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DEPARTMENT OF COMMERCE 20910, Attn: Humpback Whale Critical other relevant impact of specifying any Habitat Proposed Rule. particular area as critical habitat. This National Oceanic and Atmospheric Instructions: Comments sent by any section also grants the Secretary of Administration other method, to any other address or Commerce (Secretary) discretion to individual, or received after the end of exclude any area from critical habitat if 50 CFR Parts 223, 224, and 226 the comment period, might not be he determines the benefits of such considered by NMFS. All comments exclusion outweigh the benefits of [Docket No. 190925–0039] received are a part of the public record specifying such area as part of the and will generally be posted for public critical habitat. However, the Secretary RIN 0648–BI06 viewing on www.regulations.gov may not exclude areas if such exclusion Endangered and Threatened Wildlife without change. All personal identifying will result in the extinction of the and Plants: Proposed Rule To information (e.g., name, address, etc.), species (16 U.S.C. 1533(b)(2)). Designate Critical Habitat for the confidential business information, or Once critical habitat is designated, Central America, Mexico, and Western otherwise sensitive information section 7(a)(2) of the ESA requires North Pacific Distinct Population submitted voluntarily by the sender will Federal agencies to ensure that actions they authorize, fund, or carry out are not Segments of Humpback Whales be publicly accessible. We will accept anonymous comments (enter ‘‘N/A’’ in likely to destroy or adversely modify AGENCY: National Marine Fisheries the required fields if you wish to remain that habitat (16 U.S.C. 1536(a)(2)). This Service (NMFS), National Oceanic and anonymous). requirement is additional to the section Atmospheric Administration (NOAA), Documents supporting this proposed 7(a)(2) requirement that Federal Commerce. rule, which include a Draft Biological agencies ensure their actions are not ACTION: Proposed rule; request for Report (NMFS 2019a), a Draft Economic likely to jeopardize the continued comments. Analysis (IEc 2019a), and a Draft existence of ESA-listed species. Section 4(b)(2) Report (NMFS 2019b), Specifying the geographic location of SUMMARY: We, the NMFS, propose to are available on the Federal e- critical habitat also facilitates designate critical habitat for the Rulemaking Portal implementation of section 7(a)(1) of the endangered Western North Pacific www.regulations.gov/#!docketDetail;D= ESA by identifying areas where Federal distinct population segment (DPS), the NOAA-NMFS-2019-0066. agencies can focus their conservation programs and use their authorities to endangered Central America DPS, and FOR FURTHER INFORMATION CONTACT: Lisa the threatened Mexico DPS of Manning, NMFS, Office of Protected further the purposes of the ESA. See 16 U.S.C. 1536(a)(1). Critical habitat humpback whales (Megaptera Resources 301–427–8466. novaeangliae) pursuant to section 4 of requirements do not apply to citizens SUPPLEMENTARY INFORMATION: Section the Endangered Species Act (ESA). engaged in actions on private land that 3(5)(A) of the ESA defines critical do not involve a Federal agency. Areas proposed as critical habitat habitat as (i) the specific areas within include specific marine areas located off This proposed rule summarizes the geographical area occupied by the relevant information regarding the the coasts of California, Oregon, species, at the time it is listed, on which Washington, and Alaska. Based on biology and habitat use of humpback are found those physical or biological whales, the methods used to develop consideration of national security and features (I) essential to the conservation economic impacts, we also propose to the three proposed critical habitat of the species and (II) which may designations, and the proposed critical exclude multiple areas from the require special management designation for each DPS. We are habitats for the Central America (CAM), considerations or protection; and (ii) Mexico (MX), and Western North Pacific soliciting comments on all aspects of the specific areas outside the geographical proposed critical habitat designations (WNP) DPSs of humpback whales. The area occupied by the species at the time following supporting documents and will consider information received it is listed, upon a determination by the prior to making final designations. provide more detailed discussions of Secretary that such areas are essential information and analyses that DATES: Comments must be received by for the conservation of the species. (16 contributed to the conclusions December 9, 2019. Requests for public U.S.C. 1532(5)(A)). Conservation is presented in this proposed rule: Draft hearings must be made in writing by defined in section 3(3) of the ESA as the Biological Report (NMFS 2019a), Draft November 25, 2019. use of all methods and procedures Economic Impact Analysis (IEc 2019a), ADDRESSES: You may submit data, which are necessary to bring any and Draft Section 4(b)(2) Report (NMFS information, or comments on this endangered species or threatened 2019b). These supporting documents are document, identified by NOAA–NMFS– species to the point at which the referenced throughout this proposed 2019–0066, and on the supplemental measures provided pursuant to this Act rule. documents by either of the following are no longer necessary (16 U.S.C. As detailed in the sections that methods: 1532(3)). Section 3(5)(C) of the ESA follow, the specific occupied areas Electronic Submission: Submit all provides that, except in those proposed for designation as critical electronic comments via the Federal circumstances determined by the habitat for the WNP DPS of humpback eRulemaking Portal. Go to Secretary, critical habitat shall not whales contain approximately 78,690 www.regulations.gov/ include the entire geographical area square nautical miles (nmi2) of marine #!docketDetail;D=NOAA-NMFS-2019- which can be occupied by the habitat within the North Pacific Ocean, 0066, click the ‘‘Comment Now!’’ icon, threatened or endangered species. including areas within the Bering Sea complete the required fields, and enter Section 4(b)(2) of the ESA requires the and the Gulf of Alaska. Specific or attach your comments. Secretary to designate critical habitat for occupied areas proposed for designation Mail: Submit written comments to threatened and endangered species on as critical habitat for the CAM DPS of Endangered Species Division, Office of the basis of the best scientific data humpback whales contain Protected Resources, National Marine available and after taking into approximately 48,459 nmi2 of marine Fisheries Service, 1315 East West consideration the economic impact, the habitat within the North Pacific Ocean, Highway (SSMC3), Silver Spring, MD impact on national security, and any specifically within the portions of the

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California Current Ecosystem off the determinable, for those DPSs occurring 2016), recent biological surveys and coasts of Washington, Oregon, and in areas under U.S. jurisdiction— reports, and peer-reviewed literature. California. Specific occupied areas specifically, the CAM, MX, and WNP The CHRT also convened a workshop proposed for designation as critical DPSs. on May 22–23, 2018, at the NMFS habitat for the MX DPS of humpback In the proposed rule to revise the Alaska Fisheries Science Center (AFSC) whales contain approximately 175,812 humpback whale listing, we solicited in Seattle, Washington, that brought nmi2 of marine habitat within the North information that could inform a critical together the CHRT members as well as Pacific Ocean, specifically within habitat designation (80 FR 22304; April 11 additional researchers from either the portions of Bristol Bay, the Bering Sea, 21, 2015), but we did not receive AFSC or other parts of NMFS. Several the Gulf of Alaska, and California relevant data or information regarding other individuals from external Current Ecosystem. habitats or habitat features in areas organizations (specifically, the Cascadia Based on consideration of economic within U.S. jurisdiction. In the final rule Research Collective (CRC), Moss impacts under section 4(b)(2) of the to list five DPSs of humpback whales, Landing Marine Laboratories, National ESA, we propose to exclude we concluded