Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 53381 

2. Amend § 17.11(h) by revising the 

entry for ‘‘Wolf, gray’’ under 

MAMMALS in the List of Endangered 

and Threatened Wildlife to read as 

follows: 

§ 17.11 [Amended] 

* * * * * 

(h) * * * 

Species 

Historic range Vertebrate population where endangered or 

threatened Status When listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS

* * * * * * * 

Wolf, gray ........ Canis lupus ..... Holarctic .......... U.S.A.: All of CA, CO, KS, NE, and NV; those portions of 

AZ, NM, TX, and WY not included in an experimental 

population as set forth below; and portions of IA, MO, 

ND, OK, OR, SD, TX, UT, and WA as follows: 

E 1, 6, 13, 

15, 35 

N/A N/A 

(1) Southern IA, (that portion south of the centerline of 

Highway 80); 

(2) Northwestern MO (that portion northwest of the centerline of Interstate Highway 44 and northwest of the centerline of Interstate Highway 70 east of St. Louis); 

(3) Western ND (that portion south and west of the Missouri 

River upstream to Lake Sakakawea and west of the centerline of Highway 83 from Lake Sakakawea to the Canadian border); 

(4) Western OK (that portion west of the centerline of Interstate Highway 35 and northwest of the centerline of Interstate Highway 44 north of Oklahoma City); 

(5) Western OR (that portion west of the centerline of Highway 395 and Highway 78 north of Burns Junction and 

that portion of OR west of the centerline of Highway 95 

south of Burns Junction); 

(6) Western SD (that portion south and west of the Missouri 

River); 

(7) Western TX (that portion west of the centerline of Interstate Highway 35); 

(8) Most of Utah (that portion south and west of the centerline of Highway 84 and that portion south of Highway 80 

from Echo to the UT/WY Stateline); and 

(9) Western WA (that portion west of the centerline of Highway 97 and Highway 17 north of Mesa and that portion 

west of the centerline of Highway 395 south of Mesa). 

Mexico.

Do .................... ...... do ............. ...... do ............. U.S.A. (portions of AZ, NM, and TX—see § 17.84(k)) ........... XN 631 NA 17.84(k) 

Wolf, gray 

[Northern 

Rocky Mountain DPS].

Canis lupus ..... U.S.A. (MT, ID, 

WY, eastern 

WA, eastern 

OR, and 

north central 

UT). 

U.S.A. (WY—see § 17.84(i) and (n)) ...................................... XN 561, 562 NA 17.84(i) 

17.84(n) 

* * * * * * * 

Dated: August 16, 2011. 

Gregory E. Siekanic, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2011–21839 Filed 8–25–11; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–FHC–2011–0046; 

94310–1337–0000–D2] 

RIN 1018–AX51 

Endangered and Threatened Wildlife 

and Plants; Termination of the 

Southern Sea Otter Translocation 

Program 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; notice of 

availability. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

remove the regulations that govern the 

southern sea otter (Enhydra lutris 

nereis) translocation program, including 

the establishment of an experimental 

population of southern sea otters, and 

all associated management actions. We 

are also proposing to amend the 

Authority citation for 50 CFR part 17 by 

removing the reference to Public Law 

99–625, the statute that authorized the 

Secretary to promulgate regulations 

establishing the southern sea otter 

translocation program. Removal of the 

regulations will terminate the program. 

We are proposing this action because we 

believe that the southern sea otter 

translocation program has failed to 

fulfill its purpose, as outlined in the 

southern sea otter translocation plan, 

and that our recovery and management 

goals for the species cannot be met by 

continuing the program. Our conclusion 

is based, in part, on an evaluation of the 

program against specific failure criteria 

established at the program’s inception. 

This proposed action would terminate 

the designation of the experimental 

population of southern sea otters, 

abolish the southern sea otter 

translocation and management zones, 

and eliminate the current requirement 

to remove southern sea otters from San 

Nicolas Island and the management 

zone. This proposed rule would also 

eliminate future actions, required under 

the current regulations, to capture and 

relocate southern sea otters for the 

purpose of establishing an experimental 

population, and to remove southern sea 

otters in perpetuity from an ‘‘otter-free’’ 

management zone. As a result, it would 

allow southern sea otters to expand 

their range naturally into southern 

California waters. We have prepared a 

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53382 Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 

revised draft supplemental 

environmental impact statement (SEIS) 

and an initial regulatory flexibility 

analysis (IRFA) to accompany this 

proposed rule. 

DATES: We will consider comments on 

the proposed rule, associated revised 

draft SEIS (which includes a revised 

draft translocation program evaluation 

as Appendix C), and the IRFA that are 

received or postmarked on or before 

October 24, 2011 or at a public hearing. 

We will hold two public informational 

open houses from 5 p.m. to 6 p.m., each 

followed by a public hearing from 6 

p.m. to 8 p.m., on October 4, 2011, and 

October 6, 2011, at the locations 

identified in the ADDRESSES section. 

ADDRESSES: Written Comments: You 

may submit comments on the proposed 

rule, the revised draft SEIS, and the 

IRFA by one of the following methods: 

Æ Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Enter 

Keyword or ID box, enter FWS–R8– 

FHC–2011–0046, which is the docket 

number for this rulemaking. Then click 

on the Search button. On the resultant 

screen, you may submit a comment by 

clicking on ‘‘Submit a Comment.’’ 

Æ By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R8–FHC–2011– 

0046; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

Æ In person: Individuals may attend a 

public hearing and present oral or 

written comments, or both, on the 

proposed rule, revised draft SEIS, or the 

IRFA. 

We will not accept e-mail or faxes. We 

will post all information received on 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more details). 

Copies of Documents: The proposed 

rule, revised draft SEIS, and IFRA are 

available by the following methods: 

Æ Federal eRulemaking Portal: Go to 

http://www.regulations.gov. In the Enter 

Keyword or ID box, enter FWS–R8– 

FHC–2011–0046, which is the docket 

number for this rulemaking. Then click 

on the Search button. On the resultant 

screen, you may view supporting 

documents by clicking on the ‘‘Open 

Docket Folder’’ icon. 

Æ Agency Web site: You can view 

supporting documents on our Web site 

at http://www.fws.gov/ventura/. 

Æ In person: You can make an 

appointment, during normal business 

hours, to view the documents, 

comments, and materials in person at 

the U.S. Fish and Wildlife Service, 

Ventura Fish and Wildlife Office, 2493 

Portola Road, Suite B, Ventura, CA 

93003–7726; by telephone (805/644– 

1766); by facsimile (805/644–3958); or 

by visiting our Web site at http:// 

www.fws.gov/ventura/. Persons who use 

a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Services (FIRS) at 

800–877–8339. 

Public Hearings: We will hold two 

public informational open houses, each 

followed by a public hearing, at 

Fleischmann Auditorium, Santa Barbara 

Museum of Natural History, 2559 Puesta 

Del Sol, Santa Barbara, CA 93105 on 

October 4, 2011, and at La Feliz Room, 

Seymour Marine Discovery Center, Long 

Marine Laboratory, 100 Shaffer Road, 

Santa Cruz, CA 95060 on October 6, 

2011. See the DATES section above for 

the times of these hearings. 

FOR FURTHER INFORMATION CONTACT: 

Lilian Carswell, at the above Ventura 

street address, by telephone (805/644– 

1766), by facsimile (805/644–3958), or 

by electronic mail 

(Lilian_Carswell@fws.gov). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Services (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We wish to ensure that any final 

action resulting from this proposed rule 

will be based on information that is as 

accurate as possible. Therefore, we 

invite tribal and governmental agencies, 

the scientific community, industry, and 

other interested parties to submit 

comments or recommendations 

concerning any aspect of this proposed 

rule, the revised draft SEIS, or the IFRA. 

Comments should be as specific as 

possible. In addition, please include 

sufficient information with your 

comments to allow us to authenticate 

any scientific or commercial data you 

reference or provide. In particular, we 

seek comments concerning the 

following: 

(1) The reasons why the southern sea 

otter translocation program, including 

the management and translocation 

zones and associated regulations, 

should or should not be terminated, 

including information that supports the 

need for any changes to the proposed 

rule; 

(2) Current or planned activities in the 

subject area and their possible effects on 

southern sea otters that have not been 

adequately considered in the proposed 

rule, revised draft SEIS, and IRFA; 

(3) Any foreseeable economic or other 

impacts resulting from the proposed 

termination of the southern sea otter 

translocation program that have not 

been adequately considered in the 

proposed rule, revised draft SEIS, and 

IRFA; 

(4) Any substantive information on 

real or potential effects on southern sea 

otters of the proposed termination of the 

southern sea otter translocation program 

that have not been adequately 

considered in the proposed rule, revised 

draft SEIS, and IRFA; and 

(5) Any actions that could be 

considered in lieu of, or in conjunction 

with, the proposed rule that would 

provide equivalent opportunity for the 

recovery of the southern sea otter. 

Prior to issuing a final rule on this 

proposed action, we will take into 

consideration all comments and any 

additional information we receive. Such 

information may lead to a final rule that 

differs from this proposal. All comments 

and recommendations, including names 

and addresses, will become part of the 

supporting record. 

You may submit your comments and 

materials concerning the proposed rule, 

revised draft SEIS, or IRFA by one of the 

methods listed in the ADDRESSES

section. We will not accept comments 

sent by e-mail or fax or to an address not 

listed in the ADDRESSES section. Finally, 

we will not consider hand-delivered 

comments that we do not receive, or 

mailed comments that are not 

postmarked, by the date specified in the 

DATES section. Comments must be 

submitted to http://www.regulations.gov before midnight (Eastern 

Time) on the date specified in the DATES

section. 

We will post your entire comment— 

including your personal identifying 

information—at http:// 

www.regulations.gov. If your written 

comment includes your street address, 

phone number, or e-mail address, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post hardcopy submissions at 

http://www.regulations.gov. Please note 

that comments submitted to this Web 

site are not immediately viewable. 

When you submit a comment, the 

system receives it immediately. 

However, the comment will not be 

publicly viewable until we post it, 

which might not occur until several 

days after submission. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection at 

http://www.regulations.gov, or by 

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Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 53383 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Ventura Fish and Wildlife 

Office (see ADDRESSES and FOR FURTHER

INFORMATION CONTACT). 

Public Hearing 

We have scheduled two formal public 

hearings to afford the general public and 

all interested parties with an 

opportunity to make formal oral 

comments or to submit written 

comments in person on the proposed 

rule, revised draft SEIS, or IRFA. 

We will hold the public hearings at 

the locations listed in ADDRESSES on the 

dates listed in DATES. The public 

hearings will last from 6 p.m. to 8 p.m. 

We will hold a public informational 

open house prior to each hearing from 

5 pm to 6 pm to provide an additional 

opportunity for the public to gain 

information and ask questions about the 

proposed rule. This open house session 

should assist interested parties in 

preparing substantive comments on the 

proposed rule. 

