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DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Lisa Network, and the Wishtoyo Foundation Manning, NMFS, Office of Protected filed a complaint seeking court-ordered National Oceanic and Atmospheric Resources, 301–427–8466. deadlines for the issuance of proposed Administration SUPPLEMENTARY INFORMATION: and final rules to designate critical habitat for the CAM, MX, and WNP 50 CFR Parts 223, 224, and 226 Background DPSs of humpback whales. See Center Under the ESA, we are responsible for for Biological Diversity et al. v. National [Docket No. 210415–0080] determining whether certain species are Marine Fisheries Service, et al., No. threatened or endangered, and, to the 3:18–cv–01628–EDL (N.D. Cal.). The RIN 0648–BI06 maximum extent prudent and parties entered into a settlement determinable, designating critical agreement with the approval and Endangered and Threatened Wildlife habitat for endangered and threatened oversight of the court, and subsequently and Plants: Designating Critical species at the time of listing (16 U.S.C. amended the dates specified in the Habitat for the Central America, 1533(a)(3)(A)(i)). On September 8, 2016, original order. The amended settlement Mexico, and Western North Pacific we published a final rule that revised agreement stipulated that NMFS submit Distinct Population Segments of the listing of humpback whales under a proposed determination concerning Humpback Whales the ESA by removing the original, the designation of critical habitat for taxonomic-level species listing, and in these three DPSs to the Federal Register AGENCY: National Marine Fisheries its place listing four DPSs as endangered by September 26, 2019. This deadline Service (NMFS), National Oceanic and and one DPS as threatened (81 FR was met and a proposed rule was Atmospheric Administration (NOAA), 62260). We also determined that nine published on October 9, 2019 (84 FR Commerce. additional DPSs did not warrant listing. 54354). The parties recently agreed to ACTION: Final rule. Prior to this revision, the humpback extend the date for submission of the whale had been listed as an endangered final rule to the Federal Register to SUMMARY: We, the NMFS, issue this April 15, 2021. final rule to designate critical habitat for species in 1970 under the precursor to the endangered Western North Pacific the ESA (the Endangered Species In 2018, a critical habitat review team distinct population segment (DPS), the Conservation Act of 1969), and then (CHRT), consisting of biologists from endangered Central America DPS, and transferred to the list of endangered NMFS and NOS, was convened to assess the threatened Mexico DPS of species under the ESA. Although the and evaluate information in support of humpback whales (Megaptera ESA was later amended to require the a critical habitat designation for the novaeangliae) pursuant to section 4 of designation of critical habitat for listed CAM, MX, and WNP DPSs of humpback the Endangered Species Act (ESA). species, when humpback whales were whales. Based on the Draft Biological Specific areas designated as critical originally listed, there was no statutory Report (NMFS 2019a), the Draft habitat for the Western North Pacific requirement to designate critical habitat Economic Analysis (IEc 2019), and the DPS of humpback whales contain for this species. Section 4(a)(3)(A)(i) of initial Draft Section 4(b)(2) Report approximately 59,411 square nautical the ESA now requires that, to the (NMFS 2019b), we published a miles (nmi2) of marine habitat in the maximum extent prudent and proposed rule (84 FR 54354, October 9, North Pacific Ocean, including areas determinable, critical habitat be 2019) to designate critical habitat for all within the eastern Bering Sea and Gulf designated at the time of listing (16 three DPSs. All of the areas proposed for of Alaska. Specific areas designated as U.S.C. 1533(a)(3)(A)(i)). Pursuant to designation serve as feeding habitat for critical habitat for the Central America implementing regulations at 50 CFR the relevant listed DPSs and contain the 424.12(g), critical habitat is not essential biological feature of humpback DPS of humpback whales contain 2 approximately 48,521 nmi2 of marine designated within foreign countries or whale prey. Approximately 78,690 nmi habitat in the North Pacific Ocean in areas outside the jurisdiction of the of marine habitat within the eastern within the portions of the California United States. Thus, the listing of DPSs Bering Sea, around the eastern Aleutian Current Ecosystem off the coasts of of humpback whales under the ESA in Islands, and in the western Gulf of Washington, Oregon, and California. 2016 triggered the requirement to Alaska were proposed for designation designate critical habitat, to the for the WNP DPS. Approximately Specific areas designated as critical 2 habitat for the Mexico DPS of humpback maximum extent prudent and 48,459 nmi of marine habitat within whales contain approximately 116,098 determinable, for those DPSs occurring portions of the California Current nmi2 of marine habitat in the North in areas under U.S. jurisdiction— Ecosystem (CCE) off the coasts of Pacific Ocean, including areas within specifically, the Central America (CAM), Washington, Oregon, and California Mexico (MX), and Western North Pacific were proposed for designation for the portions of the eastern Bering Sea, Gulf 2 of Alaska, and California Current (WNP) DPSs. The statute and our CAM DPS. Approximately 175,812 nmi Ecosystem. regulations presume that designation is of marine habitat within eastern Bering prudent except in relatively rare Sea, around the eastern Aleutian DATES: This rule becomes effective on circumstances where a finding that it is Islands, in the Gulf of Alaska, and May 21, 2021. not prudent may be appropriate (see 50 within CCE were proposed for the MX ADDRESSES: This final rule, critical CFR 424.12(a)(1)). DPS. Based on consideration of habitat maps, as well as documents In the final rule to list five DPSs of economic impacts under section 4(b)(2) supporting this final rule are available humpback whales, we concluded that of the ESA, we proposed to exclude on our website (www.fisheries.noaa.gov/ critical habitat was not yet approximately 44,119 nmi2 of marine species/humpback-whale#conservation- determinable, which had the effect of habitat from the designation for the management), or may be obtained by extending by one year the statutory WNP DPS, approximately 12,966 nmi2 contacting Lisa Manning, Endangered deadline for designating critical habitat of marine habitat from the designation Species Division, Office of Protected (16 U.S.C. 1533(b)(6)(C)(ii)). On March for the CAM DPS, and approximately Resources, National Marine Fisheries 15, 2018, the Center for Biological 30,527 nmi2 of marine habitat from the Service. Diversity, Turtle Island Restoration designation for the MX DPS. Based on

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consideration of national security biological features (I) essential to the habitat serve to validate that any area impacts under section 4(b)(2) of the conservation of the species and (II) meeting that statutory definition is in ESA, we also proposed to exclude which may require special management fact habitat. approximately 48 nmi2 of marine considerations or protection; and (ii) In determining whether the essential habitat from the critical habitat specific areas outside the geographical physical or biological features ‘‘may designation for the MX DPS in area occupied by the species at the time require’’ special management Southeast Alaska and about 1,522 nmi2 it is listed, upon a determination by the considerations or protection, it is of marine habitat off the coast of Secretary that such areas are essential necessary only to find that there is a Washington from the designations for for the conservation of the species (16 possibility that the features may require the CAM and MX DPSs. U.S.C. 1532(5)(A)). Certain areas owned special management considerations or We requested public comment on the or controlled by the Department of protection in the future; it is not proposed designations and supporting Defense are ineligible for designation necessary to find that such management reports (i.e., Draft Biological Report (16 U.S.C. 1533(a)(3)(B)(i). Section is presently or immediately required. (NMFS 2019a), Draft Economic Analysis 3(5)(C) of the ESA provides that, except Home Builders Ass’n of N. California v. (IEc 2019a), and Draft Section 4(b)(2) in those circumstances determined by U.S. Fish and Wildlife Serv., 268 F. Report (NMFS 2019b)) through the Secretary, critical habitat shall not Supp. 2d 1197, 1218 (E.D. Cal. 2003). December 9, 2019, and held five public include the entire geographical area The relevant management need may be hearings (84 FR 55530, October 17, which can be occupied by the ‘‘in the future based on possibility.’’ 2019). In response to requests, we threatened or endangered species. Bear Valley Mut. Water Co. v. Salazar, extended the public comment period Under our implementing regulations, No. SACV 11–01263–JVS, 2012 WL through January 31, 2020 (84 FR 65346, we may consider designating 5353353, at *25 (C.D. Cal. Oct. 17, November 27, 2019) and held a sixth unoccupied areas that are essential for 2012). See also Cape Hatteras Access public hearing (84 FR 65346, November the conservation of the species only Pres. Alliance v. U.S. Dept. of Interior, 27, 2019). For a complete description of where a designation limited to occupied 731 F. Supp. 2d 15, 24 (D.D.C. 2010) our proposed action, we refer the reader areas would be inadequate to ensure the (‘‘The Court explained in CHAPA I that to the proposed rule (84 FR 54354, conservation of the species (50 CFR ‘the word ‘‘may’’ indicates that the October 9, 2019). 424.12(b)(2)). requirement for special considerations This final rule describes the critical ‘‘Conservation’’ is defined in section or protections need not be immediate’ habitats for the CAM, MX, and WNP 3(3) of the ESA as the use of all methods but must require special consideration DPSs of humpback whales and the basis and procedures which are necessary to or protection ‘in the future.’ ’’) (citing for the designations, including a bring any endangered species or Cape Hatteras Access Pres. Alliance v. summary of, and responses to, the threatened species to the point at which U.S. Dept. of Interior, 344 F. Supp. 2d significant public comments received. the measures provided pursuant to the 108, 123–24 (D.D.C. 2004)). The following supporting documents ESA are no longer necessary (16 U.S.C. Section 4(b)(2) of the ESA requires the provide detailed discussions of 1532(3)). Therefore, a critical habitat Secretary to designate critical habitat for information and analyses that designation is not limited to the areas threatened and endangered species on contributed to the conclusions necessary for the survival of the species, the basis of the best scientific data presented in this final rule: Final but rather includes areas necessary for available and after taking into Biological Report (NMFS 2020a), Final supporting the species’ recovery. (See consideration various impacts of the Economic Analysis (FEA; IEc 2020), and Gifford Pinchot Task Force v. U.S. Fish designation (16 U.S.C. 1533(b)(2)). The Final Section 4(b)(2) Report (NMFS and Wildlife Service, 378 F.3d 1059, first sentence of section 4(b)(2) requires 2020b). The Final Biological Report is a 1070 (9th Cir. 2004) (‘‘Clearly, then, the the Secretary to take into consideration compilation of the best available purpose of establishing ‘critical habitat’ the economic impact, the impact on scientific information as gathered and is for the government to carve out national security, and any other relevant reviewed by the CHRT, and the FEA is territory that is not only necessary for impact, of specifying any particular area the analysis of probable economic the species’ survival but also essential as critical habitat (16 U.S.C. 1533(b)(2)). impacts associated with the critical for the species’ recovery.’’), amended on Regulations at 50 CFR 424.19(b) specify habitat areas as conducted by other grounds, 387 F.3d 968 (9th Cir. that, in carrying out this mandatory economists contracted by NMFS (i.e., 2004); Alaska Oil and Gas Ass’n v. consideration, the Secretary will Industrial Economics, Inc.). These Jewell, 815 F.3d 544, 555–56 (9th Cir. consider the ‘‘probable’’ impacts of the reports, drafts of which were subjected 2016).) designation at a scale that the Secretary to public and peer review, inform the The United States Supreme Court has determines to be appropriate, and that final designation decision we, NMFS, recently held that ‘‘critical habitat’’ such impacts may be qualitatively or set out here. The Final Section 4(b)(2) must logically be a subset of the species’ quantitatively described. The Secretary Report, prepared by NMFS, describes ‘‘habitat’’ that is ‘‘critical.’’ will compare impacts with and without our analysis of the eligibility of areas for Weyerhaeuser Co. v. U.S. Fish and the designation (50 CFR 424.19(b)). This designation (under section 4(a)(3)(B)(i) Wildlife Service, 139 S. Ct. 361, 368 requires that we assess the incremental of the ESA) as well the analysis of (U.S. 2018). That issue arose in the impacts attributable to the critical particular areas for exclusion from the context of a critical habitat designation habitat designation relative to a baseline designations (under section 4(b)(2) of by the U.S. Fish and Wildlife Service that reflects regulatory impacts that the ESA). These supporting documents (USFWS) that included an area that was already exist in the absence of the are referenced throughout this final rule. not currently occupied by the species. critical habitat due to the protections For areas within the occupied range of afforded to the listed humpback whales Critical Habitat Definition and Process the species, such questions do not arise, under the ESA and from other statutes. Section 3(5)(A) of the ESA defines because by definition if an area is The second sentence of section 4(b)(2) critical habitat as (i) the specific areas occupied by the species at the time of describes a further process by which the within the geographical area occupied listing, then it can be occupied as Secretary may go beyond the mandatory by the species, at the time it is listed, habitat by that species. The criteria in consideration of impacts and weigh the on which are found those physical or the ESA’s definition of occupied critical benefits of excluding any particular area

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(i.e., avoiding the economic, national Once critical habitat is designated, prey species that have been recognized security, or other relevant impacts) section 7(a)(2) of the ESA requires and documented as key prey species against the benefits of designating it Federal agencies to ensure that actions within the diet of humpback whales and (primarily, the conservation value of the they authorize, fund, or carry out are not that occur within the specific critical area). If the Secretary concludes that the likely to destroy or adversely modify habitat areas of the listed DPSs. Because benefits of excluding particular areas that habitat (16 U.S.C. 1536(a)(2)). This these species occur commonly and outweigh the benefits of designation, he requirement is additional to the section consistently in the whales’ diets, we may exclude the particular area(s), so 7(a)(2) requirement that Federal conclude that they are essential to the long as he concludes on the basis of the agencies ensure their actions are not conservation of the particular DPS. The best scientific and commercial data likely to jeopardize the continued revised prey essential features that we available that the exclusion will not existence of ESA-listed species adopt in this final rule are as follows: result in extinction of the species (16 (sometimes referred to as the ‘‘jeopardy’’ CAM DPS: Prey species, primarily U.S.C. 1533(b)(2); 50 CFR 424.19(c)). standard). Specifying the geographic euphausiids (Thysanoessa, Euphausia, NMFS and the USFWS have adopted a location of critical habitat also facilitates Nyctiphanes, and Nematoscelis) and joint policy setting out non-binding implementation of section 7(a)(1) of the small pelagic schooling fishes, such as guidance explaining generally how we ESA by identifying areas where Federal Pacific sardine (Sardinops sagax), exercise our discretion under section agencies can focus their conservation northern anchovy (Engraulis mordax), 4(b)(2) (see Policy Regarding programs and use their authorities to and Pacific herring (Clupea pallasii), of Implementation of Section 4(b)(2) of the further the purposes of the ESA (16 sufficient quality, abundance, and Endangered Species Act (‘‘4(b)(2) U.S.C. 1536(a)(1)). Critical habitat accessibility within humpback whale Policy,’’ 81 FR 7226, February 11, requirements do not apply to citizens feeding areas to support feeding and 2016)). engaged in actions on private land that population growth. do not involve a Federal agency. WNP DPS: Prey species, primarily Critical habitat designations must be euphausiids (Thysanoessa and based on the best scientific data Summary of Changes From the Euphausia) and small pelagic schooling available, rather than the best scientific Proposed Designations fishes, such as Pacific herring (Clupea data possible. Bldg. Indus. Ass’n. of We evaluated the comments and pallasii), capelin (Mallotus villosus), Superior Cal. v. Norton, 247 F.3d 1241, information received from the public juvenile walleye pollock (Gadus 1246–47 (D.C. Cir. 2001). See also during the public comment period and chalcogrammus) and Pacific sand lance Alaska Oil & Gas Ass’n v. Jewell, 815 at public hearings. Based on our (Ammodytes personatus) of sufficient F.3d 544, 555 (9th Cir. 2016) (The ESA consideration of these comments and quality, abundance, and accessibility ‘‘requires use of the best available information and our reconsideration of within humpback whale feeding areas to technology, not perfection.’’) Provided issues discussed in the proposed rule, support feeding and population growth. that the best available information is we have made several changes from the MX DPS: Prey species, primarily sufficient to enable us to make a proposed designations. Below we briefly euphausiids (Thysanoessa, Euphausia, determination as required under the summarize these changes, which are Nyctiphanes, and Nematoscelis) and ESA, we must rely on it even though discussed in further detail in the small pelagic schooling fishes, such as there is some degree of imperfection or relevant responses to comment and Pacific sardine (Sardinops sagax), uncertainty. See Alaska v. Lubchenco, other sections of this final rule. northern anchovy (Engraulis mordax), 825 F. Supp. 2d 209, 223 (D.D.C. 2011) (1) Revised the essential feature. In Pacific herring (Clupea pallasii), capelin (‘‘[E]ven if plaintiffs can poke some response to public comments requesting (Mallotus villosus), juvenile walleye holes in the agency’s models, that does that we add specificity to the regulatory pollock (Gadus chalcogrammus), and not necessarily preclude a conclusion definition of the essential feature, we Pacific sand lance (Ammodytes that these models are the best available have revised the description of the prey personatus) of sufficient quality, science. Some degree of predictive error essential feature, which as proposed abundance, and accessibility within is inherent in the nature of read: ‘‘Prey species, primarily humpback whale feeding areas to mathematical modeling.’’); Oceana, Inc. euphausiids and small pelagic schooling support feeding and population growth. v. Ross, 321 F. Supp. 3d 128, 142 fishes of sufficient quality, abundance, (2) Excluded Unit 1, Bristol Bay Area, (D.D.C. 2018) (‘‘[E]ven where data may and accessibility within humpback from the final designations for the WNP be inconclusive, an agency must rely on whale feeding areas to support feeding DPS. In response to public comments the best available scientific and population growth.’’ Multiple regarding the data that were considered information.’’). There is no obligation to commenters expressed concerns that the in our initial assessment of the relative conduct independent studies and tests proposed prey feature was too broad or conservation value of specific areas and to acquire the best possible data. Ross, vague, and requested that additional how we considered those data (e.g., that 321 F. Supp. 2d at 142 (citations specificity be added to the description, we had considered data that was not omitted). See also San Luis & Delta- including identifying particular prey specific to the particular DPS), we Mendota Water Auth. v. Locke, 776 F.3d species for each DPS as well as the reconvened a CHRT, refined the set of 971, 995 (9th Cir. 2014) (holding that relevant age-classes of those prey data considered and applied in the the best available science standard species. After thorough review of the analysis for each DPS, and conducted a ‘‘does not require an agency to conduct best available scientific information, we fresh assessment of the conservation new tests or make decisions on data that have determined that it would be most value of each specific critical habitat does not yet exist.’’); Am. Wildlands v. consistent with the purposes of the ESA area and for all three DPSs. In response Kempthorne, 530 F.3d 991, 999 (D.C. to add specific examples to the to public comments, the CHRT placed Cir. 2008); Southwest Ctr. for Biological descriptions of the prey feature for each greater emphasis during this Diversity v. Babbitt, 215 F.3d 58, 60 DPS. This will enable the public to have reassessment on data regarding the (D.C. Cir. 2000) (‘‘The ‘best available notice of primary prey species that are distribution of whales from the data’ requirement makes it clear that the relied upon by each DPS. We have particular listed DPSs (versus humpback Secretary has no obligation to conduct therefore revised the prey feature by whales generally). As a consequence of independent studies.’’) including explicit references to certain this additional review of the best

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scientific data available, the CHRT reassessment, and for the same reasons thorough consideration of the public concluded that there is insufficient as described for the WNP DPS, the comments and additional information information to evaluate the relative CHRT concluded that Unit 1 was ‘‘data submitted by the Navy in support of conservation value of Unit 1 specifically deficient;’’ currently available data are their requested exclusion, we have for the whales in the WNP DPS. The not sufficient to reliably determine the reduced the extent of the 10-km buffer CHRT found that the available relative proportions of humpback where the QRS overlaps with the information for this specific area (which whales from different populations in Olympic Coast National Marine does not include any photo- Unit 1. In other words, the CHRT could Sanctuary (OCNMS). As detailed in the identification or genetic data) is not determine the extent to which MX Section 4(b)(2) Report (NMFS 2020b), insufficient to permit reliable evaluation DPS whales rely on this particular area, the benefits of designating critical of the relative proportions of whales their predicted use of this area, or the habitat for the MX and CAM DPSs from the WNP or MX DPSs and the non- importance of this area to the within this portion of the buffer was not listed Hawaii population in Unit 1 or conservation of the MX DPS. Based on found to be outweighed by national the predicted use of this area by WNP our consideration of the benefits of security impacts of including that DPS whales. Therefore, the CHRT designating this area versus the portion. This change represents a concluded that this area is ‘‘data estimated economic impacts associated reduction in the size of the area being deficient’’ with regard to its value for with designating this area, we conclude excluded from critical habitat—from a the WNP DPS whales. We agree with the that the benefits of designating this area proposed exclusion of about 1,522 nmi2 conclusion that the available data do not for the MX DPS are outweighed by the to 1,461 nmi2 for the QRS and permit a determination regarding the benefits of excluding this particular associated, reduced buffer. extent to which whales from the WNP area. Therefore, Unit 1 is not included (5) Added regulatory language to DPS are relying on this particular area, in the final critical habitat designation clarify that the critical habitat does not their predicted use of this area, or the for this DPS. include manmade structures (e.g., ferry Based on the CHRT’s reassessment of importance of this area to their docks, seaplane facilities). In response the relative conservation values of conservation. Based on our to a request for clarification of the extent several specific areas occupied by the consideration of the benefits of of the critical habitat, we have added MX DPS, the qualitative conservation designating this area versus the language to the final regulation to clarify ratings (i.e., ‘‘very high,’’ ‘‘high,’’ estimated economic impacts associated that the critical habitat designations do ‘‘medium,’’ and ‘‘low’’) were revised for with designating this area pursuant to not include manmade structures that are several specific areas. As presented in section 4(b)(2) of the ESA, we conclude within the areas being designated. detail in the Final Biological Report that the benefits of including this Specifically, we have added the particular area are outweighed by the (NMFS 2020a), the conservation rating following regulatory text: ‘‘Critical benefits of excluding this area from the remained the same for eight habitat habitat does not include manmade designation for the WNP DPS. units, went down for seven habitat structures (e.g., ferry docks, sea plane Therefore, Unit 1 is not included in the units, and increased for three habitat facilities) and the land on which they final critical habitat designation for this units. The conservation ratings for Units rest within the critical habitat DPS. 4 (Central Peninsula Area), 6 (Cook Inlet (3) Excluded Units 1, 4, 6, and 10 Area), and 10 (Southeast Alaska) were boundaries and that were in existence as from the final designations for the MX revised from medium to low of May 21, 2021.’’ DPS. As discussed in the preceding conservation value. As discussed in the Summary of Public Comments and paragraph, we received public Final Section 4(b)(2) Report (NMFS Responses comments expressing concerns 2020b), based on a weighing of the regarding the data considered in our benefits of designating these particular We requested public comments on the initial assessment of the relative areas against the annualized estimated proposed rule to designate critical conservation value of specific areas and economic impacts resulting from habitat for the Western North Pacific, how we considered that data. We also designation for each particular area Central America, and Mexico DPSs of received extensive public comments (which have been revised upwards by humpback whales, and on the and supporting information asserting about $2,000 for Units 4 and 6 and by supporting documents (i.e., the draft that we had underestimated the about $14,000 for Unit 10; see IEc 2020), Biological Report (NMFS 2019a), draft economic impacts of the proposed we conclude that the benefits of Economic Analysis (IEc 2019a), and designation and overestimated the including these particular areas in the draft ESA Section 4(b)(2) Report (NMFS conservation value of specific areas. designation are outweighed by the 2019b)), which were made available on Many of these comments were specific benefits of excluding the particular the Federal eRulemaking Portal to Alaska, and in particular to Southeast areas. Thus, Units 4, 6, and 10 are not (www.regulations.gov) and the NOAA Alaska (Unit 10). In response to public included in the final critical habitat Fisheries website comments and new information designation for the MX DPS of (www.fisheries.noaa.gov). Public received, we revised the economic humpback whales. comments were received over a 115-day analysis (see IEc 2020), and the relative (4) Reduced the area excluded for the period ending on January 31, 2020, via conservation value of all specific areas Quinault Range Site. In response to standard mail, email, the Federal were reassessed for each DPS by the public comments expressing opposition eRulemaking Portal, and at six public CHRT (see NMFS 2020a). to the proposed exclusion of the hearings. Public comments are posted As previously described, the CHRT’s Department of the Navy’s (‘‘Navy’’) on the Federal eRulemaking Portal reassessment of the relative requested exclusion of the Quinault (docket number: NOAA–NMFS–2019– conservation value of the specific areas Range Site (QRS), a Naval training and 0066). All public comments and placed greater emphasis on the relative testing area off the coast of Washington, significant new information received distribution of the listed whales (versus and a 10-km buffer around the QRS, we through the comment and hearings humpback whales generally) within reviewed and reconsidered the period have been reviewed and fully each of the specific areas proposed for information supporting this proposed considered in developing the final designation. As a result of this national security exclusion. Following critical habitat designation.

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We received over 180 public comment pursuant to section 7(a)(2) of the ESA activities. For most of the activities for submissions through (16 U.S.C. 1536(a)(2)). Several of these which we can project the likelihood of www.regulations.gov and over a dozen commenters also suggested that the a consultation, consultation would have comment submissions during the public economic analysis only quantified costs already been required in order to ensure hearings. Comments were received from to NMFS and other governmental the action would not jeopardize the a range of sources that included agencies and does not include costs to continued existence of the listed individual members of the public, a local residents, stakeholders, and whales, due to the presence of the federally recognized Indian Tribe and governments that undertake activities whales, and the newly arising obligation tribal organizations, state and local with a Federal nexus. These to also consider potential destruction or officials, foreign governments, state commenters requested an expanded adverse modification of critical habitat natural resources agencies, other economic analysis that would take into is not expected generally to change the Federal agencies (e.g., the Marine account impacts to small communities, outcomes of such consultations. For Mammal Commission, NOAA’s National industries, and state/local governments. certain activities (e.g., the Coastal Ocean Service National Marine One commenter suggested discussion of Pelagic Species (CPS) commercial Sanctuaries Program), commercial qualitative economic metrics including fishery), previous consultations on the fishing and other professional trade indirect costs, risks, and economic activity have not analyzed the impacts associations, seafood companies, the vulnerability. of removal of prey species on humpback North Pacific Fishery Management Response: As described in Section whales due to lack of quantitative tools Council, scientific organizations, and 1.3.3 of the FEA, the economic analysis necessary to assess the biomass environmental organizations. One considers multiple potential categories requirements to support humpback comment letter included signatures of of impacts that may result from the whales and other predators under 17,675 people in support of the critical habitat designation. In addition varying ecosystem conditions and proposed designations, and another to administrative costs of section 7 specify the indirect impacts of removal submission included a spreadsheet with consultations, the analysis evaluates the of biomass of a particular prey species. similar written comments from 16,554 potential for costs resulting from Future consultations on the CPS individuals, most of whom expressed additional conservation efforts for the fisheries are likely to consider potential concerns regarding entanglement and humpback whales that may be effects of prey removal on humpback ship strikes and urged us to quickly recommended through consultation, as whales and their habitat to the extent designate all areas considered and add well as the potential for indirect impacts possible on the basis of the best a sound-related essential feature. In (not related to section 7 outcomes), such information available at such time. The general, comments expressed support as project delays or regulatory analysis of whether a project or activity for the designations, requested some uncertainty. (Note: The term is likely to result in adverse changes to the proposed designations, or ‘‘conservation efforts’’ is used modification of critical habitat, and the expressed opposition to the designation throughout the FEA and in this final specific recommendations we may make of one or more specific areas. A large rule as a generic term to refer to efforts through section 7 consultation to avoid majority of the comment submissions that NMFS may identify through formal destruction or adverse modification, are that expressed concern or opposition to consultation to avoid destruction and project specific. We cannot speculate the proposed designations pertained to adverse modification of critical habitat about the outcome of future proposed critical habitat areas in (i.e., reasonable and prudent consultations, but rather must base both alternatives), measures that NMFS may Alaska. our designation and the future Summaries of the substantive public suggest through formal or informal consultations on the best available data comments received and our responses consultation to avoid adverse effects of at the time our agency decisions are are provided below by topic. Similar an action (i.e., conservation undertaken. At present, we are not able comments are combined where recommendations), and efforts that to identify a circumstance under which appropriate. We did not consider, and action agencies or other entities may it is likely that the conservation efforts do not include below, comments that otherwise undertake to avoid adverse recommended for the humpback whales were not germane to the proposed effects of projects or activities on the would be greater or different due to the critical habitat rule. Such unrelated humpback whale and/or its habitat.) As designation of critical habitat. comments addressed issues other than summarized in Section 2.2, the critical habitat designation, such as the economic analysis finds that it is most The revised economic analysis 2016 revision of the listing of humpback likely that the costs resulting from highlights key areas of uncertainty whales under the ESA, delisting of critical habitat designation will be associated with this conclusion and humpback whale DPSs, funding for largely limited to the administrative presents that information alongside the humpback whale monitoring, costs of consultation, with the potential quantified impacts. In particular, public development of recovery plans for the for some additional costs to result from comments from the State of Alaska and listed humpback whale DPSs, and in-water construction and dam-related other entities identified the potential for expansion of critical habitat for North project delays that may occur following project delays related to in-water Pacific right whales. designation. However, the best available construction and dam relicensing to data provide no basis to identify result from the critical habitat Economic Impacts of Critical Habitat whether and for how long project delays designation. Public comments did not Designation may occur. Therefore, the potential for identify any particular instances of Comment 1: Multiple commenters time delays and associated costs are critical habitat designations across the stated that the 2019 draft economic described qualitatively in the report. region specifically resulting in a project analysis (DEA) underestimated the The costs of the designation are delay, and we were not able to find such impacts of the proposed critical habitat largely administrative because we do examples through additional outreach to designation because it only quantifies not presently anticipate recommending state agencies (e.g., Alaska Department the incremental administrative costs incremental changes to agency actions of Environmental Conservation, Alaska associated with interagency as a result of the designation of critical Department of Transportation and consultations on Federal actions habitat for the majority of forecasted Public Facilities). We agree with the

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commenters that, if likely to occur, the many Alaskan communities and any these costs is uncertain. To the extent costs of time delays specifically tied to impacts to fishing would have broad that these costs are incurred, they would the designation would be considered effects on the economy. One local be an incremental impact of the rule. As costs of the rule. However, the best government noted that it is dependent noted in response to Comment 1, this available data provide no basis to on fish tax revenue. Another commenter impact is highlighted as a key identify whether and for how long noted that harbor construction and uncertainty of the analysis. project delays may occur. Therefore, we hydropower projects are already As discussed in more detail later, in conclude that such impacts are not difficult for small communities to response to Comment 43, and in the probable impacts of the designation (see afford. Multiple commenters requested Final Section 4(b)(2) Report, Southeast 50 CFR 424.19(b)). Nevertheless, to the that we expand on baseline Alaska (Unit 10) is excluded from the extent possible, the potential for time socioeconomic conditions in rural final critical habitat designation for the delays and associated costs are Alaskan communities and further assess MX DPS. This particular area is described qualitatively in the report. We potential adverse impacts to coastal forecasted to have disproportionately considered both the quantitative results economies. Multiple commenters high estimated administrative costs and qualitative discussion of potential requested that we exclude Southeast relative to other areas and was rated as unquantified impacts and the associated Alaska (Unit 10) due to the economic having a low conservation value for the uncertainty when weighing the benefits reliance of small coastal communities MX DPS whales. Thus, we concluded of excluding particular areas from the on the commercial fishing industry. that the benefits of excluding this area outweigh the benefits of including this critical habitat designation against the Response: Given the importance of particular area in the designation of benefits of including those areas. marine resource-based industries to The administrative costs quantified in critical habitat for the MX DPS. rural Alaskan communities and that the economic analysis are not limited to Comment 3: Multiple commenters alternative economic opportunities are the costs of consultation that would be stated that the DEA underestimated the more limited in these areas, we agree borne by NMFS and other governmental costs of the proposed critical habitat that these communities would be more agencies. As shown in Exhibit 1–3 of the designation on Alaskan fisheries. vulnerable to any additional costs of FEA, the analysis estimates Commenters requested that the consultation or required conservation administrative costs for each forecasted economic analysis assess the costs efforts resulting from the designation of consultation to NMFS, a hypothetical associated with potential changes to humpback whale critical habitat. In Federal action agency, and a fisheries management actions, including hypothetical third party. A third party response to this comment, the FEA gear restrictions and time and area having an interest in a section 7 includes additional discussion in closures and restrictions, for both consultation could be a private Sections 2.3.1 and 2.6.1 highlighting the commercial and recreational fisheries. company (e.g., an applicant for a value of fisheries and in-water Commenters requested an analysis of Federal permit), a local or state construction and port infrastructure to direct costs of such management actions government, or some other entity. The these communities. The FEA highlights (e.g., loss of revenues) as well as broader FEA clarifies that third-party that added costs to these activities may impacts on coastal communities administrative costs are quantified, and affect these communities more than dependent on the seafood industry. expands on the potential for other other, more populated and economically Several commenters acknowledged that impacts to non-Federal entities as a diverse communities. However, as we do not presently anticipate any result of critical habitat designation. described in Sections 2.3.1 and 2.6.1., additional conservation efforts as a Based on information provided during the analysis finds that the only direct result of critical habitat designation, but the public comment period, the FEA incremental costs of the critical habitat noted that if this assumption proves includes more detailed discussion of designations relative to these activities false or changes in the future then there concerns related to the potential, will be administrative costs associated could be significant economic impacts unquantified economic impacts of the with participation in section 7 in Alaska. designation in Alaska. Although the consultation. This is primarily because Response: The economic analysis FEA finds that the quantified costs of Federal agency actions in or near the recognizes the importance of fisheries to designation are limited to the proposed critical habitat areas, Alaskan communities and economies. In administrative costs of section 7 including federally managed fisheries, response to these comments, Section analysis incurred by NMFS, Federal predominantly involve activities for 2.3.1 of the FEA includes an expanded action agencies, and third parties, the which consultations under section 7 of description of the importance of the FEA highlights in Section 2.2 the State the ESA already consider effects to fishing industry to Alaska, and to small, of Alaska’s concerns related to potential listed humpback whales via effects on rural communities in particular, unquantified costs, and discusses the the whales’ prey. Additionally, Alaska including information on the value of potential for indirect or unquantified fisheries that target the primary prey fisheries in each of the proposed critical direct impacts related to certain species for humpback whales that are habitat units. It further discusses the activities throughout Chapter 2. not federally managed are not subject to state’s concerns related to the potential Comment 2: Multiple commenters section 7 consultation (e.g., the state- for fishery management actions to be expressed concern that the critical managed herring fishery). Thus, the required through future consultations, habitat designation will place a critical habitat designation is not such as fishery closures or limiting the disproportionate burden on rural expected to change the viability or harvest of humpback whale prey Alaskan communities. One commenter management of development projects of species. The FEA quantifies costs of noted that rural Alaskan communities small Alaskan communities or consultations on fishery management already face economic threats including commercial fishing activities. The plans in Alaska, including a total of four recent ferry reductions, cuts to analysis does, however, identify the anticipated consultations on the Fishery municipal revenues, and reductions in potential for some costs to be incurred Management Plans for the Bering Sea/ Chinook salmon harvests. Several as a result of delays in in-water Aleutian Island and Gulf of Alaska commenters noted that commercial construction activities and dam groundfish fisheries and the Pacific fishing is the most important industry in relicensing, though the potential for halibut fishery over the next ten years.

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However, as described in Section 2.3.1 geographic extent or level of harvest in management due to the critical habitat of the FEA, we do not presently that fishery as a result of critical habitat designations (see responses to previous anticipate the critical habitat designation absent a regulatory comments), the FEA does not anticipate designations for humpback whales will requirement from NMFS to do so. impacts to the seafood industry. require changes to management of these Comment 5: Multiple commenters Comment 7: Multiple commenters fisheries because humpback whale prey from Alaska expressed concern that the requested that we clarify which Alaskan species are either not targeted by those critical habitat designation could result fisheries will be affected by the fisheries or are not taken in significant in changes to the management of proposed critical habitat designation, amounts overall. humpback prey species, including including state-managed fisheries and In developing the final economic herring. One local government added federally managed fisheries. analysis and in order to respond to the that herring fisheries are important to Response: The FEA provides a comments received, we sought relevant the local economy as well as subsistence discussion of the relevant Federal information from the State of Alaska to harvesters and that the impacts of any fisheries in Alaska that are subject to the understand how the state-managed changes to herring fishery management requirements of section 7 of the ESA herring fishery, which does target were not adequately considered. and thus could be affected by this rule. humpback whale prey, may be affected Response: In response to this NMFS’ authority to prescribe by the designations. Absent a Federal comment, the FEA includes a more alternatives to an agency action or to nexus requiring consultation, any detailed discussion of the economic recommend conservation efforts to conservation efforts undertaken to importance of the herring fishery to the avoid destruction or adverse change practices in the state-managed state and in particular, to Southeast modification of critical habitat as a fishery in response to the rule would be Alaska. However, there is no Federal result of a designation is through section the state’s decision, and nexus with the Alaska commercial and 7 consultation, which applies only to communications with the state did not subsistence Pacific herring fisheries, fisheries with a Federal nexus. Because indicate that the state expects to take which are managed by the State of prey are identified as the essential any such actions absent a regulatory Alaska, and therefore there is no biological feature for humpback whales, requirement from NMFS to do so. requirement for the state to engage in the fisheries of greatest relevance to this Because we are not proposing any such section 7 consultation with NMFS analysis are those Federal fisheries that regulations, the FEA’s quantified costs regarding humpback whale critical harvest prey species used by humpback are limited to those administrative costs habitat. Any restriction of these herring whales such as Pacific sardine incurred as a result of section 7 fisheries in Alaska would be at the (Sardinops sagax), northern anchovy consultation on Federal actions state’s discretion. This is discussed in (Engraulis mordax), capelin (Mallotus including Federal fishery management Section 2.3.1.3 and Section 3.2.4 of the villosus), and juvenile pollock (Gadus plans. We conclude that it would be FEA. Subsistence harvest for humpback chalcogrammus). Thus, theoretically, erroneous to quantify costs associated whale prey species (e.g., herring and fishing activities that adversely affect with hypothetical management actions capelin) occurs within some Federal these species would have the greatest that are not anticipated outcomes of this waters off Alaska and is regulated potential to result in destruction or critical habitat rule. through the Federal Subsistence adverse modification of critical habitat. Comment 4: Several commenters Management Program. According to However, because prey species are also based in Alaska noted that prior to the information from the Office of important to ensuring Federal agencies designation of critical habitat for Steller Subsistence Management at the USFWS avoid jeopardizing the listed whales and sea lions (Eumetopias jubatus), NMFS and the Alaska Region of the U.S. Forest to protecting these whales under the did not predict that changes to fisheries Service, overall participation is low and Marine Mammal Protection Act management would be required. harvest levels of humpback whale prey (MMPA), NMFS already considers how However, subsequent to the designation, species are low across all areas covered fisheries for the prey species may affect NMFS has closed multiple fisheries to in this program, especially relative to whales and provides recommendations protect Steller sea lions. Commenters harvest in the state managed fisheries. via section 7 consultation, even without are concerned that we may not Given the nature of these activities and any critical habitat designation. We do anticipate management actions in the the limited harvest, we do not anticipate not expect particular changes in the short-term, but closures could occur in any additional management measures management of these fisheries to result the future as happened with Steller sea would likely be required for these specifically from the critical habitat lions. activities as a result of the critical designation. Response: In response to public habitat designations. Geographic overlap with the critical comments received and Comment 6: Several commenters habitat designation alone is not communications with the State of requested that the economic analysis indicative of the potential for the critical Alaska, Section 2.3.1.3 of the FEA present data on the economic habitat designation to affect a fishery. includes a discussion of fisheries importance of the seafood industry to Absent a Federal nexus, incremental closures for Steller sea lions and their Alaskan communities. Two commenters impacts of this critical habitat rule may critical habitat, and the potential referenced economic information on also occur if a state elects to change the relevance to the designation of critical Alaska’s seafood industry available from management of its own fisheries as a habitat for humpback whales. As noted the Alaska Seafood Marketing Institute. result of the critical habitat designation. in the discussion, we do not currently Response: Section 2.3.1 of the FEA As discussed in the FEA, the State of anticipate any restrictions of Federal incorporates information provided by Alaska, which manages the fishery for fisheries for humpback whale prey the commenters on the economic one of the whales’ primary prey species species to result from the critical importance of the seafood industry to in Alaska (herring), has not indicated an habitat. In addition, the State of Alaska, describe employment in the industry intent to limit the geographic extent or which manages a fishery for a primary and tax contributions to the state and level of harvest in that fishery as a result prey species for humpback whales in local governments made by related of critical habitat designation absent a Alaska (Pacific herring), has not businesses. However, because we do not regulatory requirement from NMFS to indicated any intent to limit the anticipate any changes to fisheries do so.

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Comment 8: Numerous commenters the annual catch limits in the CPS the importance of prey availability stressed the need for the economic fishery are theoretically possible, it is when considering potential for jeopardy analysis to consider the value of and unlikely that the need to consider to the whales. potential impacts to fisheries and adverse modification would trigger Comment 10: Several commenters associated communities in California, different conservation efforts than expressed concern that critical habitat Oregon, and Washington. Several would already result from such designation could result in added costs commenters noted that closing areas in consultations due to the need to for in-water construction projects California to fishing would have a consider the potential for this fishery to through delays, additional staff time, the substantial impact on communities and take or jeopardize the species even hiring of consultants and attorneys, and families. Another commenter added that without a critical habitat designation. compliance with conditions set forth in any restrictions on fishing could harm The Dungeness crab fishery occurs the Federal permitting process. the livelihoods of thousands of within important humpback whale Commenters noted that construction fishermen and coastal communities all feeding areas for the MX DPS and projects are already subject to along the U.S. West Coast. This within the only documented feeding significant delays and permitting costs commenter noted that the Dungeness habitat for the CAM DPS of humpback due to the MMPA, critical habitat for crab fishery is particularly economically whales. Because there are no anticipated other species (including Steller sea valuable and requested that we exclude economic impacts on the Dungeness lions), and other Federal and state laws. all Dungeness crab fishing areas from crab fishery stemming from the critical One commenter noted that regulatory the designation to avoid catastrophic habitat designations, there is no basis to costs for waterfront projects can already economic impacts. Another commenter exclude this area from the designations. run into the hundreds of thousands of noted that the critical habitat overlaps Comment 9: One commenter dollars without critical habitat in place. with many fisheries in Washington expressed concern about the potential As a result, the commenter expressed State, including Dungeness crab, impacts of critical habitat designation skepticism that the comparatively minor albacore tuna, whiting/pollock, pink on the CPS fishery. In particular, the administrative costs included in the shrimp, groundfish, hagfish, and other commenter was concerned that the prey economic analysis reflect a full fin and shellfish. The commenter stated element of critical habitat could lead to accounting of the potential costs of that the combined ex-vessel value of lawsuits aimed at imposing additional critical habitat designation on in-water these fisheries was over $75 million in management restrictions on the CPS projects. 2019, and that many Washington coastal fishery. Additionally, the commenter Response: Section 2.6.1 of the FEA communities are dependent on these stated that the economic analysis failed acknowledges the concern that fisheries. Another commenter noted that to consider potential negative impacts to additional regulatory burden introduced local fishing communities and families, through the critical habitat designations commercial fisheries in Oregon landed and did not capture the full economic may generate project delays, and over $150 million in ex-vessel value in contribution of the CPS fishery, identifies this as an uncertain and 2019. This commenter added that any including the role of the CPS fishery as potential unquantified cost of the rule. restrictions on Oregon fisheries as a live bait for recreational fisheries along The FEA does quantify some additional result of the critical habitat designations the entire U.S. West Coast. time required to consider adverse could have a significant economic Response: Any new conservation modification as part of the section 7 impact on Oregon. Another commenter efforts in the CPS fishery resulting from consultation process. This additional stated that if NMFS anticipates any the critical habitat designation would time, as reflected in the incremental commercial fisheries closures as a result have the potential to impact the fishing administrative costs, is most likely of critical habitat, the costs of those industry and fishing-dependent minor as it is unlikely that the proposed closures must be analyzed. communities. However, as described in critical habitat designation will result in Response: The FEA recognizes the Section 2.3.2.1 of the FEA, we do not changes in the outcome of future section economic value of fisheries to anticipate that any additional 7 consultations on in-water construction communities in Washington, Oregon, conservation efforts, including closing activities. As indicated in the and California (see Section 2.3.2 of the areas to fishing, will be required solely discussions in section 2.6 of the FEA, FEA). We note that most of the as a result of the designation of critical existing baseline protections for the commercially-harvested species habitat, and any further conservation whales, other marine mammals, and referenced in the comments are measures that could potentially be water quality, are likely to confer a high managed by the states (e.g., Dungeness required in the future for this fishery are level of protection for humpback whale crab) and/or are not humpback whale not expected to differ from those that prey species and humpback whale prey species (e.g., crab, tuna, shrimp, would already be required to avoid feeding activity. However, the costs hagfish). Therefore, we do not anticipate jeopardizing the listed whales. Previous related to permitting and delays for in- that any additional conservation efforts, consultations on the fishery have water construction described in this including closing areas to fishing, will considered but not included a comment are attributable to preexisting be required as a result of the quantitative analysis of the impacts of protections such as the MMPA or designations of critical habitat. removal of prey species on humpback existing critical habitat designations for However, as discussed in Section 2.3 of whales due to lack of data and the other species and are therefore part of the FEA, the CPS fishery is a federally necessary analytical tools. Future the baseline of the economic analysis. managed fishery that does directly target consultations on the CPS fisheries are That is, they are costs associated with primary prey species for humpback likely to consider potential effects on species protection that would be whales. Thus, this particular fishery humpback whales and their habitat to incurred regardless of whether may affect the identified essential the extent possible on the basis of the humpback whale critical habitat is feature of the designated critical best information available at such time. designated and are therefore not habitats. The FEA discusses and we However, as previously stated, critical included as incremental costs of this acknowledge that while additional habitat is not expected to affect rule. The fact that requirements for in- conservation efforts, such as stock conservation efforts recommended as water construction relative to the assessments or changes in restrictions to part of these consultations, because of MMPA are already in place, and that

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these costs are already incurred, Comment 12: Numerous comments that are carried out within the proposed supports the FEA finding that stated that the DEA did not adequately critical habitat, the role of the state in substantial baseline protections exist for evaluate the potential for economic managing these activities, and the status the humpback whales. impacts to hatchery operations in of the industry and predicted future Comment 11: The Alaska Department Alaska. One commenter expressed trajectory. It discusses state-level of Transportation and Public Facilities concern that critical habitat designation initiatives promoting and seeking to (DOT&PF) noted that as early as May could adversely impact operations at expand the growth of aquaculture in the 2020 they could have four projects start existing hatcheries and delay or prevent state, resulting in an anticipated in-water construction, and that they the permitting of new facilities. Another increase in activity levels in the future, have six planned projects that could commenter added that the guided but explains that the state is not able at enter section 7 consultation this year. recreational fishing industry in Alaska this time to anticipate the future levels Alaska DOT&PF expressed concern that relies on salmon hatcheries to subsidize of activity. The DEA relied upon the critical habitat designation could wild stocks, thus any impacts to history of consultations for these require consultations on these projects hatcheries would also impact the activities in Alaska to estimate the to be reinitiated and that in-water work charter fishing industry. number and location of future activities could be shut down during the Response: Section 2.8 of the FEA has to develop an estimate of the reinitiation process. Alaska DOT&PF been expanded to include a more administrative costs that would likely noted that stopping or delaying projects specific discussion of salmon hatcheries result from the designation. Prior to would result in significant economic as an industry with the potential to be 2014, an Aquaculture General Permit impacts. affected by the critical habitat issued by the U.S. Army Corps of designation, and notes the concerns Response: Section 2.6.1 of the FEA Engineers (Corps) covered most aquatic expressed in the comments regarding discusses the potential costs that could farm permits, limiting the need for potential economic impacts. However, be incurred should the critical habitat individual consultations. This General as noted in the report, the analysis finds designation result in project delays. Permit expired in 2014. As described in that the anticipated costs associated Regulations at 50 CFR 402.16(a) require Section 2.8, the expiration of the with this industry are minimal. The General Permit and the recognition by Federal agencies that have retained Alaska Region of NMFS has received the Corps of a broader array of potential discretionary involvement or control only infrequent consultation requests impacts on listed species from these over an action, or where such related to salmon hatchery operations; activities is expected to increase the discretionary involvement or control is in certain limited cases, informal number of consultations in the future. authorized by law, to reinitiate section 7 consultations have been These developments have resulted in an consultation on previously reviewed requested (Letters of Concurrence), increased anticipated number of actions in instances where: (1) New resulting in some administrative costs, consultations, which is now reflected in information reveals effects of the action which are captured in the analysis. the FEA. that may affect listed species or critical Follow-up conversations with the Comment 14: One commenter stated habitat in a manner or to an extent not Alaska Department of Fish and Game that the impacts assessment only previously considered; (2) the identified (ADF&G) confirmed that no specific considers present conditions and action is subsequently modified in a type or extent of costs are missing from expressed concern regarding manner that causes an effect to the the analysis as it relates to this activity. implications for future activities. listed species or critical habitat that was Comment 13: Multiple commenters Response: The FEA acknowledges not considered in the biological opinion stated that the DEA did not consider the that the level and locations of many or written concurrence; or (3) a new potential impact of critical habitat activities change over time. This fact is species is listed or critical habitat designation on mariculture activities, particularly relevant in the case of designated that may be affected by the including the shellfish and seaweed emerging activities such as renewable identified action (50 CFR 402.16(a)(2)– industries, in Alaska, particularly energy development. To the extent (4)). Consequently, some Federal Southeast Alaska. Commenters stated possible, given available supporting agencies may request (or we may that both of these industries are data, the analysis relies upon planning recommend) reinitiation of consultation expected to grow substantially in the documents and information from on actions for which consultation has near future. One commenter specified Federal action and state agencies to been completed, if those actions may that the seaweed industry in Alaska is project the best possible forecast of the affect designated critical habitat for the still in its infancy and that any future rate, location, and types of humpback whales. However, we do not additional impacts due to critical activities that are likely to be subject to anticipate that any such projects would habitat could be particularly damaging. section 7 consultation over the next ten experience significant delays due to The commenter noted that the existing years. For example, in the case of reinitiation of consultation to take into state and Federal permitting process aquaculture and hatcheries, the State of account impacts on critical habitat, already takes upwards of two years. Alaska informed us that they expect the because adverse effects to prey species Response: In response to this level of activity to increase over the next for humpback whales are generally comment and based on information ten years from current levels. In already considered as part of the provided by ADF&G in response to response to this information, the FEA analysis of the proposed action’s outreach from the contracted economic now reflects a higher rate of activity (12 impacts to the species as part of the firm (Industrial Economics, Inc.), the consultations per year) in Alaska than jeopardy analysis. Even if consultation FEA estimates 12 consultations per year the level estimated in the DEA. is reinitiated for such projects, this will occur for these federally permitted Comment 15: The Alaska Department would not necessarily require in-water activities, which increases the of Environmental Conservation (ADEC) work to be shut down during anticipated economic impacts on this stated that the economic analysis did consultation, which would need to be activity from what was presented in the not include certain costs to state assessed in the context of each situation DEA. Section 2.8 of the FEA includes an agencies. They stated that the economic and taking into account the expanded discussion of the multiple analysis did not acknowledge that requirements of section 7(d). types of aquaculture activities in Alaska pursuant to the Clean Water Act (CWA),