that critical habitat was Park Service, and Oregon State approximately 44,119 nmi2 of marine not yet determinable, which had the University) participated during portions habitat from the designation for the effect of extending by one year the of the workshop either in person or by WNP DPS, approximately 12,966 nmi2 statutory deadline for designating video conference to present and discuss of marine habitat from the designation critical habitat (16 U.S.C. their relevant research. Data considered, for the CAM DPS, and approximately 1533(b)(6)(C)(ii)). analyses conducted, and conclusions 30,527 nmi2 of marine habitat from the On March 15, 2018, the Center for reached by the CHRT are discussed in designation for the MX DPS. Based on Biological Diversity, Turtle Island detail in the Draft Biological Report consideration of national security Restoration Network, and the Wishtoyo (NMFS 2019a). Information from that impacts under section 4(b)(2) of the Foundation filed a complaint seeking report is summarized in the sections ESA, we also propose to exclude court-ordered deadlines for the issuance that follow. approximately 48 nmi2 of marine of proposed and final rules to designate habitat from the critical habitat critical habitat for the CAM, MX, and Species Description and Status of the designation for the MX DPS in WNP DPSs of humpback whales. See DPSs Southeast Alaska; and we propose to Center For Biological Diversity et al. v. Humpback whales (Megaptera exclude about 1,522 nmi2 of marine National Marine Fisheries Service, et al., novaeangliae (Borowski 1781) are large, habitat off the coast of Washington from No. 3:18–cv–01628–EDL (N.D. Cal.). The baleen whales (family Balaenopteridae) the designations for the CAM and MX parties entered into a settlement that are found in all oceans across the DPSs. agreement with the approval and globe. They range in color from black to oversight of the court, and subsequently gray with varying amounts of white on Background amended the dates specified in the their bellies, flukes, and fins. Some On September 8, 2016, we published original order. The amended settlement patterns of color variation may occur a final rule that revised the listing of agreement stipulates that NMFS must among whales found in different humpback whales under the ESA by submit a proposed determination geographic regions, but variations also removing the original, taxonomic-level concerning the designation of critical occur among individual whales. species listing, and in its place listing habitat for these three DPSs to the Distinctive natural markings on the four DPSs as endangered and one DPS Federal Register by September 26, 2019, underside of the fluke along with other as threatened (81 FR 62260). We also and (to the extent a proposed rule has identifying features such as scars have determined that nine additional DPSs been published) a final rule by been used to identify individual whales did not warrant listing. Prior to this September 28, 2020. for decades by cetologists around the revision, the humpback whale had been In 2018, a critical habitat review team world. Also among their distinctive listed as an endangered species in 1970 (CHRT) was convened to assess and traits are their long flippers, which are under the precursor to the ESA (the evaluate information in support of a knobbed on the leading edge, and both Endangered Species Conservation Act of critical habitat designation for the CAM, flippers and fluke are scalloped on the 1969), and then transferred to the list of MX, and WNP DPSs of humpback trailing edge. endangered species under the ESA. whales, which occur within portions of Humpback whales can weigh over 40 Although the ESA was later amended to U.S. waters in the North Pacific Ocean. tons (Ohsumi 1966) and are, on average, require the designation of critical The CHRT consisted of eight biologists 13–15 meters in length at maturity habitat for listed species, when from NMFS and two from the National (Chittleborough 1965, Mikhalev 1997). humpback whales were originally listed, Ocean Service (NOS), all of whom have Females are longer than males by about there was no statutory requirement to expertise and experience in humpback 1 to 1.5 meters (Chittleborough 1965). designate critical habitat for this whale research or management, The oldest known humpback whale was species. Section 4(a)(3)(A) of the ESA experience in developing critical habitat estimated to be about 95 years old now requires that, to the maximum designations, and/or expertise in (Chittleborough 1965, Gabriele et al. extent prudent and determinable, geographic information systems (GIS, 2010). Average generation time has been critical habitat be designated at the time i.e., mapping). To determine potential estimated to be 21.5 years (Taylor et al. of listing (16 U.S.C. 1533(a)(3)(A)). critical habitat areas for the DPSs, the 2007), and adult survival rate is Pursuant to implementing regulations at CHRT reviewed available data on estimated to be between 0.87–1.00, 50 CFR 424.12(g), critical habitat cannot humpback whales, including the global depending on location and year (Barlow be designated within foreign countries assessment of humpback whales and the and Clapham 1997, Chaloupka et al. or in areas outside the jurisdiction of the status review that were completed in 1999, Mizroch et al. 2004). United States. Thus, the listing of DPSs support of the ESA listings (Fleming Humpback whales breed and calve in of humpback whales under the ESA in and Jackson 2011, Bettridge et al. 2015), tropical/subtropical waters in the winter 2016 triggered the requirement to the proposed and final listing rules for months, typically during January–May designate critical habitat, to the humpback whales (80 FR 22304, April in the Northern hemisphere. Calving maximum extent prudent and 21, 2015; 81 FR 62260, September 8, intervals are between 1 to 5 years but

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are more commonly between 2 to 3 (Zerbini et al. 2006, Ford et al. 2009, competition (with fisheries, Bettridge et years (Wiley and Clapham 1993, Steiger Bettridge et al. 2015). Despite the al. 2015). Humpback whale meat has and Calambokidis 2000). Annual official end of commercial whaling, been identified in Korean markets, and calving can occur but is rare (Straley some countries continue to engage in it is possible that whaling could be 1989). After an 11–12 month gestation whaling practices. posing a threat to this DPS (Brownell et period, calves are born in the low The CAM DPS is listed as endangered al. 2000, Baker et al. 2006). Within U.S. latitude breeding grounds (Matthews and has been most recently estimated to waters, whales from this DPS have been 1937). Lactation occurs for close to 11 include 783 whales (CV = 0.170, Wade observed in waters off Alaska, primarily months, with calves beginning to wean 2017). Entanglement in fishing gear and the eastern Aleutian Islands. at around 6 months (in June or July in vessel collisions, in particular, were All three of these listed DPSs overlap the Northern Hemisphere) and reaching identified as the most significant threats spatially to varying degrees with the full independence after about a year to this DPS in the 2016 final listing rule Hawaii DPS of humpback whales, (Chittleborough 1958, 1965; Clapham (81 FR 62260, September 8, 2016). which was found to not warrant listing and Mayo 1990). Within U.S. waters, whales of this DPS under the ESA in 2016 (81 FR 62260, Males produce long, complex songs are observed off the coasts of September 8, 2016). The Hawaii DPS during the breeding season (Payne and Washington, Oregon, and California. whales breed in waters around the Mcvay 1971), possibly to communicate The MX DPS is listed as threatened Hawaiian Islands and have been their location and readiness to mate or and has been most recently estimated to observed on most of the known feeding to establish social order among males, or have an abundance of 2,806 whales (CV grounds within the North Pacific both (Tyack 1981, Darling and Be´rube´ = 0.055, Wade 2017). Entanglement in (Bettridge et al., 2015). This population 2001). Singing is typically heard on the fishing gear, especially off the coasts of has an estimated abundance of about breeding grounds but has also been Washington, Oregon, and California, 11,571 whales (Wade 2017). While these detected during migration (Norris et al. was identified