[Federal Register: June 9, 2009 (Volume 74, Number 109)]
[Proposed Rules]
[Page 27271-27275]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn09-14]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R7-ES-2008-0105; 92210-1117-0000-B4]
RIN 1018-AV92
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Southwest Alaska Distinct Population Segment
of the Northern Sea Otter
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; extension of comment period, notice of
availability of draft economic analysis, and amended required
determinations.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the extension
of the public comment period on the proposed designation of critical
habitat for the southwest Alaska Distinct Population Segment (DPS) of
the northern sea otter (Enhydra lutris kenyoni) under the Endangered
Species Act of 1973, as amended. We also announce the availability of a
draft economic analysis (DEA) and an amended required determinations
section of the proposal. We are extending the comment period for an
additional 30 days from the date of this notice to allow all interested
parties an opportunity to comment simultaneously on the revised
proposed rule, the associated DEA, and the amended required
determinations section. If you submitted comments previously, you do
not need to resubmit them because we have already incorporated them
into the public record and will fully consider them in preparation of
the final rule.
DATES: We will consider comments received on or before July 9, 2009.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-ES-2008-0105; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearing: We will hold one public hearing on June
18, 2009, at the Z.J. Loussac Library in Anchorage, Alaska. In addition
to having the opportunity to provide oral comments in person, telephone
access will be provided for this hearing. Contact the Marine Mammals
Management Office (see FOR FURTHER INFORMATION CONTACT) for more
information about this public hearing.
Public Comment Hotline: We will also establish a toll-free
public comment hotline at 877-577-6930. Callers will have an
opportunity to record their comments at any time during the public
comment period.
We will post all comments on http://www.regulations.gov (see the
``Public Comments'' section below for more information).
FOR FURTHER INFORMATION CONTACT: Douglas M. Burn, Wildlife Biologist,
U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011
East Tudor Road, Anchorage, Alaska 99503, by telephone (907-786-3807),
or by facsimile (907-786-3816). Persons who use a telecommunications
device for the deaf (TDD) may call the Federal Information Relay
Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written and oral comments and information during
this extended comment period on the proposed rule to designate critical
habitat for the southwest Alaska DPS of the northern sea otter (Enhydra
lutris kenyoni) that was published in the Federal Register on December
16, 2008 (73 FR 76454), the draft economic analysis of the proposed
designation, and the amended required determinations provided in this
document. We will consider information and recommendations from all
interested parties. We are particularly interested in comments
concerning:
(1) The reasons why we should or should not designate habitat as
critical habitat under section 4 of the Endangered Species Act of 1973,
as amended (Act) (16 U.S.C. 1531 et seq.), including whether there are
threats to the species from human activity, the degree of which can be
expected to increase due to the designation, and whether the benefit of
designation would outweigh any threats to the species due to
designation, such that the designation of critical habitat is prudent.
(2) Specific information on:
The distribution of the northern sea otter in southwest
Alaska;
The amount and distribution of habitat of the Southwest
Alaska DPS of the northern sea otter; and
What areas occupied at the time of listing that contain
features essential for the conservation of the species we should
include in the designation and why, and
[[Page 27272]]
What areas not occupied at the time of listing are
essential to the conservation of the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(4) Any foreseeable economic, national security, or other relevant
impacts that may result from the proposed designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas from the proposed designation that exhibit
these impacts.
(5) Whether our approach to designating critical habitat could be
improved or modified in any way to provide for greater public
participation and understanding, or to assist us in accommodating
public concerns and comments.
(6) Information on the extent to which the description of economic
impacts in the DEA is complete and accurate.
(7) The likelihood of adverse social reactions to the designation
of critical habitat, as discussed in the DEA, and how the consequences
of such reactions, if likely to occur, would relate to the conservation
and regulatory benefits of the proposed critical habitat designation.
(8) Special management considerations or protections that the
proposed critical habitat may require.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
will not consider comments sent by e-mail or fax or to an address not
listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information that you
provide, such as your address, phone number and e-mail address--will be
posted on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT). You may obtain copies of the proposed rule and
the DEA on the Internet at http://www.regulations.gov at Docket Number
FWS-R7-ES-2008-0105, or by mail from the Marine Mammals Management
Office (see FOR FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat. On December 19, 2006, the Center
for Biological Diversity filed suit against the Service for failure to
designate critical habitat for the southwest Alaska DPS of the northern
sea otter within the statutory timeframe (Center for Biological
Diversity et al. v. Kempthorne et al., No. 1:06-CV-02151-RMC (D.D.C.