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the State of Alaska has had primacy Response: The additional time, cost, estimates a total of approximately five over the Alaska Pollutant Discharge and effort associated with consultations consultations between 2020 and 2029 in Elimination System (APDES) since subsequent to critical habitat this area (Unit 6), and total costs of 2012. ADEC requested that the designation is included in the $17,700 costs over the next ten years economic analysis include costs to the administrative costs captured in the (Total Present Value, 7 percent Discount Alaska state government for analysis. Specifically, the analysis Rate). consideration of critical habitat during assumes these costs would be incurred Comment 18: Several commenters consultation on individual and general for consultations on three dam-related requested that the economic analysis permits under the CWA and provided activities in Unit 10 (Southeast Alaska) provide additional information on the information on the number and nature over the next 10 years. Delays in FERC economic benefits of humpback whale of these consultations. They also dam relicensing resulting from the conservation. These commenters cited specified that the cost estimates in the critical habitat designation, to the extent reports by the International Monetary report for consultations with the Corps any are likely to occur, that are not Fund (IMF), the University of Alaska’s on CWA section 404 permits should already captured by those costs would Center for Economic Development, and include the cost to ADEC for issuing a be an incremental impact of the rule. the U.S. Department of Commerce Section 401 Certificate of Reasonable Consultations between NMFS and FERC Bureau of Economic Analysis with Assurance (‘‘401 Certification’’) during the past 10 years on dam-related information on the value of wildlife confirming that state water quality activities in Southeast Alaska have been viewing to Alaska’s economy and the standards are being met. ADEC stated completed through informal ecosystem service value of great whales. that economic impacts are consultations that considered impacts to Response: NMFS appreciates underestimated without including these listed humpback whales as well as receiving these additional references. state permitting actions. Steller sea lions. Based on our Additional information regarding Response: In response to this consultation record on such projects in benefits of humpback whale comment and based on information Southeast Alaska, we do not anticipate conservation has been incorporated into provided by ADEC with their comment that the additional consideration of Section 4.1.2 and 4.1.3 of the FEA as and in response to outreach, Section impacts to critical habitat would affect appropriate. In addition, we note here, 2.12 of the FEA clarifies Alaska’s role in the outcome of consultations on these that the recent IMF report (Chami et al. National Pollutant Discharge projects, and thus the potential for 2019) attempted to quantify the Elimination System (NPDES) permitting delays of these projects that would economic value of a large whale over its and development of water quality occur due to the critical habitat is low. lifetime by considering the value of standards, including administration of However, the analysis highlights the carbon sequestration by a large whale as General Permits for seafood discharges potential for the critical habitat rule to well as the value of other contributions, and cruise ship discharges, through the generate project delays as an uncertain such as fishery enhancement and APDES program. It further describes impact that is too speculative to ecotourism. While we cannot identify that the state presently devotes quantify. the values estimated in this report as substantial effort and resources to In communications with ADEC, the specific economic benefits resulting ensuring that its water quality agency confirmed that it does not directly from this rule, we do agree that, management activities are protective of consult with NMFS on individual as a general matter and as discussed in listed species and their habitat, even discharge permits, including for ecological literature cited in the report, absent designated critical habitat for activities occurring within critical certain benefits, including multiple humpback whales. However, the state habitat, and that only minimal ecosystem services, can be derived from agency is not required to consult with incremental costs are incurred conservation of large whales. NMFS on individual discharge permits considering potential effects on Comment 19: Two commenters stated under section 7 and, according to threatened and endangered species that the economic analysis information provided by ADEC, the pursuant to state regulations, regardless overestimates the value of whale state agency incurs minimal costs of the critical habitat designation. As a watching activities in Alaska. One during permit development associated result, it is unlikely that additional costs commenter stated that the regional with demonstrating a discharge will not would be incurred related to issuance of expenditure estimates are misleading adversely affect an endangered species. individual NPDES permits (as the State since the bulk of the expenditures are As such, designation of critical habitat of Alaska has primacy for issuing these not actually spent within Alaska. is unlikely to result in any incremental permits, the state refers to them as Another commenter expressed concern costs to the state outside of the ‘‘APDES permits’’). (See also the that the economic values presented are administrative costs that would already response to Comment 15 above.) not exclusive to whale watching. be associated with regular re-issuance of Comment 17: One commenter stated Response: As described in Section 4.1 the two general permits, which are that the analysis may overlook oil and of the FEA, the analysis does not reflected in the FEA. gas activity in state waters in Cook Inlet. attempt to quantify the incremental Comment 16: One local government Response: The analysis presented in economic benefits resulting from critical in Southeast Alaska expressed concern the DEA included consideration of oil habitat designation (including those that critical habitat designation could and gas activities in both state and related to whale watching) because of add delays and costs to the Federal Federal waters, and quantified the the difficulty of isolating the effect of Energy Regulatory Commission’s (FERC) incremental administrative costs the designation on humpback whale licensing and oversight process for associated with those activities. Section populations separately from all other power plants. The commenter also 2.4.1 of the FEA includes a more ongoing and planned conservation stated that any changes to the NPDES detailed description of the extent and efforts for the species. The studies discharge permit for a local wastewater geographic distribution of oil and gas presented in Chapter 4 of the DEA were treatment plant due to the critical activities in state waters, including a intended only to provide evidence that habitat designation would negatively map of existing oil and gas activities in the public holds a positive value for affect citizen rate payers who fund the state waters and the state’s role in efforts that either increase humpback operation of the plant. managing those activities. The analysis whale populations, or increase the

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probability of recovery for the species. aquaculture. However, as indicated in proposed critical habitat. The They are not intended to specifically this chapter, the estimated costs for in- commenter requested that the economic quantify the economic benefit of the water construction activities are based analysis consider potential impacts to critical habitat designation. on projects occurring in Unit 10. vessel traffic not just for TSS areas but The whale watching expenditure Because Unit 10 is excluded from the along the entire coastal area proposed statistics presented in Exhibit 4–2 of the final designation for the MX DPS, the for designation. FEA represent both direct spending on estimated $5,200 per year for small Response: As described in Section 2.7 whale watching tickets as well as entities would not be incurred. The of the FEA, we do not anticipate that the estimated spending in the local analysis estimates that 12 aquaculture critical habitat designation will generate economy by whale watch participants. consultations per year are distributed additional conservation efforts for For example, in Alaska, the $540 across the critical habitat units in humpback whales associated with million in estimated expenditures Alaska, with six occurring in Unit 10, vessel traffic management. As such, the represents $480 million in whale and six occurring in southcentral (Units FEA estimates that incremental costs watching ticket sales and $60 million in 6–9) and southwestern Alaska (Units 1– will be limited to the additional additional spending in the local 5). Again, because several of these areas administrative costs of consultation. economy attributable to whale watching are excluded from the final designations The FEA assumes that, based on the best participants. (Unit 10 in particular), the estimated available information, the past rate of Comment 20: Multiple commenters $5,300 per year expected to be borne by consultation on vessel traffic stated that administrative costs to small small entities is an overestimate, and management is reflective of the future entities are underestimated. One local costs to small entities is estimated to be rate of consultation. From 2007 to 2017, government stated that the estimated half of that amount. the USCG consulted with NMFS on cost of $4,900 per year to small entities The direct expenses and delay costs three projects related to vessel traffic is significantly underestimated, as the currently incurred by third parties for management, including one formal local government said they already pay in-water construction permitted under consultation regarding a TSS more than that in direct expenses and the MMPA are not costs resulting from modification and two informal delay costs for in-water construction the critical habitat designation and thus consultations related to aids to projects permitted under the MMPA. are not appropriate to include in the navigation (replacement of existing Response: The costs to small entities cost estimate for this rule. That the structures). Current economic costs identified in the comment represent an existing administrative costs resulting resulting from vessel traffic re-routing incremental administrative cost of from requirements that predate and are and voluntary vessel speed restrictions participation in section 7 consultations unrelated to the critical habitat that have already been implemented in borne by a third-party engaged in designation are high does not indicate the TSS area would not be considered section 7 consultation (e.g., local that costs are underestimated for this incremental impacts of the critical governments or private businesses). The rule. habitat designation because they predate economic impacts identified in Chapter Comment 21: One commenter noted and are completely separate from the 3 of the FEA represent the total that the IRFA lists the Wrangell- designation and thus are not quantified economic impacts that would be Petersburg Census Area as a small in the FEA. anticipated to be incurred as a result of government jurisdiction adjacent to Comment 23: Two commenters stated designating all specific areas meeting critical habitat that may be involved in that scientific research should be the definition of critical habitat (i.e., not future consultations. The commenter included in the economic analysis as an factoring in any exclusions of areas). Of stated that the Wrangell-Petersburg activity that may be affected by critical those costs, only a portion of that total Census Area no longer exists and that it habitat designation. The commenters cost would potentially be incurred by should be replaced in the IRFA with specifically referenced field operations third parties, and of those third parties, Petersburg Borough and the City and within National Marine Sanctuaries and only a portion would be considered Borough of Wrangell. basic marine research supported by the small entities. Chapter 5 of the FEA Response: NMFS appreciates this National Science Foundation (NSF) identifies the potential impacts of comment and has updated Chapter 5 of (e.g., NSF Ocean Observatories critical habitat designation on small the FEA accordingly. Initiative). One commenter entities. Comment 22: Several commenters recommended that we list this category Chapter 5 begins by identifying the expressed concern about potential of activity as part of our summary of universe of activities in which third changes to vessel traffic management in activities that may adversely modify the parties are likely to be party to a section response to the designation of critical critical habitat or be affected by the 7 consultation, and for which there is habitat. Two Alaskan communities designation per section 4(b)(8) of the more than one consultation anticipated noted that they are reliant on ship ESA. per year across all critical habitat areas. traffic, including commercial and sport Response: The DEA previously ‘‘In-Water Construction’’ and fishing fleets and the cruise ship included scientific research activities ‘‘Aquaculture’’ are identified as the only industry. One commenter noted that under the Oil and Gas and Seismic activities for which it is likely that a vessel traffic regulations in the Traffic Surveys activity category, as the small entity may be party to a Separation Scheme (TSS) areas of consultation history related to that consultation (e.g., as a permit California and Washington already activity indicated that scientific applicant), and where more than one result in economic costs to the maritime research activities consisted exclusively consultation is anticipated annually industry, and expressed concern about of seismic research. In response to this across the critical habitat area. Based on additional conservation efforts in comment, the FEA has been revised so the revised analysis presented in critical habitat. The commenter also that it now groups scientific research as Chapter 5 of the FEA, we estimate that noted that ships traveling along the a separate activity category and also $5,200 per year may be borne by small West Coast off the United States, considers a more complete suite of entities involved with in-water including Alaska, follow recommended scientific research activities taking place construction, while $5,300 per year may routes developed by the U.S. Coast within the proposed critical habitat (see be borne by small entities engaged in Guard (USCG) that overlap with the Section 2.4 of the FEA). Both the DEA

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and FEA assume, based on the best costs to these activities that may result designated critical habitat, the available information, that the past rate from critical habitat designation. likelihood, timing, and outcome of such of consultation on scientific research is Comment 25: One commenter stated lawsuits are uncertain. Data do not exist reflective of the future rate of that the economic analysis was to reliably estimate the potential consultation. To further address this arbitrarily truncated at ten years. impacts of such legal actions. Any comment, we have also added research Response: As described in Section attempt to estimate the number, scope, activities to the discussion in this rule 1.3.3.7, for regulations with a and timing of potential legal challenges regarding activities that may adversely predetermined duration, the time frame would entail significant speculation. affect the critical habitat or be affected of the economic analysis would ideally Furthermore, such litigation risk already by the critical habitat designations (see be based on the time period over which exists in light of existing protections section on Activities That May Be the regulation is expected to be in place. already afforded the whales under the Affected). However, guidance from the Office of MMPA and by virtue of their listing Comment 24: Several commenters Management and Budget (OMB) under the ESA. In response to this expressed concerns regarding the indicates that ‘‘if a regulation has no comment, Section 2.3.1.3 of the FEA consideration of in-land activities in the predetermined sunset provision, the now describes the concern and potential economic impact analysis, stating that agency will need to choose the endpoint for this type of impact; however, it the regulation appears to overreach by of its analysis on the basis of a judgment concludes that determining the extending to upland areas that are not about the foreseeable future.’’ (U.S. outcomes of such lawsuits would be even inhabited by the whales. One Office and Management and Budget, speculative. commenter also stated that references to Circular A–4). Because critical habitat ‘‘timber’’ are not explained in light of designation rules have no pre- Benefits of Critical Habitat Designation the recreational, silviculture, habitat determined sunset, we had to determine Comment 27: Numerous commenters restoration, mineral exploration and the endpoint for the analysis based on stated that critical habitat is crucial to extraction, road construction and a judgment as to the ‘‘foreseeable supporting the recovery of humpback maintenance, and many other activities future’’ as supported by the best whales and will result in additional that routinely occur on national forest available information. The information ecological, educational, and economic lands. on which this analysis is based benefits. Commenters specifically noted Response: The scope of the impact includes, but is not limited to, the significant economic benefits that analysis includes Federal actions that information regarding activities that are could extend to the whale-watching, ‘‘may affect’’ the critical habitat and that currently authorized, permitted, or outdoor recreation, and tourism will therefore require section 7 funded, or for which proposed plans are industries, especially in Alaska, and consultation. Thus, the universe of currently available to the public. how these activities can in turn provide relevant Federal actions is not limited to Forecasted impacts are based on the public education and increased public projects and activities located within planning periods for potentially affected support for whale conservation. the critical habitat, but also includes projects and look out over a ten-year Multiple commenters stated that actions with effects that may extend into time horizon. The time frame we have improved conservation of the humpback and potentially affect the critical adopted is consistent with OMB whales and their habitats would have habitat. The vast majority of Federal guidance stating that ‘‘for most agencies, multiple ecosystem and environmental actions considered in the FEA would, a standard time period of analysis is ten benefits, for example through enhancing however, take place within the to 20 years, and rarely exceeds 50 years’’ phytoplankton productivity and boundaries of the critical habitat. We (OMB, February 7, 2011, Regulatory sequestering carbon, as well as scientific have made revisions to the FEA to Impact Analysis: Frequently Asked benefits. Commenters also noted that separately identify the costs associated Questions). The time frame selected in protecting humpback whale prey, such with U.S. Forest Service activities, and this case is consistent with long- as krill and herring, through the critical in Section 2.14 of the FEA, we explain standing NMFS practice, Executive habitat designations will benefit the the nature and type of timber-related Order (E.O.) 12866, OMB Circular A–4 many other marine predators that rely activities that have been subject to and the cited implementing guidance. on these species and is thus an section 7 consultation. Much of the Comment 26: One commenter stated economically and ecologically sound Forest Service-related activities that even if NMFS does not currently decision. Some commenters stated that described in the comments occur in anticipate significant economic with the rapidly changing marine food terrestrial habitat and do not pose a consequences of critical habitat webs, as evidenced by the collapse of threat to humpback whales or their designation, the designation could lead multiple fisheries and sea-bird die offs habitat (and as a result, would not be to lawsuits from advocacy groups aimed in Alaska, critical habitat protection for subject to section 7 consultation to at imposing additional conservation humpback whales is all the more consider effects on the humpback whale efforts. As an example, the commenter important for the positive benefits it or its habitat and therefore would not cited recent legal notice from the Wild could have on the larger ecosystem. experience any associated costs Fish Conservancy that they will sue Commenters noted that due to their resulting from the critical habitat NMFS if actions are not taken to stop various ecosystem, fisheries, and designation). However, past recreational and commercial fisheries economic contributions, individual consultations on Forest Service from intercepting Chinook salmon large whales have recently been valued activities do identify a limited number stocks that serve as prey for Southern at $2 million per whale in a recent study of potential impacts to marine species Resident Killer Whales. Another released by the International Monetary and/or their habitats (particularly from commenter noted that critical habitat Fund, and that this economic value for timber activities in Alaska), including would make the permitting process less the larger community should therefore impacts from the transportation of predictable and would open up reviews be considered alongside concerns about timber on barging routes used for log of infrastructure projects to court potential economic costs. transport, and impacts on water quality challenges. Response: We appreciate these related to log transport facilities (LTFs). Response: While the potential exists comments and the associated references The FEA quantifies the administrative for third party lawsuits involving provided by the commenters. We agree

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that the critical habitat designations for the west coast of the contiguous states the particular species and its life history the WNP, MX, and CAM DPSs of and the northern side of the Eastern needs. Stated generally, critical habitat humpback whales can have multiple Aleutians BIA for the MX DPS and as defined in section 3 of the ESA ancillary and indirect benefits, such as limited to the northern side of the includes areas and habitat features that those identified by the commenters. Eastern Aleutians BIA for the WNP DPS. are essential to or for the conservation Such benefits are discussed in Section They therefore recommended the final of the listed species (16 U.S.C. 4(b)(2) Report (NMFS 2020b), and the designations for the WNP and MX DPSs 1532(5)(A)). The term ‘‘conservation’’ is additional information regarding be limited to those specific areas. further defined in section 3 of the ESA potential economic benefits has been Response: We reviewed the comments as using and the use of all methods and incorporated as appropriate into and the State’s analysis, but did not procedures necessary to bring any Sections 4.1.2 and 4.1.3 of the FEA. adopt the particular recommendations endangered or threatened species to the However, as we discuss in the Section for several reasons. First, the conceptual point at which their protection under 4(b)(2) Report, the existing data are not approach proposed by the State finds no the ESA is no longer necessary (16 sufficient to allow us to monetize all of legal basis in the text of the ESA or in U.S.C. 1532(3) (defining ‘‘conserve,’’ these benefits and distinguish the extent caselaw. The ESA directs us to ‘‘conserving,’’ and ‘‘conservation’’)). to which they would be attributable to designate critical habitat to the Therefore, critical habitat is expressly the critical habitat designations (over maximum extent prudent and defined so as to include not just areas and above the benefits of protections determinable, and we have necessary to support the continued already afforded through the ESA implemented that requirement through survival of the species, but also those listings and other ongoing conservation our joint implementing regulations with that further its recovery and removal efforts). the USFWS (see 50 CFR 424.12). The from the list of threatened and regulations set out a series of stepwise Comment 28: The ADF&G stated that endangered species. See Gifford Pinchot analytical steps for developing a critical designating very large areas as critical Task Force v. U.S. Fish and Wildlife habitat designation. The statute, habitat dilutes the conservation benefits Serv., 378 F.3d 1059, 1070 (9th Cir. implementing regulations, and caselaw of the critical habitat and recommended 2004) (‘‘Clearly, then, the purpose of guide us in our evaluation of areas that that, as a general matter, the size of the establishing ‘critical habitat’ is for the meet the definition of critical habitat, critical habitat be considered when government to carve out territory that is and none of these sources provide determining areas to include in a not only necessary for the species’ support for the new analytical approach survival but also essential for the designation. They stated that this advocated by the commenter. ‘dilution effect’ occurs from our species’ recovery.’’); Sierra Club v. U.S. Application of the State’s proposed Fish and Wildlife Serv., 245 F.3d 434, approach to designations because the approach would seem to require that evaluation of adverse modification 442 (5th Cir. 2001) (noting that the once the cumulative area meeting the ESA’s definition of critical habitat ‘‘is under section 7 of the ESA is based on definition of critical habitat reaches a impacts to the whole of the designated grounded in the concept of certain (unspecified) size, then ‘conservation’ ’’); Center for Biological critical habitat; therefore, the larger the particular areas meeting the definition area designated as critical habitat, the Diversity, Defenders of Wildlife v. Kelly, of critical habitat would be 93 F. Supp. 3d 1193, 1201 (D. Idaho less likely a proposed activity will result automatically excluded from the in a ‘‘may negatively affect’’ (in an 2015) (noting that critical habitat is designation on the assumption that the ‘‘defined and designated ‘in relation to informal consultation) or a ‘‘destruction benefit of their designation would be areas necessary for the conservation of or adverse modification’’ finding (in a presumed to be outweighed by any costs the species, not merely to ensure its formal consultation). They stated we associated with designating those areas. need to explain that critical habitat Under the ESA and our regulations, survival.’ ’’) (quoting Arizona Cattle provides conservation through areas meeting the definition of critical Growers’ Ass’n v. Salazar, 606 F.3d examination of impacts to the ‘‘whole’’ habitat are to be designated as critical 1160, 1166 (9th Cir. 2010)). Thus, courts of critical habitat so the public habitat unless the Secretary elects to have recognized that the ‘‘whole point understands the likelihood of a exercise his discretion to consider behind designating critical habitat is to conservation action. They provided exclusion of particular areas under identify those physical and biological their analysis of the conservation section 4(b)(2) of the ESA. Where the features of the occupied area and/or benefits of increasingly large areas to Secretary enters into such an analysis, those unoccupied areas that are demonstrate this effect. They asserted he has discretion to exclude particular essential to the conservation of a species that large critical habitat designations areas from a designation if the benefits with the aim of arriving at the point mask negative effects in truly essential of excluding that particular area where the species is recovered, i.e., no habitats, undermining the education outweigh the benefits of its designation. longer in need of the measures provided value of critical habitat and by assigning His discretion is not unlimited. He may for in the ESA.’’ Kelly, 93 F. Supp. 3d a single value (i.e., ‘‘critical’’) to all not exclude an area if failure to include at 1201. areas, and hiding important that area in the designation will result A critical habitat designation heterogeneity in conservation value. in extinction of the species. Further, the therefore must be developed based on They concluded that designating very Secretary’s analysis must reflect consideration of the type and nature of large areas as critical habitat results in consideration of the specific the habitat needed by the particular more complex consultations and more information in the record for each species to support its recovery. costs without providing corresponding particular area. The statute does not Humpback whales are large, highly conservation benefits. Based on the mandate exclusions of areas, and migratory marine species that use vast results of their analysis, ADF&G also individual determinations must be areas of oceanic habitat to carry out concluded that the critical habitat made on the basis of the best available their normal life functions and designation that would provide the information to support each particular behaviors. Individual humpback whales greatest conservation value would be area that is ultimately excluded. feed over thousands of square one that was limited to the existing Secondly, the State’s proposed kilometers (e.g., Mate et al. 2018, Biologically Important Areas (BIAs) off approach does not appear to account for Palacios et al. 2020) and target prey that

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vary spatially and temporally in terms impacts to habitat at the outset. Thus, much weight to assign each factor (see of their distribution, availability, and the benefits of a critical habitat 50 CFR 424.19(c)). In light of the energy content in response to changes in designation cannot be measured simply purpose of critical habitat under the ocean and climate conditions (e.g., by the number of ‘‘destruction or ESA (to support the conservation, or NOAA 2020). The size of the habitat adverse modification’’ determinations recovery, of the species) and the that is essential to support the recovery that may or may not be the outcome of statutory mandate to designate critical of the listed humpback whales should, future section 7 consultations. Although habitat to the maximum extent prudent and does, reflect these factors. The the State acknowledges some of these and determinable, it is reasonable to feeding areas being designated as benefits in their comments, such as give great weight to the conservation critical habitat for each DPS reflect the project design changes and adoption of value of the habitat, and greatest weight life history needs of the whales, mitigation and minimization measures to areas with the highest conservation represent only a portion of their total during informal consultations, these value. occupied ranges, and represent a types of positive conservation outcomes Lastly, we do not agree that large fraction of the U.S. Exclusive Economic are not factored into their analysis. critical habitat designations undermine Zone (EEZ) where humpback whales are Further, we disagree with the State’s conservation because they provide a known to occur (e.g., roughly 15 percent assumption that larger critical habitat single value, i.e., ‘‘critical,’’ to all areas, for the MX DPS). Thus, the final critical designations necessarily result in more hide important heterogeneity in habitat designations, though large, complex section 7 analyses or result in conservation value, and mask impacts correspond to the needs of the species more costs without a conservation on truly important habitats. The as reflected in the best available science benefit. The complexity and cost of a Secretary has the authority to map and consistent with the requirements for consultation are a function of the scope critical habitats at a scale the Secretary and the purpose of critical habitat under and nature of the particular Federal deems appropriate (50 CFR 424.12(b)(1)) the ESA. action, as well as the number of listed and, when several habitats, each species and designated critical satisfying the requirements for Third, in asserting that there should habitats—not the size of the overall designation as critical habitat, are be an upper limit on the appropriate designations—that are affected by the located in proximity to one another, the size for a critical habitat designation, the Federal action. The large majority of the Secretary has the authority to designate State’s analysis presumes that there is a consultations completed in Alaska are an inclusive area as critical habitat (50 theoretical tipping point at which in fact informal consultations (that CFR 424.12 (d)). The ESA also ‘‘adverse modification’’ outcomes in conclude with a letter of concurrence establishes and defines the concept of future section 7 consultations would that the action is not likely to adversely ‘‘critical habitat,’’ without distinction become unlikely. Beyond this point, affect the habitat rather than with a for different degrees of ‘‘criticalness.’’ In once a certain amount of high- biological opinion), and this pattern is implementing the ESA, we must apply conservation areas are identified for not expected to change based on the the statutory definition and regulatory inclusion in the designation, the State types of Federal projects that are provisions on the basis of the best asserts there is categorically no forecasted to occur over the next 10 available scientific information. We see conservation benefit of including years in Alaska. no legal basis for recognizing novel tiers additional, relatively lower-value In their proposed approach, the State of habitat not recognized in the ESA, critical habitat areas in the designation. stated that the most important habitat and the State points to none; nor is it Thus, they conclude, these lower-value areas should be prioritized for necessary to do so. Furthermore, section areas should be excluded under section designation. Although, as indicated 7 consultations evaluating impacts of an 4(b)(2) of the ESA, because the above, we did not adopt the State’s action on designated critical habitat take economic impact of designating these proposed method for assessing the into consideration the best available areas should be thought of as conservation value of areas or making data for the given species and its categorically outweighed by the benefits decisions regarding exclusions under habitat, including relevant data of designating them (which they assert section 4(b)(2), we do agree that areas regarding habitat heterogeneity as well are non-existent or even negative). We found to have greater importance to the as distribution patterns of the listed fundamentally disagree with this species’ conservation on the basis of the species across the critical habitat. When conceptual approach to determining the best available scientific data should evaluating impacts to large critical appropriate extent of critical habitat receive greater weight, relative to less habitats in the context of a consultation, designations and how to evaluate areas biologically important areas, when we consider how the particular Federal for exclusion under section 4(b)(2). comparing the benefits and impacts of action would affect the relevant area, There are several errors in the State’s designating particular areas in a section features, and function of the designated approach, including reliance on an 4(b)(2) analysis. As we have done in the habitat and how that in turn affects the assumption that critical habitat only course of many previous designations, overall conservation value of the critical provides conservation benefits to the this was achieved in our analysis by habitat for the listed species. In other listed species when there is an adverse assigning relative conservation values to words, designating large areas as critical modification outcome of a consultation specific areas for each DPS and in how habitat does not remove the requirement under section 7 of the ESA. This is we weighed these values against the that we rely on the best available inconsistent with our experience. Where forecasted impacts of designation. science when conducting section 7 a consultation does not result in a Through our approach, areas considered analyses, does not interfere with our finding that an action would be likely to to have greater importance to the ability to understand the nature and cause destruction or adverse conservation of each DPS were in effect magnitude of particular impacts on the modification of the habitat such that prioritized for designation above areas critical habitat, and does not undermine major changes would be required to the that are considered to be less important. conservation. proposed action, the process of This is appropriate under the statute Overall, we find that the analysis consultation can, and often does, lead to and our regulations because, in the provided by the State does not support conscious structuring by Federal 4(b)(2) process, we must determine restricting the critical habitat agencies of their actions to minimize which factors are relevant and how designation to the areas suggested by the

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State—i.e., to the northern portion of the may result from section 7 consultations. species, an area meeting the definition BIA in the Aleutian Islands Area (Unit As discussed in the proposed rule and of critical habitat draws inherent but 2) and the seven BIAs off the coasts of Section 4(b)(2) Report, while it is true unquantifiable value from fulfilling that Washington, Oregon, and California. that the primary, regulatory benefit of statutory mandate. In considering (BIAs, which were discussed in the critical habitat designation stems from potential exclusions under section proposed rule (84 FR 54354, 54366, the ESA section 7(a)(2) requirement that 4(b)(2) and its implementing October 9, 2019) are discussed in more all Federal agencies ensure that their regulations, moreover, the Secretary has detail in response to other comments actions are not likely to destroy or discretion to determine the factors to be specific to the BIAs in the next adversely modify the designated habitat, considered and what weight to assign subsection.) We also note that such a several non-regulatory benefits of them in comparing the benefits of designation would eliminate from the designation are also recognized. For exclusion with the benefits of inclusion critical habitat known feeding example, critical habitat provides notice (50 CFR 424.19(c)). In carrying out our destinations for WNP DPS and MX DPS to other Federal agencies of areas and analyses, it is not possible using the best whales, and particularly for MX DPS features important to species available scientific tools to quantify the whales that breed off the Revillagigedo conservation; provides information effect that a critical habitat designation Islands, which preferentially feed in about the types of activities that may would have on recovery of humpback areas off Alaska. reduce the conservation value of the whales over and above other separate, In the proposed rule, we described the habitat; and may stimulate research, preexisting protections, including those effects of critical habitat designations, voluntary conservation actions, and that extend from listing under the ESA. and consistent with the requirements of outreach and education activities. In our analysis, we used the CHRT’s section 4(b)(8) of the ESA, we provided Although the critical habitat is not relative conservation value ratings to a brief discussion of those activities expected to change NMFS’ represent the relative conservation (whether public or private) that may identification of conservation efforts for benefits of designating specific areas adversely modify the proposed critical humpback whales through section 7 identified as critical habitat for each habitat or that may be affected by such consultations, the adverse modification DPS. The CHRT’s ratings of the relative designation. Such information is also analysis conducted as part of section 7 conservation value of the critical habitat provided in this final rule. The consultations can provide useful were based on relevant biological regulatory definition of ‘‘destruction or scientific information to build upon considerations (e.g., distribution of adverse modification’’ has been added NMFS’ and other Federal agencies’ whales from the DPS across the areas, to that discussion to provide additional understanding of the biological needs prey availability or evidence of information regarding the effect of of, and threats to, the humpback whales consistent feeding). This approach critical habitat designations. and their habitat. The draft and final relied on the best available information Comment 29: ADF&G stated that we economic analyses (Chapter 4, IEc 2019 and employed a structured, systematic inappropriately conflated the and 2020) also discuss the use, non-use, method for applying expert judgement. conservation value of specific areas with and ecosystem benefits of conservation The approach taken in our analysis is the incremental benefits a critical of the whales in general (e.g., whale- consistent with the purpose and habitat designation would provide. watching, water quality improvements, requirements of the ESA and our They stated that the Draft Section 4(b)(2) enhanced habitat conditions for other implementing regulations at 50 CFR Report inaccurately concludes that it is 424.19, which provides the Secretary marine and coastal species). Other not possible to isolate and quantify the discretion to consider any relevant indicators that critical habitat may have effect that a critical habitat designation benefits and assign the weight given to benefits that extend beyond the would have on recovery of a humpback those benefits. Our approach is also protections of section 7(a)(a) have been whale DPS. They state that our use of a consistent with multiple, other critical reported in the literature and include conservation value assessment of habitat designations that employed a findings that species with designated specific areas to represent the benefit of biological approach to assessing the critical habitat are more likely to have designation is inappropriate because the conservation value of particular areas— increased and less likely to have evaluation of the economic costs already an approach that has been recognized as declined, are more likely to have a provides considerable assessment on the an appropriate alternative where data potential benefits of a designation, revised recovery plan, and are more are not available to monetize the which could be used to provide a likely to have these plans implemented benefits of designation (e.g., loggerhead qualitative assessment of the benefits of (Harvey et al. 2002; Lundquist et al. sea turtles (79 FR 39856, July 10, 2014); the designation. They also state our 2002, Taylor et al. 2005). black abalone (76 FR 66806, October 27, assessment was inappropriate because Further, the State’s implicit 2011); green sturgeon (74 FR 52300, the conservation value assessment is not assumption that benefits of designation October 9, 2009)). likely to be a good predictor of the can accurately be assessed only to the Comment 30: ADF&G stated that we potential benefits of designating a extent they are quantified or monetized made substantive mistakes in rating the specific area. Instead, they posit that we is also unfounded. We agree it would be relative conservation value of the should use a qualitative assessment of useful and informative if available data specific areas and provided a series of the incremental benefit, based on allowed us to monetize the benefits of specific comments regarding the whether additional conservation critical habitat designation to enable a application of the available data. They measures from the designation are likely direct comparison with the estimated requested that we re-do the analysis to in addition to the value of specific areas economic benefits of excluding correct various mistakes they state were to the conservation of each listed DPS. particular areas from the designation. made by the CHRT and provide a more Response: As noted above (in our However, as discussed in the Section detailed discussion of how data were response to Comment 28), we disagree 4(b)(2) Report and proposed rule, data to applied in the assessment. with the assertion that the incremental monetize these benefits are not available In terms of specific assertions benefit of a critical habitat designation and is not required. Because the ESA regarding misuse of data, ADF&G stated is equal to the number of likely requires designation of critical habitat to that in using data from Wade (2017) additional conservation measures that further the conservation of listed regarding predicted movement

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probabilities of humpback whales into A significant and unique challenge in information—i.e., the estimated number the feeding areas, we should have taken developing these particular critical or proportion of whales from the listed into account the size of our specific habitat designations is the fact that each DPS within a feeding region—to be an areas and the relative size of the areas of the DPSs of interest co-occur with appropriate indicator of the relative used in the Wade (2017) analysis. multiple, other DPSs of the same value of the areas to the DPS and part Rather than using the estimated taxonomic species in the areas meeting of the best available data regarding movement probabilities, ADF&G stated the statutory definition of critical habitat use by the listed DPSs. We do that the appropriate metric to use in our habitat. Relevant data available to the not find that the alternative metric comparisons would have been the CHRT that allow for an assessment of suggested by ADF&G—i.e., density of estimated density of humpback whales the relative use of particular areas by whales from the listed DPS within a of the particular DPS in each specific each DPS include photo-identification feeding region—is a more appropriate or unit. They also suggest that, in data, genetic data, and to a more limited more informative metric. While our delineating our specific areas, it would extent, telemetry data. The ocean basin- critical habitat units are generally have been appropriate to align the wide study referred to as the ‘‘Structure aligned with the major regional breaks boundaries of our specific areas to those of Populations, Levels of Abundance, applied in the Wade (2017) analysis, used in the Wade (2017) analysis, and Status of Humpbacks’’ or the they are not fully consistent with all of because those are in turn aligned with ‘‘SPLASH study’’ was a significant effort the boundaries, which were determined genetic and spatial breaks in humpback undertaken in coordination with 10 based on several other factors (e.g., BIA whale distributions. They also state that countries that involved the collection of boundaries), and were broken into we used the wrong movement both photo-identification and genetic smaller geographic units to facilitate an probability for the Shumagin Islands data during three breeding seasons analysis of habitat areas on a smaller Area (Unit 3) for both the MX and WNP (2004, 2005, and 2006) and over two spatial scale. Thus, it would not be DPSs. feeding seasons (2004, 2005) in known appropriate to calculate densities of ADF&G also stated that we did not breeding and feeding areas. The whales for our particular habitat units indicate that the CHRT recognized that SPLASH study informs and supports based on the estimated probabilities the humpback whale density data used much of the current scientific provided in Wade (2017). The suggested in our assessment conflates the understanding of the structure of density metric may also artificially abundance of various DPSs, and that humpback whale populations in the deflate the value of larger feeding areas this density information could be North Pacific, and the results of this or artificially inflate the value of smaller misleading. They also expressed study as well as subsequent analyses of feeding regions, because the delineation concern regarding the use of results of data obtained in this study (e.g., of the feeding regions and habitat units the ‘‘SPLASH’’ study and stated that our Calambokidis et al. 2008, Barlow et al. themselves (and thus their size) is application of these sightings data 2011, Baker et al. 2013, Wade 2017) partially a function of the particular conflated the use of habitat units by were critical to informing the CHRT’s marine ecosystem and its associated other DPSs with that of the DPS being analysis. We address each of the several geology and oceanography. We find that assessed. They stated that the SPLASH concerns raised by the State with using the estimated proportion or mark-resight data could be useful, but respect to how the CHRT applied these number of whales of a given DPS rather that we should include the unmatched results in their assessment in turn here. than their density is preferable because sightings in the assessment in order to First, in response to the concern it avoids this potential bias. understand population size and account regarding the application of results from With respect to how the critical for differing survey effort. Wade (2017) regarding predicted habitat areas were delineated, we note Response: We appreciate the thorough movement probabilities of humpback that these areas should be identified at and specific comments regarding our whales into the feeding areas, we a scale determined by the Secretary to assessment of the relative conservation considered the State’s suggestion of be appropriate (50 CFR 424.12(b)(1)). value of each specific area to the MX using densities of whales rather than the Data and information applied by the and WNP DPSs. To address and respond predicted movement probabilities from CHRT to systematically delineate to these comments, we: Reconvened a the Wade (2017) analysis; however, we boundaries for the specific critical CHRT; discussed and agreed to make did not find this to be a useful or habitat areas is discussed in detail in the certain modifications to the datasets appropriate modification. Analytical Final Biological Report (NMFS 2020a). used to support the CHRT’s assessment; results presented in Wade (2017), which However, in response to comments, we and then repeated the structured relied on the photo-identification data reviewed the regional boundaries decision-making process to rate the from the SPLASH study (Calambokidis applied in Wade (2017) as well as relative conservation value of each et al. 2008, Barlow et al. 2011), include survey effort and locations from the critical habitat unit for the MX, CAM, estimates of the proportion of whales SPLASH study, and made several and WNP DPSs, taking care to account from a breeding area (and hence a given changes to improve or correct the data for the limitations of the available data DPS, since the DPSs are described based tables used to inform the CHRT’s noted by the State. While we do not on the breeding area of origin of the assessment. Specifically, we agree with agree that the CHRT’s analysis or our member whales) occurring in the six ADF&G that we applied the incorrect proposed rule was founded on misuse of major feeding regions. Thus, these movement probability for the Shumagin the data, we do agree after considering estimated movement probabilities, Islands Area (Unit 3), which is more the comments that it is more transparent which correct for sampling effort, appropriately assigned to the Gulf of and informative to refine our use of the provide an indication of the distribution Alaska Region as delineated in Wade best available scientific data. Further of whales of the particular DPS across (2017), and we corrected this for the explanation is provided here, and a the feeding regions, and this relevant data tables (i.e., for the WNP detailed discussion of this process, the information was very important to the and MX DPSs). We also removed the datasets, and results are also provided CHRT’s assessment of relative value of estimated movement probability the Final Biological Report (NMFS the specific critical habitat areas to each developed by Wade (2017) from the 2020). of the DPS. We continue find that this dataset considered in the CHRT’s

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assessment of Bristol Bay area (Unit 1), inappropriately influenced by presence and proportional size of BIAs because SPLASH surveys did not extend humpback whale density data that was were considered in the CHRT’s into Unit 1. We concluded that not specific to a particular ESA-listed assessment; however, we did not made extrapolating the results of Wade (2017) DPS, we also removed the general any corresponding changes to how this into an area that was beyond the humpback whale density data from the information was considered. SPLASH survey areas was not data tables used by the CHRT. The Information regarding the BIAs appropriate. The CHRT, however, noted CHRT agreed this was an appropriate constitutes an important part of the best that given the lack of photo- simplification for several reasons. First, available scientific data, and is just one identification studies and data for Unit with the exception of the CAM DPS, for part of the range of information upon 1, and because humpback whales which we have a consistent set of which the designations are based. The currently use and historically occurred density estimates for all critical habitat CHRT was aware of the differences in in this area, future scientific survey units occupied by that DPS, the the approaches taken by the two effort should be directed at this estimated and observed density data separate teams that defined and drew particular area to better evaluate use of that are currently available come from the BIAs in Alaska versus the BIAs in this area by humpback whales and by multiple studies with differing the California Current system. This had ESA-listed humpback whales in methodological approaches and for been discussed and acknowledged by particular. Lastly, and without changing different time periods, and the CHRT, who had also discussed the the actual data used in the tables consequently, these data had not BIAs and their development with the (provided as Appendix C in the Final allowed the CHRT to make strong primary authors of the respective papers Biological Report), we modified how the inferences with respect to the habitat describing the BIAs (Ferguson et al. estimated probabilities from Wade units during their initial assessment. In 2015a and 2015c, Calambokidis et al. (2017) are displayed (using merged addition, and as noted by the 2015) prior to their initial assessment. cells) to help clarify that the CHRT was commenters, these general density data We had also purposefully displayed aware that those probabilities do not are affected to differing degrees across those data in the tables in such a way apply independently to our particular, the habitat units by the presence of the as to clearly distinguish between the smaller habitat units but apply to non-listed Hawaiian whales. The CHRT sources for the BIAs. Thus, all CHRT broader regions. had acknowledged the multiple members were aware of the distinction In response to the concerns regarding limitations with applying these data in in how the BIAs were created and what how photo-identification match their original review and discussions, these data represent. The size of a BIA percentages from the SPLASH study and was aware these issues were more relative to the particular critical habitat were applied by the CHRT, we modified acute for Alaska where scientific unit was considered and discussed by the data tables to avoid the perception surveys have been more limited (both CHRT members in a general and non- that the CHRT had conflated the use of geographically and temporally) but quantitative sense, and was not used habitat units by other DPSs with that of included them because they comprise independent of other information (e.g., the DPS being assessed. In our initial part of the best available data. Overall, movement probabilities for a given DPS) analysis, and as a means of examining the CHRT decided these data could be for the particular habitat units. The relative distributions of whales of a removed from consideration without information regarding the BIAs was given DPS across habitat units, we limiting or undermining their ability to considered useful and relevant to calculated the percent of unique understand the relative conservation assessing relative conservation value of sightings of whales of the given DPS out value of each habitat unit by the listed areas for a given DPS, and was thus of all matched sightings (for all DPSs) DPSs. retained as information considered by that had occurred in that particular area. Comment 31: With respect to data the CHRT during their reassessment of This column of data was changed to considered during the assessment of the the relative conservation value of instead show the percent unique conservation value of particular areas, particular areas. sightings of whales of the given DPS in ADF&G expressed several concerns Comment 32: With respect to data the particular area out of the total regarding the consideration of the considered during the assessment of the number of matched sightings of whales proportion of a habitat unit that is conservation value of particular areas, of that same DPS. Thus, match data for covered by a BIA as a metric of ADF&G also stated that consideration of whales from other DPSs were removed conservation value of a particular area confirmed sightings of whales of the from the calculation, and information to for a listed DPS. First, they state the size listed DPSs within an area is difficult to help assess the relative distribution of of the BIAs is not necessarily indicative interpret and should not be used as an whales of the given DPSs across the of the value of the BIAs to humpback indication of use of that area by the habitat units was retained. To provide whales because the BIAs were drawn DPS. They assert such data could be further context for these percentages, we mainly as a function of the amount and misapplied in such a way as to also included general information with type of data and information available. exaggerate the value of an area. They respect to the SPLASH survey effort, Secondly, they state that using a general state that a more appropriate metric including the number of vessel days, humpback whale BIA conflates the use would be multiple confirmed sightings whether small boat surveys had been of an area by the listed DPS of interest that demonstrate regular use by the DPS. conducted in that area, and the total with that of other DPSs. ADF&G stated Response: Information regarding number of unique humpback whales that we should consider the BIAs within whether confirmed sightings of whales sighted in that area. Although this the context of the number of whales of the listed DPSs were documented information was not detailed or precise from a listed DPS using each summer within each particular critical habitat enough to be particularly informative, foraging region (i.e., the movement unit was retained in the set of data the CHRT felt it was relevant and probabilities). considered by the CHRT during their helpful to include as it stimulated and Response: As part of their reassessment of the relative facilitated discussions regarding survey reassessment of the relative conservation value of particular areas. effort across the areas. conservation value of all habitat units, While we agree with ADF&G that this In response to the concerns that the the CHRT discussed the concerns information does not provide an CHRT had been biased or expressed by ADF&G regarding how indication of relative use of an area or

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relative importance of a particular area Alaska/Region 10, because it was requirements for critical habitat because to a given DPS, the CHRT considered it designated as BIA area based on use of it was limited to specific areas where useful and more transparent to include this area by the healthy Hawaii DPS of the available data indicated the this information to make it clear which humpback whales. presence of the essential feature. areas had no confirmed sightings of Response: As discussed in the draft Commenters also referred to the BIAs whales of a given DPS and thus where and final Biological Reports (NMFS and asserted that these smaller, specific presence of the DPS has instead been 2019a, NMFS 2020a), BIAs were areas meet the ESA standards for the assumed given other available data for considered, along with other designation of critical habitat or at least a larger or less precise geographic area. information, in the delineation of indicate that there are smaller areas that These data still constitute an important boundaries of our critical habitat areas could qualify as critical habitat. In part of the best available data, which as well as in our assessment of the contrast, a large number of other need not be perfect. Moreover, as stated relative conservation value of those commenters stated they supported the previously, individual types or sources areas. BIAs, which have no regulatory designation of all of the proposed areas, of data were not applied independently effect, were developed to supplement and one commenter asserted that the of the other available information for a the quantitative habitat-density proposed critical habitats appear to be particular are or DPS, which addresses modelling efforts of the Cetacean the minimum that should be considered the State’s concern that taken alone the Density and Distribution Mapping and that science suggests the areas data could be misleading. To help (‘‘CetMap’’) Working Group (http:// should be much bigger. eliminate the perception that the CHRT cetsound.noaa.gov) and assist resource Response: Neither the statutory managers by providing additional misinterpreted or misapplied data (see definition of critical habitat nor our context for marine mammal impact also Comments 30 and 31), we implementing regulations (50 CFR analyses (https://cetsound.noaa.gov/ expanded the relevant discussions in 424.12) require that critical habitat be cetsound). BIAs are not synonymous the Final Biological Report (NMFS designated only within the smallest with critical habitat under the ESA; and, 2020a) to explain the data considered by possible area that meets this statutory as explained by the CetMap group, not the CHRT, the purpose of the data definition. There is simply no legal everything identified as critical habitat tables, and the approach used by the basis to support that position. We do CHRT in conducting the structured will meet the BIA criteria and vice versa acknowledge that critical habitat must decision-making process. The added (Ferguson et al. 2015b). In determining logically be a subset of what more discussion helps to further clarify that which areas qualify as critical habitat broadly qualifies as ‘‘habitat’’ for these the CHRT did not limit their analysis to under the ESA, we are required to apply particular species. See Weyerhaeuser v. any one piece of data or the data the statutory definition of critical U.S. Fish and Wildlife Serv., 139 S. Ct. presented directly in the data tables, but habitat and adhere to the statute’s 361 (2018). The best available data here that the team also considered the expert requirements and standards for support that the areas being designated knowledge and insights shared among designating critical habitat. Therefore, as critical for each of the DPSs of team members during the structured as a general matter, we are not required humpback whales at issue (the WNP, decision-making process itself. In sum, to restrict the critical habitat the CHRT considered all of the designations to areas previously CAM, and MX DPSs) meet the elements available, relevant scientific information recognized by NMFS as BIAs. In this of the definition of ‘‘critical habitat’’ and and appropriately took into account particular case, this issue is no longer are a subset of the habitats they occupy data limitations and uncertainty, where relevant because Southeast Alaska (Unit and use, which for each DPS includes they existed, in determining which data 10) is excluded from the critical habitat large areas outside U.S. jurisdiction. comprised the best available data upon designation for the MX DPS (see Because each of these areas meets the which to rely for the final response to Comment 43). definition of occupied ‘‘critical habitat’’ determination. The determination of Comment 34: Several commenters under the ESA, the kinds of issues that what constitutes the ‘‘best scientific data stated the proposed critical habitat is arose in the matter before the Supreme available’’ belongs to the agency’s overly broad because it includes areas Court in Weyerhaeuser v. U.S. Fish and ‘‘special expertise. . . .’’ San Luis & that are merely ‘‘habitat’’ (i.e., areas Wildlife Serv. (139 S. Ct. 361 (2018)— Delta-Mendota Water Authority v. where the animals may be found). The which involved unoccupied habitat— Jewell, 747 F.3d 581, 602 (9th Cir. 2014) commenters referred to the recent are simply not presented. Areas meeting (quoting Baltimore Gas & Elec. Co. v. Supreme Court ruling in Weyerhaeuser the definition for occupied critical Natural Resources Def. Council, 462 Co. v. U.S. Fish & Wildlife Serv., 139 S. habitat are inherently validated by the U.S. 87, 103(1983)). Ct. 361, 368 (2018), in which the court definition itself as being ‘‘habitat,’’ stated that critical habitat is a subset of because the species have in fact Size of Critical Habitat and habitat, and stated that this indicates we occupied them and they contain the Consideration of Biologically Important cannot designate areas that are merely essential feature. Humpback whales Areas (BIAs) occupied by the species and do not occur widely throughout the North Comment 33: Multiple commenters contain elements required for survival. Pacific Ocean and occur throughout expressed concern about the expansive ADF&G stated that the proposed their historical range. As discussed in area proposed for designation in designations are inconsistent with the proposed rule and Biological Report Southeast Alaska. Several of the Congressional intent and a supposed (NMFS 2020), humpback whales breed commenters stated that it would not be statutory requirement that the smallest in tropical and semi-tropical waters and credible to assert that every square mile possible area that contains the habitat undertake long distance migrations to of this area is essential to the with the highest conservation value access highly productive feeding conservation of the MX DPS, and habitat is what should be designated as grounds that extend across the rim of multiple commenters requested that critical habitat. ADF&G pointed to the the North Pacific Ocean, from the coast critical habitat in Southeast Alaska be critical habitat designation for North of Russia (e.g., Sea of Okhotsk and limited to areas already designated by Pacific right whales as an example of a Kamchatka Peninsula), to the Bering NMFS as a BIA. Another commenter designation that they believe more Sea, Aleutian Islands, Gulf of Alaska, requested that we exclude Southeast closely follows the regulatory Southeast Alaska, Canada (British

