51988 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R7–ES–2008–0105; 92210–1117– 

0000–FY08–B4] 

RIN 1018–AV92 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Southwest Alaska 

Distinct Population Segment of the 

Northern Sea Otter 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for the 

southwest Alaska Distinct Population 

Segment (DPS) of the northern sea otter 

(Enhydra lutris kenyoni) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

15,164 square kilometers (km2) (5,855 

square miles (mi2)) fall within the 

boundaries of the critical habitat 

designation. All the critical habitat is 

located in Alaska. 

DATES: This rule becomes effective on 

November 9, 2009. 

ADDRESSES: The final rule and final 

economic analysis are available for 

viewing at http://regulations.gov. 

Detailed color maps of areas designated 

as critical habitat are available for 

viewing at http://alaska.fws.gov/ 

fisheries/mmm/seaotters/ 

criticalhabitat.htm. Supporting 

documentation we used in preparing 

this final rule is available for public 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Marine Mammals 

Management Office, U.S. Fish and 

Wildlife Service, 1011 East Tudor Road, 

Anchorage, AK 99503; telephone 907/ 

786–3800; facsimile 907/786–3816. 

FOR FURTHER INFORMATION CONTACT: 

Douglas M. Burn, Wildlife Biologist, 

Marine Mammals Management Office 

(see ADDRESSES section). If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for the 

southwest Alaska distinct population 

segment (DPS) of the northern sea otter 

in this final rule. For more information 

on the southwest Alaska DPS of the 

northern sea otter, refer to the final 

listing rule published in the Federal 

Register on August 9, 2005 (70 FR 

46366), the proposed rule to designate 

critical habitat published in the Federal 

Register on December 16, 2008 (73 FR 

76454), and the June 9, 2009 (74 FR 

27271), notice of availability of the draft 

economic analysis (DEA). More detailed 

information on northern sea otter 

biology and ecology that is directly 

relevant to designation of critical habitat 

is discussed under the Primary 

Constituent Elements section below. 

Previous Federal Actions 

We listed the southwest Alaska DPS 

of the northern sea otter as threatened 

on August 9, 2005 (70 FR 46366). We 

considered critical habitat to be 

prudent, but not determinable, and we 

therefore did not designate critical 

habitat for this DPS at the time of 

listing. When we make a not 

determinable finding, we must, within 1 

year of the publication date of the final 

listing rule, designate critical habitat, 

unless we find designation to be not 

prudent. On December 19, 2006, the 

Center for Biological Diversity filed suit 

against the Service for failure to 

designate critical habitat within the 

statutory time frame (Center for 

Biological Diversity et al. v. Kempthorne 

et al., No. 1:06–CV–02151–RMC (D.D.C. 

2007)). On April 11, 2007, the U.S. 

District Court for the District of 

Columbia entered an order approving a 

stipulated settlement of the parties 

requiring the Service on or before 

November 30, 2008, to submit to the 

Federal Register a determination as to 

whether designation of critical habitat 

for the southwest Alaska DPS is 

prudent, and if so, to publish a 

proposed rule. We have subsequently 

reaffirmed that critical habitat for the 

southwest Alaska DPS of the northern 

sea otter is prudent, and we published 

a proposal to designate critical habitat 

for the southwest Alaska DPS of the 

northern sea otter in the Federal 

Register on December 16, 2008 (73 FR 

76454). We accepted public comments 

on this proposal for 60 days, ending on 

February 17, 2009. In response to 

requests from the public, we published 

a document (74 FR 21614) reopening the 

public comment period from May 8, 

2009, through July 1, 2009. We also 

published a notice of availability of the 

economic analysis of critical habitat 

designation on June 9, 2009 (74 FR 

27271), and extended the public 

comment period through July 9, 2009. 

For more information on previous 

Federal actions concerning the 

southwest Alaska DPS of the northern 

sea otter, refer to the final listing rule 

published in the Federal Register on 

August 9, 2005 (70 FR 46366). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public during the public comment 

period on the proposed rule to designate 

critical habitat for the southwest Alaska 

DPS of the northern sea otter. During the 

public comment period, we also 

contacted appropriate Federal, State, 

and local agencies; Alaska Native 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule to designate critical 

habitat for this DPS and the associated 

draft economic analysis (DEA). 

The comment period on the proposed 

critical habitat rule originally opened 

December 16, 2008 (73 FR 76454), and 

closed February 17, 2009. During that 

time, we received one request for a 

public hearing. On May 8, 2009, we 

announced a public hearing, and 

reopened the public comment period 

from May 8, 2009, through July 1, 2009 

(74 FR 21614). We held a public hearing 

on June 18, 2009, in Anchorage, Alaska. 

The public hearing was attended by 

nine people, and although telephone 

access was provided toll-free during the 

hearing, we received no calls. On June 

9, 2009, we published a notice of 

availability of the DEA, and we 

extended the public comment period 

through July 9, 2009, to allow interested 

parties to comment on both the 

proposed critical habitat rule and the 

associated DEA (74 FR 27271). From 

June 9 through July 9, 2009, we also 

operated a toll-free public comment 

hotline, which enabled callers to record 

their public comments, to be later 

transcribed and entered into the official 

record. We received no comments on 

the toll-free hotline. 

During the public comment periods, 

we received 28 sets of public comments 

directly addressing the proposed 

designation of critical habitat: 2 from 

Federal agencies, 1 from a State agency, 

1 from a local government, and the 

remainder from organizations and 

individuals. At the June 18, 2009, public 

hearing, we received one comment 

directly addressing the proposed 

designation of critical habitat. 

Peer Review 

In accordance with our policy on peer 

review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

we solicited expert opinions from 10 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the DPS, the geographic 

region in which it occurs, and 

conservation biology principles. We 


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received responses from two of the peer 

reviewers. We reviewed all comments 

received from the peer reviewers and 

the public for substantive issues and 

new information regarding critical 

habitat for the southwest Alaska DPS of 

the northern sea otter. These comments, 

which were aggregated by subject 

matter, are summarized and addressed 

below and are incorporated into the 

final rule as appropriate. 

Peer Reviewer Comments 

Comment 1: One peer reviewer 

questioned our characterization of how 

sea otters use various types of kelp 

habitat, specifically those of the genera 

Nereocystis and Macrocystis. 

Our Response: We have revised and 

clarified the discussion in the final rule 

based on this comment. 

Comment 2: One peer review 

commented that Alaria fistulosa (the 

primary canopy kelp in the Aleutians) is 

no longer classified as the genus Alaria, 

and stated that it has been re-named 

Druehlia fistulosa. 

Our Response: We have revised the 

final rule based on this comment. 

Public Comments 

Comments Related to Primary 

Constituent Elements (PCEs) and 

Proposed Critical Habitat Areas 

Comment 3: Several comments 

expressed concern that the area defined 

by the proposed PCEs (described below 

under ‘‘Primary Constituent Elements’’) 

may not contain sufficient prey 

resources to support the recovery of the 

southwest Alaska DPS, and should 

therefore be expanded in size. One 

commenter suggested that the seaward 

boundary should be set at the 30-meter 

(m) (98.4-feet (ft)) depth contour, but 

did not provide a justification for this 

value. Another commenter suggested it 

should be the 100-m (328.1 ft) depth 

contour based on the physiological 

limits of sea otter diving capability. Yet 

another commenter simply stated that 

the area of designated critical habitat 

should be doubled. 

Our Response: We agree that the 

presence of adequate prey resources is 

important for the conservation of the 

southwest Alaska DPS. While any of the 

options suggested by the commenters 

would include additional foraging areas 

in the designation of critical habitat, the 

commenters provide no clear scientific 

rationale for the specific water depths 

they suggested. The choice of the 100- 

m (328.1 ft) depth contour has a 

biological basis, as it delineates the 

physiological limits of sea otter diving 

capabilities. However, information on 

sea otter diving behavior indicates that 

the value of sea otter foraging habitat is 

inversely proportional to water depth. 

For example, research in southeast 

Alaska shows that 84 percent of foraging 

occurs in depths between 2 and 30m 

(6.6 and 98.4 ft), and female sea otters 

do the vast majority (85 percent) of their 

foraging in waters less than 20m (65.6 

ft) in depth. Recent research from 

California suggests these patterns may 

be similar among populations (Tinker et 

al. 2006, p. 148). Our selection of the 20- 

m (65.6-ft) depth contour therefore 

includes the majority of the most 

important sea otter foraging areas. 

The areas defined by the PCEs that we 

proposed for designation as critical 

habitat include the intertidal zone, as 

well as adjacent shallow waters where 

otters may feed while being relatively 

protected from marine predators. Sea 

otters do not appear to be limited by 

prey availability within the DPS, 

especially in areas where the population 

has declined the most, such as the 

Aleutian archipelago. A thorough 

analysis indicates that there is limited 

competition with commercial fishermen 

for sea otter prey resources throughout 

the range of the DPS (Funk 2003, p. 2). 

Because sea otters do not appear food 

limited, foraging areas that do not also 

provide shelter from predators (e.g., 

areas that occur in water depths ranging 

from 20 to 100m (65.6 to 328.1 ft)) are 

not identified as a feature essential to 

the conservation of the sea otter and are 

therefore not included in this 

designation. 

Comment 4: Critical habitat should 

not be limited to areas that are currently 

occupied by sea otters, and should 

include historically occupied areas as 

well. 

Our Response: With the exception of 

some relatively small areas on Kodiak 

Island (included in our proposal), there 

is virtually no unoccupied habitat 

within the range of the southwest 

Alaska DPS. We also note that those 

areas of Kodiak Island are unoccupied 

because they had yet to be recolonized 

following protection by the 1911 Fur 

Seal Treaty that prohibited commercial 

fur harvests of sea otters. Lack of 

occupation by sea otters in this area is 

not a result of the recent population 

decline that led to the listing of this DPS 

as threatened. 

The areas defined by the PCEs and 

proposed for critical habitat are a subset 

of what we consider to be occupied sea 

otter habitat and are sufficient to 

provide for the conservation of the DPS. 

Sea otter densities are not uniform 

throughout the set of all possible sea 

otter habitat, however, and differ both 

longitudinally and perpendicularly with 

the shore. While the highest densities 

appear to occur in shallower waters that 

are closer to shore, we do not consider 

sea otter habitat that occurs further 

seaward than the proposed critical 

habitat (i.e., waters deeper that 20m 

(65.6 ft) in depth) to be unoccupied 

habitat, as otters are still observed there 

on occasion. We explain our reasoning 

for why these areas do not meet the 

definition of critical habitat in our 

response to Comment 3. 

Comment 5: Some areas in the Kodiak 

and Cook Inlet appear to have been 

inappropriately excluded from critical 

habitat designation. 

Our Response: We believe that this 

comment was submitted due to an 

artifact in one or more of the maps that 

were published on the Service’s Region 

7 web site. It is important to distinguish 

between the PCEs (and their associated 

criteria such as water depth or distance 

from the mean high tide line) and the 

ability to map them. With the exception 

of areas where the water depth drops off 

abruptly from shore, the 20-m (65.6-ft) 

depth contour typically constitutes the 

seaward extent of critical habitat. We 

believe that the scale of some of the 

maps may have given the appearance 

that areas were excluded from 

designation as critical habitat, when in 

reality they were not. In order to 

alleviate any confusion over the location 

of critical habitat, we intend to make 

GIS data layers available to the public 

once the designation is final. 

Comment 6: The Service should 

consider PCEs related to reproduction 

and the rearing of offspring. 

Our Response: Unlike other species 

that have identified breeding habitat, 

sea otters conduct all aspects of their 

life history in essentially the same 

places. Mothers with pups often seek 

shelter from rough seas, and though we 

did not explicitly address this in the 

proposed rule, the areas defined by the 

PCEs include nearshore waters that do 

provide shelter for mothers with pups. 

Recent studies using time-depth 

recorders indicate that female sea otters 

forage in shallower waters more than 

males, with the majority of their 

foraging effort occurring in waters less 

than 20m (65.6 ft) in depth (Bodkin et 

al. 2004, p. 305). Therefore, the 

identified PCEs already include areas 

that are essential for reproduction and 

the rearing of offspring. We have also 

expanded our discussion of this subject 

in this final rule. 

Comment 7: Maintaining large habitat 

patches that can facilitate movement 

between otter populations is essential to 

the conservation of this population. 

Our Response: With the exception of 

Unit 4 (Bristol Bay), the critical habitat 

occurs as contiguous zones around all 


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islands and mainland Alaska within the 

range of the southwest Alaska DPS. 

Movement within any discrete patch of 

critical habitat is not restricted. We 

therefore interpret this comment to be 

addressing the movement between 

discrete patches, for example, between 

islands and island groups in Units 1, 2, 

3, and 5. 

During the course of recolonization of 

their range during the 20th century, sea 

otter movements of this kind occurred 

from occupied islands to unoccupied 

ones. However, current conditions differ 

in that the waters around most (if not 

all) of these islands remain inhabited, 

but by lower densities of sea otters. We 

believe, based on the best available 

information, that recovery can occur 

with a minimal amount of dispersal 

between islands. Therefore, designation 

of large patches of area connecting 

islands (or island groups) as critical 

habitat is not essential to the 

conservation of the DPS. 

Comment 8: The offshore waters in 

Unit 4 should be designated as critical 

habitat due to their likely importance in 

fulfilling PCE categories 1 (shallow, 

rocky areas in waters less than 2m (6.6 

ft) in depth) and 2 (waters within 100m 

(328.1 ft) of the mean high tide line). 

Our Response: Although we could 

apply the criteria for PCEs 1 and 2 to 

this unit, the area they delineate does 

not contain the physical and biological 

features, and therefore would not serve 

the same function as it does in the other 

critical habitat units. Rocky substrates 

and kelp beds are scarce in Unit 4 

(Bristol Bay), and we applied these PCEs 

to the one place where they occur to 

delineate subunit 4a (Amak Island). 

Shallow, rocky areas where marine 

predators are less likely to forage (PCE 

1) are scarce throughout the remainder 

of Unit 4. This commenter correctly 

noted that because of the bathymetry in 

Bristol Bay, otters can forage at greater 

distances from shore. Unlike our survey 

information from several islands in 

critical habitat Unit 1 (Western 

Aleutians), we have no information that 

indicates that nearshore waters (PCE 2) 

provide protection or escape from 

marine predators, which may be due to 

the lack of PCE 1 in these areas. 

Therefore, we do not believe the 

application of PCEs 1 and 2 within Unit 

4 would identify features that provide 

cover and shelter from marine 

predators, and would be essential to the 

conservation of the DPS. 

Comment 9: It is not clear that the 

proposed PCEs will provide for range 

expansion and the conservation of the 

species. 

Our Response: With the exception of 

some relatively small areas on Kodiak 

Island, sea otters currently occupy all 

their former range. Therefore, range 

expansion will likely not be necessary 

for the conservation of the southwest 

Alaska DPS. 

Comment 10: The Service should 

consider combining all proposed 

‘‘Primary Constituent Elements’’ (PCEs) 

instead of using them independently to 

define critical habitat. 

Our Response: Each PCE has its own 

explicit criterion, and for the purposes 

of clarity we believe that it is best to list 

them individually. The individual PCEs 

laid out in the appropriate quantity and 

spatial arrangement essential for the 

conservation of the species define the 

physical and biological features that are 

essential for the conservation of the 

DPS. Although it is not a requirement, 

most of the areas that were proposed for 

designation as critical habitat do contain 

all four PCEs. 

Comment 11: The amount of critical 

habitat is excessive, and the criteria 

used to designate critical habitat should 

be narrowed in order to select more 

discrete areas of critical habitat that are 

essential to the conservation of the 

species so that habitat designations are 

biologically meaningful. 