as the primary threat to whales are no longer protected under 1999, Noad and Cato 2007) and on this DPS. Entanglement has been the ESA (and critical habitat is not being feeding grounds as well (Mattila et al. documented primarily in pot and trap designated for them), they continue to 1987, McSweeney et al. 1989, Clark and gear but also in gillnets (Carretta et al. be managed under the MMPA. Clapham 2004, Stimpert et al. 2012, 2018). Other threats include ship strikes Distribution and Habitat Use Magnu´ sdo´ttir et al. 2014). While on and persistent organic pollutants, breeding grounds, humpback whales although, at the time of listing, these Humpback whales have strong fidelity rarely feed (Baraff et al. 1991). threats were not considered to be to particular breeding regions, a general Around springtime, the whales significantly impacting the survival of pattern that contributed to how the typically migrate to temperate, higher this DPS (Fleming and Jackson 2011, various DPSs were delineated and listed latitude regions to feed and build up fat Bettridge et al. 2015). More recently, under the ESA (Bettridge et al. 2015). In and energy reserves for the return Rockwood et al. (2017) estimated that particular, the MX DPS includes whales migration, lactation, and breeding. the mortality due to ship strikes (22 per that breed in the area of mainland Humpback whales feed on mainly year) is greater than the estimated Mexico and the Revillagigedo Islands euphausiids (krill) and small pelagic fishery bycatch and is equal to the (Bettridge et al. 2015, 50 CFR 223.102). fishes (Nemoto 1957, 1959; Klumov potential biological removal (PBR) level Whales from the CAM DPS breed off the 1963; Rice 1963; Krieger and Wing 1984; for the California/Oregon/Washington coasts of Costa Rica, Panama, Baker 1985; Kieckhefer 1992; Clapham stock of humpback whales (Carretta et Guatemala, El Salvador, Honduras, and et al. 1997). al. 2018). (Humpback whales are Nicaragua (Bettridge et al. 2015, 50 CFR Humpback whales were commercially separately identified and managed as 224.101). Humpback whales from the hunted for centuries throughout their ‘‘stocks’’ under the Marine Mammal WNP DPS breed in waters around range until the 1950s/60s. Reported Protection Act (MMPA, 16 U.S.C. 1361 southern Japan (e.g., Okinawa), off the catches from the 20th century suggest et seq.), a management unit that is not Philippines in the Kuroshio Current, that humpback whales were distributed necessarily coextensive with a and in additional breeding grounds in extensively throughout the North Pacific corresponding DPS under the ESA. PBR the Western North Pacific that were (Ivashchenko et al. 2015). Non- is defined under the MMPA as the ‘‘unknown’’ at the time of listing subsistence whaling was first prohibited maximum number of animals (not (Bettridge et al. 2015, 50 CFR 224.101). by the International Whaling including natural mortalities) that may As discussed in more detail later (see Commission (IWC) in 1955 in the North be removed from the stock while ‘‘Geographical Area Occupied by the Atlantic and then in the North Pacific allowing that stock to reach or maintain Species’’), because none of the and Southern Hemisphere in 1965 after its optimum sustainable population.) confirmed breeding areas for these DPSs a final commercial whaling season Whales within the MX DPS have a are within waters under U.S. (NMFS 1991). The total catch of broad distribution within U.S. waters jurisdiction, we cannot propose to humpback whales exploited in the and occur along the coasts of designate them as critical habitat. North Pacific in the 20th century is Washington, Oregon, California, and Humpback whale breeding areas are estimated to be just over 29,000 whales Alaska. characterized by warm, shallow waters (Ivashchenko et al. 2017). By the time The WNP DPS is listed as endangered (Clapham and Mead 1999, Ersts and modern commercial whaling was and has an estimated abundance of Rosenbaum 2003, Rasmussen et al. officially ended (though not completely 1,066 whales (CV = 0.079, Wade 2017). 2007), and the whales are often found in ceased), the total abundance of There is a high degree of uncertainty association with islands, banks, or humpback whales in the North Pacific regarding the threats to this DPS; offshore reefs (Dawbin 1966, Whitehead may have been as few as roughly 1,000 however, entanglement in fishing gear and Moore 1982, Baker et al. 1986). whales (Rice 1978). Since the likely represents a serious threat These warm, tropical and subtropical moratorium on commercial whaling, (Brownell et al. 2000, Baker et al. 2006). breeding areas have low productivity, populations have been steadily Other likely threats to this DPS include and thus limited food availability, and increasing but some have not yet offshore energy development activities, the whales do not typically feed while returned to historical abundance levels vessel collisions, pollution, and food on the breeding grounds (Rasmussen et

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al. 2012, Villegas-Zurita and Castillejos- whales indicated highly significant Dalla Rosa et al. 2012, Thompson et al. Moguel 2013). differences in mtDNA haplotype 2012, Friday et al. 2013, Chenoweth et In the North Pacific Ocean, humpback frequencies among the feeding regions al. 2017, Straley et al. 2018, Santora et whales feed in biologically productive overall (overall FST = 0.121, FST = 0.178, al. 2018). Physical oceanographic waters along the coasts of California, p < 0.0001), and pairwise comparisons mechanisms influencing primary Oregon, Washington, and Alaska; were also significant (at p < 0.05) for 32 productivity are subject to significant British Columbia, Canada; and in waters of 36 possible comparisons (excluding variations on seasonal, inter-annual off of Russia (e.g., Kamchatka, the western Aleutians due to low (e.g., El Nin˜ o), and decadal time-scales Commander Islands). Although these sample size, Baker et al. 2013). (e.g., Pacific Decadal Oscillation (PDO) feeding areas have an almost continuous Comparisons of bi-parentally inherited cycles; Barber and Chavez 1983, distribution around the North Pacific microsatellite DNA indicated very weak McGowan et al. 1998, 2003), which basin, multiple studies have indicated but significant differentiation of adds variability to humpback whale fairly high levels of fidelity of microsatellite allele frequencies among prey distributions and abundances humpback whales to particular areas feeding areas, suggesting male-biased within the feeding areas. and limited movements of whales gene flow (overall FST = 0.0034, p < Satellite tagging efforts have provided among feeding areas (e.g., Waite et al. 0.001, Baker et al. 2013). The high some insights into the fine-scale 1999, Calambokidis et al. 2001, degree of differentiation in mtDNA movements of the whales while on the Calambokidis et al. 2008, Witteveen et among feeding areas reflects the foraging grounds, indicating the al. 2011, Witteveen and Wynne 2016a, influence of maternal fidelity to feeding duration, area, and variability in the Gabriele et al. 2017). Understanding of areas. This result is consistent with areas over which the whales feed. For how humpback whale populations are findings of previous but more spatially- instance, in the summers of 2007 to spatially structured while in these limited studies (e.g., Baker et al. 1998, 2011, Kennedy et al. (2014) deployed feeding areas has been informed by Witteveen et al. 2004). This effect likely satellite tags on eight adult humpback numerous studies, and probably most stems from the close dependency of whales in Unalaska Bay, Alaska, and notably by the results of the Structure of calves on their mothers during their first tracked the whales for an average of 28 Populations, Levels of Abundance and year of life, during which they travel days (range = 8¥67 days). Position data Status of Humpbacks Study—referred to with their mothers and thereby inherit were then analyzed and categorized into as the SPLASH study. This study information from their mothers about one of three possible behavioral modes: involved the collection of both feeding destinations (Baker et al. 1987, Transiting; area-restricted searching photographic and genetic data Pierszalowski et al. 2016). throughout the North Pacific by several Overall, while the available photo- (ARS), or unclassified. The slower hundred researchers