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Columbia), and off the U.S. West Coast do not find that it is appropriate or prey feature given the large size of the to southern California. The critical consistent with the ESA to restrict the proposed critical habitat. Several habitat designations thus represent only critical habitat designations to these commenters specifically disagreed with fractions of the total combined ocean areas. the use of habitat modeling results from habitats used by each humpback whale We acknowledge that the critical Becker et al (2016) to define critical DPS to migrate, breed, calve, and feed. habitat designations for the WNP DPS, habitat boundaries, because this model Humpback whale feeding areas of the and particularly for the CAM and MX does not measure or identify areas North Pacific have typically been DPSs are each larger than the two where prey may be located, or predict divided into five or six general regions discrete areas designated as critical presence of prey, and only predicts based on genetic and sightings data that habitat for the North Pacific right whale. presence of whales with in a given area indicate population structuring across However, the humpback whale (as opposed to feeding whales). these areas. NMFS, as well as the designations and that for the North Response: In designating occupied International Whaling Commission Pacific right whale are not directly critical habitat, we are required to apply (IWC) are currently investigating stock comparable, and it is misleading to the best scientific data available to structure and associated feeding groups simply compare their relative sizes identify specific areas within the of humpback whales, which may lead to without putting them in context. The geographical area occupied by the some adjustments to the currently different designations are a reflection of species on which are found (1) physical recognized stocks and feeding group the best scientific data available or biological features essential to the boundaries (e.g., Clapham et al. 2020). regarding each species and their habitats conservation of the species and (2) For purposes of designating critical rather than an indication that the which may require special management habitat, we delineated more specific humpback whale designations do not considerations or protection (16 U.S.C. feeding areas relative to the generally adhere to the statutory requirements for 1532(5)(A)). Specific areas are eligible recognized, broader, feeding regions in designation of critical habitat. At the for designation as critical habitat for the order to facilitate an assessment on a time critical habitat for North Pacific humpback whales if they meet this more precise spatial scale and conduct right whales was designated in 2008 (73 definition. Delineation of specific areas an analysis under section 4(b)(2) of the FR 19000, April 8, 2008), abundance of is done at a scale determined by the ESA to examine the benefits of those whales in the eastern North Secretary [of Commerce] to be designating or excluding particular Pacific was unknown, but was appropriate (50 CFR 424.12(b)(1) and areas. Specifically, we divided what are considered by most biologists to be (2)). Regulations at 50 CFR 424.12(c) typically delineated as five to eight fewer than 100 whales, and sightings also require that each critical habitat feeding regions within U.S. waters, into were rare. The North Pacific right whale area be shown on a map. In making 19 specific areas or habitat ‘‘units.’’ As species remains extremely rare, with an decisions about the scale and described in detail in the Biological estimated effective population size for boundaries for the specific areas, we Report (NMFS 2020a), we subsequently the eastern North Pacific of 11.6 whales considered various factors such as the used available data, including data (95 percent CI: 2.9–75.0, LeDuc et al. scales at which biological data are regarding the distribution of each DPS 2012) and an estimated population available and the availability of and quality of the prey feature, to assess abundance of 31 whales (95 percent CL: standardized geographical data the relative conservation value of each 23–54, Wade et al. 2011). Critical necessary to map boundaries. The ESA habitat unit for each particular DPS of habitat areas were identified in 2008 for does not require that we identify with humpback whales. The areas included North Pacific right whales based on the specificity the exact locations within in the final designations for each DPS available sightings data, which were each unit where the feature occurs. See are areas that are occupied by the used as a proxy indicator for the Alaska Oil and Gas Ass’n v. Jewell, 815 particular DPS and contain humpback presence of the identified copepod F.3d 544, 555 (9th Cir. 2016) (district whale prey species, which are necessary essential feature. Significantly more court erred in holding FWS to ‘‘a to support the energetic needs of the data are available regarding the standard of specificity that the ESA does whales as well as population growth distributions and habitat uses of not require’’). Further, our and recovery of the DPSs. humpback whales within the North implementing regulations allow for As discussed previously in response Pacific, and although data specific to flexibility in determining the to Comment 33, BIAs are not each DPS are relatively more limited appropriate scale at which specific areas synonymous with critical habitat under compared to humpback whales are drawn. Here, we have identified the ESA; not everything identified as generally, the available data clearly where the dynamic prey feature occurs critical habitat will meet the BIA criteria indicate a broader distribution for with as much specificity as the best and vice versa (Ferguson et al. 2015b). humpbacks than what was documented available data allows. In determining which areas qualify as for North Pacific right whales. To determine which areas meet the critical habitat under the ESA, we are Comment 35: Multiple commenters statutory definition of critical habitat required to apply the statutory stated that because the BIAs identify the and delineate biologically appropriate definition of critical habitat, which most critical feeding areas for humpback boundaries for the specific areas of states that an area qualifies as critical whales (Calambokidis et al. 2015) and humpback whale critical habitat, we habitat if it is occupied by the listed have been determined to be biologically relied on multiple types of data, species and contains one or more important under a separate, thorough including humpback whale sightings physical or biological feature that is scientific review (Ferguson et al. 2015), data, habitat modelling, location of essential to the conservation of the it is illogical to expand the critical BIAs, and prey species distributions species and that may require special habitat beyond the BIAs. Commenters (NMFS 2020a). Each type of data may management considerations or stated that while the proposed critical have relative strengths and limitations protection. Specific areas are eligible for habitat areas may be habitat for the as compared to other types of data for designation as critical habitat if they whales, they are not all critical habitat particular uses, which we identify and meet these criteria. Thus, while we because they do not necessarily contain discuss in these various responses to agree that the BIAs identify important a sufficient quality or quantity of prey comments and the Biological Report feeding areas for humpback whales, we or are unlikely to contain the essential (NMFS 2020a). Although not perfect or

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free from uncertainty, taken together al. 2014, Mate et al. 2018). Given the percentage of days) within a BIA they form the best available scientific wide distributions of the prey species (Palacios et al. 2020), indicating that for data, upon which we must base these for each DPS, and the spatial and more than half of the time they were designations. temporal variability in the abundances tracked they were outside of a BIA. Habitat model results of Becker et al. and distributions of these prey species, Available sightings and habitat (2016), and to a lesser extent Becker et we relied on information regarding the modelling data indicate that humpback al. (2017), which apply only to areas distribution of humpback whales on the whales occur more widely throughout within the CCE, were primarily used to feeding grounds to determine the U.S. EEZ and in areas outside of the determine an appropriate offshore biologically appropriate boundaries of recognized BIAs (e.g., Hamilton et al. boundary for specific critical habitat the specific critical habitat areas (e.g., 2009, Becker et al. 2016). Within the areas within the CCE (i.e., Units 11–19). Becker et al. 2016). CCE, BIAs were delineated based Commenters are correct that the habitat Comment 36: A commenter stated that predominantly on coastal (<50 nmi model results of Becker et al. (2016 and we inappropriately expanded the offshore), non-systematic small boat 2017) provide information on predicted critical habitat areas beyond the BIAs in surveys designed to maximize whale occurrences of humpback whales within part by considering the area-restricted sightings, and the areas ultimately the CCE and do not provide information searching (‘‘ARS’’) data reported by identified as BIAs were restricted to regarding predicted occurrences of Mate et al. (2018). The commenter those areas where the highest humpback whale prey species. discussed that the relevant Mate et al. concentrations of sightings were However, as indicated by the ESA (2018) data involves tagging results for documented in multiple years. As the definition of occupied critical habitat, only seven whales, and that most of BIA authors note, both sightings and both types of information are relevant— those whales exhibited ARS in small, annual habitat model results indicate a information on occupancy by the listed discrete areas that largely correspond to high degree of variation in some areas species and information on presence of the existing BIAs. The commenter noted of humpback whale concentration the prey feature. Furthermore, while that only one whale was tracked across across years (Calambokidis et al. 2015). these models result were used to help a significantly broader range. Under the statutory definition, an area delineate the specific critical habitat Response: As discussed in the qualifies as critical habitat if it is areas, they were not the exclusive Biological Report (NMFS 2020a), occupied by the listed species and determinant of whether the areas multiple types of information were used contains one or more physical or qualified as critical habitat. to delineate boundaries for the occupied biological that is essential to the Humpback whale prey species are critical habitat areas. Each type of data conservation of the species and that may distributed throughout the feeding may have relative strengths and require special management grounds and the specific areas identified limitations for particular uses as considerations or protection. Thus, as critical habitat. Due to the compared to other types of data, which specific areas are eligible for designation considerable importance of euphausiids we discuss in these various responses to as critical habitat if they meet these and other forage fish species to comments, but taken together they form criteria. Neither the ESA definition of commercial fisheries and to other the best available scientific information. critical habitat nor the joint NMFS/ marine predators, as well as their role as In addition to habitat modelling results, USFWS implementing regulations (at 50 ecosystem indicator species, extensive which predict expected distributions of CFR 424.12) limit critical habitat scientific surveys have been conducted humpback whales in the CCE (Becker et designations to only those areas of within all marine ecosystems of the U.S. al. 2016 and Becker et al. 2017), we greatest concentration of the listed EEZ to monitor abundances, considered the location of BIAs, species or the most frequently used distributions, trends, as well as factors sightings data, and to a lesser extent, areas. Thus, while we agree that the that affect these species (e.g., Santora et satellite telemetry data. This latter BIAs identify important feeding areas al. 2018, Sigler et al. 2012, McGown et category of data was not a determinant for humpback whales, we do not find al. 2016, Simonsen et al. 2016, of the boundaries of the specific areas that it is appropriate to restrict the Zwolinski et al. 2017; See also: but was mainly used as additional critical habitat designations to these www.fisheries.noaa.gov/topic/ support for the selection of appropriate areas. population-assessments#fish-stocks and boundaries of applicable specific areas Comment 37: A commenter stated that www.integratedecosystem because it provides very explicit should the agency insist on expanding assessment.noaa.gov). These surveys as information on where and the areas over critical habitat beyond the boundaries of well as other targeted research efforts, which humpback whales are feeding. the BIAs, that the outer limits for all including studies examining humpback We agree that the available telemetry units other than Unit 1 be drawn along whale diet and distributions in data, and specifically the ARS-mode the 1,000 m isobath. The commenter association with prey availability, were location data (which is indicative of noted that, as proposed, the outer limits considered when developing the critical feeding), are limited in terms of the total of Unit 2 (Aleutian Islands Area) and habitat designations because such number of humpback whales that have Unit 10 (Southeastern Alaska) are drawn studies provide information on been tagged. However, these data are along the 2,000 m isobath, while the distributions and abundances of still relevant and important to consider outer limits of other units (other than humpback whale prey as well as and constitute a part of the best Unit 1, Bristol Bay) are drawn along the information about variations in prey available information, and they were not 1,000 m isobath. The commenter stated targeted by the whales across and used to expand the specific critical that given the coastal nature of within regions (NMFS 2020). Where habitat areas beyond areas known or humpback whale prey species, and available, and as discussed in the predicted to be used by humpback understanding of normal dive depths, Biological Report (NMFS 2020a), we whales. We also note that results that the 2,000 m isobath boundary appears to also considered observational and have since become available from be excessive. satellite-tag derived data indicating satellite tagging of four additional Response: When selecting the feeding behavior of humpback whales humpback whales off the Oregon coast boundaries for the 19 critical habitat while on the feeding grounds (e.g., in 2018 indicate that the whales spent units, the CHRT adopted several Wynne and Witteveen 2013, Kennedy et 2.0 to 49.6 percent of their time (as a decision rules to help ensure that the

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areas were drawn in a reasonable and concerns about the ongoing threats of understandings of the species’ use of systematic fashion, grounded in the best ship strikes and entanglement to new areas over time (16 U.S.C. available data, across marine regions humpback whales in the excluded areas. 1533(a)(3)(A)(ii)). and for each of the three DPSs. One A group of commenters specifically With respect to critical habitat Unit 7 decision rule was that the existing BIAs stated that NMFS should include Units (Kenai Peninsula Area), Unit 8 (Prince would remain intact unless there was a 7 (Kenai Fiords), 8 (Prince William William Sound), and Unit 9 compelling reason to change or divide it Sound), 9 (Northeastern Gulf of Alaska), (Northeastern Gulf of Alaska), we because the BIAs are well described, and 19 (California South Coast) in the assessed the benefits of including those discrete delineations of habitat based on final critical habitat designations or areas in the designation and the benefits thorough review of existing data that provide an adequate justification for of exclusion for each of these particular generally fall within larger delineations these proposed exclusions. The areas with respect to each relevant DPS of humpback whale feeding regions. commenters stated we did not of humpback whales. As discussed in This decision rule is what led the CHRT individually weigh the conservation our Final Biological Report (NMFS to draw the seaward boundaries for Unit benefit of designating Units 7, 8, and 9 2020a) and Final Economic Analysis 2 (Aleutian Islands area) and Unit 10 as required under section 4(b)(2) of the (FEA), these assessments were revised (Southeast Alaska) along the 2,000m ESA. The commenters stated that these and updated in response to public isobath. This isobath line corresponds areas, which we described as ‘‘low comments and new information most closely with the seaward edge or conservation value,’’ still confer direct received following publication of the outermost edge of the respective BIAs in benefits to the species as well as proposed rule. In both the initial and those critical habitat units. Adjusting indirect benefits which could outweigh final conservation rating assessments the critical habitat boundaries a small economic impact. conducted by the CHRT, Units 7, 8 and 9 were rated as having low conservation shoreward to the 1,000m isobath, as Response: As discussed in the Draft value for the WNP DPS. In both the recommended by the commenter, would Biological Report (NMFS 2019a) and the initial and final conservation rating result in removing portions of each of proposed critical habitat rule (84 FR assessments, Units 7 and 9 were rated the BIAs from the critical habitat. Thus, 54354, October 9, 2019), climate change as having low conservation value for the we decline to make the requested is expected to affect the abundance, change. (We also note that because Unit MX DPS; and Unit 8, which was quality, and distributions of humpback 10 is excluded from the final critical previously rated as having high whale prey species. Ocean warming has habitat designation for the MX DPS, the conservation value, was changed to already been documented as having requested change to Unit 10 is no longer medium conservation value (see NMFS significant effects on prey availability relevant.) 2020a). The estimated annualized The isobath data used to delineate and on higher-level predators within economic impact of designating each of seaward boundary lines on the maps North Pacific marine ecosystems (e.g., these three areas increased (by $1,600) correspond to the aerial extent of Coyle et al. 2011, Brodeur et al. 2018, based on new information regarding the humpback feeding habitat, which is Jones et al. 2018, Santora et al. 2020), rate of consultations on aquaculture and considered to be primarily shelf and and recent analysis of humpback water quality management related shelf-edge habitat. Per our whales’ responses to the North Pacific activities, an update to 2020 dollars implementing regulations at 50 CFR marine heat wave of 2014–2016 also (from 2018 dollars), and an update of 424.18(a)(1), we are required to provide provide clear insights into short-term the timeframe of the analysis to 2020– maps of critical habitats and provide the response of the whales within the CCE 2029 (previously 2019–2028). Overall, coordinates and/or plot points on which to marine heat waves (Santora et al. the updated assessments provided no the map is based available to the public 2020), which are predicted to increase basis to revise our previous conclusions on our website, and per additional in frequency and duration. However, the regarding the relative weighing of the requirements under 50 CFR 424.12(c), best currently available information is economic costs of designating these ephemeral reference points are not to be insufficient to allow us to determine areas against the benefits of designating used to clarify area boundaries. For how diet and habitat use of humpback these areas. The benefits of designating marine habitats, bathymetry data are whales may be affected over the longer- the low value areas were still found to often readily available and reliable term and across all of the North Pacific be outweighed by the associated source data from which we can create feeding grounds. Thus, although we economic impacts; and, for the MX DPS, maps and share the underlying spatial considered this available information, the benefit of designating the medium data in an electronic format. For the the CHRT’s assessment of the relative value area of Prince William Sound was humpback whale critical habitat maps, conservation value of the habitat units still not outweighed by the associated the bathymetry data were thus not in critical habitat designation was economic impact of designating this selected to correspond to humpback driven more by an understanding of the particular area. Thus, Units 7, 8, and 9 whale dive depths but to capture and whales’ current distributions and are excluded from the final critical map the seaward extent of the feeding habitat use. While we agree it would be habitat designation for the WNP DPS, areas. informative to have specific habitat and Units 7 and 9 are excluded from the suitability or risk exposure models to final critical habitat designation for the Requests Regarding Exclusions of further inform this rule, we are required MX DPS. Particular Areas to complete the designations based on In conducting the weighing of benefits Comment 38: A large number of the best available scientific information. under section 4(b)(2), we assessed the commenters requested that no areas be We are not required to develop new benefits of designation and exclusion for excluded from the critical habitat studies in order to complete the critical each particular area (see NMFS 2020b). designations. Some commenters noted habitat designations. We also note that Given the relatively low forecasted costs that climate change is causing shifts in we have the authority to revise critical and potential economic impacts prey and may dramatically alter habitat designations as appropriate and associated with designating each of the humpbacks whales’ habitat use and thus in light of new information, which 19 units under consideration, we the conservation value of specific areas provides a mechanism for addressing determined that the benefits of as well. Commenters also expressed and incorporating changing designating medium, high, and very

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high value areas were not outweighed Response: We appreciate the concerns as during cooler months (see Figure 17, by the economic benefits of exclusion. raised by the commenters regarding Final Biological Report). Based on the We did, however, conclude for each of threats to humpback whales within Unit locations of 10 krill hot spots reported the low conservation value areas that 19, California South Coast. However, in Santora et al. (2011), which we the limited benefits of designation were these threats (e.g., ship strikes, oil spills) overlaid onto a map of the critical outweighed by the benefits of avoiding do not provide sufficient justification habitat units, only one of the 10 the forecasted costs and potential for inclusion of this particular area in hotspots occurs within Unit 19, and no economic impacts of the designation. the critical habitat designation for either humpback whale BIA has been We also concluded for each of these the CAM or the MX DPs of humpback identified in Unit 19. Overall, we find areas that the exclusion from the whales. As discussed elsewhere in this that the best available data support the designation would not result in the final rule, the designation of critical rating of Unit 19 as having relatively extinction of the particular DPS. habitat in areas within the species’ low conservation value for both the Although the conclusion is the same for occupied range is based on the presence CAM and MX DPSs. all low conservation value areas (i.e., to of physical or biological features Comment 40: Multiple commenters, exclude), a separate determination was essential to their conservation of the including the Washington Department made regarding each exclusion and species that may require special of Fish and Wildlife, expressed whether such exclusion would result in management considerations or opposition to the proposed exclusions the extinction of the relevant DPS. We protection. The existence of threats to of the Quinault Range Site (QRS) off the have revised the Final Section 4(b)(2) the species, while informative, is not an coast of Washington and the associated 10 km buffer around this area. Several Report to further clarify that the appropriate basis upon which to build commenters stated that the proposed exclusion of each particular area was a designation of critical habitat under exclusion was overly broad and not based on an assessment of that the ESA. Further, NMFS does not adequately justified. Several particular area. entirely agree with the characterization commenters stated that planned Finally, we acknowledge that by the commenters of this particular activities, such as use of sonar and humpback whales face ongoing threats, area based on sightings, modeling, and explosives, can impact the whales and particularly from ship strikes and prey distribution data. Unit 19 alone their prey and additional mitigation entanglement, even within the areas does not contain the highest 90 percent measures or restrictions on the excluded from the critical habitat of the study area abundance predicted Department of the Navy’s (‘‘Navy’’) designations. However, these threats, by the Becker et al. (2017) habitat model activities within the QRS should be which directly impact the whales, will as implied by the commenters; rather it implemented. One commenter noted continue to be addressed under both the was added to capture the southernmost that the QRS overlaps with the Olympic ESA and MMPA wherever applicable, portion of the predicted abundances. As Coast National Marine Sanctuary, an regardless of whether the particular area illustrated in Figure 18B in the area that requires a higher standard of has been designated as critical habitat Biological Report (NMFS 2020a), the resource protection. Many commenters under the ESA. In particular, when highest 90 percent of predicted noted that the QRS area was within a section 7 consultations are undertaken abundances based on the results of critical habitat area rated as having high for Federal agency actions that may Becker et al. (2017) extend over most of conservation value for the CAM and MX have impacts in the areas where whales Unit 16 and all of Units 17, 18, and 19. DPS whales. Commenters requested we or their prey are present, impacts that Sightings data reported in Calambokidis reconsider the Navy’s request for this affect the whales will be considered as et al. (2017, Figure 5) and used in the exclusion given the increased numbers part of the analysis of whether the poster by Steiger et al. (2017), which of humpback whales using and moving action is likely to jeopardize the was referenced by the commenters, were through this area. continued existence of the listed considered and weighed heavily in our Response: As discussed in the Final species. assessment of relative conservation Section 4(b)(2) Report (NMFS 2020b), to Comment 39: Multiple commenters value of critical habitat units along the weigh the national security impacts requested that Unit 19 be included in coasts of Washington, Oregon, and against conservation benefits of a the final critical habitat designations. California for the CAM and MX DPSs. potential critical habitat designation, we Commenters expressed concerns These sightings data indicate that the considered the size of the requested regarding the significant threats of ship largest proportions of CAM DPS whales exclusion and the amount of overlap strikes and oils spills in Unit 19. do occur off of Southern California, with the specific critical habitat area; Commenters also referred to the relative while the largest proportions of MX DPS the relative conservation value of the proportions of humpback whales as whales occur farther north along the specific area for each particular indicated by Steiger et al. (2017), high coast. In terms of distribution of whales humpback whale DPS; the likelihood predicted occurrence of humpback off of Southern California in particular, that the Navy’s activities would destroy whales as indicated by Becker et al. most of the sightings occur from or adversely modify critical habitat; the (2017), and krill hot spots as indicated Monterey Bay south to the northern likelihood that NMFS would require by Santora et al. (2011) in this area, and Channel Islands and the Santa Barbara new or additional project modifications stated that Unit 19 is therefore Chanel, and relatively few sightings to reduce or avoid these impacts; and important to the conservation of the occur farther south (J. Calambokidis, the likelihood that other Federal actions endangered CAM DPS of humpback Cascadia Research Collective, pers. may occur in the site that would not be whales. These commenters stated that comm., May 12, 2020). This is subject to the critical habitat provision exclusion of Unit 19 is not justified consistent with the predicted if the particular area were excluded unless we analyze habitat preferences abundances from Becker et al. (2016 and from the designation. In response to the and distribution of the whales in 2017), which indicate that the waters off public comments, we reconsidered relation to shifting environmental southernmost portion of the California these factors, information provided by conditions and help identify the spatial coast (i.e., Unit 19) have the lowest the Navy, and also requested additional and temporal dynamics of the species’ predicted abundances of humpback information from the Navy regarding risk exposure. whales during summer months as well their activities in the portion of the QRS

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that also falls within the Olympic Coast considerations in assessing the relative the farthest distance at which fish National Marine Sanctuary (OCNMS). conservation value of particular areas would be expected to be injured from In making our decision with respect included the habitat quality or the the largest explosive the Navy can to this particular area, we did so within consistency with which prey or high reasonably foresee testing in the QRS; the framework of our joint NMFS/ quality prey are abundant (which can be and, in subsequent communications, the USFWS policy on implementation of indicated by, among other data, Navy further clarified that the size of the Section 4(b)(2) (81 FR 7226, February presence of a BIA), and connectivity buffer also incorporated uncertainty for 11, 2016) (‘‘Section 4(b)(2) Policy’’). between feeding areas (generally as updates in resource-related science, Specifically, when a Department of indicated by photo-identification and/or changes in oceanographic conditions Defense (DOD) agency requests an genetic data). Based on this that could reduce attenuation, and the exclusion the basis of national-security reassessment, Unit 11 is rated as having evolution of military technologies that or homeland security impacts, it must medium conservation value for the may behave differently in the provide a ‘‘reasonably specific CAM and MX DPSs. Available data from environment. justification’’ of a probable incremental satellite-tagged humpback whales We continue to conclude that the impact on national security that would indicate the highest use areas within Navy has provided a reasonably specific result from the designation of that Unit 11 occur within the BIA as well as justification to support the requested specific area as critical habitat (81 FR at within the western edge of the Strait of exclusion of the QRS, and consistent 7231, February 11, 2016). Where the Juan de Fuca (Mate et al. 2018, Palacios with our Section 4(b)(2) Policy, we gave request is substantiated with such a et al. 2020), which do not overlap with great weight to these concerns when reasonably specific justification, we give the QRS or associated buffer. analyzing the benefits of exclusion. Our ‘‘great weight’’ to those concerns in Comparisons of the requested exclusion consideration of the multiple factors analyzing the benefits of exclusion. Id. area with the predicted humpback discussed, coupled with the potential The proposed exclusion of the QRS whale densities from Becker et al. (2016, delay in critical missions in order to and 10-km buffer comprise about 44 who modeled predicted densities in complete adverse modification analyses, percent of Unit 11 (Coastal Washington), approximately 10 km by 10 km grid cause us to continue to find that the but represents only a very small portion cells) also indicates that the requested benefits of excluding the QRS due to of the total critical habitat designations exclusion area (meaning the QRS and national security impacts outweigh the for the CAM DPS (about 3 percent) and buffer) is largely south of, but overlaps benefits of designating this portion of the MX DPS (about 1 percent). The QRS partially with, the area where the Unit 11 as critical habitat for the MX and associated buffer also have a highest densities of humpback whales and CAM DPSs. However, we are significant degree of overlap with the are predicted to occur within Unit 11. modifying our proposed exclusion of OCNMS, where certain activities are the buffer area. Specifically, we are not prohibited, including oil, gas, or mineral In support of their request for exploration, development, or exclusion of the QRS and buffer area, excluding a portion of the 10-km buffer production; discharging or depositing the Navy pointed to the extensive range area extending from the northeast corner any material or other matter; drilling of planned activities, which are of the QRS where it overlaps with the into, dredging, or otherwise altering the described in their Final Northwest OCNMS. As discussed in the Section seabed, with some exceptions (15 CFR Training and Testing (NWTT) 4(b)(2) Report, we concluded the 922.152). Because of these prohibitions, Supplemental Environmental Impact benefits of designating critical habitat the likelihood of other Federal activities Statement (SEIS) published on for the MX and CAM DPSs within this being proposed in this area of the QRS September 18, 2020, and stated that any portion of the buffer are not outweighed may be limited. additional, future modifications to these by national security impacts of In response to public comments, and activities to minimize impacts on including that portion at this time. as described in the Final Biological humpback whale critical habitat would We acknowledge the concerns raised Report, the CHRT completed a impact the Navy’s ability to meet by the commenters regarding potential reassessment of the relative mission requirements. The Navy impacts to the whales and their prey conservation value of each particular pointed to the use of explosives, in because of certain Navy activities, such area under consideration for designation particular, as being likely to have as sonar and explosives. The Biological for each DPS. This reassessment was adverse effects on humpback prey and Conference Opinion on the Navy’s conducted to address multiple concerns species, although not likely at the Northwest Training and Testing that were raised in the comments population level of the prey species. In Activities, issued by NMFS on October regarding the data considered by the their initial request, dated December 5, 19, 2020, addresses activities within the CHRT in rating the relative conservation 2018, the Navy stated that if additional QRS and analyzed the effects of the of specific areas, and particularly that mitigation requirements were to result Navy’s planned activities on humpback this initial analysis was confounded by from a designation of critical habitat, whales as well as their prey. As data on non-listed humpback whales they would likely need to halt, reduce discussed in that consultation, the Navy from the Hawaii breeding population in scope, or geographically or seasonally has adopted certain mitigation measures (the ‘‘Hawaii DPS’’). The primary constrain testing activities to prevent within the QRS, including the portion of consideration in the CHRT’s re-analysis adverse effects to critical habitat, and the QRS that overlaps with the OCNMS, of relative conservation value was the this would in turn impact their ability to avoid or minimize adverse impacts degree to which whales of a given DPS to test and field new systems and on marine mammals and other marine rely on each particular area for feeding. platforms. To avoid potential, resources in this area. Exclusion of the To evaluate this, the CHRT considered additional, spatial restrictions on their QRS area will not impact our ability to the best available data on migratory activities within the QRS, the Navy also continue to work closely with the Navy destinations, distribution patterns, and requested exclusion of an additional 10- through the section 7 consultation proportions of the DPSs using or km buffer around the QRS from the process to minimize and mitigate estimated to use different feeding areas critical habitat designation. The Navy impacts to the humpback whales as a (e.g., Barlow et al. 2011, Wade 2017, determined the size for this buffer using result of the Navy’s testing and training Calambokidis et al. 2017). Secondary sound attenuation modeling to calculate activities.

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Comment 41: A few commenters species. The degree of any such impact any of the three DPSs of humpback expressed opposition to the proposed depends upon the nature, timing, whales. We note, however, that the exclusion of the Navy’s Southeast location, etc. of the particular activity. ports of Los Angeles and Long Beach lie Alaska Acoustic Measurement Facility The Navy has concluded, and we agree, within critical habitat Unit 19, which is within Unit 10 and the Southern that designation of this portion of Unit excluded from the critical habitat California Range Complex within Unit 19 as critical habitat could potentially designations for both the MX and CAM 19. One commenter stated these lead to requirements for additional DPSs of humpback whales under proposed exclusions pose too great a mitigations (avoidance, area or time section 4(b)(2) of the ESA. That risk to the whales given the Navy’s limitations, etc.) that could hinder Navy particular exclusion was based on a planned activities within these areas testing and training activities, and conclusion that the relatively low which have the potential to increase the thereby impact military readiness and conservation value of the particular area risk of vessels strikes, disrupt foraging, thus national security. Section 4(b)(2) for each DPS was outweighed by and affect prey species. One commenter requires us to consider impacts to national security and economic impacts noted that the Integrated Natural national security, and our Section and a determination that the exclusion Resource Management Plan (INRMP) for 4(b)(2) Policy directs that we accord will not result in the extinction of either the Southeast Alaska Acoustic great weight to the Navy’s concern DPS. Measurement Facility (SEAFAC) had because they have provided a Comment 43: A large number of not yet been finalized and requested reasonably specific justification commenters opposed designation of that NMFS revisit its decision to regarding these potential impacts. (81 Unit 10 (Southeast Alaska), and exclude this area once the INRMP is FR 7226, February 11, 2016). Therefore, requested that NMFS remove this area completed. The commenter stated we we stated in our proposed rule that this from the critical habitat designation for must also weigh the conservation area should be excluded under section Mexico DPS. The commenters stated benefit of designating this area. 4(b)(2) of the ESA. No new information that the economic impacts on Southeast Response: The SEAFAC is located in was provided during the comment Alaska were underestimated, while the the Western Behm Canal near the city of period to alter this conclusion, which conservation value was overestimated. Ketchikan and covers an area of 48 nmi2 we reaffirm in light of the great weight Multiple commenters stated that (164 km2), which equates to 0.22 we assign the national security impacts economic impacts to the commercial percent of the total area of Unit 10. We consistent with our policy, and so we fishing and related industry and originally proposed to exclude SEAFAC here affirm the exclusion of this area on infrastructure projects would be greater under section 4(b)(2) of the ESA on the the basis of national security impacts. than anticipated and would impact the basis of substantiated national security We also note that the entire broader area roughly 30 communities within this impacts. We did not rely on any of Unit 19, most of which overlaps with area. Some commenters noted that determination that the area was the SOCAL range, is excluded from the Southeast Alaska had the highest ineligible for designation under section critical habitat designation based on estimated administrative costs among 4(a)(3)(B)(i) of the ESA, which provides consideration of economic impacts (see all areas considered for designation. that certain areas cannot meet the Final Section 4(b)(2) Report). Numerous commenters also stated that definition of ‘‘critical habitat’’ if they are Comment 42: Several commenters Unit 10 is peripheral habitat for the covered by a relevant INRMP that has expressed concern regarding the threatened MX DPS of humpback been determined in writing to provide a significant threat of ship strikes to whales, supporting only an estimated 2 benefit to the species (16 U.S.C. humpback whales and requested that to 4 percent of the MX DPS, and that 1533(a)(3)(B)(i)). SEAFAC lies fully shipping lanes not be excluded from the designation of this area will provide within Unit 10, which as discussed in critical habitat designation. One minimal conservation benefit for this detail in the Final Section 4(b)(2) Report commenter noted that humpback whale DPS while having a disproportionate (see also response to Comment 43), is BIAs overlap the San Francisco and and significant economic impact on excluded from the final critical habitat Santa Barbara Channel shipping lanes, Southeast Alaska. Many commenters designation for the MX DPS under and stated that although ship strikes can also noted that most of the whales in section 4(b)(2) of the ESA. (No other be managed under existing mechanisms, this area are from the non-listed Hawaii listed DPSs of humpback whales occur ship traffic can compromise the benefit population of humpback whales, and in this Unit). Therefore, because the of critical habitat through disruption of stated that Unit 10 should not be larger area (Unit 10) is excluded on surface availability, potentially resulting considered critical habitat for the listed other grounds, it is not necessary for us in physiological impacts to the whales. MX DPS simply because it is to specifically exclude SEAFAC on This commenter requested that the final biologically important feeding habitat either the original grounds or the rule acknowledge shipping as a for another population of humpback alternative basis suggested in the potential impact to habitat quality. whales. comment. The status of the INRMP is Another commenter requested that the Response: As discussed previously in not relevant to this determination. shipping lanes of San Francisco or Long responses to comments on the economic The Southern California Range Beach/Los Angeles harbors not be analysis (see Economic Impacts), the Complex (SOCAL), which is a portion of excluded from the critical habitat FEA has been revised in response to the Navy’s Hawaii-Southern California designations given the extensive, public comments, which reflects Training and Testing Study Area cooperative efforts to address the threat increases in the anticipated economic (HSTT), overlaps with approximately 83 of ship strikes in and around the traffic impacts over what was presented in the percent of critical habitat Unit 19. We separation schemes (TSSs). DEA. For Unit 10 in particular, the costs agree that the activities that occur in the Response: We appreciate the concerns have been revised upwards as a result SOCAL range complex (e.g., anti- expressed by this commenter and the of the information we received on the submarine warfare, torpedo, mine continued efforts being made to reduce increased rate of consultations on countermeasure, gun, missile and ship strikes of humpback and other aquaculture projects and water-quality rocket, and propulsion testing) have the large whale species. We are not management projects that is anticipated potential to impact humpback whales, excluding any particular shipping lanes (as well as adjustments to the dollar- their feeding behaviors, and their prey from the critical habitat designations for year and the timeframe applied in the

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analysis). Specifically, the estimated, listed DPS. Secondary considerations in that DPS, we determined that the annualized, economic impacts to assessing the relative conservation value benefits of designating this area are Southeast Alaska are estimated to be of particular areas included indicators outweighed by the benefits of excluding $26,000–$32,000, whereas the DEA had of habitat quality and connectivity (or, the impacts of designating) this estimated an annualized impact of between feeding areas that would confer particular area. Thus, although we $12,000–$18,000. The estimated conservation value in the face of determined that Southeast Alaska (Unit annualized cost for Unit 10 is more than environmental variability or threats (see 10) meets the definition of critical double the cost estimate for any other NMFS 2020a). Based on this habitat for the threatened MX DPS of particular area, and on average is reassessment, Unit 10 is rated as having humpback whales, as outlined more roughly 10 times greater than the cost low conservation value for the MX DPS. fully in our response to the previous estimate for other particular areas Given the results of the economic comment, we are excluding this area within Alaska. Chapter 2 of the FEA analysis that indicate Unit 10 is from the final critical habitat also highlights the State of Alaska’s projected to experience the greatest designation for the MX DPS under the concerns related to potential probable economic impact, coupled authority of section 4(b)(2) in order to unquantified costs (e.g., project delays) with the relative low conservation rating ensure that the areas included in the and discusses the potential for indirect of this particular area, we find that the final designation provide the most or unquantified direct impacts related to benefits of excluding this particular area meaningful benefit to the species while certain activities. This discussion outweigh the benefits of designating it minimizing undue or disproportionate highlights that these added costs may as critical habitat. We are therefore costs and other impacts. affect communities such as those in excluding this particular area from the Comment 45: One commenter stated Southeast Alaska more than other, more final critical habitat designation for the that the proposed critical habitat around populated and economically diverse MX DPS pursuant to the authority of the Shumagin Islands and the Stepovak communities. Although most of the section 4(b)(2) of the ESA. Bay area is not needed, and that it will forecasted consultations for Southeast Comment 44: A commenter stated that hamper local communities that are Alaska are expected to be informal critical habitat will benefit the already under extreme pressure from consultations, the fact that the number humpback whales in Southeast Alaska regulatory bodies. The commenter of forecasted consultations in this (Unit 10), even though only 6–8 percent recommend we not designate these particular area are an order of of the whales using this area are known areas as critical habitat as members of magnitude greater relative to other areas to be from the threatened MX DPS, and the local community very rarely or in Alaska indicates the potential for that the proposed critical habitat should never have negative contact with the such impacts to result is much greater be designated. The commenter stated whales. that if the several hundred MX DPS Response: The locations referred to by within this particular area. whales in this area do not warrant ESA the commenter are within and adjacent Also, as discussed previously in protection, then NMFS should state to a Biologically Important Feeding Area response to Comment 30 and in further what number of listed whales does (BIA, Ferguson et al. 2015c) for detail in the Final Biological Report, we merit protection. The commenter also humpback whales, and a substantial reassessed the relative conservation stated that the number of whales amount of data from scientific surveys value of each particular area under estimated to use this area is likely an indicate that this area consistently consideration for designation for each underestimate. serves as an important feeding habitat DPS in light of issues and concerns Response: We appreciate the for humpback whales (Witteveen et al. raised in public comments, particularly commenter’s concern regarding 2004, Witteveen and Wynne 2013, the assertion that our initial analysis designating critical habitat in areas Witteveen and Wynne 2016a). This was confounded by consideration of where even a small proportion of the feeding area is used by both the MX and non-listed humpback whales from the listed DPS is known to occur or has WNP DPSs (Witteveen et al. 2004; Hawaii breeding population. In been estimated to occur. However, we Calambokidis et al. 2008, Barlow et al. conducting the reassessment, the cannot, nor are we required to, specify 2011), where the whales target and CHRT’s primary consideration when a threshold number of listed whales consume krill and fish species (Nemoto rating the relative conservation value of within a specific area that would 1957, 1959; Wynne and Witteveen each particular area was the degree to warrant or not warrant a critical habitat 2013). The estimated economic impacts which whales of a specific DPS rely on designation. In designating critical forecasted to occur in the particular area each particular area for feeding. In habitat, we must first identify areas that (Unit 3), where the Shumagin Islands conducting this analysis, the CHRT meet the statutory definition of critical and Stepovak Bay are located, are reviewed the best available scientific habitat based on the best scientific among the lowest when compared to the data on migratory destinations, information available, and must then other nine critical habitat units in distribution patterns, and proportions of consider the economic, national Alaska. Based on the high-end estimates the DPSs using or estimated to use security, and other relevant impacts of of future activity in the unit and different feeding areas (e.g., Barlow et that designation pursuant to the first associated section 7 consultations, fewer al. 2011, Wade 2017, Calambokidis et al. sentence of section 4(b)(2) of the ESA. than 10 section 7 consultations are 2017). The CHRT did not rate the When entering into an exclusion forecasted to occur within Unit 3 over relative conservation value of areas analysis, under the second sentence of the next 10-years, and 7.5 of those based on whether the particular areas section 4(b)(2), we evaluate each consultations are expected to be were important for non-listed humpback particular area on the basis of the set of informal consultations, which carry whales. In other words, whether a data relevant to that particular area. In fewer costs generally (IEc 2020). Unit 3 particular feeding area serves as this case, after considering the best was assessed by the CHRT as having important feeding habitat for the non- available data regarding the use and high conservation value for the MX DPS listed Hawaii population of whales was value of this area to the conservation of and medium conservation value for the not used by the CHRT as a proxy the MX DPS and the estimated WNP DPS. This latter rating was indicator that the area has the same economic impacts of including Unit 10 associated with greater uncertainty due biological importance to whales of a in the designation of critical habitat for to almost 40 percent of the CHRT’s votes

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being assigned to the high conservation value for both the WNP and MX DPSs 2.3.1 of the FEA, we do not presently value category. was not proposed for designation, nor is anticipate critical habitat designation for The ESA requires that we designate it included in the final designations for humpback whales to generate changes critical habitat for listed species to the either DPS. Unit 8, which was assessed to fisheries management in Alaska maximum extent prudent and as having low conservation value for the because the fisheries either do not target determinable, and it allows the WNP DPS whales, was not proposed for humpback whale prey species or do not Secretary to exclude particular areas designation for that DPS, nor is it take significant amounts of humpback after conducting an exclusion analysis if included in the final designation for that whale prey species overall. Thus, there the benefits of including the area in the DPS. Thus, we focus our response on is no indication that the commercial designation are outweighed by the Unit 8, the Prince William Sound area, fleet in this region will experience impacts (e.g., economic impacts, which we proposed to include in the probable economic impacts as suggested national security) of including the area critical habitat designation for the MX by the commenter. In response to public in the designation. In this process, we DPS. comments and new information must determine which factors are As discussed previously (see response provided, the quantified annualized relevant and how much weight to assign to Comment 1), the costs estimated in economic impact for Unit 8 was each factor (50 CFR 424.19(c)). Here, we the analysis are not exclusive to NMFS, increased from $1,800 to $3,400. assign great weight to the assessment and as shown in Exhibit 1–3 of the FEA, However, this cost estimate remains that the area provides at least medium for each forecasted consultation, the among the lowest when compared to all conservation value habitat for the analysis estimates administrative costs critical habitat units under endangered WNP DPS and high to NMFS, a Federal action agency, and consideration for designation for the MX conservation value habitat for the a third party. A third party can be a DPS (Exhibit 3–3, FEA). threatened MX DPS to support the The relative conservation value of private company (e.g., an applicant for conservation of these species, which is Unit 8 was reassessed by the CHRT in a Federal permit), a local or state a significant and important benefit of response to public comments and government, or some other entity. In including the area in the designations. through this reassessment, the relative addition, the analysis also evaluates the It is reasonable to give great weight to conservation value for Unit 8 was potential for costs resulting from this factor in light of the purpose of changed from high to medium. This additional conservation efforts for the critical habitat under the Act (to support rating was largely based on the relative humpback whales that may be the conservation, or recovery, of the level of use of this area by whales from species) and the statutory mandate to recommended through consultation, as the MX DPS and the presence of a designate critical habitat to the well as the potential for indirect impacts feeding BIA. We also considered the maximum extent prudent and (not related to section 7), such as project recent information indicating that this determinable. After thoroughly delays or regulatory uncertainty. Under area likely has a strong connection to considering the available information our implementing regulations, we must Kodiak Island (Unit 5), which is regarding the benefits of designation take into account the probable considered to have very high and impacts of designation, we find the economic, national security, and other conservation value for the MX DPS benefits of including the area in the relevant impacts (50 CFR 424.19(b)). (NMFS 2020a). While we agree with the designations are not outweighed by the Based on information provided during commenter that this is not the most probable benefits of excluding the area the public comment period, the FEA biologically important area for the MX from the designations. Thus, the includes more detailed discussion of DPS, as reflected in the final medium standard for excluding the area under concerns related to these potential conservation value rating for this area, 4(b)(2) is not met, and this particular economic impacts of the designation in this area meets the ESA’s definition of area is not excluded from the final Alaska and discusses the likelihood of critical habitat and is considered designations. these materializing. As summarized in important to the conservation and Comment 46: A commenter requested Section 2.2 of the FEA, the economic recovery of the MX DPS. It is considered exclusion of the Prince William Sound analysis indicates that it is most likely more important than the areas assessed (Unit 8) and the Northern Gulf of Alaska that the costs resulting from critical as having ‘‘low’’ conservation value. (Unit 9) habitat units from the critical habitat designation will be largely Further, the ESA does not direct that a habitat designations. The commenter limited to administrative costs of designation must be limited to only the expressed concerns that the economic consultation, with the potential for ‘‘most important’’ areas. An area that impacts were underestimated for Prince some additional, unquantifiable costs to meets the definition of ‘‘critical habitat’’ William Sound in particular, stating the result from in-water construction and on the basis of the best available economic analysis focused on expenses dam-related project delays that may information is presumptively included to NMFS and did not fully consider the occur following designation, which are in the designation, subject to the potential economic impacts to local unquantified in the analysis but exclusions process of section 4(b)(2), residents, stakeholders, and municipal presented qualitatively. Additional which allows for exclusion only in governments from additional expenses discussion regarding in-water particular circumstances. and delays associated with additional construction costs is provided in Specifically, the second sentence of regulatory requirements for hatcheries response to Comment 10. Lastly, as section 4(b)(2) of the ESA provides that and port, harbor, and seafood processing described in the FEA and as discussed the Secretary may exclude particular infrastructure projects as well as direct in response to Comment 3, the FEA areas from a designation only if the economic impacts on the commercial quantifies costs of consultations on Secretary finds that the benefits of fishing fleet. The commenter stated that fishery management plans in Alaska, excluding that particular area from the Unit 8 is not the most biologically including a total of four anticipated designation outweigh the benefits of important area for the MX DPS and its consultations on the Fishery including that particular area in the designation is not necessary to meet the Management Plans for the Bering Sea/ designation, and failure to include the requirements of the ESA. Aleutian Island groundfish fishery and area in the designation will not result in Response: Unit 9, which was assessed Pacific halibut fishery over the next ten the extinction of the species (50 CFR as having relatively low conservation years. However, as described in Section 424.19(c)). As we explained in the

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response to Comment 45, we must high conservation value to the MX DPS. the more northern feeding areas within determine which factors are relevant Akutan is located within Unit 2 of the the CCE (Calambokidis et al. 2017). and how much weight to assign each proposed critical habitat, which was (With the exception of Unit 19, all other factor in carrying out the analysis (see rated as having very high conservation habitat units to the south were assigned id.). Here, we assign great weight to the value to both the WNP and MX DPSs. higher conservation values for this CHRT’s assessment that area provides a In terms of the quantified economic DPS.) Our understanding of distribution medium level of value to support the impacts, both Units 2 and 3 had of CAM DPS whales is based on conservation of the MX DPS, which is estimated costs that were among the extensive photo-identification data as a significant and important benefit of lowest of the Alaska units as well as well as available genetic data. Analysis including the area in the designation. It overall. Based on the number of of 23,277 identifications of 3,484 is reasonable to give great weight to this forecasted section 7 consultations for humpback whales sighted in the CCE factor in light of the purpose of critical these areas, which are relatively low (from southern British Columbia to habitat under the ESA (to support the and are largely expected to be informal southern California) from 1986–2014 conservation, or recovery, of the consultations, future impacts on these indicates that a low proportion of species) and the statutory mandate to communities as a result of the critical whales occurring off the coast of designate critical habitat to the habitat are expected to be limited. In Washington belong to the CAM DPS, maximum extent prudent and addition, and as discussed previously in and a relatively higher proportion of determinable. After thoroughly response to Comment 3 and in Section CAM DPS whales occurs off the coast of considering the available information 2.3.1 of the FEA, we do not currently Oregon (Calambokidis et al. 2017). Over regarding the benefits of designation anticipate changes to fisheries 70 percent of the photo-identified and impacts of designation, we find that management because the fisheries either whales from the CAM DPS matched to the benefits of designating the Prince do not target humpback whale prey or the Oregon-California region William Sound area as critical habitat take significant amounts of humpback (Calambokidis et al. 2017). Consistent are not outweighed by the relatively low whale prey species overall. Thus, with this finding, is the very high forecasted, potential economic impacts. overall, we conclude that impacts on the estimated probability (0.926, Wade Unit 8 will therefore not be excluded overlapping communities as a result of 2017) of whales from the CAM DPS from the designation for the MX DPS. the critical habitat designation will be moving into the larger Oregon-California Comment 47: The Aleutians Island limited and do not outweigh the feeding region, which extends into Unit East Borough expressed concerns conservation benefit of the critical 13 and a significant portion of Unit 12. regarding how the critical habitat habitat designations. After engaging in Photo-identified CAM DPS whales have designation for the WNP and MX DPSs the consideration of impacts as also been observed in feeding areas of humpback whales could inhibit discussed in the response to Comments adjacent to and directly to the north and project development, such as proposed 45 and 47, we therefore conclude that south of the area covered by Units 12 kelp farms, within their jurisdiction. the standard under section 4(b)(2) is not and 13. The comment also expressed concerns met; the benefits of designating these While two feeding groups of whales about restrictions on fishing areas are not outweighed by the are currently recognized along this opportunities, because the Borough is probable benefits of exclusion of these portion of the CCE (i.e., Southern British dependent upon fish tax revenue to areas, and we decline to exclude them Columbia/Northern Washington and provide important services and from the final designations. Oregon/California; Carretta et al. 2017 infrastructure. The Borough requested Comment 48: A commenter requested and 2020), analysis of available satellite the exclusion of seven municipal areas: that we exclude Unit 12 and 13 from the tracks indicates overlap in the Zachary Bay on Unga Island, the city of designation for the CAM DPS, because movements and feeding ranges of Sand Point, the city of King Cove, the presence of CAM DPS whales in these whales from Washington and Oregon, city of False Pass, the city of Akutan, areas has merely been inferred, no BIA and from Oregon and California (but not and the city of Cold Bay, and waters has been identified in Unit 12, and the between Washington and California; surrounding the Community of Nelson lack of interchange of humpbacks in Palacios et al. 2020). Preliminary results Lagoon. these units strongly suggests these units from an ongoing, large-scale assessment Response: In considering this request, do not contain prey in sufficient of photo-identification data also suggest we first evaluated the degree of spatial quantities to be considered essential to potentially significant rates of overlap of the seven areas identified by the conservation of the species. The movement of humpback whales the Borough with areas proposed for commenter also noted there is a strong between the southern British Columbia/ designation as critical habitat using GIS basis to exclude these areas under Washington and Oregon/northern data provided by the Borough. King section 4(b)(2). California regions and the Oregon/ Cove and Nelson Lagoon are located Response: Unit 12 (Columbia River northern California and southern fully outside of the critical habitat Area), which is located around the California regions (Clapham et al. 2020). boundaries and thus are not included in Columbia River plume system and Individual assignment tests have the critical habitat designation. Cold extends from the southern Washington indicated that two whales (of nine) Bay and False Pass are almost entirely to northern Oregon coast, and Unit 13 sampled in 2016 and 2017 and one (of outside the critical habitat boundaries, (Coastal Oregon), which includes the six) sampled in 2018 off the coast of with areas of overlap measuring only remainder of the Oregon coast, were Oregon (Unit 13) have the highest 0.79 nmi2 (2.70 km2) and 0.22 nmi2 rated as having medium/low likelihood of being assigned to the CAM (0.77 km2), respectively. The remaining conservation value and medium DPS (Mate et al. 2018, Palacios et al. areas, Akutan, Sand Point, and Zachary conservation value, respectively, for the 2020). Overall, these available data Bay lie within or almost entirely within CAM DPS through both the initial and provide strong support for CAM DPS the proposed critical habitat. Sand Point final assessments conducted by the whales’ use of both Units 12 and 13 as and Zachary Bay lie within Unit 3 of the CHRT. These relative conservation well as interchange with adjacent proposed critical habitat, which was ratings were driven largely by the feeding areas. rated by the CHRT as having medium available data showing declining Multiple krill hotspots in association conservation value to the WNP DPS and proportions of CAM DPS whales within with submarine canyons have been