Our Response: As stated in the 

proposed rule, we determined that the 

physical and biological features that are 

essential for the conservation of the 

southwest Alaska DPS of the northern 

sea otter are those that provide cover 

and shelter from marine predators, as 

well as the prey resources that occur in 

those areas. We are limited in our 

understanding of sea otter habitat use 

and also by our ability to map these 

features beyond a certain scale. We 

identified the physical and biological 

features essential to the conservation of 

the DPS based on the best scientific 

information related to sea otter life 

history requirements. This commenter 

was particularly concerned with the 

underlying rationale for PCEs 1 and 2. 

We note that there is considerable 

spatial overlap in areas defined by the 

first three PCEs. For example, all of the 

areas delineated by PCE 1 (shallow, 

rocky areas in waters less than 2m (6.6 

ft) in depth) and the vast majority of 

areas delineated by PCE 2 (waters 

within 100m (328.1 ft) of the mean high 

tide line) are contained within the area 

delineated by PCE 3 (kelp forests in 

waters less than 20m (65.6 ft) in depth). 

Our rationale for choosing these areas is 

summarized in the ‘‘Primary 

Constituent Elements for the Southwest 

Alaska DPS of the Northern Sea Otter’’ 

section. 

Comments Related to Consultation 

Under Section 7 of the Act 

Comment 12: Some activities that may 

be subject to consultation under section 

7 of the Act were omitted from the 

proposed rule to designate critical 

habitat for sea otters in southwest 

Alaska. 

Our Response: The proposed rule 

contained examples of the types of 

activities that the Service can 

reasonably expect to consult on under 

section 7 of the Act, but it was not 

intended to be a complete list of all 

possible activities. All Federal agencies 

have the obligation under section 7 of 

the Act to consult on actions they 

conduct, fund, or permit, that may affect 

a federally listed species or destroy or 

adversely modify its designated critical 

habitat. As such, the Service is not 

limited to consulting on only those 

activities listed in either the proposed or 

final rules for designation of critical 

habitat. 

Comment 13: Special management 

considerations and protections that may 

result from consultations under section 

7 of the Act were omitted from the 

proposed rule. 

Our Response: The special 

management considerations and 

protections in the proposed rule were 

included for example purposes. The 

specific types of management actions, 

such as reasonable and prudent 

measures, will be determined on a caseby-case basis during the process of 

consulting under section 7 of the Act. 

The Service is not limited to only those 

special management considerations and 

protections listed in either the proposed 

or final rules for designation of critical 

habitat. 

Comment 14: The designation of 

critical habitat may result in changes to 

development projects, including delays 

and added costs. 

Our Response: Since the southwest 

Alaska DPS of the northern sea otter was 

listed as threatened in August 2005, all 

Federal agencies have had the obligation 

to consult with the Service to ensure 

that the activities they conduct, fund, or 

carry out, are not likely to jeopardize the 

continued existence of the DPS. 

Numerous consultations in accordance 

with this obligation have been 

conducted with multiple Federal 

agencies, and must be conducted in the 

future, regardless of whether or not 

critical habitat is designated. Federal 

agencies that consult with the Service 

have the obligation to work within the 

statutory timelines of section 7 

consultations, and plan their activities 

accordingly to avoid delay. Non-Federal 

entities that require Federal permits for 


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development projects should also be 

aware of the consultation requirement, 

and factor the time needed for 

consultations into their plans and 

schedules. As consultations are already 

required under the jeopardy standard, 

the additional consultation standard of 

destruction or adverse modification of 

critical habitat are not anticipated to 

result in significant project delays. 

Modifications to projects due to critical 

habitat are not expected to add 

significant monetary costs (see section 

on ‘‘Economic Analysis’’ below). 

Comment 15: Subsistence harvest of 

sea otters should be regulated within 

critical habitat. 

Our Response: Subsistence harvest of 

sea otters from the southwest Alaska 

DPS is allowable under section 10(e) of 

the Act and section 101(b) of the Marine 

Mammal Protection Act (MMPA). 

Permits are not required under either 

the Act or the MMPA for Alaska Natives 

to harvest sea otters for subsistence 

uses, although hides and skulls must be 

tagged to fulfill reporting requirements. 

There is no Federal nexus that would 

require consultation under section 7 of 

the Act; therefore, the critical habitat 

designation would not provide a 

mechanism to regulate subsistence 

harvest. 

Comment 16: The proposed critical 

habitat designation does not adequately 

address the impacts of entanglement in 

fishing gear. 

Our Response: Critical habitat 

designation is not the appropriate 

mechanism to address the impacts of 

sea otter entanglement in fishing gear. 

The majority of designated critical 

habitat occurs within State of Alaska 

waters. Therefore, most of the fisheries 

that occur within critical habitat are not 

federally managed. Other regulatory 

mechanisms to address the issue of 

entanglement in these fisheries are 

available under the Act, such as 

provisions under section 10 of the Act 

(e.g., Habitat Conservation Plans). For 

those fisheries that have a Federal 

nexus, the Service will consult with the 

National Marine Fisheries Service to 

determine if the fishery will: (1) 

Jeopardize the southwest Alaska DPS of 

the northern sea otter; and (2) adversely 

modify or destroy their critical habitat. 

Comments Requesting Exclusions of 

Areas From Critical Habitat Designation 

Comment 17: The exclusion of 

developed areas such as harbors and 

marinas is inappropriate, as these 

structures may also be used for resting 

or foraging. 

Our Response: This exclusion covers 

the physical structures that create a 

harbor or marina, such as piers, docks, 

jetties, and breakwaters, as they do not 

contain the necessary PCEs themselves. 

It is almost certain that harbors and 

marinas do not contain PCE 3 (kelp 

forests). The waters contained within 

harbors and marinas may provide cover 

and shelter from marine predators, and 

are therefore not excluded from this 

designation. 

One of these commenters also 

expressed concern that the exclusion of 

these areas was the equivalent of a 

‘‘categorical exclusion’’ from all section 

7 consultation requirements. Regardless 

of critical habitat designation, the 

Service has the obligation to consult on 

activities such as demolition, repair, or 

construction when a Federal nexus 

exists. While the structures themselves 

are not designated as critical habitat, the 

impacts of these activities will be 

considered against both the jeopardy 

standard, and the adverse modification 

standard for any adjacent designated 

critical habitat. 

Comment 18: Areas immediately 

surrounding inhabited communities 

should be excluded from designation as 

critical habitat for economic purposes. 

One of these commenters specified that 

the excluded areas should extend a 

distance of up to 1.6 kilometers (km) 

(1 mile (mi)) radius from each inhabited 

community. Another of these 

commenters also questioned the benefit 

to sea otters of including these areas in 

the critical habitat designation. 

Our Response: We believe important 

benefits exist for designating critical 

habitat in the vicinity of inhabited 

communities. Although critical habitat 

immediately adjacent to inhabited 

communities constitutes a relatively 

small proportion of the overall critical 

habitat designation, the physical and 

biological features identified by the 

PCEs provide protection from marine 

predators comparable to the protection 

provided by similar features located in 

areas that are distant from such 

communities. In addition, we believe 

that designated critical habitat in the 

vicinity of inhabited communities has a 

unique informational benefit that 

critical habitat in more remote areas 

does not. 

The Final Economic Analysis (FEA) 

identified the incremental costs 

associated with designation of critical 

habitat for the southwest Alaska DPS of 

the northern sea otter. Given the very 

small estimated annual costs associated 

with all consultations due to the critical 

habitat, and the small estimated costs 

per consultation expected to be borne by 

third parties, individual communities in 

southwest Alaska are not expected to 

bear significant costs due to critical 

habitat designation. The FEA estimated 

that the additional economic impacts 

expected from designation of critical 

habitat as proposed would amount to an 

increase of 1.8 percent above the 

baseline impacts in the absence of 

critical habitat designation. Oil spill 

planning and response activities are 

expected to bear a majority of these 

costs. The economic impacts of critical 

habitat are estimated to be 

approximately $58,900 per year over the 

entire range of the DPS assuming a 7 

percent discount rate. Of these costs, the 

FEA estimates that $54,900 of the 

annual costs (93 percent) will be related 

to administrative costs of consultations 

under section 7 of the Act. The majority 

of these costs for consultations related 

to water quality, construction, and other 

activities will be borne by the Service 

and the Federal action agency. Third 

parties to these consultations are only 

expected to bear $513–$875 per 

consultation in administrative costs 

related to the incremental costs of 

critical habitat designation for informal 

and formal consultations, respectively. 

The total actual costs to any single 

community will ultimately depend on 

the number of activities in that 

community that are subject to 

consultation under section 7 of the Act, 

as well as the complexity of such 

consultations, that will dictate whether 

informal or formal consultation is 

required. 

Accordingly, after thorough 

consideration, we are not exercising our 

discretion to exclude areas in and 

around inhabited communities in 

southwest Alaska from critical habitat 

designation, due to the insignificant 

costs estimated to be borne by 

individual communities as a result of 

the designation of critical habitat, the 

important protections the designation of 

critical habitat near communities will 

afford the DPS, and the unique 

educational and informational benefits 

of designating critical habitat there. 

Comment 19: The Department of the 

Navy requested that areas contiguous to 

islands in Unit 5 should be excluded 

from designation as critical habitat due 

to their national security importance. 

The areas requested for exclusion are 

used for a variety of training activities 

that are considered vital to continued 

readiness of U.S. Navy forces. The 

Department of the Navy is concerned 

that designation of critical habitat in 

this area ‘‘may restrict or prohibit 

implementation of various training and 

testing requirements.’’ They further state 

that the ability to conduct training 

exercises in these areas ‘‘on a short 

notice basis’’ is necessary for the 

Department of the Navy to ‘‘achieve its 

required level of operational readiness.’’ 


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Our Response: Section 4(b)(2) of the 

Act allows the Secretary to use his 

discretion to exclude areas from critical 

habitat for reasons of national security 

if the Secretary determines the benefits 

of such an exclusion exceed the benefits 

of designating the area as critical 

habitat. However, this exclusion cannot 

occur if it will result in the extinction 

of the species concerned. 

We understand the Navy’s interest in 

conducting its training exercises on a 

short notice basis so as to achieve its 

required level of operational readiness. 

We believe, however, that the Navy’s 

goals are not incompatible with the 

designation of critical habitat for the 

southwest Alaska DPS of the northern 

sea otter for a number of reasons. The 

Navy has, and continues to have, an 

ongoing obligation to consult with the 

Service to ensure that the activities they 

conduct, fund, or carry out are not likely 

to jeopardize the continued existence of 

the southwest Alaska DPS of the 

northern sea otter since it was listed as 

threatened in August 2005. This 

obligation to consult exists regardless of 

whether or not critical habitat for 

northern sea otter is designated. 

The estimated time and costs 

associated with consideration of sea 

otter critical habitat is expected to be 

extremely small. This point is 

underscored in the FEA, which explains 

that due to the minimal amount of time 

critical habitat designation is expected 

to add to the consultation process, the 

associated costs are insignificant. 

The Service will work with the Navy 

to consult on their activities under 

section 7 of the Act efficiently in an 

attempt to avoid any delays to national 

security activities. There are additional 

consultation mechanisms that may be 

available to further expedite the Navy’s 

consultations and enhance the Navy’s 

ability to conduct training exercises in 

the areas requested for exclusion on a 

short-notice basis. One such mechanism 

is a programmatic consultation, which 

would consider the impacts of multiple 

training exercises over multiple years. A 

programmatic consultation would 

remove or reduce the need to consult on 

a case-by-case basis. 

In the event that the imminent need 

arises for an activity that is not covered 

by an existing programmatic 

consultation, the Act provides a 

mechanism for dealing with 

emergencies (e.g., national defense or 

security emergencies) that would 

require expedited consultation (50 CFR 

402.05). In these instances, if the 

proposed activity was determined to be 

a national defense or security 

emergency, the Service would work 

with the Department of the Navy to 

evaluate the expected impacts to sea 

otters and their critical habitat, and to 

develop protective measures during the 

emergency consultation. The 

designation of critical habitat is not 

expected to impact the timing of 

emergency consultations. 

In our consideration of the Navy’s 

request for an exclusion, we wish to 

emphasize the important role of critical 

habitat designation in informing 

Federal, State, and local governments 

and the public of the importance of 

critical habitat areas to listed species 

and the parties’ respective consultation 

obligations under section 7 of the Act. 

We also note that designation of 

critical habitat in this area provides 

conservation benefits to a substantial 

portion of the southwest Alaska DPS of 

the northern sea otter. Results of the 

most recent aerial survey of the Kodiak 

archipelago, conducted in 2004, 

indicate that this area contained 

approximately 11,000 sea otters at that 

time, which represents more than 20 

percent of the estimated population size 

for the entire southwest Alaska DPS 

(USFWS 2008). The area requested for 

exclusion (3,418 km2 (1,320 mi2)) is 

approximately 23 percent of the total 

area, and 51 percent of the area of Unit 

5. Inclusion of these areas as critical 

habitat will insure that consultations 

with the Department of the Navy and 

other Federal agencies will include both 

jeopardy and adverse modification 

analyses for a significant portion of the 

southwest Alaska DPS. 

In short, the Navy has an obligation to 

consult with the Service on the effects 

of its military readiness activities on the 

southwest Alaska DPS of the northern 

sea otter regardless of the designation of 

critical habitat in this final rule. As a 

result, any delays and costs associated 

with sea otter critical habitat 

designation are expected to be minimal. 

Moreover, the Act contains mechanisms 

that may be applicable to further 

expedite the Navy’s consultations. In 

light of these considerations, as well as 

the important protections and 

educational benefits afforded by the 

designation of critical habitat for the 

southwest Alaska DPS of the northern 

sea otter, the Secretary has decided not 

to exercise his discretion to exclude the 

areas requested by the Navy from our 

critical habitat designation for national 

security reasons. 

Comment 20: Fishing gear, including 

lines, nets, and anchors associated with 

commercial sport and subsistence 

salmon fishing on Kodiak Island and 

elsewhere in southwest Alaska, should 

be explicitly excluded from designation 

as critical habitat. 

Our Response: Critical habitat is 

defined as the physical and biological 

features that are essential to the 

conservation of the listed entity, and 

that may require special management 

considerations or protections. From this 

definition, critical habitat designation 

does not apply to privately owned items 

such as fishing gear, even when such 

gear is used in geographic areas 

designated as critical habitat. 

Comment 21: Some of the areas 

proposed for designation as critical 

habitat are currently managed by the 

State of Alaska, and do not meet the 

second part of the definition of critical 

habitat as they are already protected and 

therefore do not require additional 

special management considerations or 

protection. 

Our Response: We acknowledge that 

some areas that were proposed for 

designation as critical habitat 

geographically overlap with some areas 

managed by the State of Alaska. The 

areas managed by the State include 

those covered by: (1) Alaska Department 

of Natural Resources (ADNR) Area 

Plans; and (2) Alaska Department of 

Fish and Game (ADFG) Special Area 

designations and plans. Within the 

range of the southwest Alaska DPS, 

three ADNR plans (Bristol Bay, Kodiak, 

and Kenai Peninsula) overlap with 

portions of proposed critical habitat 

units 3, 4, and 5. In addition, the 

easternmost portion of critical habitat 

unit 2 is included within the geographic 

coverage of the Bristol Bay plan. Some 

of the areas proposed for critical habitat 

are also contained with existing ADFG 

‘‘Special Areas,’’ such as State game 

refuges, critical habitat areas, and 

sanctuaries. Specifically, the Izembek 

State Refuge intersects with portions of 

both proposed subunit 4a (Amak Island) 

and subunit 4b (Izembek Lagoon). The 

Port Moller State Critical Habitat Area 

intersects with portions of subunit 4c 

(Port Moller/Herendeen Bay). And 

lastly, the Tugidak Island State Critical 

Habitat Area and the McNeil River 

Sanctuary intersect with portions of 

Unit 5 (Kodiak, Kamishak, Alaska 

Peninsula). 

We acknowledge the efforts by the 

State to provide management 

protections that benefit listed species 

and their habitat. However, these areas 

meet the definition of critical habitat 

under the Act, which is the habitat 

essential to the conservation of the 

species that may require special 

management considerations or 

protections. Thus, whether habitat 

requires additional special management 

because some protections may already 

exist for it under State of Alaska law 

does not determine whether that habitat 


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meets the definition of ‘‘critical’’ under 

the Act. In fact, the presence of 

protections under State law 

demonstrates that special management 

considerations or protections may be 

necessary. 