2007)). On April 11, 2007, the U.S. District Court for the District of
Columbia entered an order approving a stipulated settlement of the
parties requiring the Service on or before November 30, 2008, to submit
to the Federal Register a determination as to whether designation of
critical habitat for the southwest Alaska DPS of the northern sea otter
is prudent, and if so, to publish a proposed rule. The order also
requires the Service on or before October 1, 2009, to submit to the
Federal Register a final rule designating critical habitat.
On December 16, 2008, we published a proposed rule to designate
critical habitat for the southwest Alaska DPS of the northern sea otter
(73 FR 76454). We proposed to designate approximately 15,225 square
kilometers (5,879 square miles) in 5 units located in southwest Alaska
as critical habitat. The boundaries of these units correspond to
management units in a draft recovery plan that is currently under
development. The proposed rule had an initial 60-day comment period
that closed on February 17, 2009. Because the initial comment period
partially overlapped the holiday season, we reopened the public comment
period on May 8, 2009. This second comment period was scheduled to
close on July 1, 2009. This notice extends the second comment period to
July 9, 2009. During the public comment period associated with this
Notice, we will hold one public hearing in Anchorage, Alaska, that will
include telephone access. In addition, we will establish a toll-free
``public comment hotline'' that will operate throughout the entire 30-
day public comment period. Use of this hotline will provide greater
access to concerned citizens who wish to submit verbal comments, but
are unable to attend the public hearing in person or by telephone.
For more information on the southwest Alaska DPS of the northern
sea otter or its habitat, refer to the final listing rule published in
the Federal Register on August 9, 2005 (70 FR 46366), which is
available on the Internet at http://ecos.fws.gov/docs/federal_
register/fr4423.pdf or from the Marine Mammals Management Office (see
FOR FURTHER INFORMATION CONTACT).
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
that affect critical habitat must consult with us on the effects of
their proposed actions, under section 7(a)(2) of the Act.
Draft Economic Analysis
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific and commercial data
available, after taking into consideration the economic impact, impact
on national security, or any other relevant impact of specifying any
particular area as critical habitat.
We have prepared a Draft Economic Analysis (DEA), which identifies
and analyzes the potential economic impacts associated with the
proposed critical habitat designation for the southwest Alaska DPS of
the northern sea otter that we published in the Federal Register on
December 16, 2008. The DEA quantifies the potential economic impacts of
all conservation efforts for the southwest Alaska DPS of the northern
sea otter; some of these costs will likely be incurred regardless of
whether we designate critical habitat. The economic impact of the
proposed critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (e.g., under the Federal listing and other Federal, State,
and local regulations). The baseline, therefore, represents the costs
incurred regardless of whether critical habitat is
[[Page 27273]]
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we may consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur if we finalize the proposed critical habitat.
The DEA provides estimated costs of the reasonably foreseeable
potential economic impacts of the proposed critical habitat designation
for the southwest Alaska DPS of the northern sea otter over the next 20
years, which was determined to be the appropriate period for analysis
because limited planning information was available for most activities
to forecast activity levels for projects beyond a 20-year timeframe. It
identifies potential incremental costs as a result of the proposed
critical habitat designation, which are those costs attributed to
critical habitat over and above those baseline costs attributed to
listing. The DEA quantifies economic impacts of conservation efforts
for the southwest Alaska DPS of the northern sea otter associated with
the following categories of activity: (1) Oil spill planning and
response; (2) oil and gas exploration and development; (3) marine and
coastal construction activities; and (4) water quality management.
Baseline economic impacts are those impacts that result from
listing and other conservation efforts for the southwest Alaska DPS of
the northern sea otter not attributable to designation of critical
habitat and thus are expected to occur regardless of whether we
designate critical habitat. Total future (2009-2028) baseline impacts
are estimated to range from $37.7 million applying a 7 percent discount
rate, to $49.8 million applying a 3 percent discount rate. Construction
and water quality management activities are expected to bear the
majority of forecast baseline impacts. The majority of baseline
economic impacts are estimated to occur in critical habitat Unit 5 (56
percent) and Unit 2 (28 percent).