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identified in Units 12 and 13 (Santora because this area does not contain a the initial medium rating to low et al. 2018), across which variable BIA, it cannot logically contain the conservation value (NMFS 2020a). This abundances and distributions of essential feature. The commenter also rating was largely influenced by the low northern anchovy, Pacific herring, and stated that whales using lower Cook percentage of MX DPS whales identified Pacific sardine have also been Inlet have always been considered part in this area during the SPLASH study (5 documented (e.g., Litz et al. 2008, of the Central North Pacific Stock, of 301 MX DPS whales), the low to Zwolinski et al. 2012, Hill et al. 2019). which is considered to be part of the moderate predicted movement The best available data indicate that non-listed ‘‘Hawaii DPS.’’ Lastly, the probability of MX DPS whales into the these areas contain sufficient commenter asserts that designation of larger Gulf of Alaska region (i.e., 0.111; abundances of prey to support Cook Inlet as critical habitat would Wade 2017), and the lack of a BIA in humpback whale feeding. Area- create a regulatory burden with very this Unit. Available sightings data, restricted search data (ARS, indicative little conservation value to the listed which indicate that only about 103 of feeding behavior) derived from DPS, and that if Unit 6 is considered to humpback whales have been observed satellite tracks for 19 humpbacks tagged contain the essential feature for the MX within Unit 6 during beluga whale in 2004–2005 and in 2017 indicate that DPS, NMFS should exclude this area aerial surveys conducted in 17 summers whales were feeding within Units 12 from the designation pursuant to section during 1994–2016 (NMML, unpubl. and 13 (Mate et al. 2018). Satellite- 4(b)(2) of the ESA. data, 1994–2016; Sheldon et al. 2017), monitored tracks for 11 humpback Response: Unit 6, which consist of the suggest that the number of humpback whales tagged off the coast of Oregon in lower portion of Cook Inlet north to whales using this area is low. 2015–2018 also indicate that the area off Kalgin Island, was proposed for Based on the analysis in the FEA, the the Columbia River mouth was one of designation as critical habitat for the estimated annualized economic impacts the highest use areas (Palacios et al. MX DPS. Humpback whales are of designating Unit 6 as critical habitat 2020). In addition, a comprehensive routinely sighted in the lower portions was increased to $5,200–$5,600 from analysis of a total of 56 tracks from of the inlet but in fairly low numbers the previous estimate in the draft humpback whales tagged during 2004– within a given year (National Marine analysis of $3,400–$3,700 (IEc 2020). 2018 off California, Oregon, and Mammal Laboratory (NMML), unpubl. This increase was the result of new Washington indicates that of two data, 1994–2016). Inter-annual information regarding the increased rate behavioral modes, ‘‘transiting’’ or movements of whales between lower of consultation on aquaculture and ‘‘ARS,’’ about 60–75 percent of the Cook Inlet, the Barren Islands, and hatchery projects in future years per location data within the areas of Unit 12 waters adjacent to northeast Kodiak data from ADF&G, the increased rate of and 13 were in the ARS behavioral Island (Witteveen et al. 2011) strongly consultations on water quality mode, while less than 25 percent of the suggest this is not a discrete feeding management activities per data from location data were classified as area. Photo-identification data collected ADEC, an update to 2020 dollars (from transiting and remaining data classified during the SPLASH study demonstrates 2018 dollars), and an update to the as ‘‘uncertain’’ (Palacios et al. 2020). that MX DPS whales occur in this analysis timeframe to 2020–2029 The annualized economic impact of particular area, but the level of site (previously, 2019–2029). Although the designating these areas was estimated to fidelity of humpback whales to this estimated economic impacts are still be $6,900 for Unit 12 and $9,500 to feeding area has not been established. considered relatively low, we conclude $10,000 for Unit 13, which are not As discussed previously (see response that the benefits of excluding Unit 6 considered particularly high or to Comment 33), BIAs, are not outweigh the relatively low significant costs. The whales in the DPS necessarily synonymous with critical conservation value of including Unit 6 for which these units would be habitat and vice versa, and while BIAs in the critical habitat designation for the designated are endangered and were an important consideration in the threatened MX DPS. We also conclude considered to have relatively low CHRT’s assessments, lack of a BIA does that this exclusion will not result in the abundance, and we find that the habitat not disqualify areas from consideration extinction of the MX DPS. Thus, Unit 6 in both Units 12 and 13 is important to as critical habitat under the ESA. While is excluded from the final critical support the recovery of this DPS. After non-listed humpback whales from the habitat designation (NMFS 2020b). engaging in the consideration of impacts Hawaii breeding population are more Comment 50: The Alaska Department as discussed in the response to abundant within the larger Gulf of of Transportation and Public Facilities Comments 45 and 47, we therefore Alaska region relative to whales from (DOT&PF) requested that we exclude conclude that the standard under the threatened MX DPS, this region is developed areas from the critical habitat section 4(b)(2) is not met; the benefits of part of the occupied range of the MX designations for the WNP and MX DPSs designating these areas is not DPS. Humpback whale ‘‘stocks’’ because such areas do not contain high outweighed by the estimated probable identified under the MMPA are not quality habitat. The DOT&PF economic impacts associated with each synonymous with DPSs under the ESA, specifically requested exclusion of of these habitat units. Therefore, we are and the currently recognized MMPA existing and planned ferry terminals in not excluding these specific areas from stocks, which consist of multiple DPSs, the Alaska Marine Highway System, the final critical habitat designation for are currently being reviewed by NMFS harbors, seaplane facilities, ports, and the CAM DPS. (Muto et al. 2020, Carretta et al. 2020). harbor facilities under the control of Comment 49: A commenter requested Both the estimated proportion of MX local governments. The DOT&PF we exclude Unit 6 (Cook Inlet Area) DPS whales using Unit 6 as well as the referenced the critical habitat from the final critical habitat lack of a BIA in this particular area were designations for the Southwest Alaska designation for the MX DPS. The among the relevant factors considered DPS of the northern sea otter and Cook commenter stated that fewer humpback by the CHRT in assessing the relative Inlet beluga whales as examples where whales have been observed during conservation value of this area. similar provisions were included in the monitoring surveys in lower Cook Inlet Based on the CHRT’s reassessment of critical habitat rules. The DOT&PF also in recent years (Kendall et al. 2015, the relative conservation values of all requested exclusion of a 500 foot zone Lomac-McNair et al. 2014) than during specific areas, the conservation value of around ferry, harbor and seaplane the SPLASH surveys, and asserted that Unit 6 to the MX DPS was changed from facilities or structures because such

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areas receive the most intense use as would be an unwarranted departure would be significant costs from boats and seaplanes enter and exit the from agency practice and inappropriate including the area in the designation. facilities, and routine maintenance and to include planned or future facilities in There is no obvious Federal nexus with facility upgrades frequently require this clarification. The construction of many of these identified activities, and large barges and boats to maneuver in facilities in the future within the critical likely only a small subset of these and around these structures. habitat may pose adverse effects to the activities would be subject to the Response: The Southwest Alaska physical or biological feature or to the requirements of section 7 of the ESA. In northern sea otter and Cook Inlet Beluga area, and there would be a benefit to addition, the impact of these types of whale critical habitat designations (74 review of such projects through activities will largely be direct impacts FR 51988, October 8, 2009; 76 FR 20180, interagency consultation applying the on the whales themselves (e.g., vessel April 11, 2011) include regulatory requirements of section 7 of the ESA. In strikes, harassment), potential adverse language indicating that manmade such cases, we find it appropriate that effects that would independently trigger structures are not included in the those construction activities be carried the need for section 7 consultation to critical habitat. For instance, the sea out in a manner that is required to consider impacts to the species. Thus, otter designation states: Critical habitat consider and avoid adverse destruction in the subset of cases where there is a does not include manmade structures or modification of the critical habitat. Federal nexus—for example, in (including, but not limited to, docks, We also note that this clarification in instances where the vessel activity is seawalls, pipelines, or other structures) the critical habitat regulatory language associated with construction or and the land on which they are located does not constitute an exclusion to the maintenance of a ferry terminal—the existing within the boundaries on the critical habitat designations under requirement to consult under section 7 effective date of this rule (50 CFR section 4(b)(2) of the ESA, but rather it of the ESA would be triggered even in 17.95(a)(3)). The Cook Inlet beluga is a clarification regarding what is the absence of humpback whale critical whale critical habitat regulation considered critical habitat to ensure habitat and would likely be focused on contains the following, similar, consistency with the standards of the direct impacts to the ESA-listed whales. regulatory language: Critical habitat statutory definition. Furthermore, the protections for does not include manmade structures However, we note that the commenter humpback whales and other marine and the land on which they rest within appeared to go further than previous mammals under the MMPA would also the designated boundaries that were in practice to include harbors and ports in apply within this buffer area. As existence as of May 11, 2011 (50 CFR this exclusion request. Such areas are indicated in the FEA (IEc 2020), no 226.220). NMFS has also included not generally excluded from the additional conservation measures are similar regulatory language in other referenced critical habitat designations likely to result from the forecasted previous critical habitat designations that the commenter cited in support. consultations on in-water construction (e.g., Northwest Atlantic Ocean DPS of Rather, the regulatory clarification in activities, largely due to the existing loggerhead sea turtle (50 CFR both the sea otter and Cook Inlet beluga baseline protections in place; and, the 226.223(c)(2)), Atlantic sturgeon DPSs whale critical habitat designations is associated administrative costs for the (50 CFR 226.225(a)(6)), Hawaiian monk specific to manmade structures. The relevant areas of Alaska are relatively seal (50 CFR 226.201(c)(1))). In these Cook Inlet beluga whale critical habitat low, especially relative to Unit 10 previous cases, the rationale for this designation’s exclusion of the Port of (Southeast Alaska). In addition, non- regulatory language was that the Anchorage is inapposite. There, the quantified economic impacts, such as manmade structures themselves do not exclusion of the port was not limited to project delays, are also unlikely (and contain or provide the essential physical the manmade structures within the port therefore do not constitute probable or biological features identified as being and was not for the purpose of mere impacts) because, as confirmed by the essential to the listed species. Although clarification. Rather, that particular port, State of Alaska, there are no specific we are not required to establish with which is designated by the Department examples of such in-water construction perfect specificity exactly where the of Defense (DOD) as a Strategic Port, projects having been halted or delayed essential feature is located within the was excluded from Cook Inlet beluga due to a new critical habitat designation specific areas, we find that here it is also whale critical habitat under section and resulting need for reinitiation of an appropriate to denote that structures are 4(b)(2) based on consideration of existing consultation in Alaska. not included within the designation national security impacts. No In conclusion, after engaging in the because they do not, by definition, have information regarding impacts to consideration of impacts under section the essential feature. We therefore agree national security were provided by the 4(b)(2), we find there is no clear basis with the commenter that the inclusion commenter, and we have received no to establish a meaningful benefit from of such language in the critical habitat such exclusion request from DOD. Thus, excluding a 500 foot buffer around these designations for the WNP, MX, and the ports will not be excluded from this structures from the critical habitat CAM DPSs of humpback whales is an final designation. designations. We therefore conclude appropriate clarification. Therefore, we Consistent with the critical habitat that the standard under section 4(b)(2) have added regulatory language that is designations cited by the commenter, is not met; the benefits of including the applicable to all three of the critical we are also not excluding an additional buffer area in the designation are not habitat designations that indicates that 500 foot zone or buffer around outweighed by any benefit of exclusion. existing manmade structures (e.g., manmade structures. The justification Therefore, we are not making this docks, sea plane facilities) are not part put forward by the commenter to additional exclusion. of the critical habitat because they do support the requested 500 foot buffer is Comment 51: A commenter requested not contain the essential prey feature for the high degree of vessel and seaplane that we focus the critical habitat any of the DPSs. presence and traffic around the ferry, designation within Southeast Alaska on Similar to previous critical habitat harbor, and seaplane structure and waters that have been routinely shown designations, this clarification regarding facilities. While it is clear these are to be highly important for humpback manmade structures will apply only to areas have a relatively high level of whale feeding. The comment states that those structures in place by the effective routine vessel and plane activity, this it is common knowledge that humpback date of this rule. We conclude that it does not necessarily indicate that there whales only rarely traverse through

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Wrangell Narrows and Duncan Canal, line running from Bluff Point in Marin continue to be addressed as appropriate both of which they state contain County through Angel Island and under sections 7, 9, and 10 of the ESA developed areas and do not contain the Alcatraz Island to San Francisco’s and under the MMPA. We also look essential prey feature. Thus, the Aquatic Park Pier, which would extend forward to continued results from this commenter concludes, it is reasonable the current boundary approximately study, including information on future to exclude these areas from the critical 5.25 km east of the Golden Gate Bridge. trends in humpback whale occurrences designation. Other areas were identified The commenter stated that whales in within the bay and the DPS identity of as supporting high densities of feeding the bay face increased exposure to the whales in this area. humpback whales at certain times of threat of ship strike, harassment Comment 53: Multiple commenters year—specifically Sitka Sound, (through vessel noise), and requested that the critical habitat Seymour Canal, the Petersburg area, and entanglement, and noted the lack of designations be expanded to include the Frederick Sound north of Kupreanof vessel speed restrictions within the bay. Salish Sea, including areas around the Island to Stephens Passage and west Response: We appreciate the detailed San Juan Islands, Admiralty Inlet, and past Big Creek. The commenter also information provided by this Puget Sound. Several of these requested a certain distance buffer of commenter. The proposed inshore commenters noted their personal communities and other human boundary of Unit 16 was delineated by observations of humpback whales in development in general, or a buffer of the 15-m isobath except where it was Puget Sound. Another commenter non-Federal lands to allay concerns of drawn farther inshore into San referred to the Center for Whale the public. Francisco Bay east to the Golden Gate Research, Humpbacks of the Salish Sea Response: We appreciate the Bridge. The boundary was extended into catalogue, and the Orca Network’s commenter providing this information the mouth of the San Francisco Bay to Whale Sighting Network data and stated regarding seasonal use patterns of capture what had recently been that over 400 individual humpback humpback whales within Southeast recognized as important foraging habitat whales have been documented in the Alaska. However, as discussed for humpback whales (Calambokidis et Salish Sea, including individuals from previously in our response to Comment al. 2017), but only up to where the both the threatened Mexico DPS and 43, based on our analysis of the benefits highest numbers of whales had been endangered Central America DPS. This of excluding this area as compared to observed (i.e., near the entrance to San commenter stated that these waters are the benefits of including the area, Francisco Bay; J. Calambokidis, becoming increasingly important to Southeast Alaska (Unit 10) is excluded Cascadia Research Collective, pers. humpback whales and should be from the final critical habitat comm., May 23, 2018). Both sightings designated as critical habitat. designation for the MX DPS. The and telemetry data indicate that Response: We agree with these exclusion of this particular area was humpback whales are concentrated and commenters that available data clearly based on the finding that the economic mainly forage outside the bay on the indicate humpback whales are impacts of designation outweigh the shelf and especially within the area increasingly being observed within the benefits of designation, and the encompassed by the nearby BIA Salish Sea. However, data referenced by conclusion that this exclusion will not (Calambokidis et al. 2015, Mate et al. the commenter in support of extending result in the extinction of the species. 2018). Study results provided by the critical habitat into the Salish Sea are commenters support a hypothesis that photographs that are not associated with Requests To Designate Particular Areas the whales’ presence in the bay is location data (Center for Whale Comment 52: A commenter provided tidally-influenced, with the whales Research catalogue and Humpbacks of information and results of recent studies following prey into the bay on rising the Salish Sea catalogue), and public regarding the abundance, identity, and tide, and departing on falling tide. reports of humpback whale sightings spatial and temporal use patterns of Specifically, the results provided by the that cannot be attributed to unique humpback whales in San Francisco Bay. commenter demonstrate the shift in whales (Orca Network’s database). The commenter stated that these data sightings from Point Bonita (outside the Sightings data without corresponding indicate a recent influx of humpback bay) eastward to and under the Golden location data or a means of determining whales into the bay, where they feed on Gate Bridge over the course of rising counts of individual whales prevents us northern anchovy. The commenter tides. Because the majority of these from applying these data to determine specifically noted that peak daily sightings did not extend farther into the habitat use patterns or determine the numbers reached 24 whales in the outer bay, we find that the boundary, as extent to which the sightings may be strait west of the Golden Gate Bridge, initially proposed, appropriately biased by areas of greater human and 15 whales inside the bay east of the captures the general distribution of concentrations. bridge. The commenter stated that humpback whales and the vast majority Within the Salish Sea, scientific whale presence and locations was of whale sightings within this portion of survey data indicate that the highest correlated with tidal state, with whales their feeding habitat. Therefore, we densities of humpback whales occur moving inshore with the rising tide and conclude on the basis of the best within the Strait of Juan de Fuca up to offshore with the ebbing tide. Based on available scientific data that the Port Angeles, especially on the British a total of 502 photo-documented boundary as proposed remains the Columbia side of the strait, with only sightings, the commenter stated that 61 appropriate boundary for critical habitat intermittent use of the waters deeper individual whales have been cataloged, for both the CAM and MX DPSs. within Puget Sound (pers. comm., John of which 18 have visited the bay in Although we are not extending the Calambokidis, Cascadia Research multiple years, and 44 percent (n=27) of critical habitat boundary as Collective, February 26, 2020). Satellite which have been matched to whales on recommended by this commenter, we tagging data for 42 humpback whales the breeding grounds on the West Coast will continue to address the threats that were tagged off the coast of of Mexico. To promote the recovery and raised by this commenter as being Washington and tracked during mid- conservation of the Mexico DPS, the particular concerns in this area. summer and early fall of 2018 and 2019 commenter recommended that the Specifically, ‘‘take’’ of these listed indicate a consistent habitat use pattern, inshore boundary of Unit 16 within San whales as a result of ship strikes, with whales showing a preference for Francisco Bay be set as a northsouth harassment, and entanglement will continental shelf and shelf-edge habitat

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and use of the western portion of the that some WNP DPS whales may be unidentified stock with the Western Salish Sea (Mate et al. 2020, Palacios et using areas around the Mariana Islands North Pacific’’ (Ivashchenko et al. 2015). al. 2020). Within the Salish Sea, whale as a breeding ground. As discussed in Therefore, this particular figure does not tracks generally extended as far east as the Draft Biological Report and refer to or provide information to Pillar Point; however, three whales summarized in the proposed rule, we support the designation of breeding travelled into Canadian waters off concluded that while this work suggests habitat for the WNP DPS of humpback Vancouver Island. No whales were that an area off Saipan may be part of whales. tracked into Puget Sound (Mate et al. the hypothesized ‘‘missing’’ breeding Because endangered WNP DPS 2020, Palacios et al. 2020). Overall, we area for the WNP DPS, additional data whales have been documented to occur find that the proposed boundary at Port would be needed to fully resolve the off some of the Mariana Islands, we Angeles is an appropriate boundary and extent to which whales from the WNP have assessed the impacts of Federal captures the portion of U.S. waters DPS are using areas around the Mariana actions in this area on the WNP DPS in known to be occupied and consistently Islands as a breeding/calving habitat relevant ESA section 7 consultations. used by whales from the MX and CAM and to determine the essential physical Thus, despite the lack of sufficient data DPSs. Ongoing research efforts will and/or biological features of these areas. to support the designation of breeding continue to provide information Although the results of that research areas as critical habitat, we will regarding trends in humpback whale have since been published (i.e., Hill et continue to address potential impacts use of the Salish Sea as well information al. 2020), we find that it does not from Federal actions on these whales regarding the extent to which ESA-listed resolve the questions we would need to through section 7 of the ESA. We will humpback whales are using this area as answer in order to include this area in also continue to monitor results of feeding habitat. We will follow those the critical habitat designation. We humpback whale research being results as they will inform our continue to find available data conducted in waters off the Mariana management efforts under the ESA and insufficient to determine the physical or Islands and other hypothesized breeding could inform future revision to the biological features essential to support areas (e.g., Northwest Hawaiian Islands) critical habitat designations. breeding and that may require special to determine the extent to which WNP Comment 54: A group of management considerations or DPS whales are using these areas as organizations stated that the critical protection, as required to meet the breeding habitat and whether and when habitat designation should include statutory definition of critical habitat it may be appropriate to revise critical confirmed breeding areas for the WNP within the species’ occupied range (16 habitat for the WNP DPS. DPS. The commenters assert that we U.S.C. 1532(5)(A)(i)). The commenters Essential Features overlooked research in the Draft did not provide any relevant literature Comment 55: Multiple commenters Biological Report that shows humpback or data regarding essential features of breeding locations near Guam and the agreed with the identification of the breeding habitat or the spatial extent of single, ‘‘prey’’ essential feature but Northern Mariana Islands. These the specific areas containing essential commenters stated that we provided an requested that the regulatory definition features around the Mariana Islands or of this feature be modified. A few inadequate explanation for excluding Guam. the WNP breeding areas in the Northern commenters stated that the proposed Mariana Islands/Guam from critical The commenter points to Figure 2 in prey feature is too vague and requested habitat consideration and must correct the Draft Biological Report to support that we identify specific species and life this error. their assertion that the proposed rule stages that fall under the definition of Response: In developing the proposed overlooked research that shows prey species. The commenters noted rule, we considered all available data humpback breeding locations near that the proposed rule discusses how, in regarding the occupied range of the Guam and the Northern Mariana addition to euphausiids, northern WNP DPS, including the location of Islands. This particular figure was taken anchovy, Pacific herring, Pacific confirmed breeding areas. At the time of from a 2015 IWC report (Ivashchenko et sardine, and capelin, humpback whales listing, the WNP DPS was described as al. 2015) regarding the status and pre- also consume other fish species in those humpback whales that that breed exploitation abundance of humpback Alaska, including Atka mackerel, and or winter in the area of Okinawa and the whales in the North Pacific. This IWC juvenile walleye pollock, and expressed Philippines in the Kuroshio Current (as report does not describe research on concern that NMFS may subsequently well as unknown breeding grounds in breeding areas. The report authors interpret the definition to include these the Western North Pacific Ocean), discuss how, for purposes of their other fish species. The commenters transit the Ogasawara area, or feed in analysis, they adopted the locations of stated additional clarification on species the North Pacific Ocean, primarily in humpback whale breeding and feeding and life stages of prey is necessary to the West Bering Sea and off the Russian areas that were used during the SPLASH inform future section 7 consultations. coast and the Aleutian Islands (50 CFR study (e.g., Barlow et al. 2011), and they Another commenter stated that the 224.101(h)). WNP DPS humpback specifically state: ‘‘Currently four essential feature was not defined with whales breed in waters around southern breeding populations have been the required specificity for each unique Japan from about December to June identified: the Western NP (Okinawa DPS, and that we must perform an (Darling and Mori 1993), off the and Philippines), Hawai’i, Mexico assessment of the specific prey features Philippines in the Kuroshio Current (mainland and the offshore waters of the applicable to each of the unique DPSs. from about November to May (Acebes et Revillagigedo Islands), and Central ADF&G requested that we include the al. 2007), and in an additional unknown America. Relatively low match rates concept of ‘‘regular aggregations of breeding ground in the Western North between whales feeding in the Aleutian prey’’ in the definition of the prey Pacific (Bettridge et al.2015). Both the Islands and these four breeding areas feature if that is an ‘‘essential’’ aspect of Draft Biological Report (NMFS 2019a) indicate the likely existence of a fifth the prey feature as was discussed in the and proposed critical habitat rule (84 FR breeding population whose location is Draft Biological Report. 54354, October 9, 2019) discuss the presently unknown; for the purpose of Response: Humpback whales are unresolved breeding range of this DPS management, the U.S. National Marine generalists, consuming a variety of prey as well as ongoing research suggesting Fisheries Service recently lumped this while foraging. To meet their energetic

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requirements, humpback whales can whales. Specifically, we identified southeast Alaska). Other anecdotal shift their diet during the feeding season euphausiids from genus Thysanoessa, reports as well as evidence from studies to target prey that happens at that time Euphausia, Nyctiphanes, and conducted during hatchery release of to be of greater abundance or higher Nematoscelis), as well as Pacific sardine salmon (Chenoweth et al. 2017, Kosma quality (Witteveen et al. 2012 and 2015, (Sardinops sagax), northern anchovy et al. 2019), indicate that humpback Fleming et al. 2016, Moran and Straley (Engraulis mordax), and Pacific herring whales will consume salmon; however, 2018). Humpback whale prey species (Clupea pallasii) as primary prey evidence of predation on wild salmon is are also dynamic in terms of their species for the CAM DPS. We identified limited, especially given their relative distributions and abundances euphausiids of genus Thysanoessa and abundance in the inshore and coastal and are influenced by ecological (e.g., Euphuasia, Pacific herring (Clupea waters of southeast Alaska. Nemoto spawning seasonality) and pallasii), capelin (Mallotus villosus), (1957 and 1959) reported Atka mackerel environmental factors (e.g., ocean juvenile walleye pollock (Gadus in 58 of 392 humpback whale stomachs conditions, climate change), and chalcogrammus), and sand lance examined; however, the whales were potentially by anthropogenic factors (Ammodytes personatus) as primary reported to feed on Atka mackerel in (e.g., commercial fisheries). As a result prey species for the WNP DPS. Lastly, waters west of Attu and south of of these multiple variables, the precise the primary prey identified for the MX Amchitka, locations that are well west array of prey species targeted and DPS include all of the prey identified of the critical habitat boundaries for the consumed by the whales of each DPS for the CAM and WNP DPSs, because MX and WNP DPSs. Pacific eulachon varies both spatially and temporally. the MX DPS whales feed in areas that has been reported as a prey item, but Despite this variability, however, overlap with both of the other DPSs. results from a stable isotope analysis substantial data indicate that the We also examined the available diet found that in no summer of a three- humpback whales’ diet commonly information to identify what specific summer study conducted off Kodiak includes euphausiid species (e.g., of age-classes of prey species consumed by Island were contributions of eulachon genera Euphausia, Thysanoessa, humpback whales have been reported. significant in the humpback whale diet, Nyctiphanes, and Nematoscelis) and For example, humpback whales have while both euphausiids and pollock small pelagic fishes, such as northern been reported to consume all age classes were found to be predominant prey anchovy (Engraulis mordax), Pacific of Pacific herring (Moran and Straley sources (Witteveen et al. 2012). Overall, sardine (Sardinops sagax), Pacific 2018), and post-larval euphausiids the available data regarding occurrence herring (Clupea pallasii), sand lance (Nemoto 1957, 1959). Studies focusing of other potential prey species such as (Ammodytes personatus), juvenile around Kodiak Island indicate that these in the humpback whale diet are walleye pollock (Gadus humpback whales consume juvenile not sufficient to support a conclusion chalcogrammus), and capelin (Mallotus walleye pollock (i.e., age-0, young-of- that they are essential components of villosus; Nemoto 1957 and 1959, Rice year, and age-1) and capelin age-0 and the humpback whale diet such that they 1963, Klumov 1965, Krieger and Wing older (Witteveen et al. 2008 and 2012, should be considered part of the 1984, Baker et al. 1985, Kieckhefer Witteveen and Wynne 2016, Wright et essential biological feature within the 1992, Clapham et al. 1997, Witteveen et al. 2016). Therefore, in response to the specific feeding areas identified as al. 2012, Neilson et al. 2013). comment received, where the available critical habitat for the listed humpback The diet of humpback whales has data indicate that only certain age- whale DPSs. been studied and described using classes of fish species are consumed Because there are limitations to the multiple techniques, including (rather than all age classes), we have available studies and data, including examination of stomach contents also provided the relevant age-class seasonal, spatial, and temporal (typically for commercially harvested information as part of the prey feature limitations that affect the resulting diet whales), stable isotope analyses, and definition (i.e., juvenile walleye information, and because changes in direct observations of feeding whales. pollock). ocean conditions can alter the relative The Biological Report (NMFS 2020) Although many other prey items have importance of some prey species within contains a discussion of humpback been reported as being taken by the humpback whale diet at a particular whale diet information by geographic humpback whales, these reports are point in time, it is not possible to region and includes appended tables rare, spatially or temporally limited, or identify an exhaustive list of prey listing prey items, locations and are historical observations that have not species as part of the essential feature methods of the study, and associated been further substantiated with more for each DPS. We therefore applied the references. We are not aware of any recent evidence. For example, copepods best available scientific data to identify additional diet information not already were often reported by Nemoto (1957, a non-exhaustive list of the predominant reviewed in the Biological Report that is 1959, 1977) in the stomachs of prey species for each DPS. We find that specific to any DPS (nor was any humpback whales taken during this is the level of specificity supported provided by the commenter). whaling, but characterized as by the best available data, which These diet studies were used to ‘‘incidental’’ given their low number in provides adequate notice to the public identify the prey species that are the stomach relative to their abundance of the species that are most likely to common or most prevalent in the diet of in the sea and the distribution of the constitute prey for each DPS, and is humpback whales within the relevant whales relative to the more offshore appropriate for defining the essential geographic regions. In response to the distributions of copepods. Kieckhefer feature. As more data become available public comments, these prey (at the (1992) observed surface-feeding regarding the particular diets of each genus or species level) have been humpback whales at Cordell Bank DPS, that data should be considered as expressly incorporated into the essential feeding on schooling fish that were part of the best available scientific and feature description for each humpback ‘‘tentatively identified’’ as juvenile commercial information to inform whale DPS. We relied on information rockfish (Sebastes spp.). A few studies particular section 7 consultations. regarding the distribution of the prey report that salmon were observed near We further find that the essential prey species as well as location of the various foraging humpback whales (e.g., Moran feature may require special management diet studies to identify appropriate prey and Straley 2018 in Prince William considerations or protection either now items specific to each DPS of humpback Sound, and Neilson et al. 2013 in or in the future. Most of the prey

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identified in the revised essential not provide a precise understanding of Response: As discussed in response to feature are also defined as ‘‘forage fish’’ the foraging behavior of humpback Comment 55, we have added additional in several Federal regional Fisheries whales relative to multiple relevant specificity to the definition of the prey Management Plans (FMPs) as well as variables such as prey densities, patch feature for each DPS to address state management plans. These FMPs size, and biomass (Piatt and Methven comments regarding the vagueness of specifically acknowledge the 1992, Burrows et al. 2016, Walder the proposed feature. Our final rule and importance of the primary prey species 2018). Humpback whales are also FEA reiterate statements made in the we have identified as essential for the known to use a variety of feeding proposed rule and DEA that the existing conservation of humpback whale by techniques, many of which are intended baseline protections are relatively high including an objective of preserving the to aggregate or concentrate prey (e.g., with respect to humpback whale prey food web and/or providing adequate herding, bubble net feeding, trap species. We decline, however, to make forage for dependent species along with feeding), and different techniques are more definitive statements as suggested identifying regulations to conserve these likely used with different prey species, by the commenter with respect to this essential forage fish species. For prey densities, and prey depth. Thus, issue. The directed commercial Pacific example, Amendment 36 to the Bering although humpback whale prey may not sardine fishery has been closed for the Sea/Aleutian Islands Groundfish FMP be present in ‘‘regular aggregations’’ in past three years and will remain closed and Amendment 39 to the Gulf of a particular feeding area, they may still for the upcoming July 1, 2020–June 30, Alaska Groundfish FMP enacted by the support feeding. Overall, we find it 2021 season. NMFS has not completed North Pacific Fishery Management more appropriate to focus the a section 7 consultation on the effects of Council in 1998 created a forage fish description of the prey feature on the anchovy harvest on listed humpback species category (50 CFR 679.2) and whether prey are available in sufficient whales, so any statements in this rule as associated regulations prohibiting quality, abundance, and accessibility to to the existence or absence of a need for directed fishing for forage fish at all support feeding, rather than also changes in management practice would times, as well as the sale, barter, trade including the concept of prey be predecisional. Rather, each action and processing of forage fish (50 CFR aggregations or a temporal aspect of must be reviewed on the basis of the 679.20). These forage fish are noted to ‘‘regular aggregations.’’ We can discern, best available scientific and commercial be a critical food source for many based on the best available data data at the time it is undertaken. marine mammal, seabird and fish regarding humpback whale feeding Therefore, while we continue to find species. These FMPs also set fishery grounds, that these areas host a that baseline protections are high, we limits on herring and walleye pollock sufficient quantity, quality, and cannot prejudge the outcome of a and describe essential fish habitat accessibility of prey at various times to section 7 analysis. (EFH)—those waters and substrate support feeding. Lastly, we note that the Comment 57: Numerous commenters necessary for spawning, breeding, ESA contains ‘‘no statutory command requested that a sound or soundscape feeding or maturity—for 5 age-classes of that the Service provide exhaustive essential feature be included in the walleye pollock (eggs, larvae, early notice to the public concerning all’’ of critical habitat designations to provide juvenile, late juvenile and adults). This the essential features. Arizona Cattle for the protection of their habitat from EFH designation ensures fishing and Growers’ Ass’n v. Kempthorne, 534 noise degradation that would interfere non-fishing impacts to these habitats are F.Supp.2d 1013, 1025 n. 2 (D. Ariz. with their use and occupancy of these periodically reviewed. The Coastal 2008). areas, as well as communication and Pelagic Species (CPS) FMP, enacted by In conclusion, we find that the other behaviors. A group of commenters the Pacific Fishery Management Council essential prey feature as revised for each provided multiple references on ocean (PFMC), includes similar recognition DPS is described at an appropriate level noise and impacts of noise on marine and various restrictions on harvest for of specificity in light of the best mammals, and asserted that we had important ecosystem component species available scientific data about the ignored studies that indicate impacts of and forage fishes. Most significantly, in humpback whale diet and prey species. sound on humpback whales. These 2006, the PFMC adopted CPS FMP We also note that section 7 commenters stated that the ESA requires Amendment 12, which prohibited consultations must be based on the best, the agency to view scientific uncertainty harvest of all species of krill throughout currently available scientific and in favor of conservation of the the entire U.S. West Coast EEZ (50 CFR commercial data at the time of endangered species, and that we should 660.505). The PFMC also adopted an consultation and should address the apply the precautionary principle in the EFH designation for all species of krill particular set of facts relevant to that face of inadequate or conflicting data to that extends the length of the U.S. West consultation (the nature of the project treat this feature as essential to support Coast from the shoreline to the 1,000 and its effects on the critical habitat; the the life needs of the species. One fathom isobath and to a depth of 400 location, timing, and duration of the commenter stated that if a specific meters. effects, etc.). numeric standard cannot be determined, As we discussed in the proposed rule Comment 56: One commenter we should still include a noise-related (84 FR 54354, October 9, 2019), expressed the belief and concerns that essential feature in the critical habitat humpback whales within the North the prey feature is overly broad and will designation and make it clear that Pacific feeding areas are usually result in litigation. They requested that critical habitat for humpback whales observed in association with, or NMFS make a definitive statement that must not contain levels of noise that specifically targeting, dense existing management measures are impede or prevent the whales use of this aggregations of prey (e.g., Bryant et al. sufficient. The commenter referred to important habitat. The commenter noted 1981, Krieger and Wing 1986, the existing prohibition on krill harvest that such a qualitative sound feature has Goldbogen et al. 2008, Sigler et al. 2012, put in place through the Coastal Pelagic been included in other critical habitat Witteveen et al. 2015). Threshold levels Species Fishery Management Plan and designations for whales, such as the of prey required to support feeding have noted that NMFS data indicate the CAM Main Hawaiian Islands insular false been investigated for humpback whales, DPS has increased in abundance in the killer whale. Several other commenters, but the best available scientific data do presence of an active CPS fishery. however, agreed with our determination

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not to include a sound-related essential impeding access to prey or preventing Southern Residents are assessed through feature. One commenter referred to or impeding successful feeding within a prey essential feature similar to ongoing research being conducted by designated critical habitat, then such humpback whales, as well as a passage NOAA, in collaboration with several effects would likely constitute an essential feature. partners, to monitor ‘‘soundscapes’’ adverse effect on the prey essential We must base our designations of within national marine sanctuaries, and feature as well as the designated area of critical habitat on the best available noted this work could be considered in critical habitat itself and for that reason science for a particular species. What is any future revisions to critical habitat should likely also be addressed under considered ‘‘essential to conservation’’ for humpback whales. The Marine section 7 of the ESA (pursuant to the and thus qualifies as an essential feature Mammal Commission stated that they standard for considering whether an necessarily depends on the particular supported the proposed determination action poses destruction or adverse species’ biology and the available based on available information, but modification to critical habitat). Thus, science regarding that species’ habitat stated that we should review and the critical habitat as defined in this needs. Thus, habitat features that are reconsider this conclusion periodically rule will provide a measure of considered essential to conservation of as better scientific data become protection from noise degradation to the one species may not necessarily be available concerning the acoustic extent that an action might cause such essential to a different species. Few ecology of humpback whales. noise that would interfere with the studies have examined the effects of Response: As discussed in the whales’ ability to use and successfully noise, especially ship noise, on habitat Biological Report (NMFS 2020a) and feed within the critical habitat. use and feeding behavior of baleen proposed critical habitat rule, the CHRT Furthermore, and of potentially greater whales. At this time, given the current thoroughly considered the best available conservation benefit, the critical habitat limited scientific understanding and scientific information on humpback designations as finalized in this rule because humpback whales occupy a whales’ use of sound and impacts of will result in the added requirement wide range of soundscapes, use highly anthropogenic noise on humpback that Federal agencies explicitly analyze diverse and spatially broad areas, and whales and concluded that the best any relevant impacts of noise on demonstrate mixed responses to noise, available scientific data do not support humpback whale prey species (which we do not find that identification of a identifying a sound-related essential previously could only be analyzed as an sound-related habitat feature as an habitat feature. After considering the indirect effect on the listed whales). ‘‘essential’’ habitat feature is appropriate comments and information received, we in this case. continue to find that identification of a It is correct that a qualitatively We disagree with the commenter that sound-related habitat feature as an defined sound feature has been the ESA requires that we apply a ‘‘essential feature’’ for humpback included in two previous critical habitat ‘‘precautionary principle’’ at the stage of whales, whether such feature would be designations for whale species, Main determining critical habitat such that we specifically and quantitatively described Hawaiian Islands insular false killer must resolve scientific uncertainty in or only generally and qualitatively whales (83 FR 35062, July 24, 2018) and favor of conserving listed species. described, is not supported by the best Cook Inlet beluga whales (76 FR 20180, Although it is appropriate to give the available science. We will, however, April 11, 2011). However, those species species the ‘‘benefit of the doubt’’ of consider results of ongoing and future differ in material ways from the significant uncertainty in the context of studies and will review and reconsider humpback whale. Both of those species a section 7 consultation, that concept this conclusion as our scientific are toothed whale species (not baleen) does not generally apply to understanding of the acoustic ecology of and rely on sound to navigate and locate determinations under section 4 of the humpback whales advances. prey and have limited ranges or areas of ESA. Trout Unlimited v. Lohn, 645 F. Although anthropogenic noise was occupancy. The occupied range of Supp. 2d 929, 946 (D. Or. 2007). There rated as posing a low level threat to the insular false killer whales is restricted to is no basis in the statute to require that humpback whales at the time of listing the waters surrounding the main we identify a noise or sound-related (Bettridge et al. 2015), we acknowledge Hawaiian Islands, and like other essential feature where it is not that noise can have impacts on the odontocetes, they rely on their ability to supported by our review of the best whales and that these impacts are likely send and receive sounds to navigate, available information for these to increase in the future due to increases communicate, and detect predators and particular species and their habitat. in commercial shipping and other prey within their environment. The Rather, section 4 of the ESA requires human activities within marine listed beluga whales have a restricted that we designate critical habitat on the environments. Most of the available range in the highly turbid waters of basis of the best scientific data available, studies regarding noise impacts on Cook Inlet and rely on sound rather than and we do not agree that ‘‘essential humpback and other baleen whales sight for many important functions. In features’’ must be identified to provide evidence of direct responses by contrast, no qualitative sound-related correspond to every possible threat to the whales, such as changes in acoustic feature has been identified for the more the listed species. In addition, as communications or changes in signaling migratory Southern Resident killer discussed previously, we will continue strategies. Effects of anthropogenic noise whales (71 FR 69054, November 29, to address the effects of noise on that result in ‘‘take’’ or harm to 2006) or for any baleen whales (i.e., humpback whales and their habitat individual whales can be addressed North Atlantic right whales (81 FR 4838, under section 7 of the ESA (pursuant to under section 7 of the ESA (pursuant to January 27, 2016) and North Pacific the requirement that a proposed action the standard for considering whether a right whales (68 FR 19000, April 8, must not be likely to jeopardize the proposed Federal action would 2008)). Additionally, for Southern continued existence of a listed species) jeopardize the continued existence of Resident killer whales, in part due to and under the MMPA. the species) for listed humpback whales their more migratory behavior and Comment 58: A group of commenters and under the MMPA for all humpback broader range (unlike insular false killer stated that pollution in different forms whales. If data indicate that whales and Cook Inlet beluga whales), threatens all three humpback whale anthropogenic noise from a particular effects of sound on navigation, DPSs. The commenters identified toxic Federal action is preventing or communication, and foraging of pollution and forms of marine debris,

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including derelict fishing gear, plastic, California (Elfes et al. 2010). However, passage’’ feature has been included in and any solid material from man-made the levels observed are not expected to previous critical habitat designations for origin, as types of pollution that can have a significant effect on population other listed cetaceans. Rather, we degrade humpback whale habitat. The growth (Elfes et al. 2010), and this was carefully considered the available data commenters requested that, similar to not identified as a significant threat at regarding a potential passage feature or the Main Hawaiian Islands insular false the time of listing (Bettridge et al. 2015). migratory corridor for the three DPSs of killer whale critical habitat, we include We note that in contrast, humpback whales and concluded that an essential feature like ‘‘waters free of bioaccumulation of contaminants was identification of such a feature was not pollution of a type and amount harmful identified as a particular concern for supported in this case on the basis of to humpback whales’’ and that would certain listed Odontocetes (toothed the best available scientific data. The also interfere with whales’ use and whales; e.g., Southern resident killer limited, available data do not allow us occupancy of the habitat. Another group whales, Main Hawaiian Islands insular to spatially identify any consistently of commenters requested that we false killer whales), which consume used or specific migratory corridors or include a water quality or water free of higher-trophic level fishes and may define any physical, essential migratory toxins as an essential feature. bioaccumulate significant contaminant or passage conditions for whales Response: We acknowledge the loads that can impair the whales’ health transiting between or within habitats concerns raised by the commenters and and reproduction. In contrast to used by the humpback whale DPSs. the fact that various forms of marine humpback whales, these other cetacean Unlike previous critical habitat pollution may pose threats to the listed species also have restricted ranges that designations for listed cetaceans that humpback whales. However, as noted include nearshore areas adjacent to include a type of passage or space previously, the ESA does not require urban centers where contaminant feature (i.e., Southern resident killer that we identify all potential threats or exposure is increased. Given the whales (71 FR 69054, November 29, issues that may be addressed through elevated concerns regarding 2006), Main Hawaiian Islands insular section 7 consultations as ‘‘essential contaminants for those species, we did false killer whales (83 FR 35062, July features’’ of critical habitat. Rather, the identify a separate water quality feature 24, 2018), and Cook Inlet beluga whales definition and process established of the critical habitats. (76 FR 20180, April 11, 2011)), under the ESA require that we Comment 59: Several groups of humpback whales do not occupy a affirmatively identify the physical or commenters stated that the critical geographically constricted area or have biological features of the habitat that habitat should also provide for safe a restricted range in which blockage of occur in specific areas and that are passage and an ocean freer from passage from in-water structures or essential to support the life-history potential entanglement, which has been vessels has been identified as a needs of a particular species based on on the rise in recent years. The significant management concern. Our the best available scientific information commenters specifically pointed to conclusion in this case is more for that species. We also note that the entanglement in trap lines or other gear appropriately compared to our previous concerns raised by the commenters can as well as ship strikes as limiting the critical habitat designations for other continue to be addressed, as whales’ ability to have safe passage large, migratory species, such as Pacific appropriate, through existing between feeding and breeding grounds. leatherback sea turtles (77 FR 4170, protections afforded through the listing Another group of commenters stated we January 26, 2012) and North Atlantic of the three DPSs of humpback whales overlooked the precedent of the right whales (81 FR 4837, January 27, under the ESA. Southern Resident killer whale 2016), which do not include migratory Specifically, entanglement of whales proposed critical habitat revision, which corridors or passage-related features. in marine debris, which is a direct identifies passage conditions to allow impact on the whales and constitutes for migration, resting, and foraging as an Entanglements and ship strikes are ‘‘take,’’ is already prohibited under essential feature in waters off the U.S. direct effects on humpback whales, and section 9 of the ESA for endangered West Coast. These commenters stated they will continue to be managed to the whales and by the rule issued under that the final critical habitat rule for extent possible under the ESA and section 4(d) (50 CFR 223.213) for humpback whales must include MMPA. Take of humpback whales in threatened whales. Such impacts can migratory corridors and passage free of particular by either of these threats is already be addressed through section 7 entanglement as a physical or biological prohibited under section 9 of the ESA consultations on the listed whales feature or provide adequate justification (as to the endangered DPSs) and the rule (when relevant). In addition, when if not including it in the final rule. The at 50 CFR 223.213 issued under section pollution in the form of plastics is Marine Mammal Commission, as well as 4(d) (as to threatened DPSs), and when associated with a Federal action and is several other commenters, stated they relevant to particular Federal actions, degrading the quality of the prey feature supported our proposed determination they are considered in section 7 or harming the whales, we will address to not include a passage or migration- consultations on the listed whales these impacts through section 7 related feature in the critical habitat (under the jeopardy standard). In consultations. designations. addition, in cases where a Federal With respect to water contaminants Response: We agree with the action has the potential to obstruct the and toxins, which we acknowledged is commenters that both ship strikes and whales’ movement and thereby prevent a management concern for the identified entanglement are significant threats to or impede the whales’ ability to access prey essential feature (84 FR 54354, humpback whales. However, as prey, we would consider that as October 9, 2019), we will address this discussed in our responses to Comments constituting a negative impact on the threat through consideration of prey 57 and 58, the ESA does not require us area of designated habitat itself in ‘‘quality’’ during consultations on the to identify an essential physical or addition to the defined prey feature, critical habitat. Humpback whales can biological feature of critical habitat to which expressly incorporates bioaccumulate organic contaminants, correspond to all management concerns consideration of ‘‘accessibility.’’ In other and elevated levels of certain or threats to the listed species. We did words, the whales’ ability to move freely contaminants have been observed in not overlook these management to access their prey while on the feeding humpback whales feeding off southern concerns or the fact that a ‘‘safe grounds is inherent in the prey essential

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feature. Given this and our and this policy, we reached out to forth in section 6(c) of the ESA, then the consideration of the best available data, ADF&G during July and August of 2018 State and NMFS may enter into a we disagree that the critical habitat to inquire whether the State could cooperative agreement (a ‘‘Section 6 designations for the humpback whale provide relevant scientific data on Agreement’’). Under Alaska’s Section 6 DPSs must include a physical or humpback whales and appropriate Agreement with NMFS, both parties biological feature describing migratory contacts who could assist us. have agreed to ‘‘cooperate for the corridors or passage conditions as a Throughout September and October common purpose of planning, feature essential to the conservation of 2018, our consulting economists at IEc developing, and conducting programs to the species. Rather, we find that also reached out to the State to request protect, manage, and enhance designations built around the prey appropriate contacts and to discuss the populations of all resident endangered feature we have identified for each DPS potential economic impacts to the State. and threatened species’’ covered by the is a more appropriate fulfillment of our Although the State was not able to agreement. Through this agreement, statutory duty to identify areas that provide scientific data on humpback NMFS is also authorized to assist in, contain the essential physical or whales or their habitat use in Alaska, and provide Federal funding for, biological feature to support the they provided contact information for implementation of the State’s conservation of each DPS and will result other researchers within Alaska who conservation program. Since Alaska in robust designations of habitat that could potentially assist us. ADF&G also entered into a Section 6 Agreement with will support the recovery of these provided information regarding types of NMFS on December 3, 2009, the State humpback whales. economic impacts to the State, and this has received funding from NMFS to information was considered in the Coordination and Input on the Proposed support work on Steller sea lions, ringed development of the DEA (IEc 2019). Rule seals, bearded seals, and Cook Inlet Additional information regarding beluga whales. The designation of Comment 60: Multiple commenters aquatic farming and hatcheries in critical habitat is not considered a expressed concerns that NMFS had not Alaska was also provided by ADF&G in ‘‘program’’ under section 6 of the ESA sought sufficient input from June 2019. However, given that the or the Section 6 Agreement and is communities or local experts in Alaska proposed rule had already been instead a rulemaking under section 4 of or from ADF&G. ADF&G expressed completed and was undergoing internal the ESA, the authority for which is concerns about the limited degree of review and clearance by NMFS, and the specifically delegated to the Secretaries communication, coordination, and need to publish the rule by a court- of Commerce and Interior. Neither cooperation with the State by NMFS ordered deadline, we were unable to section 6 nor any other section of the during the rulemaking process. ADF&G incorporate this information into the ESA provides any basis to share as well as other several other draft economic report. As discussed in decision-making authority with a state commenters asserted that NMFS had the FEA (IEc 2020), additional entity. violated section 6 of the ESA and the information provided by the State has Section 4(b)(2) requires that critical Revised Policy on Interagency now been incorporated into the final habitat be designated on the basis of the Cooperation by failing to ‘‘cooperate to analysis. the maximum extent practicable’’ with We did not contact ADEC directly in best scientific data available. As is our the State of Alaska in the development the course of gathering information to consistent practice, the best available of the proposed rule and by denying inform our economic impact analysis. data in support of the critical habitat ADF&G’s request to conduct an inter- Based on communications with ADF&G, designations for humpback whales was agency partner review of the Draft it was our understanding that comments summarized in a draft supporting Biological Report, which they indicated from all state agencies would be report—the Draft Biological Report would be similar to reviews they coordinated and provided through (NMFS 2019a). Because the Draft regularly conduct for the USFWS. ADEC ADF&G. In response to this concern and Biological Report was developed expressed concerns about the lack of to ensure relevant data and information specifically to inform a rulemaking, it outreach to ADEC regarding potential from ADEC were considered in the final was categorized as ‘‘influential scientific economic impacts despite outreach to economic impact analysis, we had information’’ (ISI) under the Information agencies with similar roles in other subsequent discussions directly with Quality Act (IQA) (Pub. L. 106–554, states. representatives from ADEC (see FEA, Section 515) and subject to the peer Response: We recognize that State IEc 2020). review requirements outlined in OMB’s agencies often possess relevant We understand the concerns Final Information Quality Bulletin for scientific data and valuable expertise on expressed by ADF&G regarding Peer Review (‘‘Bulletin,’’ December 16, endangered and threatened species and communication and coordination with 2004). Therefore, in accordance with the their habitats, and we often coordinate respect to the humpback whale critical IQA, the Bulletin, and NOAA and consult with our state partners habitat designation and have Information Quality Guidelines when compiling and reviewing endeavored to improve communications (www.noaa.gov/organization/ scientific data to inform a critical with ADF&G as we have moved forward information-technology/information- habitat rule, particularly when the state on other ESA actions. However, there is quality), the Draft Biological Report was has an active program for the relevant no basis for the assertion that we have subjected to peer review in accordance listed species. The Revised Interagency violated section 6 of the ESA or the with our peer review plan. We invited Cooperative Policy Regarding the Role terms of the Section 6 Agreement with ADF&G to nominate an appropriate of State Agencies in Endangered Species the State of Alaska. Section 6 of the ESA biologist to peer review this report. In Act Activities Policy discusses such acknowledges the important role of addition to the State’s biologist, the coordination in terms of developing the States in furthering the purpose of the report was also independently peer- scientific foundation upon which we ESA and specifically addresses State reviewed by four other scientists with base our determinations for proposed programs that have been established for relevant expertise and experience with and final critical habitat designations the conservation of endangered and humpback whales. Prior to publication (81 FR 8663, 8664, February 22, 2016). threatened species (16 U.S.C. 1535). If of the proposed rule, we reviewed the Consistent with our standard practice the State’s program meets the criteria set peer reviewer comments and made

