[Federal Register Volume 74, Number 109 (Tuesday, June 9, 2009)]
[Proposed Rules]
[Pages 27271-27275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13314]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2008-0105; 92210-1117-0000-B4]
RIN 1018-AV92


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Southwest Alaska Distinct Population Segment 
of the Northern Sea Otter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; extension of comment period, notice of 
availability of draft economic analysis, and amended required 
determinations.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the extension 
of the public comment period on the proposed designation of critical 
habitat for the southwest Alaska Distinct Population Segment (DPS) of 
the northern sea otter (Enhydra lutris kenyoni) under the Endangered 
Species Act of 1973, as amended. We also announce the availability of a 
draft economic analysis (DEA) and an amended required determinations 
section of the proposal. We are extending the comment period for an 
additional 30 days from the date of this notice to allow all interested 
parties an opportunity to comment simultaneously on the revised 
proposed rule, the associated DEA, and the amended required 
determinations section. If you submitted comments previously, you do 
not need to resubmit them because we have already incorporated them 
into the public record and will fully consider them in preparation of 
the final rule.

DATES: We will consider comments received on or before July 9, 2009.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-ES-2008-0105; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    <bullet> Public Hearing: We will hold one public hearing on June 
18, 2009, at the Z.J. Loussac Library in Anchorage, Alaska. In addition 
to having the opportunity to provide oral comments in person, telephone 
access will be provided for this hearing. Contact the Marine Mammals 
Management Office (see FOR FURTHER INFORMATION CONTACT) for more 
information about this public hearing.
    <bullet> Public Comment Hotline: We will also establish a toll-free 
public comment hotline at 877-577-6930. Callers will have an 
opportunity to record their comments at any time during the public 
comment period.
    We will post all comments on http://www.regulations.gov (see the 
``Public Comments'' section below for more information).

FOR FURTHER INFORMATION CONTACT: Douglas M. Burn, Wildlife Biologist, 
U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 
East Tudor Road, Anchorage, Alaska 99503, by telephone (907-786-3807), 
or by facsimile (907-786-3816). Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written and oral comments and information during 
this extended comment period on the proposed rule to designate critical 
habitat for the southwest Alaska DPS of the northern sea otter (Enhydra 
lutris kenyoni) that was published in the Federal Register on December 
16, 2008 (73 FR 76454), the draft economic analysis of the proposed 
designation, and the amended required determinations provided in this 
document. We will consider information and recommendations from all 
interested parties. We are particularly interested in comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
critical habitat under section 4 of the Endangered Species Act of 1973, 
as amended (Act) (16 U.S.C. 1531 et seq.), including whether there are 
threats to the species from human activity, the degree of which can be 
expected to increase due to the designation, and whether the benefit of 
designation would outweigh any threats to the species due to 
designation, such that the designation of critical habitat is prudent.
    (2) Specific information on:
    <bullet> The distribution of the northern sea otter in southwest 
Alaska;
    <bullet> The amount and distribution of habitat of the Southwest 
Alaska DPS of the northern sea otter; and
    <bullet> What areas occupied at the time of listing that contain 
features essential for the conservation of the species we should 
include in the designation and why, and

[[Page 27272]]