working in over 10 identification data indicate varying speeds and higher turning angles during countries (Calambokidis et al. 2008). degrees of mixing of populations across ARS behavior are considered to be Through the SPLASH study, photo- the feeding areas, the overall pattern of indicative of active foraging (Kennedy et identification data were collected over structuring of populations among the al. 2014, citing Kareiva and Odell 1987, three breeding seasons (2004, 2005, and feeding areas, as well as the pattern of Mayo and Marx 1990). Results indicated 2006) and over two feeding seasons migratory connections between that whales mainly stayed over shelf (2004, 2005) in known breeding and particular feeding areas and breeding and slope habitat (1,000 m or shallower) feeding areas. Through this effort, a total areas, contributed to how the various while in ARS mode, and all but one of 7,971 unique whales were photo- DPSs are described in the listing rule whale remained relatively close to identified (Calambokidis et al. 2008). (81 FR 62260, September 8, 2016). In Unalaska Bay during the tracking For most analyses, photo-identification particular, the MX DPS is described as period. One whale, however, left data were grouped into six broad including whales that feed primarily off Unalaska Bay 3 days after being tagged, feeding regions: Kamchatka (Russia), California-Oregon, northern traveling along the Bering Sea shelf Aleutian Islands/Bering Sea, Gulf of Washington-southern British Columbia, towards Russia and covering almost Alaska, Southeast Alaska/Northern in the Gulf of Alaska and East Bering 3,000 km in 26 days, indicating that the British Columbia, Southern British Sea (50 CFR 223.102). The CAM DPS is whales may in fact travel long distances Columbia/Northern Washington, and described as including whales that feed during the feeding season (Kennedy et California/Oregon (Calambokidis et al. along the West Coast of the United al. 2014). Satellite tags deployed on 2008, Barlow et al. 2011, Wade et al. States and southern British Columbia whales tagged off central California in 2016). Analysis of the photo- (50 CFR 224.101). The WNP DPS is the summer/fall of 2004–2005 and in identification data revealed that both described as including whales that feed summer of 2017 and that were tracked within-season and between-season primarily in the West Bering Sea and off for a minimum of 30 days, exhibited movements of whales between these six the Russian coast and the Aleutian feeding behavior (as detected by ARS feeding areas were infrequent and any Islands (50 CFR 224.101). data) over an area that averaged 20,435.6 such exchanges were mainly to adjacent Although these feeding areas are km2 (n=8, SE = 7322.8) and 17,684.4 areas (Calambokidis et al. 2008), which broadly distributed and range widely in km2 (n=7, SE = 13,927.6 km2), is consistent with previous findings terms of latitude, they are usually over respectively (Mate et al. 2018). In the from earlier region-wide studies (e.g., the continental shelf or near the shelf latter case, this average area extended Calambokidis et al. 1996, Calambokidis edge at shallow (∼10 m) to moderate from the Channel Islands in southern et al. 2001). water depths (∼50–200 m) and in cooler California to central Oregon. Similar Genetic analyses of skin samples waters (Zerbini et al. 2016, Becker et al. tagging work off the Oregon coast in collected during the SPLASH study 2016 and 2017). Often, feeding areas are September/October in 2017 indicated provide additional insight into the associated with oceanographic (e.g., the whales actively fed over areas of structuring of humpback whale upwelling, fronts), bathymetric (e.g., comparable size (average area = 17,215.6 populations across the feeding areas submarine canyons, banks), and/or km2; n=4; SE = 8,430.6), and for the few (Baker et al. 2013). Analysis of biological features (e.g., spawning areas whales tagged, the feeding area maternally inherited mitochondrial for fish) that serve to concentrate or extended from Point Arena, central DNA (mtDNA) from 1,010 unique aggregate prey (e.g., Tynan et al. 2005, California, to the southwest corner of

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Vancouver Island, British Columbia tracked along their full migration route (Parathemisto libeelula), and shrimps (Mate et al. 2018). The area over which to breeding areas, and an additional 20 (Eualus gaimardii and Pandalus whales actively feed (as indicated by whales were tracked for the early goniurus) (Tomilin 1967). There have ARS data over a minimum of 30-days) portion of their migration before also been observations of humpback appears to be somewhat smaller in transmissions ceased. These tagging whales feeding on hatchery-released Southeast Alaska, where the average efforts indicate that up to three different juvenile salmon in Southeast Alaska ARS area for whales tagged in summer migration routes were taken by whales (Chenoweth et al. 2017). A more of 1997 and in fall of 2014–2015 was departing from Southeast Alaska, with detailed discussion of the humpback 4,904.3 km2 (n=3, SE = 1,728.8) and most (n=20) heading towards Hawaii whale diet by feeding regions within the 2,862.7 km2 (n=4, SE = 1,834.2), (the breeding destination for the non- North Pacific is provided in the Draft respectively (Mate et al. 2018). listed Hawaiian population of Biological Report (NMFS 2019a). Differences in the area over which the humpback whales), one that headed Humpback whales are gulp feeders, whales feed between years likely west into the Gulf of Alaska, and two gulping mouthfuls of prey and water at reflects a seasonal shift in target prey that headed south along the U.S West a time (Ingebrigtsen 1929), and use a and prey distributions (Witteveen et al. Coast. One whale that had been tagged variety of capture techniques while 2011, Straley et al. 2018). in 2017 off the coast of Oregon was feeding, including lunges and bubble Migrations of whales between their tracked southward along a route that structures (bubble nets, columns, seasonal habitats have been studied eventually extended well offshore clouds, and curtains; Jurasz and Jurasz indirectly using genetic data and before heading on an eastward trajectory 1979, Hain et al. 1982). In general, matching of individual photo-identified towards mainland Mexico. Another two humpback whales will lunge feed, both whales at feeding and breeding areas, whales that had been tagged off central towards the surface and at depths, while but the specific migratory routes used California in 2004/2005, took much alternating between periods of short, by the whales remains poorly more coastal routes southward to shallow dives and long, deeper dives understood, especially in the North Mexico and Guatemala. and can execute multiple lunges in one Pacific. Although data are limited, Diet and Feeding Behaviors dive (Goldbogen et al. 2008). Lunge types include lateral lunge feeding, telemetry data from satellite-monitored Humpback whales are generalists, vertical lunge feeding, and inverted radio tags have provided additional taking a variety of prey while foraging lunge feeding (Jurasz and Jurasz 1979). insights into seasonal migrations. and also switching between target prey Humpback whales were initially depending on what is most abundant in Additionally, humpbacks have been thought to migrate along a coastal route the system (Witteveen et al. 2015, observed using multiple types of bubble when travelling between their seasonal Fleming et al. 2016). Within the structure feeding techniques for habitats, but migration routes are now California Current marine ecosystem capturing prey, such as bubble nets, known to be varied, with some whales (CCE), the highly productive coastal columns, clouds, and curtains (Jurasz taking coastal routes and some taking system that extends from British and Jurasz 1979, Hain et al. 1982) and pelagic routes (Fleming and Jackson Columbia, Canada to the southern Baja techniques that combine clouds with 2011). For instance, Lagerquist et al. California Peninsula, humpback whales surface disturbances (like lobtail (2008) tagged 11 whales off of Socorro are known to target Pacific sardine feeding, Weinrich et al. 1992). Artificial Island, Mexico (within the Revillagigedo (Sardinops sagax), northern anchovy bubble structures have been shown Archipelago) in February 2003, and, (Engraulis mordax), Pacific herring