Persons needing reasonable 

accommodations in order to attend and 

participate in a public hearing should 

contact the Ventura Fish and Wildlife 

Office, at the address or phone number 

listed in the FOR FURTHER INFORMATION

CONTACT section as soon as possible. In 

order to allow sufficient time to process 

requests, please contact us for assistance 

no later than one week before the 

hearing. 

Written comments submitted during 

the comment period receive equal 

consideration with comments presented 

at a public hearing. All comments we 

receive at the public hearing, both 

verbal and written, will be considered 

in making our final decision. 

Background 

Previous Federal Actions 

On January 14, 1977, we listed the 

southern sea otter as a threatened 

species under the ESA (16 U.S.C. 1531 

et seq.), on the basis of its small 

population size, its greatly reduced 

range, and the potential risk from oil 

spills (42 FR 2965). We established a 

recovery team for the species in 1980, 

and approved a recovery plan on 

February 3, 1982. In the recovery plan, 

we identified the translocation of 

southern sea otters as an effective and 

reasonable recovery action, 

acknowledging that a translocated 

southern sea otter colony could impact 

shellfish fisheries that had developed in 

areas formerly occupied by southern sea 

otters. The objectives of southern sea 

otter translocation, as stated in the 1982 

recovery plan, included: (1) Establishing 

a second colony (or colonies) 

sufficiently distant from the parent 

population such that a smaller portion 

of the southern sea otter range would be 

affected in the event of a large-scale oil 

spill; and (2) establishing a database for 

identifying the optimal sustainable 

population level for the southern sea 

otter. We anticipated that translocation 

would ultimately result in a larger 

population size and a more continuous 

distribution of animals throughout the 

southern sea otter’s historic range. 

Under the ESA, the Secretary has 

inherent authority to establish new or 

translocated populations of listed 

species. Section 10(j) of the ESA 

provides the Secretary with additional 

flexibility to relax the protective 

provisions of the ESA when 

translocating a population of a listed 

species by allowing the Secretary to 

designate the translocated population as 

an experimental population. However, 

the southern sea otter is protected under 

both the ESA and the MMPA, and at the 

time, the MMPA did not contain similar 

provisions. This inconsistency was 

resolved in the case of the southern sea 

otter translocation program by the 

passage of Public Law (Pub. L.) 99–625 

(Fish and Wildlife Programs: 

Improvement; Section 1. Translocation 

of California Sea Otters) on November 7, 

1986, which specifically authorized 

development of a translocation plan for 

southern sea otters administered in 

cooperation with the affected State. 

If the Secretary of the Interior chose 

to develop a translocation plan under 

Pub. L. 99–625, the plan was required 

to include: (1) The number, age, and sex 

of southern sea otters proposed to be 

relocated; (2) the manner in which 

southern sea otters were to be captured, 

translocated, released, monitored, and 

protected; (3) specification of a zone 

into which the experimental population 

would be introduced (translocation 

zone); (4) specification of a zone 

surrounding the translocation zone that 

did not include the range of the parent 

population or adjacent range necessary 

for the recovery of the species 

(management zone); (5) measures, 

including an adequate funding 

mechanism, to isolate and contain the 

experimental population; and (6) a 

description of the relationship of the 

implementation of the plan to the status 

of the species under the ESA and 

determinations under section 7 of the 

ESA. The purposes of the management 

zone were to: (1) Facilitate the 

management of southern sea otters and 

the containment of the experimental 

population within the translocation 

zone; and (2) prevent, to the maximum 

extent feasible, conflicts between the 

experimental population and fishery 

resources within the management zone. 

Any southern sea otter found within the 

management zone was to be treated as 

a member of the experimental 

population. We were required to use all 

feasible, nonlethal means to capture 

southern sea otters in the management 

zone and to return them to the 

translocation zone or to the range of the 

parent population. 

On August 15, 1986, we published a 

proposed rule to establish an 

experimental population of southern sea 

otters at San Nicolas Island, Ventura 

County, California, in conjunction with 

a management zone from which sea 

otters would be excluded (51 FR 29362). 

Concurrently, we released a draft 

environmental impact statement (EIS) 

that analyzed the impacts of six 

alternatives, which included 

establishing a program to translocate 

southern sea otters from their thencurrent range along the central coast of 

California to areas of the northern coast 

of California, the southern coast of 

Oregon, or San Nicolas Island off the 

coast of southern California. We 

identified translocation to San Nicolas 

Island as our preferred alternative, with 

the management zone including the 

coastline from Point Conception to the 

Mexican border and all of the offshore 

islands except San Nicolas Island. On 

May 8, 1987, we made available our 

final EIS (52 FR 17486). A detailed 

translocation plan meeting the 

requirements of Public Law 99–625 was 

included as an appendix to the final 

EIS. On August 11, 1987, we published 

a final rule providing implementing 

regulations for the translocation 

program (52 FR 29754); these 

regulations are codified at 50 CFR 

17.84(d). These regulations define the 

boundaries of the translocation and 

management zones, provide the 

framework for the program, and include 

a set of criteria for determining if the 

translocation should be considered a 

failure. 

Implementation of the Translocation 

Program 

The purpose of the southern sea otter 

translocation program was to: (1) 

Implement a primary recovery action for 

the southern sea otter; and (2) obtain 

data for assessing southern sea otter 

translocation and containment 

techniques, population dynamics, 

ecological relationships with the 

nearshore community, and effects on 

the donor population of removing 

individual southern sea otters for 

translocation (52 FR 29754; August 11, 

1987). The translocation of southern sea 

otters was intended to advance southern 

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sea otter recovery, with the ultimate 

goal of delisting the species under the 

ESA. Through translocation, we hoped 

to establish a self-sustaining southern 

sea otter population (experimental 

population) that would provide a 

safeguard in the event that the parent 

southern sea otter population was 

adversely affected by a catastrophic 

event, such as an oil spill. We expected 

that, to achieve this aim, the colony at 

San Nicolas Island would need to grow 

to a size such that it could remain viable 

while furnishing up to 25 sea otters per 

year for up to 3 years to repopulate 

affected areas of the parent range. Based 

on the magnitude of oil spills that had 

occurred up to that time, San Nicolas 

Island appeared to be sufficiently 

distant from the parent range to provide 

a reasonable safeguard in the event of 

such a catastrophic occurrence. 

On August 24, 1987, we began to 

implement the translocation plan by 

moving groups of southern sea otters 

from the coast of central California to 

San Nicolas Island. The translocation 

plan allowed for a maximum of 70 

southern sea otters to be moved to San 

Nicolas Island during the first year of 

the program (USFWS 1987). This 

number could be supplemented with up 

to 70 animals annually (up to 250 total) 

in subsequent years, if necessary, to 

ensure the success of the translocation 

and to prevent the colony from 

declining into an irreversible downward 

trend. Assuming that a core population 

of 70 southern sea otters could be 

maintained through translocation, we 

anticipated that the experimental 

population could be established within 

as few as 5 or 6 years. In this context, 

the term ‘‘established’’ had a specific 

meaning: When at least 150 southern 

sea otters resided at the island and the 

population had a minimum annual 

recruitment of 20 animals (52 FR 29754; 

August 11, 1987). 

Between August 1987 and March 

1990, we captured 252 southern sea 

otters along the central California coast 

and released 140 at San Nicolas Island. 

More than 100 of the captured sea otters 

were deemed unsuitable for 

translocation and released near their 

capture sites, and 6 of the 252 animals 

died of stress-related conditions before 

translocation to San Nicolas Island. 

Some sea otters died as a result of 

translocation, many swam back to the 

parent population, and some moved 

into the management zone. As of March 

1991, approximately 14 independent 

(non-pup) southern sea otters (10 

percent of those translocated) were 

thought to remain at the island. 

Because of the unexpected mortalities 

and high emigration encountered during 

the first year, we amended our 

regulations for the translocation 

program in 1988 (53 FR 37577; 

September 27, 1988). The amendments 

were intended to minimize stress on 

captured sea otters, to improve the 

survival of translocated animals, and to 

minimize the dispersal of translocated 

sea otters from the translocation zone. 

Specifically, we provided more 

flexibility in selecting the ages of sea 

otters for translocation, eliminated the 

restriction to capture them only within 

an August to mid-October timeframe, 

eliminated the requirement to move a 

specified number of sea otters 

previously implanted with transmitters, 

provided the flexibility either to 

transport them immediately or to hold 

them on the mainland before releasing 

them at San Nicolas Island, and 

eliminated the requirement to 

translocate a minimum of 20 animals at 

a time. 

The fate of approximately half the sea 

otters taken to San Nicolas Island was 

never determined, although an intense 

effort was made to locate translocated 

animals at San Nicolas Island, in the 

management zone, and in the parent 

range. In 1991, we stopped translocating 

sea otters to San Nicolas Island due to 

high rates of dispersal and poor 

survival. However, we continued 

monitoring the sea otters remaining in 

the translocation zone. 

In December 1987, in coordination 

with the California Department of Fish 

and Game, we began capturing and 

moving southern sea otters that entered 

the designated management zone. 

Containment efforts were intended to 

keep the management zone free of 

otters, in accordance with Public Law 

99–625 and our implementing 

regulations. Containment operations 

consisted of three interdependent 

activities: (1) Surveillance of the 

management zone; (2) capture of 

southern sea otters in the management 

zone; and (3) relocation of captured 

animals to the parent range or San 

Nicolas Island. 

Between December 1987 and February 

1993, 24 southern sea otters were 

captured, removed from the 

management zone, and released in the 

parent range. Of these, two sea otters 

were captured twice in the management 

zone, despite being released at the 

northern end of the parent range after 

their first removal. In February 1993, 

two sea otters that had been recently 

captured in the management zone were 

found dead shortly after their release in 

the range of the parent population. In 

total, four sea otters were known or 

suspected to have died within 2 weeks 

of being moved from the management 

zone. We were concerned that sea otters 

were dying as a result of our 

containment efforts; therefore, in 1993, 

we suspended all sea otter capture 

activities in the management zone to 

evaluate capture and transport methods. 

We recognized that available capture 

techniques, which had proven to be less 

effective and more labor-intensive than 

originally predicted, were not an 

efficient means of containing sea otters. 

From 1993 to 1997, few sea otters were 

reported in the management zone, and 

there appeared to be no immediate need 

to address sea otter containment. In 

1997, the California Department of Fish 

and Game notified us that it intended to 

end its sea otter research project and 

would no longer be able to assist if we 

resumed capturing sea otters in the 

management zone. 

