Sale Area 92 in the North Aleutian Basin region
immediately offshore from this subunit. Additional management
considerations and
[[Page 76463]]
protections may be needed to minimize the risk of crude-oil spills
associated with oil and gas development and production that may impact
this subunit.
Unit 5: Kodiak, Kamishak, Alaska Peninsula Unit
Unit 5 consists of an estimated 6,757 km\2\ (2,609 mi\2\),
collectively, of the nearshore marine environment ranging from the mean
high tide line to the 20-m (65.6-ft) depth contour as well as waters
occurring within 100 m (328.1 ft) of the mean high tide line. Available
hydrographic survey data for parts of this unit have considerably lower
spatial resolution than the other units. This unit ranges from Castle
Cape in the west to Tuxedni Bay in the east, and includes the Kodiak
archipelago. This unit was occupied at the time of listing, and is
currently occupied. Slightly more than half (52.4 percent) of the lands
bordering this unit are either owned or selected (but not yet conveyed)
by Alaska Natives. The majority (89 percent) of the proposed critical
habitat within this unit is located within State of Alaska waters, a
small portion which (41.0 km\2\, 15.8 mi\2\) is also located within the
boundaries of the Tugidak Island State Critical Habitat area.
The Kodiak, Kamishak, Alaska Peninsula Unit contains all the PCEs
essential for the conservation of the southwest Alaska DPS of the
northern sea otter. Special management considerations and protections
may be needed to minimize the risk of oil and other hazardous-material
spills from commercial shipping within this region.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et. al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
In addition, under section 7(a)(4) of the Act, Federal agencies
must confer with the Service on any agency action that is likely to
result in destruction or adverse modification of proposed critical
habitat.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect the southwest Alaska DPS of the
northern sea otter or its designated critical habitat require section 7
consultation under the Act. Activities on State, Tribal, local, or
private lands requiring a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the
Act) or involving some other Federal action (such as funding from the
Federal Highway Administration, Federal Aviation Administration, or the
Federal Emergency Management Agency) are subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local, or private lands
that are not federally funded or authorized do not require section 7
consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
PCEs to an extent that appreciably reduces the conservation value of
critical habitat for the southwest Alaska DPS of the northern sea
otter.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the southwest Alaska DPS of the northern sea otter
include, but are not limited to:
[[Page 76464]]
(1) Actions that would directly impact the PCEs that provide
protection from marine predators. Such activities could include, but
are not limited to, dredging, filling, and construction of docks,
seawalls, pipelines, or other structures. Loss of the PCEs could result
in increased predation pressure on the remaining sea otter population,
and potentially affect the conservation of the DPS.
(2) Actions that would reduce the availability of sea otter prey
species. Such activities could include, but are not limited to,
dredging, filling, construction of docks, seawalls, pipelines, or other
structures, and development of new fisheries for sea otter prey
species. Otters that are using critical habitat for protection from
marine predators must also be able to feed in these areas. Activities
that reduce availability of prey may cause otters to forage outside of
these protective areas, thus increasing their vulnerability to
predators.
(3) Actions that would render critical habitat areas unsuitable for
use by sea otters. Such activities could include, but are not limited
to, human disturbance or pollution from a variety of sources, including
discharges from oil and gas drilling and production or spills of crude
oil, fuels, or other hazardous materials from vessels, primarily in
harbors or other construction ports for marine vessels. While it is not
legal to discharge fuel or other hazardous materials, it does happen
more often in these areas than in other areas. These activities could
displace sea otters from areas that provide protection from marine
predators.
