2011 Federal Register, 76 FR 53381; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 166 (Friday, August 26, 2011)

[Federal Register Volume 76, Number 166 (Friday, August 26, 2011)]
[Proposed Rules]
[Pages 53381-53396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21556]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-FHC-2011-0046; 94310-1337-0000-D2]
RIN 1018-AX51

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
remove the regulations that govern the southern sea otter (Enhydra
lutris nereis) translocation program, including the establishment of an
experimental population of southern sea otters, and all associated
management actions. We are also proposing to amend the Authority
citation for 50 CFR part 17 by removing the reference to Public Law 99-
625, the statute that authorized the Secretary to promulgate
regulations establishing the southern sea otter translocation program.
Removal of the regulations will terminate the program. We are proposing
this action because we believe that the southern sea otter
translocation program has failed to fulfill its purpose, as outlined in
the southern sea otter translocation plan, and that our recovery and
management goals for the species cannot be met by continuing the
program. Our conclusion is based, in part, on an evaluation of the
program against specific failure criteria established at the program's
inception. This proposed action would terminate the designation of the
experimental population of southern sea otters, abolish the southern
sea otter translocation and management zones, and eliminate the current
requirement to remove southern sea otters from San Nicolas Island and
the management zone. This proposed rule would also eliminate future
actions, required under the current regulations, to capture and
relocate southern sea otters for the purpose of establishing an
experimental population, and to remove southern sea otters in
perpetuity from an ``otter-free'' management zone. As a result, it
would allow southern sea otters to expand their range naturally into
southern California waters. We have prepared a

[[Page 53382]]

revised draft supplemental environmental impact statement (SEIS) and an
initial regulatory flexibility analysis (IRFA) to accompany this
proposed rule.

DATES: We will consider comments on the proposed rule, associated
revised draft SEIS (which includes a revised draft translocation
program evaluation as Appendix C), and the IRFA that are received or
postmarked on or before October 24, 2011 or at a public hearing. We
will hold two public informational open houses from 5 p.m. to 6 p.m.,
each followed by a public hearing from 6 p.m. to 8 p.m., on October 4,
2011, and October 6, 2011, at the locations identified in the ADDRESSES
section.

ADDRESSES: Written Comments: You may submit comments on the proposed
rule, the revised draft SEIS, and the IRFA by one of the following
methods:
[cir] Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R8-FHC-
2011-0046, which is the docket number for this rulemaking. Then click
on the Search button. On the resultant screen, you may submit a comment
by clicking on ``Submit a Comment.''
[cir] By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R8-FHC-2011-0046; Division of Policy and
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
[cir] In person: Individuals may attend a public hearing and
present oral or written comments, or both, on the proposed rule,
revised draft SEIS, or the IRFA.
We will not accept e-mail or faxes. We will post all information
received 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 details).
Copies of Documents: The proposed rule, revised draft SEIS, and
IFRA are available by the following methods:
[cir] Federal eRulemaking Portal: Go to http://www.regulations.gov.
In the Enter Keyword or ID box, enter FWS-R8-FHC-2011-0046, which is
the docket number for this rulemaking. Then click on the Search button.
On the resultant screen, you may view supporting documents by clicking
on the ``Open Docket Folder'' icon.
[cir] Agency Web site: You can view supporting documents on our Web
site at http://www.fws.gov/ventura/.
[cir] In person: You can make an appointment, during normal
business hours, to view the documents, comments, and materials in
person at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife
Office, 2493 Portola Road, Suite B, Ventura, CA 93003-7726; by
telephone (805/644-1766); by facsimile (805/644-3958); or by visiting
our Web site at http://www.fws.gov/ventura/. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Services (FIRS) at 800-877-8339.
Public Hearings: We will hold two public informational open houses,
each followed by a public hearing, at Fleischmann Auditorium, Santa
Barbara Museum of Natural History, 2559 Puesta Del Sol, Santa Barbara,
CA 93105 on October 4, 2011, and at La Feliz Room, Seymour Marine
Discovery Center, Long Marine Laboratory, 100 Shaffer Road, Santa Cruz,
CA 95060 on October 6, 2011. See the DATES section above for the times
of these hearings.

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

SUPPLEMENTARY INFORMATION:

Public Comments

We wish to ensure that any final action resulting from this
proposed rule will be based on information that is as accurate as
possible. Therefore, we invite tribal and governmental agencies, the
scientific community, industry, and other interested parties to submit
comments or recommendations concerning any aspect of this proposed
rule, the revised draft SEIS, or the IFRA. Comments should be as
specific as possible. In addition, please include sufficient
information with your comments to allow us to authenticate any
scientific or commercial data you reference or provide. In particular,
we seek comments concerning the following:
(1) The reasons why the southern sea otter translocation program,
including the management and translocation zones and associated
regulations, should or should not be terminated, including information
that supports the need for any changes to the proposed rule;
(2) Current or planned activities in the subject area and their
possible effects on southern sea otters that have not been adequately
considered in the proposed rule, revised draft SEIS, and IRFA;
(3) Any foreseeable economic or other impacts resulting from the
proposed termination of the southern sea otter translocation program
that have not been adequately considered in the proposed rule, revised
draft SEIS, and IRFA;
(4) Any substantive information on real or potential effects on
southern sea otters of the proposed termination of the southern sea
otter translocation program that have not been adequately considered in
the proposed rule, revised draft SEIS, and IRFA; and
(5) Any actions that could be considered in lieu of, or in
conjunction with, the proposed rule that would provide equivalent
opportunity for the recovery of the southern sea otter.
Prior to issuing a final rule on this proposed action, we will take
into consideration all comments and any additional information we
receive. Such information may lead to a final rule that differs from
this proposal. All comments and recommendations, including names and
addresses, will become part of the supporting record.
You may submit your comments and materials concerning the proposed
rule, revised draft SEIS, or IRFA by one of the methods listed in the
ADDRESSES section. We will not accept comments sent by e-mail or fax or
to an address not listed in the ADDRESSES section. Finally, we will not
consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in the DATES
section. Comments must be submitted to http://www.regula- tions.gov
before midnight (Eastern Time) on the date specified in the DATES
section.
We will post your entire comment--including your personal
identifying information--at http://www.regulations.gov. If your written
comment includes your street address, phone number, or e-mail address,
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 hardcopy submissions at http://www.regulations.gov. Please note that comments submitted to this Web
site are not immediately viewable. When you submit a comment, the
system receives it immediately. However, the comment will not be
publicly viewable until we post it, which might not occur until several
days after submission.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection at http://www.regulations.gov, or by

[[Page 53383]]

appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Ventura Fish and Wildlife Office (see ADDRESSES and
FOR FURTHER INFORMATION CONTACT).

Public Hearing

We have scheduled two formal public hearings to afford the general
public and all interested parties with an opportunity to make formal
oral comments or to submit written comments in person on the proposed
rule, revised draft SEIS, or IRFA.
We will hold the public hearings at the locations listed in
ADDRESSES on the dates listed in DATES. The public hearings will last
from 6 p.m. to 8 p.m. We will hold a public informational open house
prior to each hearing from 5 pm to 6 pm to provide an additional
opportunity for the public to gain information and ask questions about
the proposed rule. This open house session should assist interested
parties in preparing substantive comments on the proposed rule.
Persons needing reasonable accommodations in order to attend and
participate in a public hearing should contact the Ventura Fish and
Wildlife Office, at the address or phone number listed in the FOR
FURTHER INFORMATION CONTACT section as soon as possible. In order to
allow sufficient time to process requests, please contact us for
assistance no later than one week before the hearing.
Written comments submitted during the comment period receive equal
consideration with comments presented at a public hearing. All comments
we receive at the public hearing, both verbal and written, will be
considered in making our final decision.