In 1998, a group of approximately 100 

southern sea otters moved from the 

parent range into the northern end of 

the management zone, inaugurating a 

pattern of seasonal movements of large 

numbers of sea otters into and out of the 

management zone. Subsequent radiotelemetry studies have determined that 

these animals are moving great 

distances throughout their range and are 

an important component of the 

population (i.e, the same territorial 

males that hold territories and sire pups 

within the center of the range may be 

found seasonally aggregated in ‘‘male 

areas,’’ often at the range ends) (Tinker 

et al. 2006). At the same time, 

rangewide counts of the southern sea 

otter population indicated a decline of 

approximately 10 percent between 1995 

and 1998. In light of the decline in the 

southern sea otter population, we were 

concerned about the potential effects on 

the parent population of moving the 

large number of southern sea otters that 

had moved into the management zone. 

We asked the Southern Sea Otter 

Recovery Team, a team of biologists 

with expertise pertinent to southern sea 

otter recovery, for their recommendation 

regarding the capture and removal of 

southern sea otters in the management 

zone. The recovery team recommended 

that we not move southern sea otters 

from the management zone to the parent 

population because moving large groups 

of southern sea otters and releasing 

them within the parent range would be 

disruptive to the social structure of the 

parent population. We agreed with their 

recommendation. 

In order to notify stakeholders of our 

intended course of action, we held two 

public meetings in August 1998. At 

these meetings, we provided 

information on the status of the 

translocation program, solicited general 

comments and recommendations, and 

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announced that we intended to 

reinitiate consultation under section 7 

of the ESA for the containment program 

and to begin the process of evaluating 

the failure criteria established for the 

translocation program. Subsequent to 

these meetings, the group of technical 

consultants (a body composed of 

representatives from the fishery and 

environmental communities, as well as 

State and Federal agencies) to the 

Southern Sea Otter Recovery Team was 

expanded to assist in evaluating the 

translocation program. We provided 

updates on the translocation program 

and the status of the southern sea otter 

population to the California Coastal 

Commission, the Marine Mammal 

Commission, and the California Fish 

and Game Commission in 1998 and 

1999. 

In March 1999, we distributed a draft 

evaluation of the translocation program 

to interested parties for their comment. 

The draft document included the 

recommendation that we declare the 

translocation program a failure because 

fewer than 25 sea otters remained in the 

translocation zone, and reasons for the 

translocated sea otters’ emigration or 

mortality could not be identified or 

remedied. We received comments from 

State and Federal agencies and the 

public following release of the draft for 

review. Some comments supported 

declaring the translocation program a 

failure, while others opposed it. The 

majority of respondents cited new 

information that became available after 

publication of our 1987 EIS and record 

of decision for the program. Many 

respondents encouraged us to look at 

new alternatives that were not identified 

in our 1987 EIS or corresponding 

implementing regulations. 

During the same period, we prepared 

a draft biological opinion, pursuant to 

section 7 of the ESA, evaluating the 

containment aspects of the southern sea 

otter translocation program. We 

distributed the draft to interested parties 

for comment on March 19, 1999, and 

issued a final biological opinion on July 

19, 2000. Our reinitiation of 

consultation was prompted by the 

receipt of substantial new information 

on the population status, behavior, and 

ecology of the southern sea otter that 

revealed adverse effects of containment 

that were not previously considered. In 

the biological opinion, we cited the 

following information and 

circumstances as prompting reinitiation: 

(1) In 1998 and 1999, southern sea 

otters moved into the management zone 

in much greater numbers than in 

previous years; 

(2) Analysis of carcasses indicated 

that southern sea otters were being 

exposed to environmental contaminants 

and diseases that could be affecting the 

health of the population throughout 

California; 

(3) Rangewide counts of southern sea 

otters indicated that numbers were 

declining; 

(4) Recent information, in particular 

the observed effects of the Exxon Valdez 

oil spill, indicated that southern sea 

otters at San Nicolas Island would not 

be isolated from the potential effects of 

a single large oil spill; and 

(5) The capture and release of large 

groups of southern sea otters could 

result in substantial adverse effects on 

the parent population. 

The biological opinion concluded 

with our assessment that continuation 

of the containment program would 

likely jeopardize the continued 

existence of the species on the grounds 

that: (1) Reversal of the southern sea 

otter’s population decline is essential to 

the survival and recovery of the species, 

whereas continuation of containment 

could cause the direct deaths of 

individuals and disrupt social behavior 

in the parent range, thereby 

exacerbating population declines; and 

(2) expansion of the southern sea otter’s 

distribution is essential to the survival 

and recovery of the species, whereas 

continuation of the containment 

program would artificially restrict the 

range to the area north of Point 

Conception, thereby increasing the 

vulnerability of the species to oil spills, 

disease, and stochastic events. 

On July 27, 2000, we published in the 

Federal Register a notice of intent to 

prepare a supplement to our 1987 EIS 

on the southern sea otter translocation 

program (65 FR 46172), and on January 

22, 2001, we issued a policy statement 

regarding the capture and removal of 

southern sea otters in the designated 

management zone (66 FR 6649). Based 

on our July 2000 biological opinion, we 

determined that the containment of 

southern sea otters was not consistent 

with the requirement of the ESA to 

avoid jeopardy to the species. The 

notice advised the public that we would 

not capture and remove southern sea 

otters from the management zone 

pending completion of our reevaluation 

of the southern sea otter translocation 

program, which would include the 

preparation of a supplement to our 1987 

EIS and release of a final evaluation of 

the translocation program that contains 

an analysis of failure criteria. 

Public scoping meetings were 

announced in the July 27, 2000, issue of 

the Federal Register (65 FR 46172) and 

were held in Santa Barbara, California, 

on August 15, 2000, and in Monterey, 

California, on August 17, 2000. We also 

convened the technical consultants to 

the Southern Sea Otter Recovery Team 

on September 26, 2000, to discuss 

scoping of the supplement. In April 

2001, we published a scoping report 

that identified alternatives we would 

consider in the supplement and 

summarized comments received during 

the scoping period. 

On April 3, 2003, we made available 

our Final Revised Recovery Plan for the 

Southern Sea Otter (68 FR 16305; 

USFWS 2003, http://www.fws.gov/ 

ventura/). This document updated the 

original recovery plan published in 

1982. The revised recovery plan 

incorporated significant revisions, 

including a shift in focus from 

translocation as a primary recovery 

action to efforts to reduce the mortality 

of prime-aged animals. Based on the 

recommendations of the recovery team, 

the revised recovery plan concluded 

that additional translocations were not 

the best way to accomplish the objective 

of increasing the range and number of 

southern sea otters in California. 

According to the revised plan, range 

expansion of sea otters in California 

would occur more rapidly if the existing 

population were allowed to recover 

autonomously than it would under a 

recovery program that included actively 

translocating sea otters. The revised 

plan also recommended that it would be 

in the best interest of southern sea otter 

recovery to declare the translocation 

program a failure, to discontinue 

maintenance of an otter-free zone, and 

to allow the sea otters currently at San 

Nicolas Island to remain there. 

On October 7, 2005, we made 

available a draft SEIS on the 

translocation program (70 FR 58737). A 

draft evaluation of the translocation 

program was included as Appendix C. 

We solicited comments on both the draft 

SEIS and the draft evaluation during the 

public comment period, which began 

October 7, 2005 (70 FR 58737), and 

ended March 6, 2006 (70 FR 77380). 

Comments we received during the 5- 

month comment period, including those 

addressing the translocation program 

evaluation, are summarized in 

Appendix G to the revised draft SEIS. 

As of December 2010, up to 46 

independent southern sea otters have 

been counted at San Nicolas Island. 

Dependent pups are frequently observed 

with these animals. Data from quarterly 

counts indicate that the population has 

fluctuated between 13 and 46 

individuals since July 1990. One sea 

otter pup was born at San Nicolas Island 

during the first year of the translocation 

program (1987–88), and new pups have 

been observed in each subsequent year. 

At least 151 pups are known to have 

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been born at the island since the 

program’s inception. 

At present, it is likely that most, if not 

all, of the southern sea otters at San 

Nicolas Island are offspring of those 

originally translocated to the island. 

This is because the original animals 

were translocated more than 2 decades 

ago, and the average life expectancy of 

southern sea otters in the wild is 10 to 

15 years. Although it is possible that sea 

otters could disperse from the mainland 

range to San Nicolas Island, we have no 

information to indicate that any 

exchange of animals between these two 

locations has occurred subsequent to the 

return of many of the translocated sea 

otters to the mainland range in the early 

years of the program. To date, we have 

gathered a significant amount of data to 

assess capture, transport, 

reintroduction, and containment 

techniques. However, the goal of 

implementing a primary recovery action 

for the southern sea otter remains 

unfulfilled. The original intention, to 

create a colony that would provide a 

safeguard in the event that the parent 

southern sea otter population was 

adversely affected by a catastrophic 

event, such as an oil spill, has not been 

accomplished. 

Availability of Revised Draft SEIS 

Concurrent with publication of this 

proposed rule, we are releasing a 

revised draft SEIS. The revised draft 

SEIS updates and responds to comments 

received on the draft SEIS released in 

2005, discusses details of the events of 

the translocation program from 1982 to 

the present, analyzes a range of 

alternatives for the southern sea otter 

translocation program, and includes a 

detailed draft evaluation of the program 

as Appendix C. The preferred 

alternative in the revised draft SEIS is 

to terminate the southern sea otter 

translocation program and, further, to 

allow southern sea otters in the former 

translocation and management zones to 

remain there upon termination of the 

program. Allowing sea otters to remain 

at San Nicolas Island and in the 

management zone upon termination of 

the translocation program is contrary to 

50 CFR 17.84(d)(8)(vi) of the current 

regulations, which requires removal of 

sea otters from both locations if the 

translocation program is terminated. 

This proposed rule would implement 

the recommendations of the Final 

Revised Recovery Plan for the Southern 

Sea Otter, which is also the preferred 

alternative in the revised draft SEIS. 

This proposed rule would terminate the 

southern sea otter translocation program 

through removal of the regulations at 50 

CFR 17.84(d) that established and 

govern implementation of the 

translocation program. Among the 

regulatory requirements that would be 

eliminated by the removal of 50 CFR 

17.84(d), in its entirety, is the current 

requirement to remove sea otters from 

San Nicolas Island and from the 

management zone if the translocation 

program is terminated. 

Assessment of Failure Criteria 

Identified in Translocation Plan 

Public Law 99–625 authorized 

southern sea otter translocation and 

provided requirements for a southern 

sea otter translocation plan should we 

pursue such a plan. It did not address 

the possibility of the program’s failure. 

As a consequence, it did not specify 

criteria that would be used to determine 

whether the program had failed, nor did 

it recommend actions that should be 

taken in the case of failure. When we 

developed the translocation plan and 

implementing regulations for the 

program, we received public comment 

asking us to define what constituted 

failure of the program and what actions 

we would take if the program failed. We 

responded by delineating specific 

failure criteria in the 1987 Translocation 

Plan (52 FR 29754; August 11, 1987). 