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certain revisions to the Draft Biological with and include the Council in listed ‘‘Hawaii DPS’’ of humpback Report as appropriate in response. The discussions prior to publication of a whales when identifying critical habitat peer review plan, charge statement to proposed rule to designate critical for the listed DPSs. The commenters reviewers, and peer review report were habitat for ESA listed species (e.g., asserted that, as a result, we proposed also made publicly available (see: bearded seals, ringed seals), and they to designate areas that are minimally www.noaa.gov/organization/ requested that the NOAA Fisheries occupied by and not essential to each of information-technology/peer-review- Policy 01–117 be revised to include the listed DPSs, in particular Southeast plans). It would not be consistent with ‘‘section 4 consultations.’’ Alaska and the Gulf of Alaska, where the guidance on the application of the Response: The NMFS Alaska Region they assert the SPLASH data are almost IQA, and is not our practice, to invite works closely with the North Pacific entirely relevant to the ‘‘Hawaii DPS.’’ peer reviewers to provide advice on Fishery Management Council. When One commenter stated that this flaw has policy or the application of the ESA section 7 consultation is required resulted in a particularly erroneous standards and requirements of the ESA. for fishery management actions, NMFS designation of critical habitat for the See NMFS Policy Directive PD 04–108– will keep the Council informed Mexico DPS, which includes substantial 4, ‘‘OMB Peer Review Bulletin regarding the consultation and provide areas in which animals from the Mexico Guidance,’’ App. A, section II.1 (June opportunities for Council input in DPS have never been observed (and 2012). Per the Peer Review Bulletin, accordance with NMFS Policy 01–117, should therefore be deemed unoccupied with the exception of the National Integration of Endangered Species Act by that DPS) or minimally occupied but Academy of Sciences or other Section 7 with Magnuson-Stevens Act lacking features essential to this DPS. alternative procedures approved by Processes. Response: We acknowledge that many OMB, we also do not invite agency-wide Section 4(b)(2) of the ESA authorizes of the humpback whales observed on reviews by external agencies prior to the Secretary of Commerce to designate the feeding grounds, particularly within dissemination by NMFS of ISI products. critical habitat on the basis of the best Alaska, are from the non-listed Hawaii In developing the proposed rule, we available scientific data after taking into breeding population (e.g., Barlow et al. gathered and reviewed the best available consideration the economic, national 2011). With an estimated abundance of scientific literature and reports, and we security, and other relevant impacts of over 11,000 whales (Wade et al. 2017), engaged the expertise of a team of the designation. The ESA, implementing those non-listed whales are far more scientists and managers from across regulations in 50 CFR part 424, and abundant than whales of the ESA-listed NOAA as members of the CHRT. During existing agency policy do not establish DPSs. However, in determining which the course of compiling data and a consultation process or role for other specific areas are occupied by whales of information, we consulted with entities (with the exception of federally the listed DPSs, the CHRT relied on the numerous scientists from Federal, recognized tribes) in the development of best available scientific data regarding academic, and non-academic regulations under section 4 of the ESA. the distribution of the particular DPS, organizations in Alaska and elsewhere While we do coordinate with other taking into account the relative (e.g., National Marine Mammal organizations when gathering the best strengths and limitations of each of the Laboratory, Glacier Bay National Park available scientific data relevant to a different sources of data available. In and Preserve, University of Alaska particular rulemaking under section 4 assessing the relative conservation value Southeast, University of Alaska and solicit input from other of each specific area, the CHRT also Fairbanks, Oregon State University, organizations and partners on proposed relied heavily on data that is specifically Moss Landing Marine Laboratories, LGL rules during public comment periods, applicable to the particular DPS. During Alaska Research Associates, Cascadia we do not consult on the development both the initial and second assessment, Research Collective) who have expertise of the proposed rule itself, as this role when considering and applying data in humpback whale biology, ecology, is reserved for the Secretary of that apply to humpback whales behavior, acoustics, or genetics. We also Commerce and his designees. NOAA generally (e.g., the BIAs, unmatched reached out to local communities and Fisheries Policy 01–117 applies to ESA sightings), the CHRT did so in light of Alaska native organizations before and section 7 consultations that are the available data regarding the throughout the public comment period. conducted on fishery management distribution of the particular DPS. We extended the public comment activities governed by fishery During their second assessment, in period from the typical 60 days to 115 management plans developed by the response to comments and as discussed days, and held six public hearings— Councils pursuant to the Magnuson- previously, the CHRT placed greater three of which were in Alaska. Through Stevens Act; therefore, this policy is emphasis on data that are specific to the these efforts, we are confident that we directly relevant to Council actions and particular DPS (versus humpback have been able to compile the best authorities but does not apply to NMFS’ whales generally). We acknowledge that available scientific data and provide for decisions to implement section 4 of the available data regarding which feeding a rigorous public comment process. ESA. Although we regret that the areas are used by each listed DPS are Comment 61: The North Pacific Council feels there was a lack of limited, and for areas in Alaska in Fishery Management Council requested coordination prior to the publication of particular, are largely limited to the that we specify that any additional the proposed critical habitat rule for SPLASH study, which was conducted in section 7 consultations following humpback whales, we do not find it 2004–2006. However, we are required to designation of critical habitat be appropriate or necessary to revise Policy designate critical habitat based on the conducted in accordance with NOAA 01–117 to establish a consultation best scientific data available even if Fisheries Policy 01–117, which suggests process regarding ESA section 4 those data are not perfect or contain collaboration with the fishery rulemaking. some uncertainty (as discussed management councils. The Council, as previously in in section, Critical Habitat well as several other commenters, Sufficiency and Application of the Definition and Process). expressed concern about the lack of Available Data Comment 63: Several commenters engagement with the Council prior to Comment 62: Several commenters stated that our rule was confusing publication of the proposed rule. They stated that we inappropriately used data because it applied different data than requested that in the future we consult that are mainly applicable to the non- what NMFS has been using in its ESA

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section 7 consultations with respect to and was included in the separate list of misleading and constitutes an improper the distribution of listed humpback references that was also made publicly use of data. whales in U.S. waters. These available on www.regulations.gov and as Response: This comment refers to commenters requested that we make part of the 2019 Draft Biological Report. results presented in a report to the IWC consistent use of the best available data. Thus, the public was given express by Wade (2017). The report presents an ADF&G stated that NMFS had failed to notice of our consideration of these analysis of data collected during the explain or provide clear information data. To the extent the commenter SPLASH study and provides estimated that its view of the distribution of ESA- intends to suggest that we are required probabilities of movements of whales listed DPSs had changed dramatically to notify the public prior to publication from breeding areas into feeding areas, from the analysis used in the 2016 of a proposed rule that a more recent or and vice versa. The analysis groups the status review and listing revision. They a revised scientific paper or report has SPLASH data (matches of photo- stated that this appears to be a failure to become available, we disagree. We are identified humpback whales) by the adequately inform those who may wish aware of no such requirement under the four breeding (or wintering) areas (i.e., to comment on the proposed rule as to ESA, the APA, or other law. Scientific Asia, Hawaii, Mexico, and Central what NMFS considers the best available understanding is continually evolving America), and by six feeding (or scientific information and raises as new information becomes available, summer) areas (Kamchatka, Aleutian questions about compliance with the and the ESA requires that each agency Islands/Bering Sea, Gulf of Alaska, Administrative Procedure Act (APA) decision be based on the best Southeast Alaska/Northern British and the ESA. ADF&G also stated that, information available at that time and Columbia, Southern British Columbia/ since neither the 2016 report used to for that particular purpose. Washington, Oregon/California). The inform section 7 consultations nor the The 2017 IWC report was not CHRT was aware that these estimated subsequent 2017 analysis by Wade available at the time the humpback movement probabilities apply to the (2017) is cited in the draft economic whale status review was completed in particular geographic units used in the report prepared for the proposed rule, it 2015 (Bettridge et al. 2015) or when the analysis (e.g., Southeast Alaska/ is unclear which analysis serves as the humpback whale listing was revised in Northern British Columbia). In other basis for the economic report. 2016 (81 FR 62260, September 8, 2016). words, the CHRT was aware that the Response: Section 4(b)(2) of the ESA The report was also not available at the 0.020 movement probability estimate requires that critical habitat time the NMFS Alaska Regional Office provided in Wade (2017) represents the designations be based on the best and the West Coast Regional Office probability of a whale from the Mexico scientific data available. The results developed section 7 guidance in 2016 region moving into the Southeast presented in Wade (2017), a report regarding the distributions of listed Alaska/Northern British Columbia submitted to the IWC Scientific humpback whale DPSs. Since release of region. The CHRT discussed both the Committee, presents a corrected the 2017 report, NMFS has been aware SPLASH survey areas as well as the analysis of the SPLASH study data and that further work was planned that geographic regions applied in the provides abundance estimates for could result in a further update of this analysis presented in Wade (2017). As humpback whales in the sampled areas analysis. As a result, both NMFS mentioned previously (see response to and estimated movement probabilities Regional Offices decided to await those Comment 30), to help clarify that these between seasonal habitats. As stated in results before updating their related probabilities extend over certain that 2017 report, the results presented section 7 guidance documents. regions, the CHRT reformatted the are an update and revision to a previous However, the additional analysis, which relevant data tables presented in the version of this analysis that was was to be completed through an IWC updated Biological Report (see presented in an earlier report to the IWC working group, has since been delayed. Appendix C, NMFS 2020a). In addition, (i.e., Wade et al. 2016). Because the ESA Because of the change in timing of this we note that Unit 10 (Southeast Alaska) requires us to rely on the best available effort, the regional offices are likely to is excluded from the final designation scientific data, we considered the Wade move ahead with updating their for the MX DPS under section 4(b)(2) of (2017) results when evaluating areas consultation guidance to reflect the the ESA based on consideration of and making our critical habitat analytical results provided in Wade economic impacts. determinations. Because those results (2017). In any event, that is a separate Comment 65: Several commenters are updated and revised as compared to issue that is beyond the scope of these stated that the available data are too old the earlier Wade et al. (2016) data, we designations which are based on the and requested that additional research find that they are part of the best best scientific information available to be completed before we finalize the available scientific data. Therefore, us now. critical habitat designations. One relying on the results presented in Wade Comment 64: A few commenters commenter requested that NMFS not (2017) to inform certain aspects of our stated that the SPLASH study referred to complete the final rule until migration analysis fulfills the requirements in the in the supporting documents indicates tracks and whale presence of the three ESA. that less than two percent of the DPS units in Southwest Alaska are The results presented in Wade (2017) Mexican DPS uses the proposed critical gathered using satellite and other are significant data that informed the habitat in Southeast Alaska (Unit 10). sophisticated tracking methods. Another biologically based aspects of our critical One commenter stated that the data stated that more research is needed to habitat determinations. They were not used to designate this area actually better understand the health, feeding relevant to, and therefore not used to applies to a larger area that extends habitats, and migration paths of the evaluate, the economic impacts of beyond Unit 10 and includes data from humpbacks that spend their summers in designating critical habitat; thus, neither Northern Vancouver Island to Yakutat, Alaska before NMFS issues a critical the 2016 nor the 2017 report were cited Alaska. The commenters stated that habitat designation. One commenter in the Draft Economic Analysis (IEc Unit 10 represents only 60 percent of stated that long-term monitoring data 2019a). The Wade (2017) report was the area over which the data were are essential in understanding and discussed and cited in the proposed rule collected, and yet the entire numerical identifying appropriate critical habitat, (84 FR 54354, October 9, 2019) and the data set has been attributed to Unit 10. and another commenter stated more Draft Biological Report (NMFS 2019a), The commenters stated this is data are needed before we designate

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critical habitat because a regime change find that there is ‘‘substantial estimates according to NMFS’s own is taking place in the North Pacific disagreement regarding the sufficiency estimates. Most of these commenters Ocean and is affecting prey or accuracy of the available data referred to Southeast Alaska in distributions. relevant to the determination,’’ we may particular, and pointed to the return of Response: The ESA generally requires extend the statutory one-year period to the whales as well as other marine that we designate critical habitat for develop and publish the final rule (that mammals, and the removal of the species at the time they are listed on the runs from publication of a proposed Southeast Alaskan population of basis of the best scientific data available. rule) for 6 months to solicit additional humpback whales from the ESA as Section 4(b)(6)(C)(ii) allowed us to data (see 16 U.S.C. 1533(b)(6)(B)(i), evidence that existing regulations and extend the statutory deadline for referencing proposed rules described in protections are working well in the publishing a final critical habitat 1533(b)(6)(A)(i) only, whereas initial absence of critical habitat and that this regulation by one year because critical designations of critical habitat are rule is not necessary. Another habitat was found to be not described in (b)(6)(A)(ii)). Because we commenter stated that while most of the determinable at the time of listing of the are not revising critical habitat in this observed whales seen in Southeast three DPSs. A lawsuit was filed in instance, this particular provision of the Alaska waters are part of the non-listed Federal court because we did not meet ESA does not apply. There is also no Hawaiian sub-populations, numbers and that statutory deadline, and our other provision in the ESA that would calving rates of humpback whales in designation is now governed by court allow us to further delay this final rule. this group have been in a drastic decline order (as discussed previously, see Comment 67: A commenter stated that in recent years, possibly as the result of Background). We are not authorized to the critical habitat designation was climate driven disruptions of food further delay the statutory requirement primarily being compelled by crab pot available in Alaska waters, particularly to designate critical habitat so that gear entanglement and ship strikes and in the years following the strong El Nino additional research may be completed. expressed concern regarding the event in 2016. The commenter noted Moreover, as explained previously (in inability to attribute the original source that many whales observed in the 2016– section, Critical Habitat Definition and of gear entanglements of the whales. 2018 seasons were in poor body Process), the ESA expressly requires The commenter pointed out that, in the condition. The commenter stated that that we base our critical habitat Southwest Region of Alaska, the pot the proposed critical habitat determination on the best scientific data gear fisheries is prosecuted in the late designations protect Alaska waters for available, not the best scientific data fall and winter months, when the those populations that are already listed possible. We must proceed with a whales are not in Alaska. as endangered and threatened, and that designation where the best available Response: The ESA requires we recent fluctuations already documented scientific data provides a sufficient basis designate critical habitat for species at in the more abundant Hawaii stock will to determine that the ESA’s standards the time of listing. We determine which affect the listed whales to the same are met for the specific areas proposed. specific areas qualify as critical habitat extent, if they are using the same The standard requires ‘‘not only that by applying the best available scientific resources. data be attainable, but that researchers data. The ESA defines occupied critical Response: The abundance of in fact have conducted the tests;’’ we are habitat as the specific areas within the humpback whales in the North Pacific not required to conduct new research or geographical area occupied by the has increased over the past several studies. Am. Wildlands v. Kempthorne, species at the time it is listed, on which decades, largely as a result of 530 F.3d 991, 999 (D.C. Cir. 2008). See are found those physical or biological prohibitions on commercial whaling but also San Luis & Delta-Mendota Water features that are essential to the also as a result of conservation efforts Auth. v. Locke, 776 F.3d 971, 995 (9th conservation of the species and which and protection of the whales under the Cir. 2014); Southwest Ctr. for Biological may require special management ESA and MMPA. In part, the increased Diversity v. Babbitt, 215 F.3d 58, 60 considerations or protection. While we abundance of whales in the ‘‘Hawaii (D.C. Cir. 2000); Oceana, Inc. v. Ross, acknowledge that entanglement and DPS’’ led to the removal of ESA 321 F. Supp. 3d 128, 142 (D.D.C. 2018). ship strikes are ongoing threats to protections for this population of Thus, although we agree that additional humpback whales, identifying threats to humpback whales in 2016 and research and long-term monitoring the species is not an appropriate replacement of the former, global listing would be beneficial, in that it would approach to identifying areas that meet with the current DPS listings (81 FR continue to contribute to scientific the statutory standards for designation 62260, September 8, 2016). The understanding of these whales, there is as critical habitat. We have followed the recovery of the Hawaii population is neither a need nor the authority under correct procedure under the ESA and particularly apparent in areas of Alaska, the ESA to delay the designation our regulations, by identifying areas especially Southeast Alaska, where the process to await further data. within the geographical area occupied majority of humpback whales are from by the species that contain the essential the Hawaii population (Barlow et al. General Comments feature, which we have determined may 2011, Wade 2017). We also agree that Comment 66: ADF&G requested a 6- require special management this non-listed Hawaii population has month extension for completion of the considerations or protection. experienced significant declines in final critical habitat rule to allow time Comment 68: Numerous commenters recent years and that a possible for NMFS to redo the analyses to rectify stated that humpback whales do not contributor to this decline was the poor what they perceived to be informational need critical habitat in Alaska because ocean conditions and resulting and analytical flaws. They state that the whales are already flourishing in reduction in prey resources for these multiple flaws constitute Alaska. Many of these commenters humpback whales during the marine ‘‘substantial disagreement regarding the provided personal accounts of having heat wave of 2014–2016 (Cartwright et sufficiency or accuracy of the available witnessed a steady increase in the al. 2019, Neilson and Gabriele 2019). data.’’ number of whales observed over We are required to designate critical Response: The ESA provides that if, decades as commercial fishermen, and habitat to the maximum extent prudent after publishing a proposed rule to some stated that current abundances and determinable at the time a species revise a critical habitat designation, we exceed pre-whaling abundance is listed under the ESA. The fact that

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another DPS of humpback whales was subjected to peer review per Because critical habitat has not found to not warrant listing under the requirements outlined in OMB’s Final previously been designated for ESA (i.e., the ‘‘Hawaii DPS’’), or that Information Quality Bulletin for Peer humpback whales, completed section 7 humpback whale stocks in Alaska may Review (‘‘Bulletin,’’ December 16, 2004) consultations do not include such an be increasing (Muto et al. 2020) does not and NOAA Information Quality analysis. While we acknowledge that affect the requirement under the ESA to Guidelines (www.noaa.gov/ there are strong protections for designate critical habitat for the listed organization/information-technology/ humpback whale prey species through DPSs of humpback whales. Because information-quality). In addition, we the existing PFMC’s Coastal Pelagic whales from the endangered WNP DPS solicited comment on the proposed rule Species (CPS) FMP and the associated and the threatened Mexico DPS use through a 115-day public comment regulations, these existing management areas off the coast of Alaska area as period and at six public hearings. The measures do not remove the feeding habitat, those areas were process applied in this rulemaking thus requirement to consult under section considered for critical habitat complies with or exceeds the 7(a)(2) of the ESA. We cannot designation and several of these areas requirements for review by the public circumvent this responsibility by are included in the critical habitat and scientific peers. making conclusions in this rule designations with this final rule. Comment 70: One commenter stated regarding previously completed section Comment 69: One commenter that ocean commercial fisheries are 7 consultation, nor can we prejudge the expressed concern that more area was already tightly controlled by the Fishery outcome of potential future proposed for exclusion from the Management Councils under the consultations on the CPS or any other proposed critical habitat designation for Magnuson-Stevens Fishery FMP. Therefore, we decline to include the endangered WNP DPS relative to the Conservation and Management Act (16 a statement in this final rule such as the area proposed for exclusion from the U.S.C. 1801 et seq.) and by various one requested by the commenter. designation for the threatened and much states, and that humpback whales are Comment 71: A commenter requested larger MX DPS. The commenter already well protected against adverse that we indicate in the final rule that the suggested that the critical habitat fishery impacts under the various absence of a migratory corridor or determinations be subjected to peer Pacific Fishery Management Council passage feature in the critical habitat review. (PFMC)-adopted Fishery Management precludes the consideration of fishing Response: We acknowledge that a Plans (FMPs) for which NMFS provides activity or the use of fishing gear as an larger area was proposed for exclusion Biological Opinions to the PFMC. The adverse modification of the physical from the critical habitat designation for commenter stated that fishery impacts attributes of the critical habitat. The the WNP DPS relative the area proposed on humpback whales are best controlled commenter recommended that the for exclusion for the MX DPS (44,119 through the PFMC’s existing FMP proposed rule be amended to explicitly nmi2 versus 30,527 nmi2). However, the process by way of NMFS Biological state that fixed-gear fisheries will not be total areas proposed for designation and Opinions that provide specific and considered as actions that destroy or proposed for exclusion for each of these detailed mitigation measures to adversely modify humpback whale DPSs has changed in this final rule in minimize potential impacts on critical habitat. response to public comments as humpback whales from fisheries. The reflected in the revised section 4(b)(2) commenter recommended that the final Response: Lack of a specific passage analysis. Specifically, the final critical habitat rule state clearly that or migratory essential feature in the designation for the WNP DPS covers properly controlled ocean commercial critical habitat designations does not about 59,411 nmi2 of marine habitat fisheries pursued in accordance with preclude consideration of effects of following the decision to exclude about the PFMC’s FMP as approved by the fishing gear within or upon the critical 63,398 nmi2 of marine habitat under most recent NMFS Biological Opinion habitat. Entanglement of humpback section 4(b)(2) of the ESA. The final are not actions that destroy or adversely whales is a significant and ongoing designation for the MX DPS includes modify critical habitat in that they do management concern, and we will about 116,098 nmi2 and excludes a total not directly or indirectly alter critical continue to manage this threat wherever of about 91,811 nmi2 under section habitat such that the value of the critical it has impacts on individual whales, 4(b)(2) of the ESA. habitat for either the survival or the which may rise to a form of ‘‘take’’ of The smaller size of the critical habitat recovery of humpback whales is the individual whales. Moreover, as we designation for the WNP DPS is largely appreciably diminished. discussed in the proposed rule, access a reflection of the distribution of these Response: We agree with the to the prey and the whales’ ability to whales, which primarily use feeding commenter that the appropriate move freely to successfully feed while areas outside of U.S. waters, which mechanism for addressing impacts of on the feeding grounds are inherent in cannot be included in a designation (50 federally managed fisheries on the definition of the prey essential CFR 424.12(g)). Whales from the MX humpback whales is through the FMP feature. Humpback whales feed using a DPS are more broadly distributed within process and the associated section 7 variety of behaviors, which requires a U.S. waters and feed in more regions consultations under the ESA and that high degree of maneuverability. Where within U.S. waters than whales from the existing management measures provide the use of fishing gear or other physical WNP DPS. Therefore, more areas met strong protections for humpback whales alterations of the critical habitat (e.g., the definition of critical habitat for the and their prey. Once the humpback large-scale aquaculture), either MX DPS, and a larger total area is whale critical habitat designations independently or in combination, included in the critical habitat becomes effective, any future section 7 prevent or impede the whales’ ability to designation for this DPS. consultations on relevant FMPs will be undertake their normal feeding The Biological Report, which required to assess the effects of the behaviors and access their prey, that summarizes relevant scientific particular fishery actions on the may constitute a negative impact on the information that informed the humpback whale critical habitat to defined prey feature. Such identification of critical habitat areas ensure that those actions do not determination cannot be made in and the assessment of the relative adversely modify or destroy the advance, however, as each consultation conservation value of these areas, was humpback whale critical habitat. must be based on the best available

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scientific and commercial information designate critical habitat based on the In the North Pacific Ocean, humpback for the particular Federal agency action. best, currently available, scientific data, whales feed in biologically productive Comment 72: The Oregon Department if additional data become available to waters along the coasts of California, of Fish and Wildlife (ODFW) noted how support a revision to these critical Oregon, Washington, and Alaska; the marine environment off the U.S. habitat designations, we can consider British Columbia, Canada; and in waters West Coast has been experiencing using the authority provided under off of Russia (e.g., Kamchatka, unprecedented changes, affecting both section 4(a)(3)(A) of the ESA to revise Commander Islands). Although these humpback whale prey species and the designations. feeding areas are broadly distributed humpback whale behaviors—e.g., the Comment 73: A commenter and range widely in terms of latitude, timing of migration patterns from encouraged us to expand our discussion they are usually over the continental breeding grounds to the feeding in the Biological Report to include more shelf or near the shelf edge at shallow grounds, foraging in rarely or never- relevant studies about ocean (∼10 m) to moderate water depths (∼50– before used locations, and switching acidification, deoxygenation, and both 200 m) and in cooler waters (Zerbini et targeted prey species. ODFW stated that humpback whale and prey movement as al. 2016, Becker et al. 2016 and 2017). as a result, information underlying the a result of climate change. The Often, feeding areas are associated with critical habitat designation is likely commenter cited multiple references oceanographic (e.g., upwelling, fronts), changing even as it is being applied, and regarding changes in the North Pacific bathymetric (e.g., submarine canyons, may continue to change in new and as a result of climate changes and noted banks), and/or biological features (e.g., potentially unexpected ways in the how these changes are likely to affect spawning areas for fish) that serve to decades to come. As a consequence, availability of prey species, type of prey concentrate or aggregate prey (e.g., ODFW urged that during targeted by the whales, and the Tynan et al. 2005, Dalla Rosa et al. 2012, implementation of this critical habitat distribution of the whales. The Thompson et al. 2012, Friday et al. rule, that NMFS allocate resources to commenter stated that we should 2013, Chenoweth et al. 2017, Straley et conduct surveys of humpback whale include climate change and al. 2018, Santora et al. 2018). DPS distributions, conduct spatially- environmental variation as part of the Distributions and abundances of prey explicit stock assessment surveys for special management considerations for species are also influenced by other finfish forage species (e.g., anchovy, humpback prey. physical oceanographic and biological sardine, and herring), and review the Response: We appreciate the mechanisms that can result in critical habitat location and the comments and references provided by significant variations in prey availability assumptions underlying its spatial the commenter. We have considered on seasonal (e.g., spawning periods), location on a frequent basis. this information and have added some inter-annual (e.g., El Nin˜ o), and decadal Response: We agree with the points additional information to the Biological time-scales (e.g., Pacific Decadal and recommendations from ODFW. Report where applicable and relevant to Oscillation cycles; Barber and Chavez Understanding how changing ocean this designation. Both the Draft 1983, McGowan et al. 1998, 2003, conditions are affecting humpback Biological Report and proposed rule Chavez et al. 2003, Fleming et al. 2016, whale prey species and humpback presented climate change as a special Moran and Straley 2018). Given the whales is critical to effectively carrying- management consideration that may complexity and variability in the out our management responsibilities affect the identified essential prey multiple physical and biological drivers under the ESA and the MMPA and to feature. The information provided by of prey species abundance across the the overall goal of recovering the listed the commenter does not alter our occupied ranges of each DPS, and the humpback whales. NMFS is currently previous conclusion that climate change anticipation of continued climate engaged in multiple research efforts, poses a management concern for the including planning a ‘‘SPLASH–2’’ prey essential features identified in this change-induced changes in study, which is a collaborative effort rule. oceanographic processes and food web that will take advantage of automated dynamics within North Pacific marine Humpback Whale Distribution and photo-identification matching ecosystems, we concluded it was not Habitat Use in the North Pacific capabilities to examine photo- possible to pinpoint or reliably describe identification data collected since the Humpback whales breed and calve in which of these other factors are essential original SPLASH study. Goals of tropical and subtropical waters in the to the conservation of the humpback ‘‘SPLASH-2’’ include, for example, winter months, typically during whale DPSs based on the best available estimating current abundances, January–May in the Northern scientific data. estimating growth rates, and examining hemisphere. They exhibit a high degree Although these feeding areas have an any changes in migration patterns since of fidelity to particular breeding areas, almost continuous distribution around SPLASH. NMFS has also been involved a pattern which contributed to how the North Pacific basin, multiple studies in the development of habitat models DPSs were delineated and listed under have indicated fairly high levels of and exploring their use in forecasting the ESA (Bettridge et al. 2015). While on fidelity of humpback whales to the distributions of humpback whales their breeding grounds, humpback particular areas and limited movements and other cetaceans (see Becket et al. whales rarely feed (Baraff et al. 1991, of whales among the broader feeding 2019), and NMFS is participating in the Rasmussen et al. 2012). Around regions (e.g., Waite et al. 1999, comprehensive assessment being springtime, the whales typically migrate Calambokidis et al. 2001, Calambokidis conducted by the IWC to better to temperate, higher latitude regions to et al. 2008, Witteveen et al. 2011, understand the effect of whaling on feed and build up fat and energy Witteveen and Wynne 2016a, Gabriele current and historical humpback whale reserves for the return migration, et al. 2017). Our understanding of how populations in the North Pacific Ocean. lactation, and breeding. Humpback humpback whale populations are We will continue to engage in and/or whales primarily feed on euphausiids spatially structured while in these support these and other efforts to the (krill) and small pelagic fishes (Nemoto feeding areas has been informed by maximum extent possible in light of 1957, 1959; Klumov 1963; Rice 1963; numerous studies, and probably most available annual appropriations. In Krieger and Wing 1984; Baker 1985; notably by the results of the SPLASH addition, although we are required to Kieckhefer 1992; Clapham et al. 1997). study. As noted previously, this study

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was a significant effort undertaken Overall, while the available photo- lunge feed, both towards the surface and across the North Pacific and involved identification data indicate varying at depths, and can execute multiple the collection of both photographic and degrees of mixing of populations across lunges in one dive (Goldbogen et al. genetic data over three breeding seasons the feeding areas, the overall pattern of 2008, Simon et al. 2012). Humpback (2004, 2005, and 2006) and over two structuring of populations among the whales are also capable of employing feeding seasons (2004, 2005) in known feeding areas, as well as the pattern of multiple techniques to herd or aggregate breeding and feeding areas migratory connections between their prey while feeding, including the (Calambokidis et al. 2008). Through this particular feeding areas and breeding use of bubble structures, such as bubble effort, a total of 7,971 unique whales areas, contributed to how the various nets, columns, clouds, and curtains were photo-identified (Calambokidis et DPSs are described in the listing rule (Jurasz and Jurasz 1979, Hain et al. 2008). For most analyses, photo- (81 FR 62260, September 8, 2016). In al.1982). Other techniques include identification data were grouped into particular, the threatened MX DPS, pectoral herding (Kosma et al. 2019), six broad feeding regions: Kamchatka which has previously been estimated to ‘‘blaze feeding’’ (flashing the white side (Russia), Aleutian Islands/Bering Sea, include about 2,806 whales (CV = 0.055, of pectoral flipper at prey; Tomilin 1957 Gulf of Alaska, Southeast Alaska/ Wade 2017), is described as including cited in Brodie 1977, Sharpe 2001), flick Northern British Columbia, Southern whales that feed primarily off feeding (lashing tail at the surface, British Columbia/Northern Washington, California-Oregon, northern Jurasz and Jurasz 1979), vertical rise and and California/Oregon (Calambokidis et Washington-southern British Columbia, subsidence (creates a reduced pressure al. 2008, Barlow et al. 2011, Wade et al. in the Gulf of Alaska and East Bering zone in the water column, Hays et al. 2016). Analysis of the photo- Sea (50 CFR 223.102). The endangered 1985), ‘‘roiling’’ the surface with identification data indicated that both CAM DPS, which has previously been flippers and flukes (Hain et al. 1982), within-season and between-season estimated to include about 783 whales and trap-feeding (McMillan et al. 2019). movements of whales between these six (CV = 0.170, Wade 2017), is described Humpback whales may also work feeding areas were infrequent and any as including whales that feed along the cooperatively in groups to herd and such exchanges were mainly to adjacent West Coast of the United States and capture prey (Jurasz and Jurasz 1979, areas (Calambokidis et al. 2008), which southern British Columbia (50 CFR Baker 1985, D’Vincent et al. 1985). is consistent with previous findings 224.101) and thus individuals from that Foraging behaviors of the whales and from earlier region-wide studies (e.g., DPS co-occur with MX DPS whales use of various feeding strategies may Calambokidis et al. 1996, Calambokidis while in their feeding areas. The vary depending on multiple factors, et al. 2001). endangered WNP DPS, which has been such as the particular target prey estimated as including about 1,066 Genetic analyses of skin samples species, prey density, prey depth, and whales (CV = 0.079, Wade 2017), is collected during the SPLASH study whether other whales are present (e.g., described as including whales that feed provide additional insight into the Simon et al. 2012, Witteveen et al. 2015, primarily in the West Bering Sea and off structuring of humpback whale Szesciorka 2015, Burrows et al. 2016, the Russian coast and the Aleutian populations across the feeding areas Akiyama et al. 2019). Islands (50 CFR 224.101) and thus (Baker et al. 2013). Analysis of individuals from this DPS also co-occur Satellite tagging efforts have provided maternally inherited mitochondrial with MX DPS whales while in their some insights into the fine-scale DNA (mtDNA) from 1,010 unique feeding areas. Our understanding of movements of the whales while on the whales indicated highly significant these patterns may change as new data foraging grounds, indicating the differences in mtDNA haplotype become available, and the patterns duration, area, and variability in the frequencies among the feeding regions themselves may changes if the whales areas over which the whales feed. For overall (overall FST = 0.121, FST = 0.178, shift their distributions in response to instance, in the summers of 2007 to p <0.0001), and pairwise comparisons changing ocean conditions, or as the 2011, Kennedy et al. (2014) deployed were also significant (at p <0.05) for 32 listed DPSs undergo recovery and satellite tags on eight adult humpback of 36 possible comparisons (excluding expand their feeding ranges. whales in Unalaska Bay, Alaska, and the western Aleutians due to low All three of these listed DPSs overlap tracked the whales for an average of 28 sample size, Baker et al. 2013). spatially to varying degrees with the days (range = 8–67 days). Position data Comparisons of bi-parentally inherited ‘‘Hawaii DPS’’ of humpback whales, were then analyzed and categorized into microsatellite DNA indicated very weak which was found to not warrant listing one of three possible behavioral modes: but significant differentiation of under the ESA in 2016 (81 FR 62260, Transiting; area-restricted searching microsatellite allele frequencies among September 8, 2016). The ‘‘Hawaii DPS,’’ (ARS), or unclassified. The slower feeding areas, suggesting male-biased which has an estimated abundance of speeds and higher turning angles during gene flow (overall FST = 0.0034, p about 11,571 whales (Wade 2017), ARS behavior are considered to be <0.001, Baker et al. 2013). The high breeds in waters around the Hawaiian indicative of active foraging (Kennedy et degree of differentiation in mtDNA Islands and has been observed on most al. 2014, citing Kareiva and Odell 1987, among feeding areas reflects the of the known feeding grounds within Mayo and Marx 1990). Results indicated influence of maternal fidelity to feeding the North Pacific (Bettridge et al. 2015). that whales mainly stayed over shelf areas. This result is consistent with While these whales are no longer and slope habitat (1,000 m or shallower) findings of previous but more spatially- protected under the ESA (and critical while in ARS mode, and all but one limited studies (e.g., Baker et al. 1998, habitat is not being designated for whale remained relatively close to Witteveen et al. 2004). This effect likely them), they continue to be managed Unalaska Bay during the tracking stems from the close dependency of under the MMPA. period. One whale, however, left calves on their mothers during their first Unalaska Bay 3 days after being tagged, year of life, during which they travel Diet and Feeding Behaviors traveling along the Bering Sea shelf with their mothers and thereby inherit Humpback whales are filter feeders, towards Russia and covering almost information from their mothers about gulping large volumes of prey and water 3,000 km in 26 days, indicating that the feeding destinations (Baker et al. 1987, during discrete lunges (Goldbogen et al. whales may in fact travel long distances Pierszalowski et al. 2016). 2015). In general, humpback whales will during the feeding season (Kennedy et

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al. 2014). Satellite tags deployed on Central America DPS in, U.S. waters—i.e., California/Oregon whales tagged off central California in The endangered CAM DPS is (n=105 whales), northern Washington/ the summer/fall of 2004–2005 and in described as humpback whales that southern British Columbia (n=27 summer of 2017 and that were tracked breed in waters off Central America in whales), southeast Alaska/northern for a minimum of 30 days, exhibited the North Pacific Ocean and feed along British Columbia (n=35 whales), the feeding behavior (as detected by ARS the West Coast of the United States and Gulf of Alaska (n=97 whales), and the data) over an area that averaged 20,435.6 southern British Columbia (50 CFR Aleutian Islands/Bering Sea (n=27 km2 (n=8, SE = 7322.8) and 17,684.4 224.101(h)). The breeding range of this whales, Barlow et al. 2011). In terms of their distribution across km2 (n=7, SE = 13,927.6 km2), DPS includes waters off the Pacific coast this range, whales using different respectively (Mate et al. 2018). In the of Central America, from Panama north portions of the MX DPS breeding area latter case, this average area extended to Guatemala, and possibly into appear to target different feeding from the Channel Islands in southern southern Mexico (Bettridge et al. 2015, destinations. During SPLASH surveys, California to central Oregon. Similar Calambokidis et al. 2017). Whales from whales that had been photo-identified tagging work off the Oregon coast in this DPS have been observed within along the Pacific coast of mainland September/October in 2017 indicated foraging grounds along the coasts of Mexico were sighted in highest numbers the whales actively fed over areas of California, Oregon, and Washington off the coast of California and Oregon comparable size (average area = 17,215.6 (Barlow et al. 2011). (97 of 164 total matches), suggesting that km2; n=4; SE = 8,430.6), and for the few In terms of distribution across their this is their primary foraging destination whales tagged, the feeding area foraging range, CAM DPS whales are (Calambokidis et al. 2008, Barlow et al. extended from Point Arena, central significantly more common in waters of 2011). Although whales sighted off California, to the southwest corner of southern California and occur in mainland Mexico also travel to the more Vancouver Island, British Columbia progressively decreasing numbers up northern latitude feeding areas, the MX (Mate et al. 2018). The area over which the coast towards Washington and DPS whales sighted around the whales actively feed (as indicated by Southern British Columbia (Steiger et al. Revillagigedo Archipeligo had more ARS data over a minimum of 30-days) 1991; Rasmussen et al. 2001; matches overall to Alaska feeding areas Calambokidis et al. 2000, 2008, 2017). appears to be somewhat smaller in and had higher match rates to the Of the humpback whales identified off Southeast Alaska, where the average northern Gulf of Alaska feeding area in the coast of Central America (n=31) in ARS area for whales tagged in summer particular (44 of 87 matches; a photo-identification study conducted of 1997 and in fall of 2014–2015 was Calambokidis et al. 2008). 2 between 1981 and 1992, 84 percent Multiple studies have reported 4,904.3 km (n=3, SE = 1,728.8) and were re-sighted off California 2 sightings of a small number of whales in 2,862.7 km (n=4, SE = 1,834.2), (Calambokidis et al. 2000). This respectively (Mate et al. 2018). both the Mexico and Hawaii breeding distribution pattern was also confirmed areas (e.g., n=1, Darling and McSweeney Differences in the area over which the by the results of the SPLASH study, 1985; n=5, Calambokidis et al. 2001; whales feed between years likely which indicated that out of 29 between- n=17, Calambokidis et al. 2008). reflects a seasonal shift in target prey season photo-identification matches of Detections of shared song composition and prey distributions (Mate et al. 2018, whales from the Central America among whales from different breeding Straley et al. 2018). breeding areas, 26 occurred within the locations along with presence of whales Geographical Area Occupied by the California/Oregon feeding region and 3 in mid-ocean tropical waters during the Species occurred within the northern breeding season also suggest some form Washington/southern British Columbia of contact between whales from The phrase ‘‘geographical area region (Barlow et al. 2011). Use of the different breeding populations (Darling occupied by the species,’’ which Salish Sea by this DPS may be et al. 2019a and 2019b). Overall, appears in the statutory definition of extremely limited, as suggested by the interchange among breeding areas critical habitat, is defined by regulation single re-sighting reported in appears to be rare, and remains poorly as an area that may generally be Calambokidis et al. (2017), and no understood in terms of its biological delineated around species’ occurrences, observations of these whales have been significance. reported for waters off Alaska or in the as determined by the Secretary (i.e., Western North Pacific DPS range) (50 CFR 424.02). Such areas may Bering Sea. Humpback whales of the endangered include those areas used throughout all Mexico DPS WNP DPS are listed as humpback or part of the species’ life cycle, even if The threatened MX DPS of humpback whales that breed or winter in the area not used on a regular basis (e.g., whales is defined as humpback whales of Okinawa and the Philippines in the migratory corridors, seasonal habitats, that breed or winter in the area of Kuroshio Current (as well as unknown and habitats used periodically, but not mainland Mexico and the Revillagigedo breeding grounds in the Western North solely by vagrant individuals) (Id.). Islands, transit Baja California, or feed Pacific Ocean), transit the Ogasawara Below, we summarize information in the North Pacific Ocean, primarily off area, or feed in the North Pacific Ocean, regarding the geographical area California-Oregon, northern primarily in the West Bering Sea and off occupied by each of the three DPSs of Washington/southern British Columbia, the Russian coast and the Aleutian humpback whales, each of which is a northern and western Gulf of Alaska, Islands (50 CFR 224.101(h)). Whales ‘‘species’’ as defined in the ESA. See 16 and East Bering Sea (50 CFR 223.102(e)). from this DPS have been sighted in U.S.C. 1532(16) (defining ‘‘species’’ to Of the three DPSs addressed in this foraging areas off the coast of Russia, include any distinct population segment proposed rule, the MX DPS has the primarily Kamchatka, the Aleutian of any species of vertebrate fish or broadest distribution within the U.S. Islands, as well as in the Bering Sea and wildlife which interbreeds when portion of their range. Through the Gulf of Alaska, and off northern and mature). Additional details on the range SPLASH study, photo-identified MX southern British Columbia (Darling et of each DPS are provided in the Final DPS whales were matched in all five of al. 1996, Calambokidis et al. 2001, Biological Report (NMFS 2020a). the major feeding areas in, or partially Barlow et al. 2011). Although some

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genetic data suggest WNP DPS whales within the Mariana Archipelago in support designating these areas as may infrequently occur off the coast of winter months (December–April; critical habitat for the WNP DPS. Washington (Palacios et al. 2020), this Fulling et al. 2011, Oleson et al. 2015). Physical and Biological Features DPS is generally not thought to use the Humpback whales have also been Essential to the Conservation of the feeding areas off Washington, Oregon, infrequently sighted near the Mariana Species and California. Islands, mainly off of Saipan (Fulling et Several studies have reported al. 2011; Hill et al. 2016, 2017); and, The statutory definition of occupied sightings of a small number of photo- although no humpback whales were critical habitat refers to ‘‘physical or identified whales in both the Asia (off sighted in this area between 2009–2013 biological features essential to the Japan or the Philippines) and Hawaii (Fulling et al. 2011, Hill et al. 2014, conservation of the species,’’ but the breeding areas (e.g., n=1, Darling and Ligon et al. 2013), a total of 14 mother- ESA does not specifically define or Cerchio 1993; n=3, Salden et al. 1999; calf pairs and 27 non-calf whales were further describe these features. ESA- n=4, Calambokidis et al. 2001; n=2, observed in the southern portion of the implementing regulations, however, Calambokidis et al. 2008); however, the archipelago during February and March define such features as the features that occur in specific areas and that are significance of these movement to either of 2015–2018 (Hill et al. 2020). Photo- essential to support the life-history the WNP DPS or the non-listed identification and genetic data for needs of the species, including but not population of humpback whales that whales sampled off Saipan within the limited to, water characteristics, soil breed around Hawaii has not been Mariana Archipelago in February– type, geological features, sites, prey, established. March 2015–2018, provide evidence In terms of their distribution across vegetation, symbiotic species, or other that some of these whales belong to the the U.S. portion of their range, whales features. A feature may be a single WNP DPS (Hill et al. 2020). Specifically, of the WNP DPS are most likely to be habitat characteristic, or a more found off the Aleutian Islands and in comparisons with existing WNP complex combination of habitat the Bering Sea (Wade et al. 2016, Wade humpback whale photo-identification characteristics. Features may include 2017). Although very limited in number, catalogs showed that 11 of 43 (26 habitat characteristics that support photo-identified whales from the percent) whales within the Mariana ephemeral or dynamic habitat breeding areas of this DPS have also Archipelago humpback whale catalog conditions. Features may also be been sighted in the Kodiak and were previously sighted in WNP expressed in terms relating to principles Shumagin Island regions of Alaska breeding areas (Japan and Philippines) of conservation biology, such as patch (Calambokidis et al. 2001, Witteveen et and/or in a WNP feeding area size, distribution distances, and al. 2004, Calambokidis et al. 2008). (Commander Islands; Hill et al. 2020). connectivity (50 CFR 424.02). During the SPLASH study (2004–2006), Mitochondrial DNA analyses comparing To assess habitat features that may photo-identified individuals from this 24 individual humpback whales qualify as ‘‘essential to the DPS were matched to the Gulf of Alaska sampled within the Mariana conservation’’ of humpback whales, the (n=3), the Aleutian Islands/Bering Sea Archipelago to ones sampled in known CHRT discussed physical and biological (n=7), and the Russia feeding regions breeding areas throughout the Pacific features that are essential to support the (n=25, Calambokidis et al. 2008). The demonstrated significant differentiation life history needs of humpback whales WNP DPS whales had the lowest match from the Philippines, Okinawa, Hawai’i, within the areas they occupy within rates during the SPLASH study, with and Central America (Hill et al. 2020). U.S. waters (see 50 CFR 424.02 (defining less than 10 percent of whales from the No population structure was ‘‘physical or biological features essential sampled Asian breeding locations demonstrated between the Mariana to the conservation of the species’’)). observed in a feeding area Archipelago and Ogasawara or Mexico The CHRT considered and evaluated (Calambokidis et al. 2008). Likely breeding areas (Hill et al. 2020). various features of humpback whale explanations for the low proportion of Comparisons of samples from the habitat, such as prey, migratory matches of whales from the WNP DPS Mariana Archipelago to known foraging corridors or conditions, and sound/ include under-sampling of their feeding areas demonstrated significant soundscape. Significant considerations, destinations (e.g., western Aleutian differentiation from foraging areas in CHRT discussions, and conclusions are Islands, Bering Sea) and the existence of Northern British Columbia, the Bering summarized in the proposed rule (84 FR unknown, unsampled breeding grounds Sea, California/Oregon, Southeast 54354, October 9, 2019) and the Final (Calambokidis et al. 2008, Barlow et al. Alaska, and the Northern Gulf of Alaska; Biological Report. Ultimately, as 2011). no population structure was discussed in the following paragraphs, The regulatory definition of the WNP demonstrated between the Mariana the CHRT identified humpback whale DPS reflects that the breeding range of Archipelago and foraging areas in prey as an essential biological feature of the WNP DPS is not yet fully resolved. Russia, the Aleutian Islands, Western the occupied critical habitat and found At the time of listing, the breeding range Gulf of Alaska, and Southern British that the best available scientific of this DPS was known to include the Columbia/Washington (Hill et al. 2020). information does not currently support waters off Okinawa and the Philippines While the available data suggest that the recognizing additional essential in the area of the Babuyan Islands Mariana Archipelago may serve as features. In our responses to comments, (Barlow et al. 2011, Bettridge et al. 2015, humpback whale breeding habitat, and above, we explained our reasoning in Wade et al. 2016), but additional that at least some of these whales likely greater detail. In response to public breeding areas were suspected due to belong to the endangered WNP DPS, comments requesting that additional the very low percentage of matches for additional data are needed to fully specificity be added to the proposed whales from feeding areas used by this resolve the extent to which WNP DPS prey feature, we reviewed and DPS (Calambokidis et al. 2008). Recent whales are relying on areas around the reconsidered the available literature evidence suggests that an additional Mariana Islands as a breeding/calving regarding humpback whale prey and, as breeding area for the WNP DPS is habitat and the essential features of the discussed in the following section, have located off the Mariana Islands. specific area(s) being used for breeding revised the single, general prey feature Humpback whale song has been and calving. Thus, at this time, the best that was originally proposed so that a detected on passive acoustic recorders available scientific information does not tailored essential feature is presented

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separately for each humpback whale humpback whales in Australia stomachs (12 and 1, respectively, out of DPS to include a non-exhaustive list of (Christiansen et al. 2016), and, of all life 287 total), from whales captured off of key prey species for each DPS. stages, lactating females have the British Columbia, Canada, during 1949- highest energy demands (McMillan 1965; whereas, euphausiids occurred in Prey as an Essential Feature 2014). Thus, it is essential that the 263 (of 287) stomachs, (Ford et al. 2009). Although written for the taxonomic whales have reliable access to quality Ford et al. (2009) also report observing species and thus now outdated, the prey within their feeding areas, and that humpback whales consuming sand 1991 NMFS Recovery Plan for prey are sufficiently abundant to lance (along with euphausiids, herring, humpback whales identified four major support feeding and ultimately, and sardine) during studies conducted recovery objectives, the first of which population growth. off British Columbia in 2002–2007, but was, ‘‘maintain and enhance habitats Humpback whales are generalists, data are not provided to further evaluate used by humpback whales currently or consuming a variety of prey while this statement. (The researchers also historically’’ (NMFS 1991). As part of foraging and also switching between state that their observations and prey that objective, we had identified target prey depending on what is most sampling indicated that euphausiids multiple recommended actions to abundant or, potentially, of highest were the primary prey of the humpback further the species’ recovery, including quality in the system (Witteveen et al. whales (Ford et al. 2009).) Information ‘‘providing adequate nutrition’’ and 2008, Witteveen et al. 2015, Fleming et on juvenile rockfish as prey is similarly ‘‘monitoring levels of prey abundance’’ al. 2016, Moran and Straley 2018). limited. Specifically, Kieckhefer (1992) (NMFS 1991). The Recovery Plan stated Relative abundance and distribution of reported that, on one occasion, surface- that adequate nutrition is needed for the humpback whale prey species are also feeding humpback whales were recovery of the species, and emphasized temporally and spatially dynamic on observed feeding on what was the need to maintain and optimize multiple scales due to the influences of tentatively identified as juvenile levels of, and access to, prey (NMFS various ecological (e.g., spawning rockfish (Sebastes spp.). Overall, the 1991). The Recovery Plan also noted seasonality), physical (e.g., upwelling), available data are not sufficient to that humpback whales require access to environmental (e.g., ocean conditions, indicate these other species are essential prey over a sufficiently widespread climate change), and, potentially, prey for humpback whales, especially feeding range to buffer them from local anthropogenic factors (e.g., commercial within the U.S. portion of the CCE. fluctuations in productivity or fisheries fisheries). Despite these sources of In the waters off Alaska, including in removals (NMFS 1991). These variability, substantial data indicate that the Gulf of Alaska, around the eastern considerations regarding adequate the humpback whales’ diet is Aleutian Islands, and in the eastern nutrition and prey abundance and consistently dominated by euphausiids Bering Sea, humpback whales feed availability are still relevant today for and small pelagic fishes (Nemoto 1957, primarily on euphausiids (Thysanoessa the MX, CAM, and WNP DPSs of Nemoto 1959, Klumov 1963, Rice and Euphausia) and small fishes, humpback whales. Krieger and Wing 1984, Baker 1985, including capelin (Mallotus villosus), Whales from each of these three DPSs Kieckhefer 1992, Clapham et al. 1997, Pacific herring (Clupea pallasii), travel to U.S. coastal waters specifically Witteveen et al. 2011, Neilson et al. juvenile walleye pollock (Gadus to access energy-rich feeding areas, and 2015). chalcogrammus; formerly, Theragra the high degree of loyalty to specific Within CCE, the highly productive chalcogramma), and Pacific sand lance locations indicates the importance of coastal system that extends from British (Ammodytes personatus) (e.g., Nemoto these feeding areas. Because humpback Columbia, Canada to the southern Baja 1959, Klumov 1965, Jurasz and Jurasz whales only rarely feed on breeding California Peninsula, humpback whales 1979, Kawamura 1980, Krieger and grounds and during migrations, feed on euphausiids (specifically Wing 1984, Witteveen et al. 2008, humpback whales must have access to Thysanoessa, Euphausia, Nyctiphanes, Witteveen et al. 2012, Neilson et al. adequate prey resources within their and Nematoscelis), Pacific sardine 2015, Wright et al. 2016, Moran and feeding areas to build up their fat stores (Sardinops sagax), northern anchovy Straley 2018). Evidence indicating that and meet the nutritional and energy (Engraulis mordax), and Pacific herring these species regularly occur in the demands associated with individual (Clupea pallasii; Rice 1963, Kieckhefer humpback whale diet comes from survival, growth, reproduction, 1992, Clapham et al. 1997; Fleming et stomach content analyses, stable isotope lactation, seasonal migrations, and other al. 2016). That these species analyses, and direct observations normal life functions. Essentially, while consistently occur in the humpback coupled with prey sampling (NMFS on feeding grounds, the whales must whale diet and are targeted by 2020a). These species are broadly finance the energetic costs associated humpback whales in this region is distributed within the Gulf of Alaska with migration to breeding areas, supported by stomach content analyses, and eastern Bering Sea systems (e.g., reproductive activities, as well as the fecal sample analyses, direct Simonsen et al. 2016, Ormseth 2014, energetic costs associated with their observations, and stable isotope Ormseth et al. 2016, Ormseth 2017), and return migration to high-latitude feeding analyses (NMFS 2020a). Significant serve as important prey for other upper- areas. Fat storage has been linked to fluctuations in the abundances of these trophic level predators including sea reproductive efficiency in other species prey species in the CCE has also been birds, seals, other whales, and of large, migratory, baleen whales reflected in their relative contributions commercially valuable fishes. (Lockyer 2007), and some evidence to the humpback whale diet over time Other fish species that have been suggests that variation in prey (e.g., Clapham et al. 1997, Fleming et al. reported as part of the humpback whale availability during summer is directly 2016). diet for the Gulf of Alaska and/or Bering connected to variation in annual Other diet items reported for Sea regions but not ultimately reproductive rates for humpback whales humpback whales in the CCE include determined to be significant or essential in the following year (Clapham 1993). copepods (species not indicated), sand prey include eulachon (Thaleichthys Calf condition has also been lance (Ammodytes hexapterus), and pacificus), Pacific sandfish (Trichodon significantly correlated with female juvenile rockfish (Sebastes; Kieckhefer trichodon), surf smelt (Hypomesus body condition (low calf body condition 1992). Copepods and squid were pretious), Atka mackerel with lower female condition) for identified in only a small number of (Pleurogrammus monopterygius),

