Thursday, October 8, 2009

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter; Final Rule

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DEPARTMENT OF THE INTERIOR northern sea otter, refer to the final published in the Federal Register on listing rule published in the Federal August 9, 2005 (70 FR 46366). Fish and Wildlife Service Register on August 9, 2005 (70 FR Summary of Comments and 46366), the proposed rule to designate Recommendations 50 CFR Part 17 critical habitat published in the Federal Register on December 16, 2008 (73 FR We requested written comments from [FWS–R7–ES–2008–0105; 92210–1117– the public during the public comment 0000–FY08–B4] 76454), and the June 9, 2009 (74 FR 27271), notice of availability of the draft period on the proposed rule to designate RIN 1018–AV92 economic analysis (DEA). More detailed critical habitat for the southwest Alaska information on northern sea otter DPS of the northern sea otter. During the Endangered and Threatened Wildlife biology and ecology that is directly public comment period, we also and Plants; Designation of Critical relevant to designation of critical habitat contacted appropriate Federal, State, Habitat for the Southwest Alaska is discussed under the Primary and local agencies; Alaska Native Distinct Population Segment of the Constituent Elements section below. organizations; and other interested Northern Sea Otter parties and invited them to comment on Previous Federal Actions AGENCY: Fish and Wildlife Service, the proposed rule to designate critical Interior. We listed the southwest Alaska DPS habitat for this DPS and the associated of the northern sea otter as threatened draft economic analysis (DEA). ACTION: Final rule. on August 9, 2005 (70 FR 46366). We The comment period on the proposed SUMMARY: We, the U.S. Fish and considered critical habitat to be critical habitat rule originally opened Wildlife Service (Service), are prudent, but not determinable, and we December 16, 2008 (73 FR 76454), and designating critical habitat for the therefore did not designate critical closed February 17, 2009. During that southwest Alaska Distinct Population habitat for this DPS at the time of time, we received one request for a Segment (DPS) of the northern sea otter listing. When we make a not public hearing. On May 8, 2009, we (Enhydra lutris kenyoni) under the determinable finding, we must, within 1 announced a public hearing, and Endangered Species Act of 1973, as year of the publication date of the final reopened the public comment period amended (Act). In total, approximately listing rule, designate critical habitat, from May 8, 2009, through July 1, 2009 15,164 square kilometers (km2) (5,855 unless we find designation to be not (74 FR 21614). We held a public hearing square miles (mi2)) fall within the prudent. On December 19, 2006, the on June 18, 2009, in Anchorage, Alaska. boundaries of the critical habitat Center for Biological Diversity filed suit The public hearing was attended by designation. All the critical habitat is against the Service for failure to nine people, and although telephone located in Alaska. designate critical habitat within the access was provided toll-free during the statutory time frame (Center for hearing, we received no calls. On June DATES: This rule becomes effective on 9, 2009, we published a notice of November 9, 2009. Biological Diversity et al. v. Kempthorne et al., No. 1:06–CV–02151–RMC (D.D.C. availability of the DEA, and we ADDRESSES: The final rule and final 2007)). On April 11, 2007, the U.S. extended the public comment period economic analysis are available for District Court for the District of through July 9, 2009, to allow interested viewing at http://regulations.gov. Columbia entered an order approving a parties to comment on both the Detailed color maps of areas designated stipulated settlement of the parties proposed critical habitat rule and the as critical habitat are available for requiring the Service on or before associated DEA (74 FR 27271). From viewing at http://alaska.fws.gov/ November 30, 2008, to submit to the June 9 through July 9, 2009, we also fisheries/mmm/seaotters/ Federal Register a determination as to operated a toll-free public comment criticalhabitat.htm. Supporting whether designation of critical habitat hotline, which enabled callers to record documentation we used in preparing for the southwest Alaska DPS is their public comments, to be later this final rule is available for public prudent, and if so, to publish a transcribed and entered into the official inspection, by appointment, during proposed rule. We have subsequently record. We received no comments on normal business hours, at the U.S. Fish reaffirmed that critical habitat for the the toll-free hotline. and Wildlife Service, Marine Mammals southwest Alaska DPS of the northern During the public comment periods, Management Office, U.S. Fish and sea otter is prudent, and we published we received 28 sets of public comments Wildlife Service, 1011 East Tudor Road, a proposal to designate critical habitat directly addressing the proposed Anchorage, AK 99503; telephone 907/ for the southwest Alaska DPS of the designation of critical habitat: 2 from 786–3800; facsimile 907/786–3816. northern sea otter in the Federal Federal agencies, 1 from a State agency, FOR FURTHER INFORMATION CONTACT: Register on December 16, 2008 (73 FR 1 from a local government, and the Douglas M. Burn, Wildlife Biologist, 76454). We accepted public comments remainder from organizations and Marine Mammals Management Office on this proposal for 60 days, ending on individuals. At the June 18, 2009, public (see ADDRESSES section). If you use a February 17, 2009. In response to hearing, we received one comment telecommunications device for the deaf requests from the public, we published directly addressing the proposed (TDD), call the Federal Information a document (74 FR 21614) reopening the designation of critical habitat. Relay Service (FIRS) at 800–877–8339. public comment period from May 8, Peer Review SUPPLEMENTARY INFORMATION: 2009, through July 1, 2009. We also published a notice of availability of the In accordance with our policy on peer Background economic analysis of critical habitat review published in the Federal It is our intent to discuss only those designation on June 9, 2009 (74 FR Register on July 1, 1994 (59 FR 34270), topics directly relevant to the 27271), and extended the public we solicited expert opinions from 10 designation of critical habitat for the comment period through July 9, 2009. knowledgeable individuals with southwest Alaska distinct population For more information on previous scientific expertise that included segment (DPS) of the northern sea otter Federal actions concerning the familiarity with the DPS, the geographic in this final rule. For more information southwest Alaska DPS of the northern region in which it occurs, and on the southwest Alaska DPS of the sea otter, refer to the final listing rule conservation biology principles. We

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received responses from two of the peer the value of sea otter foraging habitat is appear to occur in shallower waters that reviewers. We reviewed all comments inversely proportional to water depth. are closer to shore, we do not consider received from the peer reviewers and For example, research in southeast sea otter habitat that occurs further the public for substantive issues and Alaska shows that 84 percent of foraging seaward than the proposed critical new information regarding critical occurs in depths between 2 and 30m habitat (i.e., waters deeper that 20m habitat for the southwest Alaska DPS of (6.6 and 98.4 ft), and female sea otters (65.6 ft) in depth) to be unoccupied the northern sea otter. These comments, do the vast majority (85 percent) of their habitat, as otters are still observed there which were aggregated by subject foraging in waters less than 20m (65.6 on occasion. We explain our reasoning matter, are summarized and addressed ft) in depth. Recent research from for why these areas do not meet the below and are incorporated into the California suggests these patterns may definition of critical habitat in our final rule as appropriate. be similar among populations (Tinker et response to Comment 3. al. 2006, p. 148). Our selection of the 20- Comment 5: Some areas in the Kodiak Peer Reviewer Comments m (65.6-ft) depth contour therefore and Cook Inlet appear to have been Comment 1: One peer reviewer includes the majority of the most inappropriately excluded from critical questioned our characterization of how important sea otter foraging areas. habitat designation. sea otters use various types of kelp The areas defined by the PCEs that we Our Response: We believe that this habitat, specifically those of the genera proposed for designation as critical comment was submitted due to an Nereocystis and Macrocystis. habitat include the intertidal zone, as artifact in one or more of the maps that Our Response: We have revised and well as adjacent shallow waters where were published on the Service’s Region clarified the discussion in the final rule otters may feed while being relatively 7 web site. It is important to distinguish based on this comment. protected from marine predators. Sea between the PCEs (and their associated Comment 2: One peer review otters do not appear to be limited by criteria such as water depth or distance commented that Alaria fistulosa (the prey availability within the DPS, from the mean high tide line) and the primary canopy kelp in the Aleutians) is especially in areas where the population ability to map them. With the exception no longer classified as the genus Alaria, has declined the most, such as the of areas where the water depth drops off and stated that it has been re-named Aleutian archipelago. A thorough abruptly from shore, the 20-m (65.6-ft) Druehlia fistulosa. analysis indicates that there is limited depth contour typically constitutes the Our Response: We have revised the competition with commercial fishermen seaward extent of critical habitat. We final rule based on this comment. for sea otter prey resources throughout believe that the scale of some of the the range of the DPS (Funk 2003, p. 2). maps may have given the appearance Public Comments Because sea otters do not appear food that areas were excluded from Comments Related to Primary limited, foraging areas that do not also designation as critical habitat, when in Constituent Elements (PCEs) and provide shelter from predators (e.g., reality they were not. In order to Proposed Critical Habitat Areas areas that occur in water depths ranging alleviate any confusion over the location from 20 to 100m (65.6 to 328.1 ft)) are of critical habitat, we intend to make Comment 3: Several comments not identified as a feature essential to GIS data layers available to the public expressed concern that the area defined the conservation of the sea otter and are once the designation is final. by the proposed PCEs (described below therefore not included in this Comment 6: The Service should under ‘‘Primary Constituent Elements’’) designation. consider PCEs related to reproduction may not contain sufficient prey Comment 4: Critical habitat should and the rearing of offspring. resources to support the recovery of the not be limited to areas that are currently Our Response: Unlike other species southwest Alaska DPS, and should occupied by sea otters, and should that have identified breeding habitat, therefore be expanded in size. One include historically occupied areas as sea otters conduct all aspects of their commenter suggested that the seaward well. life history in essentially the same boundary should be set at the 30-meter Our Response: With the exception of places. Mothers with pups often seek (m) (98.4-feet (ft)) depth contour, but some relatively small areas on Kodiak shelter from rough seas, and though we did not provide a justification for this Island (included in our proposal), there did not explicitly address this in the value. Another commenter suggested it is virtually no unoccupied habitat proposed rule, the areas defined by the should be the 100-m (328.1 ft) depth within the range of the southwest PCEs include nearshore waters that do contour based on the physiological Alaska DPS. We also note that those provide shelter for mothers with pups. limits of sea otter diving capability. Yet areas of Kodiak Island are unoccupied Recent studies using time-depth another commenter simply stated that because they had yet to be recolonized recorders indicate that female sea otters the area of designated critical habitat following protection by the 1911 Fur forage in shallower waters more than should be doubled. Seal Treaty that prohibited commercial males, with the majority of their Our Response: We agree that the fur harvests of sea otters. Lack of foraging effort occurring in waters less presence of adequate prey resources is occupation by sea otters in this area is than 20m (65.6 ft) in depth (Bodkin et important for the conservation of the not a result of the recent population al. 2004, p. 305). Therefore, the southwest Alaska DPS. While any of the decline that led to the listing of this DPS identified PCEs already include areas options suggested by the commenters as threatened. that are essential for reproduction and would include additional foraging areas The areas defined by the PCEs and the rearing of offspring. We have also in the designation of critical habitat, the proposed for critical habitat are a subset expanded our discussion of this subject commenters provide no clear scientific of what we consider to be occupied sea in this final rule. rationale for the specific water depths otter habitat and are sufficient to Comment 7: Maintaining large habitat they suggested. The choice of the 100- provide for the conservation of the DPS. patches that can facilitate movement m (328.1 ft) depth contour has a Sea otter densities are not uniform between otter populations is essential to biological basis, as it delineates the throughout the set of all possible sea the conservation of this population. physiological limits of sea otter diving otter habitat, however, and differ both Our Response: With the exception of capabilities. However, information on longitudinally and perpendicularly with Unit 4 (Bristol Bay), the critical habitat sea otter diving behavior indicates that the shore. While the highest densities occurs as contiguous zones around all

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islands and mainland Alaska within the Island, sea otters currently occupy all Comments Related to Consultation range of the southwest Alaska DPS. their former range. Therefore, range Under Section 7 of the Act Movement within any discrete patch of expansion will likely not be necessary Comment 12: Some activities that may critical habitat is not restricted. We for the conservation of the southwest be subject to consultation under section therefore interpret this comment to be Alaska DPS. 7 of the Act were omitted from the addressing the movement between Comment 10: The Service should proposed rule to designate critical discrete patches, for example, between consider combining all proposed habitat for sea otters in southwest islands and island groups in Units 1, 2, ‘‘Primary Constituent Elements’’ (PCEs) Alaska. 3, and 5. Our Response: The proposed rule During the course of recolonization of instead of using them independently to contained examples of the types of their range during the 20th century, sea define critical habitat. activities that the Service can otter movements of this kind occurred Our Response: Each PCE has its own reasonably expect to consult on under from occupied islands to unoccupied explicit criterion, and for the purposes section 7 of the Act, but it was not ones. However, current conditions differ of clarity we believe that it is best to list intended to be a complete list of all in that the waters around most (if not them individually. The individual PCEs possible activities. All Federal agencies all) of these islands remain inhabited, laid out in the appropriate quantity and have the obligation under section 7 of but by lower densities of sea otters. We spatial arrangement essential for the the Act to consult on actions they believe, based on the best available conservation of the species define the information, that recovery can occur conduct, fund, or permit, that may affect physical and biological features that are a federally listed species or destroy or with a minimal amount of dispersal essential for the conservation of the between islands. Therefore, designation adversely modify its designated critical DPS. Although it is not a requirement, habitat. As such, the Service is not of large patches of area connecting most of the areas that were proposed for islands (or island groups) as critical limited to consulting on only those designation as critical habitat do contain activities listed in either the proposed or habitat is not essential to the all four PCEs. conservation of the DPS. final rules for designation of critical Comment 8: The offshore waters in Comment 11: The amount of critical habitat. Unit 4 should be designated as critical habitat is excessive, and the criteria Comment 13: Special management habitat due to their likely importance in used to designate critical habitat should considerations and protections that may fulfilling PCE categories 1 (shallow, be narrowed in order to select more result from consultations under section rocky areas in waters less than 2m (6.6 discrete areas of critical habitat that are 7 of the Act were omitted from the ft) in depth) and 2 (waters within 100m essential to the conservation of the proposed rule. (328.1 ft) of the mean high tide line). species so that habitat designations are Our Response: The special Our Response: Although we could biologically meaningful. management considerations and apply the criteria for PCEs 1 and 2 to protections in the proposed rule were Our Response: As stated in the included for example purposes. The this unit, the area they delineate does proposed rule, we determined that the not contain the physical and biological specific types of management actions, physical and biological features that are such as reasonable and prudent features, and therefore would not serve essential for the conservation of the the same function as it does in the other measures, will be determined on a case- southwest Alaska DPS of the northern critical habitat units. Rocky substrates by-case basis during the process of sea otter are those that provide cover and kelp beds are scarce in Unit 4 consulting under section 7 of the Act. and shelter from marine predators, as (Bristol Bay), and we applied these PCEs The Service is not limited to only those well as the prey resources that occur in to the one place where they occur to special management considerations and delineate subunit 4a (Amak Island). those areas. We are limited in our protections listed in either the proposed Shallow, rocky areas where marine understanding of sea otter habitat use or final rules for designation of critical predators are less likely to forage (PCE and also by our ability to map these habitat. 1) are scarce throughout the remainder features beyond a certain scale. We Comment 14: The designation of of Unit 4. This commenter correctly identified the physical and biological critical habitat may result in changes to noted that because of the bathymetry in features essential to the conservation of development projects, including delays Bristol Bay, otters can forage at greater the DPS based on the best scientific and added costs. distances from shore. Unlike our survey information related to sea otter life Our Response: Since the southwest information from several islands in history requirements. This commenter Alaska DPS of the northern sea otter was critical habitat Unit 1 (Western was particularly concerned with the listed as threatened in August 2005, all Aleutians), we have no information that underlying rationale for PCEs 1 and 2. Federal agencies have had the obligation indicates that nearshore waters (PCE 2) We note that there is considerable to consult with the Service to ensure provide protection or escape from spatial overlap in areas defined by the that the activities they conduct, fund, or marine predators, which may be due to first three PCEs. For example, all of the carry out, are not likely to jeopardize the the lack of PCE 1 in these areas. areas delineated by PCE 1 (shallow, continued existence of the DPS. Therefore, we do not believe the rocky areas in waters less than 2m (6.6 Numerous consultations in accordance application of PCEs 1 and 2 within Unit ft) in depth) and the vast majority of with this obligation have been 4 would identify features that provide areas delineated by PCE 2 (waters conducted with multiple Federal cover and shelter from marine within 100m (328.1 ft) of the mean high agencies, and must be conducted in the predators, and would be essential to the tide line) are contained within the area future, regardless of whether or not conservation of the DPS. delineated by PCE 3 (kelp forests in critical habitat is designated. Federal Comment 9: It is not clear that the waters less than 20m (65.6 ft) in depth). agencies that consult with the Service proposed PCEs will provide for range Our rationale for choosing these areas is have the obligation to work within the expansion and the conservation of the summarized in the ‘‘Primary statutory timelines of section 7 species. Constituent Elements for the Southwest consultations, and plan their activities Our Response: With the exception of Alaska DPS of the Northern Sea Otter’’ accordingly to avoid delay. Non-Federal some relatively small areas on Kodiak section. entities that require Federal permits for