The purpose of the failure criteria was 

to identify circumstances under which 

we would generally consider the 

translocation program to have failed. 

The five failure criteria were defined 

before any translocations of southern 

sea otters were undertaken and without 

the benefit of what we know today 

about the translocation, containment, 

and recovery needs of southern sea 

otters. The criteria focus on the status of 

the translocated population and, in 

hindsight, do not address all the 

circumstances that are relevant to a 

complete evaluation of the program. For 

example, the failure criteria do not 

address the possibility that containment 

might not be successfully accomplished 

because of southern sea otters entering 

the management zone from the 

mainland range rather than from the 

population at San Nicolas Island, the 

possibility that the founding population 

of the San Nicolas Island colony might 

be fewer than 70 animals, or even the 

possibility that an ‘‘established’’ 

population at San Nicolas Island (as 

defined at 52 FR 29754; August 11, 

1987) may be insufficient to attain the 

recovery goals established for the 

program. Similarly, the failure criteria 

do not anticipate the possibility that the 

capture and relocation of sea otters from 

the management zone could result in 

the deaths of some animals. Ultimately, 

failure is determined by our inability to 

attain the objectives of the translocation 

program, which are clearly set out in the 

final rule for the establishment of an 

experimental population of southern sea 

otters (52 FR 29754; August 11, 1987). 

In the draft translocation program 

evaluation (Appendix C to the revised 

draft SEIS), we find that the 

translocation program meets failure 

criterion 2. A summary of our analysis 

of each failure criterion in the draft 

translocation program evaluation is 

given below. 

Criterion 1: If, after the first year 

following initiation of translocation or 

any subsequent year, no translocated 

southern sea otters remain within the 

translocation zone, and the reasons for 

emigration or mortality cannot be 

identified and/or remedied. 

Criterion 1 has not been met. 

Southern sea otters have been observed 

in the translocation zone at San Nicolas 

Island every year since the beginning of 

the program. 

Criterion 2: If, within 3 years from the 

initial transplant, fewer than 25 

southern sea otters remain in the 

translocation zone and the reason for 

emigration or mortality cannot be 

identified and/or remedied. 

Criterion 2 has been met. The initial 

transplant occurred in August 1987. 

Within 3 years of the initial transplant 

(August 1990), a maximum of 17 sea 

otters (14 independent animals and 3 

pups) resided in the translocation zone. 

We chose to delay declaring the 

translocation program a failure in 1990 

because southern sea otters were 

reproducing, dispersal into the 

management zone had abated, and the 

California Department of Fish and Game 

expressed a desire to continue zonal 

management of southern sea otters. 

Although sea otters at the island 

continue to reproduce, the colony 

remains small to this day; dispersal of 

sea otters from the parent range into the 

management zone is now regularly 

occurring; and the California 

Department of Fish and Game informed 

us in 1997 that it would no longer be 

able to assist us if we resumed capturing 

sea otters in the management zone. 

We consider emigration from San 

Nicolas Island to be the primary reason 

for the small size of the population (17 

sea otters, including pups) remaining at 

the island within 3 years of the initial 

transplant. Fifty-four (54) translocated 

sea otters were later detected elsewhere 

(either back in the mainland range or in 

southern California waters). The number 

of sea otters resighted in the mainland 

range (36), despite the absence of a 

focused effort to identify them there 

(efforts were focused instead at San 

Nicolas Island and in the management 

zone), suggests that additional sea otters 

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may have returned without being 

detected. There is some evidence of sea 

otter mortality at San Nicolas Island 

(three sea otters were found dead at San 

Nicolas Island within days of being 

translocated), but no additional deaths 

of translocated sea otters at San Nicolas 

Island were verified. Of the animals that 

remain unaccounted for, it seems likely 

that most either emigrated successfully 

and escaped further detection or 

attempted to emigrate but died before 

reaching suitable habitat. 

Although high rates of dispersal had 

been seen in all earlier sea otter 

translocations (Estes et al. 1989), we 

believed that the translocation to San 

Nicolas Island would not result in the 

significant dispersal of animals because 

of the abundance of prey items, the 

apparent suitability of the habitat, and 

the perceived barrier imposed by the 

surrounding deep water. After the first 

year of translocation, we made 

significant changes to the program with 

the intent of minimizing or eliminating 

emigration (53 FR 37577; September 27, 

1988). These changes were implemented 

during the second year of the program, 

when we selected younger sea otters for 

translocation, transported sea otters 

more quickly and in smaller groups, 

abandoned the use of holding pens at 

the island, and released newly 

translocated sea otters in the vicinity of 

sea otters already residing at the island. 

Despite our efforts, none of these 

changes appeared to result in a decrease 

in emigration. In the final year of the 

translocation effort, we attempted to 

gain more information on sea otter 

movements by implanting radio 

transmitters in sea otters immediately 

prior to their transport to San Nicolas 

Island. Two of the initial three southern 

sea otters that received implants died 

before they could be transported to the 

island, causing us to abandon this effort. 

We conclude that the translocation 

program has failed under criterion 2. We 

believe that emigration from San 

Nicolas Island is the primary reason that 

substantially fewer than 25 otters 

remained in the translocation zone 

within 3 years of the initial transplant. 

Although we modified the program 

significantly after the first year in an 

attempt to reduce emigration and 

otherwise reduce sea otter mortality 

associated with the program, we were 

unable to remedy the situation. 

Therefore, failure criterion 2 has been 

met. 

The fact that the translocation 

program has failed under criterion 2 

does not necessarily mean that the sea 

otter colony at San Nicolas Island is 

destined to disappear. In fact, it appears 

to have a low cumulative probability of 

extinction (Carswell 2008). However, 

the final rule establishing the program 

clearly states, ‘‘The Service does not 

consider the mere presence of sea otters 

in the translocation zone as an 

indication that a new population is 

established’’ (52 FR 29754 at 29774; 

August 11, 1987). The colony would be 

considered ‘‘established’’ when at least 

150 southern sea otters resided at the 

island and the population had a 

minimum annual recruitment of 20 

animals (52 FR 29754 at 29774; August 

11, 1987). The initial high rate of 

dispersal of translocated sea otters from 

San Nicolas Island is the primary cause 

of failure under this criterion not only 

because of its direct effect on the 

subsequent size of the San Nicolas 

Island colony, but also because of its 

implications for the recovery strategy at 

the heart of the program: the intended 

function of the San Nicolas Island 

population as a self-sustaining ‘‘reserve 

colony for providing stock to restore 

subsequently damaged areas’’ in the 

southern sea otter’s range (52 FR 29754 

at 29774; August 11, 1987). The high 

rate of dispersal of translocated sea 

otters suggests it is unlikely that the 

colony will ever be large enough to 

supply the numbers of sea otters 

necessary to perform a successful 

translocation and re-establishment of 

population in the mainland range if the 

parent population were reduced or 

eliminated by a catastrophic event. 

Criterion 3: If, after 2 years following 

the completion of the transplant phase, 

the experimental population is 

declining at a significant rate, and the 

translocated southern sea otters are not 

showing signs of successful 

reproduction (i.e., no pupping is 

observed); however, termination of the 

project under this and the previous 

criterion may be delayed, if 

reproduction is occurring and the 

degree of dispersal into the management 

zone is small enough that the effort to 

remove southern sea otters from the 

management or no-otter zone would be 

acceptable to us and the affected State. 

We are unable to evaluate whether the 

program has failed under criterion 3 

because we never reached the minimum 

number of sea otters at San Nicolas 

Island required to complete the 

transplant phase of the program. The 

translocation plan defines the transplant 

phase as ending when there are at least 

70 healthy southern sea otters of mixed 

ages and sexes within the translocation 

zone and we determine that the 

population is increasing due to natural 

reproduction. Although we translocated 

twice this number, we never achieved 

the requisite core population of 70 

animals. 

From a practical perspective, 

however, the transplant phase ended 

when the last sea otter was translocated 

to the island in 1990. The population 

declined at a significant rate from the 

program’s inception in 1987 to 1993, at 

which time the number of independent 

sea otters at the island was 12. Although 

pups were observed from 1987 to 1993, 

there appeared to be little or no 

recruitment into the population. The 15 

sea otters at the island in 1993 (12 

independent animals and 3 pups) were 

fewer than the minimum number (25) 

required to avoid a declaration of failure 

under failure criterion 2; however, 

under provisions of failure criterion 3 

we could delay termination of the 

program because pupping was occurring 

and dispersal of translocated sea otters 

into the management zone had abated. 

The experimental population has 

fluctuated in number since 1993, and 

now appears to be increasing overall; 

reproduction continues to occur. 

Although pupping is occurring, it is not 

certain that the San Nicolas colony will 

persist. If it does persist, it will have 

been founded on a small subset of the 

core number of 70 healthy sea otters of 

mixed ages and sexes that were 

intended to found the population, a fact 

that has implications for the genetic 

makeup of the resulting population. The 

current rate of emigration from the 

island is unknown, but we now know 

that the deep ocean channels 

surrounding the island do not present 

the anticipated barrier to dispersal. 

Criterion 4: If we determine, in 

consultation with the affected State and 

the Marine Mammal Commission, that 

southern sea otters are dispersing from 

the translocation zone and becoming 

established within the management 

zone in sufficient numbers to 

demonstrate that containment cannot be 

successfully accomplished. This 

standard is not intended to apply to 

situations in which individuals or small 

numbers of southern sea otters are 

sighted within the management zone or 

temporarily manage to elude capture. 

Instead it is meant to be applied when 

it becomes apparent that, over time (1 

year or more), southern sea otters are 

relocating from the translocation zone to 

the management zone in such numbers 

that: (1) An independent breeding 

colony is likely to become established 

within the management zone; or (2) they 

could cause economic damage to fishery 

resources within the management zone. 

It is expected that we could make this 

determination within a year, provided 

that sufficient information is available. 

Technically, criterion 4 has not been 

met. This criterion clearly specifies that 

the program would be declared a failure 

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if sea otters moved from the 

translocation zone and became 

established in the management zone. 

The criterion does not strictly apply if 

animals immigrate into the management 

zone from the parent range. 

Nevertheless, beginning in 1998, large 

groups (50 to 150 individuals) of sea 

otters have seasonally moved into the 

management zone from the parent 

range. Since 2006, monthly surveys 

have counted an average of 40 otters 

with considerable variation over time 

(standard deviation of +/¥ 19) (K.D. 

Lafferty, USGS, pers. comm. 2011). In 

January 2011, three pups were detected, 

suggesting that a permanent breeding 

colony may be establishing itself in the 

management zone. Commercial fishing 

interests contend that local shellfish 

populations available to the fishery have 

been reduced by the presence of these 

sea otters. 

The difficulties associated with sea 

otter capture and transport, our concern 

for the welfare of animals removed from 

the management zone, the adverse 

effects of sea otter containment on the 

parent population, and the adverse 

effects on fisheries are concerns 

regardless of whether sea otters enter 

the management zone from the parent 

range or from San Nicolas Island. 