This interpretation of the definition of 

critical habitat is consistent with the 

plain language of the Act, and its 

underlying policies. The Act 

specifically provides that ‘‘all Federal 

departments and agencies shall utilize 

their authorities in furtherance of the 

purposes of this chapter,’’ including the 

conservation of listed species and their 

habitat. Alternative State protections, 

even if they were considered to be 

equivalent or superior to critical habitat 

designation for the species’ 

conservation, are not a functional 

substitute for critical habitat 

designation. 

We have examined the types of 

protections that exist under State law to 

assess their effectiveness in protecting 

sea otter habitat. While ADNR Area 

Plans and ADFG special areas consider 

impacts to fish and wildlife resources 

and their habitat, neither of these types 

of protections are specifically designed 

to address sea otter concerns. 

Regarding threatened and endangered 

species, all ADNR Area Plans contain 

the following guidelines: 

All land use activities will be conducted 

consistent with state and federal Endangered 

Species Acts to avoid jeopardizing the 

continued existence of threatened or 

endangered species of animals or plants, to 

provide for their continued use of an area, 

and to avoid modification or destruction of 

their habitat. Specific mitigation 

recommendations should be identified 

through interagency consultation for any 

land use activity that potentially affects 

threatened or endangered species. 

Neither the sea otter nor its habitat is 

protected under the State Endangered 

Species Act, and thus receive no 

protections under that statute or the 

ADNR Area Plans. The protections in 

the ADNR Area Plans are limited to 

those provided in the Federal Act. Thus, 

absent the designation of critical habitat 

under the Federal Act, no consideration 

will be afforded for critical habitat 

under this provision in the ADNR Area 

Plans. 

Although the ADNR plans contain 

important goals and objectives for the 

protection of sensitive areas, which may 

include sea otter habitat, they do not 

specify criteria for how these objectives 

will be achieved. The management 

guidance provided by these plan 

designations does not contain clear 

standards to ensure that important sea 

otter habitat will be effectively 

protected. We have similar concerns 

regarding the effectiveness of the ADFG 

special area protections. In special 

areas, the primary mechanism for 

habitat protection is the requirement 

that a ‘‘special area permit’’ be obtained 

for many land and water use activities, 

including construction activities, 

destruction of vegetation, excavation, 

dredging, filling, and energy 

exploration, development, and 

production (5 AAC 95.420(a)). However, 

the plans lack measurable criteria for 

determining whether and how a 

particular activity subject to a permit 

application meets the dual goals of 

maintaining, protecting and enhancing 

habitat and maintaining public use, and 

do not provide assurances that the areas 

will be protected. 

Therefore, we conclude that the areas 

managed by the State of Alaska meet the 

statutory definition of critical habitat 

under the Act. We also conclude that 

the existing management protections for 

these areas are not a substitute for 

Federal critical habitat designation. 

Because of this, and in light of the 

benefits of critical habitat designation, 

the Secretary has decided not to 

exercise his discretion to exclude these 

areas covered by existing State of Alaska 

management from our designation of 

critical habitat for the southwest Alaska 

DPS of the northern sea otter. 

Comment 22: Various areas where 

human activities occur, including 

fishing, mining, logging, and oil and gas 

exploration, development, and 

production, should be excluded from 

designation as critical habitat. One 

commenter specifically requested 

exclusion of areas in Cook Inlet/Eastern 

Alaska Peninsula/Kodiak Island 

identified through the economic 

analysis as economically important, and 

two log transfer facilities in Kazakof Bay 

on Afognak Island. 

Our Response: Several commenters 

expressed concern about the designation 

of critical habitat in areas of human 

activities. Although the reason(s) were 

not explicitly stated, we presume the 

concern was related to the potential 

economic impacts that may result from 

critical habitat designation. As 

explained above under comment 19, the 

FEA concluded that the economic 

impacts of critical habitat including, but 

not limited to, the activities listed 

above, is estimated to be approximately 

$58,900 per year over the range of the 

entire DPS assuming a 7 percent 

discount rate. Third parties to section 7 

consultations on activities such as those 

listed above are only expected to bear 

$513–$875 per consultation in 

administrative costs related to the 

incremental costs of critical habitat 

designation for informal and formal 

consultations, respectively. Thus, third 

parties to consultations on activities 

such as fishing, mining, and logging are 

not expected to bear any significant 

costs due to critical habitat designation. 

We outline our rationale for why the 

physical and biological features are 

considered essential elsewhere in this 

final rule (see ‘‘Primary Constituent 

Elements’’). We also present the benefits 

of designating critical habitat later in 

this final rule, such as protections to the 

species by considering critical habitat in 

section 7 consultations, and the 

educational and information benefits of 

designation (see ‘‘Benefits of 

Designating Critical Habitat’’). 

Therefore, in light of these benefits and 

the minimal costs to third parties, the 

Secretary has decided not to exercise his 

discretion to exclude any areas from 

critical habitat based on economic 

reasons. 

Comment 23: One commenter 

requested that Chignik Bay be excluded 

from critical habitat designation. 

Our Response: No supporting 

information was provided by this 

commenter. As a result, the Secretary 

has decided not to exercise his 

discretion to exclude Chignik Bay for 

economic reasons (see our response to 

Comment 22 above) or other relevant 

factors, and this area has not been 

excluded from our designation of 

critical habitat. 

Comments Related to the Process of 

Designating Critical Habitat 

Comment 24: The public comment 

period for the proposed critical habitat 

designation was too short. 

Our Response: The applicable 

regulations implementing the Act and 

the Administrative Procedure Act 

require us to provide 60 days for public 

review and comment on a proposed rule 

designating critical habitat. The Service 

provided 60 days for public comment 

initially, and subsequently reopened the 

public comment period to allow 

additional public comments from May 8 

through July 9, 2009. In addition, we 

held a public hearing on June 18, 2009, 

in Anchorage, Alaska, and we operated 

a toll-free public comment hotline from 

June 9 through July 9, 2009, to enable 

callers to record their comments, which 

were later transcribed. We also 

conducted extensive outreach to notify 

the public of these additional public 

comment opportunities. Collectively, 

therefore, the amount of time provided 

for public comment from the 

publication of the proposed rule in 

December 2008 through July 2009 was 

effectively greater than 6 months. Given 

the above, we believe we provided 


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sufficient time and means for the public 

to comment on the proposed rule. 

Comment 25: The Service should 

consult directly with communities and 

Alaska Native Tribes within the 

proposed critical habitat area. 

Our Response: The Service conducted 

extensive public outreach with 

organizations, communities, and Alaska 

Natives within the range of the 

southwest Alaska DPS of the northern 

sea otter. We responded to all requests 

for additional information from various 

organizations and communities before 

submitting the proposed rule to 

designate critical habitat to the Federal 

Register. The Service remains 

committed to working with Alaska 

Natives on this and other issues 

regarding federally listed species and 

designated critical habitat. Further, as 

discussed later in this final rule, we 

have determined that there are no 

Native Alaskan Tribal lands within the 

boundaries of this designation of critical 

habitat for the sea otter. 

Comment 26: The Service should hold 

public hearings in several communities 

in southwest Alaska. 

Our Response: The communities 

suggested as sites for public hearings are 

located in relatively remote areas of 

southwest Alaska. Although we 

acknowledge the value of face-to-face 

meetings, the logistical difficulties of 

holding hearings in these southwest 

Alaska communities made them 

impractical. Instead, we used other 

methods to increase the opportunity for 

residents to provide comments verbally, 

as well as in writing. We held one 

public hearing in Anchorage, Alaska, on 

June 18, 2009, and provided telephone 

access for individuals who were unable 

to attend the hearing in person. We 

received one comment from attendees 

and received no calls during the 

hearing. To increase public access, we 

also established a toll-free ‘‘public 

comment hotline’’ that operated for the 

duration of the reopened public 

comment period, which occurred from 

June 9 through July 9, 2009. We 

received no comments on the public 

comment hotline. We believe these 

accommodations provided sufficient 

time and means for the public to 

comment on the proposed rule. 

Comment 27: The Service should 

consider all research, not just its own, 

in the designation of critical habitat. 

Our Response: In preparing this 

critical habitat designation, the Service 

thoroughly considered any and all 

relevant information about sea otters 

and their habitat. The vast majority of 

research used in the determination of 

PCEs and critical habitat was from nonService sources. As such, we believe 

that we used the best available scientific 

and commercial information on 

developing this critical habitat 

designation. The supporting 

documentation we used in preparing 

this rule is available for public 

inspection (see ADDRESSES). 

Comments on the Economic Analysis 

Comment 28: The Executive Summary 

should include a description of the 

difference between baseline and 

incremental impacts and which is the 

appropriate consideration of cost under 

the Act’s critical habitat inquiry. 

Our Response: Paragraph 6 on page 

ES–2 of the draft economic analysis 

defines the baseline and incremental 

impacts; these definitions are further 

detailed in Chapter 2. Section 2.1 

summarizes the case history describing 

the reason for providing both categories 

of impacts, quantifying them separately, 

in the economic analysis. 

Comment 29: Two comments 

provided on the draft economic analysis 

state that the analysis needs to quantify 

the benefits of critical habitat 

designation. Specifically, one comment 

argues that the analysis should employ 

results of work by John Loomis on the 

economic benefits of southern sea otter 

protection in California as it is directly 

relevant. The comment states that the 

economic analysis is not correct in 

concluding that the Southwest Alaska 

DPS does not generate tourism benefit 

because of the remote nature of the 

proposed critical habitat area. Although 

tourism activity may be lower in Alaska 

habitat than in California habitat, the 

comment asserts that sea otters in 

Alaska do provide some tourism benefit 

that should be quantified. The comment 

further states that the economic analysis 

does not attempt to develop estimates of 

passive use values, noting that 

beneficiaries include all U.S. citizens 

who hold existence values for the sea 

otters. The comment cites a 2000 Land 

Economics article by Loomis concluding 

that even small changes in population 

levels of threatened and endangered 

species can generate large welfare 

impacts and that the economic analysis 

should attempt to construct a range of 

potential population changes that might 

result from critical habitat designation, 

for example, via expert interviews. 

Another comment notes that potential 

ancillary economic benefits of critical 

habitat may stem from the protection of 

ecosystem services, increasing 

recreational and wildlife-viewing 

opportunities, and concurrent 

conservation of other species. 

Our Response: Section 8.2 of the draft 

economic analysis describes Dr. Loomis’ 

research related to the value of sea otter 

conservation in California, providing 

the quantitative results. The Loomis 

study estimates the tourism and 

nonmarket economic values per sea 

otter from an increase in the population 

of 196 otters expected to result from a 

translocation program. As detailed in 

the draft economic analysis, to estimate 

tourism benefits Loomis transfers a 

point estimate of benefits of wildlife 

viewing from a group thesis from the 

University of Santa Barbara (Aldrich et 

al., 2001). He adjusts this estimate to 

narrow the value to the benefits 

specifically of viewing sea otter using a 

1985 Hageman study developed for the 

National Marine Fisheries Service. 

Loomis accordingly estimates tourism 

benefits in Southern California of 

$13,220 to $69,000 in income and 0.53 

to 2.8 jobs per otter. Loomis employs 

benefits transfer techniques using the 

Hageman study and a 1996 Loomis and 

White meta-analysis to determine a 

range for the non-market value of an 

increase in sea otter population of 196. 

The resulting benefit to California 

households is $2.32 to $5.81 per 

household. 

The draft economic analysis agrees 

that the Loomis study evidences that 

real social welfare benefits are 

associated with expansions in sea otter 

populations. The Loomis study, 

however, does not provide an adequate 

basis to quantify the specific benefits of 

sea otter critical habitat designation. 

Regarding the tourism benefits, while 

the commodities (sea otters) being 

valued are similar in the Loomis study 

and the draft economic analysis, the 

potentially affected populations 

(Southern California versus Southwest 

Alaska) are not. The Southern California 

sea otter population is comparatively 

significantly more accessible for wildlife 

viewing. In fact, the Loomis study only 

applies the estimated per otter tourism 

benefits in Southern California to those 

otters determined to be accessible for 

viewing. While some otter viewing may 

occur in Southwest Alaska, the remote 

character of the habitat is not 

comparable to Southern California 

habitat. With regard to the nonmarket 

(e.g., existence and option) values, the 

Loomis study models a specific policy 

scenario of otter population changes 

(increase of 196 otters) to derive per 

otter value estimates. The potential 

effect on otter populations of the 

conservation efforts forecast to occur in 

the baseline and incremental scenarios 

of the draft economic analysis is 

unknown. While the comment suggests 

surveying experts to determine how 

critical habitat may affect otter 

populations in order to estimate a total 


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nonmarket benefit, Service biologists are 

not able to project population effects of 

the regulation. 

Finally, neither the Loomis study nor 

the draft economic analysis provides a 

quantitative estimate of the total 

ecosystem service benefits. The Loomis 

study provides a value per acre for 

coastal ecosystems of $7,600 per acre 

citing a 1997 Costanza et al. study. 

Section 8.3 of the draft economic 

analysis highlights the potential 

categories of ecosystem service benefits 

associated with otter conservation by 

unit across the proposed critical habitat 

designation. These benefit categories 

include improved water quality, 

aesthetic benefits, regional economic 

benefits, and improved health of other, 

coexisting species. 

Comment 30: One comment states 

that the economic analysis is deficient 

in not at least providing speculative 

estimates of incremental costs related to 

the critical habitat designation for oil 

and gas development projects. The 

comment highlights the following 

possible impacts on any oil and gas 

development that might occur in the 

area of the proposed designation: 

Increased costs of permitting oil and gas 

development projects; delay costs; 

decreased investment, exploration, and 

lease sales, resulting in decreased 

revenue accruing to the State of Alaska; 

community-level impacts, including 

loss of jobs, etc.; and natural gas supply 

issues, resulting in increased costs of 

natural gas. The commenter believes the 

draft economic analysis should assess 

the impact of the need to build in a 

timing window for seismic exploration, 

additional restrictions on drilling, 

seismic surveys, pipeline routes, 

helicopter overflights, and barging 

operations. The commenter expressed 

particular concern about potential oil 

and gas activity in Unit 4C, Port MollerHerendeen Bay. 

Our Response: Section 4.4 of the 

economic analysis describes potential 

impacts of critical habitat for the sea 

otter on oil and gas activities. As 

described in the analysis, oil and gas 

development is reasonably foreseeable 

within or in offshore areas that may 

affect critical habitat areas in the future. 

Experts in the field of oil and gas 

development in Alaska, however, assert 

that forecasting any specific scenario 

predicting the scope and scale of oil and 

gas development in this area would be 

speculative. In addition, the Service has 

not consulted on oil and gas activity as 

relates to the sea otter. Because the 

Service has not yet consulted on oil and 

gas activities associated with sea otters, 

and because the Service plans to 

address future planned activities on a 

case-by-case basis, it is not possible to 

predict specific conservation efforts for 

the sea otter at this time. However, the 

FEA discusses potential project 

modifications that the Service might 

request for sea otter based on past 

examples from consultations involving 

the Steller’s eider, a listed bird species 

with designated critical habitat that 

overlaps sea otter critical habitat. From 

these consultations project 

modifications have resulted in increased 

costs to operators rather than limitations 

on the industry’s ability to survey or 

develop oil and gas resources in critical 

habitat areas. Past conservation 

measures have included development of 

Geographic Response Strategies for an 

area, hiring an experienced onboard 

monitor for active vessels and aerial 

species monitoring. 

Comment 31: The State of Alaska 

describes that the economic analysis 

should provide a more comprehensive 

estimate of the incremental costs of 

critical habitat on a potential offshoreonshore pipeline at Port MollerHerendeen Bay and of docks and utility 

corridors on the south side of the Alaska 

Peninsula. While the specific timing 

and location of these projects are 

uncertain, the comment argues the 

economic analysis should provide an 

estimated range of potential costs. 

