Endangered and Threatened Wildlife and Plants; Termination of the Southern Sea Otter Translocation Program, 53381-53396 [2011-21556]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 166 (Friday, August 26, 2011)]
[Proposed Rules]
[Pages 53381-53396]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21556]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-FHC-2011-0046; 94310-1337-0000-D2]
RIN 1018-AX51


Endangered and Threatened Wildlife and Plants; Termination of the 
Southern Sea Otter Translocation Program

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
remove the regulations that govern the southern sea otter (Enhydra 
lutris nereis) translocation program, including the establishment of an 
experimental population of southern sea otters, and all associated 
management actions. We are also proposing to amend the Authority 
citation for 50 CFR part 17 by removing the reference to Public Law 99-
625, the statute that authorized the Secretary to promulgate 
regulations establishing the southern sea otter translocation program. 
Removal of the regulations will terminate the program. We are proposing 
this action because we believe that the southern sea otter 
translocation program has failed to fulfill its purpose, as outlined in 
the southern sea otter translocation plan, and that our recovery and 
management goals for the species cannot be met by continuing the 
program. Our conclusion is based, in part, on an evaluation of the 
program against specific failure criteria established at the program's 
inception. This proposed action would terminate the designation of the 
experimental population of southern sea otters, abolish the southern 
sea otter translocation and management zones, and eliminate the current 
requirement to remove southern sea otters from San Nicolas Island and 
the management zone. This proposed rule would also eliminate future 
actions, required under the current regulations, to capture and 
relocate southern sea otters for the purpose of establishing an 
experimental population, and to remove southern sea otters in 
perpetuity from an ``otter-free'' management zone. As a result, it 
would allow southern sea otters to expand their range naturally into 
southern California waters. We have prepared a

[[Page 53382]]

revised draft supplemental environmental impact statement (SEIS) and an 
initial regulatory flexibility analysis (IRFA) to accompany this 
proposed rule.

DATES: We will consider comments on the proposed rule, associated 
revised draft SEIS (which includes a revised draft translocation 
program evaluation as Appendix C), and the IRFA that are received or 
postmarked on or before October 24, 2011 or at a public hearing. We 
will hold two public informational open houses from 5 p.m. to 6 p.m., 
each followed by a public hearing from 6 p.m. to 8 p.m., on October 4, 
2011, and October 6, 2011, at the locations identified in the ADDRESSES 
section.

ADDRESSES: Written Comments: You may submit comments on the proposed 
rule, the revised draft SEIS, and the IRFA by one of the following 
methods:
    [cir] Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Enter Keyword or ID box, enter FWS-R8-FHC-
2011-0046, which is the docket number for this rulemaking. Then click 
on the Search button. On the resultant screen, you may submit a comment 
by clicking on ``Submit a Comment.''
    [cir] By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-FHC-2011-0046; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    [cir] In person: Individuals may attend a public hearing and 
present oral or written comments, or both, on the proposed rule, 
revised draft SEIS, or the IRFA.
    We will not accept e-mail or faxes. We will post all information 
received on https://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Public 
Comments section below for more details).
    Copies of Documents: The proposed rule, revised draft SEIS, and 
IFRA are available by the following methods:
    [cir] Federal eRulemaking Portal: Go to https://www.regulations.gov. 
In the Enter Keyword or ID box, enter FWS-R8-FHC-2011-0046, which is 
the docket number for this rulemaking. Then click on the Search button. 
On the resultant screen, you may view supporting documents by clicking 
on the ``Open Docket Folder'' icon.
    [cir] Agency Web site: You can view supporting documents on our Web 
site at https://www.fws.gov/ventura/.
    [cir] In person: You can make an appointment, during normal 
business hours, to view the documents, comments, and materials in 
person at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, 2493 Portola Road, Suite B, Ventura, CA 93003-7726; by 
telephone (805/644-1766); by facsimile (805/644-3958); or by visiting 
our Web site at https://www.fws.gov/ventura/. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.
    Public Hearings: We will hold two public informational open houses, 
each followed by a public hearing, at Fleischmann Auditorium, Santa 
Barbara Museum of Natural History, 2559 Puesta Del Sol, Santa Barbara, 
CA 93105 on October 4, 2011, and at La Feliz Room, Seymour Marine 
Discovery Center, Long Marine Laboratory, 100 Shaffer Road, Santa Cruz, 
CA 95060 on October 6, 2011. See the DATES section above for the times 
of these hearings.

FOR FURTHER INFORMATION CONTACT: Lilian Carswell, at the above Ventura 
street address, by telephone (805/644-1766), by facsimile (805/644-
3958), or by electronic mail (Lilian_Carswell@fws.gov). Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We wish to ensure that any final action resulting from this 
proposed rule will be based on information that is as accurate as 
possible. Therefore, we invite tribal and governmental agencies, the 
scientific community, industry, and other interested parties to submit 
comments or recommendations concerning any aspect of this proposed 
rule, the revised draft SEIS, or the IFRA. Comments should be as 
specific as possible. In addition, please include sufficient 
information with your comments to allow us to authenticate any 
scientific or commercial data you reference or provide. In particular, 
we seek comments concerning the following:
    (1) The reasons why the southern sea otter translocation program, 
including the management and translocation zones and associated 
regulations, should or should not be terminated, including information 
that supports the need for any changes to the proposed rule;
    (2) Current or planned activities in the subject area and their 
possible effects on southern sea otters that have not been adequately 
considered in the proposed rule, revised draft SEIS, and IRFA;
    (3) Any foreseeable economic or other impacts resulting from the 
proposed termination of the southern sea otter translocation program 
that have not been adequately considered in the proposed rule, revised 
draft SEIS, and IRFA;
    (4) Any substantive information on real or potential effects on 
southern sea otters of the proposed termination of the southern sea 
otter translocation program that have not been adequately considered in 
the proposed rule, revised draft SEIS, and IRFA; and
    (5) Any actions that could be considered in lieu of, or in 
conjunction with, the proposed rule that would provide equivalent 
opportunity for the recovery of the southern sea otter.
    Prior to issuing a final rule on this proposed action, we will take 
into consideration all comments and any additional information we 
receive. Such information may lead to a final rule that differs from 
this proposal. All comments and recommendations, including names and 
addresses, will become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule, revised draft SEIS, or IRFA by one of the methods listed in the 
ADDRESSES section. We will not accept comments sent by e-mail or fax or 
to an address not listed in the ADDRESSES section. Finally, we will not 
consider hand-delivered comments that we do not receive, or mailed 
comments that are not postmarked, by the date specified in the DATES 
section. Comments must be submitted to https://www.regula- tions.gov 
before midnight (Eastern Time) on the date specified in the DATES 
section.
    We will post your entire comment--including your personal 
identifying information--at https://www.regulations.gov. If your written 
comment includes your street address, phone number, or e-mail address, 
you may request at the top of your document that we withhold this 
information from public review. However, we cannot guarantee that we 
will be able to do so. We will post hardcopy submissions at https://www.regulations.gov. Please note that comments submitted to this Web 
site are not immediately viewable. When you submit a comment, the 
system receives it immediately. However, the comment will not be 
publicly viewable until we post it, which might not occur until several 
days after submission.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at https://www.regulations.gov, or by

