Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 27271 

of extinction throughout all or a 

significant portion of its range’’ (50 CFR 

424.02(e)). Similarly, our regulations 

define a ‘‘threatened species’’ as ‘‘any 

species that is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range (50 CFR 

424.02(m)). Our review of the available 

information indicates that the species 

appears to be maintaining its presence 

in known locations throughout its range 

from 1966 to the present. Despite 

several potential threat factors, the 

petition and the information in our files 

do not present substantial information 

indicating that any factor, or 

combination of factors, suggests that the 

petitioned action, listing as threatened 

or endangered with critical habitat, may 

be warranted for Oenothera acutissima. 

Although we will not commence a 

status review in response to this 

petition, we will continue to monitor 

Oenothera acutissima’s population 

status and trends, potential threats, and 

ongoing management actions that might 

be important with regard to the 

conservation of the species across its 

range. We encourage interested parties 

to continue to gather data that will assist 

with the conservation of the species. If 

you wish to provide information 

regarding O. acutissima, you may 

submit your information or materials to 

the Field Supervisor, Western Colorado 

Field Office, U.S. Fish and Wildlife 

Service (see ADDRESSES section). 

References Cited 

A complete list of all references cited 

in this document is available upon 

request from the Western Colorado Field 

Office (see ADDRESSES section). 

Author 

The primary authors of this document 

are the staff members of the U.S. Fish 

and Wildlife Service, Western Colorado 

Field Office (see ADDRESSES section). 

Authority 

The authority for this action is section 

4 of the Endangered Species Act of 

1973, as amended (16 U.S.C. 1531 et 

seq.). 

Dated: May 29, 2009. 

Stephen Guertin, 

Acting Deputy Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–13313 Filed 6–8–09; 8:45 am] 

BILLING CODE 4310–55–P 

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. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce the 

extension of the public comment period 

on the proposed designation of critical 

habitat for the southwest Alaska Distinct 

Population Segment (DPS) of the 

northern sea otter (Enhydra lutris 

kenyoni) under the Endangered Species 

Act of 1973, as amended. We also 

announce the availability of a draft 

economic analysis (DEA) and an 

amended required determinations 

section of the proposal. We are 

extending the comment period for an 

additional 30 days from the date of this 

notice to allow all interested parties an 

opportunity to comment simultaneously 

on the revised proposed rule, the 

associated DEA, and the amended 

required determinations section. If you 

submitted comments previously, you do 

not need to resubmit them because we 

have already incorporated them into the 

public record and will fully consider 

them in preparation of the final rule. 

DATES: We will consider comments 

received on or before July 9, 2009. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R7– 

ES–2008–0105; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

• Public Hearing: We will hold one 

public hearing on June 18, 2009, at the 

Z.J. Loussac Library in Anchorage, 

Alaska. In addition to having the 

opportunity to provide oral comments 

in person, telephone access will be 

provided for this hearing. Contact the 

Marine Mammals Management Office 

(see FOR FURTHER INFORMATION CONTACT) 

for more information about this public 

hearing. 

• Public Comment Hotline: We will 

also establish a toll-free public comment 

hotline at 877–577–6930. Callers will 

have an opportunity to record their 

comments at any time during the public 

comment period. 

We will post all comments on 

http://www.regulations.gov (see the 

‘‘Public Comments’’ section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Douglas M. Burn, Wildlife Biologist, 

U.S. Fish and Wildlife Service, Marine 

Mammals Management Office, 1011 East 

Tudor Road, Anchorage, Alaska 99503, 

by telephone (907–786–3807), or by 

facsimile (907–786–3816). Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written and oral 

comments and information during this 

extended comment period on the 

proposed rule to designate critical 

habitat for the southwest Alaska DPS of 

the northern sea otter (Enhydra lutris 

kenyoni) that was published in the 

Federal Register on December 16, 2008 

(73 FR 76454), the draft economic 

analysis of the proposed designation, 

and the amended required 

determinations provided in this 

document. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as critical 

habitat under section 4 of the 

Endangered Species Act of 1973, as 

amended (Act) (16 U.S.C. 1531 et seq.), 

including whether there are threats to 

the species from human activity, the 

degree of which can be expected to 

increase due to the designation, and 

whether the benefit of designation 

would outweigh any threats to the 

species due to designation, such that the 

designation of critical habitat is 

prudent. 

(2) Specific information on: 

• The distribution of the northern sea 

otter in southwest Alaska; 

• The amount and distribution of 

habitat of the Southwest Alaska DPS of 

the northern sea otter; and 

• What areas occupied at the time of 

listing that contain features essential for 

the conservation of the species we 

should include in the designation and 

why, and 

27272 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 

• 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 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 27273 

designated. The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts are those 

not expected to occur absent the 

designation of critical habitat for the 

species. In other words, the incremental 

costs are those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we may consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur if we finalize the proposed 

critical habitat. 

The DEA provides estimated costs of 

the reasonably foreseeable potential 

economic impacts of the proposed 

critical habitat designation for the 

southwest Alaska DPS of the northern 

sea otter over the next 20 years, which 

was determined to be the appropriate 

period for analysis because limited 

planning information was available for 

most activities to forecast activity levels 

for projects beyond a 20-year timeframe. 

It identifies potential incremental costs 

as a result of the proposed critical 

habitat designation, which are those 

costs attributed to critical habitat over 

and above those baseline costs 

attributed to listing. The DEA quantifies 

economic impacts of conservation 

efforts for the southwest Alaska DPS of 

the northern sea otter associated with 

the following categories of activity: (1) 

Oil spill planning and response; (2) oil 

and gas exploration and development; 

(3) marine and coastal construction 

activities; and (4) water quality 

management. 