Our Response: Chapter 4 of the draft 

economic analysis discusses the 

potential for construction and operation 

of a pipeline to transport oil and/or gas 

from Bristol Bay and points northward 

to an outlet on the south side of the 

Alaska Peninsula, which may include 

building a pipeline across the Alaska 

Peninsula. The analysis cites a recent 

study which estimates that an 

additional 482.8 km (300 miles) of 

pipeline will need to be constructed to 

support the oil and gas industry within 

the North Aleutian Basin over the next 

50 years. The final economic analysis 

includes discussion of the four potential 

Trans-Peninsula Transportation 

Corridors identified in the Bristol Bay 

Area Plan, one of which may be located 

at the southern end of the Port MollerHerendeen Bay critical habitat unit. The 

analysis also notes that the Bristol Bay 

Area Plan has identified the Port MollerHerendeen Bay Area as having 

‘‘modest’’ potential for oil and gas 

development, and that ‘‘one possible 

use for land at the back of Herendeen 

Bay [is for it] to be used for transpeninsular transport and associated 

development.’’ The analysis describes 

that the State of Alaska has identified 

the Port Moller-Herendeen Bay area as 

being a promising area for locating this 

pipeline. 

Specific plans for timing and location 

of the pipeline do not exist; siting of the 

pipeline and associated support 

facilities will depend on where the 

natural gas resources are located. Thus, 

the analysis presents information about 

the potential locations of pipelines 

within critical habitat, but does not 

quantify specific impacts of otter 

conservation on any project. 

Comment 32: The State of Alaska 

notes that the economic analysis 

presents estimates of potential costs for 

3–D seismic surveys in Cook Inlet but 

that an estimate of costs for similar 

projects in Bristol Bay would be more 

informative and likely much higher. 

Our Response: As described above 

and in Chapter 4 of the draft economic 

analysis, the Service has not consulted 

on oil and gas activity as it relates to the 

sea otter. However, the analysis 

discusses available examples from the 

one past consultation on seismic 

surveying involving the Steller’s eider. 

This consultation occurred in Cook 

Inlet. Thus, no information is currently 

available to inform an analysis of 

potential impacts of sea otters on 

seismic survey activities in Bristol Bay. 

The final economic analysis now notes 

the State’s assertion that costs for 

potential, similar projects in Bristol Bay 

may cost more than the Cook Inlet 

example due to the comparatively 

remote nature of Bristol Bay. 

Comment 33: The State of Alaska 

states that economic analysis describes, 

‘‘a history of opposition to oil and gas 

development within the region,’’ 

referencing assumptions made in 1985 

regarding oil and gas production in the 

1994 to 1999 time frame. However, no 

production was allowed in that 

timeframe due to a Presidential 

moratorium and a Congressional 

moratorium following the 1989 Exxon 

Valdez oil spill. Since that time, the 

Peninsula Borough, Bristol Bay 

Borough, and Aleutians East Borough 

signed a Memorandum of 

Understanding with the State affirming 

support and cooperation to facilitate 

responsible oil and gas development in 

the region. 

Our Response: Section 4.4 of the final 

economic analysis clarifies that recent 

Memoranda of Understanding have been 

signed by local residents in support of 

responsible oil and gas development in 

the Bristol Bay region. 

Comment 34: A comment provided on 

the draft economic analysis highlights a 

series of potential transportation 

projects, generally related to potential 

future oil and gas development activity, 

and states that incremental increases in 

the cost of constructing these projects 

associated with critical habitat 


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designation should be considered. 

Specific projects of concern include the 

Alaska Peninsula Regional 

Transportation Corridor, Community 

Transportation Plans, port and harbor 

projects, and the three Trans-Peninsula 

Transportation Corridors identified in 

the Bristol Bay Area Plan. 

Our Response: Section 5.1 of the 

analysis considers potential impacts to 

transportation projects, including 

airports, ports, and harbors. Forecast 

projects were determined through 

communication with both the Federal 

Aviation Administration and Alaska 

Department of Transportation, along 

with publicly available transportation 

plans from these agencies. The final 

economic analysis incorporates a 

discussion of the potential 

transportation projects described in the 

comment; these transportation projects, 

however, are largely land-based. For 

example, the Regional Transportation 

Corridors and Community 

Transportation Projects in the Bristol 

Bay Area Plan, including the Chigniks 

Road Intertie, are all ground 

transportation projects. Because these 

projects do not involve construction in 

marine waters, it is unclear how they 

would be affected by otter conservation. 

Comment 35: One commenter notes 

that the draft economic analysis does 

not quantify impacts to other types of 

energy projects (e.g., wind, wave, and 

geothermal projects). The commenter 

states that the Makah Bay offshore Wave 

Energy Pilot Project described in the 

economic analysis could be used to 

generate an estimate of incremental 

costs for similar projects in the study 

area. The comment also mentions that a 

geothermal project near Naknek is 

currently being permitted. 

Our Response: The economic analysis 

addresses potential impacts to tidal 

energy projects in Section 5.1.4. This 

section includes a discussion of all tidal 

energy projects that have received a 

preliminary permit from FERC. Outside 

of the Naknek project, the comment 

does not provide new information about 

specific projects not included in the 

analysis. 

With respect to impacts on wave 

energy projects, little is known for the 

critical habitat area. While the Makah 

Bay Wave Energy Pilot Project discussed 

in the analysis is suggestive of potential 

project modifications that could be 

undertaken to reduce threats to the otter 

and its habitat, Makah Bay is in 

Washington State, and conditions are 

thought to be distinctly different from 

those being designated as critical habitat 

in Alaska. Further, no wave energy 

projects are currently proposed in 

critical habitat areas. 

At this time, there do not appear to be 

any plans for offshore wind farms 

within the proposed critical habitat 

designation. It is therefore likewise 

uncertain whether and to what extent 

such projects may occur in the proposed 

designation. 

Finally, Chapter 5 of the final 

economic analysis is revised to describe 

the potential for geothermal energy 

development in critical habitat areas, in 

particular the proposed Naknek project 

in the vicinity of Unit 5. As discussed, 

the Aleutian Islands have a high 

potential for geothermal energy 

development. However, similar to future 

oil and gas development, the location of 

potential future geothermal projects is 

unknown at this time. Because no 

consultations on geothermal projects 

have occurred for otters, the scope of 

potential project modifications for the 

sea otter is also unknown. With respect 

to the Naknek geothermal project and 

associated transmission lines, these do 

not appear to be located near the 

proposed critical habitat. It is, therefore, 

unclear how the Naknek project would 

be affected by the designation. 

Other Comments 

Comment 36: The proposed rule 

mischaracterizes the importance of this 

area to the State and its citizens. The 

proposed rule states, ‘‘The scale of 

human activities that occur within the 

proposed critical habitat areas is 

exceedingly small.’’ 

Our Response: The statement from the 

proposed rule shown above was not 

intended in any way to diminish the 

importance of southwest Alaska. Rather, 

it was included to illustrate that, for the 

most part, the range of sea otter habitat 

in southwest Alaska is relatively free 

from human disturbance. We have 

clarified this point in this final rule. 

Comment 37: One commenter stated 

that based on their observations of sea 

otter movements between Kamishak Bay 

and the Kenai Peninsula, the areas north 

of Cape Douglas should be excluded 

from critical habitat designation. This 

commenter also suggested that sea otters 

in the Barren Islands also belong to the 

southcentral Alaska population stock, 

and this area should also be excluded 

from critical habitat designation. 

Our Response: This comment 

addresses the discreteness aspect of the 

DPS justification, which was part of the 

August 9, 2005, final listing rule (70 FR 

46366). We recognize that the issue of 

sea otter movements across Cook Inlet is 

not fully clear; however, the best 

available scientific information 

indicates that the waters of Cook Inlet 

are the appropriate boundary between 

the southwest and southcentral Alaska 

population stocks of sea otters (Gorbics 

and Bodkin 2001, p. 636). Additional 

studies using tagged sea otters, as well 

as genetic analysis of sea otters from 

Kamishak Bay, Kachemak Bay, and the 

Barren Islands, would be helpful in 

addressing this issue. In the meantime, 

we are required to designate critical 

habitat for the southwest Alaska DPS of 

the northern sea otter, which includes 

lower western Cook Inlet, north of Cape 

Douglas, and also the Barren Islands. As 

such, nearshore marine waters in these 

areas that contain the identified PCEs 

are included in our critical habitat 

designation. 

Summary of Changes From the 2008 

Proposed Rule 

Comments on our December 2008 

proposed rule (73 FR 76454) to 

designate critical habitat varied 

considerably. While some commenters 

stated that our proposed designation did 

not include sufficient area for the 

conservation of the southwest Alaska 

DPS of the northern sea otter, they did 

not provide specific supporting 

information relative to additional PCEs 

that would expand the extent of the 

critical habitat designation. Other 

commenters stated that our proposed 

designation encompassed too large an 

area, and several requested that specific 

areas be excluded from designation 

based on economic reasons, on existing 

management plans that obviate the need 

for special management considerations 

or protections, and for national security 

reasons. We considered these requests 

for exclusion, and for the reasons 

explained previously in our responses 

to public comments, we do not exclude 

any areas from the final designation. 

We refined the GIS data layers used 

to map critical habitat since the 

proposed rule was published in 

December 2008, resulting in slight 

changes to the size of some units. Other 

than this slight revision, our final 

designation of critical habitat is 

essentially unchanged from what we 

proposed in December 2008. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by a species, 

at the time it is listed in accordance 

with the Act, on which are found those 

physical or biological features 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by a species 


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at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7 of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where the 

landowner seeks or requests Federal 

agency funding or authorization for an 

activity that may affect a listed species 

or critical habitat, the consultation 

requirements of section 7 of the Act 

would apply. However, even in the 

event of a finding of destruction or 

adverse modification, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features essential to the conservation of 

the species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (areas on which are 

found the primary constituent elements, 

as defined at 50 CFR 424.12(b)). 

Occupied habitat that contains the 

features essential to the conservation of 

the species meets the definition of 

critical habitat only if those features 

may require special management 

considerations or protection. Under the 

Act, we can designate unoccupied areas 

as critical habitat only when we 

determine that the best available 

scientific data demonstrate that the 

designation of that area is essential to 

the conservation needs of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be proposed as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designated critical habitat may not 

include all of the habitat areas that we 

may eventually determine, based on 

scientific data not now available to the 

Service, are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions we implement 

under section 7(a)(1) of the Act and our 

other wildlife authorities. They are also 

subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard, as determined on the basis of 

the best available scientific information 

at the time of the agency action. 

Federally funded or permitted projects 

affecting listed species outside their 

designated critical habitat areas may 

result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if new 

information available to these planning 

efforts calls for a different outcome. 

Primary Constituent Elements (PCEs) 

In accordance with section 3(5)(A)(i) 

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

occupied at the time of listing to 

propose as critical habitat, we consider 

areas containing the physical and 

biological features that are essential to 

the conservation of the species and may 

require special management 

considerations or protection. These 

features are the specific primary 

constituent elements (PCEs) laid out in 

the appropriate quantity and spatial 

arrangement for the conservation of the 

species. These include, but are not 

limited to: 

1. Space for individual and 

population growth and for normal 

behavior; 

2. Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

3. Cover or shelter; 

4. Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

5. Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derive the specific primary 

constituent elements (PCEs) for the 

southwest Alaska DPS from its 

biological needs, as described in the 

Background section of our proposed 

rule published at 73 FR 76454 on 

December 16, 2008, and the following 

information. 

Space for Individual and Population 

Growth and for Normal Behavior 

Sea otters exhibit complex movement 

patterns related to habitat 

characteristics, social organization, and 

reproductive biology. It is likely that 

movements differ among populations 

depending on whether a population is at 

or near carrying capacity or has access 

to unoccupied suitable habitat into 

which it can expand (Riedman and 

Estes 1990, p. 58). Most research into 

sea otter movements has been 

conducted where unoccupied habitat is 

available to dispersing animals. Early 

research in the Aleutian Islands by 

Kenyon (1969, p. 204) also found that 

males have larger home ranges than 

females and described the female sea 

otter’s home range as including 8–16 km 

(5.0–9.9 mi) of contiguous coastline. 

Male sea otter home ranges are highly 

variable. For territorial (breeding) males, 


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the area defended is smaller than that of 

a female range, but the territory is not 

necessarily defended year-round and 

may include larger scale movements to 

more productive feeding grounds. 

Breeding may not occur until a male is 

older (7–10 years) and in an established 

population. Little is known about the 

home range of non-breeding males. In 

the listed region, where dramatic 

reduction in numbers have occurred, 

even less is known about movement 

patterns and home range sizes (A. 

Doroff, USFWS, pers. comm. 2008). 

At present, sea otters occur 

throughout nearly all of their former 

range in southwest Alaska, albeit at 

considerably lower densities than were 

present prior to the recent population 

decline that led to the listing of the DPS. 

Space for individual and population 

growth and for normal behavior does 

not appear to be a limiting factor for this 

DPS. 

Food, Water, Air, Light, Minerals, or 

Other Nutritional or Physiological 

Requirements 

The sea otter is a generalist predator, 

known to consume a wide variety of 

different prey species (Kenyon 1969, p. 

110; Riedman and Estes 1990, p. 36; 

Estes and Bodkin 2002, p. 847). With 

few exceptions, their prey consist of 

sessile, or slow-moving, benthic 

invertebrates such as mollusks, 

crustaceans, and echinoderms, 

including sea urchins. Foraging occurs 

in habitats with rocky and soft sediment 

substrates between the high intertidal 

zone to depths slightly in excess of 100 

m (328.1 ft). Preferred foraging habitat is 

generally in depths less than 40 m 

(131.2 ft) (Riedman and Estes 1990, p. 

31), although studies in southeast 

Alaska have found that some animals 

forage mostly at depths from 40–80 m 

(131.2–262.5 ft) (Bodkin et al. 2004, p. 

318). 

The diet of sea otters is usually 

studied by observing prey items brought 

to the surface for consumption, and 

therefore diet composition is usually 

expressed as a percentage of all 

identified prey that belong to a 

particular prey species or type. 

Although the sea otter is known to prey 

on a large number of species, only a few 

tend to predominate in the diet in any 

particular area. Prey type and size 

depends on location, habitat type, 

season, and length of occupation. 

Sea otters can be very diverse in their 

diets. Different habitats offer different 

types of prey. There are about 200 

known prey species for sea otters, but 

the dominant ones that tend to sustain 

the population are crab, clam, urchin, 

and mussel. The predominately softsediment habitats of southeast Alaska, 

Prince William Sound, and Kodiak 

Island support populations of clams that 

are the primary prey of sea otters. 

Throughout most of southeast Alaska, 

burrowing clams (species of Saxidomus, 

Protothaca, Macoma, and Mya) 

predominate in the sea otter’s diet 

(Kvitek et al. 1993, p. 172). They 

account for more than 50 percent of the 

identified prey, although urchins (S. 

droebachiensis) and mussels (Modiolis 

modiolis, Mytilus spp., and Musculus 

spp.) can also be important. In Prince 

William Sound and Kodiak Island, 

clams account for 34–100 percent of the 

otter’s prey (Calkins 1978, p. 127; Doroff 

and Bodkin 1994, p. 202; Doroff and 

DeGange 1994, p. 706). Mussels (Mytilus 

trossulus) apparently become more 

important for sea otters as a prey base 

as the length of occupation by sea otters 

increases, ranging from 0 percent of 

their prey base at newly occupied sites 

at Kodiak to 22 percent of their prey 

base in long-occupied areas (Doroff and 

DeGange 1994, p. 709). Crabs (C. 

magister) were once important sea otter 

prey in eastern Prince William Sound, 

but apparently have been depleted by 

otter foraging and are no longer eaten in 

large numbers (Garshelis et al. 1986, p. 