[[Page 53383]]

appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see ADDRESSES and 
FOR FURTHER INFORMATION CONTACT).

Public Hearing

    We have scheduled two formal public hearings to afford the general 
public and all interested parties with an opportunity to make formal 
oral comments or to submit written comments in person on the proposed 
rule, revised draft SEIS, or IRFA.
    We will hold the public hearings at the locations listed in 
ADDRESSES on the dates listed in DATES. The public hearings will last 
from 6 p.m. to 8 p.m. We will hold a public informational open house 
prior to each hearing from 5 pm to 6 pm to provide an additional 
opportunity for the public to gain information and ask questions about 
the proposed rule. This open house session should assist interested 
parties in preparing substantive comments on the proposed rule.
    Persons needing reasonable accommodations in order to attend and 
participate in a public hearing should contact the Ventura Fish and 
Wildlife Office, at the address or phone number listed in the FOR 
FURTHER INFORMATION CONTACT section as soon as possible. In order to 
allow sufficient time to process requests, please contact us for 
assistance no later than one week before the hearing.
    Written comments submitted during the comment period receive equal 
consideration with comments presented at a public hearing. All comments 
we receive at the public hearing, both verbal and written, will be 
considered in making our final decision.

Background

Previous Federal Actions

    On January 14, 1977, we listed the southern sea otter as a 
threatened species under the ESA (16 U.S.C. 1531 et seq.), on the basis 
of its small population size, its greatly reduced range, and the 
potential risk from oil spills (42 FR 2965). We established a recovery 
team for the species in 1980, and approved a recovery plan on February 
3, 1982. In the recovery plan, we identified the translocation of 
southern sea otters as an effective and reasonable recovery action, 
acknowledging that a translocated southern sea otter colony could 
impact shellfish fisheries that had developed in areas formerly 
occupied by southern sea otters. The objectives of southern sea otter 
translocation, as stated in the 1982 recovery plan, included: (1) 
Establishing a second colony (or colonies) sufficiently distant from 
the parent population such that a smaller portion of the southern sea 
otter range would be affected in the event of a large-scale oil spill; 
and (2) establishing a database for identifying the optimal sustainable 
population level for the southern sea otter. We anticipated that 
translocation would ultimately result in a larger population size and a 
more continuous distribution of animals throughout the southern sea 
otter's historic range.
    Under the ESA, the Secretary has inherent authority to establish 
new or translocated populations of listed species. Section 10(j) of the 
ESA provides the Secretary with additional flexibility to relax the 
protective provisions of the ESA when translocating a population of a 
listed species by allowing the Secretary to designate the translocated 
population as an experimental population. However, the southern sea 
otter is protected under both the ESA and the MMPA, and at the time, 
the MMPA did not contain similar provisions. This inconsistency was 
resolved in the case of the southern sea otter translocation program by 
the passage of Public Law (Pub. L.) 99-625 (Fish and Wildlife Programs: 
Improvement; Section 1. Translocation of California Sea Otters) on 
November 7, 1986, which specifically authorized development of a 
translocation plan for southern sea otters administered in cooperation 
with the affected State.
    If the Secretary of the Interior chose to develop a translocation 
plan under Pub. L. 99-625, the plan was required to include: (1) The 
number, age, and sex of southern sea otters proposed to be relocated; 
(2) the manner in which southern sea otters were to be captured, 
translocated, released, monitored, and protected; (3) specification of 
a zone into which the experimental population would be introduced 
(translocation zone); (4) specification of a zone surrounding the 
translocation zone that did not include the range of the parent 
population or adjacent range necessary for the recovery of the species 
(management zone); (5) measures, including an adequate funding 
mechanism, to isolate and contain the experimental population; and (6) 
a description of the relationship of the implementation of the plan to 
the status of the species under the ESA and determinations under 
section 7 of the ESA. The purposes of the management zone were to: (1) 
Facilitate the management of southern sea otters and the containment of 
the experimental population within the translocation zone; and (2) 
prevent, to the maximum extent feasible, conflicts between the 
experimental population and fishery resources within the management 
zone. Any southern sea otter found within the management zone was to be 
treated as a member of the experimental population. We were required to 
use all feasible, nonlethal means to capture southern sea otters in the 
management zone and to return them to the translocation zone or to the 
range of the parent population.
    On August 15, 1986, we published a proposed rule to establish an 
experimental population of southern sea otters at San Nicolas Island, 
Ventura County, California, in conjunction with a management zone from 
which sea otters would be excluded (51 FR 29362). Concurrently, we 
released a draft environmental impact statement (EIS) that analyzed the 
impacts of six alternatives, which included establishing a program to 
translocate southern sea otters from their then-current range along the 
central coast of California to areas of the northern coast of 
California, the southern coast of Oregon, or San Nicolas Island off the 
coast of southern California. We identified translocation to San 
Nicolas Island as our preferred alternative, with the management zone 
including the coastline from Point Conception to the Mexican border and 
all of the offshore islands except San Nicolas Island. On May 8, 1987, 
we made available our final EIS (52 FR 17486). A detailed translocation 
plan meeting the requirements of Public Law 99-625 was included as an 
appendix to the final EIS. On August 11, 1987, we published a final 
rule providing implementing regulations for the translocation program 
(52 FR 29754); these regulations are codified at 50 CFR 17.84(d). These 
regulations define the boundaries of the translocation and management 
zones, provide the framework for the program, and include a set of 
criteria for determining if the translocation should be considered a 
failure.