Background

Previous Federal Actions

On January 14, 1977, we listed the southern sea otter as a
threatened species under the ESA (16 U.S.C. 1531 et seq.), on the basis
of its small population size, its greatly reduced range, and the
potential risk from oil spills (42 FR 2965). We established a recovery
team for the species in 1980, and approved a recovery plan on February
3, 1982. In the recovery plan, we identified the translocation of
southern sea otters as an effective and reasonable recovery action,
acknowledging that a translocated southern sea otter colony could
impact shellfish fisheries that had developed in areas formerly
occupied by southern sea otters. The objectives of southern sea otter
translocation, as stated in the 1982 recovery plan, included: (1)
Establishing a second colony (or colonies) sufficiently distant from
the parent population such that a smaller portion of the southern sea
otter range would be affected in the event of a large-scale oil spill;
and (2) establishing a database for identifying the optimal sustainable
population level for the southern sea otter. We anticipated that
translocation would ultimately result in a larger population size and a
more continuous distribution of animals throughout the southern sea
otter's historic range.
Under the ESA, the Secretary has inherent authority to establish
new or translocated populations of listed species. Section 10(j) of the
ESA provides the Secretary with additional flexibility to relax the
protective provisions of the ESA when translocating a population of a
listed species by allowing the Secretary to designate the translocated
population as an experimental population. However, the southern sea
otter is protected under both the ESA and the MMPA, and at the time,
the MMPA did not contain similar provisions. This inconsistency was
resolved in the case of the southern sea otter translocation program by
the passage of Public Law (Pub. L.) 99-625 (Fish and Wildlife Programs:
Improvement; Section 1. Translocation of California Sea Otters) on
November 7, 1986, which specifically authorized development of a
translocation plan for southern sea otters administered in cooperation
with the affected State.
If the Secretary of the Interior chose to develop a translocation
plan under Pub. L. 99-625, the plan was required to include: (1) The
number, age, and sex of southern sea otters proposed to be relocated;
(2) the manner in which southern sea otters were to be captured,
translocated, released, monitored, and protected; (3) specification of
a zone into which the experimental population would be introduced
(translocation zone); (4) specification of a zone surrounding the
translocation zone that did not include the range of the parent
population or adjacent range necessary for the recovery of the species
(management zone); (5) measures, including an adequate funding
mechanism, to isolate and contain the experimental population; and (6)
a description of the relationship of the implementation of the plan to
the status of the species under the ESA and determinations under
section 7 of the ESA. The purposes of the management zone were to: (1)
Facilitate the management of southern sea otters and the containment of
the experimental population within the translocation zone; and (2)
prevent, to the maximum extent feasible, conflicts between the
experimental population and fishery resources within the management
zone. Any southern sea otter found within the management zone was to be
treated as a member of the experimental population. We were required to
use all feasible, nonlethal means to capture southern sea otters in the
management zone and to return them to the translocation zone or to the
range of the parent population.
On August 15, 1986, we published a proposed rule to establish an
experimental population of southern sea otters at San Nicolas Island,
Ventura County, California, in conjunction with a management zone from
which sea otters would be excluded (51 FR 29362). Concurrently, we
released a draft environmental impact statement (EIS) that analyzed the
impacts of six alternatives, which included establishing a program to
translocate southern sea otters from their then-current range along the
central coast of California to areas of the northern coast of
California, the southern coast of Oregon, or San Nicolas Island off the
coast of southern California. We identified translocation to San
Nicolas Island as our preferred alternative, with the management zone
including the coastline from Point Conception to the Mexican border and
all of the offshore islands except San Nicolas Island. On May 8, 1987,
we made available our final EIS (52 FR 17486). A detailed translocation
plan meeting the requirements of Public Law 99-625 was included as an
appendix to the final EIS. On August 11, 1987, we published a final
rule providing implementing regulations for the translocation program
(52 FR 29754); these regulations are codified at 50 CFR 17.84(d). These
regulations define the boundaries of the translocation and management
zones, provide the framework for the program, and include a set of
criteria for determining if the translocation should be considered a
failure.

Implementation of the Translocation Program

The purpose of the southern sea otter translocation program was to:
(1) Implement a primary recovery action for the southern sea otter; and
(2) obtain data for assessing southern sea otter translocation and
containment techniques, population dynamics, ecological relationships
with the nearshore community, and effects on the donor population of
removing individual southern sea otters for translocation (52 FR 29754;
August 11, 1987). The translocation of southern sea otters was intended
to advance southern

[[Page 53384]]

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

[[Page 53385]]