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development projects should also be jetties, and breakwaters, as they do not that the additional economic impacts aware of the consultation requirement, contain the necessary PCEs themselves. expected from designation of critical and factor the time needed for It is almost certain that harbors and habitat as proposed would amount to an consultations into their plans and marinas do not contain PCE 3 (kelp increase of 1.8 percent above the schedules. As consultations are already forests). The waters contained within baseline impacts in the absence of required under the jeopardy standard, harbors and marinas may provide cover critical habitat designation. Oil spill the additional consultation standard of and shelter from marine predators, and planning and response activities are destruction or adverse modification of are therefore not excluded from this expected to bear a majority of these critical habitat are not anticipated to designation. costs. The economic impacts of critical result in significant project delays. One of these commenters also habitat are estimated to be Modifications to projects due to critical expressed concern that the exclusion of approximately $58,900 per year over the habitat are not expected to add these areas was the equivalent of a entire range of the DPS assuming a 7 significant monetary costs (see section ‘‘categorical exclusion’’ from all section percent discount rate. Of these costs, the on ‘‘Economic Analysis’’ below). 7 consultation requirements. Regardless FEA estimates that $54,900 of the Comment 15: Subsistence harvest of of critical habitat designation, the annual costs (93 percent) will be related sea otters should be regulated within Service has the obligation to consult on to administrative costs of consultations critical habitat. activities such as demolition, repair, or under section 7 of the Act. The majority Our Response: Subsistence harvest of construction when a Federal nexus of these costs for consultations related sea otters from the southwest Alaska exists. While the structures themselves to water quality, construction, and other DPS is allowable under section 10(e) of are not designated as critical habitat, the activities will be borne by the Service the Act and section 101(b) of the Marine impacts of these activities will be and the Federal action agency. Third Mammal Protection Act (MMPA). considered against both the jeopardy parties to these consultations are only Permits are not required under either standard, and the adverse modification expected to bear $513–$875 per the Act or the MMPA for Alaska Natives standard for any adjacent designated consultation in administrative costs to harvest sea otters for subsistence critical habitat. related to the incremental costs of uses, although hides and skulls must be Comment 18: Areas immediately critical habitat designation for informal tagged to fulfill reporting requirements. surrounding inhabited communities and formal consultations, respectively. There is no Federal nexus that would should be excluded from designation as The total actual costs to any single require consultation under section 7 of critical habitat for economic purposes. community will ultimately depend on the Act; therefore, the critical habitat One of these commenters specified that the number of activities in that designation would not provide a the excluded areas should extend a community that are subject to mechanism to regulate subsistence distance of up to 1.6 kilometers (km) consultation under section 7 of the Act, harvest. (1 mile (mi)) radius from each inhabited as well as the complexity of such Comment 16: The proposed critical community. Another of these consultations, that will dictate whether habitat designation does not adequately commenters also questioned the benefit informal or formal consultation is address the impacts of entanglement in to sea otters of including these areas in required. fishing gear. the critical habitat designation. Accordingly, after thorough Our Response: Critical habitat Our Response: We believe important consideration, we are not exercising our designation is not the appropriate benefits exist for designating critical discretion to exclude areas in and mechanism to address the impacts of habitat in the vicinity of inhabited around inhabited communities in sea otter entanglement in fishing gear. communities. Although critical habitat southwest Alaska from critical habitat The majority of designated critical immediately adjacent to inhabited designation, due to the insignificant habitat occurs within State of Alaska communities constitutes a relatively costs estimated to be borne by waters. Therefore, most of the fisheries small proportion of the overall critical individual communities as a result of that occur within critical habitat are not habitat designation, the physical and the designation of critical habitat, the federally managed. Other regulatory biological features identified by the important protections the designation of mechanisms to address the issue of PCEs provide protection from marine critical habitat near communities will entanglement in these fisheries are predators comparable to the protection afford the DPS, and the unique available under the Act, such as provided by similar features located in educational and informational benefits provisions under section 10 of the Act areas that are distant from such of designating critical habitat there. (e.g., Habitat Conservation Plans). For communities. In addition, we believe Comment 19: The Department of the those fisheries that have a Federal that designated critical habitat in the Navy requested that areas contiguous to nexus, the Service will consult with the vicinity of inhabited communities has a islands in Unit 5 should be excluded National Marine Fisheries Service to unique informational benefit that from designation as critical habitat due determine if the fishery will: (1) critical habitat in more remote areas to their national security importance. Jeopardize the southwest Alaska DPS of does not. The areas requested for exclusion are the northern sea otter; and (2) adversely The Final Economic Analysis (FEA) used for a variety of training activities modify or destroy their critical habitat. identified the incremental costs that are considered vital to continued associated with designation of critical readiness of U.S. Navy forces. The Comments Requesting Exclusions of habitat for the southwest Alaska DPS of Department of the Navy is concerned Areas From Critical Habitat Designation the northern sea otter. Given the very that designation of critical habitat in Comment 17: The exclusion of small estimated annual costs associated this area ‘‘may restrict or prohibit developed areas such as harbors and with all consultations due to the critical implementation of various training and marinas is inappropriate, as these habitat, and the small estimated costs testing requirements.’’ They further state structures may also be used for resting per consultation expected to be borne by that the ability to conduct training or foraging. third parties, individual communities in exercises in these areas ‘‘on a short Our Response: This exclusion covers southwest Alaska are not expected to notice basis’’ is necessary for the the physical structures that create a bear significant costs due to critical Department of the Navy to ‘‘achieve its harbor or marina, such as piers, docks, habitat designation. The FEA estimated required level of operational readiness.’’

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Our Response: Section 4(b)(2) of the evaluate the expected impacts to sea Our Response: Critical habitat is Act allows the Secretary to use his otters and their critical habitat, and to defined as the physical and biological discretion to exclude areas from critical develop protective measures during the features that are essential to the habitat for reasons of national security emergency consultation. The conservation of the listed entity, and if the Secretary determines the benefits designation of critical habitat is not that may require special management of such an exclusion exceed the benefits expected to impact the timing of considerations or protections. From this of designating the area as critical emergency consultations. definition, critical habitat designation habitat. However, this exclusion cannot In our consideration of the Navy’s does not apply to privately owned items occur if it will result in the extinction request for an exclusion, we wish to such as fishing gear, even when such of the species concerned. emphasize the important role of critical gear is used in geographic areas We understand the Navy’s interest in habitat designation in informing designated as critical habitat. conducting its training exercises on a Federal, State, and local governments Comment 21: Some of the areas short notice basis so as to achieve its and the public of the importance of proposed for designation as critical required level of operational readiness. critical habitat areas to listed species habitat are currently managed by the We believe, however, that the Navy’s and the parties’ respective consultation State of Alaska, and do not meet the goals are not incompatible with the obligations under section 7 of the Act. second part of the definition of critical designation of critical habitat for the We also note that designation of habitat as they are already protected and southwest Alaska DPS of the northern critical habitat in this area provides therefore do not require additional sea otter for a number of reasons. The conservation benefits to a substantial special management considerations or Navy has, and continues to have, an portion of the southwest Alaska DPS of protection. ongoing obligation to consult with the the northern sea otter. Results of the Our Response: We acknowledge that Service to ensure that the activities they most recent aerial survey of the Kodiak some areas that were proposed for designation as critical habitat conduct, fund, or carry out are not likely archipelago, conducted in 2004, geographically overlap with some areas to jeopardize the continued existence of indicate that this area contained managed by the State of Alaska. The the southwest Alaska DPS of the approximately 11,000 sea otters at that areas managed by the State include northern sea otter since it was listed as time, which represents more than 20 those covered by: (1) Alaska Department threatened in August 2005. This percent of the estimated population size of Natural Resources (ADNR) Area obligation to consult exists regardless of for the entire southwest Alaska DPS Plans; and (2) Alaska Department of whether or not critical habitat for (USFWS 2008). The area requested for northern sea otter is designated. Fish and Game (ADFG) Special Area exclusion (3,418 km2 (1,320 mi2)) is The estimated time and costs designations and plans. Within the approximately 23 percent of the total associated with consideration of sea range of the southwest Alaska DPS, otter critical habitat is expected to be area, and 51 percent of the area of Unit three ADNR plans (Bristol Bay, Kodiak, extremely small. This point is 5. Inclusion of these areas as critical and Kenai Peninsula) overlap with underscored in the FEA, which explains habitat will insure that consultations portions of proposed critical habitat that due to the minimal amount of time with the Department of the Navy and units 3, 4, and 5. In addition, the critical habitat designation is expected other Federal agencies will include both easternmost portion of critical habitat to add to the consultation process, the jeopardy and adverse modification unit 2 is included within the geographic associated costs are insignificant. analyses for a significant portion of the coverage of the Bristol Bay plan. Some The Service will work with the Navy southwest Alaska DPS. of the areas proposed for critical habitat to consult on their activities under In short, the Navy has an obligation to are also contained with existing ADFG section 7 of the Act efficiently in an consult with the Service on the effects ‘‘Special Areas,’’ such as State game attempt to avoid any delays to national of its military readiness activities on the refuges, critical habitat areas, and security activities. There are additional southwest Alaska DPS of the northern sanctuaries. Specifically, the Izembek consultation mechanisms that may be sea otter regardless of the designation of State Refuge intersects with portions of available to further expedite the Navy’s critical habitat in this final rule. As a both proposed subunit 4a (Amak Island) consultations and enhance the Navy’s result, any delays and costs associated and subunit 4b (Izembek Lagoon). The ability to conduct training exercises in with sea otter critical habitat Port Moller State Critical Habitat Area the areas requested for exclusion on a designation are expected to be minimal. intersects with portions of subunit 4c short-notice basis. One such mechanism Moreover, the Act contains mechanisms (Port Moller/Herendeen Bay). And is a programmatic consultation, which that may be applicable to further lastly, the Tugidak Island State Critical would consider the impacts of multiple expedite the Navy’s consultations. In Habitat Area and the McNeil River training exercises over multiple years. A light of these considerations, as well as Sanctuary intersect with portions of programmatic consultation would the important protections and Unit 5 (Kodiak, Kamishak, Alaska remove or reduce the need to consult on educational benefits afforded by the Peninsula). a case-by-case basis. designation of critical habitat for the We acknowledge the efforts by the In the event that the imminent need southwest Alaska DPS of the northern State to provide management arises for an activity that is not covered sea otter, the Secretary has decided not protections that benefit listed species by an existing programmatic to exercise his discretion to exclude the and their habitat. However, these areas consultation, the Act provides a areas requested by the Navy from our meet the definition of critical habitat mechanism for dealing with critical habitat designation for national under the Act, which is the habitat emergencies (e.g., national defense or security reasons. essential to the conservation of the security emergencies) that would Comment 20: Fishing gear, including species that may require special require expedited consultation (50 CFR lines, nets, and anchors associated with management considerations or 402.05). In these instances, if the commercial sport and subsistence protections. Thus, whether habitat proposed activity was determined to be salmon fishing on Kodiak Island and requires additional special management a national defense or security elsewhere in southwest Alaska, should because some protections may already emergency, the Service would work be explicitly excluded from designation exist for it under State of Alaska law with the Department of the Navy to as critical habitat. does not determine whether that habitat

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meets the definition of ‘‘critical’’ under regarding the effectiveness of the ADFG consultations, respectively. Thus, third the Act. In fact, the presence of special area protections. In special parties to consultations on activities protections under State law areas, the primary mechanism for such as fishing, mining, and logging are demonstrates that special management habitat protection is the requirement not expected to bear any significant considerations or protections may be that a ‘‘special area permit’’ be obtained costs due to critical habitat designation. necessary. for many land and water use activities, We outline our rationale for why the This interpretation of the definition of including construction activities, physical and biological features are critical habitat is consistent with the destruction of vegetation, excavation, considered essential elsewhere in this plain language of the Act, and its dredging, filling, and energy final rule (see ‘‘Primary Constituent underlying policies. The Act exploration, development, and Elements’’). We also present the benefits specifically provides that ‘‘all Federal production (5 AAC 95.420(a)). However, of designating critical habitat later in departments and agencies shall utilize the plans lack measurable criteria for this final rule, such as protections to the their authorities in furtherance of the determining whether and how a species by considering critical habitat in purposes of this chapter,’’ including the particular activity subject to a permit section 7 consultations, and the conservation of listed species and their application meets the dual goals of educational and information benefits of habitat. Alternative State protections, maintaining, protecting and enhancing designation (see ‘‘Benefits of even if they were considered to be habitat and maintaining public use, and Designating Critical Habitat’’). equivalent or superior to critical habitat do not provide assurances that the areas Therefore, in light of these benefits and designation for the species’ will be protected. the minimal costs to third parties, the conservation, are not a functional Therefore, we conclude that the areas Secretary has decided not to exercise his substitute for critical habitat managed by the State of Alaska meet the discretion to exclude any areas from designation. statutory definition of critical habitat critical habitat based on economic We have examined the types of under the Act. We also conclude that reasons. protections that exist under State law to the existing management protections for Comment 23: One commenter assess their effectiveness in protecting these areas are not a substitute for requested that Chignik Bay be excluded sea otter habitat. While ADNR Area Federal critical habitat designation. from critical habitat designation. Because of this, and in light of the Plans and ADFG special areas consider Our Response: No supporting benefits of critical habitat designation, impacts to fish and wildlife resources information was provided by this the Secretary has decided not to and their habitat, neither of these types commenter. As a result, the Secretary exercise his discretion to exclude these of protections are specifically designed has decided not to exercise his areas covered by existing State of Alaska to address sea otter concerns. discretion to exclude Chignik Bay for Regarding threatened and endangered management from our designation of critical habitat for the southwest Alaska economic reasons (see our response to species, all ADNR Area Plans contain Comment 22 above) or other relevant the following guidelines: DPS of the northern sea otter. Comment 22: Various areas where factors, and this area has not been All land use activities will be conducted human activities occur, including excluded from our designation of consistent with state and federal Endangered critical habitat. Species Acts to avoid jeopardizing the fishing, mining, logging, and oil and gas continued existence of threatened or exploration, development, and Comments Related to the Process of endangered species of animals or plants, to production, should be excluded from Designating Critical Habitat provide for their continued use of an area, designation as critical habitat. One and to avoid modification or destruction of commenter specifically requested Comment 24: The public comment their habitat. Specific mitigation exclusion of areas in Cook Inlet/Eastern period for the proposed critical habitat recommendations should be identified Alaska Peninsula/Kodiak Island designation was too short. through interagency consultation for any identified through the economic Our Response: The applicable land use activity that potentially affects analysis as economically important, and regulations implementing the Act and threatened or endangered species. two log transfer facilities in Kazakof Bay the Administrative Procedure Act Neither the sea otter nor its habitat is on Afognak Island. require us to provide 60 days for public protected under the State Endangered Our Response: Several commenters review and comment on a proposed rule Species Act, and thus receive no expressed concern about the designation designating critical habitat. The Service protections under that statute or the of critical habitat in areas of human provided 60 days for public comment ADNR Area Plans. The protections in activities. Although the reason(s) were initially, and subsequently reopened the the ADNR Area Plans are limited to not explicitly stated, we presume the public comment period to allow those provided in the Federal Act. Thus, concern was related to the potential additional public comments from May 8 absent the designation of critical habitat economic impacts that may result from through July 9, 2009. In addition, we under the Federal Act, no consideration critical habitat designation. As held a public hearing on June 18, 2009, will be afforded for critical habitat explained above under comment 19, the in Anchorage, Alaska, and we operated under this provision in the ADNR Area FEA concluded that the economic a toll-free public comment hotline from Plans. impacts of critical habitat including, but June 9 through July 9, 2009, to enable Although the ADNR plans contain not limited to, the activities listed callers to record their comments, which important goals and objectives for the above, is estimated to be approximately were later transcribed. We also protection of sensitive areas, which may $58,900 per year over the range of the conducted extensive outreach to notify include sea otter habitat, they do not entire DPS assuming a 7 percent the public of these additional public specify criteria for how these objectives discount rate. Third parties to section 7 comment opportunities. Collectively, will be achieved. The management consultations on activities such as those therefore, the amount of time provided guidance provided by these plan listed above are only expected to bear for public comment from the designations does not contain clear $513–$875 per consultation in publication of the proposed rule in standards to ensure that important sea administrative costs related to the December 2008 through July 2009 was otter habitat will be effectively incremental costs of critical habitat effectively greater than 6 months. Given protected. We have similar concerns designation for informal and formal the above, we believe we provided