Implementation of the Translocation Program

    The purpose of the southern sea otter translocation program was to: 
(1) Implement a primary recovery action for the southern sea otter; and 
(2) obtain data for assessing southern sea otter translocation and 
containment techniques, population dynamics, ecological relationships 
with the nearshore community, and effects on the donor population of 
removing individual southern sea otters for translocation (52 FR 29754; 
August 11, 1987). The translocation of southern sea otters was intended 
to advance southern

[[Page 53384]]

sea otter recovery, with the ultimate goal of delisting the species 
under the ESA. Through translocation, we hoped to establish a self-
sustaining southern sea otter population (experimental population) that 
would provide a safeguard in the event that the parent southern sea 
otter population was adversely affected by a catastrophic event, such 
as an oil spill. We expected that, to achieve this aim, the colony at 
San Nicolas Island would need to grow to a size such that it could 
remain viable while furnishing up to 25 sea otters per year for up to 3 
years to repopulate affected areas of the parent range. Based on the 
magnitude of oil spills that had occurred up to that time, San Nicolas 
Island appeared to be sufficiently distant from the parent range to 
provide a reasonable safeguard in the event of such a catastrophic 
occurrence.
    On August 24, 1987, we began to implement the translocation plan by 
moving groups of southern sea otters from the coast of central 
California to San Nicolas Island. The translocation plan allowed for a 
maximum of 70 southern sea otters to be moved to San Nicolas Island 
during the first year of the program (USFWS 1987). This number could be 
supplemented with up to 70 animals annually (up to 250 total) in 
subsequent years, if necessary, to ensure the success of the 
translocation and to prevent the colony from declining into an 
irreversible downward trend. Assuming that a core population of 70 
southern sea otters could be maintained through translocation, we 
anticipated that the experimental population could be established 
within as few as 5 or 6 years. In this context, the term 
``established'' had a specific meaning: When at least 150 southern sea 
otters resided at the island and the population had a minimum annual 
recruitment of 20 animals (52 FR 29754; August 11, 1987).
    Between August 1987 and March 1990, we captured 252 southern sea 
otters along the central California coast and released 140 at San 
Nicolas Island. More than 100 of the captured sea otters were deemed 
unsuitable for translocation and released near their capture sites, and 
6 of the 252 animals died of stress-related conditions before 
translocation to San Nicolas Island. Some sea otters died as a result 
of translocation, many swam back to the parent population, and some 
moved into the management zone. As of March 1991, approximately 14 
independent (non-pup) southern sea otters (10 percent of those 
translocated) were thought to remain at the island.
    Because of the unexpected mortalities and high emigration 
encountered during the first year, we amended our regulations for the 
translocation program in 1988 (53 FR 37577; September 27, 1988). The 
amendments were intended to minimize stress on captured sea otters, to 
improve the survival of translocated animals, and to minimize the 
dispersal of translocated sea otters from the translocation zone. 
Specifically, we provided more flexibility in selecting the ages of sea 
otters for translocation, eliminated the restriction to capture them 
only within an August to mid-October timeframe, eliminated the 
requirement to move a specified number of sea otters previously 
implanted with transmitters, provided the flexibility either to 
transport them immediately or to hold them on the mainland before 
releasing them at San Nicolas Island, and eliminated the requirement to 
translocate a minimum of 20 animals at a time.
    The fate of approximately half the sea otters taken to San Nicolas 
Island was never determined, although an intense effort was made to 
locate translocated animals at San Nicolas Island, in the management 
zone, and in the parent range. In 1991, we stopped translocating sea 
otters to San Nicolas Island due to high rates of dispersal and poor 
survival. However, we continued monitoring the sea otters remaining in 
the translocation zone.
    In December 1987, in coordination with the California Department of 
Fish and Game, we began capturing and moving southern sea otters that 
entered the designated management zone. Containment efforts were 
intended to keep the management zone free of otters, in accordance with 
Public Law 99-625 and our implementing regulations. Containment 
operations consisted of three interdependent activities: (1) 
Surveillance of the management zone; (2) capture of southern sea otters 
in the management zone; and (3) relocation of captured animals to the 
parent range or San Nicolas Island.
    Between December 1987 and February 1993, 24 southern sea otters 
were captured, removed from the management zone, and released in the 
parent range. Of these, two sea otters were captured twice in the 
management zone, despite being released at the northern end of the 
parent range after their first removal. In February 1993, two sea 
otters that had been recently captured in the management zone were 
found dead shortly after their release in the range of the parent 
population. In total, four sea otters were known or suspected to have 
died within 2 weeks of being moved from the management zone. We were 
concerned that sea otters were dying as a result of our containment 
efforts; therefore, in 1993, we suspended all sea otter capture 
activities in the management zone to evaluate capture and transport 
methods. We recognized that available capture techniques, which had 
proven to be less effective and more labor-intensive than originally 
predicted, were not an efficient means of containing sea otters. From 
1993 to 1997, few sea otters were reported in the management zone, and 
there appeared to be no immediate need to address sea otter 
containment. In 1997, the California Department of Fish and Game 
notified us that it intended to end its sea otter research project and 
would no longer be able to assist if we resumed capturing sea otters in 
the management zone.
    In 1998, a group of approximately 100 southern sea otters moved 
from the parent range into the northern end of the management zone, 
inaugurating a pattern of seasonal movements of large numbers of sea 
otters into and out of the management zone. Subsequent radio-telemetry 
studies have determined that these animals are moving great distances 
throughout their range and are an important component of the population 
(i.e, the same territorial males that hold territories and sire pups 
within the center of the range may be found seasonally aggregated in 
``male areas,'' often at the range ends) (Tinker et al. 2006). At the 
same time, rangewide counts of the southern sea otter population 
indicated a decline of approximately 10 percent between 1995 and 1998. 
In light of the decline in the southern sea otter population, we were 
concerned about the potential effects on the parent population of 
moving the large number of southern sea otters that had moved into the 
management zone. We asked the Southern Sea Otter Recovery Team, a team 
of biologists with expertise pertinent to southern sea otter recovery, 
for their recommendation regarding the capture and removal of southern 
sea otters in the management zone. The recovery team recommended that 
we not move southern sea otters from the management zone to the parent 
population because moving large groups of southern sea otters and 
releasing them within the parent range would be disruptive to the 
social structure of the parent population. We agreed with their 
recommendation.
    In order to notify stakeholders of our intended course of action, 
we held two public meetings in August 1998. At these meetings, we 
provided information on the status of the translocation program, 
solicited general comments and recommendations, and