Although criterion 4 is specific and 

applies only to sea otters originating 

from San Nicolas Island, our experience 

with sea otters entering the management 

zone from either the parent range or the 

translocation zone indicates that 

successful containment of sea otters, or 

maintenance of an ‘‘otter-free’’ 

management zone, cannot be 

accomplished by simply capturing 

animals in the management zone and 

moving them to another location. 

Criterion 5: If the health and wellbeing of the experimental population 

should become threatened to the point 

that the colony’s continued survival is 

unlikely, despite Federal and State laws. 

An example would be if an overriding 

military action for national security was 

proposed that would threaten to 

devastate the colony and the removal of 

southern sea otters was determined to 

be the only viable way of preventing 

loss of the colony. 

Criterion 5 has not been met. The 

experimental population at San Nicolas 

Island, although small and vulnerable, 

has persisted. There are no proposed 

Federal, State, or local actions that 

threaten to devastate the colony. The 

Department of Defense is responsible for 

the majority of human activity at San 

Nicolas Island. They have conferred 

with us and given consideration to 

southern sea otters when developing 

projects at San Nicolas Island. To date, 

no projects have posed a threat to the 

colony. 

Conclusion 

We therefore conclude that the 

translocation program has failed under 

Criterion 2. Criterion 3 cannot be 

evaluated. Criteria 1, 4, and 5 have not 

been met. 

The primary purpose of the southern 

sea otter translocation program was to 

advance southern sea otter recovery, 

with the ultimate goal of delisting the 

species. Based on a broader evaluation 

of the translocation program against the 

goals for which it was undertaken and 

current recovery goals, in concert with 

the failure criteria established for the 

program’s assessment, we again 

conclude that the translocation program 

has failed. It has failed to fulfill its 

purpose, and our recovery and 

management goals for the species 

cannot be met by continuing the 

program. 

The San Nicolas Island sea otter 

colony remains small, and its future is 

uncertain. Even if the colony were to 

become established, the resulting 

population would not likely be 

sufficient to ensure survival of the 

species should the parent population be 

adversely affected by a widespread 

catastrophic event. Recovery of the 

southern sea otter will ultimately 

depend on the growth and expansion of 

the southern sea otter’s range. Although 

we recognize that there are conflicts 

between an expanding sea otter 

population and fisheries that have 

developed in the absence of sea otters, 

zonal management of sea otters has 

proven to be ineffective and 

compromises the ability of the species 

to recover. 

We therefore propose to terminate the 

translocation program and remove the 

regulations at 50 CFR 17.84(d) in their 

entirety. This proposed action would: 

Æ Terminate the designation of the 

experimental population of southern sea 

otters; 

Æ Abolish the southern sea otter 

translocation and management zones; 

Æ Eliminate future actions, required 

under the current regulations, to capture 

and relocate southern sea otters for the 

purposes of establishing an 

experimental population or restricting 

movements of southern sea otters into 

an ‘‘otter-free’’ management zone; and 

Æ Allow southern sea otters to expand 

their range naturally into southern 

California waters. 

Removal of the translocation program 

regulations in their entirety would also 

eliminate the current requirement at 50 

CFR 17.84(d)(8)(vi) to remove southern 

sea otters from San Nicolas Island and 

from the management zone upon 

termination of the program. 

Regulatory Environment Upon 

Termination of the Translocation 

Program 

Public Law 99–625 states that the 

Service, through the Secretary of the 

Interior, ‘‘may’’ develop and implement 

a plan for the relocation and 

management of sea otters, and then goes 

on to specify what must be included if 

such a plan is developed. Therefore, 

termination of the translocation program 

and removal of the regulations 

governing the program would render the 

specific provisions of Public Law 99– 

625 inoperative. The translocation and 

management zones would be abolished, 

and the exemptions under Public Law 

99–625 from the duty to consult under 

section 7 of the ESA for defense-related 

activities within the former 

translocation zone and for all Federal 

activities within the former management 

zone, as well as the exemption from the 

incidental take prohibitions of the ESA 

and the MMPA for activities within the 

former management zone, would end. 

Any incidental take by a Federal 

agency (authorized through the ESA 

section 7 process) or by a State or tribal 

government or private entity (authorized 

through the ESA section 10 process) 

would also have to be authorized under 

the MMPA. Under both the ESA and the 

MMPA, incidental take is prohibited 

unless it has been authorized. Section 

101(a)(5)(A) of the MMPA states that we 

may authorize the taking of small 

numbers of marine mammals within a 

specified geographical region over 

periods of not more than 5 consecutive 

years, provided we find that the total of 

such taking during the period will have 

a negligible impact on the species or 

stock. Section 101(a)(5)(D) allows for 

similar authorization, for not more than 

1 year for the incidental taking by 

harassment of only small numbers of 

marine mammals. Provisions specific to 

military readiness activities may also 

apply to the authorization of incidental 

take under the MMPA for defenserelated agency actions. 

The incidental take authorization 

provisions under section 101(a)(5) of the 

MMPA apply to activities other than 

commercial fishing. Take incidental to 

commercial fishing is authorized under 

different provisions of the MMPA. 

However, because of specific 

amendments to the provisions under 

section 118, incidental take of southern 

sea otters in commercial fisheries 

cannot be authorized under the MMPA. 

Therefore, incidental take of southern 

sea otters by commercial fisheries in 

southern California waters would be 

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prohibited, as it is now throughout the 

remainder of the range of the species 

(north of Point Conception). All 

intentional take would continue to be 

prohibited, as it is under the current 

regulatory environment, unless 

authorized under both the ESA and the 

MMPA. 

Federal agencies proposing actions 

(including the permitting or funding of 

actions proposed by non-Federal 

entities) that may affect southern sea 

otters anywhere in southern California 

waters, including all actions planned 

within the former management zone and 

defense-related actions in the former 

translocation zone, would be required to 

consult with the Service under section 

7 of the ESA, as they do now within the 

remainder of the species’ range. Under 

section 7, we must determine whether a 

proposed Federal action is likely to 

jeopardize the continued existence of 

the southern sea otter. Our 

determination is made through the 

issuance of a biological opinion at the 

conclusion of the consultation stating 

our opinion whether the action, if 

carried out as proposed, is likely to 

jeopardize the continued existence of 

the species. If we conclude the proposed 

action would likely result in jeopardy, 

we also indicate any reasonable and 

prudent alternatives to the proposed 

action that would meet its intended 

purpose while avoiding jeopardy to the 

southern sea otter. If a proposed action 

is likely to jeopardize the continued 

existence of the southern sea otter, it 

may not go forward unless the Federal 

action agency applies for and is granted 

an exemption under section 7(h) of the 

ESA. If we determine that the proposed 

Federal action is not likely to jeopardize 

the continued existence of the southern 

sea otter, we may include an incidental 

take statement that exempts take of sea 

otters incidental to the proposed action 

from the take prohibition of section 9 of 

the ESA. Our incidental take statement 

would include terms and conditions 

that must be complied with to minimize 

the effects of any incidental take by the 

Federal action agency. In addition, the 

entity conducting the action would need 

to obtain incidental take authorization 

under the MMPA (discussed below). 

The current exemption under State 

law for incidental take of southern sea 

otters in the management zone would 

also end once the translocation program 

is declared a failure. While California 

Fish and Game Code Section 4700 

generally prohibits the take of southern 

sea otters, section 8664.2 of the Fish and 

Game Code provides that ‘‘the taking of 

a sea otter that is incidental to, and not 

for the purpose of, the carrying out of 

an otherwise lawful activity within the 

sea otter management zone * * * is not 

a violation of the California Endangered 

Species Act * * * or Section 4700.’’ 

Section 8664.2 further provides, ‘‘this 

section shall become inoperative if the 

sea otter translocation experiment is 

declared a failure pursuant to the 

provisions of Public Law 99–625.’’ 

To the extent otherwise allowable 

under State law, proposed non-Federal 

activities in California that would result 

in take of southern sea otters if the 

translocation program is terminated 

would require an incidental take permit 

from the Service under section 

10(a)(1)(B) of the ESA. Among other 

requirements, an applicant for an 

incidental take permit under section 

10(a)(1)(B) of the ESA must submit a 

conservation plan that we find 

minimizes and mitigates the impacts of 

the proposed take to the maximum 

extent practicable. In addition, we must 

find that the proposed take will avoid 

appreciably reducing the likelihood of 

the survival and recovery of the 

southern sea otter in the wild. 

Economic Analysis 

An economic analysis for this 

proposed rule and associated 

alternatives is included in our revised 

draft SEIS on the translocation of 

southern sea otters. A copy of the 

revised draft SEIS is posted on http:// 

www.regulations.gov and may also be 

obtained from the Ventura Fish and 

Wildlife Office (see ADDRESSES section). 

When compared to the existing baseline 

(suspension of southern sea otter 

translocation and containment), the 

proposed rule and subsequent actions 

would have no economic effects except 

possible indirect effects that may occur 

as a result of regulatory changes. The 

benefits to fisheries that may result from 

enforcing a southern sea otter 

management zone and retaining 

incidental take exemptions within this 

zone are included in our economic 

analysis for comparative purposes. 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998 to write all rules in plain language. 

This means that each rule we publish 

must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listing in the ADDRESSES

section. To help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the section where you feel lists or 

tables would be useful, etc. 

Required Determinations 

Regulatory Planning and Review 

In accordance with the criteria in 

Executive Order 12866, this rule is not 

a significant regulatory action. The 

Office of Management and Budget 

(OMB) makes the final determination 

under Executive Order 12866. OMB 

bases its determination on the following 

four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(RFA, as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever a Federal agency is required 

to publish a notice of rulemaking for 

any proposed or final rule, it must 

prepare and make available for public 

comment a regulatory flexibility 

analysis that describes the effect of the 

rule on small entities (such as small 

businesses, small organizations, and 

small government jurisdictions) (5 

U.S.C. 601 et seq.). However, no 

regulatory flexibility analysis is required 

if the head of an agency certifies that the 

rule would not have a significant 

economic impact on a substantial 

number of small entities. Thus, for a 

regulatory flexibility analysis to be 

required, impacts must exceed a 

threshold for ‘‘significant impact’’ and a 

threshold for a ‘‘substantial number of 

small entities.’’ See 5 U.S.C. 605(b). 

SBREFA amended the RFA to require 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule would not have a significant 

economic impact on a substantial 

number of small entities. 

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53390 Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 

Federal courts have held that an RFA 

analysis should be limited to impacts on 

entities subject to the requirements of 

the regulation, but not entities that may 

be indirectly affected by the regulation. 

This proposed rule directly affects only 

southern sea otters and their regulatory 

status in southern California waters 

with respect to the ESA and MMPA. 