Exemptions and Exclusions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
Eareckson Air Station, located on Shemya Island within the western
Aleutian unit has a completed INRMP that was last updated in 2007. This
INRMP recognizes the importance of kelp beds to sea otters (U.S. Air
Force 2007, p. 39), and notes that the only impacts to kelp may be from
occasional barge traffic. In addition to Eareckson, the Air Force has a
completed INRMP for 4 inactive sites (Nikolski, Driftwood Bay, Port
Moller, and Port Heiden) within the range of the southwest Alaska DPS
(U.S. Air Force 2001). All of these sites were deactivated between 1977
and 1978, and either demolished or removed between 1988 and 1994. Of
these, the Port Heiden site is the only one that includes shoreline
areas. All critical habitat described in this proposal occurs below the
mean high tide line and is therefore not within the boundaries of the
Department of Defense facility. Therefore, there are no Department of
Defense lands with a completed INRMP within the proposed critical
habitat designation.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If, based on
this analysis, we make the determination that the benefits of excluding
a particular area outweigh the benefits of including it in the
designation, then we can exclude the area only if such exclusion would
not result in the extinction of the species.
Under section 4(b)(2) of the Act, we must consider all relevant
impacts, including economic impacts. We consider a number of factors in
a section 4(b)(2) analysis. For example, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. We also consider whether the
landowners have developed any habitat conservation plans (HCPs) for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the southwest
Alaska DPS of the northern sea otter are not owned or managed by the
Department of Defense, there are currently no HCPs for the southwest
Alaska DPS of the northern sea otter, and the proposed designation does
not include any tribal lands or trust resources.
We anticipate no impact to national security, Tribal lands, or HCPs
from this proposed critical habitat designation. Based on the best
available information, we believe that all of these proposed critical
habitat units contain the features essential to the southwest Alaska
DPS of the northern sea otter. At this time, we have not analyzed areas
for which the benefits of exclusion outweigh the
[[Page 76465]]
benefits of inclusion; therefore we are not identifying any specific
exclusions for the final rule designating critical habitat for the DPS.
However, during the development of a final designation, we will be
considering economic and other relevant impacts and additional
conservation plans, if available, public comments, and other new
information such that areas may be excluded from the final critical
habitat designation under section 4(b)(2) of the Act.
Economics
Section 4(b)(2) of the Act allows the Secretary to exclude areas
from critical habitat for economic reasons if the Secretary determines
that the benefits of such exclusion exceed the benefits of designating
the area as critical habitat. However, this exclusion cannot occur if
it will result in the extinction of the species concerned.
In compliance with section 4(b)(2) of the Act, we are preparing an
analysis of the economic impacts of proposing critical habitat for the
southwest Alaska DPS of the northern sea otter to evaluate the
potential economic impact of the designation. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. At that time,
copies of the draft economic analysis will be available for downloading
from the Internet at http://www.regulations.gov, or from the Marine
Mammals Management Office (see FOR FURTHER INFORMATION CONTACT). We may
exclude areas from the final rule based on the information in the
economic analysis.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on our specific
assumptions and conclusions in this proposed designation of critical
habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days of the date of publication of this
proposal (see the DATES section). Send your request to the person named
in the FOR FURTHER INFORMATION CONTACT section. We will schedule public
hearings on this proposal, if any are requested, and announce the
dates, times, and places of those hearings, as well as how to obtain
reasonable accommodations, in the Federal Register and local newspapers
at least 15 days before the first hearing.
Editorial Changes to the Table at 50 CFR 17.11(h)
We also propose certain editorial changes to the northern sea
otter's entry in the List of Endangered and Threatened Wildlife at 50
CFR 17.11(h). First, we would update the entry to accurately reflect
the citation of the special rule for this DPS, which was published on
August 15, 2006, at 71 FR 46864. In that final rule, we inadvertently
neglected to update the entry to note the special rule at 50 CFR
17.40(p). Second, we are providing the ``When Listed'' date for the
entry. That date was not included when we published the final rule
listing the southwest Alaska DPS of the northern sea otter as
threatened (70 CFR 46366). These editorial changes would help ensure
the entry for the northern sea otter in the List of Endangered and
Threatened Wildlife at 50 CFR 17.11(h) is complete and accurate.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this proposed rule under
Executive Order 12866 (E.O. 12866). OMB bases its determination upon
the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and E.O.