[[Page 53385]]

announced that we intended to reinitiate consultation under section 7 
of the ESA for the containment program and to begin the process of 
evaluating the failure criteria established for the translocation 
program. Subsequent to these meetings, the group of technical 
consultants (a body composed of representatives from the fishery and 
environmental communities, as well as State and Federal agencies) to 
the Southern Sea Otter Recovery Team was expanded to assist in 
evaluating the translocation program. We provided updates on the 
translocation program and the status of the southern sea otter 
population to the California Coastal Commission, the Marine Mammal 
Commission, and the California Fish and Game Commission in 1998 and 
1999.
    In March 1999, we distributed a draft evaluation of the 
translocation program to interested parties for their comment. The 
draft document included the recommendation that we declare the 
translocation program a failure because fewer than 25 sea otters 
remained in the translocation zone, and reasons for the translocated 
sea otters' emigration or mortality could not be identified or 
remedied. We received comments from State and Federal agencies and the 
public following release of the draft for review. Some comments 
supported declaring the translocation program a failure, while others 
opposed it. The majority of respondents cited new information that 
became available after publication of our 1987 EIS and record of 
decision for the program. Many respondents encouraged us to look at new 
alternatives that were not identified in our 1987 EIS or corresponding 
implementing regulations.
    During the same period, we prepared a draft biological opinion, 
pursuant to section 7 of the ESA, evaluating the containment aspects of 
the southern sea otter translocation program. We distributed the draft 
to interested parties for comment on March 19, 1999, and issued a final 
biological opinion on July 19, 2000. Our reinitiation of consultation 
was prompted by the receipt of substantial new information on the 
population status, behavior, and ecology of the southern sea otter that 
revealed adverse effects of containment that were not previously 
considered. In the biological opinion, we cited the following 
information and circumstances as prompting reinitiation:
    (1) In 1998 and 1999, southern sea otters moved into the management 
zone in much greater numbers than in previous years;
    (2) Analysis of carcasses indicated that southern sea otters were 
being exposed to environmental contaminants and diseases that could be 
affecting the health of the population throughout California;
    (3) Rangewide counts of southern sea otters indicated that numbers 
were declining;
    (4) Recent information, in particular the observed effects of the 
Exxon Valdez oil spill, indicated that southern sea otters at San 
Nicolas Island would not be isolated from the potential effects of a 
single large oil spill; and
    (5) The capture and release of large groups of southern sea otters 
could result in substantial adverse effects on the parent population.
    The biological opinion concluded with our assessment that 
continuation of the containment program would likely jeopardize the 
continued existence of the species on the grounds that: (1) Reversal of 
the southern sea otter's population decline is essential to the 
survival and recovery of the species, whereas continuation of 
containment could cause the direct deaths of individuals and disrupt 
social behavior in the parent range, thereby exacerbating population 
declines; and (2) expansion of the southern sea otter's distribution is 
essential to the survival and recovery of the species, whereas 
continuation of the containment program would artificially restrict the 
range to the area north of Point Conception, thereby increasing the 
vulnerability of the species to oil spills, disease, and stochastic 
events.
    On July 27, 2000, we published in the Federal Register a notice of 
intent to prepare a supplement to our 1987 EIS on the southern sea 
otter translocation program (65 FR 46172), and on January 22, 2001, we 
issued a policy statement regarding the capture and removal of southern 
sea otters in the designated management zone (66 FR 6649). Based on our 
July 2000 biological opinion, we determined that the containment of 
southern sea otters was not consistent with the requirement of the ESA 
to avoid jeopardy to the species. The notice advised the public that we 
would not capture and remove southern sea otters from the management 
zone pending completion of our reevaluation of the southern sea otter 
translocation program, which would include the preparation of a 
supplement to our 1987 EIS and release of a final evaluation of the 
translocation program that contains an analysis of failure criteria.
    Public scoping meetings were announced in the July 27, 2000, issue 
of the Federal Register (65 FR 46172) and were held in Santa Barbara, 
California, on August 15, 2000, and in Monterey, California, on August 
17, 2000. We also convened the technical consultants to the Southern 
Sea Otter Recovery Team on September 26, 2000, to discuss scoping of 
the supplement. In April 2001, we published a scoping report that 
identified alternatives we would consider in the supplement and 
summarized comments received during the scoping period.
    On April 3, 2003, we made available our Final Revised Recovery Plan 
for the Southern Sea Otter (68 FR 16305; USFWS 2003, https://www.fws.gov/ventura/). This document updated the original recovery plan 
published in 1982. The revised recovery plan incorporated significant 
revisions, including a shift in focus from translocation as a primary 
recovery action to efforts to reduce the mortality of prime-aged 
animals. Based on the recommendations of the recovery team, the revised 
recovery plan concluded that additional translocations were not the 
best way to accomplish the objective of increasing the range and number 
of southern sea otters in California. According to the revised plan, 
range expansion of sea otters in California would occur more rapidly if 
the existing population were allowed to recover autonomously than it 
would under a recovery program that included actively translocating sea 
otters. The revised plan also recommended that it would be in the best 
interest of southern sea otter recovery to declare the translocation 
program a failure, to discontinue maintenance of an otter-free zone, 
and to allow the sea otters currently at San Nicolas Island to remain 
there.
    On October 7, 2005, we made available a draft SEIS on the 
translocation program (70 FR 58737). A draft evaluation of the 
translocation program was included as Appendix C. We solicited comments 
on both the draft SEIS and the draft evaluation during the public 
comment period, which began October 7, 2005 (70 FR 58737), and ended 
March 6, 2006 (70 FR 77380). Comments we received during the 5-month 
comment period, including those addressing the translocation program 
evaluation, are summarized in Appendix G to the revised draft SEIS.
    As of December 2010, up to 46 independent southern sea otters have 
been counted at San Nicolas Island. Dependent pups are frequently 
observed with these animals. Data from quarterly counts indicate that 
the population has fluctuated between 13 and 46 individuals since July 
1990. One sea otter pup was born at San Nicolas Island during the first 
year of the translocation program (1987-88), and new pups have been 
observed in each subsequent year. At least 151 pups are known to have

