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Designation of Critical Habitat for the Southwest Alaska Distinct Population Segment of the Northern Sea Otter; Final Rule

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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 VerDate Nov<24>2008 19:03 Oct 07, 2009 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\08OCR3.SGM 08OCR3 srobinson on DSKHWCL6B1PROD with RULES3 51988 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations 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 VerDate Nov<24>2008 19:03 Oct 07, 2009 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\08OCR3.SGM 08OCR3 srobinson on DSKHWCL6B1PROD with RULES3 Federal Register / Vol. 74, No. 194 / Thursday, October 8, 2009 / Rules and Regulations 51989 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.
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