announced that we intended to reinitiate consultation under section 7
of the ESA for the containment program and to begin the process of
evaluating the failure criteria established for the translocation
program. Subsequent to these meetings, the group of technical
consultants (a body composed of representatives from the fishery and
environmental communities, as well as State and Federal agencies) to
the Southern Sea Otter Recovery Team was expanded to assist in
evaluating the translocation program. We provided updates on the
translocation program and the status of the southern sea otter
population to the California Coastal Commission, the Marine Mammal
Commission, and the California Fish and Game Commission in 1998 and
1999.
In March 1999, we distributed a draft evaluation of the
translocation program to interested parties for their comment. The
draft document included the recommendation that we declare the
translocation program a failure because fewer than 25 sea otters
remained in the translocation zone, and reasons for the translocated
sea otters' emigration or mortality could not be identified or
remedied. We received comments from State and Federal agencies and the
public following release of the draft for review. Some comments
supported declaring the translocation program a failure, while others
opposed it. The majority of respondents cited new information that
became available after publication of our 1987 EIS and record of
decision for the program. Many respondents encouraged us to look at new
alternatives that were not identified in our 1987 EIS or corresponding
implementing regulations.
During the same period, we prepared a draft biological opinion,
pursuant to section 7 of the ESA, evaluating the containment aspects of
the southern sea otter translocation program. We distributed the draft
to interested parties for comment on March 19, 1999, and issued a final
biological opinion on July 19, 2000. Our reinitiation of consultation
was prompted by the receipt of substantial new information on the
population status, behavior, and ecology of the southern sea otter that
revealed adverse effects of containment that were not previously
considered. In the biological opinion, we cited the following
information and circumstances as prompting reinitiation:
(1) In 1998 and 1999, southern sea otters moved into the management
zone in much greater numbers than in previous years;
(2) Analysis of carcasses indicated that southern sea otters were
being exposed to environmental contaminants and diseases that could be
affecting the health of the population throughout California;
(3) Rangewide counts of southern sea otters indicated that numbers
were declining;
(4) Recent information, in particular the observed effects of the
Exxon Valdez oil spill, indicated that southern sea otters at San
Nicolas Island would not be isolated from the potential effects of a
single large oil spill; and
(5) The capture and release of large groups of southern sea otters
could result in substantial adverse effects on the parent population.
The biological opinion concluded with our assessment that
continuation of the containment program would likely jeopardize the
continued existence of the species on the grounds that: (1) Reversal of
the southern sea otter's population decline is essential to the
survival and recovery of the species, whereas continuation of
containment could cause the direct deaths of individuals and disrupt
social behavior in the parent range, thereby exacerbating population
declines; and (2) expansion of the southern sea otter's distribution is
essential to the survival and recovery of the species, whereas
continuation of the containment program would artificially restrict the
range to the area north of Point Conception, thereby increasing the
vulnerability of the species to oil spills, disease, and stochastic
events.
On July 27, 2000, we published in the Federal Register a notice of
intent to prepare a supplement to our 1987 EIS on the southern sea
otter translocation program (65 FR 46172), and on January 22, 2001, we
issued a policy statement regarding the capture and removal of southern
sea otters in the designated management zone (66 FR 6649). Based on our
July 2000 biological opinion, we determined that the containment of
southern sea otters was not consistent with the requirement of the ESA
to avoid jeopardy to the species. The notice advised the public that we
would not capture and remove southern sea otters from the management
zone pending completion of our reevaluation of the southern sea otter
translocation program, which would include the preparation of a
supplement to our 1987 EIS and release of a final evaluation of the
translocation program that contains an analysis of failure criteria.
Public scoping meetings were announced in the July 27, 2000, issue
of the Federal Register (65 FR 46172) and were held in Santa Barbara,
California, on August 15, 2000, and in Monterey, California, on August
17, 2000. We also convened the technical consultants to the Southern
Sea Otter Recovery Team on September 26, 2000, to discuss scoping of
the supplement. In April 2001, we published a scoping report that
identified alternatives we would consider in the supplement and
summarized comments received during the scoping period.
On April 3, 2003, we made available our Final Revised Recovery Plan
for the Southern Sea Otter (68 FR 16305; USFWS 2003, http://www.fws.gov/ventura/). This document updated the original recovery plan
published in 1982. The revised recovery plan incorporated significant
revisions, including a shift in focus from translocation as a primary
recovery action to efforts to reduce the mortality of prime-aged
animals. Based on the recommendations of the recovery team, the revised
recovery plan concluded that additional translocations were not the
best way to accomplish the objective of increasing the range and number
of southern sea otters in California. According to the revised plan,
range expansion of sea otters in California would occur more rapidly if
the existing population were allowed to recover autonomously than it
would under a recovery program that included actively translocating sea
otters. The revised plan also recommended that it would be in the best
interest of southern sea otter recovery to declare the translocation
program a failure, to discontinue maintenance of an otter-free zone,
and to allow the sea otters currently at San Nicolas Island to remain
there.
On October 7, 2005, we made available a draft SEIS on the
translocation program (70 FR 58737). A draft evaluation of the
translocation program was included as Appendix C. We solicited comments
on both the draft SEIS and the draft evaluation during the public
comment period, which began October 7, 2005 (70 FR 58737), and ended
March 6, 2006 (70 FR 77380). Comments we received during the 5-month
comment period, including those addressing the translocation program
evaluation, are summarized in Appendix G to the revised draft SEIS.
As of December 2010, up to 46 independent southern sea otters have
been counted at San Nicolas Island. Dependent pups are frequently
observed with these animals. Data from quarterly counts indicate that
the population has fluctuated between 13 and 46 individuals since July
1990. One sea otter pup was born at San Nicolas Island during the first
year of the translocation program (1987-88), and new pups have been
observed in each subsequent year. At least 151 pups are known to have

[[Page 53386]]

been born at the island since the program's inception.
At present, it is likely that most, if not all, of the southern sea
otters at San Nicolas Island are offspring of those originally
translocated to the island. This is because the original animals were
translocated more than 2 decades ago, and the average life expectancy
of southern sea otters in the wild is 10 to 15 years. Although it is
possible that sea otters could disperse from the mainland range to San
Nicolas Island, we have no information to indicate that any exchange of
animals between these two locations has occurred subsequent to the
return of many of the translocated sea otters to the mainland range in
the early years of the program. To date, we have gathered a significant
amount of data to assess capture, transport, reintroduction, and
containment techniques. However, the goal of implementing a primary
recovery action for the southern sea otter remains unfulfilled. The
original intention, to create a colony that would provide a safeguard
in the event that the parent southern sea otter population was
adversely affected by a catastrophic event, such as an oil spill, has
not been accomplished.

Availability of Revised Draft SEIS

Concurrent with publication of this proposed rule, we are releasing
a revised draft SEIS. The revised draft SEIS updates and responds to
comments received on the draft SEIS released in 2005, discusses details
of the events of the translocation program from 1982 to the present,
analyzes a range of alternatives for the southern sea otter
translocation program, and includes a detailed draft evaluation of the
program as Appendix C. The preferred alternative in the revised draft
SEIS is to terminate the southern sea otter translocation program and,
further, to allow southern sea otters in the former translocation and
management zones to remain there upon termination of the program.
Allowing sea otters to remain at San Nicolas Island and in the
management zone upon termination of the translocation program is
contrary to 50 CFR 17.84(d)(8)(vi) of the current regulations, which
requires removal of sea otters from both locations if the translocation
program is terminated. This proposed rule would implement the
recommendations of the Final Revised Recovery Plan for the Southern Sea
Otter, which is also the preferred alternative in the revised draft
SEIS. This proposed rule would terminate the southern sea otter
translocation program through removal of the regulations at 50 CFR
17.84(d) that established and govern implementation of the
translocation program. Among the regulatory requirements that would be
eliminated by the removal of 50 CFR 17.84(d), in its entirety, is the
current requirement to remove sea otters from San Nicolas Island and
from the management zone if the translocation program is terminated.

Assessment of Failure Criteria Identified in Translocation Plan

Public Law 99-625 authorized southern sea otter translocation and
provided requirements for a southern sea otter translocation plan
should we pursue such a plan. It did not address the possibility of the
program's failure. As a consequence, it did not specify criteria that
would be used to determine whether the program had failed, nor did it
recommend actions that should be taken in the case of failure. When we
developed the translocation plan and implementing regulations for the
program, we received public comment asking us to define what
constituted failure of the program and what actions we would take if
the program failed. We responded by delineating specific failure
criteria in the 1987 Translocation Plan (52 FR 29754; August 11, 1987).
The purpose of the failure criteria was to identify circumstances
under which we would generally consider the translocation program to
have failed. The five failure criteria were defined before any
translocations of southern sea otters were undertaken and without the
benefit of what we know today about the translocation, containment, and
recovery needs of southern sea otters. The criteria focus on the status
of the translocated population and, in hindsight, do not address all
the circumstances that are relevant to a complete evaluation of the
program. For example, the failure criteria do not address the
possibility that containment might not be successfully accomplished
because of southern sea otters entering the management zone from the
mainland range rather than from the population at San Nicolas Island,
the possibility that the founding population of the San Nicolas Island
colony might be fewer than 70 animals, or even the possibility that an
``established'' population at San Nicolas Island (as defined at 52 FR
29754; August 11, 1987) may be insufficient to attain the recovery
goals established for the program. Similarly, the failure criteria do
not anticipate the possibility that the capture and relocation of sea
otters from the management zone could result in the deaths of some
animals. Ultimately, failure is determined by our inability to attain
the objectives of the translocation program, which are clearly set out
in the final rule for the establishment of an experimental population
of southern sea otters (52 FR 29754; August 11, 1987).
In the draft translocation program evaluation (Appendix C to the
revised draft SEIS), we find that the translocation program meets
failure criterion 2. A summary of our analysis of each failure
criterion in the draft translocation program evaluation is given below.
Criterion 1: If, after the first year following initiation of
translocation or any subsequent year, no translocated southern sea
otters remain within the translocation zone, and the reasons for
emigration or mortality cannot be identified and/or remedied.
Criterion 1 has not been met. Southern sea otters have been
observed in the translocation zone at San Nicolas Island every year
since the beginning of the program.
Criterion 2: If, within 3 years from the initial transplant, fewer
than 25 southern sea otters remain in the translocation zone and the
reason for emigration or mortality cannot be identified and/or
remedied.
Criterion 2 has been met. The initial transplant occurred in August
1987. Within 3 years of the initial transplant (August 1990), a maximum
of 17 sea otters (14 independent animals and 3 pups) resided in the
translocation zone.
We chose to delay declaring the translocation program a failure in
1990 because southern sea otters were reproducing, dispersal into the
management zone had abated, and the California Department of Fish and
Game expressed a desire to continue zonal management of southern sea
otters. Although sea otters at the island continue to reproduce, the
colony remains small to this day; dispersal of sea otters from the
parent range into the management zone is now regularly occurring; and
the California Department of Fish and Game informed us in 1997 that it
would no longer be able to assist us if we resumed capturing sea otters
in the management zone.
We consider emigration from San Nicolas Island to be the primary
reason for the small size of the population (17 sea otters, including
pups) remaining at the island within 3 years of the initial transplant.
Fifty-four (54) translocated sea otters were later detected elsewhere
(either back in the mainland range or in southern California waters).
The number of sea otters resighted in the mainland range (36), despite
the absence of a focused effort to identify them there (efforts were
focused instead at San Nicolas Island and in the management zone),
suggests that additional sea otters