[[Page 53386]]

been born at the island since the program's inception.
    At present, it is likely that most, if not all, of the southern sea 
otters at San Nicolas Island are offspring of those originally 
translocated to the island. This is because the original animals were 
translocated more than 2 decades ago, and the average life expectancy 
of southern sea otters in the wild is 10 to 15 years. Although it is 
possible that sea otters could disperse from the mainland range to San 
Nicolas Island, we have no information to indicate that any exchange of 
animals between these two locations has occurred subsequent to the 
return of many of the translocated sea otters to the mainland range in 
the early years of the program. To date, we have gathered a significant 
amount of data to assess capture, transport, reintroduction, and 
containment techniques. However, the goal of implementing a primary 
recovery action for the southern sea otter remains unfulfilled. The 
original intention, to create a colony that would provide a safeguard 
in the event that the parent southern sea otter population was 
adversely affected by a catastrophic event, such as an oil spill, has 
not been accomplished.

Availability of Revised Draft SEIS

    Concurrent with publication of this proposed rule, we are releasing 
a revised draft SEIS. The revised draft SEIS updates and responds to 
comments received on the draft SEIS released in 2005, discusses details 
of the events of the translocation program from 1982 to the present, 
analyzes a range of alternatives for the southern sea otter 
translocation program, and includes a detailed draft evaluation of the 
program as Appendix C. The preferred alternative in the revised draft 
SEIS is to terminate the southern sea otter translocation program and, 
further, to allow southern sea otters in the former translocation and 
management zones to remain there upon termination of the program. 
Allowing sea otters to remain at San Nicolas Island and in the 
management zone upon termination of the translocation program is 
contrary to 50 CFR 17.84(d)(8)(vi) of the current regulations, which 
requires removal of sea otters from both locations if the translocation 
program is terminated. This proposed rule would implement the 
recommendations of the Final Revised Recovery Plan for the Southern Sea 
Otter, which is also the preferred alternative in the revised draft 
SEIS. This proposed rule would terminate the southern sea otter 
translocation program through removal of the regulations at 50 CFR 
17.84(d) that established and govern implementation of the 
translocation program. Among the regulatory requirements that would be 
eliminated by the removal of 50 CFR 17.84(d), in its entirety, is the 
current requirement to remove sea otters from San Nicolas Island and 
from the management zone if the translocation program is terminated.

Assessment of Failure Criteria Identified in Translocation Plan

    Public Law 99-625 authorized southern sea otter translocation and 
provided requirements for a southern sea otter translocation plan 
should we pursue such a plan. It did not address the possibility of the 
program's failure. As a consequence, it did not specify criteria that 
would be used to determine whether the program had failed, nor did it 
recommend actions that should be taken in the case of failure. When we 
developed the translocation plan and implementing regulations for the 
program, we received public comment asking us to define what 
constituted failure of the program and what actions we would take if 
the program failed. We responded by delineating specific failure 
criteria in the 1987 Translocation Plan (52 FR 29754; August 11, 1987).
    The purpose of the failure criteria was to identify circumstances 
under which we would generally consider the translocation program to 
have failed. The five failure criteria were defined before any 
translocations of southern sea otters were undertaken and without the 
benefit of what we know today about the translocation, containment, and 
recovery needs of southern sea otters. The criteria focus on the status 
of the translocated population and, in hindsight, do not address all 
the circumstances that are relevant to a complete evaluation of the 
program. For example, the failure criteria do not address the 
possibility that containment might not be successfully accomplished 
because of southern sea otters entering the management zone from the 
mainland range rather than from the population at San Nicolas Island, 
the possibility that the founding population of the San Nicolas Island 
colony might be fewer than 70 animals, or even the possibility that an 
``established'' population at San Nicolas Island (as defined at 52 FR 
29754; August 11, 1987) may be insufficient to attain the recovery 
goals established for the program. Similarly, the failure criteria do 
not anticipate the possibility that the capture and relocation of sea 
otters from the management zone could result in the deaths of some 
animals. Ultimately, failure is determined by our inability to attain 
the objectives of the translocation program, which are clearly set out 
in the final rule for the establishment of an experimental population 
of southern sea otters (52 FR 29754; August 11, 1987).
    In the draft translocation program evaluation (Appendix C to the 
revised draft SEIS), we find that the translocation program meets 
failure criterion 2. A summary of our analysis of each failure 
criterion in the draft translocation program evaluation is given below.
    Criterion 1: If, after the first year following initiation of 
translocation or any subsequent year, no translocated southern sea 
otters remain within the translocation zone, and the reasons for 
emigration or mortality cannot be identified and/or remedied.
    Criterion 1 has not been met. Southern sea otters have been 
observed in the translocation zone at San Nicolas Island every year 
since the beginning of the program.
    Criterion 2: If, within 3 years from the initial transplant, fewer 
than 25 southern sea otters remain in the translocation zone and the 
reason for emigration or mortality cannot be identified and/or 
remedied.
    Criterion 2 has been met. The initial transplant occurred in August 
1987. Within 3 years of the initial transplant (August 1990), a maximum 
of 17 sea otters (14 independent animals and 3 pups) resided in the 
translocation zone.
    We chose to delay declaring the translocation program a failure in 
1990 because southern sea otters were reproducing, dispersal into the 
management zone had abated, and the California Department of Fish and 
Game expressed a desire to continue zonal management of southern sea 
otters. Although sea otters at the island continue to reproduce, the 
colony remains small to this day; dispersal of sea otters from the 
parent range into the management zone is now regularly occurring; and 
the California Department of Fish and Game informed us in 1997 that it 
would no longer be able to assist us if we resumed capturing sea otters 
in the management zone.
    We consider emigration from San Nicolas Island to be the primary 
reason for the small size of the population (17 sea otters, including 
pups) remaining at the island within 3 years of the initial transplant. 
Fifty-four (54) translocated sea otters were later detected elsewhere 
(either back in the mainland range or in southern California waters). 
The number of sea otters resighted in the mainland range (36), despite 
the absence of a focused effort to identify them there (efforts were 
focused instead at San Nicolas Island and in the management zone), 
suggests that additional sea otters