    <bullet> What areas not occupied at the time of listing are 
essential to the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any foreseeable economic, national security, or other relevant 
impacts that may result from the proposed designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas from the proposed designation that exhibit 
these impacts.
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is complete and accurate.
    (7) The likelihood of adverse social reactions to the designation 
of critical habitat, as discussed in the DEA, and how the consequences 
of such reactions, if likely to occur, would relate to the conservation 
and regulatory benefits of the proposed critical habitat designation.
    (8) Special management considerations or protections that the 
proposed critical habitat may require.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in the ADDRESSES section. We 
will not consider comments sent by e-mail or fax or to an address not 
listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information that you 
provide, such as your address, phone number and e-mail address--will be 
posted on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT). You may obtain copies of the proposed rule and 
the DEA on the Internet at http://www.regulations.gov at Docket Number 
FWS-R7-ES-2008-0105, or by mail from the Marine Mammals Management 
Office (see FOR FURTHER INFORMATION CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat. On December 19, 2006, the Center 
for Biological Diversity filed suit against the Service for failure to 
designate critical habitat for the southwest Alaska DPS of the northern 
sea otter within the statutory timeframe (Center for Biological 
Diversity et al. v. Kempthorne et al., No. 1:06-CV-02151-RMC (D.D.C. 
2007)). On April 11, 2007, the U.S. District Court for the District of 
Columbia entered an order approving a stipulated settlement of the 
parties requiring the Service on or before November 30, 2008, to submit 
to the Federal Register a determination as to whether designation of 
critical habitat for the southwest Alaska DPS of the northern sea otter 
is prudent, and if so, to publish a proposed rule. The order also 
requires the Service on or before October 1, 2009, to submit to the 
Federal Register a final rule designating critical habitat.
    On December 16, 2008, we published a proposed rule to designate 
critical habitat for the southwest Alaska DPS of the northern sea otter 
(73 FR 76454). We proposed to designate approximately 15,225 square 
kilometers (5,879 square miles) in 5 units located in southwest Alaska 
as critical habitat. The boundaries of these units correspond to 
management units in a draft recovery plan that is currently under 
development. The proposed rule had an initial 60-day comment period 
that closed on February 17, 2009. Because the initial comment period 
partially overlapped the holiday season, we reopened the public comment 
period on May 8, 2009. This second comment period was scheduled to 
close on July 1, 2009. This notice extends the second comment period to 
July 9, 2009. During the public comment period associated with this 
Notice, we will hold one public hearing in Anchorage, Alaska, that will 
include telephone access. In addition, we will establish a toll-free 
``public comment hotline'' that will operate throughout the entire 30-
day public comment period. Use of this hotline will provide greater 
access to concerned citizens who wish to submit verbal comments, but 
are unable to attend the public hearing in person or by telephone.
    For more information on the southwest Alaska DPS of the northern 
sea otter or its habitat, refer to the final listing rule published in 
the Federal Register on August 9, 2005 (70 FR 46366), which is 
available on the Internet at http://ecos.fws.gov/docs/federal_register/fr4423.pdf or from the Marine Mammals Management Office (see 
FOR FURTHER INFORMATION CONTACT).
    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
that affect critical habitat must consult with us on the effects of 
their proposed actions, under section 7(a)(2) of the Act.

Draft Economic Analysis

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific and commercial data 
available, after taking into consideration the economic impact, impact 
on national security, or any other relevant impact of specifying any 
particular area as critical habitat.
    We have prepared a Draft Economic Analysis (DEA), which identifies 
and analyzes the potential economic impacts associated with the 
proposed critical habitat designation for the southwest Alaska DPS of 
the northern sea otter that we published in the Federal Register on 
December 16, 2008. The DEA quantifies the potential economic impacts of 
all conservation efforts for the southwest Alaska DPS of the northern 
sea otter; some of these costs will likely be incurred regardless of 
whether we designate critical habitat. The economic impact of the 
proposed critical habitat designation is analyzed by comparing 
scenarios both ``with critical habitat'' and ``without critical 
habitat.'' The ``without critical habitat'' scenario represents the 
baseline for the analysis, considering protections already in place for 
the species (e.g., under the Federal listing and other Federal, State, 
and local regulations). The baseline, therefore, represents the costs 
incurred regardless of whether critical habitat is

[[Page 27273]]

designated. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical habitat above and beyond the baseline costs; these are the 
costs we may consider in the final designation of critical habitat. The 
analysis looks retrospectively at baseline impacts incurred since the 
species was listed, and forecasts both baseline and incremental impacts 
likely to occur if we finalize the proposed critical habitat.
    The DEA provides estimated costs of the reasonably foreseeable 
potential economic impacts of the proposed critical habitat designation 
for the southwest Alaska DPS of the northern sea otter over the next 20 
years, which was determined to be the appropriate period for analysis 
because limited planning information was available for most activities 
to forecast activity levels for projects beyond a 20-year timeframe. It 
identifies potential incremental costs as a result of the proposed 
critical habitat designation, which are those costs attributed to 
critical habitat over and above those baseline costs attributed to 
listing. The DEA quantifies economic impacts of conservation efforts 
for the southwest Alaska DPS of the northern sea otter associated with 
the following categories of activity: (1) Oil spill planning and 
response; (2) oil and gas exploration and development; (3) marine and 
coastal construction activities; and (4) water quality management.
    Baseline economic impacts are those impacts that result from 
listing and other conservation efforts for the southwest Alaska DPS of 
the northern sea otter not attributable to designation of critical 
habitat and thus are expected to occur regardless of whether we 
designate critical habitat. Total future (2009-2028) baseline impacts 
are estimated to range from $37.7 million applying a 7 percent discount 
rate, to $49.8 million applying a 3 percent discount rate. Construction 
and water quality management activities are expected to bear the 
majority of forecast baseline impacts. The majority of baseline 
economic impacts are estimated to occur in critical habitat Unit 5 (56 
percent) and Unit 2 (28 percent).
    Overall, the future (2009-2028) incremental impacts (those 
estimated to occur because of critical habitat designation) designating 
critical habitat are relatively small, ranging from $660,000 applying a 
7 percent discount rate to $885,000 applying a 3 percent discount rate, 
amounting to an increase of 1.8 percent over baseline impact levels. 
The majority of incremental impacts are estimated to occur primarily in 
critical habitat Unit 5 (40 percent), followed by Unit 3 (30 percent). 
By comparison, estimated baseline and incremental impacts are 
relatively low in critical habitat Units 1 and 4. Oil spill planning 
and response activities are expected to bear a majority of the forecast 
incremental cost impacts associated with critical habitat designation. 
Administrative costs of consultation represent roughly 93 percent of 
the forecast incremental costs of otter critical habitat designation.
    As stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusions will not result in the extinction of this species.