[[Page 53387]]

may have returned without being detected. There is some evidence of sea
otter mortality at San Nicolas Island (three sea otters were found dead
at San Nicolas Island within days of being translocated), but no
additional deaths of translocated sea otters at San Nicolas Island were
verified. Of the animals that remain unaccounted for, it seems likely
that most either emigrated successfully and escaped further detection
or attempted to emigrate but died before reaching suitable habitat.
Although high rates of dispersal had been seen in all earlier sea
otter translocations (Estes et al. 1989), we believed that the
translocation to San Nicolas Island would not result in the significant
dispersal of animals because of the abundance of prey items, the
apparent suitability of the habitat, and the perceived barrier imposed
by the surrounding deep water. After the first year of translocation,
we made significant changes to the program with the intent of
minimizing or eliminating emigration (53 FR 37577; September 27, 1988).
These changes were implemented during the second year of the program,
when we selected younger sea otters for translocation, transported sea
otters more quickly and in smaller groups, abandoned the use of holding
pens at the island, and released newly translocated sea otters in the
vicinity of sea otters already residing at the island. Despite our
efforts, none of these changes appeared to result in a decrease in
emigration. In the final year of the translocation effort, we attempted
to gain more information on sea otter movements by implanting radio
transmitters in sea otters immediately prior to their transport to San
Nicolas Island. Two of the initial three southern sea otters that
received implants died before they could be transported to the island,
causing us to abandon this effort.
We conclude that the translocation program has failed under
criterion 2. We believe that emigration from San Nicolas Island is the
primary reason that substantially fewer than 25 otters remained in the
translocation zone within 3 years of the initial transplant. Although
we modified the program significantly after the first year in an
attempt to reduce emigration and otherwise reduce sea otter mortality
associated with the program, we were unable to remedy the situation.
Therefore, failure criterion 2 has been met.
The fact that the translocation program has failed under criterion
2 does not necessarily mean that the sea otter colony at San Nicolas
Island is destined to disappear. In fact, it appears to have a low
cumulative probability of extinction (Carswell 2008). However, the
final rule establishing the program clearly states, ``The Service does
not consider the mere presence of sea otters in the translocation zone
as an indication that a new population is established'' (52 FR 29754 at
29774; August 11, 1987). The colony would be considered ``established''
when at least 150 southern sea otters resided at the island and the
population had a minimum annual recruitment of 20 animals (52 FR 29754
at 29774; August 11, 1987). The initial high rate of dispersal of
translocated sea otters from San Nicolas Island is the primary cause of
failure under this criterion not only because of its direct effect on
the subsequent size of the San Nicolas Island colony, but also because
of its implications for the recovery strategy at the heart of the
program: the intended function of the San Nicolas Island population as
a self-sustaining ``reserve colony for providing stock to restore
subsequently damaged areas'' in the southern sea otter's range (52 FR
29754 at 29774; August 11, 1987). The high rate of dispersal of
translocated sea otters suggests it is unlikely that the colony will
ever be large enough to supply the numbers of sea otters necessary to
perform a successful translocation and re-establishment of population
in the mainland range if the parent population were reduced or
eliminated by a catastrophic event.
Criterion 3: If, after 2 years following the completion of the
transplant phase, the experimental population is declining at a
significant rate, and the translocated southern sea otters are not
showing signs of successful reproduction (i.e., no pupping is
observed); however, termination of the project under this and the
previous criterion may be delayed, if reproduction is occurring and the
degree of dispersal into the management zone is small enough that the
effort to remove southern sea otters from the management or no-otter
zone would be acceptable to us and the affected State.
We are unable to evaluate whether the program has failed under
criterion 3 because we never reached the minimum number of sea otters
at San Nicolas Island required to complete the transplant phase of the
program. The translocation plan defines the transplant phase as ending
when there are at least 70 healthy southern sea otters of mixed ages
and sexes within the translocation zone and we determine that the
population is increasing due to natural reproduction. Although we
translocated twice this number, we never achieved the requisite core
population of 70 animals.
From a practical perspective, however, the transplant phase ended
when the last sea otter was translocated to the island in 1990. The
population declined at a significant rate from the program's inception
in 1987 to 1993, at which time the number of independent sea otters at
the island was 12. Although pups were observed from 1987 to 1993, there
appeared to be little or no recruitment into the population. The 15 sea
otters at the island in 1993 (12 independent animals and 3 pups) were
fewer than the minimum number (25) required to avoid a declaration of
failure under failure criterion 2; however, under provisions of failure
criterion 3 we could delay termination of the program because pupping
was occurring and dispersal of translocated sea otters into the
management zone had abated.
The experimental population has fluctuated in number since 1993,
and now appears to be increasing overall; reproduction continues to
occur. Although pupping is occurring, it is not certain that the San
Nicolas colony will persist. If it does persist, it will have been
founded on a small subset of the core number of 70 healthy sea otters
of mixed ages and sexes that were intended to found the population, a
fact that has implications for the genetic makeup of the resulting
population. The current rate of emigration from the island is unknown,
but we now know that the deep ocean channels surrounding the island do
not present the anticipated barrier to dispersal.
Criterion 4: If we determine, in consultation with the affected
State and the Marine Mammal Commission, that southern sea otters are
dispersing from the translocation zone and becoming established within
the management zone in sufficient numbers to demonstrate that
containment cannot be successfully accomplished. This standard is not
intended to apply to situations in which individuals or small numbers
of southern sea otters are sighted within the management zone or
temporarily manage to elude capture. Instead it is meant to be applied
when it becomes apparent that, over time (1 year or more), southern sea
otters are relocating from the translocation zone to the management
zone in such numbers that: (1) An independent breeding colony is likely
to become established within the management zone; or (2) they could
cause economic damage to fishery resources within the management zone.
It is expected that we could make this determination within a year,
provided that sufficient information is available.
Technically, criterion 4 has not been met. This criterion clearly
specifies that the program would be declared a failure