12866. This draft economic analysis will provide the required factual
basis for the RFA finding. Upon completion of the draft economic
analysis, we will announce availability of the draft economic analysis
of the proposed designation in the Federal Register and reopen the
public comment period for the proposed designation. We will include
with this announcement, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provide the necessary opportunity for public comment.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
[[Page 76466]]
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(b) We do not believe that this rule would significantly or
uniquely affect small governments because the areas being proposed for
critical habitat designation occur within State of Alaska waters. The
State of Alaska does not fit the definition of ``small governmental
jurisdiction.'' Waters adjacent to Native-owned lands are still owned
and managed by the State of Alaska. In most cases, development around
Native villages is happening with funding from Federal or State sources
(or both). Therefore, a Small Government Agency Plan is not required.
However, we will further evaluate this issue as we conduct our economic
analysis, and review and revise this assessment as warranted.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the southwest Alaska DPS of the northern sea otter in a
takings implications assessment. The takings implications assessment
concludes that this proposed designation of critical habitat for the
southwest Alaska DPS of the northern sea otter does not pose
significant takings implications for lands within or affected by the
designation.
Federalism
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed critical habitat designation with
appropriate State resource agencies in Alaska. The designation of
critical habitat in areas currently occupied by the southwest Alaska
DPS of the northern sea otter imposes no additional restrictions to
those currently in place and, therefore, has little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments because the areas that
contain the features essential to the conservation of the species are
more clearly defined, and the primary constituent elements of the
habitat necessary to the conservation of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the southwest Alaska DPS of the
northern sea otter.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This determination
was upheld by the Circuit Court of the United States for the Ninth
Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one
[[Page 76467]]
of the methods listed in the ADDRESSES section. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. As all the proposed critical habitat
units occur seaward from the mean high tide line, we have determined
that there are no tribal lands occupied at the time of listing that
contain the features essential for the conservation, and no tribal
lands essential for the conservation, of the southwest Alaska DPS of
the northern sea otter. Therefore, we have not proposed designation of
critical habitat for the southwest Alaska DPS of the northern sea otter
on tribal lands.
We do not expect the proposed critical habitat to have any impact
on tribal subsistence activities. All subsistence hunting would take
place in or on State lands or waters. Unless subsistence hunting is
determined to be ``materially and negatively impacting the DPS,'' then
harvest would not be regulated.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
Offshore oil and gas development are under consideration in the Lease
Sale Area 92 in the North Aleutian Basin region immediately offshore
from the three subunits of the Bristol Bay proposed critical habitat
unit. We do not expect this proposed rule to significantly affect
energy supplies, distribution (including shipping channels), or use
because most oil and gas development activities would not overlap with
the habitats used by northern sea otters, and we would not expect the
activities to cause significant alteration of the PCEs. Any proposed
development project likely would have to undergo section 7 consultation
to ensure that the actions would not destroy or adversely modify
designated critical habitat. Consultations may entail modifications to
the project to minimize the potential adverse effects to northern sea
otter critical habitat. A spill-response plan would have to be
developed to minimize the chance that a spill would have negative
effects on sea otters or critical habitat. However, we conduct
thousands of consultations every year throughout the United States, and
in almost all cases, we are able to accommodate both project and
species' needs. We expect that to be the case here. Therefore, this
action is not a significant energy action, and no Statement of Energy
Effects is required. However, we will further evaluate this issue as we
conduct our economic analysis, and review and revise this assessment as
warranted.