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Pacific cod (Gadus macrocephalus), not been supported by other studies. following biological features essential to saffron cod (Eleginus gracilis), Arctic Possible explanations for the lack of surf the conservation of each particular DPS. cod (Boreogadus saida), rockfish smelt in more recent diet studies CAM DPS: Prey species, primarily (Sebastes), juvenile salmon (SPP), and include a dramatic change in relative euphausiids (Thysanoessa, Euphausia, myctophids (primarily Stenobrachius abundance of surf smelt, species Nyctiphanes, and Nematoscelis) and leucopsarus; Thompson 1940, Nemoto misidentification, or inadvertent small pelagic schooling fishes, such as 1959, Klumov 1965, Tomilin 1967, omission of species in the stomach Pacific sardine (Sardinops sagax), Neilson and Gabriele 2008, Witteveen et samples examined by Thompson (1940) northern anchovy (Engraulis mordax), al. 2008, Wright et al. 2016, Moran and (Witteveen et al. 2006). and Pacific herring (Clupea pallasii), of Straley 2018). The available data Data are even more limited for other sufficient quality, abundance, and regarding the occurrence of these reported diet items, such as rockfish, accessibility within humpback whale species in the diet are limited however. cod species, and various invertebrates feeding areas to support feeding and For instance, most observations of (e.g., copepods, mysids, amphipods, population growth. humpback whales feeding on salmon pteropods, shrimps; NMFS 2020a). WNP DPS: Prey species, primarily are anecdotal or unquantified (Klumov Many of these diet items were recorded euphausiids (Thysanoessa and Euphausia) and small pelagic schooling 1967, Neilson et al. 2013); and where in older studies based on observations fishes, such as Pacific herring (Clupea quantitative information is available, or evaluation of stomach contents, and pallasii), capelin (Mallotus villosus), predation on salmon appears to be rare in many instances for whales taken in juvenile walleye pollock (Gadus (Moran and Straley 2018). Anecdotal Russian waters (e.g., Klumov 1965). In chalcogrammus) and Pacific sand lance observations of humpback whales some cases, available information (Ammodytes personatus) of sufficient feeding on hatchery released salmon suggests that these other species are unimportant in the humpback whale quality, abundance, and accessibility have also been reported, but results of within humpback whale feeding areas to a study at five release sites in Southeast diet (NMFS 2020a). For example, copepods were often reported by support feeding and population growth. Alaska over a 6-year period (2010- MX DPS: Prey species, primarily Nemoto (1957, 1959, 1977) in the 2015), indicated that in the majority of euphausiids (Thysanoessa, Euphausia, stomachs of humpback but were not instances where humpback whale were Nyctiphanes, and Nematoscelis) and observed near release sites (100 of 124 considered intentional targets given the small pelagic schooling fishes, such as sightings), only a single whale was distribution of humpback whales Pacific sardine (Sardinops sagax), sighted (Chenoweth et al. 2017). In relative to copepods and their low northern anchovy (Engraulis mordax), many cases, quantitative data on number in the stomachs relative to their Pacific herring (Clupea pallasii), capelin consumption of certain fish species, abundance (Nemoto 1959). In other (Mallotus villosus), juvenile walleye such as eulachon and sand fish, are cases, the prey have very limited or non- pollock (Gadus chalcogrammus), and lacking or do not otherwise indicate that quantified occurrence in the diet, so Pacific sand lance (Ammodytes the particular species are important in conclusions regarding their importance personatus) of sufficient quality, the diet. For example, stable isotope as prey are not possible (e.g., cods, abundance, and accessibility within analyses for samples collected from Thompson 1940, Nemoto 1957, Klumov humpback whale feeding areas to humpback whales in the Kodiak region 1965). The Final Biological Report support feeding and population growth. during summers from 2004- 2013 (NMFS 202a) provides additional As generalist predators that may indicate that sand fish and eulachon information and references for other opportunistically switch which prey were among the least important prey documented and possible prey species they are targeting, humpback whales sources or made insignificant of humpback whales in different feeding will consume other prey in addition to contributions to the diet, which results regions. Overall, there is insufficient those we identify here in the description indicated was mainly comprised of krill, information to clearly establish that of the essential biological features, and capelin, and age-0 pollock (Witteveen et each of these previously documented or those other prey species may in fact be al. 2012, Wright et al. 2016). Other data reported prey species is important to the essential to the conservation of the substantiating the importance or humpback whale diet in U.S. waters, listed humpback whales. However, the prevalence of sandfish and eulachon in and that each of these species can best available data do not allow us to the humpback whale diet are not therefore be considered essential the provide an exhaustive list of all prey available. Based on analysis of stomach conservation of the listed DPSs. species that may be essential to the contents of whales taken by Japanese Humpback whales are not known to whales’ conservation. Given the whaling expeditions from 1952–1958, limit their selection of prey to particular dynamic nature of the prey populations, Nemoto (1957, 1959) reported that age classes of the majority of their prey it is also not possible to specify which humpback whales preferentially fed on species; however, humpback whales of the identified common prey species Atka mackerel in waters west of Attu have been documented to consume fish will form the majority of the humpback Island and south of Amchitka Island, in ≤30 cm in length (Nemoto 1959). whale diet at a particular location or the western Aleutians and far to the Available data also suggest that point in time. However, to provide the west of the areas proposed as critical humpback whales consume age-0, most possible notice to the public of the habitat. We are not aware of other data young-of-year, and age-1 walleye features that are essential to the or records of Atka mackerel being taken pollock (Krieger and Wing 1986, conservation of humpback whales, we by humpback whales within U.S. waters Witteveen et al. 2008 and 2012, Wright are providing the most detailed or in any areas that were proposed for et al. 2016). Therefore, we have description that current data allow. The designation as critical habitat. specified ‘‘juvenile’’ walleye pollock in three essential prey features identify Thompson (1940) reported that a high the revised prey feature description for those prey species that commonly occur percentage of stomachs from whales the two DPSs occurring in waters off within the humpback whale diet and harvested in 1937 from waters southeast Alaska where walleye pollock occur that are known to occur within the of Kodiak contained surf smelt (78 within the humpback whale diet. feeding areas of the listed humpback percent, 21 of 27 stomachs), but Based on the best scientific data whale DPSs. These species are thus occurrence of surf smelt in the diet has available, we have now identified the examples of prey that can be essential

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to the conservation of the particular DPS required in the future through section 7 and Yasumiishi 2017 and 2018, Bordeur within the specific areas of U.S. waters consultations on particular proposed et al. 2018, Jones et al. 2018). where the DPS occurs. Because the Federal actions. However, we can point, Observations of whales with poor body feeding ranges and primary prey within for example, to our authorities to condition, called ‘‘skinny whales’’ due those feeding ranges are not the same for manage Federal fisheries under the to their emaciated appearance, have each of the DPSs, a separate prey Magnuson-Stevens Fishery been reported in recent years in Prince essential feature is described for each Conservation and Management Act (16 William Sound and Glacier Bay, Alaska humpback whale DPS. We note, U.S.C. 1801, et seq.) to demonstrate that (Straley et al. 2018; and see https:// however, that there is considerable management of the prey feature is not irma.nps.gov/DataStore/DownloadFile/ overlap in terms of the prey species only possible but is ongoing. We find 620535). The lowest calving rates on identified for each DPS, which is a that many of the other threats identified record (since 1985) have also been reflection of the fact that the feeding are of a type that could also be observed in recent years (2016–2018, ranges of the DPSs also overlap to ameliorated through specific measures https://irma.nps.gov/DataStore/ varying extents. Specifically, both the now or in the future. We therefore DownloadFile/620535) in Southeast MX and CAM DPSs feed within the CCE conclude that the prey feature may Alaska, and juvenile return rates to the on euphausiids, anchovy, sardine, and require special management area are also low (Gabriele and Neilson herring; and within feeding areas off of considerations or protection. These 2018; see also Cartwright et al. 2019). It Alaska, both the WNP and MX DPSs threat categories are summarized here is not yet clear whether nutritional feed on euphausiids, herring, capelin, and discussed in more detail in the stress or some other factor (e.g., juvenile walleye pollock, and sand Final Biological Report. parasites, disease) is the cause of the lance. When Federal agency actions poor body condition and observed low Climate Change undergo section 7 consultation, the calving rates of these whales, but some analysis will be based on the best Multiple studies have detected researchers hypothesize that reduced available scientific and commercial data changes in the abundance, quality, and prey availability and/or quality driven at that time. distribution of species that serve as prey by the marine heat wave of 2013–2016 for humpback whales in association and other climate factors is the likely Special Management Considerations or with climate shifts, particularly with cause (Gabriele and Neilson 2018). Protection ocean warming. The nature and extent Additional discussion on the A specific area within the geographic of impacts have varied across study potential impacts of climate change on area occupied by a species may only be areas and species; however, in many humpback whale prey, including the designated as critical habitat if the areas cases, ocean warming has led to related effects of eutrophication, contains one or more essential physical negative impacts on humpback whale harmful algal blooms, and ocean or biological features that ‘‘may require prey species. For instance, in the CCE, acidification is provided in the Final special management considerations or during the anomalous warming of the Biological Report (NMFS 2020a). protection’’ (16 U.S.C. 1532(5)(A)(ii); 50 upper ocean and weak upwelling from CFR 424.12(b)(iv)). ‘‘Special 2013—2016, often referred to as the Direct Harvest management considerations or ‘‘blob’’ or the ‘‘warm blob,’’ sharp Within the areas under consideration protection’’ is defined as methods or decreases in euphausiid biomass were for designation, a few fisheries directly procedures useful in protecting the observed, as evidenced by declines in target prey species that form a major physical or biological features essential both abundance and body length part of the humpback whale diet (e.g., to the conservation of listed species (50 (Harvey et al. 2017, Peterson et al. Pacific herring, Pacific sardine, northern CFR 424.02). As discussed previously, 2017). Comparisons of samples anchovy), and other fisheries can courts have made clear that the ‘‘may collected in the Northern California incidentally capture important prey require’’ standard requires that NMFS Current region during years of cool species. This creates the potential for determine that special management (2011, 2012), average (2000, 2002), and direct competition between humpback considerations or protection of the warm (2015, 2016) conditions, also whales and certain fisheries (Trites et al. features might be required either now or indicated that body condition of 1997). In fact, current management of in the future; such considerations or northern anchovy, Pacific herring, and key forage species like Pacific sardine protection need not be immediately Pacific sardine were better in cool years and northern anchovy under their required (see Critical Habitat Definition compared to warm years, and associated Federal fishery management and Process). Four broad categories of significantly so for anchovy and herring plan includes a specific objective of actions, or threats, were identified as (Brodeur et al. 2018). Climate change providing adequate forage for dependent having the potential to negatively may also alter the spatial and temporal species, like whales and other higher impact the essential prey features and distributions of humpback prey species trophic level species (PFMC 2019). the ability of feeding areas to support (Bakun et al. 2015, Auth et al. 2018), Consequences of prey depletion as a the conservation of listed humpback which may lead to corresponding shifts result of fishing activities are also likely whales in the North Pacific: Climate in marine mammal distributions as well to be exacerbated in years when change, direct harvest of the prey by as other changes in the ecology of the alternative humpback whale prey fisheries, marine pollution, and whales (King et al. 2011, Moore et al. species are naturally low in abundance underwater noise. Each of these threats 2019). due to climate or environmental factors. could independently or in combination Consequences of climate-driven and Sufficient depletion of prey on the result in the need for special climate-related reductions in the quality feeding grounds can lead to nutritional management or protections of the and abundance of prey species can stress, which in turn can lead to essential prey feature. The ‘‘may cascade upwardly through ecosystems decreases in body condition, size, require’’ standard is met or exceeded by decreasing energy transfers to higher reproductive output, and survival (as in with respect to management of the trophic levels and potentially causing Steller sea lions, Trites and Donnelly essential prey feature. We do not reproductive failures and die-offs of 2003; gray whales, Bradford et al. 2012; speculate as to what specific some predators (Coyle et al. 2011, right whales, Seyboth et al. 2016). For conservation measures might be Woodworth-Jefcoats et al. 2017, Zador humpback whales in the Atlantic

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Ocean, there is some evidence that instance, there is evidence that marine that humpback whales are currently variation in prey availability during the seismic surveys can result in behavioral found throughout their historical summer may be connected to variation effects as well as significant injury and feeding range (Muto et al. 2018). As in annual reproductive rates in the mortality of fishes and zooplankton indicated in the proposed rule (84 FR following year (Clapham 1993). (McCauley et al. 2017, Carroll et al. 54354, October 9, 2019), we find that a Marine Pollution 2017); however, such impacts may be designation limited to geographical relatively short in duration and spatially areas occupied by humpback whales at Although pollution was not identified limited (to within the survey footprint the time of listing would be adequate to as a significant threat to any of the and extending out ∼15 km) and may be conserve the three listed DPSs and that North Pacific DPSs of humpback whales minimized by ocean circulation there are no unoccupied areas that are in the recent status review (Bettridge et (Richardson et al. 2017). Available essential to the recovery of the listed al. 2015), consumption of contaminated research also suggests that other noises humpback whale DPSs. or low quality prey may negatively in the marine environment from sources affect the health, population growth, such as impact pile driving and Specific Areas Containing the Essential and ultimately the recovery of listed underwater explosives may have Feature humpback whales. Humpback whales negative consequences on certain are susceptible to bioaccumulation of To determine what areas qualify as species of fish and invertebrates such as critical habitat within the geographical lipophilic contaminants because they trauma or tissue damage, mortality (of have long lifespans and large fat area occupied by the species, we are various life stages), stress, disruptions of required to identify ‘‘specific areas’’ that deposits in their tissues. Some schooling, or reduced foraging success contain the physical or biological contaminants may also be passed to (Popper and Hastings 2009, Weilgart features essential to the conservation of young whales during gestation and 2017). Whether and how specific the species (50 CFR 424.12(b)(1)(iii)). lactation (as in fin whales, Aguilar and humpback whale prey are currently Delineation of the specific areas is done Borrell 1994). In comparisons of being impacted by various noise sources ‘‘at a scale determined by the Secretary samples collected from Northern and levels is not yet clear, but the [of Commerce] to be appropriate’’ (50 Hemisphere feeding grounds, Elfes et al. available information is sufficient to CFR 424.12(b)(1)). Regulations at 50 (2010) reported that concentrations of indicate that ocean noise poses a CFR 424.12(c) also require that each contaminants within humpback whale management concern for many fish and critical habitat area be shown on a map. blubber were high in southern invertebrate species such that they may California and in the Northern Gulf of To create maps of the specific areas require management considerations or Maine. Marine pollution in the form of protection (Hawkins and Popper 2017). meeting the definition of critical habitat plastics is also a concern for marine for each DPS, the CHRT considered, systems worldwide, and microplastics Unoccupied Areas among other things, the scales at which in particular have entered into marine Section 3(5)(A)(ii) of the ESA biological data are available and the systems and food webs. Microplastics authorizes the designation of specific availability of standardized geographical could be consumed via contaminated areas outside the geographical area data necessary to map boundaries. As prey or ingested directly by whales occupied by the species if those areas noted previously, the ESA when microplastics co-occur in the are determined to be essential for the implementing regulations allow for water column with target prey. flexibility in determining the Marine pollution may also lead to conservation of the species. Implementing regulations require that appropriate scale at which specific areas secondary impacts on the whales’ are drawn (50 CFR 424.12(b)(1)). habitat. For instance, pollution from we first evaluate areas occupied by the Based on a review of the best untreated industrial and domestic species and only consider unoccupied available data, the CHRT delineated wastewater may be contributing to the areas where a critical habitat specific areas along the coasts of Alaska, occurrences of algal blooms. During designation limited to geographical some algal blooms, toxins (e.g., areas occupied would be inadequate to Washington, Oregon, and California that saxitoxin, domoic acid) can become ensure the conservation of the species meet the definition of critical habitat for increasingly concentrated as they move (50 CFR 424.12(b)(2)). An occupied area one or more of the three DPSs of whales up the food chain. Although much of can only be considered essential if there (Figure 1). Specific areas were also the humpback whales’ prey are lower is a reasonable certainty both that it further delineated into 19 particular trophic-level species, several unusual contains one or more of the essential areas or units to facilitate subsequent mortality events have been documented physical or biological features and that analyses for each humpback whale DPS in the Atlantic Ocean, indicating that it will in fact contribute to the under section 4(b)(2) of the ESA (e.g., such toxins can pose a concern for conservation of the species (Id.). consideration of economic impacts). See humpback whales (Geraci et al. 1989, Although humpback whale 16 U.S.C. 1533(b)(2). Each of these areas Gulland 2006). abundances were greatly reduced meets the definition of ‘‘critical habitat’’ throughout their range by commercial because the best available scientific data Ocean Noise whaling (Rice 1978, Rice and Wolman indicate that the area is occupied by the Effects of noise on fish and 1982, Johnson and Wolman 1984), they particular DPS and the essential feature zooplankton species, which is a topic of still occur in areas where they were is present, as evidenced by documented increasing research attention, may range once targeted by commercial whaling feeding behavior of the whales in these from health and fitness consequences to operations (e.g., Zerbini et al. 2006), and areas, humpback whale sightings data, mortality and reductions in abundance the NMFS 2017 Marine Mammal Stock and/or presence of humpback whale (Popper and Hastings 2009, Kight and Assessments for the Western and prey. Swaddle 2011, Radford et al. 2014). For Central North Pacific regions concluded BILLING CODE 3510–22–P

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170°W 160°W 150°w 140'W 130°W

z g

z ij

z g z C) 0 Exclusive Economic Zones (EEZs) N ••=:::::a•••■ Nautical Miles 160 320 640

160°W 150°W 140°w 130°W 120°W Figure 1. Specific areas (Units 1-19) occupied by one or more of the listed humpback whales DPSs. Units 1-9 are occupied by the WNP DPS; Units 1-19 are occupied by the MX DPSs; and Units 11-19 are occupied by the CAM DPS.

BILLING CODE 3510–22–C determined. The approach and data (NMFS 2020a), which describes their In delineating and mapping the used by the CHRT, which we updated assessment in response to specific areas, the CHRT applied summarize here, were described in the public comments. identified datasets in a systematic way proposed rule (84 FR 54354, October 9, Although the humpback whale across regions and DPSs to ensure 2019) and are also discussed in further feeding BIAs as delineated by Ferguson consistency in how boundaries were detail in the Final Biological Report et al. (2015a and 2015c) and

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Calambokidis et al. (2015) were not model is available for Alaska, the CHRT across many of these boundaries. More intended to be synonymous with critical relied on published surveys and detailed information regarding whale habitat under the ESA, they were available sightings data. Where and prey distributions is provided in the regarded by the CHRT as an important available, humpback whale sightings Final Biological Report (NMFS 2020a). source of information and very data were mapped and overlaid with the informative to their review of areas that BIAs to inform selection of boundaries Unit 1—Bristol Bay meet the definition of critical habitat for between specific areas. This unit is bounded along the For applicable habitat units, the humpback whales. In delineating the northern edge by a line extending due specific critical habitat areas, the CHRT CHRT also considered the polygons west from Egegik (at 58°14′ N, 157°28′ considered the humpback whale BIAs derived from ARS data from satellite- W) to encompass the humpback whale and the underlying sources used to help tagged whales (Mate et al. 2018). These BIA within Bristol Bay. The boundary delineate the BIAs. In some instances, polygons provided information BIA boundaries were used to determine regarding where and the area over then extends southwest and then which the whales may feed, and thus southward tangentially along the BIA to the boundaries for critical habitat areas. ° ′ these data provided additional support the coastline at Moffet Point (55 27 N, The CHRT also decided that the BIAs ° ′ should remain intact within a given for the delineation of relevant specific 162 35 W). The nearshore boundary of specific critical habitat area unless there critical habitat areas. this unit follows the 1-m isobath was a compelling reason to change or To determine appropriate nearshore (relative to MLLW). This unit covers divide it, because the BIAs are well boundaries for the specific areas, the about 19,279 nmi2 and includes waters described, discrete delineations of CHRT used humpback whale sightings off Bristol Bay and Lake and Peninsula habitat based on thorough review of data from multiple studies (e.g., Boroughs, and a small portion of existing data that generally fall within Calambokidis et al. 2008, Zerbini et al. Aleutians East Borough. larger delineations of humpback whale 2006, Baker et al. 2016). Collectively, Unit 1 boundaries were drawn based feeding regions. the sightings datasets represent results largely on the location of a humpback For U.S. West Coast areas of different types of sampling efforts whale feeding BIA (see Ferguson et al. (Washington, Oregon, and California), (e.g., targeted small boat surveys, 2015c), which was in turn identified the CHRT applied the results of a systematic line-transect surveys), largely based on results of systematic different time-periods (2001–2003, habitat model for the CCE that surveys reported in Clapham et al. 2004, 2005), and different study incorporated 275 humpback whale (2012), Friday et al. (2012), and Friday sightings from seven systematic line- locations. The CHRT generated depth et al. (2013). Unit 1 was also extended transect cetacean surveys conducted in frequency histograms from all these farther into Bristol Bay relative to the summer and fall (July–December) sightings in Alaska and for all sightings BIA to reflect sightings from 1999 aerial between 1991–2009 (Becker et al. 2016) off of Washington, Oregon, and and a habitat model for southern California to delineate the shoreward surveys of Bristol Bay (Friday et al. California (i.e., Units 16–19) that boundary for critical habitat units in 2012) and sightings from the 2017 IWC incorporated 53 humpback whale each of those respective regions. Based Pacific Ocean Whale and Ecosystem sightings from 20 surveys conducted on these data, the 1-m depth contour Research Program (POWER) survey between 2005 and 2015 during winter (relative to mean lower low water (Matsuoka et al. 2018) indicating that and spring (January–April, Becker et al. (MLLW)) or a BIA boundary, whichever humpback whales may also be common 2017). Predictions from the summer/fall was closer to shore, was selected as the in these waters. The southern, nearshore models were made for the entire U.S. nearshore boundary for the habitat units boundary was drawn to accommodate West Coast from the coast to 300 nmi in Alaska. Humpback whales in Alaska the nearshore areas (around the 50 m offshore (the study area was have frequently been observed feeding isobath) indicated by sightings reported approximately 1,141,800 km2). extremely close to shore during high in Friday et al. (2013). Predictions from the winter/spring tide (J. Moran, AFSC, pers. comm., May Surveys conducted during 2004 and models were made in a subset of this 23, 2018), which comports with the 2006–2010 within the eastern Bering region: South of 38° N and east of 125° CHRT’s selection of the 1-m depth Sea and that overlapped with a portion W (the study areas was approximately contour (or isobath). Based on the of Unit 1, indicated widespread and 385,460 km2). The Becker et al. 2016 available data for the U.S. West Coast, persistent concentrations of euphausiids and 2017 models summarize expected the CHRT selected the 50-m isobaths as in the survey area (Sigler et al. 2012). humpback whale distributions in the the shoreward boundary for each Humpback whales may also feed on CCE over a long time-period and specific area except in cases where various species of schooling fish, such incorporate oceanographic variability doing so would clip out a portion of a as juvenile pollock, capelin, herring, observed during the surveys. BIA. Cases where this occurred (i.e., and sand lance that occur in this region The Becker et al. (2016 and 2017) Units 16 and 17) and how it was (Nemoto 1959, Nemoto 1970, Sigler et models predicted humpback whale addressed are discussed in more detail al. 2012, Ormseth 2015, Andrews et al. abundance in approximately 10 by 10 in the descriptions of each specific area 2016). km grid cells. Cells containing the below and in the Final Biological highest 90 percent of the predicted Report. Photo-identification data are not study area abundance were used to help In the following sections, we provide available to validate occurrences of delineate the offshore extent of the additional details regarding the particular DPSs within this unit; specific areas. (All or 100 percent of the boundaries of each of the 19 specific however, the available data suggest this predicted abundance had a distribution areas and briefly describe humpback area is a destination for whales from the that extended out to and even beyond whales’ use of the specific area. We note Hawaii (HI, which are not listed), WNP, the U.S. EEZ.) The Becker et al. (2016 that these delineations of specific units and MX DPSs (Baker et al. 2013). Five and 2017) predictions also contributed of habitat do not necessarily represent marked whales are also documented to to delineating the north/south discrete feeding aggregations or have moved between the WNP breeding boundaries between particular habitat populations of humpback whales— grounds and the broader eastern Bering units. As no such coast-wide habitat individual whales generally move Sea region (Omura and Ohsumi 1964).

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Unit 2—Aleutian Island Area pollock (Nemoto 1959, Nemoto 1970, Unit 4—Central Peninsula Area This unit includes waters along the Andrews et al. 2016, Ormseth 2015, The western edge of this area extends northern side of Unimak Island, waters 2017). along 158°39′ out to a line around Umnak and Unalaska Islands, Photo-identification data indicate this corresponding to the 1,000-m isobath, and waters within Umnak and Unimak area is a destination for whales from the which marks the offshore boundary. The Pass. At its eastern edge, the northern HI, WNP, and MX DPSs (Calambokidis eastern boundary is at 154°54′ W, just boundary of this area extends from et al. 2008). east of the Shumagin Islands. The 55°41′ N/162°41′ W, tangentially along nearshore boundary of this unit follows Unit 3—Shumagin Islands Area the northern edge of a humpback whale the 1-m isobath (relative to MLLW). ° ′ BIA west out to 169 30 W. The western This area extends from 164°25′ W This unit is within the Lake and boundary extends southward through eastward to 158°39′ W and encompasses Peninsula Borough. Unit 4 covers about Samalga Pass to the BIA boundary on the feeding BIA around the Shumagin 15,026 nmi2 of marine habitat. the south side of the islands, which Islands. The area is bounded on its This area captures the waters between corresponds closely to a line drawn southern (offshore) edge by a line drawn two identified feeding BIAs. Survey data along the 2,000-m isobath. This along the 1,000-m isobath, which also indicate that humpback whales are southern boundary follows the edge of runs along the southern boundary of the consistently found in these waters ° ′ the BIA and extends eastward to 164 25 BIA. The nearshore boundary of this (Brueggeman et al. 1989, Zerbini et al. W. The nearshore boundary of this unit unit follows the 1-m isobath (relative to 2006) and at least occasionally transit is the 1-m isobath (relative to MLLW). MLLW). This unit is mainly within the between the Shumagin Island area and This unit includes waters off the Aleutians East Borough but includes a Kodiak Island (5 of 171 whales; Aleutian East and Aleutian West small portion of the Lake and Peninsula Witteveen et al. 2004). Results of Boroughs. Unit 2 covers about 28,829 Borough. Unit 3 covers about 13,162 systematic surveys conducted in the nmi2 of marine habitat. nmi2 of marine habitat. summers of 2001, 2002, and 2003, This area encompasses a humpback indicate that fin whales occurred in This area was drawn from the whale feeding BIA, which was drawn to high densities in Unit 4, and in boundary of Unit 2 eastward and include high density sightings of particular around the Semidi Islands, encompasses an identified BIA humpback whales as reported in Zerbini relative to the adjacent areas (Units 3 (Ferguson et al. 2015a). This BIA is et al. (2006), Clapham et al. (2012), and 5); while humpback whales had the within the 1,000-m isobath, which was Friday et al. (2012), and Friday et al. opposite distribution pattern (Zerbini et selected as the offshore boundary for (2013; see Ferguson et al. 2015c). al. 2006). Brueggeman et al. (1989) this unit. As evidenced by acoustic Telemetry and sightings data indicate report a fairly similar pattern based on trawl surveys, krill occur in high that humpback whales use the coastal their aerial and shipboard surveys abundance in this area (Simonsen et al. waters to the north and south of the conducted in 1985 and 1987, 2016). Surveys conducted within this islands as well as within the passes respectively. Although these two whale area also indicate that feeding (Zerbini et al. 2006, Sigler et al. 2012, species are often sympatric and have aggregations of humpback whales Kennedy et al. 2014). The western edge overlapping diets, previous surveys and consistently occur in coastal areas south of Unit 2, however, does not include the isotope analyses have provided of these islands and around the small portion of the BIA that extends evidence of trophic niche partitioning Shumagin Islands (Waite et al. 1999, west of Samalga Pass. This pass between fin and humpback whales, with Witteveen et al. 2004, Zerbini et al. coincides with an abrupt oceanographic the latter being more piscivorous 2006, Wynne and Witteveen 2013), break, west of which the frequency of (Wynne and Witteveen 2013, where the whales have been observed humpback whale sightings have been Gavrilchuk et al. 2014, Witteveen et al. targeting dense schools of krill (Wynne very low or absent (Zerbini et al. 2006; 2015, Witteveen et al. 2016). Various and Witteveen 2013). During the P. Wade, pers. comm., May 23, 2018). fish prey species as well as high University of Alaska’s Gulf Apex The northwestern edge of Unit 2 also abundances of euphausiids occur in this Predator-Prey (GAP) Study surveys extends slightly north of the BIA, area (Ormseth 2014, Simonsen et al. within this area, conducted across 14 because available sightings data indicate 2016). humpback whales use waters north of feeding seasons, 654 individual Photo-identification data demonstrate Unimak Pass and along the middle and humpback whales were identified out of that this area is a destination for whales outer Bering Sea shelf and slope 1,437 total sightings. Analyses of these from the HI and MX DPSs (Calambokidis et al. 2008, Friday et al. sightings indicate a fairly high degree of (Calambokidis et al. 2008). WNP DPSs 2012, Friday et al. 2013, Matsuoka et al. site fidelity to this area, with an average whales have not been photo-identified 2018). annual rate of return of 37 percent (SD in this area but their presence has been Surveys conducted during 2004 and = 11.8 percent; Witteveen and Wynne inferred based on documented 2006–2010 within the eastern Bering 2016a). Surveys conducted in 1985 occurrences in both of the adjacent units Sea indicated widespread and persistent indicated that humpback whales were (i.e., Units 3 and 5). concentrations of euphausiids in this widely distributed throughout this area area (Sigler et al. 2012), and general but were typically observed near island Unit 5—Kodiak Island Area additive models using environmental complexes, the shelf break, and banks, This area includes the waters around datasets from summers 2008–2010 for such as Sanak Bank, Shumagin Bank, Kodiak Island and the Barren Islands. the Eastern Bering Sea also predict and an additional unnamed bank, with The western boundary runs southward relatively high levels of euphausiid repeated observations of whales at both along 154°54′ W to a line that follows biomass occurring within this area Shumagin Bank and the unnamed bank the 1,000-m isobath, and then extends (Zerbini et al. 2016). In addition to (Brueggeman et al. 1987). eastward to a boundary at 150°40′ W. targeting euphausiids, humpback Photo-identification data indicate this The area also extends northward to the whales may also consume multiple fish area is a destination for whales from the inner mouth of Cook Inlet where it is species occurring in this region such as HI, MX, and WNP DPSs (Witteveen et bounded by a line that extends from herring, capelin, and juvenile walleye al. 2004, Calambokidis et al. 2008). Cape Douglas across the inlet to Cape

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Adam. The nearshore boundary of this This unit covers about 3,366 nmi2 of Navy Temporary Maritime Activities unit follows the 1-m isobath (relative to marine habitat. Area, which overlaps with a portion of MLLW). This unit is within the Kodiak The southern boundary of this area Unit 7, has ranged from 0.0930 in 2013 Island Borough but includes a small approximates the ecological shift (CV = 0.74) to 0.0050 in 2015 (CV = portion of the Kenai Peninsula Borough. between the Kodiak Island Area (Unit 5) 0.32, Rone et al. 2017). Based on results Unit 5 covers about 17,420 nmi2 of and Cook Inlet. Unit 6 does not include reported in Witteveen et al. 2011, site marine habitat. the upper portions of Cook Inlet, fidelity of humpback whales to this area This area was drawn to capture the because humpback sightings are rare can be inferred to be fairly high. Inter- Kodiak Island BIA, as well as north of Kalgin Island despite extensive, annual movement of whales has also documented aggregations of humpback routine aerial surveys of this area for been observed between this area and the whales around the Barren Islands and in Cook Inlet beluga whales (K. Sheldon, coastal waters around Kodiak Island waters to the east of Kodiak (Rice and NMML, pers. comm., August 2, 2018). (Witteveen et al. 2011). As noted Wolman 1982, Zerbini et al. 2006, North of the Forelands, the inlet previously for Unit 6, stable isotope Ferguson et al. 2015a, Rone et al. 2017). becomes shallow and highly turbid due analyses of pooled skin samples Waters around Kodiak Islands have to deposition of glacial silt. With its collected from whales found during the been surveyed extensively since 1999 as extreme tidal range and mudflats, the feeding season (May–December) in part of the GAP study. Over 17 years of upper inlet does not provide suitable Kenai Fjords, lower Cook Inlet, and GAP surveys in this area, 1,187 unique feeding habitat for humpback whales Prince William Sound region, suggest humpback whales were identified in the despite the presence of prey species that humpback whales in this area Kodiak region (out of 2,173 total (e.g., eulachon). Humpback whales are primarily consume fish species sightings), with an average annual rate routinely sighted in the lower portions (Witteveen et al. 2011). High abundance of return of 35 percent (SD = 15.2 of the inlet (NMML, unpubl. data, 1994– of euphausiids and variable abundances percent, Witteveen and Wynn 2016), 2018), but given the limited survey data, of forage fishes, such as capelin and indicating a high degree of site fidelity the density of whales and level of site juvenile pollock, occur in this area to this area. Some inter-annual fidelity of humpback whales to this (Simonsen et al. 2016, Ormseth 2014, movement of whales has also been feeding area has not been established. 2016, McGown et al. 2019). observed between this area and lower Inter-annual movements of humpback Photo-identification data demonstrate Cook Inlet and Prince William Sound whales between lower Cook Inlet and this area is a destination for whales from (Waite et al. 1999, Witteveen et al. the Kodiak Island area (Unit 5) have the HI and MX DPSs (Calambokidis et 2011). Waite et al. (1999) estimated that been observed (Witteveen et al. 2011), al. 2008). Limited satellite telemetry only 3 to 6 percent of the Kodiak whales indicating that the whales feeding in data also indicate this is a destination also visit Prince William Sound, and the this area do not comprise a completely for MX DPS whales (Lagerquist et al. two areas have been viewed as distinct feeding aggregation. Based on 2008). WNP DPS whales have not been supporting largely separate feeding stable isotope analyses of pooled skin photo-identified in this specific area, groups (Waite et al. 1999, Witteveen et samples collected from whales found but presence of WNP DPS whales has al. 2011); however, new, preliminary during the feeding season (May– been inferred based on available data analyses of photo-identification data December) in lower Cook Inlet, Kenai indicating that humpback whales from suggest a strong connection between the Fjords, and Prince William Sound WNP wintering areas occur within the two areas (Moran and Straley 2019). region, humpback whales in this area Gulf of Alaska (NMFS 2020a, Table C5). Humpback whales were also historically appear to primarily consume fish Unit 8—Prince William Sound Area common in this area and were taken in species (Witteveen et al. 2011). a commercial whale fishery that Photo-identification data demonstrate This area extends from 148°31′ W operated out of Port Hobron, off the that HI and MX DPS whales occur in eastward to 145°27′ W, and extends southeastern coast of Kodiak Island this area (Calambokidis et al. 2008). offshore to a boundary drawn along the (Witteveen et al. 2007). Relative WNP DPS whales have not been photo- 1,000-m isobath. The nearshore proportions of prey items within the identified in this specific area; however, boundary of this unit is the 1-m isobath humpback diet have been shown to vary their presence in this area has been (relative to MLLW). This unit is within between years, but key prey targeted by inferred based on available data the Valdez-Cordova Borough and covers the whales within this unit include indicating that humpback whales from about 8,166 nmi2 of marine habitat. krill, capelin, juvenile pollock, and sand WNP wintering areas occur in this This area was drawn to encompass lance (Witteveen et al. 2012, Wright et general region of Alaska (NMFS 2020a, the Prince William Sound feeding BIA al. 2016), which occur in high Table C5). (Ferguson et al. 2015a), which was abundances in this area (Simonsen et al. identified based on studies conducted Unit 7—Kenai Peninsula Area 2016, Ormseth 2014, 2016). mainly in the western and southern Photo-identification data demonstrate This area extends eastward from portions of the sound (e.g., von Ziegesar this area is a destination for whales from 150°40′ W at the boundary with Unit 5 et al. 2001, Rice et al. 2011). This unit the HI, MX, and WNP DPSs (Kodiak Island Area) to 148°31′ W, and was drawn to include waters beyond the (Calambokidis et al. 2008). extends offshore to a boundary marked boundaries of the BIA based on the by the 1,000-m isobath. The nearshore additional sightings reported in Unit 6—Cook Inlet boundary of this unit is the 1-m isobath Witteveen et al. (2011, and as detected This area extends from the mouth of (relative to MLLW). This unit measures during SPLASH surveys) and Cook Inlet where it is bounded by a line approximately 8,496 nmi2 and is within observations reported by von Ziegesar that extends from Cape Douglas across the Kenai Peninsula Borough. (2013) indicating that humpback whales the inlet to Cape Adam. The northern This area captures the region move between the sound and the fiords boundary is the 60°20′ N latitude line, separating the Kodiak Island and Prince along the coast. Minor aggregations of just south of Kalgin Island. The William Sound BIAs and includes humpback whales (8–13 whales) were nearshore boundary of this unit is the 1- feeding areas around the Kenai Fjords. also observed near Middleton Island m isobath (relative to MLLW). This area Estimated densities of humpback during systematic surveys conducted in borders the Kenai Peninsula Borough. whales within the shelf portion of the summer 1980 in the Gulf of Alaska (Rice

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and Wolman 1982). Presence of Surveys indicate high abundances of this area, with 47.2 percent of whales humpback whales in the sound is euphausiids and various forage fish being sighted in more than one year strongly associated with the seasonal species, such as capelin and herring, (154 whales out of 326 unique formation of Pacific herring aggregations occur in this area (Simonsen et al. 2016, individuals; Baker et al. 1986). Sightings (Rice et al. 2011, Straley et al. 2018, Ormseth 2014). histories for three female humpback Moran and Straley 2018). Results of Photo-identification data confirm this whales in particular indicate these surveys conducted during fall/winter of area is a destination for whales from the whales returned in each of 12 or 13 2007–2009 indicated that a small non-listed HI DPS (Baker et al. 1986, years during 1977–1992 (Straley et al. percentage of photo-identified whales Calambokidis et al. 2008; and SPLASH 1994). Evaluation of sighting histories in (under 2 percent, n=4) overwintered in data courtesy of C. Gabriele, NPS), and Glacier Bay and portions of Icy Strait the sound (Rice et al. 2011). As noted limited satellite telemetry data indicate from 1985 to 2013 also indicate a high for Unit 5 (Kodiak Island Area), the the presence of MX DPS whales degree of site fidelity with 63 percent limited inter-annual movements of (Lagerquist et al. 2008). Photo-identified (244 of 386 total whales identified) of whales have been interpreted to mean MX DPS whales have also been sighted non-calves returning to the survey area the two areas support largely separate in both of the adjacent areas (Units 8 in more than 1-year, 17 percent (n=66) feeding groups (Waite et al. 1999, and 10). There are no reported sightings returning every year, and an additional Witteveen et al. 2011); however, new, of photo-identified whales of the WNP 10 percent (n=39) returning in all but 1 preliminary analysis of photo- DPS in this specific area; however, year (Gabriele et al. 2017). Humpback identification data suggests a strong presence of these whales has been whales are known to feed on krill, connection between the two areas inferred based on available data herring, capelin, sand lance, (Moran and Straley 2019). suggesting that humpback whales from myctophids, and juvenile pollock Photo-identification data confirm this WNP wintering areas occur in this within Southeast Alaska, but dominant area is a destination for whales from the general region (NMFS 2020a, Table C8). prey within the diet vary among the HI and MX DPSs (Baker et al. 1986, Given the increased distance of this unit specific locations and seasons (Bryant et Calambokidis et al. 2008). WNP DPS from other confirmed sighting of whales al. 1981, Straley et al. 2018). whales have not been photo-identified from the WNP DPS, there is uncertainty Photo-identification data confirm this in this specific area; however, presence regarding whether WNP DPS whales area is a destination for whales from the has been inferred based on available occur in this unit. HI and MX DPSs (Baker et al. 1985, data indicating that humpback whales 1986; Calambokidis et al. 2008). Unit 10—Southeastern Alaska from WNP wintering areas occur in the Although sightings of WNP DPS whales Gulf of Alaska (NMFS 2020a, Table C5). This area extends from 139°24′ W, are reported for general areas to either southeastward to the U.S. border with side of this unit (Kodiak, Alaska and Unit 9—Northeastern Gulf of Alaska Canada and encompasses a humpback Vancouver Island, British Columbia, This area extends from 145°27′ W to whale BIA. The area also extends e.g., Calambokidis et al. 2001), portions 139°24′ W and to an offshore drawn offshore to a boundary drawn along the of Unit 10 have been surveyed along the 1,000-m isobath. The 2,000-m isobath, which corresponds to extensively, and those survey data do nearshore boundary of this unit is the 1- the offshore boundary of the BIA. The not indicate that the WNP DPS occurs m isobath (relative to MLLW). This unit nearshore boundary of this unit also in Unit 10. mainly borders Yakutat Borough, but corresponds to the BIA boundary. This also borders a small portion of Valdez- unit borders unorganized boroughs, but Unit 11—Coastal Washington Cordova. Unit 9 covers about 9,065 nmi2 includes water off of Skagway-Hoonah- This area extends southward from the of marine habitat. Angoon, Haines, Juneau, Sitka, U.S. EEZ to 46°50′ N, just north of This area was drawn to capture a Petersburg, Wrangell, and Ketchikan Willapa Bay, WA. The unit extends section of the Gulf of Alaska between Gateway. Unit 10 covers approximately offshore to a boundary corresponding to two feeding BIAs (in Units 8 and 10). 22,152 nmi2 of marine habitat. the 1,200-m isobath, which also aligns Surveys within this unit have been This area was drawn to encompass with the seaward extent of a BIA. The relatively limited. Surveys conducted in well established feeding grounds in unit includes waters within the U.S. June–August of 1980 by Rice and southeast Alaska and an identified portion of the Strait of Juan de Fuca to Wolman (1982) indicated that feeding BIA (Andrews 1909, Baker et al. an eastern boundary line at Angeles humpback whales were sparsely 1985, Straley 1990, Dahlheim et al. Point (123°33′ W). The 50-m isobath distributed in the Gulf of Alaska 2009, Ferguson et al. 2015a). Humpback forms the shoreward boundary. The unit (populations were still depleted), but whales occur year-round in this unit, includes waters off Clallam and they noted minor aggregations of with highest densities occurring in Jefferson Counties, and a portion of humpback whales in Yakutat Bay (13 summer and fall (Baker et al. 1985, Grays Harbor County. Unit 11 covers whales). More recently, 21 groups (33 1986). Periods of occupancy of over 100 about 3,441 nmi2 of marine habitat. individuals) of humpbacks were sighted days have been reported for a significant This area was drawn to encompass in this area during an IWC–POWER portion of the whales using this area the Northern Washington BIA survey in July/August of 2012 (Baker et al. 1985). Based on sighting (Calambokidis et al. 2015), located at the (Matsuoka et al. 2013). Sightings of data for summer months during 1985– northern edge of this unit, and cells humpback whales were also recorded in 2014 in Glacier Bay and Icy Strait, over containing the highest 90 percent of the this area by the NMFS Southwest 60 percent of the adult whales remained study area abundance predicted by the Fisheries Science Center (SWFSC) as in this area to feed for more than 20 Becker et al. (2016) habitat model. In part of the SPLASH surveys in 2004 and days, and average residency time for addition to the habitat model results, 2005 (Calambokidis et al. 2008; see also whales seen on more than 1 day within clusters of humpback whale sightings Witteveen et al. 2011). Based on limited a season was 67 days (SD = 38.3; just off Grays Harbor area (see sampling, results of stable isotope Gabriele et al. 2017). Photo- Calambokidis et al. 2015), movement analyses suggest that whales in this area identification data collected in data collected from five humpback have a mixed diet of fish and Southeast Alaska from 1979 to 1983 whales with LIMPET satellite tags zooplankton (Witteveen et al. 2011). indicate a high degree of site fidelity to (Schorr et al. 2013), and telemetry-

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derived ARS data for whales tagged off extends out to the 1,200-m isobath to CAM DPS whales in this area is of Oregon in 2017 (n=4) and capture the outer edge of cells indicated by genetic data as well as Washington (n=9, Palacios et al. 2020) containing the highest 90 percent of the modelling of sightings data (Wade 2017, support inclusion of waters beyond the study area abundance predicted by the Mate et al. 2018). BIA in this unit. The unit also includes Becker et al. (2016) habitat model. The Unit 14—Southern Oregon/Northern waters within the Strait of Juan de Fuca area also encompasses areas over which California where whales have been observed humpback whales have been observed foraging in recent years (and which falls to feed based on ARS data from satellite This area is bounded in the north at outside of the area covered by surveys tagged whales (Mate et al. 2018, Palacios 42°10′ and extends south to the used to generate the habitat model et al. 2020). The southern boundary at Mendocino escarpment at 40°20′. The predictions) (see also Palacios et al. 45°10′ N was drawn to encompass the area extends offshore to a boundary 2020). Although humpback whales have available ARS areas and to reflect where drawn along the 2,000-m isobath. The been increasingly observed within the the habitat model predictions begin to 50-m isobath forms the shoreward Salish Sea (i.e., the waters of the Strait shift farther offshore. boundary. The area includes the marine of Georgia, the Strait of Juan de Fuca, Photo-identification data are not waters off Del Norte County, CA, and Puget Sound, and around the San Juan available to validate occurrences of most of Humboldt County, CA, and Islands, Calambokidis et al. 2017), Unit particular DPSs within this precise unit; borders a small portion of Curry County, 11 does not extend beyond the strait however, the available photo- OR. Unit 14 covers about 3,412 nmi2 of farther into the Salish Sea. High identification data do support a marine habitat. reporting rates from areas within the conclusion that this area is a destination This unit includes the Point St. Salish Sea have likely resulted in a for whales from the MX and CAM DPSs George BIA, which typically supports biased understanding of humpback (Green et al. 1992, Calambokidis et al. whale feeding aggregations during July– whale abundance in these waters; 2000, Calambokidis et al. 2017). Some November (Calambokidis et al. 2015). however, hundreds of whales appear to available genetic data also suggest that The northern boundary of this unit be using the strait (J. Calambokidis, HI DPS whales may occur in this unit corresponds to the boundary of this BIA. CRC, pers. comm., May 23, 2018; see (Mate et al. 2018). The southern boundary corresponds with the Cape Mendocino/the also Palacios et al. 2020). The offshore Unit 13—Coastal Oregon boundary for Unit 11 was selected to Mendocino escarpment, where the follow the contour of cells containing This area extends southward from predicted abundance from the habitat ° ′ ° ′ the highest 90 percent of the study area 45 10 latitude to 42 10 , and extends model shows a somewhat abrupt shift abundance predicted by the Becker et offshore to a boundary at the 1,200-m offshore (Becker et al. 2016). The al. (2016) habitat model, which isobath. The 50-m isobath forms the seaward boundary for this unit extends generally coincided with the 1,200-m shoreward boundary. This area includes out to the 2,000-m isobath to capture the isobath. Multiple, persistent, dense the BIA at Stonewall and Heceta Bay, habitat model predictions. ARS areas aggregations of krill occur near the Juan and includes waters off of Tillamook, derived from satellite tracking data de Fuca canyon in this area, likely due Lincoln, Lane, Douglas, Coos, and Curry (n=26 whales, Mate et al. 2018) indicate to the canyon feature (Santora et al. Counties. Unit 13 covers about 5,750 that feeding behavior occurs throughout 2018). Various forage-fish species also nmi2 of marine habitat. this unit, and although some ARS data occur within this unit, with Pacific This unit includes the Stonewall and indicate whales feed seaward of the herring being one of the most prevalent Heceta Bank BIA, which supports 2,000-m isobath, the majority of the ARS forage fish off Washington and Northern humpback whale feeding aggregations behavior is captured within the Oregon (Brodeur et al. 2005, Zwolinski from May to November (Calambokidis et boundaries of this unit. Multiple, et al. 2012). al. 2015). The northern and offshore recurring, high density aggregations Photo-identification data confirm this boundaries of this unit correspond to (hotspots) of krill occur off of Cape area is a destination for whales from the cells containing the highest 90 percent Mendocino and elsewhere in this unit, HI, MX, and CAM DPSs (Calambokidis of the study area abundance predicted in association with submarine canyons et al. 2008). by the Becker et al. (2016) habitat (Santora et al. 2018). Within this unit model. The southern boundary of this and southward along the coast to Unit 12—Columbia River Area unit was drawn just north of another Southern California (i.e., Unit 19), This area extends southward from BIA. Based on surveys conducted in Fleming et al. (2016) collected 259 skin 46°50′ N to 45°10′ N and extends out to spring and summer of 2000 as part of samples from humpback whales during a seaward boundary corresponding to the US Global Ocean Ecosystem 1993–2012 and used stable carbon and the 1,200-m isobath. The 50-m isobath Dynamics (GLOBEC) Northeast Pacific nitrogen isotope analyses to evaluate the forms the shoreward boundary. This program, concentrations of humpback relative contribution of euphausiids area includes waters off of Pacific whales on Heceta Bank were shown to versus fish to the diet. Shifts over the County, WA and Clatsop County, OR. correspond to high densities of fish 20-year study period in isotope This unit covers about 3,636 nmi2 of (Pacific sardine and juvenile salmon) signatures in whale skin samples marine habitat. and large, high density patches of krill observed by Fleming et al. (2016) This unit was drawn to capture the (Tynan et al. 2005, Ressler et al. 2005). indicate trophic-level shifts in the Columbia River plume system, which Within this unit, large, persistent humpback whale diet, and these shifts supports foraging by many predators, aggregations of krill have been observed corresponded to shifts in relative prey including concentrations of humpback inshore of Heceta Bank, off Cape Blanco, abundance (krill versus anchovy and whales. Hotspots with persistent, and in association with submarine sardine) and changing oceanographic heightened abundance of krill (Santora canyons (Ressler et al. 2005, Santora et conditions within the CCE. These et al. 2018), and seasonally and al. 2018). results suggest that the dominant prey annually variable assemblages of forage Photo-identification data confirm this in humpback whale diet switched from fishes, including anchovy, sardine, and area is a destination for whales from the krill to fish, and back to krill during the herring, occur in this unit (Demer et al. MX DPS (Green et al. 1992, 20-year period, depending on the 2012, Zwolinski et al. 2012). The area Calambokidis et al. 2008). Presence of relative abundance of each prey.