[[Page 53387]]

may have returned without being detected. There is some evidence of sea 
otter mortality at San Nicolas Island (three sea otters were found dead 
at San Nicolas Island within days of being translocated), but no 
additional deaths of translocated sea otters at San Nicolas Island were 
verified. Of the animals that remain unaccounted for, it seems likely 
that most either emigrated successfully and escaped further detection 
or attempted to emigrate but died before reaching suitable habitat.
    Although high rates of dispersal had been seen in all earlier sea 
otter translocations (Estes et al. 1989), we believed that the 
translocation to San Nicolas Island would not result in the significant 
dispersal of animals because of the abundance of prey items, the 
apparent suitability of the habitat, and the perceived barrier imposed 
by the surrounding deep water. After the first year of translocation, 
we made significant changes to the program with the intent of 
minimizing or eliminating emigration (53 FR 37577; September 27, 1988). 
These changes were implemented during the second year of the program, 
when we selected younger sea otters for translocation, transported sea 
otters more quickly and in smaller groups, abandoned the use of holding 
pens at the island, and released newly translocated sea otters in the 
vicinity of sea otters already residing at the island. Despite our 
efforts, none of these changes appeared to result in a decrease in 
emigration. In the final year of the translocation effort, we attempted 
to gain more information on sea otter movements by implanting radio 
transmitters in sea otters immediately prior to their transport to San 
Nicolas Island. Two of the initial three southern sea otters that 
received implants died before they could be transported to the island, 
causing us to abandon this effort.
    We conclude that the translocation program has failed under 
criterion 2. We believe that emigration from San Nicolas Island is the 
primary reason that substantially fewer than 25 otters remained in the 
translocation zone within 3 years of the initial transplant. Although 
we modified the program significantly after the first year in an 
attempt to reduce emigration and otherwise reduce sea otter mortality 
associated with the program, we were unable to remedy the situation. 
Therefore, failure criterion 2 has been met.
    The fact that the translocation program has failed under criterion 
2 does not necessarily mean that the sea otter colony at San Nicolas 
Island is destined to disappear. In fact, it appears to have a low 
cumulative probability of extinction (Carswell 2008). However, the 
final rule establishing the program clearly states, ``The Service does 
not consider the mere presence of sea otters in the translocation zone 
as an indication that a new population is established'' (52 FR 29754 at 
29774; August 11, 1987). The colony would be considered ``established'' 
when at least 150 southern sea otters resided at the island and the 
population had a minimum annual recruitment of 20 animals (52 FR 29754 
at 29774; August 11, 1987). The initial high rate of dispersal of 
translocated sea otters from San Nicolas Island is the primary cause of 
failure under this criterion not only because of its direct effect on 
the subsequent size of the San Nicolas Island colony, but also because 
of its implications for the recovery strategy at the heart of the 
program: the intended function of the San Nicolas Island population as 
a self-sustaining ``reserve colony for providing stock to restore 
subsequently damaged areas'' in the southern sea otter's range (52 FR 
29754 at 29774; August 11, 1987). The high rate of dispersal of 
translocated sea otters suggests it is unlikely that the colony will 
ever be large enough to supply the numbers of sea otters necessary to 
perform a successful translocation and re-establishment of population 
in the mainland range if the parent population were reduced or 
eliminated by a catastrophic event.
    Criterion 3: If, after 2 years following the completion of the 
transplant phase, the experimental population is declining at a 
significant rate, and the translocated southern sea otters are not 
showing signs of successful reproduction (i.e., no pupping is 
observed); however, termination of the project under this and the 
previous criterion may be delayed, if reproduction is occurring and the 
degree of dispersal into the management zone is small enough that the 
effort to remove southern sea otters from the management or no-otter 
zone would be acceptable to us and the affected State.
    We are unable to evaluate whether the program has failed under 
criterion 3 because we never reached the minimum number of sea otters 
at San Nicolas Island required to complete the transplant phase of the 
program. The translocation plan defines the transplant phase as ending 
when there are at least 70 healthy southern sea otters of mixed ages 
and sexes within the translocation zone and we determine that the 
population is increasing due to natural reproduction. Although we 
translocated twice this number, we never achieved the requisite core 
population of 70 animals.
    From a practical perspective, however, the transplant phase ended 
when the last sea otter was translocated to the island in 1990. The 
population declined at a significant rate from the program's inception 
in 1987 to 1993, at which time the number of independent sea otters at 
the island was 12. Although pups were observed from 1987 to 1993, there 
appeared to be little or no recruitment into the population. The 15 sea 
otters at the island in 1993 (12 independent animals and 3 pups) were 
fewer than the minimum number (25) required to avoid a declaration of 
failure under failure criterion 2; however, under provisions of failure 
criterion 3 we could delay termination of the program because pupping 
was occurring and dispersal of translocated sea otters into the 
management zone had abated.
    The experimental population has fluctuated in number since 1993, 
and now appears to be increasing overall; reproduction continues to 
occur. Although pupping is occurring, it is not certain that the San 
Nicolas colony will persist. If it does persist, it will have been 
founded on a small subset of the core number of 70 healthy sea otters 
of mixed ages and sexes that were intended to found the population, a 
fact that has implications for the genetic makeup of the resulting 
population. The current rate of emigration from the island is unknown, 
but we now know that the deep ocean channels surrounding the island do 
not present the anticipated barrier to dispersal.
    Criterion 4: If we determine, in consultation with the affected 
State and the Marine Mammal Commission, that southern sea otters are 
dispersing from the translocation zone and becoming established within 
the management zone in sufficient numbers to demonstrate that 
containment cannot be successfully accomplished. This standard is not 
intended to apply to situations in which individuals or small numbers 
of southern sea otters are sighted within the management zone or 
temporarily manage to elude capture. Instead it is meant to be applied 
when it becomes apparent that, over time (1 year or more), southern sea 
otters are relocating from the translocation zone to the management 
zone in such numbers that: (1) An independent breeding colony is likely 
to become established within the management zone; or (2) they could 
cause economic damage to fishery resources within the management zone. 
It is expected that we could make this determination within a year, 
provided that sufficient information is available.
    Technically, criterion 4 has not been met. This criterion clearly 
specifies that the program would be declared a failure