Areas Considered for Exclusion

    Based on comments submitted during the initial public comment 
period from December 16, 2008, to February 17, 2009, we are evaluating 
whether the benefits of the exclusion of some areas from the proposed 
critical habitat outweigh the benefits to the species from their 
inclusion in the designation. We summarize the requests for exclusion 
below. The complete comment submissions can be reviewed at http://www.regulations.gov, Docket ID: FWS-R7-ES-2008-0105. Exclusions, if 
any, will be made to the final designation.
    (1) In their comment letter dated February 10, 2009, the Department 
of the Navy (Document ID: FWS-R7-ES-2008-0105-0008.1) requested that we 
exclude critical habitat designation for the areas contiguous to each 
of the islands in Unit 5 under section 4(b)(2) of the Act due to 
national security importance.
    (2) In their comment letter dated February 17, 2009, the State of 
Alaska (Document ID: FWS-R7-ES-2008-0105-0018.1) noted that ``some 
areas proposed for critical habitat designations will not meet part (b) 
of this definition (of critical habitat) because they are already 
protected and therefore do not require additional special management 
considerations or protection.'' The State of Alaska also requested 
exclusion of several areas under Section 4(b)(2) of the Act for 
economic reasons. These areas are:
    <bullet> Port Moller-Herendeen Bay (Subunit 4C);
    <bullet> Areas in Cook Inlet/Eastern Alaska Peninsula/Kodiak Island 
identified through the pending economic analysis as economically 
important;
    <bullet> Tidelands adjacent to communities up to 1-mile radius;
    <bullet> Barefoot Beach Log Transfer Facility: within Kazakof Bay 
on Afognak Island;
    <bullet> Lookout Cove Log Transfer Facility: within Kazakof Bay on 
Afognak Island; and
    <bullet> Chignik Bay.
    (3) In their letter of February 17, 2009, the Resource Development 
Council (Document ID: FWS-R7-ES-2008-0105-0020.1) requested that we 
exclude the following areas under Section 4(b)(2) for economic reasons:
    <bullet> Areas surrounding activities relating to existing fishing 
and transportation on islands, including but not limited to: Attu, 
Atka, Adak, Unalaska, Akutan, Kodiak and Afognak.
    <bullet> Areas immediately surrounding established villages and 
existing transportation access for the villages in the area.
    <bullet> Areas where State of Alaska oil and gas leases have been 
issued, including but not limited to, Herendeen Bay and Port Moller.
    <bullet> Areas in western Cook Inlet, into the Lake Iliamna area 
from Williamsport, which will be used for fuel and supplies for 
residents as well as for potential large-scale mining projects.
    <bullet> Areas used for access by logging transportation around the 
Kodiak archipelago, including but not limited, to Kazikof Bay on 
Afognak Island.
    (4) In their submission on February 17, 2009, the Alaska Sea Otter 
and Steller Sea Lion Commission (Document ID: FWS-R7-ES-2008-0105-0021) 
noted the high cost of living in rural communities in southwest Alaska, 
and requested that we exclude areas ``in immediate proximity to these 
communities'' under section 4(b)(2) of the Act for economic reasons.
    Aside from these areas now being considered for possible exclusion 
from the final designation of critical habitat, no other areas are 
being considered for exclusion, at this time, and the proposed 
designation of critical habitat remains unchanged as presented.