experimentally to constrain the spatial after an average of 13.6 days (range = (Clupea pallasii), euphausiids movement of herring, particularly large 3.8–27.0 days), seven of the whales (specifically Thysanoessa, Euphausia, schools (Sharpe and Dill 1997), migrated to areas north of the breeding Nyctiphanes, and Nematoscelis), and supporting the conclusion that bubble areas in Mexico—three were adult occasionally juvenile rockfish (Sebastes; techniques are likely an effective whales without a calf and four were Rice 1963, Kieckhefer 1992, Clapham et method for herding prey. Additional adult females travelling with a calf. Two al. 1997). In waters off Alaska, the feeding strategies documented include of these seven whales were tracked all humpback diet includes: Euphausiids, ‘‘blaze feeding’’ (flashing the white side the way to feeding grounds—one to capelin (Mallotus villosus), Pacific of pectoral flipper at prey; Tomilin 1957 British Columbia (46 d migration) and herring, Atka mackerel (Pleurogrammus cited in Brodie 1977, Sharpe 2001), one to Alaska (49 d migration). The monopterygius), juvenile walleye swimming/thrashing (roiling the surface migration routes were well offshore, pollock (hereafter ‘‘pollock,’’Gadus and thrashing tail, Hain et al. 1982), averaging 444 km from the coast and chalcogrammus (formerly, Theragra looping, flick feeding (lashing tail at the ranging from 115 to 935 km from the chalcogramma)), Pacific cod (Gadus surface, Jurasz and Jurasz 1979), vertical coast (Lagerquist et al. 2008). One macrocephalus), saffron cod (Eleginus rise and subsidence (creates a reduced whale, which travelled the closest to gracilis), Arctic cod (Boreogadus saida), pressure zone in the water column, shore overall, came within 41 km of rockfish (Sebastes), Pacific sand lance Hays et al. 1985), ‘‘roiling’’ the surface Point Arena, California at the closest (Ammodytes personatus), eulachon with flippers and flukes (Hain et al. point along its migration. An offshore (Thaleichthys pacificus), surf smelt 1982), and trap-feeding (McMillan et al. northbound migratory route between the (Hypomesus pretious), Pacific sandfish 2019). Revillagigedo Archipelago and Alaska (Trichodon trichodon), and myctophids Humpback whales may also work in was also documented through visual (primarily Stenobrachius leucopsarus; groups to herd and capture prey. For and acoustic detections during a ship- Nemoto 1959, Klumov 1965, Tomilin instance, in Southeast Alaska, groups of based survey by Norris et al. (1999). 1967, Krieger and Wing 1984, Baker whales have been observed to release Southbound migration routes were 1985, Witteveen et al. 2008, Neilson et bubbles simultaneously in the same recorded by researchers from Oregon al. 2015). Euphausiids consumed in area, and then surface through the State University, who conducted Alaska are mainly from genus center of the bubbles together to satellite tagging efforts in multiple Euphausia and Thysanoessa (Krieger consume the herded herring (Jurasz and feeding areas during 1997–2017 (Mate et and Wing 1984). Additional prey noted Jurasz 1979, Baker 1985, D’Vincent et al. al. 2018). Six of 88 tagged whales were in Alaska are mysids, amphipods 1985). Vocalizations may be important

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in coordinating group feeding efforts regarding the geographical area California-Oregon, northern (D’Vincent et al. 1985). occupied by each of the three DPSs of Washington/southern British Columbia, Feeding techniques likely vary humpback whales, each of which is a northern and western Gulf of Alaska, depending on the target prey species ‘‘species’’ as defined in the ESA. See 16 and East Bering Sea (50 CFR 223.102(e)). and prey density (Jurasz and Jurasz U.S.C. 1532(16) (defining ‘‘species’’ to Of the three DPSs addressed in this 1979). Dive depth of foraging whales include any distinct population segment proposed rule, the MX DPS has the also varies depending on the target prey. of any species of vertebrate fish or broadest distribution within the U.S. In Alaska, Witteveen et al. (2015) wildlife which interbreeds when portion of their range. Through the reported that whales dove deeper to mature). Additional details on the range SPLASH study, MX DPS whales were forage on krill than on fish (average of each DPS are provided in the Draft photo-identified in all five of the major depths of 98 m versus 80 m, Biological Report (NMFS 2019a). feeding areas in, or partially in, U.S. respectively). Similarly, in areas off waters—i.e., California/Oregon (n=105 Central America DPS California, Szesciorka (2015) whales), northern Washington/southern documented shallower feeding on the As discussed earlier, the CAM DPS is British Columbia (n=27 whales), continental shelf where fish were more described as humpback whales that southeast Alaska/northern British readily available, and deeper feeding on breed in waters off Central America in Columbia (n=35 whales), the Gulf of continental break/slope where krill were the North Pacific Ocean and feed along Alaska (n=97 whales), and the Aleutian present. For dive depths in general, the west coast of the United States and Islands/Bering Sea (n=27 whales, multiple authors have documented southern British Columbia (50 CFR Barlow et al. 2011). varying average and maximum dive 224.101(h)). The breeding range of this In terms of their distribution across depths, with mean depths ranging from DPS includes waters off the Pacific coast this range, whales using different around 66 m to 107 m and maximim of Central America, from Panama north portions of the MX DPS breeding area depths ranging from approximately 115 to Guatemala, and possibly into appear to target different feeding m to 388 m (in Alaska, California, and southern Mexico (Bettridge et al. 2015, destinations. During SPLASH surveys, Antarctica; Witteveen et al. 2008, Simon Calambokidis et al. 2017). Whales from whales that had been photo-identified et al. 2012, Tyson 2014, Szesciorka this DPS have been observed within along the Pacific coast of mainland 2015, Witteveen et al. 2015). foraging grounds along the coasts of Mexico were sighted in highest numbers Because humpback whales only rarely California, Oregon, and Washington off the coast of California and Oregon feed on breeding grounds and during (Barlow et al. 2011). (97 of 164 total matches), suggesting that migrations, the buildup of fat stores In terms of distribution across their this is their primary foraging destination while on the feeding grounds is critical foraging range, CAM DPS whales are (Calambokidis et al. 2008, Barlow et al. to support migration and successful significantly more common in waters of 2011). Although whales sighted off breeding. Given the energetic costs southern California and occur in mainland Mexico also travel to the more associated with foraging activity itself, progressively decreasing numbers up northern latitude feeding areas, the MX especially at deeper depths (Goldbogen the coast towards Washington and DPS whales sighted around the et al. 2008), foraging is only expected to Southern British Columbia (Steiger et al. Revillagigedo Archipeligo had more be energetically profitable above some 1991; Rasmussen et al. 2001; matches overall to Alaska feeding areas lower threshold for an energetic return. Calambokidis et al. 2000, 2008, 2017). and had higher match rates to the Evidence suggests that humpback Of the humpback whales identified off northern Gulf of Alaska feeding area in whales will generally feed when they the coast of Central America (n=31) in particular (44 of 87 matches; encounter suitable concentrations of a photo-identification study conducted Calambokidis et al. 2008). prey. Although humpback whales have between 1981 and 1992, 84 percent Multiple studies have reported often been observed in association with, were re-sighted off California sightings of a small number of whales in or specifically targeting, dense (Calambokidis et al. 2000). This both the Mexico and Hawaii breeding aggregations of prey within North distribution pattern was also confirmed areas (e.g., n=1, Darling and McSweeney Pacific feeding regions (e.g., Bryant et by the results of the SPLASH study, 1985; n=5, Calambokidis et al. 2001; al. 1981, Krieger and Wing 1986, which indicated that out of 29 between- n=17, Calambokidis et al. 2008). Goldbogen et al. 2008, Sigler et al. 2012, season photo-identification matches of Detections