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sufficient time and means for the public that we used the best available scientific conservation in California, providing to comment on the proposed rule. and commercial information on the quantitative results. The Loomis Comment 25: The Service should developing this critical habitat study estimates the tourism and consult directly with communities and designation. The supporting nonmarket economic values per sea Alaska Native Tribes within the documentation we used in preparing otter from an increase in the population proposed critical habitat area. this rule is available for public of 196 otters expected to result from a Our Response: The Service conducted inspection (see ADDRESSES). translocation program. As detailed in extensive public outreach with Comments on the Economic Analysis the draft economic analysis, to estimate organizations, communities, and Alaska tourism benefits Loomis transfers a Natives within the range of the Comment 28: The Executive Summary point estimate of benefits of wildlife southwest Alaska DPS of the northern should include a description of the viewing from a group thesis from the sea otter. We responded to all requests difference between baseline and University of Santa Barbara (Aldrich et for additional information from various incremental impacts and which is the al., 2001). He adjusts this estimate to organizations and communities before appropriate consideration of cost under narrow the value to the benefits submitting the proposed rule to the Act’s critical habitat inquiry. specifically of viewing sea otter using a designate critical habitat to the Federal Our Response: Paragraph 6 on page 1985 Hageman study developed for the Register. The Service remains ES–2 of the draft economic analysis National Marine Fisheries Service. committed to working with Alaska defines the baseline and incremental Loomis accordingly estimates tourism Natives on this and other issues impacts; these definitions are further benefits in Southern California of regarding federally listed species and detailed in Chapter 2. Section 2.1 $13,220 to $69,000 in income and 0.53 designated critical habitat. Further, as summarizes the case history describing to 2.8 jobs per otter. Loomis employs discussed later in this final rule, we the reason for providing both categories benefits transfer techniques using the of impacts, quantifying them separately, have determined that there are no Hageman study and a 1996 Loomis and in the economic analysis. Native Alaskan Tribal lands within the White meta-analysis to determine a boundaries of this designation of critical Comment 29: Two comments provided on the draft economic analysis range for the non-market value of an habitat for the sea otter. increase in sea otter population of 196. Comment 26: The Service should hold state that the analysis needs to quantify The resulting benefit to California public hearings in several communities the benefits of critical habitat households is $2.32 to $5.81 per in southwest Alaska. designation. Specifically, one comment Our Response: The communities argues that the analysis should employ household. suggested as sites for public hearings are results of work by John Loomis on the The draft economic analysis agrees located in relatively remote areas of economic benefits of southern sea otter that the Loomis study evidences that southwest Alaska. Although we protection in California as it is directly real social welfare benefits are acknowledge the value of face-to-face relevant. The comment states that the associated with expansions in sea otter meetings, the logistical difficulties of economic analysis is not correct in populations. The Loomis study, holding hearings in these southwest concluding that the Southwest Alaska however, does not provide an adequate Alaska communities made them DPS does not generate tourism benefit basis to quantify the specific benefits of impractical. Instead, we used other because of the remote nature of the sea otter critical habitat designation. methods to increase the opportunity for proposed critical habitat area. Although Regarding the tourism benefits, while residents to provide comments verbally, tourism activity may be lower in Alaska the commodities (sea otters) being as well as in writing. We held one habitat than in California habitat, the valued are similar in the Loomis study public hearing in Anchorage, Alaska, on comment asserts that sea otters in and the draft economic analysis, the June 18, 2009, and provided telephone Alaska do provide some tourism benefit potentially affected populations access for individuals who were unable that should be quantified. The comment (Southern California versus Southwest to attend the hearing in person. We further states that the economic analysis Alaska) are not. The Southern California received one comment from attendees does not attempt to develop estimates of sea otter population is comparatively and received no calls during the passive use values, noting that significantly more accessible for wildlife hearing. To increase public access, we beneficiaries include all U.S. citizens viewing. In fact, the Loomis study only also established a toll-free ‘‘public who hold existence values for the sea applies the estimated per otter tourism comment hotline’’ that operated for the otters. The comment cites a 2000 Land benefits in Southern California to those duration of the reopened public Economics article by Loomis concluding otters determined to be accessible for comment period, which occurred from that even small changes in population viewing. While some otter viewing may June 9 through July 9, 2009. We levels of threatened and endangered occur in Southwest Alaska, the remote received no comments on the public species can generate large welfare character of the habitat is not comment hotline. We believe these impacts and that the economic analysis comparable to Southern California accommodations provided sufficient should attempt to construct a range of habitat. With regard to the nonmarket time and means for the public to potential population changes that might (e.g., existence and option) values, the comment on the proposed rule. result from critical habitat designation, Loomis study models a specific policy Comment 27: The Service should for example, via expert interviews. scenario of otter population changes consider all research, not just its own, Another comment notes that potential (increase of 196 otters) to derive per in the designation of critical habitat. ancillary economic benefits of critical otter value estimates. The potential Our Response: In preparing this habitat may stem from the protection of effect on otter populations of the critical habitat designation, the Service ecosystem services, increasing conservation efforts forecast to occur in thoroughly considered any and all recreational and wildlife-viewing the baseline and incremental scenarios relevant information about sea otters opportunities, and concurrent of the draft economic analysis is and their habitat. The vast majority of conservation of other species. unknown. While the comment suggests research used in the determination of Our Response: Section 8.2 of the draft surveying experts to determine how PCEs and critical habitat was from non- economic analysis describes Dr. Loomis’ critical habitat may affect otter Service sources. As such, we believe research related to the value of sea otter populations in order to estimate a total

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nonmarket benefit, Service biologists are case-by-case basis, it is not possible to Specific plans for timing and location not able to project population effects of predict specific conservation efforts for of the pipeline do not exist; siting of the the regulation. the sea otter at this time. However, the pipeline and associated support Finally, neither the Loomis study nor FEA discusses potential project facilities will depend on where the the draft economic analysis provides a modifications that the Service might natural gas resources are located. Thus, quantitative estimate of the total request for sea otter based on past the analysis presents information about ecosystem service benefits. The Loomis examples from consultations involving the potential locations of pipelines study provides a value per acre for the Steller’s eider, a listed bird species within critical habitat, but does not coastal ecosystems of $7,600 per acre with designated critical habitat that quantify specific impacts of otter citing a 1997 Costanza et al. study. overlaps sea otter critical habitat. From conservation on any project. Section 8.3 of the draft economic these consultations project Comment 32: The State of Alaska analysis highlights the potential modifications have resulted in increased notes that the economic analysis categories of ecosystem service benefits costs to operators rather than limitations presents estimates of potential costs for associated with otter conservation by on the industry’s ability to survey or 3–D seismic surveys in Cook Inlet but unit across the proposed critical habitat develop oil and gas resources in critical that an estimate of costs for similar designation. These benefit categories habitat areas. Past conservation projects in Bristol Bay would be more include improved water quality, measures have included development of informative and likely much higher. aesthetic benefits, regional economic Geographic Response Strategies for an Our Response: As described above benefits, and improved health of other, area, hiring an experienced onboard and in Chapter 4 of the draft economic coexisting species. monitor for active vessels and aerial analysis, the Service has not consulted Comment 30: One comment states species monitoring. on oil and gas activity as it relates to the sea otter. However, the analysis that the economic analysis is deficient Comment 31: The State of Alaska in not at least providing speculative discusses available examples from the describes that the economic analysis estimates of incremental costs related to one past consultation on seismic should provide a more comprehensive the critical habitat designation for oil surveying involving the Steller’s eider. estimate of the incremental costs of and gas development projects. The This consultation occurred in Cook critical habitat on a potential offshore- comment highlights the following Inlet. Thus, no information is currently onshore pipeline at Port Moller- possible impacts on any oil and gas available to inform an analysis of Herendeen Bay and of docks and utility development that might occur in the potential impacts of sea otters on corridors on the south side of the Alaska area of the proposed designation: seismic survey activities in Bristol Bay. Peninsula. While the specific timing Increased costs of permitting oil and gas The final economic analysis now notes and location of these projects are development projects; delay costs; the State’s assertion that costs for decreased investment, exploration, and uncertain, the comment argues the potential, similar projects in Bristol Bay lease sales, resulting in decreased economic analysis should provide an may cost more than the Cook Inlet revenue accruing to the State of Alaska; estimated range of potential costs. example due to the comparatively community-level impacts, including Our Response: Chapter 4 of the draft remote nature of Bristol Bay. loss of jobs, etc.; and natural gas supply economic analysis discusses the Comment 33: The State of Alaska issues, resulting in increased costs of potential for construction and operation states that economic analysis describes, natural gas. The commenter believes the of a pipeline to transport oil and/or gas ‘‘a history of opposition to oil and gas draft economic analysis should assess from Bristol Bay and points northward development within the region,’’ the impact of the need to build in a to an outlet on the south side of the referencing assumptions made in 1985 timing window for seismic exploration, Alaska Peninsula, which may include regarding oil and gas production in the additional restrictions on drilling, building a pipeline across the Alaska 1994 to 1999 time frame. However, no seismic surveys, pipeline routes, Peninsula. The analysis cites a recent production was allowed in that helicopter overflights, and barging study which estimates that an timeframe due to a Presidential operations. The commenter expressed additional 482.8 km (300 miles) of moratorium and a Congressional particular concern about potential oil pipeline will need to be constructed to moratorium following the 1989 Exxon and gas activity in Unit 4C, Port Moller- support the oil and gas industry within Valdez oil spill. Since that time, the Herendeen Bay. the North Aleutian Basin over the next Peninsula Borough, Bristol Bay Our Response: Section 4.4 of the 50 years. The final economic analysis Borough, and Aleutians East Borough economic analysis describes potential includes discussion of the four potential signed a Memorandum of impacts of critical habitat for the sea Trans-Peninsula Transportation Understanding with the State affirming otter on oil and gas activities. As Corridors identified in the Bristol Bay support and cooperation to facilitate described in the analysis, oil and gas Area Plan, one of which may be located responsible oil and gas development in development is reasonably foreseeable at the southern end of the Port Moller- the region. within or in offshore areas that may Herendeen Bay critical habitat unit. The Our Response: Section 4.4 of the final affect critical habitat areas in the future. analysis also notes that the Bristol Bay economic analysis clarifies that recent Experts in the field of oil and gas Area Plan has identified the Port Moller- Memoranda of Understanding have been development in Alaska, however, assert Herendeen Bay Area as having signed by local residents in support of that forecasting any specific scenario ‘‘modest’’ potential for oil and gas responsible oil and gas development in predicting the scope and scale of oil and development, and that ‘‘one possible the Bristol Bay region. gas development in this area would be use for land at the back of Herendeen Comment 34: A comment provided on speculative. In addition, the Service has Bay [is for it] to be used for trans- the draft economic analysis highlights a not consulted on oil and gas activity as peninsular transport and associated series of potential transportation relates to the sea otter. Because the development.’’ The analysis describes projects, generally related to potential Service has not yet consulted on oil and that the State of Alaska has identified future oil and gas development activity, gas activities associated with sea otters, the Port Moller-Herendeen Bay area as and states that incremental increases in and because the Service plans to being a promising area for locating this the cost of constructing these projects address future planned activities on a pipeline. associated with critical habitat

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designation should be considered. At this time, there do not appear to be population stocks of sea otters (Gorbics Specific projects of concern include the any plans for offshore wind farms and Bodkin 2001, p. 636). Additional Alaska Peninsula Regional within the proposed critical habitat studies using tagged sea otters, as well Transportation Corridor, Community designation. It is therefore likewise as genetic analysis of sea otters from Transportation Plans, port and harbor uncertain whether and to what extent Kamishak Bay, Kachemak Bay, and the projects, and the three Trans-Peninsula such projects may occur in the proposed Barren Islands, would be helpful in Transportation Corridors identified in designation. addressing this issue. In the meantime, the Bristol Bay Area Plan. Finally, Chapter 5 of the final we are required to designate critical Our Response: Section 5.1 of the economic analysis is revised to describe habitat for the southwest Alaska DPS of analysis considers potential impacts to the potential for geothermal energy the northern sea otter, which includes transportation projects, including development in critical habitat areas, in lower western Cook Inlet, north of Cape airports, ports, and harbors. Forecast particular the proposed Naknek project Douglas, and also the Barren Islands. As projects were determined through in the vicinity of Unit 5. As discussed, such, nearshore marine waters in these communication with both the Federal the Aleutian Islands have a high areas that contain the identified PCEs Aviation Administration and Alaska potential for geothermal energy are included in our critical habitat Department of Transportation, along development. However, similar to future designation. with publicly available transportation oil and gas development, the location of plans from these agencies. The final potential future geothermal projects is Summary of Changes From the 2008 economic analysis incorporates a unknown at this time. Because no Proposed Rule discussion of the potential consultations on geothermal projects Comments on our December 2008 transportation projects described in the have occurred for otters, the scope of proposed rule (73 FR 76454) to comment; these transportation projects, potential project modifications for the designate critical habitat varied however, are largely land-based. For sea otter is also unknown. With respect considerably. While some commenters example, the Regional Transportation to the Naknek geothermal project and stated that our proposed designation did Corridors and Community associated transmission lines, these do not include sufficient area for the Transportation Projects in the Bristol not appear to be located near the conservation of the southwest Alaska Bay Area Plan, including the Chigniks proposed critical habitat. It is, therefore, DPS of the northern sea otter, they did Road Intertie, are all ground unclear how the Naknek project would not provide specific supporting transportation projects. Because these be affected by the designation. information relative to additional PCEs projects do not involve construction in Other Comments that would expand the extent of the marine waters, it is unclear how they critical habitat designation. Other would be affected by otter conservation. Comment 36: The proposed rule commenters stated that our proposed Comment 35: One commenter notes mischaracterizes the importance of this designation encompassed too large an that the draft economic analysis does area to the State and its citizens. The area, and several requested that specific not quantify impacts to other types of proposed rule states, ‘‘The scale of areas be excluded from designation energy projects (e.g., wind, wave, and human activities that occur within the based on economic reasons, on existing geothermal projects). The commenter proposed critical habitat areas is management plans that obviate the need states that the Makah Bay offshore Wave exceedingly small.’’ for special management considerations Energy Pilot Project described in the Our Response: The statement from the or protections, and for national security economic analysis could be used to proposed rule shown above was not reasons. We considered these requests generate an estimate of incremental intended in any way to diminish the for exclusion, and for the reasons costs for similar projects in the study importance of southwest Alaska. Rather, explained previously in our responses area. The comment also mentions that a it was included to illustrate that, for the to public comments, we do not exclude geothermal project near Naknek is most part, the range of sea otter habitat any areas from the final designation. currently being permitted. in southwest Alaska is relatively free We refined the GIS data layers used Our Response: The economic analysis from human disturbance. We have to map critical habitat since the addresses potential impacts to tidal clarified this point in this final rule. proposed rule was published in energy projects in Section 5.1.4. This Comment 37: One commenter stated December 2008, resulting in slight section includes a discussion of all tidal that based on their observations of sea changes to the size of some units. Other energy projects that have received a otter movements between Kamishak Bay than this slight revision, our final preliminary permit from FERC. Outside and the Kenai Peninsula, the areas north designation of critical habitat is of the Naknek project, the comment of Cape Douglas should be excluded essentially unchanged from what we does not provide new information about from critical habitat designation. This proposed in December 2008. specific projects not included in the commenter also suggested that sea otters analysis. in the Barren Islands also belong to the Critical Habitat With respect to impacts on wave southcentral Alaska population stock, Critical habitat is defined in section 3 energy projects, little is known for the and this area should also be excluded of the Act as: critical habitat area. While the Makah from critical habitat designation. (1) The specific areas within the Bay Wave Energy Pilot Project discussed Our Response: This comment geographical area occupied by a species, in the analysis is suggestive of potential addresses the discreteness aspect of the at the time it is listed in accordance project modifications that could be DPS justification, which was part of the with the Act, on which are found those undertaken to reduce threats to the otter August 9, 2005, final listing rule (70 FR physical or biological features and its habitat, Makah Bay is in 46366). We recognize that the issue of (a) Essential to the conservation of the Washington State, and conditions are sea otter movements across Cook Inlet is species and thought to be distinctly different from not fully clear; however, the best (b) Which may require special those being designated as critical habitat available scientific information management considerations or in Alaska. Further, no wave energy indicates that the waters of Cook Inlet protection; and projects are currently proposed in are the appropriate boundary between (2) Specific areas outside the critical habitat areas. the southwest and southcentral Alaska geographical area occupied by a species