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Temporal shifts in diet composition compared to about 10 and 25 percent, Unit 17—Central California Coast Area (e.g., from euphausiids and sardine in respectively, for the CAM and MX DPSs This area extends from 36°00′ N to a the 1920s to mainly anchovy in the (Calambokidis et al. 2017). southern boundary at 34°30′ N, just 1950s and 1960s) are also reflected in Unit 16—San Francisco and Monterey south of an identified BIA. The historical whaling data and stomach Bay Area nearshore boundary is defined by the content data from harvested whales This area extends from 38°40′ N 30-m isobath, and the seaward boundary (Rice 1963, Clapham et al. 1997). is drawn along the 3,700-m isobath. Photo-identification data confirm this southward to 36°00′ N to encompass a This unit includes waters off of area is a destination for whales from the BIA. The seaward boundary is drawn southern Monterey county, and San MX and CAM DPSs (Calambokidis et al. along the 3,700-m isobath. The inshore boundary is mainly defined by the 15- Luis Obispo and Santa Barbara counties. 2008). 2 m isobath, but also extends up to the Unit 17 covers about 6,697 nmi of Unit 15–California North Coast Area Golden Gate Bridge within San marine habitat. This unit is bounded along its Francisco Bay. This area includes This unit encompasses a BIA that northern edge by the Mendocino waters off of the southern edge of extends from Morro Bay to Point Sal escarpment at approximately 40°20′ N Mendocino County, and Sonoma, and typically supports high density and extends southward to 38°40′ N, Marin, San Francisco, San Mateo, Santa feeding aggregations of humpback which corresponds to the approximate Cruz, and Monterey counties. Unit 16 whales from April to November southern boundary of an identified BIA. covers approximately 12,349 nmi2 of (Calambokidis et al. 2015). In this area, The area extends offshore to a boundary marine habitat. as with Unit 16, the predicted drawn at the 3,000-m isobath. The 50- This unit encompasses the Gulf of the abundance extends farther offshore in m isobath forms the shoreward Farallones-Monterey Bay BIA the warmer months (July–December) boundary. This area includes marine (Calambokidis et al. 2015) as well as and even more so in cooler months waters off the coasts of Humboldt and cells containing the highest 90 percent (January–April) relative to the northern Mendocino counties, CA, and covers of the study area abundance predicted units (Becker et al. 2016 and 2017). about 4,898 nmi2 of marine habitat. by the Becker et al. (2016) habitat Therefore, the offshore boundary was The northern boundary of this unit model. In this unit, the habitat model placed at the 3,700-m isobath to capture corresponds to the Mendocino predictions extend farther offshore areas of higher predicted abundance in escarpment and a shift farther offshore relative to the more northern west coast both summer and winter. The southern in the habitat model predictions (Becker units, and extend even farther offshore boundary for this area was drawn just et al. 2016). The offshore boundary of based on modeled whale distributions south of the BIA. Based on acoustic this unit extends out to the 3,000-m in colder months (January–April, see survey data collected during 2004–2009, isobath to more closely correspond to Becker et al. 2017). Therefore, the large krill hotspots, ranging from 700 cells containing the highest 90 percent offshore boundary was placed at the km2 to 2,100 km2, occur off Big Sur, San of the study area abundance predicted 3,700-m isobath to capture areas of Luis Obispo, and Point Sal (Santora et by the Becker et al. (2016) habitat higher predicted abundances in both al. 2011). Hotspots with persistent, model. This boundary is also supported summer and winter. (The area covered heightened abundance of krill were also by ARS data indicating that whales are by the Becker et al. (2017) winter model reported in this unit in association with feeding farther from shore in this area starts at 38°00′, and we are not aware of bathymetric submarine canyons (Mate et al. 2018). Encompassed within any other models based on winter (Santora et al. 2018). this unit is a BIA that extends from Fort distributions for areas north of this Photo-identification data confirm this Bragg to Point Arena and that typically unit.) This area also extends into the area is a destination for whales from the supports feeding aggregations of mouth of the San Francisco Bay to MX and CAM DPSs (Calambokidis et al. humpback whales from July to capture a recently recognized important 2008). November (Calambokidis et al. 2015). foraging area for humpback whales Unit 18—Channel Islands Area The southern boundary of the unit (Calambokidis et al. 2017) as well as corresponds to the northern boundary of ARS data indicating that whales are This area extends from a northern another BIA. High-density, persistent feeding in and around the mouth of the boundary at 34°30′ N to a boundary line aggregations of krill occur off Cape bay (Mate et al. 2018). The highest that extends from Oxnard, CA seaward Mendocino and in association with densities of whales are seen at the to the 3,700-m isobath, along which the canyon features within this unit entrance to San Francisco Bay, with a offshore boundary is drawn. The 50-m (Santora et al. 2018). Krill hotspots, few extending into the Bay (J. isobath forms the shoreward boundary. measuring about 216–320 km2, have Calambokidis pers. comm., May 23, This unit includes waters off of Santa also been documented offshore of Point 2018). Based on data from Barbara and Ventura counties. This unit Arena near the 2,000-m isobath (Santora hydroacoustic surveys spanning covers about 9,799 nmi2 of marine et al. 2011, Dorman et al. 2015). multiple years between 2000–2009, habitat. Photo-identification data are not persistent and recurring, high-density This unit encompasses the Santa available to validate occurrences of aggregations of krill ranging in size from Barbara Channel-San Miguel BIA, which particular DPSs within this unit; about 578 km2 to 950 km2 have been supports high density feeding however, the available data strongly shown to occur in multiple areas within aggregations of humpback whales support the conclusion that this area is this unit, including Bodega Head, during March through September a destination for whales from the MX Cordell Bank, Gulf of the Farallones, (Calambokidis et al. 2015). The seaward and CAM DPSs (Calambokidis et al. Pescadora, and Monterey Bay (Santora boundary at the 3,700-m isobath 2000, Calambokidis et al. 2017). For et al. 2011, Dorman et al. 2015, Santora encompasses cells containing the example, photo-identification data et al. 2018). highest 90 percent of the study area indicate that the percent of humpback Photo-identification data confirm this abundance predicted by both the whale encounters off northern area is a destination for whales from the summer and winter habitat models California that correspond to the non- MX and CAM DPSs (Baker et al. 1986, (Becker et al. 2016 and 2017). The listed ‘‘Hawaii DPS’’ is extremely low, Calambokidis et al. 2008). southern boundary of this unit was

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selected to correspond to where the Application of ESA Section 4(a)(3)(B)(i) not overlap with the areas under habitat model predictions for both (Military Lands) consideration for designation as critical models show a clear decline in Section 4(a)(3)(B)(i) of the ESA habitat. Therefore, that INRMP was not predicted humpback whale densities. precludes designating as critical habitat considered further. The area to the south (i.e., Unit 19) is any lands or other geographical areas As described in the proposed rule (84 predicted to have much lower summer owned or controlled by the Department FR 54354, October 9, 2019), following densities of whales. Based on acoustic of Defense (DOD) or designated for its completion of analyses under section survey data collected during 2004–2009, use, that are subject to an Integrated 4(b)(2) of the ESA and resulting a krill hotspot of about 780 km2 has Natural Resources Management Plan decisions regarding exclusions, only been documented off Point Conception (INRMP) prepared under section 101 of two INRMPs—the Naval Outlying Field San Nicolas Island (SNI) and Naval Base (Santora et al. 2011). Some additional the Sikes Act (16 U.S.C. 670a), if the Ventura County (NBVC), Point Mugu— krill hotspots have also been observed Secretary determines in writing that spatially overlapped with areas under in this unit in association with such plan provides a benefit to the consideration for designation as critical bathymetric submarine canyons species for which critical habitat is habitat and thus warranted further (Santora et al. 2018). proposed for designation. See 16 U.S.C. review during development of the 1533(a)(3)(B)(i); 50 CFR 424.12(h). Photo-identification data confirm this proposed designations. area is a destination for whales from the Where these standards are met, the The NBVC Point Mugu INRMP MX and CAM DPSs (Calambokidis et al. relevant area is ineligible for addresses submerged lands and 2008). consideration as potential critical resources 3 nmi out from Point Mugu habitat. The regulations implementing Unit 19—California South Coast Area (relative to MLLW) and a zone that the ESA set forth a number of factors to extends 0.25 nmi offshore around San The northern boundary for this unit guide consideration of whether this Miguel and Prince Islands. This INRMP extends southwest from Oxnard, CA standard is met, including the degree to thus includes areas that overlapped through the Santa Cruz Basin and out to which the plan will protect the habitat with Unit 18 (i.e., the area around San a seaward boundary along the 3,700-m of the species (50 CFR 424.12(h)(4)). Miguel and Prince Islands). Relevant isobath. The unit is also bounded in the This process is separate and distinct areas within the footprint of the SNI south by the U.S. EEZ. The 50-m isobath from the analysis governed by section INRMP are the waters surrounding SNI forms the shoreward boundary. This 4(b)(2) of the ESA, which directs us to and Begg Rock within the 300-foot (91- unit includes waters off of Los Angeles, consider the economic impact, the m) isobath or 1 nmi from shore, Orange, and San Diego counties, and impact on national security, and any whichever is greater. This area around covers about 12,966 nmi2 of marine other relevant impact of designation and Begg Rock extended into Unit 18. habitat. affords the Secretary discretion to Management efforts described within exclude particular areas if the benefits both of these INRMPs, which are This area does not contain a BIA but of exclusion outweigh the benefits of was drawn to capture the southern discussed in detail in the Section 4(b)(2) inclusion of such areas. See 16 U.S.C. Report (NMFS 2020b), include actions extent of the cells containing the highest 1533(b)(2). 90 percent of humpback whale such as water quality monitoring within After we had identified specific areas nearshore waters and storm-water abundance predicted by the Becker et that would potentially meet the al. (2017) habitat model. This area has management; surveys of intertidal, definition of critical habitat for subtidal, and deep water habitats; and the lowest predicted humpback whale humpback whales, but prior to densities in the summer/fall months area closures to minimize impacts of publishing the proposed rule, we noise or other disturbances on marine relative to all other units, but is contacted DOD representatives and predicted to support higher densities of mammals. Based on our consideration requested information regarding of the activities listed in the INRMPs whales in the winter/spring months relevant INRMPs. In response, the U.S. and their relevance to humpback whales relative to the summer/fall predictions Navy (Navy) provided descriptions and and their habitat, the certainty that the for this area (Becker et al. 2016, Becker locations of four areas adjacent to the relevant management actions would be et al. 2017). The higher densities of humpback whale specific areas and that implemented, the frequency of use of humpback whales in winter/spring may are managed under Sikes Act-compliant the areas by humpback whales, and the stem from the fact that some of the INRMPs: (1) Pacific Beach Annex, WA; extent of humpback prey occurrences whales sighted in this area are likely (2) Naval Base Ventura County, Point within the areas, we concluded that the transiting through the area, rather than Mugu, CA; (3) Naval Outlying Field, San areas covered by the applicable INRMPs occupying the area as a feeding Nicolas Island, CA; and (4) Naval provide a conservation benefit to destination. Within this unit, krill Auxiliary Landing Field, San Clemente humpback whales. Thus, we determined hotspots ranging in size from about 210 Island, CA. The Navy also provided during the development of the proposed km2–430 km2 have been observed off information regarding how in their designations that the areas covered by San Nicolas and Santa Barbara Islands view, each of their approved INRMPs the INRMPs are not eligible for (Santora et al. 2011), and additional provides a conservation benefit to designation as critical habitat and hotspots have been observed in humpback whales and their habitat. An removed them from Unit 18. association with submarine canyons additional fifth INRMP, associated with Consequently, the final designations do (Santora et al. 2018). the Navy’s Southeast Alaska Acoustic not include these areas. Photo-identification data are not Measurement Facility, AK (SEAFAC), available to validate occurrences of was also noted as being under Analysis of Impacts Under Section particular DPSs within this unit; development, and that a draft was 4(b)(2) of the ESA however, the available data support the expected to be completed in December We considered the impacts of conclusion that whales from the MX 2019. After reviewing the information designating particular areas under and CAM DPSs occur in this area and maps provided, we found that the section 4(b)(2) of the ESA, and weighed (Calambokidis et al. 2000, Rasmussen et Pacific Beach Annex INRMP addresses the benefits of excluding each area al. 2012). an entirely upland property and does against the benefits of including the

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area. While section 3(5) of the ESA specific area as critical habitat (81 FR special use airspace, known as W–237A, defines critical habitat as ‘‘specific 7226, 7231, February 11, 2016). above it. The Navy has internal control areas,’’ section 4(b)(2) requires the Requests for exclusion due to national of subareas for scheduling purposes agency to consider the impacts of security impacts were initially received only. The Navy issues notices to designating any ‘‘particular area.’’ from the both the Navy and the U.S. Air mariners (NOTMARs) when the Navy Depending on the biology of the species, force (USAF); however, following engages in activities that may be the characteristics of its habitat, and the subsequent discussions with USAF hazardous to vessels engaged in nature of the impacts of designation, representatives, the USAF withdrew innocent passage, and/or recreational ‘‘particular’’ areas evaluated for their requests for exclusions. On and commercial activities. Compliance potential exclusion may be—but need December 5, 2018, the Navy requested with NOTMARS is voluntary, but helps not necessarily be—delineated so that exclusion of the following three range to protect public safety and prevent they are the same as the already areas from the humpback whale critical damage to test equipment. Activities identified ‘‘specific’’ areas of potential habitat designation: planned in the QRS to the year 2020 and critical habitat. For this designation, we (1) Southeast Alaska Acoustic beyond include activities such as at-sea analyzed two types of particular areas. Measurement Facility (SEAFAC), which sonar testing, anti-submarine warfare When we considered economic impacts, lies within critical habitat Unit 10; testing, acoustic and oceanographic we used the same biologically-based (2) Quinault Range Site (QRS; a research, countermeasure testing, ‘‘specific areas’’ we had identified under component of the Naval Undersea torpedo testing, undersea warfare section 3(5)(A) (i.e., Units 1–19, Figure Warfare Center Division Keyport Range testing, etc. The Navy stated that use of 1). This delineation allowed us to most Complex), which overlaps with a explosives within the QRS is likely to effectively compare the biologically- portion of Unit 11; and have adverse effects on humpback prey based conservation benefits of (3) Southern California Range species, although in their view these designation against economic benefits of Complex (SOCAL) portion of the would not have effects at the population exclusion, which we undertook for this Hawaii-Southern California Training level. The Navy concluded that designation, and led us to exclude some and Testing Study Area, which overlaps designation of humpback whale critical units. For our consideration of impacts with Unit 19. habitat would impact the ability of the Navy to test and field new systems and on national security, however, we The Navy also provided a written platforms and thus impact national instead delineated particular areas assessment of the potential national security if ESA section 7 consultations based on DOD control or designated use security impacts and detailed resulted in additional mitigation of the area or as otherwise specified by descriptions of training and testing requirements or restrictions on testing DOD in an exclusion request. As operations occurring at each of these discussed below, the consideration of activities in the QRS. ranges. Subsequent to their initial request for national security impacts led to the The area that pertains to the first exclusion of a portion of a larger, exclusion of QRS, the Navy conducted requested exclusion, SEAFAC, is small further analysis and, in September 2019, specific area (Unit 11). Similarly, for our 2 2 area, covering 48 nmi (164 km ) in the submitted additional information consideration of other relevant impacts, Western Behm Canal near the city of such as the impacts designation of a relative to this particular national Ketchikan, Alaska, and serves as the security exclusion. Specifically, the particular area would have on Tribes, Navy’s primary acoustic engineering we considered particular areas that Navy requested that an additional 5.4- measurement facility in the Pacific. nmi (10-km) buffer around QRS be corresponded to tribal lands, associated Additional details regarding this excluded from the designation in order treaty rights, and/or relevant resources. facility, which was proposed for to avoid impacts to ongoing and future Below, we summarize the economic, exclusion from the critical habitat testing activities that would result in the national security, and other relevant designation for the MX DPS based on event that Naval Sea Systems Command impacts of designating the areas national security impacts, are provided must halt, reduce in scope, or identified as meeting the definition of in the proposed rule (54 FR 54354, geographically or seasonally constrain critical habitat for the three DPSs of October 9, 2019). Because the larger testing activities to prevent adverse humpback whales. Additional detail is specific area (i.e., Unit 10, Southeast effects or adverse modification of provided in the final Economic Analysis Alaska) within which SEAFAC is critical habitat. The Navy determined (IEc 2020) and Section 4(b)(2) Report located is excluded from the final that sound and energy levels that may (NMFS 2020b). critical habitat designation for the MX cause injuries to humpback whale prey National Security Impacts DPS (see Exclusions Based on Economic species within critical habitat from the Impacts), further discussion of SEAFAC largest explosives that could be used on To gather information on potential is not included here. the range could extend beyond the QRS national security impacts of our The area that pertains to the second boundaries, and that excluding a buffer proposed designation, we contacted requested exclusion, QRS, is a defined of 10-km around QRS from the critical representatives from DOD and the space off the coast of Washington that habitat designation would avoid Department of Homeland Security encompasses air, surface (∼5,228 nmi2 additional mitigation requirements. The (DHS) by letter dated October 9, 2018. (6,924 km2)) and subsurface space (with Navy indicated that they determined We asked for information regarding variable depths up to 1.8 km), as well this specific buffer distance after taking impacts of a potential critical habitat as a surf zone area off the coast of into account the site specific designation for humpback whales on Pacific Beach, Washington. The QRS oceanographic conditions and the best military operations and national overlaps with approximately 44 percent available science establishing fish injury security. Under the 4(b)(2) Policy, a of Unit 11 and also overlaps with the thresholds (which the Navy cited as requesting agency must provide a southern portion of the Olympic Coast Popper et al. 2014). reasonably specific justification for the National Marine Sanctuary (OCNMS). The area that pertains to the third assertion that there is an incremental The Navy does not own or directly requested exclusion, SOCAL, is located impact on national security that would control the sea space of QRS, which is between Dana Point and San Diego, result from the designation of that largely defined by the boundaries of the California, and extends more than 600

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nmi (1,111 km) southwest into the required due to the need to avoid activities (activities related to timber Pacific Ocean. Most activities occur jeopardy to humpback whales or due to and forest management). These within the eastern portion of SOCAL, other existing protections (e.g., for other activities have the potential to affect the closer to shore. The spatial extent of listed species, other Federal, state, or essential feature by altering or reducing overlap between SOCAL and Unit 19 is local regulations). Additional economic the quantity, quality, or the accessibility 10,731.5 nmi2 (36,808 km2), which is impacts of designation would include of the prey feature essential to the approximately 54 percent of the Navy’s any state and local protections that are conservation of one or more of the listed core training area within SOCAL and likely to be triggered as a result of DPSs of humpback whales. approximately 83 percent of Unit 19, designation. However, as discussed in Our regulations recognize that which measures 12,966 nmi2 (44,472.1 chapter 3 of the FEA, we did not impacts of designation may be km2). A wide variety of training and identify state or local protections that quantitatively or qualitatively described testing activities occur within the are likely to be triggered by a proposed (50 CFR 424.19(b)). As discussed in SOCAL range complex on a routine and humpback whale critical habitat chapter 2 of the FEA, the costs sometimes fairly frequent basis. A few designation (IEc 2020). stemming from critical habitat types of Navy testing activities in this The analysis methods for estimating designation will be largely limited to area are those related to anti-submarine the incremental, economic impacts administrative costs of consultation, warfare, torpedo, mine countermeasure, stemming from designation of the which are the only costs monetized in gun, missile and rocket, and propulsion identified specific critical habitat areas the analysis (IEc 2020). No project testing. The activities that occur in for the WNP, MX, and CAM DPSs of modifications or additional SOCAL have the potential to impact the humpback whales are described in the conservation measures were identified water surface or water column, with the proposed rule and in detail in the FEA as likely to result for the majority of the degree of impact depending on the prepared by Industrial Economics, Inc. forecasted consultations, largely due to nature of the particular activity. The (IEc 2020). The economic analysis was the baseline protections in place. Navy referred to the detailed also revised based on new information Depending on the specific area at issue discussions on particular impacts and public comments received on the and the Federal action, relevant baseline provided in the Navy’s 2018 Final Draft Economic Analysis (IEc 2019a). As protections include, for example, Environmental Impact Statement for detailed in the FEA, modifications made protections for co-occurring listed Hawaii-Southern California Training to the analysis resulted in an increase in species such as North Pacific right and Testing. Ultimately, the Navy the anticipated total present value and whales, Southern Resident killer concluded that designation of Unit 19 as annualized costs of the rule, especially whales, salmon, Southern DPS of Pacific critical habitat could lead to in Alaska, and in Unit 10 particularly. eulachon, and the Southern DPS of requirements for additional mitigations Increases in the anticipated costs of the green sturgeon; designated critical (avoidance, limitations, etc.) that could rule reflect some changes in anticipated habitat for listed species; as well as hinder Navy testing and training levels of certain activities (e.g., protections for humpback whales under activities, and thereby impact military aquaculture) as well as a shift in the both the ESA and the MMPA. The readiness and national security. timeframe of the analysis and update of number, location, and/or effects on prey Therefore, Navy requested that we the results from 2018 dollars to 2020 of a few forecasted activities, exclude Unit 19 from any critical habitat dollars to adjust for inflation. particularly seismic surveys and designation. The following categories of activities alternative energy activities, cannot be with a Federal nexus were identified as determined at this time and would Economic Impacts having the potential to affect the require speculation. Therefore, we did The primary impact of a critical essential prey feature and as being not identify any probable conservation habitat designation stems from the ESA expected to occur within one or more of efforts that would likely be section 7(a)(2) requirement that Federal the specific critical habitat areas under recommended specifically to avoid agencies ensure their actions are not consideration: (1) Commercial fishing, adverse modification of the humpback likely to result in the destruction or (2) oil and gas activities (including whale critical habitat as a result of these adverse modification of critical habitat. seismic surveys, and oil spill planning activities, nor was it possible to estimate Determining the extent of this impact in and response), (3) alternative energy the cost of any such probable project practical terms is complicated by the development, (4) in-water construction modifications. fact that section 7(a)(2) contains the (including dredging and offshore The FEA indicates that, if all 19 units associated but distinct requirement that mining), (5) vessel traffic (specifically, were designated, the critical habitat Federal agencies must also ensure their activities related to establishment of the would increase administrative costs of actions are not likely to jeopardize the shipping lanes by the USCG, and other consultations involving humpback species’ continued existence. The USCG activities, including maintenance, whales by an estimated $930,000 to incremental economic impacts of a repair, and replacement of aids to $1,000,000 over the next ten years, critical habitat designation stem from navigation), (6) aquaculture and assuming a seven percent discount rate the additional effort to engage in hatcheries, (7) scientific research, (8) (IEc 2020). This equates to an consultation regarding potential adverse water quality management and inland annualized cost of $110,000 to $120,000 effects to the critical habitat as part of activities (e.g., pesticide registration, over the next ten years (IEc 2020). The section 7 consultations (often referred to establishment of water quality largest portion of the projected as administrative costs), and any standards, Clean Water Act (CWA) administrative costs are attributed to conservation measures that may be general permits, power plant operations, Unit 10 (25 to 27 percent of total costs), necessary to avoid adverse modification land management pesticide/herbicide followed by Unit 13 (9 percent) and and that would not otherwise be application, and National Pollutant Unit 17 (7 to 8 percent). Unit 10 is also implemented (often referred to as Discharge Elimination System (NPDES) associated with the greatest level of project modification costs). Thus, the permitting), (9) military activities, (10) uncertainty and potential for incremental impacts attributable to liquefied natural gas (LNG) facilities and unquantified impacts (IEc 2020). The critical habitat stem from conservation activities, (11) space vehicle and missile largest portions of the estimated costs efforts that would not already be launches, and (12) U.S. Forest Service are associated with in-water

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construction and dredging activities (25 impacts on federally recognized tribes tribes in Washington, the Quinault to 33 percent of the total costs), and Alaska Native corporations as a Indian Nation and the Quileute Tribe, in aquaculture activities (27 to 30 percent), possible source of other impacts response to our initial outreach efforts. and commercial fisheries (14 to 15 relevant to the humpback whale critical Both tribes expressed concern regarding percent, IEc 2020). Estimated costs for habitat designation. A broad array of the potential impact of the critical each of the 19 habitat units and by each activities that occur on Indian lands habitat designation on tribal fisheries, of the 12 categories of Federal activities may trigger ESA section 7 consultations. particularly within usual and can be found in Exhibits 3–3 and 3–5 in Indian lands are those defined in accustomed fishing areas located in the FEA (IEc 2020). Secretarial Order 3206, ‘‘American coastal marine waters. We had multiple Parties that may incur the Indian Tribal Rights, Federal-Tribal follow-up communications with these administrative costs estimated in the Trust Responsibilities, and the tribes; however, neither tribe elected to analysis include NMFS, the Federal Endangered Species Act’’ (June 5, 1997), submit formal comment or information action agency (e.g., the agency and include: (1) Lands held in trust by regarding impacts on tribal resources or undertaking or permitting the activity), the United States for the benefit of any treaty rights, nor did they request and in some cases, a third-party Indian tribe; (2) land held in trust by the additional meetings or consultation. applicant, which may be a municipality, United States for any Indian tribe or Following publication of the proposed a private party, etc. Because section 7 individual subject to restrictions by the rule, we received several comments consultations regarding impacts to United States against alienation; (3) fee from tribes and requests for meetings. species or critical habitats under the lands, either within or outside the Specifically, we received a letter from jurisdiction of NMFS are primarily reservation boundaries, owned by the the Sun’Aq Tribe of Kodiak, stating that, between NMFS and Federal action tribal government; and (4) fee lands based on the available information, they agencies, the administrative costs of within the reservation boundaries did not believe the humpback whale consultation are largely borne by NMFS owned by individual Indians. critical habitat designation would and other Federal agencies and not, for In developing the proposed rule, we adversely impact the Kodiak example, by private entities or small did not find any overlap between the Archipelago economy. They also stated governmental jurisdictions. However, areas under consideration as critical that if the designations are finalized, some consultations may include third habitat and Indian lands, and thus annual consultations should be parties (e.g., project proponents or preliminarily found that there were no conducted to provide opportunities to landowners) that may be small entities, Indian lands subject to consideration for present any new information about and in some instances these third possible exclusion. In the proposed rule subsistence or economic impacts. We parties may bear some portion of the we also indicated that it was not clear received separate requests for meetings administrative consultation costs. whether there may be some nearshore from the Bristol Bay Marine Mammal Ultimately, the economic analysis found areas that could be considered for Council, the Aleut Marine Mammal that consultations on in-water and possible exclusion on the basis of tribal Commission, and the Indigenous coastal construction and aquaculture impacts, and that we lacked information People’s Council for Marine Mammals, activities may generate costs borne by regarding where boundaries of tribal- and we subsequently participated in small entities. All other activities are owned lands lie in relation to shoreward meetings with each organization to either not expected to involve small boundary of the specific critical habitat provide an overview of the proposed entities or are associated with no more areas in Alaska, which are generally designations and discuss particular than one consultation per year spread bounded by the 1-m isobath (relative to concerns regarding potential effects of across the entire critical habitat. As MLLW). We indicated that there are the designations on subsistence as well described in chapter 5 of the FEA, the Indian tribes and Alaska Native as commercial fishing. Lastly, we analysis anticipates approximately eight corporations that have lands that are in received a letter, dated January 13, 202, consultations on in-water and coastal close proximity to areas under from Shaan-Seet, Inc., the Alaska Native construction activities per year, six of consideration for designation as critical Village Corporation for Craig, Alaska, which are concentrated in critical habitat for humpback whales, have indicating that they had not been habitat Unit 10 in Alaska. This analysis usual and accustomed areas that overlap directly contacted about the proposed estimates that the small entities with critical habitat areas, or may rule, and that they opposed the involved in these consultations will otherwise be affected in coastal Alaska, designation of critical habitat in incur $5,200 in annualized Washington, Oregon, and California. Southeast Alaska. In February 2020, we administrative costs (IEc 2020). Thus, as described more fully in the contacted Shaan-Seet, Inc. to correct Additionally, the analysis projects 12 proposed rule, we reached out to 27 this oversight, and acknowledged that, consultations per year on aquaculture tribes located in Washington, Oregon, while the Craig Tribal Association was activities in Alaska, and estimates that and California, and 149 tribes and tribal on our contact list, Shaan-Seet, Inc. had third parties involved in these organizations located within Alaska to been inadvertently omitted from our list consultations will incur $5,300 in offer the opportunity to consult on of contacts and was thus not contacted annualized administrative costs (IEc critical habitat for humpback whales directly about publication of the 2020). (See ‘‘Initial Regulatory and discuss any concerns regarding the proposed rule. The Shaan-Seet, Inc. Flexibility Act’’ section of this potential designations. In the proposed president indicated that we should document for information regarding rule, we requested information contact the Craig Tribal Association to impacts on small entities.) regarding tribal impacts as a result of discuss any potential concerns further, the designations (54 FR 54354, October which we subsequently did. Tribal Impacts 9, 2019), and following publication of Ultimately, through our additional Section 4(b)(2) of the ESA and our the proposed rule, we contacted the outreach efforts following publication of regulations also provide for the potentially affected tribes and Native the proposed rule, we did not identify consideration of other relevant impacts corporations to solicit their input on the any specific tribal impacts that are associated with the designation of proposed designations. likely to result from the designation of critical habitat (16 U.S.C. 1533(b)(2); 50 As discussed in the proposed rule, we critical habitat for humpback whales, CFR 424.19(b)). We identified potential received requests for meetings from two nor did we receive any information

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indicating that the designations were required to) quantify or monetize and the level of use of the units by likely to result in impacts to tribal associated use and non-use economic whales of each particular DPS (see interests. Given the outcome of other benefits that would be attributable to a Appendix C, NMFS 2020a). The first aspects of our 4(b)(2) analysis and the critical habitat designation. Available dataset contained information about the decision to exclude Unit 10 (Southeast literature and data do not permit such feeding BIAs that have been identified Alaska) from the final critical habitat precise valuation. More information for humpback whales (see Ferguson et designation, the humpback whale about these types of benefits and values al. 2015a, c and Calambokidis et al. critical habitat will also not affect tribes may be found in chapter 4 of the FEA 2015). Rather than simply considering or Native corporations in Southeast (IEc 2020). presence/absence of a BIA, and to make Alaska. Thus, this rule does not contain It would be useful and informative if this information more comparable any exclusions of particular areas under the best available information allowed across units, the CHRT considered the section 4(b)(2) of the ESA based on the benefits of designation to be size of the BIAs relative to the size of impacts to tribes or Alaska Native monetized so they could be directly the particular critical habitat unit. corporations. compared to the economic benefits of Specifically, the CHRT calculated the excluding a particular area. However, percent of total area (km2) of a unit that Analysis of the Benefits of Designation sufficient and relevant data are not was covered by the BIA within that unit The primary benefit of critical habitat available to monetize the benefits of (Table C4, NMFS 2020a). The CHRT designation—and the only regulatory designation (e.g., estimates of the members considered this information in consequence—stems from the ESA monetary value of the protecting the light of the underlying data and section 7(a)(2) requirement that all feature within areas designated as approaches taken in delineating the Federal agencies ensure that their critical habitat, or the monetary value of BIAs in different geographic regions. actions are not likely to destroy or education and outreach benefits). Nor A second dataset addressed the adversely modify the designated habitat are some of the key values served by a presence of whales from each particular (16 U.S.C. 1536(a)(2)). This benefit is in designation (fulfilling the statutory DPSs within each critical habitat unit. addition to the section 7(a)(2) mandate, supporting the conservation of Several different pieces of information requirement that all Federal agencies the species) susceptible to direct were presented in this dataset. First, ensure their actions are not likely to quantification. For this reason, the ESA information regarding the level of jeopardize the species’ continued regulations recognize that benefits may survey effort (i.e., vessel days and existence. Another benefit of be quantitatively or qualitatively whether small boat surveys were designation is that it provides the described (50 CFR 424.19(b)). In conducted) and the total number of public, states, and others notice of areas addition, we cannot isolate and quantify unique humpback whales sighted and features important to species the effect that a critical habitat during the SPLASH study were conservation, and information about the designation would have on recovery of presented for each habitat unit. types of activities that may reduce the humpback whales separate from other Secondly, we calculated the percentage conservation value of or otherwise affect ongoing or planned conservation of whales identified as belonging to a the habitat. Critical habitat designation actions. It is also not possible to specific DPS within each specific may also lead to additional protections accurately predict the future harm to the habitat unit, out of the total number of under state or local regulations. habitat that would otherwise have been matched sightings of that DPS. (Matched In addition to the benefits of critical realized in the absence of a critical sightings are the total number of whales habitat designation to the whales, there habitat designation. Ultimately, given photo-identified in both breeding area may be ancillary benefits. These other these challenges and lack of sufficient and the critical habitat unit. Note that benefits may be economic in nature, or information, the associated incremental most whales sighted in feeding areas they may result in improvement of the use and non-use economic benefits of have not been matched to a particular ecological functioning of the designated designating particular areas of the DPS.) Third, we provided the areas. Chapter 4 of the FEA (IEc 2020) potential designation cannot be probabilities of whales from a particular discusses other forms of benefits that quantified. Therefore, we assessed the DPS moving from their winter, breeding may be attributed to the conservation benefits of designation using a area to a feeding area (critical habitat and recovery of humpback whales biologically-based analysis of the unit) as calculated by Wade (2017). (although not specifically attributed to specific areas. In this particular case, the These movement probabilities were the designation of critical habitat), CHRT considered relevant humpback derived from associated SPLASH data. including use benefits (e.g., for wildlife whale datasets to qualitatively rate the The feeding areas from the SPLASH viewing), non-use benefits (e.g., conservation impact or value for the study and from Wade (2017) represent existence values), and ancillary DPSs if a particular area is designated as larger geographic areas than the critical ecosystem service benefits (e.g., water critical habitat. These qualitative habitat units, so in many cases a given quality improvements and enhanced conservation value ratings were then movement probability applied to habitat conditions for other marine and used to represent the benefits of multiple, adjacent critical habitat units. coastal species). Humpback whales are designation. As presented in the Final Lastly, we compiled available also valued in terms of the utility gained Biological Report (NMFS 2020a), several documentation of whales from a specific from whale watching experiences. In changes were made to the datasets DPS occurring in each unit (i.e., Washington, Oregon, California, and considered by the CHRT in response to confirmed presence). These data came Alaska, humpback whales are sought by public comments, and the CHRT then from both the SPLASH study as well as whale watchers (IEc 2020). Whale watch repeated its analysis to systematically other references, a complete list of participants in these states generate tens assign a qualitative conservation value which is provided in the Final of millions of dollars in economic rating to each of the specific habitat Biological Report (see Table C5). activity annually (Pendelton 2006). units for each DPS. These compiled datasets, available Although humpback whales clearly In general, the multiple datasets literature summarized in the Final have significant value to people considered by the CHRT provided Biological Report, as well as the CHRT’s nationally and have economic value information about the importance of a individual expert opinions informed the regionally, we are unable to (and are not given area for humpback whale feeding structured decision-making process that

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the CHRT applied in assessing the members were given the opportunity to conservation value of the habitat, in relative conservation value of each independently re-evaluate their own light of the purpose of critical habitat specific area and for each DPS. As point distributions and make any under the Act (to support the discussed in more detail in the Final changes (if they elected to do so). The conservation, or recovery, of the Biological Report, before conducting the results of the CHRT’s assessment for species) and the statutory mandate to updated analysis, the CHRT discussed each of the habitat units are provided in designate critical habitat to the the various datasets to ensure consistent Tables 1–3 of the Final Biological maximum extent prudent and interpretation of the data, and discussed Report; complete results are also determinable. other references and studies beyond presented and discussed within the Overall, the projected economic SPLASH that should be brought to bear Final Biological Report (NMFS 2020). impacts to Federal agencies and non- in their assessment. The CHRT also We reviewed and agree with the Federal entities of designating each of discussed how to prioritize the relevant conclusions of the CHRT as presented in the 19 habitat units are considered low, information, to help ensure greater the Final Biological Report and used with annualized impacts ranging from consistency in terms of how each CHRT their conservation ratings of the specific $1,700–$32,000 per habitat unit (IEc member weighed the various data in areas to inform our section 4(b)(2) 2020). If all 19 units were designated, their assessment. For example, the analysis, as described in this rule as the total annualized impact is estimated primary consideration of the CHRT well as in the Final Section 4(b)(2) to range from $110,000 to $120,000 over members in determining the relative Report (NMFS 2020b). the next 10 years (IEc 2020). conservation value of a given habitat Exclusions Based on Economic Impacts WNP DPS unit to a given DPS was the degree to which whales of that DPS rely on that As is clear from the preceding Results of the biological and area for feeding. After reviewing the discussion, the conservation benefits to economic analyses (see Table 1) indicate data and process as a group, each the humpback whale DPSs that would that for the WNP DPS, habitat units member of the CHRT independently result from the designation of any rated as having very high or medium rated each habitat unit for each relevant particular critical habitat unit, conservation value are associated with DPS by distributing four ‘‘points’’ across expressed as a qualitative rating, are not annualized impacts ranging from the following four conservation value directly comparable to the economic $2,300–$2,700 (Unit 3, Shumagin categories for each of the critical habitat benefits that would result from Islands Area) to $4,600–$5,400 (Unit 5, units: exclusion of the particular unit from Kodiak Island Area). (Note there were (1) Very high—meaning areas where designation, which is expressed as a no high conservation values for the the available data indicate the area is quantified cost. However, to weigh the WNP DPS). Specific areas rated as very important to the conservation of benefits of designation against the having low conservation value for the the DPS; economic benefits of exclusion, we have WNP DPS were associated with (2) high—meaning areas where the to compare these two types of annualized impacts ranging from $2,600 available data indicate the area is information. As noted previously, the (Units 7, Kenai Peninsula Area and 9, important to the conservation of the Secretary has discretion to determine Northeastern Gulf of Alaska) to $5,600 DPS; the weight to assign to the relevant (Unit 6, Cook Inlet Area). After (3) medium—meaning the available factors and may exclude any particular reviewing the updated costs and the data indicate the area is moderately area from the critical habitat designation CHRT’s revised conservation values for important to the conservation of the upon a determination that the benefits each specific area, we concluded that DPS; and of such exclusion outweigh the benefits the economic impacts for the habitat (4) low conservation value—meaning of specifying the particular area as part units with very high and medium the available data suggest the DPS does of the critical habitat (50 CFR 424.19(c)). conservation ratings are not outweighed not rely on this area for feeding. The Secretary, however, cannot exclude by the relatively low costs attributed to CHRT members could place all four any particular area if, based on the best any of those units. We have confidence points for a given habitat unit and DPS scientific and commercial data in the data-driven process by which the in one of these qualitative categories or available, the Secretary determines that CHRT carefully evaluated and then re- spread those four points across any or the failure to designate that area as evaluated the relative conservation all of the four categories. The degree to critical habitat will result in the value of each critical habitat unit, and which votes were spread across the extinction of the species concerned (50 we therefore find that areas receiving conservation value categories thus CFR 424.19(c)). For this analysis, we these rating classifications are all of served as a measure of uncertainty in note that each of the units identified for moderate to very high importance to the the conservation value of a particular potential designation meet the conservation of the WNP DPS. In other unit. However, CHRT members were definition of critical habitat because words, these higher value feeding areas permitted to forego assigning their four they are in the occupied range of the are expected to support the life history votes for a specific critical habitat unit species and contain the identified needs and recovery of these whales. The if they concluded the available data physical or biological feature for which benefit of designating these important were either too limited or there was too we have determined that special feeding areas as critical habitat is not much uncertainty associated with the management considerations or outweighed by the relatively low available data to make an assessment of protection may be required; however, economic impacts projected to occur as the conservation value of a particular the areas vary as to the level of their a result of their designation. For areas area for the given DPS. In these conservation value for the species. We rated as having a low conservation instances the CHRT members were (exercising the delegated authority of value, however, we continue to find that allowed to instead categorize the unit as the Secretary) determined that the the economic impacts, though still ‘‘data deficient.’’ conservation benefits of including areas objectively low, outweigh the benefits of Following an initial round of scoring, with medium, high, or very high including them in the designation. By the CHRT met to discuss their conservation ratings should have definition, these low value habitat units, assessments of the data and results. significant weight in this analysis. It is based on the CHRT’s assessment of the Following that team discussion, CHRT reasonable to give great weight to the best available data, are areas the WNP

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DPS whales are not expected to rely on considering the outcome of the CHRT’s This medium/low area does not contain as extensively for feeding given the very assessment and the available a BIA and the documented occurrence low occurrence or predicted occurrence information regarding the documented of whales from the CAM DPS in this of WNP DPS whales in the area relative distribution of WNP DPS whales as area is lower relative to habitat units to other areas with higher conservation summarized in the Final Biological farther south in the CCE. However, as value. Even though the estimated Report, we conclude that the discussed previously, the predicted annualized impacts only ranged from conservation benefit of designating Unit movement probabilities for whales of $2,600–$5,600 across all of the low 1 for the WNP DPS is outweighed by the the CAM DPS whales to this general conservation value areas for the WNP economic impact of designating this area are high (Wade 2017), and recent DPS, we find that these costs outweigh area, although it is relatively low evidence from satellite-tagged whales the minimal conservation benefits to the (annualized impact of $2,300). Given indicate this is an important feeding WNP DPS whales of designating these the available data indicating that WNP area for humpback whales (Palacios et areas. Because this DPS does not rely as DPS whales primarily use other feeding al. 2020). Overall, the CHRT concluded extensively on these areas for feeding, or areas, including areas outside U.S. that the conservation value of this unit in the case of Unit 1, is not known to waters, we also conclude that exclusion for the endangered CAM DPS is not out- rely on the area for feeding, we continue of this particular area will not result in weighed by the low estimated economic to find that exclusion of these areas will extinction of this DPS. Therefore, the impacts ($6,900, Table 2). not result in the extinction of this DPS final critical habitat designation for the Consistent with the proposed rule, we (see Section 4(b)(2) Report). Therefore, WNP DPS does not include Unit 1— continue to find that the benefits of consistent with the exclusions Bristol Bay Area. designating the habitat unit rated as identified in the proposed rule, the final We note, however, that historical having low conservation value for the critical habitat designation for the WNP whaling data as well as more recent CAM DPS (i.e., Unit 19, California South DPS excludes the following areas: Unit survey data indicate that humpback Coast), are outweighed by the estimated 4—Central Peninsula Area, Unit 6— whales use this area, which may become economic impacts of designation, which Cook Inlet, Unit 7—Kenai Peninsula increasingly important feeding habitat are estimated to range from $5,500– Area, Unit 8—Prince William Sound for humpback whales as changing ocean $5,700 (annualized). Unit 19 is not Area, and Unit 9—Northeastern Gulf of conditions alter the distributions and recognized as important feeding habitat Alaska. abundances of important or quality prey for humpback whales and does not or as the DPSs recover. Because most of contain a feeding BIA. Waters off the Based on the CHRT’s reassessment of this area has been poorly surveyed, and southernmost portion of the California relative conservation values of the because we have an inadequate coast (i.e., Unit 19) also have the lowest specific areas for the WNP DPS, Unit 1 understanding of the importance of this predicted abundance of humpback (Bristol Bay Area) was rated as being area to ESA-listed humpback whales, whales during summer months as well ‘‘data deficient.’’ This outcome was the the CHRT recommended that research as during cooler months (Becker et al. result of the careful review of the efforts should be directed towards 2016 and 2017; see Figure 17, NMFS available data and refinement of the surveying humpback whales in this 2020a). Because this area, which underlying dataset used during the particular portion of the range. comprises 12,966 nmi2 of marine CHRT’s reassessment, which are habitat, is small relative to the overall CAM DPS provided in the Final Biological Report designation, which extends over 48,521 (NMFS 2020a; see also response to Results of the biological and nmi2 of marine waters off of Comment 30. Specifically, the available economic analyses (see Table 2) indicate Washington, Oregon, and California, we data regarding predicted movement that for the CAM DPS, habitat units find that exclusion of this habitat unit probabilities (i.e., Wade 2017), which rated as having very high, high, and from the critical habitat designation for were derived from SPLASH data, were medium conservation value are the CAM DPS will not result in found to not be applicable to Unit 1. associated with annualized impacts extinction of this DPS.; Therefore, this While the available data indicate the ranging from $1,700 (Unit 15, California unit is excluded from the final critical eastern Bering Sea is part of the North Coast) to $10,000 (Unit 13, habitat designation for the CAM DPS. occupied range of WNP DPS whales, Coastal Oregon). Consistent with our this area was not sampled during the conclusions in the proposed rule, we do MX DPS SPLASH study, and no other photo- not find that the relatively low Results of the biological and identification data are available to estimated economic impacts outweigh economic analyses (see Table 3) indicate determine relative use of this particular the benefits of designating these higher that for the MX DPS, habitat units rated area by this DPS (versus other conservation value areas for the CAM as having very high and high humpback whales). Refining the DPS. These feeding areas are expected conservation value are associated with interpretation of data in this way led the to contribute to supporting the overall annualized impacts ranging from $1,700 CHRT to conclude that it was not life history and conservation of these (Unit 15, California North Coast) to possible on the basis of the best endangered whales. We do not find that $10,000 (Unit 13, Coastal Oregon). Areas available information to assess the the benefits of designating these areas as rated as having medium conservation relative conservation value of this area, critical habitat are outweighed by the value are associated with annualized which had previously been assigned a relatively low economic impacts costs ranging from $3,400 (Unit 8, rating of high conservation value for the projected to occur as a result of their Prince William Sound) to $8,200 (Unit WNP DPS (based largely on the designation. One area was rated as 11, Coastal Washington). In no instance extrapolation of results of Wade (2017) medium/low (Unit 12, Columbia River were these estimated economic impacts to this area and the presence of a BIA). Area) as a result of a tie in the votes found to outweigh the value of these Ultimately, the majority of the CHRT from the CHRT (i.e., half of the votes areas to the conservation of the MX concluded that, based on the very were cast for low and the other half DPS. These higher conservation value limited data, the extent to which WNP were cast for medium conservation areas, which are located within all of DPS whales rely on this area for feeding value), and is associated with an the regions known to be used as feeding could not be reliably assessed. After estimated annualized cost of $6,900. habitat by the MX DPS (i.e., Aleutian

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Islands/Bering Sea, Gulf of Alaska, CCE) area for feeding. Each of these three ‘‘data deficient.’’ As discussed are expected to play an important role areas has low documented occurrences previously for the WNP DPS, the basis in supporting the life history needs and and/or low predicted occurrences of MX for this outcome was the revision to the conservation of this DPS. DPS, and two of these areas (Units 4 and data and approach used by the CHRT in Areas rated as having low 6) do not include a feeding BIA. Unit 10 their reassessment of the relative conservation value for the MX DPS also (Southeast Alaska), however, contains a conservation value of each specific area, occur within all of the regions used by large BIA and supports feeding by a which is discussed in more detail in the this DPS and are associated with large number of humpback whales, Final Biological Report (NMFS 2020a). estimated annualized impacts ranging which influenced the CHRT’s initial In particular, while the available data from $2,600 (Units 7 and 9) to $32,000 assessment. The CHRT’s reassessment indicate the eastern Bering Sea is part of (Unit 10). Consistent with the proposed placed less weight on presence of the the occupied range of MX DPS whales, rule and conclusions for other DPSs, we BIA, and placed greater emphasis on the this area was not sampled during the find that the benefits of designating the data indicating that the large majority of SPLASH study, and no other photo- habitat units rated as having low whales using this BIA are from the non- identification data are available to conservation value are outweighed by listed Hawaiian population, while only determine relative use of this particular the forecasted economic impacts a small percentage of MX DPS whales area by whales from this DPS (versus associated with their designation. These use or are predicted to use this general other humpback whales). Although this low conservation value areas are areas area (Barlow et al. 2011, Wade 2017). In area had previously been assigned a that whales of this DPS are not expected addition, the revised economic analysis rating of high conservation value for the to rely on as extensively for feeding, as indicates that the largest portion of the MX DPS (based largely on the indicated by their very low occurrence quantified, annualized impacts extrapolation of results of Wade (2017) or predicted occurrence in these areas. ($26,000–$32,000) as well as the to this area and the presence of a BIA), Thus, based on the currently available potential, non-quantified economic ultimately, the majority of the CHRT information for the MX DPS, these areas impacts (e.g., project delays) are concluded that, based on the very likely have minimal conservation value associated with this Unit. limited data, the extent to which MX for this DPS, which we find is Based on the best available data and DPS whales are relying on this area for outweighed by the projected economic the revised analyses, for each of these feeding could not be reliably assessed. impacts, although they are low. For three, additional low conservation value After considering the outcome of the Units 7, 9, and 19, this finding is areas (Units 4, 6, and 10) and the other CHRT’s assessment and the available consistent with our conclusions in the three low conservation value areas information regarding the documented proposed rule, which includes addition (Units 7, 9, and 19), we conclude that distribution of MX DPS whales as discussion regarding exclusion of these the benefits of designating the area are summarized in the Final Biological particular areas. outweighed by the estimated economic Report, we conclude that the Based on the results of the CHRT’s impacts associated with their conservation benefit of designating Unit reassessment of relative conservation designation. Given the large area 1 for the MX DPS is outweighed by the value, three additional habitat units included in the designation, the economic impact of designating this now fall into this low conservation documented distribution of MX DPS area, although low (annualized impact value category for the MX DPS—Unit 4 whales, and the current status of this of $2,300). Given the available data (Central Peninsula Area), Unit 6 (Cook threatened DPS, we also conclude that indicating that MX DPS whales Inlet Area), and Unit 10 (Southeast exclusion of the low conservation value primarily use other feeding areas and Alaska). Each of these three areas, all of areas from critical habitat will not result the status of this DPS as threatened which are located in waters off Alaska, in extinction of the MX DPS. Therefore, rather than endangered, we also were rated as medium conservation we are excluding the following six areas conclude that exclusion of this value based on the CHRT’s initial from the final critical habitat particular area will not result in assessment leading to the proposed rule. designation for the MX DPS: Unit 4— extinction of this DPS. Therefore, the As noted previously, and as presented Central Peninsula Area, Unit 6—Cook final critical habitat designation for the in detail in the Final Biological Report Inlet Area, Unit 7—Kenai Peninsula MX DPS does not include Unit 1— and Summary of Changes (see also Area, Unit 9—Northeastern Gulf of Bristol Bay Area. As noted previously, response to Comment 30), we revised Alaska, Unit 10—Southeast Alaska, and the CHRT recommended that future the datasets applied by the CHRT during Unit 19—California South Coast. research effort be directed at improving their reassessment of relative Based on the CHRT’s reassessment of our understanding of this potentially conservation value and placed greater relative conservation values of the important habitat for humpback whales emphasis on the degree to which whales specific areas for the MX DPS, Unit 1 generally and for ESA-listed humpback of each specific DPS are relying on each (Bristol Bay Area) was rated as being whales in particular.