[[Page 53388]]

if sea otters moved from the translocation zone and became established
in the management zone. The criterion does not strictly apply if
animals immigrate into the management zone from the parent range.
Nevertheless, beginning in 1998, large groups (50 to 150 individuals)
of sea otters have seasonally moved into the management zone from the
parent range. Since 2006, monthly surveys have counted an average of 40
otters with considerable variation over time (standard deviation of
19) (K.D. Lafferty, USGS, pers. comm. 2011). In January 2011, three
pups were detected, suggesting that a permanent breeding colony may be
establishing itself in the management zone. Commercial fishing
interests contend that local shellfish populations available to the
fishery have been reduced by the presence of these sea otters.
The difficulties associated with sea otter capture and transport,
our concern for the welfare of animals removed from the management
zone, the adverse effects of sea otter containment on the parent
population, and the adverse effects on fisheries are concerns
regardless of whether sea otters enter the management zone from the
parent range or from San Nicolas Island. Although criterion 4 is
specific and applies only to sea otters originating from San Nicolas
Island, our experience with sea otters entering the management zone
from either the parent range or the translocation zone indicates that
successful containment of sea otters, or maintenance of an ``otter-
free'' management zone, cannot be accomplished by simply capturing
animals in the management zone and moving them to another location.
Criterion 5: If the health and well-being of the experimental
population should become threatened to the point that the colony's
continued survival is unlikely, despite Federal and State laws. An
example would be if an overriding military action for national security
was proposed that would threaten to devastate the colony and the
removal of southern sea otters was determined to be the only viable way
of preventing loss of the colony.
Criterion 5 has not been met. The experimental population at San
Nicolas Island, although small and vulnerable, has persisted. There are
no proposed Federal, State, or local actions that threaten to devastate
the colony. The Department of Defense is responsible for the majority
of human activity at San Nicolas Island. They have conferred with us
and given consideration to southern sea otters when developing projects
at San Nicolas Island. To date, no projects have posed a threat to the
colony.

Conclusion

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

Regulatory Environment Upon Termination of the Translocation Program

Public Law 99-625 states that the Service, through the Secretary of
the Interior, ``may'' develop and implement a plan for the relocation
and management of sea otters, and then goes on to specify what must be
included if such a plan is developed. Therefore, termination of the
translocation program and removal of the regulations governing the
program would render the specific provisions of Public Law 99-625
inoperative. The translocation and management zones would be abolished,
and the exemptions under Public Law 99-625 from the duty to consult
under section 7 of the ESA for defense-related activities within the
former translocation zone and for all Federal activities within the
former management zone, as well as the exemption from the incidental
take prohibitions of the ESA and the MMPA for activities within the
former management zone, would end.
Any incidental take by a Federal agency (authorized through the ESA
section 7 process) or by a State or tribal government or private entity
(authorized through the ESA section 10 process) would also have to be
authorized under the MMPA. Under both the ESA and the MMPA, incidental
take is prohibited unless it has been authorized. Section 101(a)(5)(A)
of the MMPA states that we may authorize the taking of small numbers of
marine mammals within a specified geographical region over periods of
not more than 5 consecutive years, provided we find that the total of
such taking during the period will have a negligible impact on the
species or stock. Section 101(a)(5)(D) allows for similar
authorization, for not more than 1 year for the incidental taking by
harassment of only small numbers of marine mammals. Provisions specific
to military readiness activities may also apply to the authorization of
incidental take under the MMPA for defense-related agency actions.
The incidental take authorization provisions under section
101(a)(5) of the MMPA apply to activities other than commercial
fishing. Take incidental to commercial fishing is authorized under
different provisions of the MMPA. However, because of specific
amendments to the provisions under section 118, incidental take of
southern sea otters in commercial fisheries cannot be authorized under
the MMPA. Therefore, incidental take of southern sea otters by
commercial fisheries in southern California waters would be

[[Page 53389]]

prohibited, as it is now throughout the remainder of the range of the
species (north of Point Conception). All intentional take would
continue to be prohibited, as it is under the current regulatory
environment, unless authorized under both the ESA and the MMPA.
Federal agencies proposing actions (including the permitting or
funding of actions proposed by non-Federal entities) that may affect
southern sea otters anywhere in southern California waters, including
all actions planned within the former management zone and defense-
related actions in the former translocation zone, would be required to
consult with the Service under section 7 of the ESA, as they do now
within the remainder of the species' range. Under section 7, we must
determine whether a proposed Federal action is likely to jeopardize the
continued existence of the southern sea otter. Our determination is
made through the issuance of a biological opinion at the conclusion of
the consultation stating our opinion whether the action, if carried out
as proposed, is likely to jeopardize the continued existence of the
species. If we conclude the proposed action would likely result in
jeopardy, we also indicate any reasonable and prudent alternatives to
the proposed action that would meet its intended purpose while avoiding
jeopardy to the southern sea otter. If a proposed action is likely to
jeopardize the continued existence of the southern sea otter, it may
not go forward unless the Federal action agency applies for and is
granted an exemption under section 7(h) of the ESA. If we determine
that the proposed Federal action is not likely to jeopardize the
continued existence of the southern sea otter, we may include an
incidental take statement that exempts take of sea otters incidental to
the proposed action from the take prohibition of section 9 of the ESA.
Our incidental take statement would include terms and conditions that
must be complied with to minimize the effects of any incidental take by
the Federal action agency. In addition, the entity conducting the
action would need to obtain incidental take authorization under the
MMPA (discussed below).
The current exemption under State law for incidental take of
southern sea otters in the management zone would also end once the
translocation program is declared a failure. While California Fish and
Game Code Section 4700 generally prohibits the take of southern sea
otters, section 8664.2 of the Fish and Game Code provides that ``the
taking of a sea otter that is incidental to, and not for the purpose
of, the carrying out of an otherwise lawful activity within the sea
otter management zone * * * is not a violation of the California
Endangered Species Act * * * or Section 4700.'' Section 8664.2 further
provides, ``this section shall become inoperative if the sea otter
translocation experiment is declared a failure pursuant to the
provisions of Public Law 99-625.''
To the extent otherwise allowable under State law, proposed non-
Federal activities in California that would result in take of southern
sea otters if the translocation program is terminated would require an
incidental take permit from the Service under section 10(a)(1)(B) of
the ESA. Among other requirements, an applicant for an incidental take
permit under section 10(a)(1)(B) of the ESA must submit a conservation
plan that we find minimizes and mitigates the impacts of the proposed
take to the maximum extent practicable. In addition, we must find that
the proposed take will avoid appreciably reducing the likelihood of the
survival and recovery of the southern sea otter in the wild.

Economic Analysis

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

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:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listing in the ADDRESSES section. To
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 section where you feel lists or tables would be
useful, etc.

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, this rule
is not a significant regulatory action. The Office of Management and
Budget (OMB) makes the final determination under Executive Order 12866.
OMB bases its determination on the following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA, as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever a Federal agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (such as small businesses, small
organizations, and small government jurisdictions) (5 U.S.C. 601 et
seq.). However, no regulatory flexibility analysis is required if the
head of an agency certifies that the rule would not have a significant
economic impact on a substantial number of small entities. Thus, for a
regulatory flexibility analysis to be required, impacts must exceed a
threshold for ``significant impact'' and a threshold for a
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA
amended the RFA to require Federal agencies to provide a statement of
the factual basis for certifying that a rule would not have a
significant economic impact on a substantial number of small entities.