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at the time it is listed, upon a the best scientific and commercial data recovery plans, habitat conservation determination that such areas are available. Further, our Policy on plans (HCPs), or other species essential for the conservation of the Information Standards Under the conservation planning efforts if new species. Endangered Species Act (published in information available to these planning Conservation, as defined under the Federal Register on July 1, 1994 (59 efforts calls for a different outcome. section 3 of the Act, means the use of FR 34271)), the Information Quality Act all methods and procedures that are (section 515 of the Treasury and General Primary Constituent Elements (PCEs) necessary to bring any endangered Government Appropriations Act for In accordance with section 3(5)(A)(i) species or threatened species to the Fiscal Year 2001 (Pub. L. 106–554; H.R. of the Act and the regulations at 50 CFR point at which the measures provided 5658)), and our associated Information 424.12, in determining which areas under the Act are no longer necessary. Quality Guidelines provide criteria, occupied at the time of listing to Critical habitat receives protection establish procedures, and provide propose as critical habitat, we consider under section 7 of the Act through the guidance to ensure that our decisions areas containing the physical and prohibition against Federal agencies are based on the best scientific data biological features that are essential to carrying out, funding, or authorizing the available. They require our biologists, to the conservation of the species and may destruction or adverse modification of the extent consistent with the Act and require special management critical habitat. Section 7 of the Act with the use of the best scientific data considerations or protection. These requires consultation on Federal actions available, to use primary and original features are the specific primary that may affect critical habitat. The sources of information as the basis for constituent elements (PCEs) laid out in designation of critical habitat does not recommendations to designate critical the appropriate quantity and spatial affect land ownership or establish a habitat. arrangement for the conservation of the refuge, wilderness, reserve, preserve, or When we are determining which areas species. These include, but are not other conservation area. Such should be proposed as critical habitat, limited to: designation does not allow the our primary source of information is 1. Space for individual and government or public to access private generally the information developed population growth and for normal lands. Such designation does not during the listing process for the behavior; require implementation of restoration, species. Additional information sources 2. Food, water, air, light, minerals, or recovery, or enhancement measures by may include the recovery plan for the other nutritional or physiological private landowners. Where the species, articles in peer-reviewed requirements; landowner seeks or requests Federal journals, conservation plans developed 3. Cover or shelter; agency funding or authorization for an by States and counties, scientific status 4. Sites for breeding, reproduction, or activity that may affect a listed species surveys and studies, biological rearing (or development) of offspring; or critical habitat, the consultation assessments, or other unpublished and requirements of section 7 of the Act materials and expert opinion or 5. Habitats that are protected from would apply. However, even in the personal knowledge. disturbance or are representative of the event of a finding of destruction or Habitat is often dynamic, and species historical, geographical, and ecological adverse modification, the landowner’s may move from one area to another over distributions of a species. obligation is not to restore or recover the time. Furthermore, we recognize that We derive the specific primary species, but to implement reasonable designated critical habitat may not constituent elements (PCEs) for the and prudent alternatives to avoid include all of the habitat areas that we southwest Alaska DPS from its destruction or adverse modification of may eventually determine, based on biological needs, as described in the critical habitat. scientific data not now available to the Background section of our proposed For inclusion in a critical habitat Service, are necessary for the recovery rule published at 73 FR 76454 on designation, habitat within the of the species. For these reasons, a December 16, 2008, and the following geographical area occupied by the critical habitat designation does not information. species at the time it was listed must signal that habitat outside the Space for Individual and Population contain the physical and biological designated area is unimportant or may Growth and for Normal Behavior features essential to the conservation of not be required for recovery of the the species. Critical habitat designations species. Sea otters exhibit complex movement identify, to the extent known using the Areas that support populations, but patterns related to habitat best scientific data available, habitat are outside the critical habitat characteristics, social organization, and areas that provide essential life cycle designation, will continue to be subject reproductive biology. It is likely that needs of the species (areas on which are to conservation actions we implement movements differ among populations found the primary constituent elements, under section 7(a)(1) of the Act and our depending on whether a population is at as defined at 50 CFR 424.12(b)). other wildlife authorities. They are also or near carrying capacity or has access Occupied habitat that contains the subject to the regulatory protections to unoccupied suitable habitat into features essential to the conservation of afforded by the section 7(a)(2) jeopardy which it can expand (Riedman and the species meets the definition of standard, as determined on the basis of Estes 1990, p. 58). Most research into critical habitat only if those features the best available scientific information sea otter movements has been may require special management at the time of the agency action. conducted where unoccupied habitat is considerations or protection. Under the Federally funded or permitted projects available to dispersing animals. Early Act, we can designate unoccupied areas affecting listed species outside their research in the Aleutian Islands by as critical habitat only when we designated critical habitat areas may Kenyon (1969, p. 204) also found that determine that the best available result in jeopardy findings in some males have larger home ranges than scientific data demonstrate that the cases. Similarly, critical habitat females and described the female sea designation of that area is essential to designations made on the basis of the otter’s home range as including 8–16 km the conservation needs of the species. best available information at the time of (5.0–9.9 mi) of contiguous coastline. Section 4 of the Act requires that we designation will not control the Male sea otter home ranges are highly designate critical habitat on the basis of direction and substance of future variable. For territorial (breeding) males,

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the area defended is smaller than that of sediment habitats of southeast Alaska, Cover or Shelter a female range, but the territory is not Prince William Sound, and Kodiak Estes et al. (1998, p. 473) believe the necessarily defended year-round and Island support populations of clams that decline of sea otters in southwest Alaska may include larger scale movements to are the primary prey of sea otters. is the result of increased predation, more productive feeding grounds. Throughout most of southeast Alaska, most likely by killer whales (Orcinus Breeding may not occur until a male is burrowing clams (species of Saxidomus, orca). These authors examined a suite of older (7–10 years) and in an established Protothaca, Macoma, and Mya) information and concluded that the population. Little is known about the predominate in the sea otter’s diet recent population decline was likely not home range of non-breeding males. In (Kvitek et al. 1993, p. 172). They due to food limitation, disease, or the listed region, where dramatic account for more than 50 percent of the reduced productivity. Several lines of reduction in numbers have occurred, identified prey, although urchins (S. evidence, including increased frequency even less is known about movement droebachiensis) and mussels (Modiolis of killer whale attacks and significantly patterns and home range sizes (A. modiolis, Mytilus spp., and Musculus higher mortality rates in Kuluk Bay on Doroff, USFWS, pers. comm. 2008). At present, sea otters occur spp.) can also be important. In Prince Adak Island, as compared to Clam throughout nearly all of their former William Sound and Kodiak Island, Lagoon, a protected area that is range in southwest Alaska, albeit at clams account for 34–100 percent of the inaccessible to killer whales, also considerably lower densities than were otter’s prey (Calkins 1978, p. 127; Doroff support this conclusion (Estes et al. present prior to the recent population and Bodkin 1994, p. 202; Doroff and 1998, p. 473). decline that led to the listing of the DPS. DeGange 1994, p. 706). Mussels (Mytilus A shift in distribution toward the Space for individual and population trossulus) apparently become more shoreline has also been observed in the growth and for normal behavior does important for sea otters as a prey base western and central Aleutian Islands, not appear to be a limiting factor for this as the length of occupation by sea otters which may allow otters easier escape DPS. increases, ranging from 0 percent of onto the land. In August 2007, the their prey base at newly occupied sites Service and USGS conducted skiff- Food, Water, Air, Light, Minerals, or at Kodiak to 22 percent of their prey based surveys in the Near and Rat Island Other Nutritional or Physiological groups in the western Aleutians. In Requirements base in long-occupied areas (Doroff and DeGange 1994, p. 709). Crabs (C. addition to recording the number and approximate location of every otter The sea otter is a generalist predator, magister) were once important sea otter sighting, observers also recorded the known to consume a wide variety of prey in eastern Prince William Sound, approximate distance to the nearest different prey species (Kenyon 1969, p. but apparently have been depleted by shore. The median distance to shore for 110; Riedman and Estes 1990, p. 36; otter foraging and are no longer eaten in Estes and Bodkin 2002, p. 847). With 811 sea otters observed was 10 m (32.8 large numbers (Garshelis et al. 1986, p. few exceptions, their prey consist of ft); 90 percent of all otters observed 642). Sea urchins are minor components sessile, or slow-moving, benthic were within 100 m (328.1 ft) (USFWS invertebrates such as mollusks, of the sea otter’s diet in Prince William unpublished information). Aerial survey crustaceans, and echinoderms, Sound and the Kodiak archipelago. In data indicate that in some areas, the including sea urchins. Foraging occurs contrast, the diet in the Aleutian, majority of the remaining sea otter in habitats with rocky and soft sediment Commander, and Kuril Islands is population inhabits sheltered bays and substrates between the high intertidal dominated by sea urchins and a variety coves, which may also provide zone to depths slightly in excess of 100 of fin fish (Kenyon 1969, p. 116; Estes protection from marine predators m (328.1 ft). Preferred foraging habitat is et al. 1982, p. 250). Sea urchins tend to (USFWS unpublished information). generally in depths less than 40 m dominate the diet of low-density sea Canopy-forming kelps (including (131.2 ft) (Riedman and Estes 1990, p. otter populations, whereas more fishes species of Macrocystis, Druehlia, and 31), although studies in southeast are consumed in populations near Nereocystis) provide resting habitat Alaska have found that some animals equilibrium density (Estes et al. 1982, p. (Kenyon 1969, p. 57; Riedman and Estes forage mostly at depths from 40–80 m 250). For unknown reasons, fish are 1990, p. 23), and may also provide (131.2–262.5 ft) (Bodkin et al. 2004, p. rarely consumed by sea otters in regions protection from marine predators (C. 318). east of the Aleutian Islands. Matkin, personal communication). Kelp The diet of sea otters is usually As the population has declined in the forests occur primarily in waters less studied by observing prey items brought past 20 years throughout much of the than 20 m (65.6 ft) in depth (O’Clair and to the surface for consumption, and range of the southwest Alaska DPS of Lindstrom 2000, pp. 41, 57). In addition, therefore diet composition is usually killer whales may be less likely to forage the northern sea otter, prey species such expressed as a percentage of all in shallow, constricted areas less than 2 as sea urchins have increased in both identified prey that belong to a m (6.6 ft) in depth (C. Matkin, personal size and abundance (Estes et al. 1998, p. particular prey species or type. communication). Although the sea otter is known to prey 474). Recent studies of sea otter body Based on our understanding of threats on a large number of species, only a few condition indicate improved overall to the southwest Alaska DPS, we believe tend to predominate in the diet in any health and suggest that limited that features that provide protection particular area. Prey type and size nutritional resources were not the cause from marine predators, especially killer depends on location, habitat type, of the observed population decline whales, are essential to the conservation season, and length of occupation. (Laidre et al. 2006, p. 987). Although of the DPS. Sea otters can be very diverse in their food, water, air, light, minerals, or other diets. Different habitats offer different nutritional or physiological Sites for Breeding, Reproduction, or types of prey. There are about 200 requirements do not appear to be a Rearing (or Development) of Offspring known prey species for sea otters, but limiting factor, availability of sufficient There appears to be a positive the dominant ones that tend to sustain prey resources and areas in which to relationship between shoreline the population are crab, clam, urchin, forage are essential to the conservation complexity and sea otter density and mussel. The predominately soft- of the DPS. (Riedman and Estes 1990, p. 23).

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Although not obligatory, headlands, management considerations or consult under section 7 of the Act, but coves, and bays appear to offer preferred protections. rather a list of those we believe, based resting habitat, particularly to females Based on the above needs and our on current available information, are with pups, presumably because they current knowledge of the life history, reasonably likely to occur. provide protection from high wind and biology, and ecology of the species, we Pollution from various potential sea conditions. Surveys of sea otters in have determined that the southwest sources, including oil spills from southwest Alaska do not indicate that Alaska DPS of the northern sea otter’s vessels, or discharges from oil and gas pup production is a limiting factor for PCEs are: drilling and production, could render the DPS (USFWS and USGS 1. Shallow, rocky areas where marine areas containing the identified physical unpublished information). predators are less likely to forage, which and biological features unsuitable for Bodkin et al. (2004, p. 305) found that are waters less than 2 m (6.6 ft) in use by sea otters, effectively negating 85 percent of all foraging dives by depth; the conservation value of these features. 2. Nearshore waters that may provide female sea otters were in waters less Because of the vulnerabilities to protection or escape from marine than 20 m (65.6 ft) in depth. Although pollution sources, these features may predators, which are those within 100 m this study was conducted in southeast require special management or (328.1 ft) from the mean high tide line; protection through such measures as Alaska, additional studies using time- 3. Kelp forests that provide protection depth recorders indicate that female sea placing conditions on Federal permits from marine predators, which occur in or authorizations to stimulate special otters predominantly forage in waters less than 20 m (65.6 ft) in depth; shallower water than males. operational restraints, mitigative and measures, or technological changes. Habitats Protected From Disturbance or 4. Prey resources within the areas The shipping industry transports Representative of the Historical, identified by PCEs 1, 2, and 3 that are various types of petroleum products Geographical, and Ecological present in sufficient quantity and both as fuel and cargo within the range Distributions of the Species quality to support the energetic of the southwest Alaska DPS. requirements of the species. Information about the types and Within the range of the southwest This final critical habitat designation quantities of both persistent and non- Alaska DPS of the northern sea otter, the encompasses those areas containing the persistent oil has been summarized in a vast majority of sea otter habitats is PCEs necessary to support one or more report on vessel traffic within the undisturbed, and is representative of the of the species’ life history functions and Aleutians subarea (Nuka Research and historical, geographical, and ecological laid out in the appropriate quantity and Planning Group 2006). Persistent fuels distributions of the species. Changes in spatial arrangement essential to the such as #6 bunker oil, bunker C, and climatic conditions, due to both conservation of the DPS. All units in IFO 380 have low dissipation and ‘‘normal’’ climate variability (Hunt and this designation contain some or all of evaporation rates, and will remain on Stabeno 2005, p. 300) and human the PCEs and support multiple life the surface of marine waters or along activities (Schumacher and Kruse 2005, processes. shorelines much longer than non- p. 283), are expected to modify both the persistent fuel such as diesel, gasoline, physical environment and the biota Special Management Considerations or Protections and aviation fuel. Approximately 3,100 within the range of the southwest ship voyages occur through the Alaska DPS. It would be expected that When designating critical habitat, we Aleutians each year. Most of these climate change would have more impact assess whether the occupied areas voyages are by bulk and general freight on sea otters at the southern end of the contain features that are essential to the ships (1,300) and container ships range, but this expectation should be conservation of the species and that may (1,200). The median fuel capacity for tempered by the realization that require special management bulk and general freight ships is 470,000 atmospheric changes can influence considerations or protections. The range gallons of persistent fuel oil; for ecosystems in many complex ways. For of the southwest Alaska DPS of the container ships, the median capacity is example, increased atmospheric carbon northern sea otter is sparsely populated 1.6 million gallons of persistent fuel oil. dioxide is causing increased ocean by humans. There are only 31 populated In addition, there are about 265 voyages acidification, in turn inhibiting the communities located within an area that by motor vehicle carriers with an process of calcification in virtually all contains approximately 18,000 km estimated average fuel capacity of ocean-dwelling species. It is not clear (11,184 mi) of coastline. The human 500,000 gallons of persistent fuel oil. whether climate change will affect sea population within the range of the DPS There are also approximately 22 voyages otter recovery. Therefore it will be is approximately 17,000 persons living by tanker ships transporting about 400 important to monitor these changes and in 31 communities (State of Alaska million gallons of refined oil. The to evaluate them in regard to sea otter Department of Commerce, Community, figures quoted above are for the ecology and population dynamics. and Economic Development Database Aleutians subarea only, which includes 2006). As a consequence, the range of Primary Constituent Elements for the the North Pacific great circle route from the sea otter habitat in southwest Alaska Southwest Alaska DPS of the Northern the west coast of North America to Asia. is relatively free of human disturbances. Sea Otter Information about shipping traffic that Potential activities that could harm the occurs in other parts of the southwest Within the geographical area identified physical and biological Alaska DPS is not well-documented, occupied by the southwest Alaska DPS features include, but are not limited to, though it is presumably on a much of the northern sea otter at the time of dredging or filling associated with smaller scale compared to what occurs listing, we must identify the primary construction of airports, seaports, and through the Aleutians. constituent elements (PCEs) laid out in harbors; commercial shipping; and oil Numerous instances of vessel the appropriate quantity and spatial and gas development and production. incidents have been documented in the arrangement essential to the The following discussion of these Aleutians over the past 15 years, conservation of the DPS (i.e., the activities is not intended to be a including loss of maneuverability, essential physical and biological comprehensive list of all potential grounding, and oil spills (Nuka features) that may require special activities for which the Service may Research and Planning Group 2006, p.