References Cited
A complete list of all references cited in this proposed rulemaking
is available upon request from the Field Supervisor, Marine Mammals
Management Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary author of this package is the Marine Mammals Management
Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road,
Anchorage, AK 99503.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Otter, northern sea''
under ``MAMMALS'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
---------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Otter, northern sea............ Enhydra lutris U.S.A., (AK, WA).. Southwest Alaska, T.............. August 9, 2005.... 17.95(a) 17.40(p)
kenyoni. from Attu Island
to Western Cook
Inlet, including
Bristol Bay, the
Kodiak
Archipelago, and
the Barren
Islands.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 76468]]
3. In Sec. 17.95, amend paragraph (a) by adding an entry for
``Northern Sea Otter (Enhydra lutris kenyoni), Southwest Alaska
Distinct Population Segment,'' in the same alphabetical order that the
species appears in the table at Sec. 17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Northern Sea Otter (Enhydra lutris kenyoni), Southwest Alaska Distinct
Population Segment
(1) Critical habitat units are in Alaska, as described below.
(2) The primary constituent elements of critical habitat for the
southwest Alaska distinct population segment (DPS) of the northern sea
otter are:
(i) Shallow, rocky areas where marine predators are less likely to
forage, which are in waters less than 2 m (6.6 ft) in depth;
(ii) Nearshore waters within 100 m (328.1 ft) from the mean high
tide line; and
(iii) Kelp forests, which occur in waters less than 20 m (65.6 ft)
in depth.
(iv) Prey resources within the areas identified by PCEs 1-3 that
are present in sufficient quantity and quality to support the energetic
requirements of the species.
(3) Critical habitat does not include manmade structures
(including, but not limited to, docks, seawalls, pipelines, or other
structures) and the land on which they are located existing within the
boundaries on the effective date of this rule.
(4) Critical habitat map units. Boundaries of critical habitat were
derived from GIS data layers of hydrographic survey data developed by
the National Oceanic and Atmospheric Administration. To estimate the
size of each critical habitat unit, the data were projected into Alaska
Standard Albers Conical Equal Area on the North American Datum of 1983.
Given the large geographic range of this DPS, some two-dimensional
areas appear as one-dimensional features at these map scales.
(5) Note: Index Map for critical habitat for the southwest Alaska
DPS of the northern sea otter follows:
[GRAPHIC] [TIFF OMITTED] TP16DE08.001
[[Page 76469]]
(6) Unit 1: Western Aleutian. All contiguous waters from the mean
high tide line to the 20-m (65.6-ft) depth contour as well as waters
within 100 m (328.1 ft) of the mean high tide line that occur adjacent
to the following islands: Adak, Agattu, Alaid, Amatignak, Amchitka,
Amlia, Amukta, Anagaksik, Asuksak, Atka, Attu, Aziak, Bobrof, Buldir,
Carlisle, Chagula, Chuginadak, Chugul, Crone, Davidof, Elf, Gareloi,
Great Sitkin, Herbert, Igitkin, Ilak, Kagalaska, Kagamil, Kanaga, Kanu,
Kasatochi, Kavalga, Khvostof, Kiska, Koniuji, Little Kiska, Little
Sitkin, Little Tanaga, Nizki, Ogliuga, Oglodak, Rat, Sadatanak,
Sagchudak, Salt, Seguam, Segula, Semisopochnoi, Shemya, Skagul,
Tagadak, Tagalak, Tanaga, Tanaklak, and Ulak.
(7) Unit 2: Eastern Aleutian. All contiguous waters from the mean
high tide line to the 20-m (65.6-ft) depth contour as well as waters
within 100 m (328.1 ft) of the mean high tide line that occur adjacent
to the following islands: Aiktak, Akutan, Amaknak, Arangula, Atka,
Avatanak, Baby Islands, Bogoslof, Egg, Hog, Kaligagan, Rootok, Samalga,
Sedanka, Tigalda, Ugamak, Umnak, Unalaska, Unalga, and Vsevidof.