642). Sea urchins are minor components 

of the sea otter’s diet in Prince William 

Sound and the Kodiak archipelago. In 

contrast, the diet in the Aleutian, 

Commander, and Kuril Islands is 

dominated by sea urchins and a variety 

of fin fish (Kenyon 1969, p. 116; Estes 

et al. 1982, p. 250). Sea urchins tend to 

dominate the diet of low-density sea 

otter populations, whereas more fishes 

are consumed in populations near 

equilibrium density (Estes et al. 1982, p. 

250). For unknown reasons, fish are 

rarely consumed by sea otters in regions 

east of the Aleutian Islands. 

As the population has declined in the 

past 20 years throughout much of the 

range of the southwest Alaska DPS of 

the northern sea otter, prey species such 

as sea urchins have increased in both 

size and abundance (Estes et al. 1998, p. 

474). Recent studies of sea otter body 

condition indicate improved overall 

health and suggest that limited 

nutritional resources were not the cause 

of the observed population decline 

(Laidre et al. 2006, p. 987). Although 

food, water, air, light, minerals, or other 

nutritional or physiological 

requirements do not appear to be a 

limiting factor, availability of sufficient 

prey resources and areas in which to 

forage are essential to the conservation 

of the DPS. 

Cover or Shelter 

Estes et al. (1998, p. 473) believe the 

decline of sea otters in southwest Alaska 

is the result of increased predation, 

most likely by killer whales (Orcinus 

orca). These authors examined a suite of 

information and concluded that the 

recent population decline was likely not 

due to food limitation, disease, or 

reduced productivity. Several lines of 

evidence, including increased frequency 

of killer whale attacks and significantly 

higher mortality rates in Kuluk Bay on 

Adak Island, as compared to Clam 

Lagoon, a protected area that is 

inaccessible to killer whales, also 

support this conclusion (Estes et al. 

1998, p. 473). 

A shift in distribution toward the 

shoreline has also been observed in the 

western and central Aleutian Islands, 

which may allow otters easier escape 

onto the land. In August 2007, the 

Service and USGS conducted skiffbased surveys in the Near and Rat Island 

groups in the western Aleutians. In 

addition to recording the number and 

approximate location of every otter 

sighting, observers also recorded the 

approximate distance to the nearest 

shore. The median distance to shore for 

811 sea otters observed was 10 m (32.8 

ft); 90 percent of all otters observed 

were within 100 m (328.1 ft) (USFWS 

unpublished information). Aerial survey 

data indicate that in some areas, the 

majority of the remaining sea otter 

population inhabits sheltered bays and 

coves, which may also provide 

protection from marine predators 

(USFWS unpublished information). 

Canopy-forming kelps (including 

species of Macrocystis, Druehlia, and 

Nereocystis) provide resting habitat 

(Kenyon 1969, p. 57; Riedman and Estes 

1990, p. 23), and may also provide 

protection from marine predators (C. 

Matkin, personal communication). Kelp 

forests occur primarily in waters less 

than 20 m (65.6 ft) in depth (O’Clair and 

Lindstrom 2000, pp. 41, 57). In addition, 

killer whales may be less likely to forage 

in shallow, constricted areas less than 2 

m (6.6 ft) in depth (C. Matkin, personal 

communication). 

Based on our understanding of threats 

to the southwest Alaska DPS, we believe 

that features that provide protection 

from marine predators, especially killer 

whales, are essential to the conservation 

of the DPS. 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

There appears to be a positive 

relationship between shoreline 

complexity and sea otter density 

(Riedman and Estes 1990, p. 23). 


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Although not obligatory, headlands, 

coves, and bays appear to offer preferred 

resting habitat, particularly to females 

with pups, presumably because they 

provide protection from high wind and 

sea conditions. Surveys of sea otters in 

southwest Alaska do not indicate that 

pup production is a limiting factor for 

the DPS (USFWS and USGS 

unpublished information). 

Bodkin et al. (2004, p. 305) found that 

85 percent of all foraging dives by 

female sea otters were in waters less 

than 20 m (65.6 ft) in depth. Although 

this study was conducted in southeast 

Alaska, additional studies using timedepth recorders indicate that female sea 

otters predominantly forage in 

shallower water than males. 

Habitats Protected From Disturbance or 

Representative of the Historical, 

Geographical, and Ecological 

Distributions of the Species 

Within the range of the southwest 

Alaska DPS of the northern sea otter, the 

vast majority of sea otter habitats is 

undisturbed, and is representative of the 

historical, geographical, and ecological 

distributions of the species. Changes in 

climatic conditions, due to both 

‘‘normal’’ climate variability (Hunt and 

Stabeno 2005, p. 300) and human 

activities (Schumacher and Kruse 2005, 

p. 283), are expected to modify both the 

physical environment and the biota 

within the range of the southwest 

Alaska DPS. It would be expected that 

climate change would have more impact 

on sea otters at the southern end of the 

range, but this expectation should be 

tempered by the realization that 

atmospheric changes can influence 

ecosystems in many complex ways. For 

example, increased atmospheric carbon 

dioxide is causing increased ocean 

acidification, in turn inhibiting the 

process of calcification in virtually all 

ocean-dwelling species. It is not clear 

whether climate change will affect sea 

otter recovery. Therefore it will be 

important to monitor these changes and 

to evaluate them in regard to sea otter 

ecology and population dynamics. 

Primary Constituent Elements for the 

Southwest Alaska DPS of the Northern 

Sea Otter 

Within the geographical area 

occupied by the southwest Alaska DPS 

of the northern sea otter at the time of 

listing, we must identify the primary 

constituent elements (PCEs) laid out in 

the appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS (i.e., the 

essential physical and biological 

features) that may require special 

management considerations or 

protections. 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species, we 

have determined that the southwest 

Alaska DPS of the northern sea otter’s 

PCEs are: 

1. Shallow, rocky areas where marine 

predators are less likely to forage, which 

are waters less than 2 m (6.6 ft) in 

depth; 

2. Nearshore waters that may provide 

protection or escape from marine 

predators, which are those within 100 m 

(328.1 ft) from the mean high tide line; 

3. Kelp forests that provide protection 

from marine predators, which occur in 

waters less than 20 m (65.6 ft) in depth; 

and 

4. Prey resources within the areas 

identified by PCEs 1, 2, and 3 that are 

present in sufficient quantity and 

quality to support the energetic 

requirements of the species. 

This final critical habitat designation 

encompasses those areas containing the 

PCEs necessary to support one or more 

of the species’ life history functions and 

laid out in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the DPS. All units in 

this designation contain some or all of 

the PCEs and support multiple life 

processes. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the occupied areas 

contain features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protections. The range 

of the southwest Alaska DPS of the 

northern sea otter is sparsely populated 

by humans. There are only 31 populated 

communities located within an area that 

contains approximately 18,000 km 

(11,184 mi) of coastline. The human 

population within the range of the DPS 

is approximately 17,000 persons living 

in 31 communities (State of Alaska 

Department of Commerce, Community, 

and Economic Development Database 

2006). As a consequence, the range of 

the sea otter habitat in southwest Alaska 

is relatively free of human disturbances. 

Potential activities that could harm the 

identified physical and biological 

features include, but are not limited to, 

dredging or filling associated with 

construction of airports, seaports, and 

harbors; commercial shipping; and oil 

and gas development and production. 

The following discussion of these 

activities is not intended to be a 

comprehensive list of all potential 

activities for which the Service may 

consult under section 7 of the Act, but 

rather a list of those we believe, based 

on current available information, are 

reasonably likely to occur. 

Pollution from various potential 

sources, including oil spills from 

vessels, or discharges from oil and gas 

drilling and production, could render 

areas containing the identified physical 

and biological features unsuitable for 

use by sea otters, effectively negating 

the conservation value of these features. 

Because of the vulnerabilities to 

pollution sources, these features may 

require special management or 

protection through such measures as 

placing conditions on Federal permits 

or authorizations to stimulate special 

operational restraints, mitigative 

measures, or technological changes. 

The shipping industry transports 

various types of petroleum products 

both as fuel and cargo within the range 

of the southwest Alaska DPS. 

Information about the types and 

quantities of both persistent and nonpersistent oil has been summarized in a 

report on vessel traffic within the 

Aleutians subarea (Nuka Research and 

Planning Group 2006). Persistent fuels 

such as #6 bunker oil, bunker C, and 

IFO 380 have low dissipation and 

evaporation rates, and will remain on 

the surface of marine waters or along 

shorelines much longer than nonpersistent fuel such as diesel, gasoline, 

and aviation fuel. Approximately 3,100 

ship voyages occur through the 

Aleutians each year. Most of these 

voyages are by bulk and general freight 

ships (1,300) and container ships 

(1,200). The median fuel capacity for 

bulk and general freight ships is 470,000 

gallons of persistent fuel oil; for 

container ships, the median capacity is 

1.6 million gallons of persistent fuel oil. 

In addition, there are about 265 voyages 

by motor vehicle carriers with an 

estimated average fuel capacity of 

500,000 gallons of persistent fuel oil. 

There are also approximately 22 voyages 

by tanker ships transporting about 400 

million gallons of refined oil. The 

figures quoted above are for the 

Aleutians subarea only, which includes 

the North Pacific great circle route from 

the west coast of North America to Asia. 

Information about shipping traffic that 

occurs in other parts of the southwest 

Alaska DPS is not well-documented, 

though it is presumably on a much 

smaller scale compared to what occurs 

through the Aleutians. 

Numerous instances of vessel 

incidents have been documented in the 

Aleutians over the past 15 years, 

including loss of maneuverability, 

grounding, and oil spills (Nuka 

Research and Planning Group 2006, p. 


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29). Nearly 500 incidents affecting the 

seaworthiness of U.S. vessels were 

reported in the Aleutians from 1990 

through July 2006. U.S. vessels 

reporting incidents were usually smaller 

than foreign vessels, and were primarily 

fishing vessels. An additional 48 

incidents affecting seaworthiness of 

foreign vessels were reported between 

1991 and July 2006. The bulk grain ship 

M/V Selendang Ayu, which ran aground 

on Unalaska Island in December 2004, 

is known to have resulted in the death 

of two sea otters. The long-term impacts 

of that spill on sea otter habitat use are 

not yet known. 

Various safeguards have been 

established since the 1989 Exxon 

Valdez oil spill to minimize the 

likelihood of another spill of 

catastrophic proportions in Prince 

William Sound. Tankers, other vessels, 

fuel barges, and onshore storage 

facilities are potential sources of oil and 

fuel spills that could affect sea otters in 

the southwest Alaska DPS. A review of 

the Alaska Department of 

Environmental Conservation database 

indicates no crude-oil spills were 

reported within the range of the 

southwest Alaska DPS during the 10- 

year period from July 1, 1995 to June 30, 

2005. Of the 520 reported spills of 

refined products, 82 percent were from 

vessels; most of these (70 percent) 

involved quantities smaller than 10 

gallons. The majority of vessel spills 

occurred in the western Aleutian (149), 

eastern Aleutian (107), and Kodiak, 

Kamishak, Alaska Peninsula (130) 

management units. Only 7 spills were 

reported where the quantity was greater 

than 5,000 gallons of material. The 

largest was the M/V Selendang Ayu, 

which spilled 321,052 gallons of IFO 

380 fuel and an additional 14,680 

gallons of diesel. 

In 2008, the U.S. Coast Guard, the 

State of Alaska, and the National 

Academies of Science completed the 

development of a comprehensive risk 

assessment for the Aleutian Islands 

(Transportation Research Board of the 

National Academies 2008, 225 pp.) 

Although the probability of occurrence 

of a catastrophic oil spill may be 

relatively small, the potential for 

disastrous consequences suggests that 

measures to prevent or respond to spills 

may be important to the recovery of the 

southwest Alaska DPS. The Coast Guard 

and Maritime Transportation Act of 

2004 (H.R. 2443) requires oil-spill 

contingency plans for vessels over 400 

gross tons that call on U.S. ports. In 

addition to contingency plans for 

vessels of this size class, the Alaska 

Department of Environmental 

Conservation (ADEC) has both a unified 

spill-response plan as well as 10 subarea 

plans. The southwest Alaska DPS is 

covered by the Aleutian, Bristol Bay, 

Kodiak, and Cook Inlet subarea plans. In 

addition, ADEC is developing 

Geographic Response Strategies (GRS) 

that are designed to be a supplement to 

the Subarea Contingency Plans for Oil 

and Hazardous Substances Spills and 

Releases. The GRS are the current 

standard for site-specific oil-spillresponse planning in Alaska. 

The first and primary phase of an oilspill response is to contain and remove 

the oil at the scene of the spill or while 

it is still on the open water, thereby 

reducing or eliminating impacts on 

shorelines or sensitive habitats. If some 

of the spilled oil escapes the first-phase 

containment and removal, the second, 

but no less important, phase is to 

intercept, contain, and remove the oil in 

the nearshore area. The intent of phase 

two is the same as phase one: Remove 

the spilled oil before it affects sensitive 

environments. If phases one and two are 

not fully successful, a third phase (GRS) 

is designed to protect sensitive areas in 

the path of the oil. The purpose of phase 

three is to protect selected sensitive 

areas from the impacts of a spill or to 

minimize that impact to the maximum 

extent practical. Critical habitat for the 

southwest Alaska DPS of the northern 

sea otter will be incorporated into the 

GRS system to facilitate this additional 

level of spill response. 

Existing commercial fishing activities, 

and their target species (which are not 

considered prey for sea otters), within 

southwest Alaska primarily occur 

outside of the critical habitat areas in 

this rule (Funk 2003, p. 2). With the 

exception of oil spills from shipwrecks, 

we do not believe that existing 

commercial fishing activities in 

southwest Alaska have the potential to 

harm the identified physical and 

biological features for the southwest 

Alaska DPS of the northern sea otter. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining areas occupied 

at the time of listing that contain 

features essential to the conservation of 

the southwest Alaska DPS of the 

northern sea otter, and areas 

unoccupied at the time of listing that are 

essential to the conservation of the DPS, 

or both. In designating critical habitat 

for the southwest Alaska DPS of the 

northern sea otter, we reviewed the 

relevant information available, 

including peer-reviewed journal 

articles, unpublished reports, the final 

listing rule, and unpublished materials 

(such as survey results and expert 

opinions). In general, sea otters occupy 

the vast majority of the available habitat 

within southwest Alaska. Exceptions 

include portions of Kodiak Island where 

otters have yet to recolonize their former 

range, and there may also be some 

individual islands in the Aleutian 

archipelago where otters have 

disappeared (Doroff et al. 2003, p. 58). 

In general, the range of designated 

critical habitat encompasses all areas 

that have been historically occupied by 

the DPS. 

We have reviewed available 

information that pertains to the habitat 

requirements of this species including 

research published in peer-reviewed 

articles and presented in academic 

theses and agency reports. We also 

discussed habitat requirements with 

members of the southwest Alaska sea 

otter recovery team at several meetings, 

as well as through email exchanges. The 

sea otter recovery team includes 

representatives from University of 

Alaska Fairbanks, Fish and Wildlife 

Service, University of British Columbia, 

Marine Conservation Alliance, U.S. 

Geological Survey (USGS), Alaska 

Veterinary Pathology Services, 

Defenders of Wildlife, National Marine 

Fisheries Service, The Alaska SeaLife 

Center, Alaska Department of Fish and 

Game, Smithsonian National Zoological 

Park, The Alaska Sea Otter and Steller 

Sea Lion Commission, University of 

California Santa Cruz, University of 

Alaska Sea Grant Program, and Sand 

Point, Alaska. Information from these 

recovery team discussions was fully 

considered and incorporated as 

appropriate into this critical habitat 

designation. 

We are designating critical habitat for 

the southwest Alaska DPS of the 

northern sea otter in areas that were 

occupied at the time of listing and 

contain sufficient PCEs: (1) To support 

life history functions essential to the 

conservation of the DPS, and (2) which 

may require special management 

considerations or protection. Much of 

the range of the DPS occurs within the 

Aleutian archipelago, and although it is 

possible that otters have disappeared 

from some of the small islands since the 

time of listing, we have no information 

that indicates any portion should be 

considered unoccupied habitat. As a 

result, we consider the Aleutian 

archipelago to be occupied habitat. 