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29). Nearly 500 incidents affecting the spill-response plan as well as 10 subarea (such as survey results and expert seaworthiness of U.S. vessels were plans. The southwest Alaska DPS is opinions). In general, sea otters occupy reported in the Aleutians from 1990 covered by the Aleutian, Bristol Bay, the vast majority of the available habitat through July 2006. U.S. vessels Kodiak, and Cook Inlet subarea plans. In within southwest Alaska. Exceptions reporting incidents were usually smaller addition, ADEC is developing include portions of Kodiak Island where than foreign vessels, and were primarily Geographic Response Strategies (GRS) otters have yet to recolonize their former fishing vessels. An additional 48 that are designed to be a supplement to range, and there may also be some incidents affecting seaworthiness of the Subarea Contingency Plans for Oil individual islands in the Aleutian foreign vessels were reported between and Hazardous Substances Spills and archipelago where otters have 1991 and July 2006. The bulk grain ship Releases. The GRS are the current disappeared (Doroff et al. 2003, p. 58). M/V Selendang Ayu, which ran aground standard for site-specific oil-spill- In general, the range of designated on Unalaska Island in December 2004, response planning in Alaska. critical habitat encompasses all areas is known to have resulted in the death The first and primary phase of an oil- that have been historically occupied by of two sea otters. The long-term impacts spill response is to contain and remove the DPS. of that spill on sea otter habitat use are the oil at the scene of the spill or while We have reviewed available not yet known. it is still on the open water, thereby information that pertains to the habitat Various safeguards have been reducing or eliminating impacts on requirements of this species including established since the 1989 Exxon shorelines or sensitive habitats. If some research published in peer-reviewed Valdez oil spill to minimize the of the spilled oil escapes the first-phase articles and presented in academic likelihood of another spill of containment and removal, the second, theses and agency reports. We also catastrophic proportions in Prince but no less important, phase is to discussed habitat requirements with William Sound. Tankers, other vessels, intercept, contain, and remove the oil in members of the southwest Alaska sea fuel barges, and onshore storage the nearshore area. The intent of phase otter recovery team at several meetings, facilities are potential sources of oil and two is the same as phase one: Remove as well as through email exchanges. The fuel spills that could affect sea otters in the spilled oil before it affects sensitive sea otter recovery team includes the southwest Alaska DPS. A review of environments. If phases one and two are representatives from University of the Alaska Department of not fully successful, a third phase (GRS) Alaska Fairbanks, Fish and Wildlife Environmental Conservation database is designed to protect sensitive areas in Service, University of British Columbia, indicates no crude-oil spills were the path of the oil. The purpose of phase Marine Conservation Alliance, U.S. reported within the range of the three is to protect selected sensitive Geological Survey (USGS), Alaska southwest Alaska DPS during the 10- areas from the impacts of a spill or to Veterinary Pathology Services, year period from July 1, 1995 to June 30, minimize that impact to the maximum Defenders of Wildlife, National Marine 2005. Of the 520 reported spills of extent practical. Critical habitat for the Fisheries Service, The Alaska SeaLife refined products, 82 percent were from southwest Alaska DPS of the northern Center, Alaska Department of Fish and vessels; most of these (70 percent) sea otter will be incorporated into the Game, Smithsonian National Zoological involved quantities smaller than 10 GRS system to facilitate this additional Park, The Alaska Sea Otter and Steller gallons. The majority of vessel spills level of spill response. Sea Lion Commission, University of occurred in the western Aleutian (149), Existing commercial fishing activities, California Santa Cruz, University of eastern Aleutian (107), and Kodiak, and their target species (which are not Alaska Sea Grant Program, and Sand Kamishak, Alaska Peninsula (130) considered prey for sea otters), within Point, Alaska. Information from these management units. Only 7 spills were southwest Alaska primarily occur recovery team discussions was fully reported where the quantity was greater outside of the critical habitat areas in considered and incorporated as than 5,000 gallons of material. The this rule (Funk 2003, p. 2). With the appropriate into this critical habitat largest was the M/V Selendang Ayu, exception of oil spills from shipwrecks, designation. which spilled 321,052 gallons of IFO we do not believe that existing We are designating critical habitat for 380 fuel and an additional 14,680 commercial fishing activities in the southwest Alaska DPS of the gallons of diesel. southwest Alaska have the potential to northern sea otter in areas that were In 2008, the U.S. Coast Guard, the harm the identified physical and occupied at the time of listing and State of Alaska, and the National biological features for the southwest contain sufficient PCEs: (1) To support Academies of Science completed the Alaska DPS of the northern sea otter. life history functions essential to the development of a comprehensive risk conservation of the DPS, and (2) which Criteria Used To Identify Critical assessment for the Aleutian Islands may require special management Habitat (Transportation Research Board of the considerations or protection. Much of National Academies 2008, 225 pp.) As required by section 4(b) of the Act, the range of the DPS occurs within the Although the probability of occurrence we used the best scientific data Aleutian archipelago, and although it is of a catastrophic oil spill may be available in determining areas occupied possible that otters have disappeared relatively small, the potential for at the time of listing that contain from some of the small islands since the disastrous consequences suggests that features essential to the conservation of time of listing, we have no information measures to prevent or respond to spills the southwest Alaska DPS of the that indicates any portion should be may be important to the recovery of the northern sea otter, and areas considered unoccupied habitat. As a southwest Alaska DPS. The Coast Guard unoccupied at the time of listing that are result, we consider the Aleutian and Maritime Transportation Act of essential to the conservation of the DPS, archipelago to be occupied habitat. 2004 (H.R. 2443) requires oil-spill or both. In designating critical habitat Unlike habitats for terrestrial species, contingency plans for vessels over 400 for the southwest Alaska DPS of the some of the various characteristics of gross tons that call on U.S. ports. In northern sea otter, we reviewed the sea otter habitat are poorly mapped. addition to contingency plans for relevant information available, Although shoreline boundaries are vessels of this size class, the Alaska including peer-reviewed journal reasonably well-documented, the Department of Environmental articles, unpublished reports, the final bathymetric data for southwest Alaska Conservation (ADEC) has both a unified listing rule, and unpublished materials exist at a variety of spatial resolutions.

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Benthic substrate types are also poorly primarily in waters less than 20 m (65.6 ranging from mean high tide to 20 m mapped. Other features, such as the ft) in depth (O’Clair and Lindstrom (65.6 ft) in water depth or that occur distribution and abundance of sea otter 2000, pp. 41, 57). In addition to within 100 m (328.1 ft) of the mean high prey species, and the spatial extent of identifying an approximate seaward tide line (or both) therefore contain the kelp beds, may be dynamic over time. extent of kelp forests, the 20-m (65.6-ft) necessary PCEs for protection from This lack of specificity makes it difficult depth contour also encompasses the marine predators (Figure 1). Based on to explicitly identify and map areas that nearshore shallow areas (less than 2 m numerous studies of sea otter foraging contain the PCEs for this DPS beyond a (6.6 ft)) where marine predators may be depths, as well as the distribution of the certain geographic scale. less likely to forage. The 20-m (65.6-ft) remaining sea otter population in Areas that provide protection from depth contour also has considerable nearshore, shallow water areas, we marine predators are likely the most overlap with the nearshore (less than believe that the areas defined by PCEs essential to the conservation of this 100 m (328.1 ft)) areas where otters can 1, 2, and 3 also contain sufficient sea DPS. Despite the absence of information escape predators by hauling out on land. otter prey resources. We have no reason necessary to map these areas with Areas of shallow water less than 20 m to believe that any of the areas within precision, we can define criteria that (65.6 ft) in depth that are not contiguous the critical habitat designation are will contain the essential PCEs. Kelp with the mean high tide line may unable to support the energetic forests that provide resting habitat and provide less protection from marine requirements of this species. protection from marine predators occur predators. Nearshore marine waters BILLING CODE 4310–55–P

BILLING CODE 4310–55–C developed areas that lack PCEs for the publication within the Code of Federal When determining critical habitat southwest Alaska DPS of the northern Regulations may not reflect the boundaries within this final rule, we sea otter. The scale of the map we exclusion of such developed areas, such made every effort to avoid including prepared under the parameters for as piers, docks, harbors, marinas, jetties,

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and breakwaters. Any such structures sea otter. As of the publication date of management considerations or inadvertently left inside critical habitat this final rule, the Recovery Team has protection. Detailed, colored maps of boundaries shown on the map of this met six times, and a draft recovery plan areas designated as critical habitat in final rule have been excluded by text in is in preparation. As the range of the this final rule are available for viewing the final rule and are not designated as southwest Alaska DPS of the northern at http://alaska.fws.gov/fisheries/mmm/ critical habitat. Therefore, Federal sea otter includes approximately 18,000 seaotters/criticalhabitat.htm. Hard actions involving these areas would not km (11,184.7 mi) of coastline, the team copies of maps can be obtained by trigger section 7 consultation with has proposed that the DPS be contacting the Marine Mammals respect to critical habitat and the subdivided into 5 management units, Management Office (see ADDRESSES). requirement of no adverse modification based on criteria such as habitat type The critical habitat areas we describe unless the specific action would affect and population trajectory. In the interest below constitute our current best the PCEs in the adjacent critical habitat. of clarity, we are designating critical assessment of areas that meet the habitat units that correspond to the definition of critical habitat for the DPS. Final Critical Habitat Designation management units proposed by the Table 1 shows the occupied units. The We are designating five units as Recovery Team. Only those areas within 5 units we propose as critical habitat critical habitat for the southwest Alaska each management unit that meet the are: (1) Western Aleutian Unit; (2) DPS of the northern sea otter. In 2006, criteria identified above are being Eastern Aleutian Unit; (3) South Alaska the Service convened a Recovery Team designated as critical habitat–namely, Peninsula Unit; (4) Bristol Bay Unit; and to develop a recovery plan for the those areas that contain one or more (5) Kodiak, Kamishak, Alaska Peninsula southwest Alaska DPS of the northern PCEs and may require special Unit.

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

Occupied at Currently Estimated size of State/Federal Unit 2 2 ownership time of listing? occupied? unit in km (mi ) ratio (percent)

1. Western Aleutian ...... Yes ...... Yes ...... 1,551 (599) 100/0 2. Eastern Aleutian ...... Yes ...... Yes ...... 832 (321) 100/0 3. South Alaska Peninsula ...... Yes ...... Yes ...... 4,946 (1,909) 85/15 4. Bristol Bay ...... Yes ...... Yes ...... 1,080 (417) 96/4 4a. Amak Island ...... Yes ...... Yes ...... 31 (12) 77/23 4b. Izembek Lagoon ...... Yes ...... Yes ...... 337 (130) 100/0 4c. Port Moller/Herendeen Bay ...... Yes ...... Yes ...... 712 (275) 94/6 5. Kodiak, Kamishak, Alaska Peninsula ...... Yes ...... Yes ...... 6,755 (2,607) 89/11

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

We present brief descriptions of all compiled by the National Oceanic and to 20 m (65.6 ft) should be used. For critical habitat units, and reasons why Atmospheric Administration (NOAA), users of NOAA nautical charts, the 10- they meet the definition of critical the U.S. Geological Survey, and the fathom (60-ft) depth contour is a habitat for the southwest Alaska DPS of Service. Consultations under section 7 suitable approximation for the 20-m the northern sea otter, below. of the Act should use the best available (65.6-ft) depth contour. Calculation of areas for units and bathymetric data on a case-by-case Although no lands above mean high subunits that include the 20-m (65.6-ft) basis. In some instances, these data may tide are designated as critical habitat, depth contour as a criterion are be based on other units of measurement ownership of lands adjacent to critical approximations estimated from GIS data (such as feet or fathoms), in which case habitat may be of interest to readers of layers of hydrographic survey data the bathymetric contour that is closest this final rule (Table 2).

TABLE 2—OWNERSHIP STATUS OF LANDS ADJACENT TO CRITICAL HABITAT

Federal State Private Alaska Native Unit (percent) (percent) (percent) (percent)

1. Western Aleutian ...... 80.2 0.0 0.0 19.8 2. Eastern Aleutian ...... 10.2 0.0 0.0 89.8 3. South Alaska Peninsula ...... 21.1 0.4 0.0 78.5 4. Bristol Bay ...... 36.7 41.5 0.0 21.8 4a. Amak Island ...... 100.0 0.0 0.0 0.0 4b. Izembek Lagoon ...... 89.4 0.0 0.0 10.6 4c. Port Moller/Herendeen Bay ...... 4.9 66.1 0.0 29.0 5. Kodiak, Kamishak, Alaska Peninsula ...... 30.2 17.4 0.0 52.4

Total ...... 37.9 8.5 0.0 53.6

Unit 1: Western Aleutian Unit marine waters ranging from the mean tide line. Hydrographic survey data in high tide line to the 20-m (65.6-ft) depth the vicinity of Atka and Amlia islands 2 Unit 1 consists of at least 1,551 km contour as well as waters occurring is insufficient to delineate the 20-m 2 (599 mi ), collectively, of the nearshore within 100 m (328.1 ft) of the mean high (65.6-ft) depth contour, so our area