of shared song composition Witteveen et al. 2015), minimum prey whales from the Central America among whales from different breeding densities required to support feeding are breeding areas, 26 occurred within the locations along with presence of whales not generally known. California/Oregon feeding region and 3 in mid-ocean tropical waters during the occurred within the northern breeding season also suggest some form Geographical Area Occupied by the Washington/southern British Columbia of contact between whales from Species region (Barlow et al. 2011). Use of the different breeding populations (Darling The phrase ‘‘geographical area Salish Sea by this DPS may be et al. 2019a and 2019b). Overall, occupied by the species,’’ which extremely limited, and has been interchange among breeding areas appears in the statutory definition of indicated by the single re-sighting appears to be rare, and remains poorly critical habitat, is defined by regulation reported in Calambokidis et al. (2017), understood in terms of its biological as an area that may generally be and no observations of these whales significance. delineated around species’ occurrences, have been reported for waters off Alaska Western North Pacific DPS as determined by the Secretary (i.e., or in the Bering Sea. range) (50 CFR 424.02). Such areas may Humpback whales of the WNP DPS include those areas used throughout all Mexico DPS are listed as humpback whales that or part of the species’ life cycle, even if The MX DPS of humpback whales is breed or winter in the area of Okinawa not used on a regular basis (e.g., defined as humpback whales that breed and the Philippines in the Kuroshio migratory corridors, seasonal habitats, or winter in the area of mainland Current (as well as unknown breeding and habitats used periodically, but not Mexico and the Revillagigedo Islands, grounds in the Western North Pacific solely by vagrant individuals) (Id.). transit Baja California, or feed in the Ocean), transit the Ogasawara area, or Below, we summarize information North Pacific Ocean, primarily off feed in the North Pacific Ocean,

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primarily in the West Bering Sea and off al. 2011; Hill et al. 2016, 2017); and, biological features essential to the the Russian coast and the Aleutian although no humpback whales were conservation of the species,’’ but the Islands (50 CFR 224.101(h)). Whales sighted in this area between 2009–2013 ESA does not specifically define or from this DPS have been sighted in (Fulling et al. 2011, Hill et al. 2014, further describe these features. ESA- foraging areas off the coast of Russia, Ligon et al. 2013), mother-calf pairs implementing regulations at 50 CFR primarily Kamchatka, the Aleutian have been observed off Saipan in 2015 424.02 (84 FR 45020; August 27, 2019; Islands, as well as in the Bering Sea and (n=4 pairs), 2016 (n=4 pairs), and in effective September 26, 2019), however, Gulf of Alaska, and off northern and 2017 (n=2 pairs; Hill et al. 2016, 2017, define such features as follows: southern British Columbia (Figure 13; 2018). Individual photo-identification The features that occur in specific areas Darling et al. 1996, Calambokidis et al. data for whales sampled off Saipan and that are essential to support the life- 2001, Barlow et al. 2011). Whales from within the Mariana Archipelago in history needs of the species, including but this DPS are not thought to use the February–March 2015–2018, suggest not limited to, water characteristics, soil feeding areas off Washington, Oregon, that these whales belong to the WNP type, geological features, sites, prey, and California. DPS (Hill et al. in review). Specifically, vegetation, symbiotic species, or other Several studies have reported comparisons with existing WNP features. A feature may be a single habitat sightings of a small number of photo- humpback whale photo-identification characteristic, or a more complex identified whales in both the Asia (off catalogs showed that 11 of 41 (27 combination of habitat characteristics. Japan or the Philippines) and Hawaii percent) whales within the Mariana Features may include habitat characteristics breeding areas (e.g., n=1, Darling and that support ephemeral or dynamic habitat Archipelago humpback whale catalog conditions. Features may also be expressed Cerchio 1993; n=3, Salden et al. 1999; were previously sighted in WNP in terms relating to principles of conservation n=4, Calambokidis et al. 2001; n=2, breeding areas (Japan and Philippines) biology, such as patch size, distribution Calambokidis et al. 2008); however, the and/or in a WNP feeding area off Russia distances, and connectivity. significance of these movement to either (Hill et al. in review). Mitochondrial To assess habitat features that may the WNP DPS or the non-listed DNA analyses comparing 24 individual qualify as ‘‘essential to the population of humpback whales that humpback whales sampled within the breed around Hawaii has not been Mariana Archipelago to ones sampled in conservation’’ of humpback whales, the established. known breeding areas throughout the CHRT discussed physical and biological In terms of their distribution across Pacific demonstrated significant features that are essential to support the the U.S. portion of their range, whales differentiation from the Philippines, life history needs and support the of the WNP DPS are most likely to be Okinawa, Hawaii, and Central America conservation of humpback whales found off the Aleutian Islands and in (Hill et al. in review). No population within the areas they occupy within the Bering Sea (Wade et al. 2016, Wade structure was demonstrated between the U.S. waters. The CHRT considered and 2017). Although very limited in number, Mariana Archipelago and Ogasawara or evaluated various features of humpback photo-identified whales from the Mexico breeding areas (Hill et al. in whale habitat, such as prey, migratory breeding areas of this DPS have also review). Comparisons of samples from corridors or conditions, and sound/ been sighted in the Kodiak and the Mariana Archipelago to known soundscape. Significant considerations, Shumagin Island regions of Alaska foraging areas demonstrated significant CHRT discussions, and resulting (Calambokidis et al. 2001, Witteveen et differentiation from foraging areas in conclusions are summarized below as al. 2004, Calambokidis et al. 2008). Northern British Columbia, the Bering well as in the Draft Biological Report During the SPLASH study (2004–2006), Sea, California/Oregon, Southeast (NMFS 2019a). photo-identified individuals from this Alaska, and the Northern Gulf of Alaska; Prey as an Essential Feature DPS were matched to the Gulf of Alaska no population structure was (n=2), the Aleutian Islands/Bering Sea demonstrated between the Mariana Although written for the taxonomic (n=9), and Kamchatka feeding regions Archipelago and foraging areas in species and thus now outdated, the (n=21, Barlow et al. 2011). Russia, the Aleutian Islands, Western 1991 NMFS Recovery Plan for As indicated by the regulatory Gulf of Alaska, and Southern British humpback whales, identified four major definition of this DPS, the breeding Columbia/Washington (Hill et al. in recovery objectives, the first of which range of the WNP DPS is not fully review). While the available data was, ‘‘maintain and enhance habitats resolved. At the time of listing, the suggest that the Mariana Archipelago used by humpback whales currently or breeding range of this DPS was known may serve as humpback whale breeding historically’’ (NMFS 1991). As part of to include the waters off Okinawa and habitat, and that at least some of these that objective, we had identified the Philippines in the area of the whales likely belong to the endangered multiple recommended actions to Babuyan Islands (Barlow et al. 2011, WNP DPS, additional data are needed to further the species’ recovery, including Bettridge et al. 2015, Wade et al. 2016), fully resolve the extent to which WNP ‘‘providing adequate nutrition’’ and but additional breeding areas were DPS whales are relying on areas around ‘‘monitoring levels of prey abundance’’ suspected based on the very low match the Mariana Islands as a breeding/ (NMFS 1991). The Recovery Plan states rates for whales from feeding areas used calving habitat and the essential features that adequate nutrition is needed for the by this DPS (Calambokidis et al. 2008). of the specific area(s) being used for recovery of the species, and emphasized Recent evidence suggests an additional breeding and calving. Thus, at this time, the need to maintain and optimize breeding area for the WNP DPS is the best available scientific information levels of, and access to, prey (NMFS located off the Mariana Islands. does not support including such areas 1991). The Recovery Plan also noted Humpback whale song has been within the proposed critical habitat that humpback whales require access to detected on passive acoustic recorders designation for the WNP DPS. prey over a sufficiently widespread within the Mariana Archipelago in feeding range to buffer them from local winter months (December–April; Physical and Biological Features fluctuations in productivity or fisheries Fulling et al. 2011, Oleson et al. 2015). Essential to the Conservation of the removals (NMFS 1991). As we discuss Humpback whales have also been Species here, these considerations regarding infrequently sighted near the Mariana The statutory definition of occupied adequate nutrition and prey abundance Islands, mainly off of Saipan (Fulling et critical habitat refers to ‘‘physical or and availability are still relevant today