Unlike habitats for terrestrial species, 

some of the various characteristics of 

sea otter habitat are poorly mapped. 

Although shoreline boundaries are 

reasonably well-documented, the 

bathymetric data for southwest Alaska 

exist at a variety of spatial resolutions. 


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Benthic substrate types are also poorly 

mapped. Other features, such as the 

distribution and abundance of sea otter 

prey species, and the spatial extent of 

kelp beds, may be dynamic over time. 

This lack of specificity makes it difficult 

to explicitly identify and map areas that 

contain the PCEs for this DPS beyond a 

certain geographic scale. 

Areas that provide protection from 

marine predators are likely the most 

essential to the conservation of this 

DPS. Despite the absence of information 

necessary to map these areas with 

precision, we can define criteria that 

will contain the essential PCEs. Kelp 

forests that provide resting habitat and 

protection from marine predators occur 

primarily in waters less than 20 m (65.6 

ft) in depth (O’Clair and Lindstrom 

2000, pp. 41, 57). In addition to 

identifying an approximate seaward 

extent of kelp forests, the 20-m (65.6-ft) 

depth contour also encompasses the 

nearshore shallow areas (less than 2 m 

(6.6 ft)) where marine predators may be 

less likely to forage. The 20-m (65.6-ft) 

depth contour also has considerable 

overlap with the nearshore (less than 

100 m (328.1 ft)) areas where otters can 

escape predators by hauling out on land. 

Areas of shallow water less than 20 m 

(65.6 ft) in depth that are not contiguous 

with the mean high tide line may 

provide less protection from marine 

predators. Nearshore marine waters 

ranging from mean high tide to 20 m 

(65.6 ft) in water depth or that occur 

within 100 m (328.1 ft) of the mean high 

tide line (or both) therefore contain the 

necessary PCEs for protection from 

marine predators (Figure 1). Based on 

numerous studies of sea otter foraging 

depths, as well as the distribution of the 

remaining sea otter population in 

nearshore, shallow water areas, we 

believe that the areas defined by PCEs 

1, 2, and 3 also contain sufficient sea 

otter prey resources. We have no reason 

to believe that any of the areas within 

the critical habitat designation are 

unable to support the energetic 

requirements of this species. 

BILLING CODE 4310–55–P 

BILLING CODE 4310–55–C 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas that lack PCEs for the 

southwest Alaska DPS of the northern 

sea otter. The scale of the map we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas, such 

as piers, docks, harbors, marinas, jetties, 


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and breakwaters. Any such structures 

inadvertently left inside critical habitat 

boundaries shown on the map of this 

final rule have been excluded by text in 

the final rule and are not designated as 

critical habitat. Therefore, Federal 

actions involving these areas would not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent critical habitat. 

Final Critical Habitat Designation 

We are designating five units as 

critical habitat for the southwest Alaska 

DPS of the northern sea otter. In 2006, 

the Service convened a Recovery Team 

to develop a recovery plan for the 

southwest Alaska DPS of the northern 

sea otter. As of the publication date of 

this final rule, the Recovery Team has 

met six times, and a draft recovery plan 

is in preparation. As the range of the 

southwest Alaska DPS of the northern 

sea otter includes approximately 18,000 

km (11,184.7 mi) of coastline, the team 

has proposed that the DPS be 

subdivided into 5 management units, 

based on criteria such as habitat type 

and population trajectory. In the interest 

of clarity, we are designating critical 

habitat units that correspond to the 

management units proposed by the 

Recovery Team. Only those areas within 

each management unit that meet the 

criteria identified above are being 

designated as critical habitat–namely, 

those areas that contain one or more 

PCEs and may require special 

management considerations or 

protection. Detailed, colored maps of 

areas designated as critical habitat in 

this final rule are available for viewing 

at http://alaska.fws.gov/fisheries/mmm/ 

seaotters/criticalhabitat.htm. Hard 

copies of maps can be obtained by 

contacting the Marine Mammals 

Management Office (see ADDRESSES). 

The critical habitat areas we describe 

below constitute our current best 

assessment of areas that meet the 

definition of critical habitat for the DPS. 

Table 1 shows the occupied units. The 

5 units we propose as critical habitat 

are: (1) Western Aleutian Unit; (2) 

Eastern Aleutian Unit; (3) South Alaska 

Peninsula Unit; (4) Bristol Bay Unit; and 

(5) Kodiak, Kamishak, Alaska Peninsula 

Unit. 

TABLE 1—OCCUPANCY OF NORTHERN SEA OTTERS BY CRITICAL HABITAT UNITS

Unit Occupied at 

time of listing? 

Currently 

occupied? 

Estimated size of 

unit in km2 (mi2) 

State/Federal 

ownership 

ratio (percent) 

1. Western Aleutian ....................................................................... Yes ................... Yes ................... 1,551 (599) 100/0 

2. Eastern Aleutian ........................................................................ Yes ................... Yes ................... 832 (321) 100/0 

3. South Alaska Peninsula ............................................................. Yes ................... Yes ................... 4,946 (1,909) 85/15 

4. Bristol Bay ................................................................................. Yes ................... Yes ................... 1,080 (417) 96/4 

4a. Amak Island ...................................................................... Yes ................... Yes ................... 31 (12) 77/23 

4b. Izembek Lagoon ............................................................... Yes ................... Yes ................... 337 (130) 100/0 

4c. Port Moller/Herendeen Bay .............................................. Yes ................... Yes ................... 712 (275) 94/6 

5. Kodiak, Kamishak, Alaska Peninsula ........................................ Yes ................... Yes ................... 6,755 (2,607) 89/11 

Total ................................................................................. ........................... ........................... 15,164 (5,853) 90/10 

We present brief descriptions of all 

critical habitat units, and reasons why 

they meet the definition of critical 

habitat for the southwest Alaska DPS of 

the northern sea otter, below. 

Calculation of areas for units and 

subunits that include the 20-m (65.6-ft) 

depth contour as a criterion are 

approximations estimated from GIS data 

layers of hydrographic survey data 

compiled by the National Oceanic and 

Atmospheric Administration (NOAA), 

the U.S. Geological Survey, and the 

Service. Consultations under section 7 

of the Act should use the best available 

bathymetric data on a case-by-case 

basis. In some instances, these data may 

be based on other units of measurement 

(such as feet or fathoms), in which case 

the bathymetric contour that is closest 

to 20 m (65.6 ft) should be used. For 

users of NOAA nautical charts, the 10- 

fathom (60-ft) depth contour is a 

suitable approximation for the 20-m 

(65.6-ft) depth contour. 

Although no lands above mean high 

tide are designated as critical habitat, 

ownership of lands adjacent to critical 

habitat may be of interest to readers of 

this final rule (Table 2). 

TABLE 2—OWNERSHIP STATUS OF LANDS ADJACENT TO CRITICAL HABITAT

Unit Federal 

(percent) 

State 

(percent) 

Private 

(percent) 

Alaska Native 

(percent) 

1. Western Aleutian ......................................................................................... 80.2 0.0 0.0 19.8 

2. Eastern Aleutian .......................................................................................... 10.2 0.0 0.0 89.8 

3. South Alaska Peninsula .............................................................................. 21.1 0.4 0.0 78.5 

4. Bristol Bay ................................................................................................... 36.7 41.5 0.0 21.8 

4a. Amak Island ........................................................................................ 100.0 0.0 0.0 0.0 

4b. Izembek Lagoon ................................................................................. 89.4 0.0 0.0 10.6 

4c. Port Moller/Herendeen Bay ................................................................ 4.9 66.1 0.0 29.0 

5. Kodiak, Kamishak, Alaska Peninsula .......................................................... 30.2 17.4 0.0 52.4 

Total ................................................................................................... 37.9 8.5 0.0 53.6 

Unit 1: Western Aleutian Unit 

Unit 1 consists of at least 1,551 km2

(599 mi2), collectively, of the nearshore 

marine waters ranging from the mean 

high tide line to the 20-m (65.6-ft) depth 

contour as well as waters occurring 

within 100 m (328.1 ft) of the mean high 

tide line. Hydrographic survey data in 

the vicinity of Atka and Amlia islands 

is insufficient to delineate the 20-m 

(65.6-ft) depth contour, so our area 


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calculation may slightly underestimate 

the total area of this unit. This unit 

ranges from Attu Island in the west to 

Kagamil Island in the east, was 

occupied at the time of listing, and is 

currently occupied. The majority (80.2 

percent) of the lands bordering this unit 

are federally owned within the Alaska 

Maritime National Wildlife Refuge. In 

addition, all critical habitat within this 

unit is located within State of Alaska 

waters (defined as those within 3 mi 

(4.82 km) of mean high tide). 

The Western Aleutian Unit contains 

all of the PCEs essential for the 

conservation of the southwest Alaska 

DPS of the northern sea otter. Special 

management considerations and 

protections may be needed to minimize 

the risk of oil and other hazardousmaterial spills from commercial 

shipping within the region and along 

the northern great circle route. 

Unit 2: Eastern Aleutan Unit 

Unit 2 consists of an estimated 832 

km2 (321 mi2), collectively, of the 

nearshore marine waters ranging from 

the mean high tide line to the 20-m 

(65.6-ft) depth contour as well as waters 

occurring within 100 m (328.1 ft) of the 

mean high tide line. This unit ranges 

from Samalga Island in the west to 

Ugamak Island in the east, was occupied 

at the time of listing, and is currently 

occupied. The majority (89.8 percent) of 

the lands bordering this unit are owned 

or selected by (but not yet conveyed to) 

Alaska Natives. In addition, all the 

critical habitat within this unit is 

located within State of Alaska waters. 

The Eastern Aleutian Unit contains all 

of the PCEs essential for the 

conservation of the southwest Alaska 

DPS of the northern sea otter. Special 

management considerations and 

protections may be needed to minimize 

the risk of oil and other hazardousmaterial spills from commercial 

shipping within the region and along 

the northern great circle route. 

Unit 3: South Alaska Peninsula Unit 

Unit 3 consists of an estimated 4,946 

km2 (1,909 mi2), collectively, of the 

nearshore marine waters ranging from 

the mean high tide line to the 20-m 

(65.6-ft) depth contour as well as waters 

occurring within 100 m (328.1 ft) of the 

mean high tide line. Available 

hydrographic survey data for this unit 

have considerably lower spatial 

resolution than the other units. This 

unit ranges from Unimak Island in the 

west to Castle Cape in the east, was 

occupied at the time of listing, and is 

currently occupied. The majority (78.5 

percent) of the lands bordering this unit 

are owned or selected by (but not yet 

conveyed to) Alaska Natives. The vast 

majority (85 percent) of the critical 

habitat within this unit is located within 

State of Alaska waters. 

The South Alaska Peninsula Unit 

contains all of the PCEs essential for the 

conservation of the southwest Alaska 

DPS of the northern sea otter. Special 

management considerations and 

protections may be needed to minimize 

the risk of oil and other hazardousmaterial spills from commercial 

shipping within this region and along 

the northern great circle route. 

Unit 4: Bristol Bay Unit 

Unit 4 consists of an estimated 1,080 

km2 (417 mi2) of the nearshore marine 

environment. This unit is further 

subdivided into 3 subunits: (4a) Amak 

Island; (4b) Izembek Lagoon; and (4c) 

Port Moller/Herendeen Bay. With the 

exception of Amak Island, the coastline 

contained within this unit is relatively 

simple and lacks kelp forests. For most 

of this unit, the 20-m (65.6-ft) depth 

contour used as a criterion for critical 

habitat in other units does not identify 

features that provide protection from 

marine predators, and is applicable only 

to the Amak Island subunit. Other 

criteria are used to identify the Izembek 

Lagoon and Port Moller/Herendeen Bay 

subunits, as described below. All three 

subunits within the Bristol Bay unit 

were occupied at the time of listing, and 

are currently occupied. Additional 

information about each subunit is 

included below. 

Subunit 4a: Amak Island Subunit 

Subunit 4a consists of an estimated 31 

km2 (12 mi2), collectively, of the 

nearshore marine waters ranging from 

the mean high tide line to the 20-m 

(65.6-ft) depth contour as well as waters 

occurring within 100 m (328.1 ft) of the 

mean high tide line. This subunit 

surrounds Amak Island in Bristol Bay, 

was occupied at the time of listing, and 

is currently occupied. Large groups of 

sea otters have been observed within the 

kelp forests within this subunit (USFWS 

unpublished information). All of the 

lands bordering this subunit are 

federally owned within the Alaska 

Maritime National Wildlife Refuge. 

Most (77 percent) of the critical habitat 

within this subunit is located within 

State of Alaska waters, a small portion 

of which (1.2 km2, 0.46 mi2) is also 

located within the boundaries of the 

Izembek State Game Refuge. 

The Amak Island Subunit contains all 

of the PCEs essential for the 

conservation of the southwest Alaska 

DPS of the northern sea otter. Special 

management considerations and 

protections may be needed to minimize 

the risk of oil and other hazardousmaterial spills from commercial 

shipping within Bristol Bay. In addition, 

offshore oil and gas development are 

under consideration in the Lease Sale 

Area 92 in the North Aleutian Basin 

region immediately offshore from this 

subunit. An environmental impact 

statement is in preparation, and will be 

completed prior to the lease sale. 

Additional management considerations 

and protections may be needed to 

minimize the risk of crude-oil spills 

associated with oil and gas development 

and production that may impact this 

subunit. 

Subunit 4b: Izembek Lagoon Subunit 

Subunit 4b consists of an estimated 

337 km2 (130 mi2) of the nearshore 

marine environment within the Izembek 

Lagoon and Moffett Lagoon systems. Sea 

otters are known to frequent the lagoon 

system and regularly haul out on the 

islands and sandbars that form the 

northern boundary of these systems, 

such as Glen, Operl, and Neumann 

Islands (USFWS unpublished 

information). Large numbers of otters 

have also been observed hauling out 

along the edges of the sea ice within the 

lagoon in winter (USFWS unpublished 

information). This subunit was 

occupied at the time of listing, and is 

currently occupied. The majority (89.4 

percent) of the lands bordering this 

subunit are federally owned within the 

Izembek National Wildlife Refuge. The 

critical habitat within this subunit is 

located within State of Alaska waters, 

most of which (99 percent) is also 

within the boundaries of the Izembek 

State Game Refuge. 

The Izembek Lagoon Subunit contains 

some of the PCEs (1, 2 and 4) essential 

for the conservation of the southwest 

Alaska DPS of the northern sea otter. 

Special management considerations and 

protections may be needed to minimize 

the risk of oil and other hazardousmaterial spills from commercial 

shipping within Bristol Bay. In addition, 

offshore oil and gas development are 

under consideration in the Lease Sale 

Area 92 in the North Aleutian Basin 

region immediately offshore from this 

subunit. Additional management 

considerations and protections may be 

needed to minimize the risk of crude-oil 

spills associated with oil and gas 

development and production that may 

impact this subunit. 

Subunit 4c: Port Moller/Herendeen Bay 

Subunit 

Subunit 4c consists of an estimated 

712 km2 (275 mi2) of the nearshore 

marine environment within the Port 

Moller and Herendeen Bay systems. 


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This subunit was occupied at the time 

of listing, and is currently occupied. 

Aerial surveys conducted in 2000 and 

2004, as well as additional reported 

observations, indicate that these areas 

may contain several thousand sea otters 

at any given time (Burn and Doroff 

2005, p. 277; USFWS unpublished 

information). The seaward boundary of 

this subunit extends from Point Edward 

on the Alaska Peninsula to the western 

tip of Walrus Island, and from Wolf 

Point on the eastern tip of Walrus Island 

to Entrance Point on the Alaska 

Peninsula. The majority (66.1 percent) 

of the lands bordering to this subunit 

are owned or selected by (but not yet 

conveyed to) the State of Alaska. Most 

(94 percent) of the critical habitat within 

this subunit is located within State of 

Alaska waters, with a portion (140.8 

km2 (54.4 mi2)) located within the 

boundaries of the Port Moller State 

Critical Habitat Area. 