Economic effects potentially resulting 

from future regulatory changes 

applicable to commercial fisheries and 

effects of sea otter range expansion on 

the nearshore marine environment, 

including the availability of certain prey 

species for harvest by commercial 

fishers, are indirect. The Service does 

not have direct regulatory authority over 

marine fisheries. Therefore, there are no 

direct effects on small businesses from 

the proposed termination of the 

translocation program. In spite of these 

rulings, in its guidance to Federal 

agencies on conducting screening 

analyses, the Small Business 

Administration (SBA) recommends 

considering impacts on entities that may 

be indirectly affected by the proposed 

regulation. Therefore, we prepared an 

Initial Regulatory Flexibility Analysis 

(IRFA), which we briefly summarize 

below, to accompany this rule. 

The Service is proposing to terminate 

the southern sea otter translocation 

program and to allow all sea otters in 

southern California waters at the time of 

the program’s termination to remain 

there. We are proposing this action 

because we have concluded, in a draft 

translocation program evaluation, that 

the program has failed to meet its 

objectives and that our recovery and 

management goals for the species under 

the ESA and MMPA cannot be met by 

continuing it. The Service has 

management authority for the southern 

sea otter, which is listed as ‘‘threatened’’ 

under the ESA and is considered 

‘‘depleted’’ under the MMPA, and is 

authorized by regulations (50 CFR 

17.84(d)(8)) implementing the 

translocation program under Pub. L. 99– 

625 to promulgate a rule to terminate 

the translocation program if we 

determine the program has failed. 

Summary of Economic Analysis 

A detailed economic analysis for this 

proposed rule and associated 

alternatives is included in the revised 

draft SEIS. The following discussion 

estimates the baseline and the expected 

economic effects of terminating the 

southern sea otter translocation 

program. 

The purpose of this rule is to propose: 

To terminate the southern sea otter 

translocation program, to allow all sea 

otters to remain where they are upon 

termination of the program, and to 

remove the experimental population 

designation from the sea otters at San 

Nicolas Island. This action would allow 

southern sea otters to recolonize their 

historic range throughout southern 

California. We define the baseline 

(status quo) as the current physical and 

regulatory environment (i.e., the 

biological and socioeconomic 

environment resulting from 

management practices that have been in 

place since 1993). These practices 

include the suspension of containment 

activities in the management zone. 

Using the current physical and 

regulatory environment (rather than the 

environment as it might be today if 

containment activities had not been 

suspended) as the baseline is essential 

to an accurate characterization of 

present conditions and to predictions of 

how conditions would change under 

each of the alternatives under 

consideration in the revised draft SEIS. 

Under baseline (current) conditions, 

southern sea otter movement throughout 

the species’ range is not restricted or 

contained. Under the proposed rule, 

containment activities would not be 

resumed. Southern sea otters would 

have the ability, as they have since 

1993, to continue to expand their range 

into southern California waters 

southeast of Point Conception, and to 

increase in number at San Nicolas 

Island. Accordingly, the economic 

effects of both the baseline and the 

proposed rule are the same (in that sea 

otters are allowed to expand their range 

naturally in both cases) except in the 

case of potential indirect economic 

effects on gill and trammel net fisheries 

stemming from regulatory changes, 

which we describe below. This 

statement should not be interpreted to 

mean that economic changes are not 

expected to occur as a result of natural 

range expansion. An expanding sea otter 

population will have numerous effects, 

including effects on certain commercial 

and recreational fisheries and the 

industries that depend on them. Effects 

of all the alternatives under 

consideration in the revised draft SEIS 

are examined in detail in that 

document, including an alternative that 

would entail resuming full 

implementation of the translocation 

program and its associated translocation 

and management zones (Alternative 1), 

the economic effects of which we 

present here for comparison. 

Here and in the revised draft SEIS, we 

limit the quantitative analysis to a 10- 

year time horizon. (In the revised draft 

SEIS, we additionally describe longterm economic and other effects, but in 

qualitative terms only.) The rationale for 

limiting the quantitative analysis to 10 

years is based in part on the extent of 

uncertainty involved in predicting sea 

otter range expansion, in part on the 

indirect nature of most projected 

impacts (and hence possible changes 

over time in the relationship between 

sea otter presence and resultant 

impacts), and in part on the uncertainty 

associated with management regimes 

and economic conditions beyond 10 

years. 

The uncertainty involved in 

predicting range expansion stems from: 

(1) The possibility that the southern sea 

otter range expansion model (Tinker et 

al. 2008a), although it is the best 

available, may not capture all 

population dynamics that might 

ultimately prove to be relevant to range 

expansion; and (2) the possibility that 

future variation in the vital rates and 

movements of southern sea otters, on 

which predictions are based, will be 

different from what has been observed 

in the past. The uncertainty arising from 

the indirect nature of most impacts 

stems from the fact that (1) any 

departure from predicted range 

expansion will also change associated 

impacts, and (2) changes in the 

ecosystem resulting from the presence 

of sea otters may occur differently than 

anticipated because of changes in a 

multitude of other variables unrelated to 

the presence of sea otters, such as global 

climate change, the spread of novel 

diseases or invasive species, or human 

activity (overexploitation of marine 

organisms, inputs of pollutants, and so 

forth). The uncertainty associated with 

management regimes and economic 

conditions results from the fact that (1) 

fisheries may open, close, or be subject 

to permit or gear restrictions for reasons 

unrelated to the presence or absence of 

sea otters, and (2) commercial fisheries 

revenues are driven largely by market 

forces (which are themselves influenced 

by the global economic environment) 

that determine consumer demand. 

Because of these manifold sources of 

uncertainty, we believe it is 

unreasonable to attempt to establish a 

baseline for the impact topics we 

consider, and thus to attempt to 

quantify impacts, beyond a limited time 

horizon. Although the choice of 10 years 

rather than 5 or 15 years is somewhat 

arbitrary, a review of past changes in 

southern sea otter population dynamics 

and commercial fisheries landings 

indicates that a 10-year time horizon 

represents a reasonable timeframe 

within which to quantify impacts. 

Whether sea otters would re-occupy 

other areas of the Southern California 

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Bight in subsequent years would be a 

function of sea otter demographic rates, 

food supply, and other variables. Based 

on past rates of range expansion, it is 

expected that sea otters would not be 

present in most areas of southern 

California for decades. 

To capture some of the uncertainty 

involved in forecasting range expansion, 

we present range expansion in terms of 

upper and lower confidence bounds. To 

the extent that the range expansion 

model captures the key population 

dynamics and that future variation in 

vital rates and movements is not 

fundamentally different from the range 

of variation already observed, these 

bounds have a 95-percent probability of 

encompassing the realized range 

expansion. Within the 10-year time 

horizon, economic effects are projected 

for two areas where sea otter numbers 

are expected to increase under baseline 

conditions: (1) The coastline from Point 

Conception to Carpinteria (lower 95 

percent confidence bound) or Oxnard 

(upper 95 percent confidence bound), 

and (2) San Nicolas Island. We project 

that an expanding sea otter population 

will have economic effects on 

commercial fisheries (sea urchin, crab, 

lobster, and sea cucumber), recreational 

fisheries (lobster), and the sea urchin 

processing industry in southern 

California. Assumptions underlying the 

economic analysis are described in 

Chapter 6 of the revised draft SEIS. 

Numerous other non-economic effects 

are expected to occur as a result of sea 

otter range expansion within 10 years. 

We discuss these effects in the revised 

draft SEIS, but because these effects are 

difficult or impossible to quantify in 

economic terms, we do not discuss them 

here. 

Baseline. Selected fisheries, both 

commercial (sea urchin, crab, lobster, 

and sea cucumber) and recreational 

(lobster), would likely be eliminated in 

mainland coastline areas predicted to be 

re-occupied by sea otters over the next 

10 years: Point Conception to 

Carpinteria (lower bound) or Oxnard 

(upper bound). These fisheries are also 

likely to be affected, to some degree, by 

a growing sea otter population at San 

Nicolas Island. During this period, 

commercial sea urchin landings 

averaging 56,360 to 61,016 pounds 

annually along the affected portion of 

the mainland coastline are expected to 

be eliminated. Average annual landings 

at San Nicolas Island are expected to be 

reduced from 351,333 pounds to 

324,280 pounds. These losses represent 

1 percent and 0.2 percent, respectively, 

of annual commercial sea urchin 

landings in southern California. 

Commercial lobster landings averaging 

54,674 to 75,649 pounds annually along 

the affected portion of the mainland 

coastline are expected to be eliminated. 

Average annual landings at San Nicolas 

Island are expected to be reduced from 

41,622 pounds to 38,417 pounds. These 

losses represent 8 to 11 percent and 0.4 

percent, respectively, of annual 

commercial lobster landings in southern 

California. Commercial crab landings 

averaging 253,572 to 385,743 pounds 

annually along the affected portion of 

the mainland coastline are expected to 

be eliminated. Average annual landings 

at San Nicolas Island are expected to be 

reduced from 10,634 pounds to 9,816 

pounds. These losses represent 23 to 35 

percent and 0.06 percent, respectively, 

of annual commercial crab landings in 

southern California. Commercial sea 

cucumber landings averaging 155,714 to 

158,636 pounds annually along the 

affected portion of the mainland 

coastline are expected to be eliminated. 

Average annual landings at San Nicolas 

Island are expected to be reduced from 

53,683 to 49,549 pounds. These losses 

represent 27 to 28 percent and 1.5 

percent, respectively, of annual 

commercial sea cucumber landings in 

southern California. Also during this 10- 

year period, the seafood processing 

industry would be affected by the 

declining sea urchin harvest. However, 

because the decline in sea urchin 

harvest represents less than 2 percent of 

the sea urchin harvest in southern 

California over the next 10 years, 

anticipated impacts on the seafood 

processing industry would be negligible. 

With respect to the recreational dive 

industry, lobster dive trips on 

commercial passenger fishing vessels 

along the affected mainland coastline 

are negligible. Dive trips at San Nicolas 

Island are expected to be reduced from 

an annual average of 434 to 401. This 

loss represents approximately 0.5 

percent of total dive trips taken 

annually in southern California, 

assuming divers do not choose to dive 

at a different location. In the longer 

term, those areas re-occupied by sea 

otters would likely cease to support 

commercial and recreational shellfish 

fisheries, but the magnitude and timing 

of this potential change is unknown. 