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for the MX, CAM, and WNP DPSs of prey. Within their North Pacific feeding MX DPS have been documented to use humpback whales. areas, humpback whales have often very nearshore waters, offshore waters Whales from each of these three DPSs been observed in association with, or within the U.S. Exclusive Economic travel to U.S. coastal waters specifically specifically targeting, dense Zone (EEZ), as well as waters out to access energy-rich feeding areas, and aggregations of prey (e.g., Bryant et al. beyond the U.S. EEZ when transiting the high degree of loyalty to specific 1981, Krieger and Wing 1986, between winter breeding areas and locations indicates the importance of Goldbogen et al. 2008, Sigler et al. 2012, summer feeding areas (Lagerquist et al. these feeding areas. Although humpback Witteveen et al. 2015), but the precise 2008, Mate et al. 2018). For MX DPS whales are generalist predators and prey range of prey densities required to whales, when complete migratory routes availability can very seasonally and support feeding are not generally known have been captured, the telemetry data spatially, substantial data indicate that and therefore cannot be described also indicate that the whales do not the humpback whales’ diet is quantitatively on the basis of the best necessarily maintain a constant distance consistently dominated by euphausiid scientific data available. Thus, it is from shore, and at different points along species (of genus Euphausia, essential that the whales not only have their migration may be closer or farther Thysanoessa, Nyctiphanes, and reliable access to prey within their from shore (D. Palacios, OSU, pers. Nematoscelis) and small pelagic fishes, feeding areas, but that prey are of a comm., June 6, 2018, Mate et al. 2018). such as northern anchovy (Engraulis sufficient density to support feeding and The depth or a depth range that the mordax), Pacific herring (Clupea the build-up of energy reserves. whales typically occupy while pallasii), Pacific sardine (Sardinops Given that each of three humpback undergoing their seasonal migrations is sagax), and capelin (Mallotus villosus; whale DPSs very clearly rely on the also not yet resolved. Nemoto 1957, Nemoto 1959, Klumov feeding areas while within U.S. waters, Satellite tagging of whales within the 1963, Rice Krieger and Wing 1984, the CHRT identified a prey biological feeding range of all three DPSs has Baker 1985, Kieckhefer 1992, Clapham feature that is essential to the occurred, and while DPSs of origin was et al. 1997, Neilson et al. 2015; See conservation of the whales. The prey not necessarily confirmed in all studies, ‘‘Diet and Feeding Behavior’’ and essential feature was specifically results consistently show considerable Appendix A in NMFS 2019a). defined as follows: variation in the fine-scale movement Because humpback whales only rarely patterns of the individual whales both feed on breeding grounds and during Prey species, primarily euphausiids and within and across years, suggesting that migrations, humpback whales must small pelagic schooling fishes of sufficient the whales are each making have access to adequate prey resources quality, abundance, and accessibility within humpback whale feeding areas to support independent decisions regarding their within their feeding areas to build up feeding and population growth. movements (Kennedy et al. 2014, Mate their fat stores and meet the nutritional et al. 2018). Thus, the CHRT concluded and energy demands associated with Migratory Corridors and Passage it is not currently possible, on the basis individual survival, growth, Features of the best scientific data available, to reproduction, lactation, seasonal spatially identify any consistently used migrations, and other normal life Given the known migratory behaviors migratory corridors or define any functions. Essentially, while on feeding of humpback whales and the very physical, essential migratory or passage grounds, the whales must finance the significant concerns regarding conditions for whales transiting energetic costs associated with entanglement and ship strikes of between or within habitats of the three migration to breeding areas, humpback whales, especially along the DPSs. reproductive activities, as well as the U.S. West Coast, the CHRT explored the The conclusion by the CHRT energetic costs associated with their possibility of defining a migratory regarding a potential migratory corridor return migration to high-latitude feeding corridor or a passage-related essential is consistent with previous critical areas. Fat storage has been linked to feature. The CHRT considered the best habitat designations for large, migratory reproductive efficiency in other species available data and also consulted with species such as Pacific leatherback sea of large, migratory, baleen whales biologists with expertise in satellite turtles (77 FR 4170, January 26, 2012) (Lockyer 2007), and some evidence telemetry and entanglement of and North Atlantic right whales (81 FR suggests that variation in prey humpback whales. Ultimately, and for 4837, January 27, 2016). In these cases, availability during summer is directly reasons summarized below, the CHRT NMFS concluded that while supporting connected to variation in annual concluded that a migratory corridor or and protecting the ability of these reproductive rates for humpback whales passage feature could not be identified, species to migrate between important in the following year (Clapham 1993). either between or within the seasonal habitats and areas was important to the Calf condition has also been habitats occupied by humpback whales conservation of the species, there was significantly correlated with female within U.S. waters. no clear migratory route or passage body condition (low calf body condition In terms of a migratory ‘‘corridor,’’ the feature that could be defined. We also with lower female condition) for available satellite tagging data do not note that, as part of a multi-agency humpback whales in Australia indicate a specific or consistently used mapping effort (CetSound, https:// (Christiansen et al. 2016), and, of all life route or routes for humpback whales cetsound.noaa.gov/cetsound), stages, lactating females have the traveling between their seasonal Biologically Important Areas (BIAs) highest energy demands (McMillan breeding and feeding areas in the North were identified in 2015 for cetacean 2014). Pacific (Mate et al. 2007, Lagerquist et species or populations within the U.S. Given the energetic demands of al. 2008, Mate et al. 2018). However, EEZ. BIAs are non-regulatory lunging and other prey capture data to resolve a specific migratory delineations that are intended to inform techniques, foraging is only expected to routes are very limited, and, in regulatory and management decisions; be profitable above some lower particular, we are unaware of any they are also not intended to be static threshold for an energetic return, and telemetry data demonstrating the delineations but can be updated as new evidence suggests that humpback seasonal migration routes or corridors data become available. While the effort whales will only feed when they for whales of the WNP DPS or the CAM to develop BIAs was not seeking to encounter suitable concentrations of DPS. Satellite tagged whales from the identify critical habitat and therefore