[[Page 53388]]

if sea otters moved from the translocation zone and became established 
in the management zone. The criterion does not strictly apply if 
animals immigrate into the management zone from the parent range. 
Nevertheless, beginning in 1998, large groups (50 to 150 individuals) 
of sea otters have seasonally moved into the management zone from the 
parent range. Since 2006, monthly surveys have counted an average of 40 
otters with considerable variation over time (standard deviation of +/- 
19) (K.D. Lafferty, USGS, pers. comm. 2011). In January 2011, three 
pups were detected, suggesting that a permanent breeding colony may be 
establishing itself in the management zone. Commercial fishing 
interests contend that local shellfish populations available to the 
fishery have been reduced by the presence of these sea otters.
    The difficulties associated with sea otter capture and transport, 
our concern for the welfare of animals removed from the management 
zone, the adverse effects of sea otter containment on the parent 
population, and the adverse effects on fisheries are concerns 
regardless of whether sea otters enter the management zone from the 
parent range or from San Nicolas Island. Although criterion 4 is 
specific and applies only to sea otters originating from San Nicolas 
Island, our experience with sea otters entering the management zone 
from either the parent range or the translocation zone indicates that 
successful containment of sea otters, or maintenance of an ``otter-
free'' management zone, cannot be accomplished by simply capturing 
animals in the management zone and moving them to another location.
    Criterion 5: If the health and well-being of the experimental 
population should become threatened to the point that the colony's 
continued survival is unlikely, despite Federal and State laws. An 
example would be if an overriding military action for national security 
was proposed that would threaten to devastate the colony and the 
removal of southern sea otters was determined to be the only viable way 
of preventing loss of the colony.
    Criterion 5 has not been met. The experimental population at San 
Nicolas Island, although small and vulnerable, has persisted. There are 
no proposed Federal, State, or local actions that threaten to devastate 
the colony. The Department of Defense is responsible for the majority 
of human activity at San Nicolas Island. They have conferred with us 
and given consideration to southern sea otters when developing projects 
at San Nicolas Island. To date, no projects have posed a threat to the 
colony.

Conclusion

    We therefore conclude that the translocation program has failed 
under Criterion 2. Criterion 3 cannot be evaluated. Criteria 1, 4, and 
5 have not been met.
    The primary purpose of the southern sea otter translocation program 
was to advance southern sea otter recovery, with the ultimate goal of 
delisting the species. Based on a broader evaluation of the 
translocation program against the goals for which it was undertaken and 
current recovery goals, in concert with the failure criteria 
established for the program's assessment, we again conclude that the 
translocation program has failed. It has failed to fulfill its purpose, 
and our recovery and management goals for the species cannot be met by 
continuing the program.
    The San Nicolas Island sea otter colony remains small, and its 
future is uncertain. Even if the colony were to become established, the 
resulting population would not likely be sufficient to ensure survival 
of the species should the parent population be adversely affected by a 
widespread catastrophic event. Recovery of the southern sea otter will 
ultimately depend on the growth and expansion of the southern sea 
otter's range. Although we recognize that there are conflicts between 
an expanding sea otter population and fisheries that have developed in 
the absence of sea otters, zonal management of sea otters has proven to 
be ineffective and compromises the ability of the species to recover.
    We therefore propose to terminate the translocation program and 
remove the regulations at 50 CFR 17.84(d) in their entirety. This 
proposed action would:
    [cir] Terminate the designation of the experimental population of 
southern sea otters;
    [cir] Abolish the southern sea otter translocation and management 
zones;
    [cir] Eliminate future actions, required under the current 
regulations, to capture and relocate southern sea otters for the 
purposes of establishing an experimental population or restricting 
movements of southern sea otters into an ``otter-free'' management 
zone; and
    [cir] Allow southern sea otters to expand their range naturally 
into southern California waters.
    Removal of the translocation program regulations in their entirety 
would also eliminate the current requirement at 50 CFR 17.84(d)(8)(vi) 
to remove southern sea otters from San Nicolas Island and from the 
management zone upon termination of the program.

Regulatory Environment Upon Termination of the Translocation Program

    Public Law 99-625 states that the Service, through the Secretary of 
the Interior, ``may'' develop and implement a plan for the relocation 
and management of sea otters, and then goes on to specify what must be 
included if such a plan is developed. Therefore, termination of the 
translocation program and removal of the regulations governing the 
program would render the specific provisions of Public Law 99-625 
inoperative. The translocation and management zones would be abolished, 
and the exemptions under Public Law 99-625 from the duty to consult 
under section 7 of the ESA for defense-related activities within the 
former translocation zone and for all Federal activities within the 
former management zone, as well as the exemption from the incidental 
take prohibitions of the ESA and the MMPA for activities within the 
former management zone, would end.
    Any incidental take by a Federal agency (authorized through the ESA 
section 7 process) or by a State or tribal government or private entity 
(authorized through the ESA section 10 process) would also have to be 
authorized under the MMPA. Under both the ESA and the MMPA, incidental 
take is prohibited unless it has been authorized. Section 101(a)(5)(A) 
of the MMPA states that we may authorize the taking of small numbers of 
marine mammals within a specified geographical region over periods of 
not more than 5 consecutive years, provided we find that the total of 
such taking during the period will have a negligible impact on the 
species or stock. Section 101(a)(5)(D) allows for similar 
authorization, for not more than 1 year for the incidental taking by 
harassment of only small numbers of marine mammals. Provisions specific 
to military readiness activities may also apply to the authorization of 
incidental take under the MMPA for defense-related agency actions.
    The incidental take authorization provisions under section 
101(a)(5) of the MMPA apply to activities other than commercial 
fishing. Take incidental to commercial fishing is authorized under 
different provisions of the MMPA. However, because of specific 
amendments to the provisions under section 118, incidental take of 
southern sea otters in commercial fisheries cannot be authorized under 
the MMPA. Therefore, incidental take of southern sea otters by 
commercial fisheries in southern California waters would be