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calculation may slightly underestimate conveyed to) Alaska Natives. The vast the risk of oil and other hazardous- the total area of this unit. This unit majority (85 percent) of the critical material spills from commercial ranges from Attu Island in the west to habitat within this unit is located within shipping within Bristol Bay. In addition, Kagamil Island in the east, was State of Alaska waters. offshore oil and gas development are occupied at the time of listing, and is The South Alaska Peninsula Unit under consideration in the Lease Sale currently occupied. The majority (80.2 contains all of the PCEs essential for the Area 92 in the North Aleutian Basin percent) of the lands bordering this unit conservation of the southwest Alaska region immediately offshore from this are federally owned within the Alaska DPS of the northern sea otter. Special subunit. An environmental impact Maritime National Wildlife Refuge. In management considerations and statement is in preparation, and will be addition, all critical habitat within this protections may be needed to minimize completed prior to the lease sale. unit is located within State of Alaska the risk of oil and other hazardous- Additional management considerations waters (defined as those within 3 mi material spills from commercial and protections may be needed to (4.82 km) of mean high tide). shipping within this region and along minimize the risk of crude-oil spills The Western Aleutian Unit contains the northern great circle route. associated with oil and gas development all of the PCEs essential for the Unit 4: Bristol Bay Unit and production that may impact this conservation of the southwest Alaska subunit. DPS of the northern sea otter. Special Unit 4 consists of an estimated 1,080 management considerations and km2 (417 mi2) of the nearshore marine Subunit 4b: Izembek Lagoon Subunit protections may be needed to minimize environment. This unit is further Subunit 4b consists of an estimated the risk of oil and other hazardous- subdivided into 3 subunits: (4a) Amak 337 km2 (130 mi2) of the nearshore material spills from commercial Island; (4b) Izembek Lagoon; and (4c) marine environment within the Izembek shipping within the region and along Port Moller/Herendeen Bay. With the Lagoon and Moffett Lagoon systems. Sea the northern great circle route. exception of Amak Island, the coastline otters are known to frequent the lagoon contained within this unit is relatively system and regularly haul out on the Unit 2: Eastern Aleutan Unit simple and lacks kelp forests. For most islands and sandbars that form the Unit 2 consists of an estimated 832 of this unit, the 20-m (65.6-ft) depth northern boundary of these systems, km2 (321 mi2), collectively, of the contour used as a criterion for critical such as Glen, Operl, and Neumann nearshore marine waters ranging from habitat in other units does not identify Islands (USFWS unpublished the mean high tide line to the 20-m features that provide protection from information). Large numbers of otters (65.6-ft) depth contour as well as waters marine predators, and is applicable only have also been observed hauling out occurring within 100 m (328.1 ft) of the to the Amak Island subunit. Other along the edges of the sea ice within the mean high tide line. This unit ranges criteria are used to identify the Izembek lagoon in winter (USFWS unpublished from Samalga Island in the west to Lagoon and Port Moller/Herendeen Bay information). This subunit was Ugamak Island in the east, was occupied subunits, as described below. All three occupied at the time of listing, and is at the time of listing, and is currently subunits within the Bristol Bay unit currently occupied. The majority (89.4 occupied. The majority (89.8 percent) of were occupied at the time of listing, and percent) of the lands bordering this the lands bordering this unit are owned are currently occupied. Additional subunit are federally owned within the or selected by (but not yet conveyed to) information about each subunit is Izembek National Wildlife Refuge. The Alaska Natives. In addition, all the included below. critical habitat within this subunit is critical habitat within this unit is located within State of Alaska waters, Subunit 4a: Amak Island Subunit located within State of Alaska waters. most of which (99 percent) is also The Eastern Aleutian Unit contains all Subunit 4a consists of an estimated 31 within the boundaries of the Izembek of the PCEs essential for the km2 (12 mi2), collectively, of the State Game Refuge. conservation of the southwest Alaska nearshore marine waters ranging from The Izembek Lagoon Subunit contains DPS of the northern sea otter. Special the mean high tide line to the 20-m some of the PCEs (1, 2 and 4) essential management considerations and (65.6-ft) depth contour as well as waters for the conservation of the southwest protections may be needed to minimize occurring within 100 m (328.1 ft) of the Alaska DPS of the northern sea otter. the risk of oil and other hazardous- mean high tide line. This subunit Special management considerations and material spills from commercial surrounds Amak Island in Bristol Bay, protections may be needed to minimize shipping within the region and along was occupied at the time of listing, and the risk of oil and other hazardous- the northern great circle route. is currently occupied. Large groups of material spills from commercial sea otters have been observed within the shipping within Bristol Bay. In addition, Unit 3: South Alaska Peninsula Unit kelp forests within this subunit (USFWS offshore oil and gas development are Unit 3 consists of an estimated 4,946 unpublished information). All of the under consideration in the Lease Sale km2 (1,909 mi2), collectively, of the lands bordering this subunit are Area 92 in the North Aleutian Basin nearshore marine waters ranging from federally owned within the Alaska region immediately offshore from this the mean high tide line to the 20-m Maritime National Wildlife Refuge. subunit. Additional management (65.6-ft) depth contour as well as waters Most (77 percent) of the critical habitat considerations and protections may be occurring within 100 m (328.1 ft) of the within this subunit is located within needed to minimize the risk of crude-oil mean high tide line. Available State of Alaska waters, a small portion spills associated with oil and gas hydrographic survey data for this unit of which (1.2 km2, 0.46 mi2) is also development and production that may have considerably lower spatial located within the boundaries of the impact this subunit. resolution than the other units. This Izembek State Game Refuge. unit ranges from Unimak Island in the The Amak Island Subunit contains all Subunit 4c: Port Moller/Herendeen Bay west to Castle Cape in the east, was of the PCEs essential for the Subunit occupied at the time of listing, and is conservation of the southwest Alaska Subunit 4c consists of an estimated currently occupied. The majority (78.5 DPS of the northern sea otter. Special 712 km2 (275 mi2) of the nearshore percent) of the lands bordering this unit management considerations and marine environment within the Port are owned or selected by (but not yet protections may be needed to minimize Moller and Herendeen Bay systems.

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This subunit was occupied at the time km2, 15.8 mi2) is also located within the adversely affect, listed species or critical of listing, and is currently occupied. boundaries of the Tugidak Island State habitat. Aerial surveys conducted in 2000 and Critical Habitat Area. When we issue a biological opinion 2004, as well as additional reported The Kodiak, Kamishak, Alaska concluding that a project is likely to observations, indicate that these areas Peninsula Unit contains all the PCEs jeopardize the continued existence of a may contain several thousand sea otters essential for the conservation of the listed species or destroy or adversely at any given time (Burn and Doroff southwest Alaska DPS of the northern modify critical habitat, we also provide 2005, p. 277; USFWS unpublished sea otter. Special management reasonable and prudent alternatives to information). The seaward boundary of considerations and protections may be the project, if any are identifiable. We this subunit extends from Point Edward needed to minimize the risk of oil and define ‘‘Reasonable and prudent on the Alaska Peninsula to the western other hazardous-material spills from alternatives’’ at 50 CFR 402.02 as tip of Walrus Island, and from Wolf commercial shipping within this region. alternative actions identified during consultation that: Point on the eastern tip of Walrus Island Effects of Critical Habitat Designation to Entrance Point on the Alaska • Can be implemented in a manner Peninsula. The majority (66.1 percent) Section 7 Consultation consistent with the intended purpose of of the lands bordering to this subunit the action, Section 7(a)(2) of the Act requires • are owned or selected by (but not yet Federal agencies, including the Service, Can be implemented consistent conveyed to) the State of Alaska. Most to ensure that actions they fund, with the scope of the Federal agency’s (94 percent) of the critical habitat within legal authority and jurisdiction, authorize, or carry out are not likely to • this subunit is located within State of destroy or adversely modify critical Are economically and Alaska waters, with a portion (140.8 habitat. Decisions by the 5th and 9th technologically feasible, and • Would, in the Director’s opinion, km2 (54.4 mi2)) located within the Circuit Courts of Appeals have avoid jeopardizing the continued boundaries of the Port Moller State invalidated our definition of existence of the listed species or Critical Habitat Area. ‘‘destruction or adverse modification’’ destroying or adversely modifying The Port Moller/Herendeen Subunit (50 CFR 402.02) (see Gifford Pinchot critical habitat. contains some of the PCEs (1, 2, and 4) Task Force v. U.S. Fish and Wildlife Reasonable and prudent alternatives essential for the conservation of the Service, 378 F.3d 1059 (9th Cir. 2004) can vary from slight project southwest Alaska DPS of the northern and Sierra Club v. U.S. Fish and modifications to extensive redesign or sea otter. Special management Wildlife Service et al., 245 F.3d 434, 442 relocation of the project. Costs considerations and protections may be (5th Cir. 2001)), and we do not rely on associated with implementing a needed to minimize the risk of oil and this regulatory definition when reasonable and prudent alternative are other hazardous-material spills from analyzing whether an action is likely to commercial shipping within Bristol Bay. similarly variable. destroy or adversely modify critical Regulations at 50 CFR 402.16 require In addition, offshore oil and gas habitat. Under the statutory provisions Federal agencies to reinitiate development are under consideration in of the Act, we determine destruction or consultation on previously reviewed the Lease Sale Area 92 in the North adverse modification on the basis of actions in instances where we have Aleutian Basin region immediately whether, with implementation of the listed a new species or subsequently offshore from this subunit. Additional proposed Federal action, the affected designated critical habitat that may be management considerations and critical habitat would remain functional affected and the Federal agency has protections may be needed to minimize (or retain the current ability for the PCEs retained discretionary involvement or the risk of crude-oil spills associated to be functionally established) to serve control over the action (or the agency’s with oil and gas development and its intended conservation role for the discretionary involvement or control is production that may impact this species. subunit. In addition, under section 7(a)(4) of authorized by law). Consequently, the Act, Federal agencies must confer Federal agencies may sometimes need to Unit 5: Kodiak, Kamishak, Alaska request reinitiation of consultation with Peninsula Unit with the Service on any agency action that is likely to result in destruction or us on actions for which formal Unit 5 consists of an estimated 6,755 adverse modification of critical habitat. consultation has been completed, if km2 (2,607 mi2), collectively, of the If a species is listed or critical habitat those actions with discretionary nearshore marine environment ranging is designated, section 7(a)(2) of the Act involvement or control may affect from the mean high tide line to the 20- requires Federal agencies to ensure that subsequently listed species or m (65.6-ft) depth contour as well as activities they authorize, fund, or carry designated critical habitat. waters occurring within 100 m (328.1 ft) out are not likely to jeopardize the Federal activities that may affect the of the mean high tide line. Available continued existence of the species or to southwest Alaska DPS of the northern hydrographic survey data for parts of destroy or adversely modify its critical sea otter or its designated critical habitat this unit have considerably lower habitat. If a Federal action may affect a require section 7 consultation under the spatial resolution than the other units. listed species or its critical habitat, the Act. Activities on State, Tribal, local, or This unit ranges from Castle Cape in the responsible Federal agency (action private lands requiring a Federal permit west to Tuxedni Bay in the east, and agency) must enter into consultation (such as a permit from the U.S. Army includes the Kodiak archipelago. This with us. As a result of this consultation, Corps of Engineers under section 404 of unit was occupied at the time of listing, we document compliance with the the Clean Water Act (33 U.S.C. 1251 et and is currently occupied. Slightly more requirements of section 7(a)(2) through seq.) or a permit from us under section than half (52.4 percent) of the lands our issuance of: 10 of the Act) or involving some other bordering this unit are either owned or 1. A concurrence letter for Federal Federal action (such as funding from the selected by (but not yet conveyed to) actions that may affect, but are not Federal Highway Administration, Alaska Natives. The majority (89 likely to adversely affect, listed species Federal Aviation Administration, or the percent) of the critical habitat within or critical habitat; or Federal Emergency Management this unit is located within State of 2. A biological opinion for Federal Agency) are subject to the section 7 Alaska waters, and a small portion (41.0 actions that may affect, and are likely to consultation process. Federal actions

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not affecting listed species or critical including discharges from oil and gas Aleutian unit, has a completed INRMP habitat, and actions on State, Tribal, drilling and production or spills of that was last updated in 2007. This local, or private lands that are not crude oil, fuels, or other hazardous INRMP recognizes the importance of federally funded or authorized do not materials from vessels, primarily in kelp beds to sea otters (U.S. Air Force require section 7 consultations. harbors or other construction ports for 2007, p. 39), and notes that the only marine vessels. While it is not legal to Application of the ‘‘Adverse impacts to kelp may be from occasional discharge fuel or other hazardous Modification’’ Standard barge traffic. In addition to Eareckson, materials, it does happen more often in the Air Force has a completed INRMP The key factor related to the adverse these areas than in other areas. These for 4 inactive sites (Nikolski, Driftwood modification determination is whether, activities could displace sea otters from Bay, Port Moller, and Port Heiden) with implementation of the proposed areas that provide protection from within the range of the southwest Federal action, the affected critical marine predators. Alaska DPS (U.S. Air Force 2001). habitat would continue to serve its Exemptions All of these sites were deactivated intended conservation role for the between 1977 and 1978, and either species, or would retain its current Application of Section 4(a)(3) of the Act demolished or removed between 1988 ability for the PCEs to be functionally The Sikes Act Improvement Act of and 1994. Of these, the Port Heiden site established. Activities that may destroy 1997 (Sikes Act) (16 U.S.C. 670a) is the only one that includes shoreline or adversely modify critical habitat are required each military installation that areas. All critical habitat designated in those that alter the PCEs to an extent includes land and water suitable for the this rule occurs below the mean high that appreciably reduces the conservation and management of tide line and is therefore not within the conservation value of critical habitat for natural resources to complete an boundaries of the Department of the southwest Alaska DPS of the integrated natural resources Defense facility. Therefore, there are no northern sea otter. Department of Defense lands with a Section 4(b)(8) of the Act requires us management plan (INRMP) by November 17, 2001. An INRMP completed INRMP within the critical to briefly evaluate and describe, in any habitat designation. proposed or final regulation that integrates implementation of the military mission of the installation with designates critical habitat, activities Exclusions Under Section 4(b)(2) of the stewardship of the natural resources involving a Federal action that may Act found on the base. Each INRMP destroy or adversely modify such includes: Application of Section 4(b)(2) of the Act habitat, or that may be affected by such • An assessment of the ecological Section 4(b)(2) of the Act states that designation. needs on the installation, including the Activities that, when carried out, the Secretary must designate and revise need to provide for the conservation of funded, or authorized by a Federal critical habitat on the basis of the best listed species; available scientific data after taking into agency, may affect critical habitat and • A statement of goals and priorities; therefore should result in consultation • A detailed description of consideration the economic impact, for the southwest Alaska DPS of the management actions to be implemented national security impact, and any other northern sea otter include, but are not to provide for these ecological needs; relevant impact of specifying any limited to: and particular area as critical habitat. The 1. Actions that would directly impact • A monitoring and adaptive Secretary may exclude an area from the PCEs that provide protection from management plan. critical habitat if he determines that the marine predators. Such activities could Among other things, each INRMP benefits of such exclusion outweigh the include, but are not limited to, dredging, must, to the extent appropriate and benefits of specifying such area as part filling, and construction of docks, applicable, provide for fish and wildlife of the critical habitat, unless he seawalls, pipelines, or other structures. management; fish and wildlife habitat determines, based on the best scientific Loss of the PCEs could result in enhancement or modification; wetland data available, that the failure to increased predation pressure on the protection, enhancement, and designate such area as critical habitat remaining sea otter population, and restoration where necessary to support will result in the extinction of the potentially affect the conservation of the fish and wildlife; and enforcement of species. In making that determination, DPS. applicable natural resource laws. the legislative history is clear that the 2. Actions that would reduce the The National Defense Authorization Secretary has broad discretion regarding availability of sea otter prey species. Act for Fiscal Year 2004 (Pub. L. 108– which factor(s) to use and how much Such activities could include, but are 136) amended the Act to limit areas weight to give to any factor. not limited to, dredging, filling, eligible for designation as critical In the following sections, we address construction of docks, seawalls, habitat. Specifically, section 4(a)(3)(B)(i) a number of general issues that are pipelines, or other structures, and of the Act (16 U.S.C. 1533(a)(3)(B)(i)) relevant to our analysis under section development of new fisheries for sea now provides: ‘‘The Secretary shall not 4(b)(2) of the Act. otter prey species. Otters that are using designate as critical habitat any lands or Benefits of Designating Critical Habitat critical habitat for protection from other geographical areas owned or marine predators must also be able to controlled by the Department of The process of designating critical feed in these areas. Activities that Defense, or designated for its use, that habitat as described in the Act requires reduce availability of prey may cause are subject to an integrated natural that the Service identify those areas otters to forage outside of these resources management plan prepared within the geographical area occupied protective areas, thus increasing their under section 101 of the Sikes Act (16 by the species at the time of listing on vulnerability to predators. U.S.C. 670a), if the Secretary determines which are found the physical or 3. Actions that would render critical in writing that such plan provides a biological features essential to the habitat areas unsuitable for use by sea benefit to the species for which critical conservation of the species that may otters. Such activities could include, but habitat is proposed for designation.’’ require special management are not limited to, human disturbance or Eareckson Air Station, located on considerations or protection, and those pollution from a variety of sources, Shemya Island within the western areas outside the geographical area