Overall, the future (2009-2028) incremental impacts (those
estimated to occur because of critical habitat designation) designating
critical habitat are relatively small, ranging from $660,000 applying a
7 percent discount rate to $885,000 applying a 3 percent discount rate,
amounting to an increase of 1.8 percent over baseline impact levels.
The majority of incremental impacts are estimated to occur primarily in
critical habitat Unit 5 (40 percent), followed by Unit 3 (30 percent).
By comparison, estimated baseline and incremental impacts are
relatively low in critical habitat Units 1 and 4. Oil spill planning
and response activities are expected to bear a majority of the forecast
incremental cost impacts associated with critical habitat designation.
Administrative costs of consultation represent roughly 93 percent of
the forecast incremental costs of otter critical habitat designation.
As stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusions will not result in the extinction of this species.
Areas Considered for Exclusion
Based on comments submitted during the initial public comment
period from December 16, 2008, to February 17, 2009, we are evaluating
whether the benefits of the exclusion of some areas from the proposed
critical habitat outweigh the benefits to the species from their
inclusion in the designation. We summarize the requests for exclusion
below. The complete comment submissions can be reviewed at http://
www.regulations.gov, Docket ID: FWS-R7-ES-2008-0105. Exclusions, if
any, will be made to the final designation.
(1) In their comment letter dated February 10, 2009, the Department
of the Navy (Document ID: FWS-R7-ES-2008-0105-0008.1) requested that we
exclude critical habitat designation for the areas contiguous to each
of the islands in Unit 5 under section 4(b)(2) of the Act due to
national security importance.
(2) In their comment letter dated February 17, 2009, the State of
Alaska (Document ID: FWS-R7-ES-2008-0105-0018.1) noted that ``some
areas proposed for critical habitat designations will not meet part (b)
of this definition (of critical habitat) because they are already
protected and therefore do not require additional special management
considerations or protection.'' The State of Alaska also requested
exclusion of several areas under Section 4(b)(2) of the Act for
economic reasons. These areas are:
Port Moller-Herendeen Bay (Subunit 4C);
Areas in Cook Inlet/Eastern Alaska Peninsula/Kodiak Island
identified through the pending economic analysis as economically
important;
Tidelands adjacent to communities up to 1-mile radius;
Barefoot Beach Log Transfer Facility: within Kazakof Bay
on Afognak Island;
Lookout Cove Log Transfer Facility: within Kazakof Bay on
Afognak Island; and
Chignik Bay.
(3) In their letter of February 17, 2009, the Resource Development
Council (Document ID: FWS-R7-ES-2008-0105-0020.1) requested that we
exclude the following areas under Section 4(b)(2) for economic reasons:
Areas surrounding activities relating to existing fishing
and transportation on islands, including but not limited to: Attu,
Atka, Adak, Unalaska, Akutan, Kodiak and Afognak.
Areas immediately surrounding established villages and
existing transportation access for the villages in the area.
Areas where State of Alaska oil and gas leases have been
issued, including but not limited to, Herendeen Bay and Port Moller.
Areas in western Cook Inlet, into the Lake Iliamna area
from Williamsport, which will be used for fuel and supplies for
residents as well as for potential large-scale mining projects.
Areas used for access by logging transportation around the
Kodiak archipelago, including but not limited, to Kazikof Bay on
Afognak Island.
(4) In their submission on February 17, 2009, the Alaska Sea Otter
and Steller Sea Lion Commission (Document ID: FWS-R7-ES-2008-0105-0021)
noted the high cost of living in rural communities in southwest Alaska,
and requested that we exclude areas ``in immediate proximity to these
communities'' under section 4(b)(2) of the Act for economic reasons.
Aside from these areas now being considered for possible exclusion
from the final designation of critical habitat, no other areas are
being considered for exclusion, at this time, and the proposed
designation of critical habitat remains unchanged as presented.