TABLE 1—CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF CRITICAL HABITAT CONSID- ERED FOR THE WNP DPS OF HUMPBACK WHALES

Annualized Unit No. Area Conservation rating impacts

1 ...... Bristol Bay Area ...... data deficient ...... $2,300 2 ...... Aleutian Islands Area ...... very high ...... 2,600–4,400 3 ...... Shumagin Islands Area ...... Medium ...... 2,300–2,700 4 ...... Central Peninsula Area ...... Low ...... 2,600–2,800 5 ...... Kodiak Island Area ...... Medium ...... 4,600–5,400 6 ...... Cook Inlet Area ...... Low ...... 5,200–5,600 7 ...... Kenai Peninsula Area ...... Low ...... 2,600

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TABLE 1—CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF CRITICAL HABITAT CONSID- ERED FOR THE WNP DPS OF HUMPBACK WHALES—Continued

Annualized Unit No. Area Conservation rating impacts

8 ...... Prince William Sound Area ...... Low ...... 3,400 9 ...... Northeastern Gulf of Alaska ...... Low ...... 2,600

TABLE 2—CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF CRITICAL HABITAT CONSID- ERED FOR THE CAM DPS OF HUMPBACK WHALES

Annualized Unit No. Unit name Conservation rating impacts

11 ...... Coastal Washington ...... Medium ...... $7,500–$8,200 12 ...... Columbia River Area ...... medium/low ...... 6,900 13 ...... Coastal Oregon ...... Medium ...... 9,500–10,000 14 ...... Southern Oregon/Northern California ...... High ...... 2,600 15 ...... California North Coast ...... High ...... 1,700 16 ...... San Francisco/Monterey Bay Area ...... very high ...... 3,000 17 ...... California Central Coast ...... very high ...... 7,900 18 ...... Channel Islands Area ...... very high ...... 3,900 19 ...... California South Coast ...... Low ...... 5,500–5,700

TABLE 3—CONSERVATION RATINGS AND ESTIMATED, INCREMENTAL, ANNUALIZED ECONOMIC IMPACTS ASSOCIATED WITH SECTION 7 CONSULTATIONS OVER THE NEXT 10 YEARS FOR THE SPECIFIC AREAS OF CRITICAL HABITAT CONSID- ERED FOR THE MX DPS OF HUMPBACK WHALES

Annualized Unit No. Area Conservation rating impacts

1 ...... Bristol Bay Area ...... data deficient ...... $2,300 2 ...... Aleutian Islands Area ...... very high ...... 2,600–4,400 3 ...... Shumagin Islands Area ...... High ...... 2,300–2,700 4 ...... Central Peninsula Area ...... Low ...... 2,600–2,800 5 ...... Kodiak Island Area ...... very high ...... 4,600–5,400 6 ...... Cook Inlet Area ...... Low ...... 5,200–5,600 7 ...... Kenai Peninsula Area ...... Low ...... 2,600 8 ...... Prince William Sound Area ...... Medium ...... 3,400 9 ...... Northeastern Gulf of Alaska ...... Low ...... 2,600 10 ...... Southeastern Alaska ...... Low ...... 26,000–32,000 11 ...... Coastal Washington ...... Medium ...... 7,500–8,200 12 ...... Columbia River Area ...... Medium ...... 6,900 13 ...... Coastal Oregon ...... High ...... 9,500–10,000 14 ...... Southern Oregon/Northern California ...... High ...... 2,600 15 ...... California North Coast ...... High ...... 1,700 16 ...... San Francisco/Monterey Bay Area ...... very high ...... 3,000 17 ...... California Central Coast ...... High ...... 7,900 18 ...... Channel Islands Area ...... High ...... 3,900 19 ...... California South Coast Area ...... Low ...... 5,500–5,700

Exclusions Based on National Security justification, we deferred to their expert a potential critical habitat designation, Impacts judgement as to: (1) Whether activities we also considered the following: (1) Based on the written information on its lands or waters, or its activities on The size of the requested exclusion and provided by the Navy in December 2018 other lands or waters, have national the percentage of the specific critical and information provided through security or homeland-security habitat area(s) that overlaps with the subsequent discussions with Navy implications; (2) the importance of those Navy area; (2) the relative conservation representatives, we evaluated whether implications; and (3) the degree to value of the specific area for each there was a reasonably specific which the cited implications would be particular humpback whale DPS; (3) the justification indicating that designating adversely affected by the critical habitat likelihood that the Navy’s activities certain areas as critical habitat would designation. In conducting a review of would destroy or adversely modify have a probable incremental impact on these exclusion requests under section critical habitat, and the likelihood that national security. In accordance with 4(b)(2) of the ESA, we also gave great NMFS would require project our 4(b)(2) Policy (81 FR 7226, 7231 weight to the Navy’s national-security modifications to reduce or avoid these February 11, 2016), in instances where concerns. To weigh the national security impacts; and (4) the likelihood that the Navy provided a reasonably specific impacts against conservation benefits of other Federal actions may occur in the

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site that would not be subject to the benefits of excluding the QRS due to area (i.e., QRS with the modified buffer)) critical habitat provision if the national security impacts outweighs the from the designations will not result in particular area were excluded from the benefits of designating this portion of extinction of either the CAM or MX designation. Unit 11 as critical habitat for the MX DPS. We note that should the Navy’s After considering the information and CAM DPSs. Upon further review of requirements change in such a manner provided by the Navy regarding the requested buffer exclusion, however, that materially affects how it will potential impacts on national security and as discussed previously (see conduct activities within the QRS, the stemming from the designation of a response to Comment 40), we Navy will provide NMFS with an portion of Unit 11 as critical habitat, we determined the benefit of excluding this updated explanation of impacts to found that the Navy had provided a area on the basis of a national security national security, and we will reasonably specific justification for their impact does not outweigh the benefit of reconsider whether those impacts requested exclusion of the area designating critical habitat in a portion outweigh the benefits of designating a overlapping with the QRS as well the of the 10-km buffer extending from the small portion of the 10-km buffer as 10-km buffer surrounding the QRS. The northeast corner of the QRS where it critical habitat. requested exclusion comprises about 44 overlaps with the OCNMS. The Navy We considered the information percent of the area of Unit 11, which does not currently use or currently plan provided by the Navy concerning was rated as having a medium to use explosives in the northeast corner potential impacts on national security conservation value for the CAM DPS of the QRS; therefore, potential impacts stemming from the designation of Unit and a medium conservation value for to the humpback whale critical habitat 19 as critical habitat, and found that the the MX DPS. The requested exclusion are unlikely to extend into the OCNMS. Navy had provided a reasonably specific comprises a very small portion of the The Navy provided additional justification for the requested exclusion. total critical habitat designations for the information to NMFS clarifying the We considered the information CAM DPS (about 3 percent) and the MX impact to national security should the provided by the Navy regarding the DPS (about 1.3 percent). To more full 10-km buffer around the QRS not be nature and types of training and testing precisely gauge the value of the specific excluded from designation as critical activities that occur within SOCAL (e.g., QRS area (including the buffer) to the habitat. The Navy noted that the current anti-submarine warfare, torpedo, mine whales, we reviewed the overlap of the limitation on conducting underwater countermeasure, gun, missile and QRS with the location of the BIA and explosives in this portion of the QRS is rocket, and propulsion testing) to the predicted whale densities from evaluate their potential to affect Becker et al. (2016), which modeled based on mitigation measures the Navy predicted densities in approximately 10 proposed in its NWTT SEIS (September humpback whale critical habitat. We km by 10 km grid cells. Those 2020) and associated ESA and MMPA also reviewed the discussions about comparisons indicated that the QRS is compliance documentation, which particular impacts provided in the entirely outside of, and south of, the preclude the use of all underwater Navy’s 2018 Final Environmental BIA, and overlaps only partially with explosives for training and testing Impact Statement for Hawaii-Southern the area where the highest densities of within 50 nmi from shore, with the California Training and Testing (e.g., humpback whales are predicted to occur exception of mine countermeasures impacts to fish and invertebrates). We within Unit 11. In other words, an neutralization activities, which occur in agree with the Navy’s assessment that exclusion of the QRS and buffer area the QRS where it does not overlap with the activities that occur in SOCAL, would remove from the designation the OCNMS. Navy concluded it was many of which occur with high only a small amount of the practicable to implement this frequency, have the potential to impact comparatively high use locations within restriction; however, all Navy mitigation humpback whale prey species, with the Unit 11. The Navy also indicated that measures allow for deviations (in degree of impact depending on the while they do not control access to this consultation with NMFS) if driven by nature of the particular activity. We also area, they do exert significant influence new and immediate national security considered that Unit 19, about 83 in terms of limiting other Federal requirements. Further, the Navy reviews percent of which overlaps with the activities within the QRS. The QRS and its mitigation measures annually and SOCAL range complex, had been associated buffer also have a significant can modify those mitigation measures as assessed as having low conservation degree of overlap with the OCNMS, driven by evolving military readiness value to both the MX and CAM DPSs of where certain activities are prohibited, requirements, also in consultation with humpback whales. Given the low including oil, gas, or mineral NMFS. The Navy stated that because conservation value rating this area exploration, development, or techniques and tactics needed for received for each DPS, we conclude that production; discharging or depositing national security can rapidly evolve, it the benefits of excluding SOCAL any material or other matter; drilling is possible that modifications to current outweigh the benefits of including it in into, dredging, or otherwise altering the activities and the development of new either designation. Overall, we concur seabed, with some exceptions (15 CFR technologies will require testing in areas with the Navy that designation of this 922.152). Because of these prohibitions, that may not be currently utilized for portion of Unit 19 would likely have we find that the likelihood of other underwater explosives. Thus, we find national security impacts that outweigh Federal activities being proposed in this that, while there are national security the benefits of designating this low area of the QRS is low. impacts as described by the Navy, conservation value area. Further, as Overall, in light of the Navy’s benefits of excluding this area do not indicated previously, we also conclude substantial and specific concerns outweigh the conservation benefits of that exclusion of all of Unit 19 from the regarding the potential impact of a designating this particular area as critical habitat designations will not critical habitat designation on their critical habitat for both the MX and result in the extinction of either the unique testing and training activities CAM DPSs. Given the small size of this CAM or MX DPS. Thus, even though we that occur within the QRS and the particular area relative to the overall have separately determined to exclude potential delay in critical missions in designations and the medium all of Unit 19 based on economic order to complete adverse modification conservation value of this area for both impacts, we are also making an analyses, we determined that the DPSs, we conclude that excluding this independent determination to exclude

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the subset of this area that the DOD we exclude the QRS and its associated documented distribution of MX DPS requested be excluded on the basis of 10-km buffer (which does not extend whales, and the current status of this national security impacts. beyond 10-km into the OCNMS) off the threatened DPS. The designation does coast of Washington based on our not include areas within the footprint of Final Critical Habitat Designations finding that the benefits of exclusion the SNI INRMP (around Begg Rock) and We find that designation of critical (i.e., avoiding the probable national of the NBVC Point Mugu INRMP (i.e., habitat for these DPSs of humpback security impacts) outweigh the benefits waters around San Miguel and Prince whales is both determinable and of specifying this area as part of the Islands), as these areas are ineligible for prudent. For the reasons discussed in critical habitat. We find on the basis of designation as critical habitat under our proposed rule and the foregoing the best scientific and commercial data section 4(a)(3)(B)(i) of the ESA. We are sections of this final rule, we determine available that these exclusions will not not designating any unoccupied areas the critical habitat for each DPS on the result in the extinction of this DPS for the MX DPS. basis of the best scientific data available because these areas are small relative to None of the designations in this rule and after taking into consideration the the overall designation and current include manmade structures (e.g., ferry economic impact, the impact on extinction risk for this DPS is largely docks, sea plane facilities) or the land national security, and other relevant driven by other threats (e.g., ship on which they rest and that are in impacts, as follows: strikes). The designation does not existences as of the effective date of this For the endangered WNP DPS of include areas within the footprint of the rule. humpback whales, we designate 2 SNI INRMP (around Begg Rock) and of Effects of Critical Habitat Designations approximately 59,411 nmi of marine the NBVC Point Mugu INRMP (i.e., habitat off the coast of Alaska as waters around San Miguel and Prince Section 7(a)(2) of the ESA requires Federal agencies, including NMFS, to occupied critical habitat. The Islands), as these areas are ineligible for designation encompasses Units 2, 3, and ensure that any action authorized, designation as critical habitat under 5 as shown in Figure 1. The specific funded or carried out by the agency section 4(a)(3)(B)(i) of the ESA. We are areas included in the designation are (agency action) is not likely to not designating any unoccupied areas seasonal feeding habitat that is occupied jeopardize the continued existence of for the CAM DPS. by the WNP DPS whales and contain the any threatened or endangered species or biological prey feature that is essential For the threated MX DPS of destroy or adversely modify designated to their conservation and that we find humpback whales, we designate critical habitat. Federal agencies must may require special management 116,098 nmi2 of marine habitat off the consult with us on any proposed agency considerations or protection. We have coasts of Alaska, Washington, Oregon, action that may affect the listed species excluded 6 particular areas from this and California as occupied critical or its critical habitat. During interagency designation pursuant to ESA section habitat. The designation encompasses consultation, we evaluate the agency 4(b)(2) based on our finding that the Units 2, 3, 5, 8, part of Unit 11, and action to determine whether the action benefits of exclusion (i.e., avoiding the Units 12–18 as shown in Figure 1. The may adversely affect listed species or probable economic impacts) outweigh areas being designated are seasonal critical habitat and, where there is likely the benefits of specifying these areas as feeding areas that are occupied by the to be an adverse effect, we issue our part of the critical habitat, and we find MX DPS and contain the biological prey finding in a biological opinion. The on the basis of the best scientific and feature that is essential to their potential effects of a proposed action commercial data available that these conservation and that we find may may depend on, among other factors, exclusions will not result in the require special management the specific timing and location of the extinction of the species, because the considerations or protection. We action relative to seasonal presence of excluded areas are not known to serve exclude from the designation 6 areas off essential features or seasonal use of as important feeding habitat for this the coast of Alaska based on our finding critical habitat by the listed species for DPS. We are not designating any that the benefits of exclusion (i.e., essential life history functions. While unoccupied areas for the WNP DPS. avoiding the probable economic the requirement to consult on an action For the endangered CAM DPS of impacts) outweigh the benefits of that may affect critical habitat applies humpback whales, we designate specifying these areas as part of the regardless of the season, NMFS approximately 48,521 nmi2 of marine critical habitat, and we exclude one area addresses the varying spatial and habitat off the coasts of Washington, off the coast of southern California temporal considerations when Oregon, and California as occupied based on our finding that the benefits of evaluating the potential impacts of a critical habitat. The designation exclusion (i.e., avoiding both the proposed action during consultation encompasses part of Unit 11 and Units probable economic and national using the best available scientific and 12–18 as shown in Figure 1. The areas security impacts) outweigh the benefits commercial information. If we conclude being designated are seasonal feeding of specifying this area as part of the in the biological opinion that the agency habitat that is occupied by the CAM critical habitat. We also exclude the action would likely result in the DPS and contain the biological prey QRS and its associated 10-km buffer destruction or adverse modification of feature that is essential to their (which does not extend beyond 10-km critical habitat, we would also conservation and that may require into the OCNMS) off the coast of recommend any reasonable and prudent special management considerations or Washington based on our finding that alternatives to the action that would protection. We exclude from the the benefits of exclusion (i.e., avoiding avoid destruction or adverse designation approximately 12,966 nmi2 the probable national security impacts) modification. off the coast of southern California (i.e., outweigh the benefits of specifying this Reasonable and prudent alternatives Unit 19) pursuant to ESA section 4(b)(2) area as part of the critical habitat. We are defined in 50 CFR 402.02 as based on our finding that the benefits of find on the basis of the best scientific alternative actions identified during exclusion (i.e., avoiding the probable and commercial data available that formal consultation that can be economic and national security impacts) these exclusions will not result in the implemented in a manner consistent outweigh the benefits of specifying this extinction of this DPS given the large with the intended purpose of the action, area as part of the critical habitat, and area included in the designation, the that are consistent with the scope of the

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Federal agency’s legal authority and alteration that appreciably diminishes to habitat and to humpback whale prey jurisdiction, that are economically and the value of critical habitat as a whole species would in most instances have technologically feasible, and that would for the conservation of a listed species.) been assessed in the original avoid the destruction or adverse A wide variety of activities may affect consultation. We are committed to modification of critical habitat. The the critical habitats and may be subject working closely with other Federal Service may also provide with the to the ESA section 7 consultation agencies to conduct any reinitiated biological opinion a statement processes when carried out, funded, or consultations in an efficient and containing discretionary conservation authorized by a Federal agency. These streamlined manner to the maximum recommendations. Conservation include: (1) Federal fisheries, (2) oil and extent possible and consistent with our recommendations are advisory and are gas activities (including seismic statutory and regulatory requirements. not intended to carry any binding legal surveys, and oil spill planning and force. response), (3) alternative energy References Cited Regulations at 50 CFR 402.16 require development, (4) in-water construction A complete list of all references cited Federal agencies that have retained (including dredging and offshore in this proposed rule can be found on discretionary involvement or control mining), (5) vessel traffic activities our website (www.fisheries.noaa.gov/ over an action, or where such (largely, the establishment of the species/humpback-whale; click on ‘‘see discretionary involvement or control is shipping lanes by the USCG, and regulatory actions’’), and is available authorized by law, to reinitiate maintenance and replacement of aids to upon request from the NMFS Office of consultation on previously reviewed navigation by the USCG), (6) Protected Resources (see FOR FURTHER actions in instances where, among other aquaculture and hatcheries, (7) military INFORMATION CONTACT). situations: (1) New information reveals activities, (8) LNG terminal activities, effects of the action that may affect (9) space vehicle and missile launches, Classifications listed species or critical habitat in a (10) water quality management and in- National Environmental Policy Act manner or to an extent not previously land activities (including pesticide We have determined that an considered; (2) the identified action is registration, establishment of water subsequently modified in a manner that quality standards, and Clean Water Act environmental analysis as provided for causes an effect to the listed species or general permits), (11) U.S. Forest under the National Environmental critical habitat that was not considered Service activities (related to timber and Policy Act of 1969 for critical habitat in the biological opinion or written forest management), and (12) scientific designations made pursuant to the ESA concurrence; or (3) a new species is research. Section 7 consultations must is not required. See Douglas County v. listed or critical habitat designated that be based on the best scientific and Babbitt, 48 F.3d 1495 (9th Cir. 1995), may be affected by the identified action commercial information available when cert. denied, 116 S. Ct. 698 (1996). (50 CFR 402.16(a)(2)–(4)). Consequently, they are undertaken, and outcomes are Regulatory Flexibility Act some Federal agencies may request case-specific. Inclusion (or exclusion) Under the Regulatory Flexibility Act reinitiation of consultation with NMFS from this list, therefore, does not on actions for which formal predetermine the occurrence or outcome (RFA) (5 U.S.C. 601 et seq.), as amended consultation has been completed, if of any consultation. by the Small Business Regulatory those actions may affect designated Private or non-Federal entities may Enforcement Fairness Act (SBREFA) of critical habitat for the WNP, CAM, or also be affected by the critical habitat 1996, whenever an agency publishes a MX DPSs of humpback whales. designations if there is a Federal nexus notice of rulemaking for any proposed Activities subject to the ESA section in that, for example, a Federal permit is or final rule, it must prepare and make 7 consultation process include activities required, Federal funding is received, or available for public comment a on Federal lands, as well as activities the entity is involved in or receives regulatory flexibility analysis that requiring a permit or other authorization benefits from a Federal project. These describes the effects of the rule on small from a Federal agency (e.g., a section activities would need to be evaluated entities (i.e., small businesses, small 10(a)(1)(B) permit from NMFS), or with respect to their potential to destroy organizations, and small government another Federal action, including or adversely modify humpback whale jurisdictions). We have prepared a final funding (e.g., Federal Emergency critical habitat. regulatory flexibility analysis (FRFA), Management Agency funding). ESA The critical habitats for humpback which is provided in chapter 5 of the section 7 consultation would not be whales do not include any manmade FEA (IEc 2020). Responses to comments required for Federal actions that would structures and the land on which they on this document are provided earlier in not affect listed species or critical rest within the described boundaries the preamble to the rule, and any habitat, and would not be required for that were in existence by the effective necessary changes were made to the actions on non-Federal and private date of this rule. While these structures/ FRFA. Results of the FRFA are lands that are not carried out, funded, areas would not be directly affected by summarized below. or authorized by a Federal agency. designation, they may be affected if a As discussed previously in this Federal action associated with the preamble and in our FRFA (see chapter Activities That May Be Affected structure/area (e.g., a discharge permit 5 of IEc 2020), the designation of critical ESA section 4(b)(8) requires, to the from the Environmental Protection habitat is required under the ESA to the maximum extent practicable, in any Agency) may impact the critical habitat. maximum extent prudent and final regulation to designate critical For ongoing activities, these determinable. This critical habitat rule habitat, an evaluation and brief designations of critical habitat may does not directly apply to any particular description of those activities (whether trigger reinitiation of past consultations. entity, small or large. The rule will public or private) that may adversely Although we cannot predetermine the operate and have regulatory effect only modify such habitat or that may be outcome of section 7 consultations, we in conjunction with ESA section 7(a)(2), affected by such designation. (The term do not anticipate at this time that the which requires that Federal agencies ‘‘destruction or adverse modification’’ of outcome of reinitiated consultations ensure, in consultation with NMFS, that critical habitat is defined in 50 CFR would likely require additional any action they authorize, fund, or carry 402.02, and means a direct or indirect conservation measures, because effects out is not likely to jeopardize the

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continued existence of listed species or associated reports may be included in aquaculture activities include Shellfish destroy or adversely modify designated these administrative costs. In addition, Farming and Other Aquaculture. The critical habitat. Consultations may result after the section 7 consultation process, FRFA identified 25 small government in economic impacts to Federal agencies as a requirement of the funding or jurisdictions (i.e., jurisdictions with and proponents of proposed actions permit received from the Federal action populations of less than 50,000 people) (e.g., permittees, applicants, grantees). agency, entities may be required to adjacent to critical habitat units that Those economic impacts may be in the monitor progress during the activity to may be involved in future consultations. form of administrative costs of ensure that impacts to the habitat and However, nine of these areas—Juneau participating in a section 7 consultation features have been minimized. The rule City and Borough, Sitka City and and, if the consultation results in does not directly mandate ‘‘reporting’’ Borough, Haines Borough, Ketchikan required measures to protect critical or ‘‘record keeping’’ within the meaning Gateway Borough, Prince of Wales- habitat, project modification costs. As of the Paperwork Reduction Act (PRA). Hyder Census Area, Skagway discussed previously and as detailed in The rule does not impose record Municipality, Hoonah-Angoon Census chapters 2 and 3 of the FEA, keeping or reporting requirements on Area, Wrangell City and Borough, and incremental impacts associated with small entities. Petersburg Borough—are adjacent to the this rulemaking that can be monetized With the exception of in-water and excluded Unit 10. are expected to be limited to coastal construction and aquaculture The FRFA estimates that up to 12 administrative costs associated with activities (which we discuss in the next small aquaculture businesses per year section 7 consultations. paragraph), all other categories of may bear costs associated with This rule does not duplicate or Federal activities addressed in the FEA participation in consultations regarding conflict with any other laws or (e.g., commercial fishing, oil and gas, humpback whale critical habitat. The regulations. However, the protection of alternative energy, aquaculture, LNG total annualized administrative costs listed species and designated critical facilities, water quality management, that may be borne by these small habitat may overlap with other sections and scientific research), are expected to entities engaged in aquaculture of the ESA. The protections afforded to result in negligible costs to third parties activities is $5,300 (discounted at seven threatened and endangered species and in related industries. For each of these percent), half of which would be their habitat are described in sections 7, other activities, one or fewer incurred in Unit 10. This estimate 9, and 10 of the ESA. This final consultations are anticipated per year represents the third-party applicant determination to designate critical spread across all of the specific areas costs associated with 12 informal habitat requires Federal agencies to that were considered for designation as consultations. The Alaska Mariculture consult, pursuant to section 7 of the critical habitat. As a result, for each of Development Plan states that sales ESA, with NMFS on any activities the these activities the annualized across all aquatic farm operations Federal agency funds, authorizes, or incremental cost that may be borne by totaled $1.23 million in 2016. These carries out, including permitting, small entities is estimated to be less revenues were spread across 29 different approving, or funding non-Federal than $1,400. The analysis thus focuses operations, for an average annual activities (e.g. approval of state water- on the costs of consultations on in-water revenue of $42,000 per aquatic farm. If quality standards by the EPA under the and coastal construction activities and the annualized administrative costs of Clean Water Act) that may affect the aquaculture, which occur more consultation were spread across 12 critical habitat. The requirement to frequently within the critical habitat unique businesses ($440 per business), consult is to ensure that any Federal areas. the costs to each business would action authorized, funded, or carried out As described in Chapter 3 of the FEA, represent approximately one percent of will not likely jeopardize the continued approximately eight consultations per average annual revenues. Given existence of any endangered or year are expected to focus on in-water available data, the analysis finds there is threatened species or result in the and coastal construction activities. The potential for a substantial number of destruction or adverse modification of majority of these (six per year) are businesses to be significantly impacted critical habitat. The incremental impacts concentrated within critical habitat Unit by this rule if all areas under contemplated in the FRFA are expected 10 in Alaska. As such, the analysis consideration were designated. to result from the critical habitat focused on the small in-water However, as discussed in chapter 5 of designation and not from other Federal construction businesses and government the FEA, the estimate of annual regulations. jurisdictions in the region surrounding revenues used in the analysis is highly During consultation under the ESA, critical habitat Unit 10, which was uncertain and likely substantially there may be communication among ultimately excluded from the critical understated. As a result, and given the NMFS, the Federal action agency, and a habitat designation. Additionally, the exclusion of Unit 10 from the final third party participant applying for analysis estimates that 12 aquaculture designation, this outcome is unlikely. Federal funding or permitting in an consultations per year are distributed The RFA, as amended by SBREFA, effort to minimize potential adverse across the critical habitat units in requires us to consider alternatives to impacts to the habitat or essential Alaska, with six occurring in Unit 10, the proposed regulation that will reduce feature. Communication may include and six each occurring in southcentral the impacts to small entities. We written letters, phone calls, and/or (Units 6–9) and southwestern Alaska considered two alternatives. First, we meetings. Project variables such as the (Units 1–5), respectively. Because Unit considered proposing to designate all type of consultation, the location of the 10 is excluded from the designation, we areas meeting the ESA section 3 activity, impacted essential features, focus the discussion here on the definition of critical habitat. However, and activity of concern, may in turn aquaculture activities. following our consideration of probable dictate the complexity of these Small entities that may bear the national security, economic, and other interactions. Third party costs may impacts of this final rule include private relevant impacts of designating all the include administrative work, such as businesses and small governmental specific areas, we rejected this cost of time and materials to prepare for jurisdictions. Relevant businesses in alternative because we elected to letters, calls, or meetings. The cost of North American Industry Classification exclude multiple areas based on a analyses related to the activity and System (NAICS) most likely engaged in determination that the benefits of

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designating them were outweighed by Paperwork Reduction Act agreements, which differentiate tribal the benefits of excluding them. A The purpose of the Paperwork governments from the other entities that second alternative of designating a Reduction Act is to minimize the deal with, or are affected by, the Federal subset of the specific areas meeting paperwork burden for individuals, small Government. This relationship has statutory definition of critical habitat businesses, educational and nonprofit given rise to a special Federal trust responsibility involving the legal was considered and is the preferred institutions, and other persons resulting responsibilities and obligations of the alternative. As stated previously, under from the collection of information by or United States toward Indian tribes and section 4(b)(2) of the ESA, we have the for the Federal government. This rule the application of fiduciary standards of discretion to exclude a particular area does not contain any new or revised due care with respect to Indian lands, from designation as critical habitat even collection of information. This rule does tribal trust resources, and the exercise of though it meets the definition of not impose recordkeeping or reporting tribal rights. Executive Order 13175 on ‘‘critical habitat’’ if the benefits of requirements on State or local Consultation and Coordination with exclusion (i.e., the impacts that would governments, individuals, businesses, or Indian Tribal Governments outlines the be avoided if an area were excluded organizations. from the designation) outweigh the responsibilities of the Federal benefits of designation (i.e., the Unfunded Mandates Reform Act (2 Government in matters affecting tribal conservation benefits to the humpback U.S.C. 1501 et seq.) interests. Section 161 of Public Law 108–199 (188 Stat. 452), as amended by whale if an area were designated), so The designation of critical habitat section 518 of Public Law 108–447 (118 long as exclusion of the area will not does not impose an ‘‘enforceable duty’’ Stat. 3267), directs all Federal agencies result in extinction of the species. on state, local, tribal governments, or to consult with Alaska Native Exclusion under section 4(b)(2) of the the private sector and therefore does not corporations on the same basis as Indian ESA of one or more of the areas qualify as a Federal mandate. In general, tribes under E.O. 13175. considered for designation would a Federal mandate is a provision in None of the critical habitats were reduce the total impacts of designation. legislation, statute, or regulation that identified as occurring on Indian lands. This alternative—which is the approach would impose an ‘‘enforceable duty’’ However, the critical habitats overlap taken in the final rule—results in a upon non-Federal governments, or the with areas used by Indian tribes and critical habitat designation that provides private sector and includes both Alaska Natives for subsistence, cultural, for the conservation of the species while ‘‘Federal intergovernmental mandates’’ usual and accustomed fishing, or other reducing the economic, national and ‘‘Federal private sector mandates.’’ purposes. The designations of critical security, and other relevant impacts on This rule will not produce a Federal habitat for humpback whales has the affected entities. mandate. The designation of critical potential to affect tribal trust resources, habitat does not impose an enforceable Coastal Zone Management Act particularly in relation to harvest of fish or legally-binding duty on non-Federal species that have been identified as Under section 307(c)(1)(A) of the government entities or private parties. important humpback whale prey (e.g., Coastal Zone Management Act (CZMA) The only regulatory effect is that Federal sardine, anchovy, herring). Based on the (16 U.S.C. 1456(c)(1)(A)) and its agencies must ensure that their actions findings of our analyses as presented in implementing regulations, each Federal do not destroy or adversely modify the Final Economic Analysis (IEc 2020) activity within or outside the coastal critical habitat under section 7 of the and the Final Section 4(b)(2) Report zone that has reasonably foreseeable ESA. Non-Federal entities that receive (NMFS 2020b), while it is possible that effects on any land or water use or Federal funding, assistance, permits or the critical habitat designations could natural resource of the coastal zone otherwise require approval or result in recommendations for changes shall be carried out in a manner which authorization from a Federal agency for in Federal fisheries management, we is consistent to the maximum extent an action, may be indirectly impacted consider this unlikely at this time given practicable with the enforceable policies by the designation of critical habitat, but the existing requirement to consider the of approved State coastal management the Federal agency has the legally effect of harvesting prey on the listed programs. We have determined that the binding duty to avoid destruction or humpback whales and given existing designation of critical habitat adverse modification of critical habitat. Federal fisheries management measures designation for the CAM and MX DPSs We do not find that this rule will (e.g., prohibitions on krill fishing). significantly or uniquely affect small of humpback whales is consistent to the Therefore, based on the currently governments because it is not likely to maximum extent practicable with the available information, including produce a Federal mandate of $100 enforceable policies of the approved information received through the million or greater in any year; that is, it Coastal Zone Management Programs of outreach described in the preamble, we is not a ‘‘significant regulatory action’’ Washington, Oregon, and California. do not anticipate impacts on tribal under the Unfunded Mandates Reform This determination was submitted to the fisheries or subsistence harvest as a Act. In addition, the designation of responsible agencies in the result of these critical habitat critical habitat imposes no obligations aforementioned states for review, and designations and therefore find that this on local, state or tribal governments. we subsequently received concurrence rule will not have tribal implications. Therefore, a Small Government Agency from each of the three state agencies. Should it be necessary to alter or reduce Plan is not required. any tribal fisheries harvest in the future By operation of Alaska State law, the Executive Order 13175, Consultation as a consequence of this rule, any federally approved Alaska Coastal reduction would occur in consultation Management Program expired on July 1, and Coordination With Indian Tribal Governments with the affected tribes and consistent 2011, resulting in a withdrawal from with existing Secretarial Orders. participation in the CZMA’s National The longstanding and distinctive Coastal Management Program (76 FR relationship between the Federal and Executive Order 12630, Takings 39857, July 7, 2011). The CZMA Federal tribal governments is defined by Under E.O. 12630, Federal agencies consistency provision, section 307, no treaties, statutes, executive orders, must consider the effects of their actions longer applies in Alaska. judicial decisions, and co-management on constitutionally protected private

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property rights and avoid unnecessary of humpback whales, these changes the impacts are estimated to be $73,300– takings of property. A taking of property would be beneficial to the whales and $77,400 per year. These total impacts includes actions that result in physical would be considered benefits of this include the additional administrative invasion or occupancy of private rulemaking. These changes in behavior efforts necessary to consider critical property that substantially affect its could also trigger opportunity costs, for habitat in section 7 consultations. value or use. In accordance with E.O. example due to the time or money spent Overall, economic impacts are expected 12630, this rule does not have to reduce the risk of negatively affecting to be small and to be largely associated significant takings implications. The the species or its habitat. Insufficient with the administrative costs borne by designation of critical habitat affects data are available to monetize these Federal agencies. These impacts are also only Federal agency actions. Further, no impacts (see the FEA, IEc 2020). not additive with those associated with areas of private property exist within Based on the FEA, the total estimated the WNP and CAM DPSs, as the areas the proposed critical habitat and present value of the quantified designated for the MX DPS are almost therefore none would be affected by this incremental impacts of the critical entirely overlapping with areas being action. Therefore, a takings implication habitat designation for the WNP DPS are designated for another DPS. Because the assessment is not required. approximately $186,000–$213,000 over designation for the MX DPS extends the next 10 years. Assuming a 7 percent over all other areas being designated as Executive Order 12866, Regulatory discount rate on an annualized basis, critical habitat for the other two DPSs, Planning and Review the impacts are estimated to be $21,200– the estimated economic impacts OMB has determined that this rule is $24,300 per year. These total impacts associated with the designation for the significant for purposes of E.O. 12866 include the additional administrative MX DPS represent the total estimated review. An economic analysis (the FEA, efforts necessary to consider critical impacts across all DPSs. As with the IEc 2020) and Final ESA Section 4(b)(2) habitat in section 7 consultations. These other DPSs, there are expected Report (NMFS 2020b) have been impacts are also not additive with those beneficial economic impacts of prepared to support the exclusion associated with the MX DPS, as the designating critical habitat for the MX process under section 4(b)(2) of the ESA areas designated for the WNP DPS are DPS; however, insufficient data are and our consideration of alternatives to entirely overlapping with areas being available to monetize those impacts (see this rulemaking as required under E.O. designated for the MX DPS. Overall, Analysis of the Benefits of Designation 12866. To view these documents, see economic impacts are expected to be section). the ADDRESSES section above. small and to be largely associated with Based on the FEA, the total estimated the administrative costs borne by Executive Order 13132, Federalism present value of the quantifiable Federal agencies. While there are Executive Order 13132 requires incremental impacts of the critical expected beneficial economic impacts of agencies to take into account any habitat designations at a 7 percent designating critical habitat for the WNP federalism impacts of regulations under discount rate are approximately DPS, insufficient data are available to development. It includes specific $640,000–$680,000 over the next 10 monetize those impacts (see Analysis of consultation directives for situations in years (2020–2029) and $740,000– the Benefits of Designation section). which a regulation may preempt state $780,000 at a 3 percent discount rate. Based on the FEA, the total estimated law or impose substantial direct Assuming a 7 percent discount rate on present value of the quantified compliance costs on state and local an annualized basis, the impacts are incremental impacts of the critical governments (unless required by estimated to be $73,000–$78,000 per habitat designation for the CAM DPS are statute). Pursuant to E.O. 13132, we year or $84,000–$89,000 per year at a 3 approximately $416,000–$430,000 over determined that this rule does not have percent discount rate. These total the next 10 years. Assuming a 7 percent significant federalism effects and that a impacts include the additional discount rate on an annualized basis, federalism assessment is not required. administrative efforts necessary to the impacts are estimated to be $47,500– The designation of critical habitat consider critical habitat in section 7 $48,500 per year. These total impacts directly affects only the responsibilities consultations. Overall, economic include the additional administrative of Federal agencies. As a result, this rule impacts are expected to be small and to efforts necessary to consider critical does not have substantial direct effects be largely associated with the habitat in section 7 consultations. These on the States, on the relationship administrative costs borne by Federal impacts are also not additive with those between the National Government and agencies. associated with the MX DPS, as the the States, or on the distribution of Beyond the potential for critical areas designated for the CAM DPS are power and responsibilities among the habitat to trigger additional entirely overlapping with areas being various levels of government, as conservation efforts as part of section 7 designated for the MX DPS. Overall, specified in the order. consultations, critical habitat may economic impacts are expected to be State or local governments may be indirectly affect conservation behaviors small and to be largely associated with indirectly affected by the critical habitat in ways that generate both opportunity the administrative costs borne by designations if they require Federal costs and conservation benefits. For Federal agencies. While there are funds or formal approval or example, critical habitat provides notice expected beneficial economic impacts of authorization from a Federal agency as to other Federal agencies of areas and designating critical habitat for the CAM a prerequisite to conducting an action. features important to species DPS, insufficient data are available to In these cases, the State or local conservation; provides information monetize those impacts (see Analysis of government agency may participate in about the types of activities that may the Benefits of Designation section). the section 7 consultation as a third reduce the conservation value of the Based on the FEA, the total estimated party. One of the key conclusions of the habitat; and may stimulate research, present value of the quantified economic impacts analysis is that the voluntary conservation actions, and incremental impacts of the critical incremental impacts of the designations outreach and education activities. To habitat designation for the MX DPS are will likely be limited to additional the extent that this information causes approximately $642,000–$683,000 over administrative costs to NMFS, Federal agencies, organizations, or individuals the next 10 years. Assuming a 7 percent agencies, and to third parties stemming to change their behavior for the benefit discount rate on an annualized basis, from the need to consider impacts to

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critical habitat as part of the forecasted 01–27, Guidance for Implementing E.O. PART 223—THREATENED MARINE section 7 consultations. Most of these 13211. Thus, these designations are AND ANADROMOUS SPECIES costs are expected to be borne by unlikely to have a significant adverse Federal agencies. Therefore, the effect within the meaning of the ■ 1. The authority citation for part 223 designation of critical habitat is also not executive order. The energy impacts continues to read as follows: expected to have substantial indirect analysis is presented in chapter 5 of the impacts on State or local governments. FEA (IEc 2020). Authority: 16 U.S.C. 1531 1543; subpart B, § 223.201–202 also issued under 16 U.S.C. Executive Order 13211, Energy Supply, List of Subjects 1361 et seq.; 16 U.S.C. 5503(d) for Distribution, and Use 50 CFR Part 223 § 223.206(d)(9). E.O. 13211 requires agencies to prepare a Statement of Energy Effects Endangered and threatened species, ■ 2. In § 223.102, in the table in when undertaking a significant energy Exports, Imports, Transportation. paragraph (e), revise the entry for action. Under E.O. 13211, a significant 50 CFR Part 224 ‘‘Whale, humpback (Mexico DPS)’’ energy action means any action by an under Marine Mammals to read as Endangered and threatened species, agency that is expected to lead to the follows: Exports, Imports, Transportation. promulgation of a final rule or regulation that is a significant regulatory 50 CFR Part 226 § 223.102 Enumeration of threatened marine and anadromous species. action under E.O. 12866 and is likely to Endangered and threatened species. have a significant adverse effect on the * * * * * Dated: April 15, 2021. supply, distribution, or use of energy. (e) * * * We have considered the potential Samuel D. Rauch III, impacts of this action on the supply, Deputy Assistant Administrator for distribution, or use of energy and find Regulatory Programs, National Marine that the designations of critical habitat Fisheries Service. for humpback whales are not likely to For the reasons set out in the have impacts that exceed the thresholds preamble, 50 CFR parts 223, 224, and identified in OMB’s memorandum M– 226 are amended as follows:

Species 1 Citation(s) for listing Critical habitat ESA rules Common name Scientific name Description of listed entity determination(s)

Marine Mammals

******* Whale, humpback (Mex- Megaptera novaeangliae Humpback whales that breed or winter in the 81 FR 62260, Sept. 8, 226.227 223.213 ico DPS). area of mainland Mexico and the Revillagigedo 2016. Islands, transit Baja California, or feed in the North Pacific Ocean, primarily off California-Or- egon, northern Washington-southern British Columbia, northern and western Gulf of Alaska and East Bering Sea.

******* 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612; November 20, 1991).

* * * * * Authority: 16 U.S.C. 1531–1543 and 16 North Pacific DPS)’’ under Marine U.S.C. 1361 et seq. Mammals to read as follows: PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES ■ 4. In § 224.101, in the table in § 224.101 Enumeration of endangered paragraph (h), revise the entries for marine and anadromous species. ■ 3. The authority citation for part 224 ‘‘Whale, humpback (Central America * * * * * continues to read as follows: DPS)’’ and ‘‘Whale, humpback (Western (h) * * *

Species 1 Citation(s) for listing Critical habitat ESA rules Common name Scientific name Description of listed entity determination(s)

Marine Mammals

******* Whale, humpback (Cen- Megaptera novaeangliae Humpback whales that breed in waters off Cen- 81 FR 62260, Sept. 8, 226.227 tral America DPS). tral America in the North Pacific Ocean and 2016. feed along the West Coast of the United States and southern British Columbia.

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Species 1 Citation(s) for listing Critical habitat ESA rules Common name Scientific name Description of listed entity determination(s)

Whale, humpback Megaptera novaeangliae Humpback whales that breed or winter in the 81 FR 62260, Sept. 8, 226.227 (Western North Pacific area of Okinawa and the Philippines in the 2016. DPS). Kuroshio Current (as well as unknown breed- ing grounds in the Western North Pacific Ocean), transit the Ogasawara area, or feed in the North Pacific Ocean, primarily in the West Bering Sea and off the Russian coast and the Aleutian Islands.

******* 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * * § 226.227 Critical habitat for the Central clarified by the textual descriptions in America, Mexico, and Western North Pacific this section, are the definitive sources PART 226—DESIGNATED CRITICAL distinct population segments (DPSs) of for determining the critical habitat HABITAT humpback whales (Megaptera novaeangliae). boundaries. ■ 5. The authority citation of part 226 Critical habitat is designated for the (a) List of states and counties. Critical continues to read as follows: Central America, Mexico, and Western habitat is designated in waters off the North Pacific humpback whale DPSs as coasts of the following states and Authority: 16 U.S.C. 1533. described in this section. The maps in counties for the listed humpback whale ■ 6. Add § 226.227 to read as follows: paragraph (h) of this section, and as DPSs:

DPS State-counties

(1) Central America ...... (i) WA—Clallam, Jefferson, Grays Harbor, Pacific. (ii) OR—Clatsop, Tillamook, Lincoln, Lane, Douglas, Coos, and Curry. (iii) CA—Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Francisco, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura. (2) Mexico ...... (i) AK—Lake and Peninsula, Aleutians East, Aleutian West, Kodiak Island, Kenai Peninsula, and Valdez-Cor- dova. (ii) WA—Clallam, Jefferson, Grays Harbor, Pacific. (iii) OR—Clatsop, Tillamook, Lincoln, Lane, Douglas, Coos, and Curry. (iv) CA—Del Norte, Humboldt, Mendocino, Sonoma, Marin, San Francisco, San Mateo, Santa Cruz, Monterey, San Luis Obispo, Santa Barbara, Ventura. (3) Western North Pacific ...... AK—Lake and Peninsula, Aleutians East, Aleutian West, Kodiak Island, Kenai Peninsula.

(b) Critical habitat boundaries for the is defined by the 15-m isobath relative 30′ W, then southward through Samalga Central America DPS. Critical habitat to MLLW; and from 36° 00′ N to 34° 30′ Pass to a boundary drawn along the for the Central America DPS includes all N, the nearshore boundary is defined by 2,000-m isobath on the south side of the marine waters within the designated the 30-m isobath relative to MLLW. islands. This isobath forms the southern areas as shown by the maps in North of 40° 20′ N, the offshore boundary of the critical habitat, paragraph (h) of this section and those boundary of the critical habitat is eastward to 164° 25′ W. From this point, prepared and made available by the defined by a line corresponding to the the 1,000-m isobath forms the offshore National Marine Fisheries Service 2,000-m isobath, and from 40° 20′ N to boundary, which extends eastward to (NMFS) pursuant to 50 CFR 424.18. 38° 40′ N, the offshore boundary is 158° 39′ W. Critical habitat also includes (1) Washington. The nearshore defined by the 3,000-m isobath. From the waters around Kodiak Island and the boundary is defined by the 50-meter (m) 38° 40′ N southward, the remaining Barren Islands. The western boundary isobath, and the offshore boundary is areas have an offshore boundary defined for this area runs southward along 154° defined by the 1,200-m isobath relative by a line corresponding to the 3,700-m 54′ W to the 1,000-m depth contour, and to mean lower low water (MLLW). isobath. then extends eastward to a boundary at Critical habitat also includes waters (c) Critical habitat boundaries for 150° 40′ W. The area also extends within the U.S. portion of the Strait of Mexico DPS. Critical habitat for the northward to the mouth of Cook Inlet Juan de Fuca to an eastern boundary Mexico DPS of humpback whales where it is bounded by a line that line at Angeles Point at 123° 33′ W. includes all marine waters within the extends from Cape Douglas across the (2) Oregon. The nearshore boundary is designated areas as shown by the maps inlet to Cape Adam. Critical habitat also defined by the 50-m isobath. The in paragraph (h) of this section and includes the Prince William Sound area offshore boundary is defined by the those prepared and made available by and associated waters defined by an 1,200-m isobath relative to MLLW; NMFS pursuant to 50 CFR 424.18. eastern boundary at 148° 31′ W, a except, in areas off Oregon south of 42° (1) Alaska. The nearshore boundaries western boundary at 145° 27′ W, and a 10′, the offshore boundary is defined by are generally defined by the 1-m isobath seaward boundary drawn along the the 2,000-m isobath. relative to MLLW. On the north side of 1,000-m isobath. (3) California. The nearshore the Aleutian Islands, the seaward (2) Washington. The nearshore boundary is defined by the 50-m isobath boundary of the critical habitat is boundary is defined by the 50-m relative to MLLW except, from 38° 40′ defined by a line extending from 55° 41 isobath, and the offshore boundary is N to 36° 00′ N, the nearshore boundary N, 162° 41′ W west to 55° 41′ N, 169° defined by the 1,200-m isobath relative

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to MLLW. Critical habitat also includes habitat, eastward to 164° 25′ W. From feeding areas to support feeding and waters within the U.S. portion of the this point, the 1,000-m isobath forms the population growth. Strait of Juan de Fuca to an eastern offshore boundary, which extends (3) Western North Pacific DPS. Prey ° ° ′ boundary line at Angeles Point at 123 eastward to 158 39 W. Critical habitat species, primarily euphausiids ′ 33 W. also includes the waters around Kodiak (Thysanoessa and Euphuasia) and small (3) Oregon. The nearshore boundary is Island and the Barren Islands. The pelagic schooling fishes, such as Pacific defined by the 50-m isobath. The western boundary for this area runs herring (Clupea pallasii), capelin ° ′ offshore boundary is defined by the southward along 154 54 W to the (Mallotus villosus), juvenile walleye 1,200-m isobath relative to MLLW; 1,000-m depth contour, and then pollock (Gadus chalcogrammus), and except, in areas off Oregon south of 42° extends eastward to a boundary at 150° ′ ′ Pacific sand lance (Ammodytes 10 , the offshore boundary is defined by 40 W. The area also extends northward personatus) of sufficient quality, the 2,000-m isobath. to the mouth of Cook Inlet where it is abundance, and accessibility within (4) California. The nearshore bounded by a line that extends from humpback whale feeding areas to boundary is defined by the 50-m isobath Cape Douglas across the inlet to Cape support feeding and population growth. relative to MLLW except, from 38° 40′ Adam. N to 36° 00′ N, the nearshore boundary (2) [Reserved] (g) Sites owned or controlled by the is defined by the 15-m isobath relative (e) Manmade structures. Critical Department of Defense. Critical habitat to MLLW; and from 36° 00′ N to 34° 30′ habitat does not include manmade does not include the following N, the nearshore boundary is defined by structures (e.g., ferry docks, sea plane particular areas owned or controlled by the 30-m isobath relative to MLLW. facilities) and the land on which they the Department of Defense, or North of 40° 20′ N, the offshore rest within the critical habitat designated for its use, where they boundary of the critical habitat is boundaries as described in paragraphs overlap with the areas described in defined by a line corresponding to the (b), (c), and (d) of this section and that paragraph (b) of this section: 2,000-m isobath, and from 40° 20′ N to were in existence as of May 21, 2021. (1) Pursuant to the Endangered 38° 40′ N, the offshore boundary is (f) Essential features. The following Species Act (ESA) section 4(a)(3)(B), all defined by the 3,000-m isobath. From features were identified as essential to areas subject to the Naval Base Ventura 38° 40′ N southward, the remaining the conservation of the particular DPS. County, Point Mugu, CA, and the Naval areas have an offshore boundary defined (1) Central America DPS. Prey Outlying Field, San Nicolas Island, CA, by a line corresponding to the 3,700-m species, primarily euphausiids approved Integrated Natural Resource isobath. (Thysanoessa, Euphausia, Nyctiphanes, Management Plans (INRMPs); and and Nematoscelis) and small pelagic (d) Critical habitat boundaries for (2) Pursuant to ESA section 4(b)(2), schooling fishes, such as Pacific sardine Western North Pacific DPS. Critical the Quinault Range Site (QRS) with an (Sardinops sagax), northern anchovy habitat for the Western North Pacific additional 10-km buffer that extends (Engraulis mordax), and Pacific herring DPS of humpback whales includes all along the southern edge of the QRS and (Clupea pallasii), of sufficient quality, marine waters within the designated along the northern edge of the QRS abundance, and accessibility within areas as shown by the maps in except in areas past 10-km into the paragraph (h) of this section and those humpback whale feeding areas to Olympic Coast National Marine prepared and made available by NMFS support feeding and population growth. Sanctuary. pursuant to 50 CFR 424.18. (2) Mexico DPS. Prey species, (1) Alaska. The nearshore boundaries primarily euphausiids (Thysanoessa, (h) Maps of humpback whale critical are generally defined by the 1-m isobath Euphausia, Nyctiphanes, and habitat. (1) Spatial data for these critical relative to MLLW. On the north side of Nematoscelis) and small pelagic habitats and mapping tools are the Aleutian Islands, the seaward schooling fishes, such as Pacific sardine maintained on our website and are boundary of the critical habitat is (Sardinops sagax), northern anchovy available for public use defined by a line extending due west (Engraulis mordax), Pacific herring (www.fisheries.noaa.gov/national/ from 55° 41′ N, 162° 41′ W to 55° 41′ (Clupea pallasii), capelin (Mallotus endangered-species-conservation/ N, 169° 30′ W, then southward through villosus), juvenile walleye pollock critical-habitat). Samalga Pass to a boundary drawn (Gadus chalcogrammus), and Pacific (2) Overview map of critical habitat along the 2,000-m isobath on the south sand lance (Ammodytes personatus) of for the Central America DPS of side of the islands. This isobath forms sufficient quality, abundance, and humpback whales: the southern boundary of the critical accessibility within humpback whale BILLING CODE 3510–22–P

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Figure 1 to paragraph (h)(2)

130'.'W 125°W ns·w

Critical Habitat for the Central America DPS of Humpback Whales

40'N

35"N

1111 Humpback Wtiale Critical Habitat ~ Ouinault Range Site and S:uffer (Exclusion) CJ Exclusive Economic Ze>ne

N 30°N --c::::::::iNautical Miles 0 3060 120 A

125'W 12o•w

(3) Overview map of critical habitat for the Mexico DPS of humpback whales:

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Figure 2 to paragraph (h)(3)

175"\N 170"W 165"W 160'W 155"W 150"W 145°W 140-W 135°W

Critical Habitat for the Mexico DPS of Humpback Whales 50'N

45"N

40"N

35°N

30°N

Humpbac~ Whale Critic;;1I Ha.bitat duina.ult Range $rte an.cl Buffer (E:xclusion) Exclusive EconomicZone

20°N N •••-===:::::iNautical Miles 0 100 200 400 A

145°W 140~W 135"W 130°W 12s•w 120·w 115"W

(4) Overview map of critical habitat for the Western North Pacific DPS of humpback whales:

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Figure 3 to paragraph (h)(4)

175°W 170'W 1o5'W 160"W 155-W 150"W 145'W I

00°N Critical Habitat for the Western North Pacific DPS of Humpback Whales

6Q"N

...

55"N

- Humpback Wh.ile Critical Habitat N D Exclusive Economic Zone A ••t:=::::iNautical Mlles 0 2550 100

110'W 160"\N 155"W 150."W 145'W

[FR Doc. 2021–08175 Filed 4–20–21; 8:45 am] BILLING CODE 3510–22–C

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