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occupied by the species at the time of jeopardize the continued existence of species, are not appreciably reduced. listing that are essential for the such species. The analysis of effects to Critical habitat designation alone, conservation of the species. In critical habitat is a separate and however, does not require private identifying those areas, the Service must different analysis from that of the effects property owners to undertake specific consider the recovery needs of the to the species. Therefore, the difference steps toward recovery of the species. species, such that, on the basis of the in outcomes of these two analyses Once an agency determines that best scientific and commercial data represents the regulatory benefit of consultation under section 7(a)(2) of the available at the time of designation, the critical habitat. For some species, and in Act is necessary, the process may features essential to the conservation of some locations, the outcome of these conclude informally when the Service the DPS and habitat that is identified, if analyses will be similar, because effects concurs in writing that the proposed managed or protected, could provide for to habitat will often also result in effects Federal action is not likely to adversely the survival and recovery of the DPS. to the species. However, the regulatory affect the species or critical habitat. The identification of areas that standard is different, as the jeopardy contain the features essential to the analysis investigates the action’s impact However, if we determine through conservation of the DPS, or are to survival and recovery of the species, informal consultation that adverse otherwise essential for the conservation while the adverse modification analysis impacts are likely to occur, then formal of the DPS if outside the geographical investigates the action’s effects to the consultation is initiated. Formal area occupied by the DPS at the time of designated critical habitat’s contribution consultation concludes with a biological listing, is a benefit resulting from the to conservation. This will, in some opinion issued by the Service on designation. The critical habitat instances, lead to different results and whether the proposed Federal action is designation process includes peer different regulatory requirements. Thus, likely to jeopardize the continued review and public comment on the critical habitat designations may existence of listed species or result in identified physical and biological provide greater benefits to the recovery destruction or adverse modification of features and areas, and provides a of a species than would listing alone. designated critical habitat. mechanism to educate landowners, For the southwest Alaska DPS of the For critical habitat, a biological State and local governments, and the northern sea otter, when consulting opinion that concludes in a public regarding the potential under section 7(a)(2) of the Act for determination of no destruction or conservation value of an area. This activities in designated critical habitat, adverse modification may recommend helps focus and promote conservation independent analyses would be made additional conservation measures to efforts by other parties by clearly for jeopardy and adverse modification. minimize adverse effects to the primary delineating areas of high conservation In consultations on projects where constituent elements, but such measures value for the DPS, and is valuable to surveys detect high densities of sea would be discretionary on the part of land owners and managers in otters or low densities of sea otters the Federal agency. A biological opinion developing conservation management combined with abundant PCEs, there is that concludes in a determination of no plans for identified areas, as well as for not likely to be a quantifiable difference destruction or adverse modification any other identified occupied habitat or between the jeopardy analysis and the would not include the implementation suitable habitat that may not be adverse modification analysis as we of any reasonable and prudent included in the areas the Service estimate take for this subspecies in alternative, as these are provided for the identifies as meeting the definition of terms of square kilometers of occupied proposed Federal action only when our critical habitat. habitat, and the Act requires Federal biological opinion results in an adverse In general, critical habitat designation agencies to minimize the impact of the modification conclusion. always has educational benefits; taking on the DPS that may result from however, in some cases, they may be implementation of a proposed action. As stated above, the designation of redundant with other educational Furthermore, any upfront modifications critical habitat does not require that any effects. For example, habitat made to the project description to management or recovery actions take conservation plans (HCPs) have minimize the project’s impact on the place on the lands included in the significant public input and may largely critical habitat designation will also designation. Even in cases where duplicate the educational benefits of a minimize the impacts of the taking of consultation is initiated under section critical habitat designation. There are individuals on the DPS as a whole. 7(a)(2) of the Act, the end result of currently no HCPs in place that cover There are two limitations to the consultation is to avoid jeopardy to the any areas within this critical habitat regulatory effect of critical habitat. First, species or adverse modification of its designation for the southwest Alaska a consultation is only required where critical habitat, but not necessarily to DPS of the northern sea otter. Including there is a Federal nexus (an action manage critical habitat or institute lands in critical habitat also would authorized, funded, or carried out by recovery actions on critical habitat. inform State agencies and local any Federal agency)—if there is no Conversely, voluntary conservation governments about areas that could be Federal nexus, the critical habitat efforts implemented through conserved under State laws or local designation of private lands, by itself, management plans institute proactive ordinances. does not restrict actions that may actions over the lands they encompass The consultation provisions under destroy or adversely modify critical and are put in place to remove or reduce section 7(a)(2) of the Act constitute the habitat. Second, the designation only known threats to a species or its habitat, regulatory benefits of critical habitat. As limits destruction or adverse therefore implementing recovery discussed above, Federal agencies must modification. By its nature, the actions. We believe that in many consult with the Service on actions that prohibition on adverse modification is instances the regulatory benefit of may affect critical habitat and must designed to ensure that the conservation critical habitat is minimal when avoid destroying or adversely modifying role and function of those areas that compared to the conservation benefit critical habitat. Federal agencies must contain the physical and biological that can be achieved through also consult with us on actions that may features essential to the conservation of implementing HCPs under section 10 of affect a listed species and refrain from the species, or of unoccupied areas that the Act or other habitat management undertaking actions that are likely to are essential for the conservation of the plans.

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Economic Analysis habitat, with the timeframes for this can be attributed to the designation of In order to consider economic analysis varying by activity. critical habitat are estimated to be impacts, we conducted an economic The economic analysis focuses on the approximately $623,000 using a 7 analysis to estimate the potential direct and indirect costs of the rule. percent discount rate, or about $54,900 economic effect of the designation. The However, economic impacts to land use annualized. These incremental costs DEA (dated May 20, 2009) was made activities can exist in the absence of represent an increase of 31 percent available for public review and critical habitat. These impacts may above the baseline costs associated with comment from June 9, 2009, to July 9, result from, for example, local zoning consultations that address the jeopardy 2009 (74 FR 27271). Substantive laws, State and natural resource laws, standard alone. comments and information received on and enforceable management plans and We have considered and evaluated best management practices applied by the potential economic impact of the the DEA are summarized above in the other State and Federal agencies. critical habitat designation under 4(b)(2) ‘‘Public Comments’’ section and are Economic impacts that result from these of the Act, as identified in the FEA. incorporated into the final analysis, as types of protections are not included in Based on this evaluation, we believe the appropriate. Taking the public the analysis as they are considered to be economic impacts associated with the comments and any relevant new part of the regulatory and policy designation here are neither significant information into consideration, the baseline. nor disproportionate. As a result, and in Service completed a final economic The economic analysis examines light of the benefits of critical habitat analysis (FEA) (dated August 6, 2009) of activities taking place both within and designation discussed previously, we the designation that updates the DEA. adjacent to the designation. It estimates are not excluding any areas from critical The primary purpose of the economic impacts based on activities that are habitat based on economic reasons. The analysis is to estimate the potential ‘‘reasonably foreseeable’’ including, but final economic analysis is available at incremental economic impacts not limited to, activities that are http://www.regulations.gov or upon associated with the designation of currently authorized, permitted, or request from the Marine Mammals critical habitat for the southwest Alaska funded, or for which proposed plans are Management Office (see ADDRESSES). DPS of the northern sea otter. The currently available to the public. information is intended to assist the Accordingly, the analysis bases Application of Section 4(b)(2)—Impacts Secretary in making decisions about estimates on activities that are likely to to National Security whether the benefits of excluding occur within a 20-year timeframe, from Under section 4(b)(2) of the Act, we particular areas from the designation when the proposed rule became consider whether there are an impacts outweigh the benefits of including those available to the public (73 FR 76454; to national security that may exist from areas in the designation. The economic December 16, 2008). The 20-year the designation of critical habitat. analysis considers the economic timeframe was chosen for the analysis Section 4(b)(2) allows the Secretary to efficiency effects that may result from because, as the time horizon for an exclude areas from critical habitat for the designation. In the case of habitat economic analysis is expanded, the reasons of national security if the conservation, efficiency effects generally assumptions on which the projected Secretary determines the benefits of reflect the ‘‘opportunity costs’’ number of projects and cost impacts such an exclusion exceed the benefits of associated with the commitment of associated with those projects are based designating the area as critical habitat. resources to comply with habitat become increasingly speculative. However, this exclusion cannot occur if protection measures (such as lost The primary potential incremental it will result in the extinction of the economic opportunities associated with economic impacts attributed to the species concerned. restrictions on land use). It also critical habitat designation are expected The Department of the Navy addresses how potential economic to be related to oil spill planning and requested that we exclude impacts are likely to be distributed, response (19 percent), marine and approximately 3,418 km2 (1,320 mi2) in including an assessment of any local or coastal construction activities (22 Unit 5 from designation as critical regional impacts of habitat conservation percent), and water quality management habitat for national security reasons. and the potential effects of conservation (36 percent). The FEA estimates total After thorough consideration of this activities on government agencies, potential incremental economic impacts request and an analysis of the respective private businesses, and individuals. The in areas designated as critical habitat benefits of including these lands and economic analysis measures lost over the next 20 years to be $668,000 excluding these lands from critical economic efficiency associated with ($58,900 annualized) in present value habitat, we have not excluded the residential and commercial terms using a 7 percent discount rate requested areas from final designation development and public projects and (including areas considered for as critical habitat, as explained above in activities, such as economic impacts on exclusion under section 4(b)(2) of the our response to comment 19. water management and transportation Act). projects, Federal lands, small entities, The FEA estimates the largest impacts Exclusions Based on Other Relevant and the energy industry. This of the critical habitat rule will result Impacts information can be used by the from administrative costs of Under section 4(b)(2), we consider Secretary to assess whether the effects of consultation under section 7 of the Act. any other relevant impacts from critical the designation might unduly burden a If the rate of consultations continues habitat designation, in addition to particular group or economic sector. into the future at a similar rate and economic impacts and impacts on Finally, the economic analysis looks distribution as past consultations, an national security. We consider a number retrospectively at costs that have been estimated 600 consultations will occur of factors, including whether incurred since the date we listed the over the 20-year time frame for the landowners have developed any HCPs southwest Alaska DPS of the northern analysis. These costs result from the or other management plans for the area, sea otter as threatened on August 9, need to address adverse modification in and whether there are conservation 2005 (70 FR 46366), and considers those a consultation that would occur even in partnerships that would be encouraged costs that may occur in the years the absence of critical habitat. These by designation of, or exclusion from, following the designation of critical total additional administrative costs that critical habitat. In addition, we look at

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any tribal issues, and consider the 4. Whether the rule raises novel legal exploration and development, marine government-to-government relationship or policy issues. and coastal construction activities, and of the United States with tribal entities. water quality management. Specifically, Regulatory Flexibility Act (5 U.S.C. 601 We also consider any social impacts that we identified 12 small entities that may et seq.) might occur because of the designation. be affected by these activities (3 are in In preparing this final rule, we have Under the Regulatory Flexibility Act the deep sea freight transportation determined that there are currently no (5 U.S.C. 601 et seq., as amended by the business, 2 are in the general HCPs, management plans, or Small Business Regulatory Enforcement construction business, 3 are government conservation partnerships for the Fairness Act (SBREFA) of 1996), jurisdictions, and 4 are in the seafood southwest Alaska DPS of the northern whenever an agency is required to processing business). In estimating the sea otter, and this final designation does publish a notice of rulemaking for any numbers of small entities potentially not include any tribal lands. We proposed or final rule, it must prepare affected, we considered whether the anticipate no impact to tribal lands, and make available for public comment activities of these entities may entail partnerships, or HCPs from this critical a regulatory flexibility analysis that any Federal involvement. Critical habitat designation. Thus, we are not describes the effect of the rule on small habitat designation will not affect excluding any areas from this final entities (i.e., small businesses, small activities that do not have any Federal designation based on other relevant organizations, and small government involvement; designation of critical impacts. jurisdictions), as described below. habitat affects activities conducted, Accordingly, given the relatively However, no regulatory flexibility funded, or authorized by Federal small potential economic effects and analysis is required if the head of an agencies. other effects of designating critical agency certifies the rule will not have a Once this critical habitat designation habitat for the southwest Alaska DPS of significant economic impact on a takes effect, Federal agencies must substantial number of small entities. the northern sea otter, and the consult with us under section 7 of the Based on our FEA of the designation, we regulatory, educational and Act if their activities may affect provide our analysis for determining informational benefits of critical habitat, designated critical habitat. we are not excluding any areas from the whether the designation of critical Consultations to avoid the destruction final designation. habitat for the southwest Alaska DPS of or adverse modification of critical the northern sea otter will result in a Editorial Change to the Table at 50 CFR habitat will be incorporated into the significant economic impact on a 17.11(h) existing consultation process. substantial number of small entities. We also make one editorial change to According to the Small Business In order to determine whether it is the northern sea otter’s entry in the List Administration, small entities include appropriate for our agency to certify that of Endangered and Threatened Wildlife small organizations, such as this rule will not have a significant at 50 CFR 17.11(h). Specifically, we independent nonprofit organizations, economic impact on a substantial update the entry to accurately reflect the and small governmental jurisdictions number of small entities, we considered citation of the special rule for this DPS, including school boards and city and in the FEA the potential impacts which was published on August 15, town governments that serve fewer than resulting from implementation of 2006, at 71 FR 46864. In that final rule, 50,000 residents, as well as small conservation actions related to the we inadvertently neglected to update businesses (13 CFR 121.201). Small designation of critical habitat for the the entry to note the special rule at 50 businesses include manufacturing and southwest Alaska DPS of the northern CFR 17.40(p). This editorial change will mining concerns with fewer than 500 sea otter on each of the 12 small entities ensure the entry for the northern sea employees, wholesale trade entities discussed above. As described in otter in the List of Endangered and with fewer than 100 employees, retail Appendix A of the FEA, the potential Threatened Wildlife at 50 CFR 17.11(h) and service businesses with less than $5 impacts are likely to be associated with is complete and accurate. million in annual sales, general and construction, oil spill response activities, and water quality issues. The Required Determinations heavy construction businesses with less than $27.5 million in annual business, average annualized incremental impacts Regulatory Planning and Review— special trade contractors with less than to small entities ranges from $2,407 for Executive Order 12866 $11.5 million in annual business, and seafood processors to $4,367 for deep The Office of Management and Budget agricultural businesses with annual sea freight transporters, applying a 7 (OMB) has determined that this final sales less than $750,000. To determine percent discount rate. We therefore rule is not significant and has not if potential economic impacts to these conclude that costs to small entities will reviewed this final rule under Executive small entities are significant, we not be significant. Please refer to the Order 12866 (E.O. 12866). OMB bases considered the types of activities that FEA for a more detailed discussion of its determination upon the following might trigger regulatory impacts under potential economic impacts. four criteria: this designation, as well as types of In summary, we have considered 1. Whether the rule will have an project modifications that may result. In whether the designation will result in a annual effect of $100 million or more on general, the term ‘‘significant economic significant economic impact on a the economy or adversely affect an impact’’ is meant to apply to a typical substantial number of small entities. We economic sector, productivity, jobs, the small business firm’s business have identified 12 small entities that environment, or other units of the operations. may be impacted by the critical habitat government. To determine if the designation of designation. For the above reasons and 2. Whether the rule will create critical habitat for the southwest Alaska based on currently available inconsistencies with other Federal DPS of the northern sea otter will affect information, we certify that the agencies’ actions. a substantial number of small entities, designation will not have a significant 3. Whether the rule will materially we considered the number of small economic impact on a substantial affect entitlements, grants, user fees, entities affected within particular types number of small business entities. loan programs, or the rights and of economic activities, such as oil spill Therefore, a regulatory flexibility obligations of their recipients. planning and response, oil and gas analysis is not required.