[[Page 53390]]

Federal courts have held that an RFA analysis should be limited to
impacts on entities subject to the requirements of the regulation, but
not entities that may be indirectly affected by the regulation. This
proposed rule directly affects only southern sea otters and their
regulatory status in southern California waters with respect to the ESA
and MMPA. Economic effects potentially resulting from future regulatory
changes applicable to commercial fisheries and effects of sea otter
range expansion on the nearshore marine environment, including the
availability of certain prey species for harvest by commercial fishers,
are indirect. The Service does not have direct regulatory authority
over marine fisheries. Therefore, there are no direct effects on small
businesses from the proposed termination of the translocation program.
In spite of these rulings, in its guidance to Federal agencies on
conducting screening analyses, the Small Business Administration (SBA)
recommends considering impacts on entities that may be indirectly
affected by the proposed regulation. Therefore, we prepared an Initial
Regulatory Flexibility Analysis (IRFA), which we briefly summarize
below, to accompany this rule.
The Service is proposing to terminate the southern sea otter
translocation program and to allow all sea otters in southern
California waters at the time of the program's termination to remain
there. We are proposing this action because we have concluded, in a
draft translocation program evaluation, that the program has failed to
meet its objectives and that our recovery and management goals for the
species under the ESA and MMPA cannot be met by continuing it. The
Service has management authority for the southern sea otter, which is
listed as ``threatened'' under the ESA and is considered ``depleted''
under the MMPA, and is authorized by regulations (50 CFR 17.84(d)(8))
implementing the translocation program under Pub. L. 99-625 to
promulgate a rule to terminate the translocation program if we
determine the program has failed.
Summary of Economic Analysis
A detailed economic analysis for this proposed rule and associated
alternatives is included in the revised draft SEIS. The following
discussion estimates the baseline and the expected economic effects of
terminating the southern sea otter translocation program.
The purpose of this rule is to propose: To terminate the southern
sea otter translocation program, to allow all sea otters to remain
where they are upon termination of the program, and to remove the
experimental population designation from the sea otters at San Nicolas
Island. This action would allow southern sea otters to recolonize their
historic range throughout southern California. We define the baseline
(status quo) as the current physical and regulatory environment (i.e.,
the biological and socioeconomic environment resulting from management
practices that have been in place since 1993). These practices include
the suspension of containment activities in the management zone. Using
the current physical and regulatory environment (rather than the
environment as it might be today if containment activities had not been
suspended) as the baseline is essential to an accurate characterization
of present conditions and to predictions of how conditions would change
under each of the alternatives under consideration in the revised draft
SEIS. Under baseline (current) conditions, southern sea otter movement
throughout the species' range is not restricted or contained. Under the
proposed rule, containment activities would not be resumed. Southern
sea otters would have the ability, as they have since 1993, to continue
to expand their range into southern California waters southeast of
Point Conception, and to increase in number at San Nicolas Island.
Accordingly, the economic effects of both the baseline and the proposed
rule are the same (in that sea otters are allowed to expand their range
naturally in both cases) except in the case of potential indirect
economic effects on gill and trammel net fisheries stemming from
regulatory changes, which we describe below. This statement should not
be interpreted to mean that economic changes are not expected to occur
as a result of natural range expansion. An expanding sea otter
population will have numerous effects, including effects on certain
commercial and recreational fisheries and the industries that depend on
them. Effects of all the alternatives under consideration in the
revised draft SEIS are examined in detail in that document, including
an alternative that would entail resuming full implementation of the
translocation program and its associated translocation and management
zones (Alternative 1), the economic effects of which we present here
for comparison.
Here and in the revised draft SEIS, we limit the quantitative
analysis to a 10-year time horizon. (In the revised draft SEIS, we
additionally describe long-term economic and other effects, but in
qualitative terms only.) The rationale for limiting the quantitative
analysis to 10 years is based in part on the extent of uncertainty
involved in predicting sea otter range expansion, in part on the
indirect nature of most projected impacts (and hence possible changes
over time in the relationship between sea otter presence and resultant
impacts), and in part on the uncertainty associated with management
regimes and economic conditions beyond 10 years.
The uncertainty involved in predicting range expansion stems from:
(1) The possibility that the southern sea otter range expansion model
(Tinker et al. 2008a), although it is the best available, may not
capture all population dynamics that might ultimately prove to be
relevant to range expansion; and (2) the possibility that future
variation in the vital rates and movements of southern sea otters, on
which predictions are based, will be different from what has been
observed in the past. The uncertainty arising from the indirect nature
of most impacts stems from the fact that (1) any departure from
predicted range expansion will also change associated impacts, and (2)
changes in the ecosystem resulting from the presence of sea otters may
occur differently than anticipated because of changes in a multitude of
other variables unrelated to the presence of sea otters, such as global
climate change, the spread of novel diseases or invasive species, or
human activity (overexploitation of marine organisms, inputs of
pollutants, and so forth). The uncertainty associated with management
regimes and economic conditions results from the fact that (1)
fisheries may open, close, or be subject to permit or gear restrictions
for reasons unrelated to the presence or absence of sea otters, and (2)
commercial fisheries revenues are driven largely by market forces
(which are themselves influenced by the global economic environment)
that determine consumer demand. Because of these manifold sources of
uncertainty, we believe it is unreasonable to attempt to establish a
baseline for the impact topics we consider, and thus to attempt to
quantify impacts, beyond a limited time horizon. Although the choice of
10 years rather than 5 or 15 years is somewhat arbitrary, a review of
past changes in southern sea otter population dynamics and commercial
fisheries landings indicates that a 10-year time horizon represents a
reasonable timeframe within which to quantify impacts. Whether sea
otters would re-occupy other areas of the Southern California

[[Page 53391]]