The Port Moller/Herendeen Subunit 

contains some of the PCEs (1, 2, and 4) 

essential for the conservation of the 

southwest Alaska DPS of the northern 

sea otter. Special management 

considerations and protections may be 

needed to minimize the risk of oil and 

other hazardous-material spills from 

commercial shipping within Bristol Bay. 

In addition, offshore oil and gas 

development are under consideration in 

the Lease Sale Area 92 in the North 

Aleutian Basin region immediately 

offshore from this subunit. Additional 

management considerations and 

protections may be needed to minimize 

the risk of crude-oil spills associated 

with oil and gas development and 

production that may impact this 

subunit. 

Unit 5: Kodiak, Kamishak, Alaska 

Peninsula Unit 

Unit 5 consists of an estimated 6,755 

km2 (2,607 mi2), collectively, of the 

nearshore marine environment ranging 

from the mean high tide line to the 20- 

m (65.6-ft) depth contour as well as 

waters occurring within 100 m (328.1 ft) 

of the mean high tide line. Available 

hydrographic survey data for parts of 

this unit have considerably lower 

spatial resolution than the other units. 

This unit ranges from Castle Cape in the 

west to Tuxedni Bay in the east, and 

includes the Kodiak archipelago. This 

unit was occupied at the time of listing, 

and is currently occupied. Slightly more 

than half (52.4 percent) of the lands 

bordering this unit are either owned or 

selected by (but not yet conveyed to) 

Alaska Natives. The majority (89 

percent) of the critical habitat within 

this unit is located within State of 

Alaska waters, and a small portion (41.0 

km2, 15.8 mi2) is also located within the 

boundaries of the Tugidak Island State 

Critical Habitat Area. 

The Kodiak, Kamishak, Alaska 

Peninsula Unit contains all the PCEs 

essential for the conservation of the 

southwest Alaska DPS of the northern 

sea otter. Special management 

considerations and protections may be 

needed to minimize the risk of oil and 

other hazardous-material spills from 

commercial shipping within this region. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the 5th and 9th 

Circuit Courts of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 442 

(5th Cir. 2001)), and we do not rely on 

this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

In addition, under section 7(a)(4) of 

the Act, Federal agencies must confer 

with the Service on any agency action 

that is likely to result in destruction or 

adverse modification of critical habitat. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

1. A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

2. A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

southwest Alaska DPS of the northern 

sea otter or its designated critical habitat 

require section 7 consultation under the 

Act. Activities on State, Tribal, local, or 

private lands requiring a Federal permit 

(such as a permit from the U.S. Army 

Corps of Engineers under section 404 of 

the Clean Water Act (33 U.S.C. 1251 et 

seq.) or a permit from us under section 

10 of the Act) or involving some other 

Federal action (such as funding from the 

Federal Highway Administration, 

Federal Aviation Administration, or the 

Federal Emergency Management 

Agency) are subject to the section 7 

consultation process. Federal actions 


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not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 

federally funded or authorized do not 

require section 7 consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the PCEs to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

the southwest Alaska DPS of the 

northern sea otter. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the southwest Alaska DPS of the 

northern sea otter include, but are not 

limited to: 

1. Actions that would directly impact 

the PCEs that provide protection from 

marine predators. Such activities could 

include, but are not limited to, dredging, 

filling, and construction of docks, 

seawalls, pipelines, or other structures. 

Loss of the PCEs could result in 

increased predation pressure on the 

remaining sea otter population, and 

potentially affect the conservation of the 

DPS. 

2. Actions that would reduce the 

availability of sea otter prey species. 

Such activities could include, but are 

not limited to, dredging, filling, 

construction of docks, seawalls, 

pipelines, or other structures, and 

development of new fisheries for sea 

otter prey species. Otters that are using 

critical habitat for protection from 

marine predators must also be able to 

feed in these areas. Activities that 

reduce availability of prey may cause 

otters to forage outside of these 

protective areas, thus increasing their 

vulnerability to predators. 

3. Actions that would render critical 

habitat areas unsuitable for use by sea 

otters. Such activities could include, but 

are not limited to, human disturbance or 

pollution from a variety of sources, 

including discharges from oil and gas 

drilling and production or spills of 

crude oil, fuels, or other hazardous 

materials from vessels, primarily in 

harbors or other construction ports for 

marine vessels. While it is not legal to 

discharge fuel or other hazardous 

materials, it does happen more often in 

these areas than in other areas. These 

activities could displace sea otters from 

areas that provide protection from 

marine predators. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

Eareckson Air Station, located on 

Shemya Island within the western 

Aleutian unit, has a completed INRMP 

that was last updated in 2007. This 

INRMP recognizes the importance of 

kelp beds to sea otters (U.S. Air Force 

2007, p. 39), and notes that the only 

impacts to kelp may be from occasional 

barge traffic. In addition to Eareckson, 

the Air Force has a completed INRMP 

for 4 inactive sites (Nikolski, Driftwood 

Bay, Port Moller, and Port Heiden) 

within the range of the southwest 

Alaska DPS (U.S. Air Force 2001). 

All of these sites were deactivated 

between 1977 and 1978, and either 

demolished or removed between 1988 

and 1994. Of these, the Port Heiden site 

is the only one that includes shoreline 

areas. All critical habitat designated in 

this rule occurs below the mean high 

tide line and is therefore not within the 

boundaries of the Department of 

Defense facility. Therefore, there are no 

Department of Defense lands with a 

completed INRMP within the critical 

habitat designation. 

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

Act 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

In the following sections, we address 

a number of general issues that are 

relevant to our analysis under section 

4(b)(2) of the Act. 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those areas 

within the geographical area occupied 

by the species at the time of listing on 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 


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occupied by the species at the time of 

listing that are essential for the 

conservation of the species. In 

identifying those areas, the Service must 

consider the recovery needs of the 

species, such that, on the basis of the 

best scientific and commercial data 

available at the time of designation, the 

features essential to the conservation of 

the DPS and habitat that is identified, if 

managed or protected, could provide for 

the survival and recovery of the DPS. 

The identification of areas that 

contain the features essential to the 

conservation of the DPS, or are 

otherwise essential for the conservation 

of the DPS if outside the geographical 

area occupied by the DPS at the time of 

listing, is a benefit resulting from the 

designation. The critical habitat 

designation process includes peer 

review and public comment on the 

identified physical and biological 

features and areas, and provides a 

mechanism to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the DPS, and is valuable to 

land owners and managers in 

developing conservation management 

plans for identified areas, as well as for 

any other identified occupied habitat or 

suitable habitat that may not be 

included in the areas the Service 

identifies as meeting the definition of 

critical habitat. 

In general, critical habitat designation 

always has educational benefits; 

however, in some cases, they may be 

redundant with other educational 

effects. For example, habitat 

conservation plans (HCPs) have 

significant public input and may largely 

duplicate the educational benefits of a 

critical habitat designation. There are 

currently no HCPs in place that cover 

any areas within this critical habitat 

designation for the southwest Alaska 

DPS of the northern sea otter. Including 

lands in critical habitat also would 

inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

The consultation provisions under 

section 7(a)(2) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with the Service on actions that 

may affect critical habitat and must 

avoid destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects to 

critical habitat is a separate and 

different analysis from that of the effects 

to the species. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. However, the regulatory 

standard is different, as the jeopardy 

analysis investigates the action’s impact 

to survival and recovery of the species, 

while the adverse modification analysis 

investigates the action’s effects to the 

designated critical habitat’s contribution 

to conservation. This will, in some 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

For the southwest Alaska DPS of the 

northern sea otter, when consulting 

under section 7(a)(2) of the Act for 

activities in designated critical habitat, 

independent analyses would be made 

for jeopardy and adverse modification. 

In consultations on projects where 

surveys detect high densities of sea 

otters or low densities of sea otters 

combined with abundant PCEs, there is 

not likely to be a quantifiable difference 

between the jeopardy analysis and the 

adverse modification analysis as we 

estimate take for this subspecies in 

terms of square kilometers of occupied 

habitat, and the Act requires Federal 

agencies to minimize the impact of the 

taking on the DPS that may result from 

implementation of a proposed action. 

Furthermore, any upfront modifications 

made to the project description to 

minimize the project’s impact on the 

critical habitat designation will also 

minimize the impacts of the taking of 

individuals on the DPS as a whole. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a consultation is only required where 

there is a Federal nexus (an action 

authorized, funded, or carried out by 

any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands, by itself, 

does not restrict actions that may 

destroy or adversely modify critical 

habitat. Second, the designation only 

limits destruction or adverse 

modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure that the conservation 

role and function of those areas that 

contain the physical and biological 

features essential to the conservation of 

the species, or of unoccupied areas that 

are essential for the conservation of the 

species, are not appreciably reduced. 

Critical habitat designation alone, 

however, does not require private 

property owners to undertake specific 

steps toward recovery of the species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the species or critical habitat. 

However, if we determine through 

informal consultation that adverse 

impacts are likely to occur, then formal 

consultation is initiated. Formal 

consultation concludes with a biological 

opinion issued by the Service on 

whether the proposed Federal action is 

likely to jeopardize the continued 

existence of listed species or result in 

destruction or adverse modification of 

designated critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may recommend 

additional conservation measures to 

minimize adverse effects to the primary 

constituent elements, but such measures 

would be discretionary on the part of 

the Federal agency. A biological opinion 

that concludes in a determination of no 

destruction or adverse modification 

would not include the implementation 

of any reasonable and prudent 

alternative, as these are provided for the 

proposed Federal action only when our 

biological opinion results in an adverse 

modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation is initiated under section 

7(a)(2) of the Act, the end result of 

consultation is to avoid jeopardy to the 

species or adverse modification of its 

critical habitat, but not necessarily to 

manage critical habitat or institute 

recovery actions on critical habitat. 

Conversely, voluntary conservation 

efforts implemented through 

management plans institute proactive 

actions over the lands they encompass 

and are put in place to remove or reduce 

known threats to a species or its habitat, 

therefore implementing recovery 

actions. We believe that in many 

instances the regulatory benefit of 

critical habitat is minimal when 

compared to the conservation benefit 

that can be achieved through 

implementing HCPs under section 10 of 

the Act or other habitat management 

plans. 


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Economic Analysis 

In order to consider economic 

impacts, we conducted an economic 

analysis to estimate the potential 

economic effect of the designation. The 

DEA (dated May 20, 2009) was made 

available for public review and 

comment from June 9, 2009, to July 9, 

2009 (74 FR 27271). Substantive 

comments and information received on 

the DEA are summarized above in the 

‘‘Public Comments’’ section and are 

incorporated into the final analysis, as 

appropriate. Taking the public 

comments and any relevant new 

information into consideration, the 

Service completed a final economic 

analysis (FEA) (dated August 6, 2009) of 

the designation that updates the DEA. 

The primary purpose of the economic 

analysis is to estimate the potential 

incremental economic impacts 

associated with the designation of 

critical habitat for the southwest Alaska 

DPS of the northern sea otter. The 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. The economic 

analysis considers the economic 

efficiency effects that may result from 

the designation. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’ 

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). It also 

addresses how potential economic 

impacts are likely to be distributed, 

including an assessment of any local or 

regional impacts of habitat conservation 

and the potential effects of conservation 

activities on government agencies, 

private businesses, and individuals. The 

economic analysis measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. This 

information can be used by the 

Secretary to assess whether the effects of 

the designation might unduly burden a 

particular group or economic sector. 

Finally, the economic analysis looks 

retrospectively at costs that have been 

incurred since the date we listed the 

southwest Alaska DPS of the northern 

sea otter as threatened on August 9, 

2005 (70 FR 46366), and considers those 

costs that may occur in the years 

following the designation of critical 

habitat, with the timeframes for this 

analysis varying by activity. 

The economic analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, local zoning 

laws, State and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other State and Federal agencies. 

Economic impacts that result from these 

types of protections are not included in 

the analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The economic analysis examines 

activities taking place both within and 

adjacent to the designation. It estimates 

impacts based on activities that are 

‘‘reasonably foreseeable’’ including, but 

not limited to, activities that are 

currently authorized, permitted, or 

funded, or for which proposed plans are 

currently available to the public. 

Accordingly, the analysis bases 

estimates on activities that are likely to 

occur within a 20-year timeframe, from 

when the proposed rule became 

available to the public (73 FR 76454; 

December 16, 2008). The 20-year 

timeframe was chosen for the analysis 

because, as the time horizon for an 

economic analysis is expanded, the 

assumptions on which the projected 

number of projects and cost impacts 

associated with those projects are based 

become increasingly speculative. 

The primary potential incremental 

economic impacts attributed to the 

critical habitat designation are expected 

to be related to oil spill planning and 

response (19 percent), marine and 

coastal construction activities (22 

percent), and water quality management 

(36 percent). The FEA estimates total 

potential incremental economic impacts 

in areas designated as critical habitat 

over the next 20 years to be $668,000 

($58,900 annualized) in present value 

terms using a 7 percent discount rate 

(including areas considered for 

exclusion under section 4(b)(2) of the 

Act). 

The FEA estimates the largest impacts 

of the critical habitat rule will result 

from administrative costs of 

consultation under section 7 of the Act. 

If the rate of consultations continues 

into the future at a similar rate and 

distribution as past consultations, an 

estimated 600 consultations will occur 

over the 20-year time frame for the 

analysis. These costs result from the 

need to address adverse modification in 

a consultation that would occur even in 

the absence of critical habitat. These 

total additional administrative costs that 

can be attributed to the designation of 

critical habitat are estimated to be 

approximately $623,000 using a 7 

percent discount rate, or about $54,900 

annualized. These incremental costs 

represent an increase of 31 percent 

above the baseline costs associated with 

consultations that address the jeopardy 

standard alone. 

We have considered and evaluated 

the potential economic impact of the 

critical habitat designation under 4(b)(2) 

of the Act, as identified in the FEA. 

Based on this evaluation, we believe the 

economic impacts associated with the 

designation here are neither significant 

nor disproportionate. As a result, and in 

light of the benefits of critical habitat 

designation discussed previously, we 

are not excluding any areas from critical 

habitat based on economic reasons. The 

final economic analysis is available at 

http://www.regulations.gov or upon 

request from the Marine Mammals 

Management Office (see ADDRESSES). 

Application of Section 4(b)(2)—Impacts 

to National Security 

Under section 4(b)(2) of the Act, we 

consider whether there are an impacts 

to national security that may exist from 

the designation of critical habitat. 

Section 4(b)(2) allows the Secretary to 

exclude areas from critical habitat for 

reasons of national security if the 

Secretary determines the benefits of 

such an exclusion exceed the benefits of 

designating the area as critical habitat. 

However, this exclusion cannot occur if 

it will result in the extinction of the 

species concerned. 

The Department of the Navy 

requested that we exclude 

approximately 3,418 km2 (1,320 mi2) in 

Unit 5 from designation as critical 

habitat for national security reasons. 

After thorough consideration of this 

request and an analysis of the respective 

benefits of including these lands and 

excluding these lands from critical 

habitat, we have not excluded the 

requested areas from final designation 

as critical habitat, as explained above in 

our response to comment 19. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2), we consider 

any other relevant impacts from critical 

habitat designation, in addition to 

economic impacts and impacts on 

national security. We consider a number 

of factors, including whether 

landowners have developed any HCPs 

or other management plans for the area, 

and whether there are conservation 

partnerships that would be encouraged 

by designation of, or exclusion from, 

critical habitat. In addition, we look at 


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any tribal issues, and consider the 

government-to-government relationship 

of the United States with tribal entities. 

We also consider any social impacts that 

might occur because of the designation. 