Baseline economic impacts are those 

impacts that result from listing and 

other conservation efforts for the 

southwest Alaska DPS of the northern 

sea otter not attributable to designation 

of critical habitat and thus are expected 

to occur regardless of whether we 

designate critical habitat. Total future 

(2009–2028) baseline impacts are 

estimated to range from $37.7 million 

applying a 7 percent discount rate, to 

$49.8 million applying a 3 percent 

discount rate. Construction and water 

quality management activities are 

expected to bear the majority of forecast 

baseline impacts. The majority of 

baseline economic impacts are 

estimated to occur in critical habitat 

Unit 5 (56 percent) and Unit 2 (28 

percent). 

Overall, the future (2009–2028) 

incremental impacts (those estimated to 

occur because of critical habitat 

designation) designating critical habitat 

are relatively small, ranging from 

$660,000 applying a 7 percent discount 

rate to $885,000 applying a 3 percent 

discount rate, amounting to an increase 

of 1.8 percent over baseline impact 

levels. The majority of incremental 

impacts are estimated to occur primarily 

in critical habitat Unit 5 (40 percent), 

followed by Unit 3 (30 percent). By 

comparison, estimated baseline and 

incremental impacts are relatively low 

in critical habitat Units 1 and 4. Oil spill 

planning and response activities are 

expected to bear a majority of the 

forecast incremental cost impacts 

associated with critical habitat 

designation. Administrative costs of 

consultation represent roughly 93 

percent of the forecast incremental costs 

of otter critical habitat designation. 

As stated earlier, we are soliciting 

data and comments from the public on 

the DEA, as well as all aspects of the 

proposed rule and our amended 

required determinations. We may revise 

the proposed rule or supporting 

documents to incorporate or address 

information we receive during the 

public comment period. In particular, 

we may exclude an area from critical 

habitat if we determine that the benefits 

of excluding the area outweigh the 

benefits of including the area, provided 

the exclusions will not result in the 

extinction of this species. 

Areas Considered for Exclusion 

Based on comments submitted during 

the initial public comment period from 

December 16, 2008, to February 17, 

2009, we are evaluating whether the 

benefits of the exclusion of some areas 

from the proposed critical habitat 

outweigh the benefits to the species 

from their inclusion in the designation. 

We summarize the requests for 

exclusion below. The complete 

comment submissions can be reviewed 

at http://www.regulations.gov, Docket 

ID: FWS–R7–ES–2008–0105. 

Exclusions, if any, will be made to the 

final designation. 

(1) In their comment letter dated 

February 10, 2009, the Department of 

the Navy (Document ID: FWS–R7–ES– 

2008–0105–0008.1) requested that we 

exclude critical habitat designation for 

the areas contiguous to each of the 

islands in Unit 5 under section 4(b)(2) 

of the Act due to national security 

importance. 

(2) In their comment letter dated 

February 17, 2009, the State of Alaska 

(Document ID: FWS–R7–ES–2008– 

0105–0018.1) noted that ‘‘some areas 

proposed for critical habitat 

designations will not meet part (b) of 

this definition (of critical habitat) 

because they are already protected and 

therefore do not require additional 

special management considerations or 

protection.’’ The State of Alaska also 

requested exclusion of several areas 

under Section 4(b)(2) of the Act for 

economic reasons. These areas are: 

• Port Moller-Herendeen Bay 

(Subunit 4C); 

• Areas in Cook Inlet/Eastern Alaska 

Peninsula/Kodiak Island identified 

through the pending economic analysis 

as economically important; 

• Tidelands adjacent to communities 

up to 1-mile radius; 

• Barefoot Beach Log Transfer 

Facility: within Kazakof Bay on Afognak 

Island; 

• Lookout Cove Log Transfer Facility: 

within Kazakof Bay on Afognak Island; 

and 

• Chignik Bay. 

(3) In their letter of February 17, 2009, 

the Resource Development Council 

(Document ID: FWS–R7–ES–2008– 

0105–0020.1) requested that we exclude 

the following areas under Section 

4(b)(2) for economic reasons: 

• Areas surrounding activities 

relating to existing fishing and 

transportation on islands, including but 

not limited to: Attu, Atka, Adak, 

Unalaska, Akutan, Kodiak and Afognak. 

• Areas immediately surrounding 

established villages and existing 

transportation access for the villages in 

the area. 

• Areas where State of Alaska oil and 

gas leases have been issued, including 

but not limited to, Herendeen Bay and 

Port Moller. 

• Areas in western Cook Inlet, into 

the Lake Iliamna area from 

Williamsport, which will be used for 

fuel and supplies for residents as well 

as for potential large-scale mining 

projects. 

• Areas used for access by logging 

transportation around the Kodiak 

archipelago, including but not limited, 

to Kazikof Bay on Afognak Island. 

(4) In their submission on February 

17, 2009, the Alaska Sea Otter and 

Steller Sea Lion Commission (Document 

ID: FWS–R7–ES–2008–0105–0021) 

noted the high cost of living in rural 

communities in southwest Alaska, and 

requested that we exclude areas ‘‘in 

immediate proximity to these 

communities’’ under section 4(b)(2) of 

the Act for economic reasons. 

Aside from these areas now being 

considered for possible exclusion from 

the final designation of critical habitat, 

no other areas are being considered for 

exclusion, at this time, and the 

proposed designation of critical habitat 

remains unchanged as presented. 

27274 Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 

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-toGovernment 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. 

Federal Register / Vol. 74, No. 109 / Tuesday, June 9, 2009 / Proposed Rules 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 spillresponse 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