[[Page 27274]]
Required Determinations--Amended
In our December 16, 2008, proposed rule, we indicated that we would
defer our determination of compliance with several statutes and
Executive Orders until the information concerning potential economic
impacts of the designation and potential effects on landowners and
stakeholders became available in the DEA. We have used the DEA data to
make these determinations. In this document, we affirm the information
in our proposed rule concerning Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132
(Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates
Reform Act, the Paperwork Reduction Act, the National Environmental
Policy Act, and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951). However, based on the DEA data, we revise
our required determination concerning the Regulatory Flexibility Act
and E.O. 13211 (Energy, Supply, Distribution, and Use).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions),
as described below. However, no regulatory flexibility analysis is
required if the head of an agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
Based on our DEA of the proposed designation, we provide our analysis
for determining whether the proposed rule would result in a significant
economic impact on a substantial number of small entities. Based on
comments we receive, we may revise this determination as part of our
final rulemaking.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors with less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation, as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
To determine if the proposed designation of critical habitat for
the southwest Alaska DPS of the northern sea otter would affect a
substantial number of small entities, we considered the number of small
entities affected within particular types of economic activities, such
as oil spill planning and response, oil and gas exploration and
development, marine and coastal construction activities, and water
quality management. Specifically, we identified 12 small entities that
may be potentially affected by these activities (3 are in the deep sea
freight transportation business, 2 are in the general construction
business, 3 are government jurisdictions, and 4 are in the seafood
processing business). In estimating the numbers of small entities
potentially affected, we considered whether the activities of these
entities may entail any Federal involvement. Critical habitat
designation will not affect activities that do not have any Federal
involvement; designation of critical habitat affects activities
conducted, funded, or authorized by Federal agencies.
If we finalize this proposed critical habitat designation, Federal
agencies must consult with us under section 7 of the Act if their
activities may affect designated critical habitat. Consultations to
avoid the destruction or adverse modification of critical habitat would
be incorporated into the existing consultation process.
In order to determine whether it is appropriate for our agency to
certify that this rule would not have a significant economic impact on
a substantial number of small entities, we considered in the DEA the
potential impacts resulting from implementation of conservation actions
related to the proposed designation of critical habitat for the
southwest Alaska DPS of the northern sea otter on each of the 12 small
entities discussed above. As described in Appendix A of the DEA, the
potential impacts are likely to be associated with construction, oil
spill response activities, and water quality issues. The average
annualized incremental impacts to small entities ranges from $2,407 for
seafood processors to $4,367 for deep sea freight transporters,
applying a 7% discount rate. We therefore conclude that costs to small
entities will not be significant. Please refer to the DEA for a more
detailed discussion of potential economic impacts.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. We have identified 12 small entities that may be
impacted by the proposed critical habitat designation. For the above
reasons and based on currently available information, we certify that
if promulgated, the proposed designation would not have a significant
economic impact on a substantial number of small business entities.
Therefore, an initial regulatory flexibility analysis is not required.
Executive Order 13211--Energy Supply, Distribution, and Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
The DEA concludes that the future of oil and gas exploration and
development activities within the proposed critical habitat area are
uncertain. Despite a significant body of research regarding the
potential for oil and gas development activities in Alaska, no forecast
exists for the proposed critical habitat area.
The only potential economic impacts quantified in the DEA that may
be relevant to E.O. 13211 are oil spill response activities associated
with energy use. As described in the DEA, an estimated 152 oil spills
requiring consultation are anticipated in southwest Alaska over the
next 20 years. Because future consultations will consider both jeopardy
and adverse modification of critical habitat, the incremental costs of
these consultations is estimated to range from $148,000, applying a 7%
discount rate, to $467,000 applying a 3% discount rate.
[[Page 27275]]
In our proposed rule we stated that we did not expect the proposed
rule to significantly affect energy supplies, distribution (including
shipping channels), or use because most oil and gas development
activities would not overlap with the habitats used by northern sea
otters, and we would not expect the activities to cause significant
alteration of the PCEs. Any proposed development project likely would
have to undergo section 7 consultation to ensure that the actions would
not destroy or adversely modify designated critical habitat.
Consultations may entail modifications to the project to minimize the
potential adverse effects to northern sea otter critical habitat. A
spill-response plan would have to be developed to minimize the chance
that a spill would have negative effects on sea otters or critical
habitat. However, we conduct thousands of consultations every year
throughout the United States, and in almost all cases, we are able to
accommodate both project and species' needs. We expect that to be the
case here. We conclude that this action is not a significant energy
action, and no Statement of Energy Effects is required.
Authors
The primary authors of this notice are the staff members of the
Marine Mammals Management Office, Alaska Region, U.S. Fish and Wildlife
Service.
Authority
The authority for this action is the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
Dated: June 1, 2009.
Jane Lyder,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-13314 Filed 6-8-09; 8:45 am]
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