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Required Determinations--Amended

    In our December 16, 2008, proposed rule, we indicated that we would 
defer our determination of compliance with several statutes and 
Executive Orders until the information concerning potential economic 
impacts of the designation and potential effects on landowners and 
stakeholders became available in the DEA. We have used the DEA data to 
make these determinations. In this document, we affirm the information 
in our proposed rule concerning Executive Order (E.O.) 12866 
(Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 
(Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates 
Reform Act, the Paperwork Reduction Act, the National Environmental 
Policy Act, and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on the DEA data, we revise 
our required determination concerning the Regulatory Flexibility Act 
and E.O. 13211 (Energy, Supply, Distribution, and Use).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions), 
as described below. However, no regulatory flexibility analysis is 
required if the head of an agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
Based on our DEA of the proposed designation, we provide our analysis 
for determining whether the proposed rule would result in a significant 
economic impact on a substantial number of small entities. Based on 
comments we receive, we may revise this determination as part of our 
final rulemaking.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors with less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation, as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the proposed designation of critical habitat for 
the southwest Alaska DPS of the northern sea otter would affect a 
substantial number of small entities, we considered the number of small 
entities affected within particular types of economic activities, such 
as oil spill planning and response, oil and gas exploration and 
development, marine and coastal construction activities, and water 
quality management. Specifically, we identified 12 small entities that 
may be potentially affected by these activities (3 are in the deep sea 
freight transportation business, 2 are in the general construction 
business, 3 are government jurisdictions, and 4 are in the seafood 
processing business). In estimating the numbers of small entities 
potentially affected, we considered whether the activities of these 
entities may entail any Federal involvement. Critical habitat 
designation will not affect activities that do not have any Federal 
involvement; designation of critical habitat affects activities 
conducted, funded, or authorized by Federal agencies.
    If we finalize this proposed critical habitat designation, Federal 
agencies must consult with us under section 7 of the Act if their 
activities may affect designated critical habitat. Consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process.
    In order to determine whether it is appropriate for our agency to 
certify that this rule would not have a significant economic impact on 
a substantial number of small entities, we considered in the DEA the 
potential impacts resulting from implementation of conservation actions 
related to the proposed designation of critical habitat for the 
southwest Alaska DPS of the northern sea otter on each of the 12 small 
entities discussed above. As described in Appendix A of the DEA, the 
potential impacts are likely to be associated with construction, oil 
spill response activities, and water quality issues. The average 
annualized incremental impacts to small entities ranges from $2,407 for 
seafood processors to $4,367 for deep sea freight transporters, 
applying a 7% discount rate. We therefore conclude that costs to small 
entities will not be significant. Please refer to the DEA for a more 
detailed discussion of potential economic impacts.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. We have identified 12 small entities that may be 
impacted by the proposed critical habitat designation. For the above 
reasons and based on currently available information, we certify that 
if promulgated, the proposed designation would not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211--Energy Supply, Distribution, and Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
The DEA concludes that the future of oil and gas exploration and 
development activities within the proposed critical habitat area are 
uncertain. Despite a significant body of research regarding the 
potential for oil and gas development activities in Alaska, no forecast 
exists for the proposed critical habitat area.
    The only potential economic impacts quantified in the DEA that may 
be relevant to E.O. 13211 are oil spill response activities associated 
with energy use. As described in the DEA, an estimated 152 oil spills 
requiring consultation are anticipated in southwest Alaska over the 
next 20 years. Because future consultations will consider both jeopardy 
and adverse modification of critical habitat, the incremental costs of 
these consultations is estimated to range from $148,000, applying a 7% 
discount rate, to $467,000 applying a 3% discount rate.

[[Page 27275]]

    In our proposed rule we stated that we did not expect the proposed 
rule to significantly affect energy supplies, distribution (including 
shipping channels), or use because most oil and gas development 
activities would not overlap with the habitats used by northern sea 
otters, and we would not expect the activities to cause significant 
alteration of the PCEs. Any proposed development project likely would 
have to undergo section 7 consultation to ensure that the actions would 
not destroy or adversely modify designated critical habitat. 
Consultations may entail modifications to the project to minimize the 
potential adverse effects to northern sea otter critical habitat. A 
spill-response plan would have to be developed to minimize the chance 
that a spill would have negative effects on sea otters or critical 
habitat. However, we conduct thousands of consultations every year 
throughout the United States, and in almost all cases, we are able to 
accommodate both project and species' needs. We expect that to be the 
case here. We conclude that this action is not a significant energy 
action, and no Statement of Energy Effects is required.

Authors

    The primary authors of this notice are the staff members of the 
Marine Mammals Management Office, Alaska Region, U.S. Fish and Wildlife 
Service.

Authority

    The authority for this action is the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).

    Dated: June 1, 2009.
Jane Lyder,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-13314 Filed 6-8-09; 8:45 am]
BILLING CODE 4310-55-P