[[Page 53389]]

prohibited, as it is now throughout the remainder of the range of the 
species (north of Point Conception). All intentional take would 
continue to be prohibited, as it is under the current regulatory 
environment, unless authorized under both the ESA and the MMPA.
    Federal agencies proposing actions (including the permitting or 
funding of actions proposed by non-Federal entities) that may affect 
southern sea otters anywhere in southern California waters, including 
all actions planned within the former management zone and defense-
related actions in the former translocation zone, would be required to 
consult with the Service under section 7 of the ESA, as they do now 
within the remainder of the species' range. Under section 7, we must 
determine whether a proposed Federal action is likely to jeopardize the 
continued existence of the southern sea otter. Our determination is 
made through the issuance of a biological opinion at the conclusion of 
the consultation stating our opinion whether the action, if carried out 
as proposed, is likely to jeopardize the continued existence of the 
species. If we conclude the proposed action would likely result in 
jeopardy, we also indicate any reasonable and prudent alternatives to 
the proposed action that would meet its intended purpose while avoiding 
jeopardy to the southern sea otter. If a proposed action is likely to 
jeopardize the continued existence of the southern sea otter, it may 
not go forward unless the Federal action agency applies for and is 
granted an exemption under section 7(h) of the ESA. If we determine 
that the proposed Federal action is not likely to jeopardize the 
continued existence of the southern sea otter, we may include an 
incidental take statement that exempts take of sea otters incidental to 
the proposed action from the take prohibition of section 9 of the ESA. 
Our incidental take statement would include terms and conditions that 
must be complied with to minimize the effects of any incidental take by 
the Federal action agency. In addition, the entity conducting the 
action would need to obtain incidental take authorization under the 
MMPA (discussed below).
    The current exemption under State law for incidental take of 
southern sea otters in the management zone would also end once the 
translocation program is declared a failure. While California Fish and 
Game Code Section 4700 generally prohibits the take of southern sea 
otters, section 8664.2 of the Fish and Game Code provides that ``the 
taking of a sea otter that is incidental to, and not for the purpose 
of, the carrying out of an otherwise lawful activity within the sea 
otter management zone * * * is not a violation of the California 
Endangered Species Act * * * or Section 4700.'' Section 8664.2 further 
provides, ``this section shall become inoperative if the sea otter 
translocation experiment is declared a failure pursuant to the 
provisions of Public Law 99-625.''
    To the extent otherwise allowable under State law, proposed non-
Federal activities in California that would result in take of southern 
sea otters if the translocation program is terminated would require an 
incidental take permit from the Service under section 10(a)(1)(B) of 
the ESA. Among other requirements, an applicant for an incidental take 
permit under section 10(a)(1)(B) of the ESA must submit a conservation 
plan that we find minimizes and mitigates the impacts of the proposed 
take to the maximum extent practicable. In addition, we must find that 
the proposed take will avoid appreciably reducing the likelihood of the 
survival and recovery of the southern sea otter in the wild.

Economic Analysis

    An economic analysis for this proposed rule and associated 
alternatives is included in our revised draft SEIS on the translocation 
of southern sea otters. A copy of the revised draft SEIS is posted on 
https://www.regulations.gov and may also be obtained from the Ventura 
Fish and Wildlife Office (see ADDRESSES section). When compared to the 
existing baseline (suspension of southern sea otter translocation and 
containment), the proposed rule and subsequent actions would have no 
economic effects except possible indirect effects that may occur as a 
result of regulatory changes. The benefits to fisheries that may result 
from enforcing a southern sea otter management zone and retaining 
incidental take exemptions within this zone are included in our 
economic analysis for comparative purposes.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998 to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listing in the ADDRESSES section. To 
help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the section where you feel lists or tables would be 
useful, etc.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. The Office of Management and 
Budget (OMB) makes the final determination under Executive Order 12866. 
OMB bases its determination on the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA, as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever a Federal agency is required to publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (such as small businesses, small 
organizations, and small government jurisdictions) (5 U.S.C. 601 et 
seq.). However, no regulatory flexibility analysis is required if the 
head of an agency certifies that the rule would not have a significant 
economic impact on a substantial number of small entities. Thus, for a 
regulatory flexibility analysis to be required, impacts must exceed a 
threshold for ``significant impact'' and a threshold for a 
``substantial number of small entities.'' See 5 U.S.C. 605(b). SBREFA 
amended the RFA to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule would not have a 
significant economic impact on a substantial number of small entities.

[[Page 53390]]

    Federal courts have held that an RFA analysis should be limited to 
impacts on entities subject to the requirements of the regulation, but 
not entities that may be indirectly affected by the regulation. This 
proposed rule directly affects only southern sea otters and their 
regulatory status in southern California waters with respect to the ESA 
and MMPA. Economic effects potentially resulting from future regulatory 
changes applicable to commercial fisheries and effects of sea otter 
range expansion on the nearshore marine environment, including the 
availability of certain prey species for harvest by commercial fishers, 
are indirect. The Service does not have direct regulatory authority 
over marine fisheries. Therefore, there are no direct effects on small 
businesses from the proposed termination of the translocation program. 
In spite of these rulings, in its guidance to Federal agencies on 
conducting screening analyses, the Small Business Administration (SBA) 
recommends considering impacts on entities that may be indirectly 
affected by the proposed regulation. Therefore, we prepared an Initial 
Regulatory Flexibility Analysis (IRFA), which we briefly summarize 
below, to accompany this rule.
    The Service is proposing to terminate the southern sea otter 
translocation program and to allow all sea otters in southern 
California waters at the time of the program's termination to remain 
there. We are proposing this action because we have concluded, in a 
draft translocation program evaluation, that the program has failed to 
meet its objectives and that our recovery and management goals for the 
species under the ESA and MMPA cannot be me