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Energy Supply, Distribution, or Use— assistance.’’ It also excludes ‘‘a duty State sources (or both). Therefore, a Executive Order 13211 arising from participation in a voluntary Small Government Agency Plan is not On May 18, 2001, the President issued Federal program,’’ unless the regulation required. ‘‘relates to a then-existing Federal an Executive Order (E.O. 13211; Actions Takings—Executive Order 12630 Concerning Regulations That program under which $500,000,000 or more is provided annually to State, In accordance with E.O. 12630 Significantly Affect Energy Supply, (Government Actions and Interference Distribution, or Use) on regulations that local, and [T]ribal governments under entitlement authority,’’ if the provision with Constitutionally Protected Private significantly affect energy supply, Property Rights), we have analyzed the distribution, and use. E.O. 13211 would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps potential takings implications of requires agencies to prepare Statements upon, or otherwise decrease, the Federal designating critical habitat for the of Energy Effects when undertaking Government’s responsibility to provide southwest Alaska DPS of the northern certain actions. Offshore oil and gas funding,’’ and the State, local, or Tribal sea otter in a takings implications development are under consideration in governments ‘‘lack authority’’ to adjust assessment. Critical habitat designation the Lease Sale Area 92 in the North accordingly. At the time of enactment, does not affect landowner actions that Aleutian Basin region immediately these entitlement programs were: do not require Federal funding or offshore from the three subunits of the Medicaid; AFDC work programs; Child permits, nor does it preclude Bristol Bay critical habitat unit. We do Nutrition; Food Stamps; Social Services development of habitat conservation not expect this final rule to significantly Block Grants; Vocational Rehabilitation programs or issuance of incidental take affect energy supplies, distribution State Grants; Foster Care, Adoption permits to permit actions that do require (including shipping channels), or use Assistance, and Independent Living; Federal funding or permits to go because most oil and gas development Family Support Welfare Services; and forward. The takings implications activities will not overlap with the Child Support Enforcement. ‘‘Federal assessment concludes that this habitats used by northern sea otters, and private sector mandate’’ includes a designation of critical habitat for the we do not expect the activities to cause regulation that ‘‘would impose an southwest Alaska DPS of the northern significant alteration of the PCEs. Any enforceable duty upon the private sea otter does not pose significant proposed development project likely sector, except (i) a condition of Federal takings implications for lands within or will have to undergo section 7 assistance or (ii) a duty arising from affected by the designation. consultation to ensure that the actions participation in a voluntary Federal Federalism—Executive Order 13132 will not destroy or adversely modify program.’’ designated critical habitat. The designation of critical habitat In accordance with E.O. 13132 Consultations may entail modifications does not impose a legally binding duty (Federalism), this final rule does not to the project to minimize the potential on non-Federal Government entities or have significant Federalism effects. A adverse effects to northern sea otter private parties. Under the Act, the only Federalism assessment is not required. critical habitat. A spill-response plan regulatory effect is that Federal agencies In keeping with Department of the will have to be developed to minimize must ensure that their actions do not Interior and Department of Commerce the chance that a spill would have destroy or adversely modify critical policy, we requested information from, negative effects on sea otters or critical habitat under section 7. While non- and coordinated development of, this habitat. However, we conduct Federal entities that receive Federal critical habitat designation with thousands of consultations every year funding, assistance, or permits, or that appropriate State resource agencies in throughout the United States, and in otherwise require approval or Alaska. The designation of critical almost all cases, we are able to authorization from a Federal agency for habitat in areas currently occupied by accommodate both project and species’ an action, may be indirectly impacted the southwest Alaska DPS of the needs. We expect that to be the case by the designation of critical habitat, the northern sea otter imposes no additional here. Therefore, this action is not a legally binding duty to avoid restrictions to those currently in place significant energy action, and no destruction or adverse modification of and, therefore, has little incremental Statement of Energy Effects is required. critical habitat rests squarely on the impact on State and local governments and their activities. The designation Unfunded Mandates Reform Act (2 Federal agency. Furthermore, to the may have some benefit to these U.S.C. 1501 et seq.) extent that non-Federal entities are indirectly impacted because they governments because the areas that In accordance with the Unfunded receive Federal assistance or participate contain the features essential to the Mandates Reform Act (2 U.S.C. 1501 et in a voluntary Federal aid program, the conservation of the species are more seq.), we make the following findings: Unfunded Mandates Reform Act does clearly defined, and the primary 1. This rule will not produce a not apply, nor does critical habitat shift constituent elements of the habitat Federal mandate. In general, a Federal the costs of the large entitlement necessary to the conservation of the mandate is a provision in legislation, programs listed above onto State species are specifically identified. This statute, or regulation that would impose governments. information does not alter where and an enforceable duty upon State, local, or 2. We do not believe that this rule will what federally sponsored activities may Tribal governments, or the private significantly or uniquely affect small occur. However, it may assist local sector, and includes both ‘‘Federal governments because the areas being governments in long-range planning intergovernmental mandates’’ and designated as critical habitat occur (rather than having them wait for case- ‘‘Federal private sector mandates.’’ within State of Alaska waters. The State by-case section 7 consultations to These terms are defined in 2 U.S.C. of Alaska does not fit the definition of occur). 658(5)–(7). ‘‘Federal intergovernmental ‘‘small governmental jurisdiction.’’ mandate’’ includes a regulation that Waters adjacent to Native-owned lands Civil Justice Reform—Executive Order ‘‘would impose an enforceable duty are still owned and managed by the 12988 upon State, local, or [T]ribal State of Alaska. In most cases, In accordance with E.O. 12988 (Civil governments’’ with two exceptions. It development around Native villages is Justice Reform), the Office of the excludes ‘‘a condition of Federal happening with funding from Federal or Solicitor has determined that the rule

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does not unduly burden the judicial (Endangered Species Act and (Douglas County v. Babbitt, 48 F.3d system and that it meets the Subsistence Uses in Alaska), we readily 1495 (9th Cir. 1995), cert. denied 516 requirements of sections 3(a) and 3(b)(2) acknowledge our responsibilities to U.S. 1042 (1996)). of the Order. We have are designating work directly with Alaska Natives in References Cited critical habitat in accordance with the developing programs for healthy provisions of the Act. This final rule ecosystems, to acknowledge that tribal A complete list of all references cited uses standard property descriptions and lands are not subject to the same in this final rulemaking is available identifies the primary constituent controls as Federal public lands, to upon request from the Field Supervisor, elements within the designated areas to remain sensitive to Indian culture, and Marine Mammals Management Office assist the public in understanding the to make information available to Alaska (see ADDRESSES). habitat needs of the southwest Alaska Natives. As all critical habitat units Author(s) DPS of the northern sea otter. designated in this final rule occur Paperwork Reduction Act of 1995 (44 seaward from the mean high tide line, The primary authors of this package U.S.C. 3501 et seq.) we have determined that there are no are staff members of the Marine Alaska Native lands occupied at the Mammals Management Office (see This rule does not contain any new time of listing that contain the features ADDRESSES). collections of information that require essential for the conservation of the List of Subjects in 50 CFR Part 17 approval by OMB under the Paperwork southwest Alaska DPS of the northern Reduction Act of 1995 (44 U.S.C. 3501 sea otter. Therefore, we have not Endangered and threatened species, et seq.). This rule will not impose designated any critical habitat for the Exports, Imports, Reporting and recordkeeping or reporting requirements southwest Alaska DPS of the northern recordkeeping requirements, on State or local governments, sea otter on Alaska Native lands. Transportation. individuals, businesses, or We do not expect this rule to have any organizations. An agency may not Regulation Promulgation impact on Alaska Native subsistence conduct or sponsor, and a person is not ■ required to respond to, a collection of activities. All subsistence hunting takes Accordingly, we amend part 17, information unless it displays a place in or on State lands or waters. subchapter B of chapter I, title 50 of the currently valid OMB control number. Unless subsistence hunting is Code of Federal Regulations, as set forth determined to be ‘‘materially and below: Government-to-Government negatively impacting the DPS,’’ then Relationship With Tribes harvest would not be regulated. PART 17—[AMENDED] In accordance with the President’s National Environmental Policy Act ■ 1. The authority citation for part 17 memorandum of April 29, 1994, (NEPA) continues to read as follows: Government-to-Government Relations with Native American Tribal It is our position that, outside the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Governments (59 FR 22951), E.O. 13175, jurisdiction of the Circuit Court of the 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. and the Department of the Interior’s United States for the Tenth Circuit, we manual at 512 DM 2, we readily do not need to prepare environmental ■ 2. In § 17.11(h), revise the entry for acknowledge our responsibility to analyses as defined by NEPA (42 U.S.C. ‘‘Otter, northern sea’’ under communicate meaningfully with 4321 et seq.) in connection with ‘‘MAMMALS’’ in the List of Endangered recognized Federal Tribes on a designating critical habitat under the and Threatened Wildlife to read as government-to-government basis. In Act. We published a notice outlining follows: accordance with Secretarial Order 3206 our reasons for this determination in the of June 5, 1997 (American Indian Tribal Federal Register on October 25, 1983 § 17.11 Endangered and threatened Rights, Federal-Tribal Trust (48 FR 49244). This assertion was wildlife. Responsibilities, and the Endangered upheld by the Circuit Court of the * * * * * Species Act), and Secretarial Order 3225 United States for the Ninth Circuit (h) * * *

Species Historic range Vertebrate population where en- Status When Critical Special Common name Scientific name dangered or threatened listed habitat rules

MAMMALS

******* Otter, northern Enhydra lutris U.S.A., (AK, WA) Southwest Alaska, from Attu Is- T 764 17.95(a) 17.40(p) sea. kenyoni. land to Western Cook Inlet, in- cluding Bristol Bay, the Kodiak Archipelago, and the Barren Is- lands.

*******

■ 3. In § 17.95, amend paragraph (a) by species appears in the table at Northern Sea Otter (Enhydra lutris adding an entry for ‘‘Northern Sea Otter § 17.11(h), to read as follows: kenyoni), Southwest Alaska Distinct (Enhydra lutris kenyoni), Southwest Population Segment: § 17.95 Critical habitat—fish and wildlife. Alaska Distinct Population Segment,’’ in (1) Critical habitat units are in Alaska, the same alphabetical order that the (a) Mammals. as described below. * * * * *

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(2) The primary constituent elements and (2)(iii) of this entry that are present the National Oceanic and Atmospheric of critical habitat for the southwest in sufficient quantity and quality to Administration. To estimate the size of Alaska distinct population segment support the energetic requirements of each critical habitat unit, the data were (DPS) of the northern sea otter are: the species. projected into Alaska Standard Albers (i) Shallow, rocky areas where marine (3) Critical habitat does not include Conical Equal Area on the North predators are less likely to forage, which manmade structures (including, but not American Datum of 1983. Given the are in waters less than 2 m (6.6 ft) in limited to, docks, seawalls, pipelines, or large geographic range of this DPS, some depth; other structures) and the land on which two-dimensional areas appear as one- (ii) Nearshore waters within 100 m they are located existing within the dimensional features at these map (328.1 ft) from the mean high tide line; boundaries on the effective date of this scales. (iii) Kelp forests, which occur in rule. waters less than 20 m (65.6 ft) in depth; (4) Critical habitat map units. (5) Note: Index map of critical habitat and Boundaries of critical habitat were for the southwest Alaska DPS of the (iv) Prey resources within the areas derived from GIS data layers of northern sea otter follows: identified in paragraphs (2)(i), (2)(ii), hydrographic survey data developed by BILLING CODE 4310–55–P

BILLING CODE 4310–55–C Amchitka, Amlia, Amukta, Anagaksik, Koniuji, Little Kiska, Little Sitkin, Little (6) Unit 1: Western Aleutian. All Asuksak, Atka, Attu, Aziak, Bobrof, Tanaga, Nizki, Ogliuga, Oglodak, Rat, contiguous waters from the mean high Buldir, Carlisle, Chagula, Chuginadak, Sadatanak, Sagchudak, Salt, Seguam, tide line to the 20-m (65.6-ft) depth Chugul, Crone, Davidof, Elf, Gareloi, Segula, Semisopochnoi, Shemya, contour as well as waters within 100 m Great Sitkin, Herbert, Igitkin, Ilak, Skagul, Tagadak, Tagalak, Tanaga, (328.1 ft) of the mean high tide line that Kagalaska, Kagamil, Kanaga, Kanu, Tanaklak, and Ulak. occur adjacent to the following islands: Adak, Agattu, Alaid, Amatignak, Kasatochi, Kavalga, Khvostof, Kiska,

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(7) Unit 2: Eastern Aleutian. All tide line to the 20-m (65.6-ft) depth the mean high tide line to the 20-m contiguous waters from the mean high contour as well as waters within 100 m (65.6-ft) depth contour as well as waters tide line to the 20-m (65.6-ft) depth (328.1 ft) of the mean high tide line that within 100 m (328.1 ft) of the mean high contour as well as waters within 100 m occur adjacent to Amak Island. tide line that occur adjacent to the (328.1 ft) of the mean high tide line that (ii) Subunit 4b: Izembek Lagoon. All Alaska Peninsula from Castle Cape occur adjacent to the following islands: waters from mean high tide line that (56° 14.5’ N, 158° 7.0’ W) eastward to Aiktak, Akutan, Amaknak, Arangula, occur within the polygon bounded by Cape Douglas (58.852° N, 153.250° W), Atka, Avatanak, Baby Islands, Bogoslof, Glen, Operl, and Neumann Islands to and northward in Cook Inlet to Redoubt Egg, Hog, Kaligagan, Rootok, Samalga, the north and the Alaska Peninsula to Point (60.285° N, 152.417° W), and Sedanka, Tigalda, Ugamak, Umnak, the south, and further defined by the adjacent to the following islands: Unalaska, Unalga, and Vsevidof. following latitude/longitude Afognak, Aghik, Aghiyuk, Aiaktalik, (8) Unit 3: South Alaska Peninsula. coordinates: 55.249° N, 162.990° W; Akhiok, Aliksemit, Amook, Anowik, All contiguous waters from the mean 55.255° N, 162.984° W from Cape Ashiak, Atkulik, Augustine, Ban, Bare, high tide line to the 20-m (65.6-ft) depth Glazenap to Glen Island; 55.324° N, Bear, Central, Chirikof, Chisik, Chowiet, contour as well as waters within 100 m 162.901° W; 55.333° N, 162.888° W from Dark, David, Derickson, Dry Spruce, (328.1 ft) of the mean high tide line that Glen Island to Operl Island; 55.409° N, Eagle, East Amatuli, East Channel, occur adjacent to the Alaska Peninsula 162.683° W; 55.408°N, 162.621° W from Garden, Geese, Hartman, Harvester, from False Pass (54.242° N, 163.363° W) Operl Island to Neumann Island; and Hydra, Kak, Kateekuk, Kiliktagik, to Castle Cape (56.242° N, 158.117° W), 55.447° N, 162.582° W; 55.447° N, Kiukpalik, Kodiak, Kumlik, Long, and adjacent to the following islands: 162.577° W from Neumann Island to Marmot, Miller, Nakchamik, Ninagiak, Andronica, Atkins, Big Koniuji, Bird, Moffet Point. Nord, Nordyke, Poltava, Raspberry, Brother, Caton, Chankliut, Chernabura, (iii) Subunit 4c: Port Moller/ Sally, Shaw, Shuyak, Sitkalidak, Cherni, Chiachi, Deer, Dolgoi, Egg, Herendeen Bay. All waters from mean Sitkanak, Spruce, Sud, Sugarloaf, Goloi, Guillemot, Inner Iliask, Jacob, high tide line that occur within the Suklik, Sundstrom, Sutwick, Takli, Karpof, Korovin, Little Koniuji, polygon bounded by Walrus Island to Terrace, Tugidak, Twoheaded, Ugak, Mitrofania, Nagai, Near, Outer Iliask, the north and the Alaska Peninsula to Ugalushik, Uganik, Unavikshak, Paul, Peninsula, Pinusuk, Poperechnoi, the south, and further defined by the Ushagat, West Amatuli, West Augustine, Popof, Road, Sanak, Shapka, Simeonof, following latitude/longitude West Channel, Whale, and Woody. ° ° Spectacle, Spitz, Turner, Ukolnoi, coordinates: 56.000 N, 160.877 W; * * * * * Ukolnoi, Unga, and Unimak Island from 56.020° N, 160.854° W from Point Scotch Cap (54.390° N, 164.745° W) to Edward to Walrus Island; and Dated: September 23, 2009. False Pass. 56.020° N, 160.805° W; 55.979° N, Jane Lyder, (9) Unit 4: Bristol Bay. This unit 160.584° W from Wolf Point to Entrance Acting Assistant Secretary for Fish and contains three subunits: Point. Wildlife and Parks. (i) Subunit 4a: Amak Island. All (10) Unit 5: Kodiak, Kamishak, Alaska [FR Doc. E9–24087 Filed 10–7–09; 8:45 am] contiguous waters from the mean high Peninsula. All contiguous waters from BILLING CODE 4310–55–P

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