Bight in subsequent years would be a function of sea otter demographic
rates, food supply, and other variables. Based on past rates of range
expansion, it is expected that sea otters would not be present in most
areas of southern California for decades.
To capture some of the uncertainty involved in forecasting range
expansion, we present range expansion in terms of upper and lower
confidence bounds. To the extent that the range expansion model
captures the key population dynamics and that future variation in vital
rates and movements is not fundamentally different from the range of
variation already observed, these bounds have a 95-percent probability
of encompassing the realized range expansion. Within the 10-year time
horizon, economic effects are projected for two areas where sea otter
numbers are expected to increase under baseline conditions: (1) The
coastline from Point Conception to Carpinteria (lower 95 percent
confidence bound) or Oxnard (upper 95 percent confidence bound), and
(2) San Nicolas Island. We project that an expanding sea otter
population will have economic effects on commercial fisheries (sea
urchin, crab, lobster, and sea cucumber), recreational fisheries
(lobster), and the sea urchin processing industry in southern
California. Assumptions underlying the economic analysis are described
in Chapter 6 of the revised draft SEIS. Numerous other non-economic
effects are expected to occur as a result of sea otter range expansion
within 10 years. We discuss these effects in the revised draft SEIS,
but because these effects are difficult or impossible to quantify in
economic terms, we do not discuss them here.
Baseline. Selected fisheries, both commercial (sea urchin, crab,
lobster, and sea cucumber) and recreational (lobster), would likely be
eliminated in mainland coastline areas predicted to be re-occupied by
sea otters over the next 10 years: Point Conception to Carpinteria
(lower bound) or Oxnard (upper bound). These fisheries are also likely
to be affected, to some degree, by a growing sea otter population at
San Nicolas Island. During this period, commercial sea urchin landings
averaging 56,360 to 61,016 pounds annually along the affected portion
of the mainland coastline are expected to be eliminated. Average annual
landings at San Nicolas Island are expected to be reduced from 351,333
pounds to 324,280 pounds. These losses represent 1 percent and 0.2
percent, respectively, of annual commercial sea urchin landings in
southern California. Commercial lobster landings averaging 54,674 to
75,649 pounds annually along the affected portion of the mainland
coastline are expected to be eliminated. Average annual landings at San
Nicolas Island are expected to be reduced from 41,622 pounds to 38,417
pounds. These losses represent 8 to 11 percent and 0.4 percent,
respectively, of annual commercial lobster landings in southern
California. Commercial crab landings averaging 253,572 to 385,743
pounds annually along the affected portion of the mainland coastline
are expected to be eliminated. Average annual landings at San Nicolas
Island are expected to be reduced from 10,634 pounds to 9,816 pounds.
These losses represent 23 to 35 percent and 0.06 percent, respectively,
of annual commercial crab landings in southern California. Commercial
sea cucumber landings averaging 155,714 to 158,636 pounds annually
along the affected portion of the mainland coastline are expected to be
eliminated. Average annual landings at San Nicolas Island are expected
to be reduced from 53,683 to 49,549 pounds. These losses represent 27
to 28 percent and 1.5 percent, respectively, of annual commercial sea
cucumber landings in southern California. Also during this 10-year
period, the seafood processing industry would be affected by the
declining sea urchin harvest. However, because the decline in sea
urchin harvest represents less than 2 percent of the sea urchin harvest
in southern California over the next 10 years, anticipated impacts on
the seafood processing industry would be negligible.
With respect to the recreational dive industry, lobster dive trips
on commercial passenger fishing vessels along the affected mainland
coastline are negligible. Dive trips at San Nicolas Island are expected
to be reduced from an annual average of 434 to 401. This loss
represents approximately 0.5 percent of total dive trips taken annually
in southern California, assuming divers do not choose to dive at a
different location. In the longer term, those areas re-occupied by sea
otters would likely cease to support commercial and recreational
shellfish fisheries, but the magnitude and timing of this potential
change is unknown.
Economic Effects of Proposed Rule (Alternative 3C). This proposed
rule would not result in economic effects beyond those described above
for baseline conditions, except in the case of potential indirect
economic effects stemming from regulatory changes, namely the
elimination of incidental take exemptions associated with the
management zone upon termination of the translocation program. Federal
agencies planning activities that may affect sea otters in southern
California would be required to consult with the Service under the ESA,
and if their activities would result in take of southern sea otters, to
seek authorization for incidental take under both the ESA and the MMPA.
The economic effects of this change are expected to be negligible in
the context of already existing consultation and permitting
requirements for other endangered or threatened species and marine
mammals under the ESA and MMPA, particularly in light of the fact that
few otherwise legal activities result in take of southern sea otters
and the expectation that sea otters would not be present in most areas
of southern California for decades. If otherwise allowable under
applicable State law, non-Federal activities that would result in take
of southern sea otters in California would require an incidental take
permit from the Service under the ESA and authorization for incidental
take of sea otters under the MMPA. Incidental take of southern sea
otters in commercial fisheries cannot be authorized under the MMPA.
Therefore, incidental take of southern sea otters in commercial
fisheries throughout southern California would be prohibited, as it is
currently prohibited in the remainder of the range of the species
(north of Point Conception, California).
Gill and trammel nets are known to be lethal to sea otters (Herrick
and Hanan 1988; Wendell et al. 1986; Cameron and Forney 2000; Carretta
2001; Forney et al. 2001). Therefore, the regulatory changes associated
with this proposed rule may indirectly affect portions of the
commercial halibut and white seabass fisheries utilizing gill and
trammel net gear. The use of gill and trammel nets is already banned
throughout much of California. With respect to southern California, the
Marine Resources Protection Act of 1990 (California Constitution
Article 10B) prohibits the use of gill and trammel nets in waters less
than 70 fathoms or within 1 mile of the Channel Islands, whichever is
less, and generally within 3 nautical miles offshore of the mainland
coast from Point Arguello to the Mexican border. However, some areas
within southern California waters are characterized by a relatively
shallow shelf that extends beyond the area currently closed to gill net
fishing. The primary fisheries using gill and trammel net gear in these
areas target halibut and white seabass. Effects on these fisheries
would occur if the State acted, in response to regulatory changes
associated with this rule, to extend the existing gill and trammel net

[[Page 53392]]

closure in southern California waters to depths that would be fully
protective of sea otters. Furthermore, effects would occur only in
areas where sea otters are not already fully protected, and likely only
in areas that sea otters were expected to recolonize in the near
future. (A closure to protect sea otters would not likely be imposed in
areas where sea otters did not occur and were not expected to occur in
the near future.) No effects would occur at San Nicolas Island because
incidental take by commercial fisheries is currently prohibited within
the translocation zone and would continue to be prohibited upon
termination of the program.
Estimated annualized costs for the commercial halibut fishery range
from $0 (no additional closure) to $250,000 (immediate closure of the
affected area), representing a loss of 0 to 21 percent to the
commercial halibut fishery in southern California. To calculate the
present value for a 10-year time period, the social discount rates of 3
percent and 7 percent are applied per OMB guidance. The 10-year present
value impact to the commercial halibut fishery would be approximately
$2.2 million discounted at 3 percent or $1.7 million discounted at 7
percent. Estimated annualized costs for the white seabass fishery range
from $0 (no additional closure) to $285,000 (immediate closure of the
affected area), representing a loss of 0 to 42 percent to the
commercial white seabass fishery in southern California. The 10-year
present value impact to the commercial white seabass fishery would be
approximately $2.3 million discounted at 3 percent or $1.7 million
discounted at 7 percent. Estimates of maximum effects represent an
upper bound. Realized effects are likely to be lower because (1) the
State may not impose an immediate closure, (2) participants in the
fishery already using alternate gear would benefit from the increased
availability of halibut and white seabass, and (3) participants in the
fishery using gill and trammel nets may switch gear or choose to fish
elsewhere.
Economic Effects from Enforcement of the Management Zone
(Alternative 1). As discussed, this proposed rule (Alternative 3C)
would not result in any additional economic effects compared to the
baseline, except the potential indirect effects stemming from
regulatory changes summarized above. For comparison purposes, we
present the economic effects that would occur if southern sea otters
were excluded from the management zone through a resumption of zonal
management under Alternative 1. These effects are further detailed in
the revised draft SEIS. Implementation of sea otter containment in the
management zone would affect the coastline southeast of Point
Conception. Sea otters have been seasonally sighted in the Cojo
Anchorage area since 1998. Since 2006, monthly surveys have counted an
average of 40 otters with considerable variation over time (standard
deviation of 19) (K.D. Lafferty, USGS, pers. comm. 2011). The
enforcement of containment in the management zone, if fully successful,
would remove any sea otters from these areas and re-establish an otter-
free management zone, thereby possibly increasing fishery harvests and
also increasing the Service's administrative costs. The cost to the
Service of implementing a zonal management program to contain southern
sea otter range expansion over 10 years would total approximately $4.3
million discounted at 7 percent or $5.6 million discounted at 3
percent.
Effects on fisheries could occur due to (1) increased shellfish
populations resulting from the elimination of sea otter predation
currently occurring within the management zone (i.e., the restoration
of a pre-sea otter baseline), and (2) increased shellfish populations
due to the future containment of sea otters. These estimates differ
from the baseline not only in direction but also in magnitude because
the baseline does not account for effects on commercial and
recreational fisheries that would result from the removal of sea otters
that are currently in the management zone. If sea otter containment in
the management zone were to be enforced and fully successful, then the
estimated annualized ex-vessel revenue benefit for the commercial sea
urchin, lobster, crab, and sea cucumber fisheries would be $184,000 to
$186,000, $420,000 to $530,000, $210,000 to $310,000, and $116,000 to
$118,000, respectively, relative to the baseline. To calculate the
present value for a 10-year time period, the social discount rates of 3
percent and 7 percent are applied per OMB guidance. Discounted at 3
percent, the 10-year present value impact for the commercial sea
urchin, lobster, crab, and sea cucumber fisheries would be $1.4 to $1.5
million, $3.2 to $4.1 million, $1.6 to $2.4 million, and $893,000 to
$903,000, respectively. Discounted at 7 percent, the 10-year present
value impact for the commercial sea urchin, lobster, crab, and sea
cucumber fisheries would be $1.1 million, $2.3 to $2.9 million, $1.1 to
$1.7 million, and $641,000 to $653,000, respectively. Minor positive
effects on the sea urchin processing industry could result from an
increase in sea urchin landings, depending on operating capacity and
consumer demand. Recreational dive trips may increase along the
coastline from Point Conception to Santa Barbara, but this increase is
expected to result in negligible economic benefit because the mainland
coastline is not an important area for recreational lobster diving.
Effects on Small Businesses
Potential impacts to small businesses, such as owners of halibut
fishing vessels and white seabass fishing vessels, are summarized
below. For more information pertaining to the economic impacts, please
refer to the revised draft SEIS.
The SBA defines a ``small business'' as one with an annual revenue
or number of employees that meets or is below an established size
standard. The SBA ``small business'' size standard is $4 million for
``Finfish Fishing'' and ``Shellfish Fishing'' (North American Industry
Code (NAICS) 114111 and 114112) and fewer than 500 employees for
``Fresh and Frozen Seafood Processing'' (NAICS 311712). Most of the
businesses in the finfish and shellfish fishing industries have fewer
than 5 employees, and all of the businesses in the seafood processing
industry have fewer than 500 employees. Therefore, all businesses
participating in these industries are considered ``small businesses.''
The numbers of commercial fishing vessels participating in selected
southern California fisheries in the area expected to be affected
within 10 years and in southern California as a whole are shown in
Table 1. Although some establishments may own more than one vessel, we
utilize the vessel estimate provided by California Department of Fish
and Game to ensure a conservative approach to our analysis of the
number and proportion of small entities affected (i.e., we may
overestimate the number and proportion of small entities affected).