Economic Effects of Proposed Rule 

(Alternative 3C). This proposed rule 

would not result in economic effects 

beyond those described above for 

baseline conditions, except in the case 

of potential indirect economic effects 

stemming from regulatory changes, 

namely the elimination of incidental 

take exemptions associated with the 

management zone upon termination of 

the translocation program. Federal 

agencies planning activities that may 

affect sea otters in southern California 

would be required to consult with the 

Service under the ESA, and if their 

activities would result in take of 

southern sea otters, to seek 

authorization for incidental take under 

both the ESA and the MMPA. The 

economic effects of this change are 

expected to be negligible in the context 

of already existing consultation and 

permitting requirements for other 

endangered or threatened species and 

marine mammals under the ESA and 

MMPA, particularly in light of the fact 

that few otherwise legal activities result 

in take of southern sea otters and the 

expectation that sea otters would not be 

present in most areas of southern 

California for decades. If otherwise 

allowable under applicable State law, 

non-Federal activities that would result 

in take of southern sea otters in 

California would require an incidental 

take permit from the Service under the 

ESA and authorization for incidental 

take of sea otters under the MMPA. 

Incidental take of southern sea otters in 

commercial fisheries cannot be 

authorized under the MMPA. Therefore, 

incidental take of southern sea otters in 

commercial fisheries throughout 

southern California would be 

prohibited, as it is currently prohibited 

in the remainder of the range of the 

species (north of Point Conception, 

California). 

Gill and trammel nets are known to be 

lethal to sea otters (Herrick and Hanan 

1988; Wendell et al. 1986; Cameron and 

Forney 2000; Carretta 2001; Forney et 

al. 2001). Therefore, the regulatory 

changes associated with this proposed 

rule may indirectly affect portions of the 

commercial halibut and white seabass 

fisheries utilizing gill and trammel net 

gear. The use of gill and trammel nets 

is already banned throughout much of 

California. With respect to southern 

California, the Marine Resources 

Protection Act of 1990 (California 

Constitution Article 10B) prohibits the 

use of gill and trammel nets in waters 

less than 70 fathoms or within 1 mile of 

the Channel Islands, whichever is less, 

and generally within 3 nautical miles 

offshore of the mainland coast from 

Point Arguello to the Mexican border. 

However, some areas within southern 

California waters are characterized by a 

relatively shallow shelf that extends 

beyond the area currently closed to gill 

net fishing. The primary fisheries using 

gill and trammel net gear in these areas 

target halibut and white seabass. Effects 

on these fisheries would occur if the 

State acted, in response to regulatory 

changes associated with this rule, to 

extend the existing gill and trammel net 

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53392 Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 

closure in southern California waters to 

depths that would be fully protective of 

sea otters. Furthermore, effects would 

occur only in areas where sea otters are 

not already fully protected, and likely 

only in areas that sea otters were 

expected to recolonize in the near 

future. (A closure to protect sea otters 

would not likely be imposed in areas 

where sea otters did not occur and were 

not expected to occur in the near 

future.) No effects would occur at San 

Nicolas Island because incidental take 

by commercial fisheries is currently 

prohibited within the translocation zone 

and would continue to be prohibited 

upon termination of the program. 

Estimated annualized costs for the 

commercial halibut fishery range from 

$0 (no additional closure) to $250,000 

(immediate closure of the affected area), 

representing a loss of 0 to 21 percent to 

the commercial halibut fishery in 

southern California. To calculate the 

present value for a 10-year time period, 

the social discount rates of 3 percent 

and 7 percent are applied per OMB 

guidance. The 10-year present value 

impact to the commercial halibut 

fishery would be approximately $2.2 

million discounted at 3 percent or $1.7 

million discounted at 7 percent. 

Estimated annualized costs for the white 

seabass fishery range from $0 (no 

additional closure) to $285,000 

(immediate closure of the affected area), 

representing a loss of 0 to 42 percent to 

the commercial white seabass fishery in 

southern California. The 10-year present 

value impact to the commercial white 

seabass fishery would be approximately 

$2.3 million discounted at 3 percent or 

$1.7 million discounted at 7 percent. 

Estimates of maximum effects represent 

an upper bound. Realized effects are 

likely to be lower because (1) the State 

may not impose an immediate closure, 

(2) participants in the fishery already 

using alternate gear would benefit from 

the increased availability of halibut and 

white seabass, and (3) participants in 

the fishery using gill and trammel nets 

may switch gear or choose to fish 

elsewhere. 

Economic Effects from Enforcement of 

the Management Zone (Alternative 1). 

As discussed, this proposed rule 

(Alternative 3C) would not result in any 

additional economic effects compared to 

the baseline, except the potential 

indirect effects stemming from 

regulatory changes summarized above. 

For comparison purposes, we present 

the economic effects that would occur if 

southern sea otters were excluded from 

the management zone through a 

resumption of zonal management under 

Alternative 1. These effects are further 

detailed in the revised draft SEIS. 

Implementation of sea otter containment 

in the management zone would affect 

the coastline southeast of Point 

Conception. Sea otters have been 

seasonally sighted in the Cojo 

Anchorage area since 1998. Since 2006, 

monthly surveys have counted an 

average of 40 otters with considerable 

variation over time (standard deviation 

of +/¥ 19) (K.D. Lafferty, USGS, pers. 

comm. 2011). The enforcement of 

containment in the management zone, if 

fully successful, would remove any sea 

otters from these areas and re-establish 

an otter-free management zone, thereby 

possibly increasing fishery harvests and 

also increasing the Service’s 

administrative costs. The cost to the 

Service of implementing a zonal 

management program to contain 

southern sea otter range expansion over 

10 years would total approximately $4.3 

million discounted at 7 percent or $5.6 

million discounted at 3 percent. 

Effects on fisheries could occur due to 

(1) increased shellfish populations 

resulting from the elimination of sea 

otter predation currently occurring 

within the management zone (i.e., the 

restoration of a pre-sea otter baseline), 

and (2) increased shellfish populations 

due to the future containment of sea 

otters. These estimates differ from the 

baseline not only in direction but also 

in magnitude because the baseline does 

not account for effects on commercial 

and recreational fisheries that would 

result from the removal of sea otters that 

are currently in the management zone. 

If sea otter containment in the 

management zone were to be enforced 

and fully successful, then the estimated 

annualized ex-vessel revenue benefit for 

the commercial sea urchin, lobster, crab, 

and sea cucumber fisheries would be 

$184,000 to $186,000, $420,000 to 

$530,000, $210,000 to $310,000, and 

$116,000 to $118,000, respectively, 

relative to the baseline. To calculate the 

present value for a 10-year time period, 

the social discount rates of 3 percent 

and 7 percent are applied per OMB 

guidance. Discounted at 3 percent, the 

10-year present value impact for the 

commercial sea urchin, lobster, crab, 

and sea cucumber fisheries would be 

$1.4 to $1.5 million, $3.2 to $4.1 

million, $1.6 to $2.4 million, and 

$893,000 to $903,000, respectively. 

Discounted at 7 percent, the 10-year 

present value impact for the commercial 

sea urchin, lobster, crab, and sea 

cucumber fisheries would be $1.1 

million, $2.3 to $2.9 million, $1.1 to 

$1.7 million, and $641,000 to $653,000, 

respectively. Minor positive effects on 

the sea urchin processing industry 

could result from an increase in sea 

urchin landings, depending on 

operating capacity and consumer 

demand. Recreational dive trips may 

increase along the coastline from Point 

Conception to Santa Barbara, but this 

increase is expected to result in 

negligible economic benefit because the 

mainland coastline is not an important 

area for recreational lobster diving. 

Effects on Small Businesses 

Potential impacts to small businesses, 

such as owners of halibut fishing vessels 

and white seabass fishing vessels, are 

summarized below. For more 

information pertaining to the economic 

impacts, please refer to the revised draft 

SEIS. 

The SBA defines a ‘‘small business’’ 

as one with an annual revenue or 

number of employees that meets or is 

below an established size standard. The 

SBA ‘‘small business’’ size standard is 

$4 million for ‘‘Finfish Fishing’’ and 

‘‘Shellfish Fishing’’ (North American 

Industry Code (NAICS) 114111 and 

114112) and fewer than 500 employees 

for ‘‘Fresh and Frozen Seafood 

Processing’’ (NAICS 311712). Most of 

the businesses in the finfish and 

shellfish fishing industries have fewer 

than 5 employees, and all of the 

businesses in the seafood processing 

industry have fewer than 500 

employees. Therefore, all businesses 

participating in these industries are 

considered ‘‘small businesses.’’ The 

numbers of commercial fishing vessels 

participating in selected southern 

California fisheries in the area expected 

to be affected within 10 years and in 

southern California as a whole are 

shown in Table 1. Although some 

establishments may own more than one 

vessel, we utilize the vessel estimate 

provided by California Department of 

Fish and Game to ensure a conservative 

approach to our analysis of the number 

and proportion of small entities affected 

(i.e., we may overestimate the number 

and proportion of small entities 

affected). 

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Impacts on Small Businesses Due to 

Proposed Rule (Alternative 3C) 

The proposed rule would not result in 

any effects on small entities, relative to 

the baseline, except potential indirect 

economic impacts stemming from 

regulatory changes by the State. Thus, 

the sea urchin, lobster, crab, and sea 

cucumber industries would not be 

impacted by the proposed rule. 

However, an additional gill and trammel 

net closure, if imposed by the State in 

response to the elimination of incidental 

take exemptions associated with the 

management zone, would affect portions 

of the halibut and white seabass 

fisheries utilizing gill and trammel net 

gear in Santa Barbara County and 

Ventura County within the next 10 

years. Industries in Los Angeles, 

Orange, San Diego, Santa Barbara, and 

Ventura Counties (hereafter referred to 

collectively as ‘‘southern California’’) 

are included in the analysis because of 

their proximity to the affected area. 

Estimates of the relative impact on 

vessels and the number of vessels 

affected may be overestimates because 

the data available to us do not allow us 

to account for vessels participating in 

multiple fisheries. Additionally, 

estimates of relative impact are averages 

(i.e., some vessels will be more affected 

than others in the same fishery). All 

estimates of decreases in ex-vessel 

revenues assume that fishers would not 

choose to fish elsewhere or with 

alternate gear and hence would not 

supplement their revenues or increase 

harvest pressure in other areas. Finally, 

ex-vessel values reflect gross rather than 

net revenues and thus overestimate 

impacts because they fail to account for 

the savings in boat fuel and labor that 

could be re-employed elsewhere if 

commercial fishing activity in affected 

areas were reduced. Ex-vessel revenue 

and vessel number data are from the 

California Department of Fish and 

Game. 

Table 2 shows the potential indirect 

effects if the State closes additional 

areas to gill and trammel net fishing in 

Santa Barbara and Ventura Counties. 

Potential indirect annualized effects on 

the commercial halibut fishery range 

from $0 (no additional closure) to 

$250,467 (immediate closure of the 

affected area), representing a loss to the 

commercial halibut fishery in southern 

California of 0 to 41 percent of landings 

made using gill and trammel net gear 

only (or 0 to 21 percent of all halibut 

landings) relative to the baseline. 

Potential indirect annualized effects on 

the commercial white seabass fishery 

range from $0 (no additional closure) to 

$284,638 (immediate closure of the 

affected area), representing a loss to the 

commercial white seabass fishery in 

southern California of 0 to 44 percent of 

landings made using gill and trammel 

net gear only (or 0 to 42 percent of all 

white seabass landings) relative to the 

baseline. 