In preparing this final rule, we have 

determined that there are currently no 

HCPs, management plans, or 

conservation partnerships for the 

southwest Alaska DPS of the northern 

sea otter, and this final designation does 

not include any tribal lands. We 

anticipate no impact to tribal lands, 

partnerships, or HCPs from this critical 

habitat designation. Thus, we are not 

excluding any areas from this final 

designation based on other relevant 

impacts. 

Accordingly, given the relatively 

small potential economic effects and 

other effects of designating critical 

habitat for the southwest Alaska DPS of 

the northern sea otter, and the 

regulatory, educational and 

informational benefits of critical habitat, 

we are not excluding any areas from the 

final designation. 

Editorial Change to the Table at 50 CFR 

17.11(h) 

We also make one editorial change to 

the northern sea otter’s entry in the List 

of Endangered and Threatened Wildlife 

at 50 CFR 17.11(h). Specifically, we 

update the entry to accurately reflect the 

citation of the special rule for this DPS, 

which was published on August 15, 

2006, at 71 FR 46864. In that final rule, 

we inadvertently neglected to update 

the entry to note the special rule at 50 

CFR 17.40(p). This editorial change will 

ensure the entry for the northern sea 

otter in the List of Endangered and 

Threatened Wildlife at 50 CFR 17.11(h) 

is complete and accurate. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this final 

rule is not significant and has not 

reviewed this final rule under Executive 

Order 12866 (E.O. 12866). OMB bases 

its determination upon the following 

four criteria: 

1. Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

2. Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

3. Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

4. Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions), as described below. 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Based on our FEA of the designation, we 

provide our analysis for determining 

whether the designation of critical 

habitat for the southwest Alaska DPS of 

the northern sea otter will result in a 

significant economic impact on a 

substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors with less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation, as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the designation of 

critical habitat for the southwest Alaska 

DPS of the northern sea otter will affect 

a substantial number of small entities, 

we considered the number of small 

entities affected within particular types 

of economic activities, such as oil spill 

planning and response, oil and gas 

exploration and development, marine 

and coastal construction activities, and 

water quality management. Specifically, 

we identified 12 small entities that may 

be affected by these activities (3 are in 

the deep sea freight transportation 

business, 2 are in the general 

construction business, 3 are government 

jurisdictions, and 4 are in the seafood 

processing business). In estimating the 

numbers of small entities potentially 

affected, we considered whether the 

activities of these entities may entail 

any Federal involvement. Critical 

habitat designation will not affect 

activities that do not have any Federal 

involvement; designation of critical 

habitat affects activities conducted, 

funded, or authorized by Federal 

agencies. 

Once this critical habitat designation 

takes effect, Federal agencies must 

consult with us under section 7 of the 

Act if their activities may affect 

designated critical habitat. 

Consultations to avoid the destruction 

or adverse modification of critical 

habitat will be incorporated into the 

existing consultation process. 

In order to determine whether it is 

appropriate for our agency to certify that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities, we considered 

in the FEA the potential impacts 

resulting from implementation of 

conservation actions related to the 

designation of critical habitat for the 

southwest Alaska DPS of the northern 

sea otter on each of the 12 small entities 

discussed above. As described in 

Appendix A of the FEA, the potential 

impacts are likely to be associated with 

construction, oil spill response 

activities, and water quality issues. The 

average annualized incremental impacts 

to small entities ranges from $2,407 for 

seafood processors to $4,367 for deep 

sea freight transporters, applying a 7 

percent discount rate. We therefore 

conclude that costs to small entities will 

not be significant. Please refer to the 

FEA for a more detailed discussion of 

potential economic impacts. 

In summary, we have considered 

whether the designation will result in a 

significant economic impact on a 

substantial number of small entities. We 

have identified 12 small entities that 

may be impacted by the critical habitat 

designation. For the above reasons and 

based on currently available 

information, we certify that the 

designation will not have a significant 

economic impact on a substantial 

number of small business entities. 

Therefore, a regulatory flexibility 

analysis is not required. 


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Energy Supply, Distribution, or Use— 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. Offshore oil and gas 

development are under consideration in 

the Lease Sale Area 92 in the North 

Aleutian Basin region immediately 

offshore from the three subunits of the 

Bristol Bay critical habitat unit. We do 

not expect this final rule to significantly 

affect energy supplies, distribution 

(including shipping channels), or use 

because most oil and gas development 

activities will not overlap with the 

habitats used by northern sea otters, and 

we do not expect the activities to cause 

significant alteration of the PCEs. Any 

proposed development project likely 

will have to undergo section 7 

consultation to ensure that the actions 

will not destroy or adversely modify 

designated critical habitat. 

Consultations may entail modifications 

to the project to minimize the potential 

adverse effects to northern sea otter 

critical habitat. A spill-response plan 

will have to be developed to minimize 

the chance that a spill would have 

negative effects on sea otters or critical 

habitat. However, we conduct 

thousands of consultations every year 

throughout the United States, and in 

almost all cases, we are able to 

accommodate both project and species’ 

needs. We expect that to be the case 

here. Therefore, this action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

1. This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or [T]ribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and [T]ribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act does 

not apply, nor does critical habitat shift 

the costs of the large entitlement 

programs listed above onto State 

governments. 

2. We do not believe that this rule will 

significantly or uniquely affect small 

governments because the areas being 

designated as critical habitat occur 

within State of Alaska waters. The State 

of Alaska does not fit the definition of 

‘‘small governmental jurisdiction.’’ 

Waters adjacent to Native-owned lands 

are still owned and managed by the 

State of Alaska. In most cases, 

development around Native villages is 

happening with funding from Federal or 

State sources (or both). Therefore, a 

Small Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for the 

southwest Alaska DPS of the northern 

sea otter in a takings implications 

assessment. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this 

designation of critical habitat for the 

southwest Alaska DPS of the northern 

sea otter does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this final rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

Alaska. The designation of critical 

habitat in areas currently occupied by 

the southwest Alaska DPS of the 

northern sea otter imposes no additional 

restrictions to those currently in place 

and, therefore, has little incremental 

impact on State and local governments 

and their activities. The designation 

may have some benefit to these 

governments because the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 


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52010 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have are designating 

critical habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of the southwest Alaska 

DPS of the northern sea otter. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), E.O. 13175, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), and Secretarial Order 3225 

(Endangered Species Act and 

Subsistence Uses in Alaska), we readily 

acknowledge our responsibilities to 

work directly with Alaska Natives in 

developing programs for healthy 

ecosystems, to acknowledge that tribal 

lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Alaska 

Natives. As all critical habitat units 

designated in this final rule occur 

seaward from the mean high tide line, 

we have determined that there are no 

Alaska Native lands occupied at the 

time of listing that contain the features 

essential for the conservation of the 

southwest Alaska DPS of the northern 

sea otter. Therefore, we have not 

designated any critical habitat for the 

southwest Alaska DPS of the northern 

sea otter on Alaska Native lands. 

We do not expect this rule to have any 

impact on Alaska Native subsistence 

activities. All subsistence hunting takes 

place in or on State lands or waters. 

Unless subsistence hunting is 

determined to be ‘‘materially and 

negatively impacting the DPS,’’ then 

harvest would not be regulated. 

National Environmental Policy Act 

(NEPA) 

It is our position that, outside the 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 

do not need to prepare environmental 

analyses as defined by NEPA (42 U.S.C. 

4321 et seq.) in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld by the Circuit Court of the 

United States for the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. 1995), cert. denied 516 

U.S. 1042 (1996)). 

References Cited 

A complete list of all references cited 

in this final rulemaking is available 

upon request from the Field Supervisor, 

Marine Mammals Management Office 

(see ADDRESSES). 

Author(s) 

The primary authors of this package 

are staff members of the Marine 

Mammals Management Office (see 

ADDRESSES). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Otter, northern sea’’ under 

‘‘MAMMALS’’ in the List of Endangered 

and Threatened Wildlife to read as 

follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range Vertebrate population where endangered or threatened Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS

* * * * * * * 

Otter, northern 

sea.

Enhydra lutris 

kenyoni.

U.S.A., (AK, WA) Southwest Alaska, from Attu Island to Western Cook Inlet, including Bristol Bay, the Kodiak 

Archipelago, and the Barren Islands.

T 764 17.95(a) 17.40(p) 

* * * * * * * 

■ 3. In § 17.95, amend paragraph (a) by 

adding an entry for ‘‘Northern Sea Otter 

(Enhydra lutris kenyoni), Southwest 

Alaska Distinct Population Segment,’’ in 

the same alphabetical order that the 

species appears in the table at 

§ 17.11(h), to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Northern Sea Otter (Enhydra lutris 

kenyoni), Southwest Alaska Distinct 

Population Segment: 

(1) Critical habitat units are in Alaska, 

as described below. 


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(2) The primary constituent elements 

of critical habitat for the southwest 

Alaska distinct population segment 

(DPS) of the northern sea otter are: 

(i) Shallow, rocky areas where marine 

predators are less likely to forage, which 

are in waters less than 2 m (6.6 ft) in 

depth; 

(ii) Nearshore waters within 100 m 

(328.1 ft) from the mean high tide line; 

(iii) Kelp forests, which occur in 

waters less than 20 m (65.6 ft) in depth; 

and 

(iv) Prey resources within the areas 

identified in paragraphs (2)(i), (2)(ii), 

and (2)(iii) of this entry that are present 

in sufficient quantity and quality to 

support the energetic requirements of 

the species. 

(3) Critical habitat does not include 

manmade structures (including, but not 

limited to, docks, seawalls, pipelines, or 

other structures) and the land on which 

they are located existing within the 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map units. 

Boundaries of critical habitat were 

derived from GIS data layers of 

hydrographic survey data developed by 

the National Oceanic and Atmospheric 

Administration. To estimate the size of 

each critical habitat unit, the data were 

projected into Alaska Standard Albers 

Conical Equal Area on the North 

American Datum of 1983. Given the 

large geographic range of this DPS, some 

two-dimensional areas appear as onedimensional features at these map 

scales. 

(5) Note: Index map of critical habitat 

for the southwest Alaska DPS of the 

northern sea otter follows: 

BILLING CODE 4310–55–P 

BILLING CODE 4310–55–C 

(6) Unit 1: Western Aleutian. All 

contiguous waters from the mean high 

tide line to the 20-m (65.6-ft) depth 

contour as well as waters within 100 m 

(328.1 ft) of the mean high tide line that 

occur adjacent to the following islands: 

Adak, Agattu, Alaid, Amatignak, 

Amchitka, Amlia, Amukta, Anagaksik, 

Asuksak, Atka, Attu, Aziak, Bobrof, 

Buldir, Carlisle, Chagula, Chuginadak, 

Chugul, Crone, Davidof, Elf, Gareloi, 

Great Sitkin, Herbert, Igitkin, Ilak, 

Kagalaska, Kagamil, Kanaga, Kanu, 

Kasatochi, Kavalga, Khvostof, Kiska, 

Koniuji, Little Kiska, Little Sitkin, Little 

Tanaga, Nizki, Ogliuga, Oglodak, Rat, 

Sadatanak, Sagchudak, Salt, Seguam, 

Segula, Semisopochnoi, Shemya, 

Skagul, Tagadak, Tagalak, Tanaga, 

Tanaklak, and Ulak. 


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(7) Unit 2: Eastern Aleutian. All 

contiguous waters from the mean high 

tide line to the 20-m (65.6-ft) depth 

contour as well as waters within 100 m 

(328.1 ft) of the mean high tide line that 

occur adjacent to the following islands: 

Aiktak, Akutan, Amaknak, Arangula, 

Atka, Avatanak, Baby Islands, Bogoslof, 

Egg, Hog, Kaligagan, Rootok, Samalga, 

Sedanka, Tigalda, Ugamak, Umnak, 

Unalaska, Unalga, and Vsevidof. 

(8) Unit 3: South Alaska Peninsula. 

All contiguous waters from the mean 

high tide line to the 20-m (65.6-ft) depth 

contour as well as waters within 100 m 

(328.1 ft) of the mean high tide line that 

occur adjacent to the Alaska Peninsula 

from False Pass (54.242° N, 163.363° W) 

to Castle Cape (56.242° N, 158.117° W), 

and adjacent to the following islands: 

Andronica, Atkins, Big Koniuji, Bird, 

Brother, Caton, Chankliut, Chernabura, 

Cherni, Chiachi, Deer, Dolgoi, Egg, 

Goloi, Guillemot, Inner Iliask, Jacob, 

Karpof, Korovin, Little Koniuji, 

Mitrofania, Nagai, Near, Outer Iliask, 

Paul, Peninsula, Pinusuk, Poperechnoi, 

Popof, Road, Sanak, Shapka, Simeonof, 

Spectacle, Spitz, Turner, Ukolnoi, 

Ukolnoi, Unga, and Unimak Island from 

Scotch Cap (54.390° N, 164.745° W) to 

False Pass. 

(9) Unit 4: Bristol Bay. This unit 

contains three subunits: 

(i) Subunit 4a: Amak Island. All 

contiguous waters from the mean high 

tide line to the 20-m (65.6-ft) depth 

contour as well as waters within 100 m 

(328.1 ft) of the mean high tide line that 

occur adjacent to Amak Island. 

(ii) Subunit 4b: Izembek Lagoon. All 

waters from mean high tide line that 

occur within the polygon bounded by 

Glen, Operl, and Neumann Islands to 

the north and the Alaska Peninsula to 

the south, and further defined by the 

following latitude/longitude 

coordinates: 55.249° N, 162.990° W; 

55.255° N, 162.984° W from Cape 

Glazenap to Glen Island; 55.324° N, 

162.901° W; 55.333° N, 162.888° W from 

Glen Island to Operl Island; 55.409° N, 

162.683° W; 55.408°N, 162.621° W from 

Operl Island to Neumann Island; and 

55.447° N, 162.582° W; 55.447° N, 

162.577° W from Neumann Island to 

Moffet Point. 

(iii) Subunit 4c: Port Moller/ 

Herendeen Bay. All waters from mean 

high tide line that occur within the 

polygon bounded by Walrus Island to 

the north and the Alaska Peninsula to 

the south, and further defined by the 

following latitude/longitude 

coordinates: 56.000° N, 160.877° W; 

56.020° N, 160.854° W from Point 

Edward to Walrus Island; and 

56.020° N, 160.805° W; 55.979° N, 

160.584° W from Wolf Point to Entrance 

Point. 

(10) Unit 5: Kodiak, Kamishak, Alaska 

Peninsula. All contiguous waters from 

the mean high tide line to the 20-m 

(65.6-ft) depth contour as well as waters 

within 100 m (328.1 ft) of the mean high 

tide line that occur adjacent to the 

Alaska Peninsula from Castle Cape 

(56° 14.5’ N, 158° 7.0’ W) eastward to 

Cape Douglas (58.852° N, 153.250° W), 

and northward in Cook Inlet to Redoubt 

Point (60.285° N, 152.417° W), and 

adjacent to the following islands: 

Afognak, Aghik, Aghiyuk, Aiaktalik, 

Akhiok, Aliksemit, Amook, Anowik, 

Ashiak, Atkulik, Augustine, Ban, Bare, 

Bear, Central, Chirikof, Chisik, Chowiet, 

Dark, David, Derickson, Dry Spruce, 

Eagle, East Amatuli, East Channel, 

Garden, Geese, Hartman, Harvester, 

Hydra, Kak, Kateekuk, Kiliktagik, 

Kiukpalik, Kodiak, Kumlik, Long, 

Marmot, Miller, Nakchamik, Ninagiak, 

Nord, Nordyke, Poltava, Raspberry, 

Sally, Shaw, Shuyak, Sitkalidak, 

Sitkanak, Spruce, Sud, Sugarloaf, 

Suklik, Sundstrom, Sutwick, Takli, 

Terrace, Tugidak, Twoheaded, Ugak, 

Ugalushik, Uganik, Unavikshak, 

Ushagat, West Amatuli, West Augustine, 

West Channel, Whale, and Woody. 

* * * * * 

Dated: September 23, 2009. 

Jane Lyder, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E9–24087 Filed 10–7–09; 8:45 am] 

BILLING CODE 4310–55–P 


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