[[Page 53393]]

[GRAPHIC] [TIFF OMITTED] TP26AU11.000

Impacts on Small Businesses Due to Proposed Rule (Alternative 3C)

The proposed rule would not result in any effects on small
entities, relative to the baseline, except potential indirect economic
impacts stemming from regulatory changes by the State. Thus, the sea
urchin, lobster, crab, and sea cucumber industries would not be
impacted by the proposed rule. However, an additional gill and trammel
net closure, if imposed by the State in response to the elimination of
incidental take exemptions associated with the management zone, would
affect portions of the halibut and white seabass fisheries utilizing
gill and trammel net gear in Santa Barbara County and Ventura County
within the next 10 years. Industries in Los Angeles, Orange, San Diego,
Santa Barbara, and Ventura Counties (hereafter referred to collectively
as ``southern California'') are included in the analysis because of
their proximity to the affected area.
Estimates of the relative impact on vessels and the number of
vessels affected may be overestimates because the data available to us
do not allow us to account for vessels participating in multiple
fisheries. Additionally, estimates of relative impact are averages
(i.e., some vessels will be more affected than others in the same
fishery). All estimates of decreases in ex-vessel revenues assume that
fishers would not choose to fish elsewhere or with alternate gear and
hence would not supplement their revenues or increase harvest pressure
in other areas. Finally, ex-vessel values reflect gross rather than net
revenues and thus overestimate impacts because they fail to account for
the savings in boat fuel and labor that could be re-employed elsewhere
if commercial fishing activity in affected areas were reduced. Ex-
vessel revenue and vessel number data are from the California
Department of Fish and Game.
Table 2 shows the potential indirect effects if the State closes
additional areas to gill and trammel net fishing in Santa Barbara and
Ventura Counties. Potential indirect annualized effects on the
commercial halibut fishery range from $0 (no additional closure) to
$250,467 (immediate closure of the affected area), representing a loss
to the commercial halibut fishery in southern California of 0 to 41
percent of landings made using gill and trammel net gear only (or 0 to
21 percent of all halibut landings) relative to the baseline. Potential
indirect annualized effects on the commercial white seabass fishery
range from $0 (no additional closure) to $284,638 (immediate closure of
the affected area), representing a loss to the commercial white seabass
fishery in southern California of 0 to 44 percent of landings made
using gill and trammel net gear only (or 0 to 42 percent of all white
seabass landings) relative to the baseline.

[[Page 53394]]

Table 2--Estimated Maximum Annual Impact on Ex-Vessel Revenue for
Selected Fisheries From the Proposed Rule (2009$)
------------------------------------------------------------------------
Total annualized
industry gross Annual gross revenue
revenue loss (2012- decrease per small
2021) business
------------------------------------------------------------------------
Halibut Fishery (with set $250,467............ $13,182.
and drift gill nets).
Seabass Fishery (with set $284,638............ $15,813.
and drift gill nets).
Sea Urchin Fishery.......... No impact........... No impact.
Spiny Lobster Fishery....... No impact........... No impact.
Crab Fishery................ No impact........... No impact.
Sea Cucumber Fishery........ No impact........... No impact.
------------------------------------------------------------------------

Impacts on Small Businesses Due to Alternative 1

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

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

Under Alternative 1, the regulatory environment for fishing would
remain unchanged relative to the baseline. Because any potential
effects on the portion of the halibut and seabass fisheries using gill
and trammel net gear would stem from regulatory changes, there is no
effect on these two fisheries.
Under Alternative 1, impacts to the sea urchin processing industry
would be a positive function of the change in sea urchin landings.
Impacts to the sea urchin processing industry would be dependent upon
whether individual companies are operating at capacity and whether they
are capable of processing different seafood products. If companies are
operating at capacity, then there may

[[Page 53395]]

be room for growth in the industry for an additional company. If
companies are not operating at capacity, then revenues may increase in
relation to any increase in raw product. Companies receiving sea
urchins harvested along the affected coastline would be
disproportionately affected. Because of the expected 3 percent increase
in sea urchin inputs from the Southern California Bight, Alternative 1
is not expected to have a significant impact on the seafood processing
industry.

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Service makes the following findings:
(a) This proposed 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,
tribal governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
The proposed rule to terminate the southern sea otter translocation
program does not impose a legally binding duty on non-Federal
government entities or private parties.
(b) We do not believe that this rule would significantly or
uniquely affect small governments because it would not produce a
mandate of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. This determination is based on the economic analysis prepared as
part of the revised draft SEIS on the sea otter translocation program.
As such, a Small Government Agency Plan is not required.

Takings

In accordance with Executive Order 12630 ``Government Actions and
Interference with Constitutionally Protected Private Property Rights,''
we have analyzed the potential takings implications of terminating the
southern sea otter translocation program. This assessment concludes
that the proposed amendment to Title 50 of the Code of Federal
Regulations to remove Sec. 17.84(d) does not pose significant takings
implications. While small segments of the fishing industry may be
indirectly affected by changes resulting from termination of the
southern sea otter translocation program, fishery resources are public
resources in which private entities have no Constitutionally protected
property interest.

Federalism Assessment

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

Civil Justice Reform

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175, and the Department of
the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a Government-to-Government basis. We have evaluated possible
effects on federally recognized Indian Tribes and have determined that
there are no effects.

[[Page 53396]]

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

On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Although adoption of this proposed rule would result in additional
consultation requirements for energy activities that may affect
southern sea otters, in the context of the current regulatory
environment, it would not significantly affect energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action and no Statement of Energy Effects is required.

References Cited

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

Author

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

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

Sec. 17.84 [Amended]

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

Dated: July 22, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-21556 Filed 8-25-11; 8:45 am]
BILLING CODE 4310-55-P