(8) Unit 3: South Alaska Peninsula. All contiguous waters from the
mean high tide line to the 20-m (65.6-ft) depth contour as well as
waters within 100 m (328.1 ft) of the mean high tide line that occur
adjacent to the Alaska Peninsula from False Pass (54.242[deg] N,
163.363[deg] W) to Castle Cape (56.242[deg] N, 158.117[deg] W), and
adjacent to the following islands: Andronica, Atkins, Big Koniuji,
Bird, Brother, Caton, Chankliut, Chernabura, Cherni, Chiachi, Deer,
Dolgoi, Egg, Goloi, Guillemot, Inner Iliask, Jacob, Karpof, Korovin,
Little Koniuji, Mitrofania, Nagai, Near, Outer Iliask, Paul, Peninsula,
Pinusuk, Poperechnoi, Popof, Road, Sanak, Shapka, Simeonof, Spectacle,
Spitz, Turner, Ukolnoi, Ukolnoi, Unga, and Unimak Island from Scotch
Cap (54.390[deg] N, 164.745[deg] W) to False Pass.
(9) Unit 4: Bristol Bay. This unit contains three subunits:
(i) Subunit 4a: Amak Island. All contiguous waters from the mean
high tide line to the 20-m (65.6-ft) depth contour as well as waters
within 100 m (328.1 ft) of the mean high tide line that occur adjacent
to Amak Island.
(ii) Subunit 4b: Izembek Lagoon. All waters from mean high tide
line that occur within the polygon bounded by Glen, Operl, and Neumann
Islands to the north and the Alaska Peninsula to the south, and further
defined by the following latitude/longitude coordinates: 55.249[deg] N,
162.990[deg] W; 55.255[deg] N, 162.984[deg] W from Cape Glazenap to
Glen Island; 55.324[deg] N, 162.901[deg] W; 55.333[deg] N, 162.888[deg]
W from Glen Island to Operl Island; 55.409[deg] N, 162.683[deg] W;
55.408[deg] N, 162.621[deg] W from Operl Island to Neumann Island; and
55.447[deg] N, 162.582[deg] W; 55.447[deg] N, 162.577[deg] W from
Neumann Island to Moffet Point.
(iii) Subunit 4c: Port Moller/Herendeen Bay. All waters from mean
high tide line that occur within the polygon bounded by Walrus Island
to the north and the Alaska Peninsula to the south, and further defined
by the following latitude/longitude coordinates: 56.000[deg] N,
160.877[deg] W; 56.020[deg] N, 160.854[deg] W from Point Edward to
Walrus Island; and 56.020[deg] N, 160.805[deg] W; 55.979[deg] N,
160.584[deg] W from Wolf Point to Entrance Point.
(10) Unit 5: Kodiak, Kamishak, Alaska Peninsula. All contiguous
waters from the mean high tide line to the 20-m (65.6-ft) depth contour
as well as waters within 100 m (328.1 ft) of the mean high tide line
that occur adjacent to the Alaska Peninsula from Castle Cape (56[deg]
14.5' N, 158[deg] 7.0' W) eastward to Cape Douglas (58.852[deg] N,
153.250[deg] W), and northward in Cook Inlet to Redoubt Point
(60.285[deg] N, 152.417[deg] W), and adjacent to the following islands:
Afognak, Aghik, Aghiyuk, Aiaktalik, Akhiok, Aliksemik, Amook, Anowik,
Ashiak, Atkulik, Augustine, Ban, Bare, Bear, Central, Chirikof, Chisik,
Chowiet, Dark, David, Derickson, Dry Spruce, Eagle, East Amatuli, East
Channel, Garden, Geese, Hartman, Harvester, Hydra, Kak, Kateekuk,
Kiliktagik, Kiukpalik, Kodiak, Kulik, Long, Marmot, Miller, Nakchamik,
Ninagiak, Nord, Nordyke, Poltava, Raspberry, Sally, Shaw, Shuyak,
Sitkalidak, Sitkanak, Spruce, Sud, Sugarloaf, Suklik, Sundstrom,
Sutwick, Takli, Terrace, Tugidak, Twoheaded, Ugak, Ugalushik, Uganik,
Unavikshak, Ushagat, West Amatuli, West Augustine, West Channel, Whale,
and Woody.
* * * * *
Dated: December 1, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-28897 Filed 12-15-08; 8:45 am]
BILLING CODE 4310-55-P