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TABLE 2—ESTIMATED MAXIMUM ANNUAL IMPACT ON EX-VESSEL REVENUE FOR SELECTED FISHERIES FROM THE

PROPOSED RULE (2009$) 

Total annualized 

industry gross 

revenue loss 

(2012–2021) 

Annual gross 

revenue 

decrease per 

small business 

Halibut Fishery (with set and drift gill nets) ....................................................................................................... $250,467 .......... $13,182. 

Seabass Fishery (with set and drift gill nets) .................................................................................................... $284,638 .......... $15,813. 

Sea Urchin Fishery ............................................................................................................................................ No impact ......... No impact. 

Spiny Lobster Fishery ........................................................................................................................................ No impact ......... No impact. 

Crab Fishery ...................................................................................................................................................... No impact ......... No impact. 

Sea Cucumber Fishery ...................................................................................................................................... No impact ......... No impact. 

Impacts on Small Businesses Due to 

Alternative 1 

For comparison purposes, we analyze 

the effects on small entities that would 

occur if southern sea otters were 

excluded from the management zone 

through a resumption of zonal 

management (full implementation of the 

translocation program) as detailed in the 

revised draft SEIS under Alternative 1. 

These effects are also indirect and stem 

from estimated impacts of sea otter 

predation on species targeted by 

commercial shellfish fisheries. If zonal 

management were resumed as described 

under Alternative 1 in the revised draft 

SEIS, the following industries would be 

affected, relative to the baseline: (1) 

Shellfish Fishing (NAICS 114112), and 

(2) Seafood Manufacturing (NAICS 

3117). Industries that support 

recreational diving are not included 

here because economic impacts to those 

entities are expected to be negligible, as 

shown in the baseline section. Under 

baseline conditions, changes over the 

next 10 years are expected to occur 

along the coastlines of Santa Barbara 

County and Ventura County as a result 

of a naturally expanding sea otter 

population. Alternative 1 would prevent 

this expansion and would entail the 

removal of sea otters currently residing 

within the management zone. 

Enforcement of a management zone, if 

successful, would benefit commercial 

shellfish fisheries because competition 

with sea otters would be eliminated. 

Industries in southern California are 

included in the analysis because of their 

proximity to the affected area. Within 

the shellfish fishing industry, we 

analyze four fisheries in depth: The sea 

urchin fishery, lobster fishery, crab 

fishery, and sea cucumber fishery. 

These predation effects are expected to 

occur under the baseline and under 

implementation of the proposed rule, 

but would not occur if sea otters were 

excluded from all southern California 

waters except those surrounding San 

Nicolas Island, as would be required 

under Alternative 1. 

Impacts under Alternative 1 are 

summarized in Table 3. Potential 

indirect annualized effects on the 

commercial sea urchin fishery are 

estimated to be $184,054 to $186,140 

relative to the baseline, representing a 

gain to the commercial sea urchin 

fishery in southern California of 3 

percent of landings relative to the 

baseline. Potential indirect annualized 

effects on the commercial lobster fishery 

are estimated to be $419,812 to $528,611 

relative to the baseline, representing a 

gain to the commercial lobster fishery in 

southern California of 6 to 7 percent of 

landings relative to the baseline. 

Potential indirect annualized effects on 

the commercial crab fishery are 

estimated to be $207,601 to $311,647 

relative to the baseline, representing a 

gain to the commercial crab fishery in 

southern California of 15 to 16 percent 

of landings relative to the baseline. 

Potential indirect effects on the 

commercial sea cucumber fishery are 

estimated to be $116,157 to $118,338 

relative to the baseline, representing a 

gain to the commercial sea cucumber 

fishery in southern California of 15 

percent of landings relative to the 

baseline. Minor positive indirect effects 

on the sea urchin processing industry 

could result from an increase in sea 

urchin landings, depending on 

operating capacity and consumer 

demand. Thirty-two (32) seafood 

product preparation and packaging 

entities meet the SBA ‘‘small business’’ 

size standard in southern California. 

Maximum benefits would reflect the 

gain to the commercial sea urchin 

fishery in southern California of 3 

percent of landings relative to the 

baseline. 

TABLE 3—ESTIMATED ANNUAL EX-VESSEL REVENUE BENEFIT FOR SELECTED FISHERIES FROM ALTERNATIVE 1 (2009 $) 

Annualized industry 

gross revenue benefit 

(2012–2021) 

Gross revenue annual 

impact per small 

business 

Sea Urchin Fishery .......................................................................................................................... $184,054 to $186,140 $9,307 to $10,225. 

Spiny Lobster Fishery ...................................................................................................................... $419,812 to $528,611 $17,052 to $18,253. 

Crab Fishery .................................................................................................................................... $207,601 to $311,647 $5,373 to $6,106. 

Sea Cucumber Fishery .................................................................................................................... $116,157 to $118,338 $7,889 to $8,935. 

Halibut Fishery (with set and drift gill nets) ..................................................................................... No impact .................. No impact. 

Seabass Fishery (with set and drift gill nets) .................................................................................. No impact .................. No impact. 

Under Alternative 1, the regulatory 

environment for fishing would remain 

unchanged relative to the baseline. 

Because any potential effects on the 

portion of the halibut and seabass 

fisheries using gill and trammel net gear 

would stem from regulatory changes, 

there is no effect on these two fisheries. 

Under Alternative 1, impacts to the 

sea urchin processing industry would be 

a positive function of the change in sea 

urchin landings. Impacts to the sea 

urchin processing industry would be 

dependent upon whether individual 

companies are operating at capacity and 

whether they are capable of processing 

different seafood products. If companies 

are operating at capacity, then there may 

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Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 53395 

be room for growth in the industry for 

an additional company. If companies 

are not operating at capacity, then 

revenues may increase in relation to any 

increase in raw product. Companies 

receiving sea urchins harvested along 

the affected coastline would be 

disproportionately affected. Because of 

the expected 3 percent increase in sea 

urchin inputs from the Southern 

California Bight, Alternative 1 is not 

expected to have a significant impact on 

the seafood processing industry. 

Small Business Regulatory Enforcement 

Fairness Act 

Amendment of Title 50 of the Code of 

Federal Regulations to remove 

§ 17.84(d) is not a major rule under 5 

U.S.C. 804(2). Our draft economic 

analysis concludes that removal of 50 

CFR 17.84(d): 

(a) Would not have an annual effect 

on the economy of $100 million or 

more. The maximum annualized exvessel revenue loss to the halibut and 

white seabass industries would be 

$535,105 (10-year present value of $4.5 

million discounted at 7 percent and $3.4 

million discounted at 3 percent). 

(b) Would not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

(c) Would not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

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

seq.), the Service makes the following 

findings: 

(a) This proposed rule would not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, tribal governments, or the 

private sector and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’ 

with two exceptions. It excludes ‘‘a 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’ 

The proposed rule to terminate the 

southern sea otter translocation program 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. 

(b) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it would not 

produce a mandate of $100 million or 

greater in any year; that is, it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

This determination is based on the 

economic analysis prepared as part of 

the revised draft SEIS on the sea otter 

translocation program. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 ‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights,’’ we 

have analyzed the potential takings 

implications of terminating the southern 

sea otter translocation program. This 

assessment concludes that the proposed 

amendment to Title 50 of the Code of 

Federal Regulations to remove 

§ 17.84(d) does not pose significant 

takings implications. While small 

segments of the fishing industry may be 

indirectly affected by changes resulting 

from termination of the southern sea 

otter translocation program, fishery 

resources are public resources in which 

private entities have no Constitutionally 

protected property interest. 

Federalism Assessment 

In accordance with Executive Order 

13132, the proposed amendment to Title 

50 of the Code of Federal Regulations to 

remove § 17.84(d) does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

The proposed amendment would not 

have substantial direct effects on the 

State, in the relationship between the 

Federal Government and the State, or on 

the distribution of power and 

responsibilities among the various 

levels of government. In keeping with 

Department of the Interior policy, we 

requested information from, and 

coordinated with, the State of California 

to the extent possible on the 

development of this proposed rule. 

Civil Justice Reform 

In accordance with Executive Order 

12988, the proposed amendment to Title 

50 of the Code of Federal Regulations to 

remove § 17.84(d) does not unduly 

burden the judicial system and meets 

the requirements of sections 3(a) and 

3(b)(2) of the Order. 

Paperwork Reduction Act 

The proposed amendment to Title 50 

of the Code of Federal Regulations to 

remove § 17.84(d) does not contain any 

information collection requirements for 

which Office of Management and 

Budget approval under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq., 

is required. The proposed amendment 

would not impose new record keeping 

or reporting requirements on State or 

local governments, individuals, 

businesses, or organizations. 

National Environmental Policy Act 

We have considered this action with 

respect to the National Environmental 

Policy Act of 1969 (42 U.S.C. 4321 et 

seq.) and have determined that this 

action requires the preparation of an 

environmental impact statement. A 

revised draft SEIS is now available for 

review. You may obtain a copy of this 

document at http:// 

www.regulations.gov, at http:// 

www.fws.gov/ventura/, or by contacting 

the Ventura Fish and Wildlife Office 

(see ADDRESSES section). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

Government-to-Government Relations 

with Native American Tribal 

Governments (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally recognized Tribes on a 

Government-to-Government basis. We 

have evaluated possible effects on 

federally recognized Indian Tribes and 

have determined that there are no 

effects. 

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53396 Federal Register / Vol. 76, No. 166 / Friday, August 26, 2011 / Proposed Rules 

Energy Supply, Distribution, or Use 

(Executive Order 13211) 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not expected to significantly affect 

energy supplies, distribution, and use. 

Although adoption of this proposed rule 

would result in additional consultation 

requirements for energy activities that 

may affect southern sea otters, in the 

context of the current regulatory 

environment, it would not significantly 

affect energy supplies, distribution, and 

use. Therefore, this action is not a 

significant energy action and no 

Statement of Energy Effects is required. 

References Cited 

A complete list of all references cited 

in this proposed rule is available on 

http://www.regulations.gov or upon 

request from the Ventura Fish and 

Wildlife Office (see ADDRESSES section). 

Author 

The primary author of this proposed 

rule is Lilian Carswell of the Ventura 

Fish and Wildlife Office (see ADDRESSES

section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, for the reasons set forth 

in the preamble, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 is 

revised to read as follows: 

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

1531–1544; 16 U.S.C. 4201–4245; unless 

otherwise noted. 

§ 17.84 [Amended] 

2. Amend § 17.84 by removing and 

reserving paragraph (d). 

Dated: July 22, 2011. 

Rachel Jacobson, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 2011–21556 Filed 8–25–11; 8:45 am] 

BILLING CODE 4310–55–P 

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