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does not conclusively establish which majority of the CHRT (with 2 members allow the whales to reduce acoustic areas should be considered to meet the unsure and 1 dissent) concluded that interference with natural auditory signal statutory definition of ‘‘critical habitat,’’ the best available data currently do not processing (i.e., acoustic masking). the CHRT considered (and we agree) the enable us to identify particular sound Adding to this overall complexity in BIA information to be very informative levels or to describe a certain understanding how noise impacts and important part of the best available soundscape feature that is essential to humpback whales is the fact that scientific information. Of the four the conservation of humpback whales. scientific understanding of humpback categories of BIAs—i.e., reproductive Reasons for this conclusion are whale hearing remains quite limited areas, feeding areas, migratory corridors, summarized here and discussed in more (Houser et al. 2001, NMFS 2018). and small and resident populations—no detail in NMFS (2019a). Given the highly diverse and spatially migratory corridor BIAs have been Humpback whales occur within a broad areas occupied by humpback identified to date for any population of wide range of soundscapes, and whales, as well as the mixed responses humpback whales in any ocean conclusions regarding particular sound- of humpback whales to noise, the CHRT (Ferguson et al. 2015b, see ‘‘Specific related habitat requirements for could not define a sound-related feature Areas,’’ below). Although we concur humpback whales are difficult to draw. that is essential to the conservation of with the CHRT that the best scientific Anthropogenic sounds are present in all humpback whales nor identify specific data available at this time does not parts of humpback whale habitat; areas where such a feature could be support identification of a migratory however, some areas have more sources found within the occupied ranges of the feature, we acknowledge the ongoing and higher levels of anthropogenic DPSs. Ambient sound or the management concerns of ship strikes sound than others. Sightings data ‘‘soundscape’’ is relevant to the whales’ and entanglements in fishing gear. clearly demonstrate that humpback ability to communicate and receive Humpback whales are observed whales in the North Pacific routinely sounds within the marine environment regularly in and around fishing gear and use and occupy relatively quieter areas no matter where the whales occur, and in areas of high vessel traffic, and as well as some of the noisiest areas sound or a soundscape per se does not entanglement and ship strikes continue along the U.S. West Coast (e.g., southern appear to be associated with habitat use to pose threats to all three of these DPSs. California, Redfern et al. 2017). Based or occupancy. Instead, humpback We find that these threats are of a type on the best data available, the threat of whales appear to be highly flexible in more appropriately and more directly anthropogenic noise received a ‘‘low’’ their ability to use and occupy habitats taken into account in the context of rating for all DPSs of humpback whales with varying soundscapes. This management of activities that pose a risk in the 2015 NMFS Status Review (out of flexibility may be in contrast to other of harm to individual animals (i.e., possible ratings of ‘‘unknown,’’ ‘‘low,’’ cetaceans that have very limited or ‘‘take’’) such as in interagency ‘‘medium,’’ ‘‘high,’’ and ‘‘very high;’’ restricted distributions and for which consultations under section 7 of the Bettridge et al. 2015). Several studies noise impacts, such as habitat ESA, rather than as threats to the have indicated that humpback whales, displacement, are likely to have underlying habitat. While ship strikes which are predicted to have a low- measureable effects on stress, foraging and entanglements will continue to be frequency hearing range of roughly 7 Hz success, survival, reproduction, etc. treated as ‘‘take’’ issues and managed as to 35 kHz (NMFS 2018), may even (Forney et al. 2017). We note, however, threats to the animals to the extent habituate to certain low-frequency that substantial data gaps and various possible under the ESA and MMPA, noises (Sivle et al. 2016, Di Clemente et shortcomings for much of the existing, should these threats or other activities al. 2018, Teerlink et al. 2018)—one of relevant literature (such as limited (e.g., large-scale aquaculture), either the most ubiquitous sources of which is duration of assessments, limited independently or in combination, commercial vessels (Hildebrand 2009). geographic scale of observations, prevent or impede the whales’ ability to Behavioral responses of humpback uncertainty regarding actual mechanism access prey, we would consider that as whales to noise are highly variable for observed responses, uncertainty in constituting a negative impact on the across habitats and even among the received levels of noise, and other defined prey feature, which inherently individual whales, and many factors can confounding factors associated with the includes consideration of influence whether and how noise will particular study locations) prevent a ‘‘accessibility.’’ In other words, the affect a whale, including past exposure clear understanding of the acoustic whale’s ability to move freely to access to a noise, individual noise tolerance, ecology of humpback whales. their prey while on the feeding grounds age, breeding status (with or without Furthermore, broader and longer-term is inherent in the prey essential feature calf), and current behavioral state of the consequences of noise on the fitness and as proposed. whale (e.g., resting versus migrating; viability of humpback whales are not Malme et al. 1985, Krieger and Wing yet known (NRC 2003, Wartzok et al. Sound or a Soundscape Feature 1986, Richardson et al. 1995, 2003, NRC 2005, Bettridge et al. 2015, The CHRT considered at length the Richardson and Wu¨ rsig 1997, NRC Gomez et al. 2016). Thus, although the importance of sound to humpback 2003, Sivle et al. 2016, Wensveen et al. CHRT ultimately concluded that the whales and whether the best scientific 2017). Responses to noise are also best scientific data available do not data available supported the dependent on characteristics of the support identifying or describing a identification of a sound-related noise– e.g., pulse or non-pulse, moving sound-related essential habitat feature at essential feature of the whales’ occupied or stationary noise, novel or common, this time, improved understanding of habitats. As discussed in detail in the etc. (Richardson et al. 1997, Southall et the acoustic ecology of humpback Draft Biological Report, humpback al. 2007, Ellison et al. 2012). Results of whales in the future may eventually whales generate a variety of sounds and several studies demonstrate that lead to a different conclusion. use sound for communicating and for humpback whales exhibit behavioral We agree with the CHRT’s assessment sensing their environment. Ultimately, plasticity in their communication and and note that some effects of noise on although the CHRT members fully signaling strategies in response to whales are direct effects on the animals, acknowledged that the whales’ sensory increases in ambient noise (e.g., Dunlop and that NMFS already analyzes such ability to perceive and process sounds is et al. 2010, Dunlop et al. 2014, Fournet effects in connection with evaluation of an important aspect of their biology, the et al. 2018), which in some cases may the activities that generate noise under

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the MMPA and section 7 of the ESA. We consultations on particular proposed Zador and Yasumiishi 2017 and 2018, also note that if data indicate that Federal actions, we can point, for Bordeur et al. 2018, Jones et al. 2018). anthropogenic noise from a particular example, to our authorities to manage Observations of whales with poor body Federal action is impacting the prey Federal fisheries under the Magnuson- condition, called ‘‘skinny whales’’ due such that the whales cannot capture or Stevens Fishery Conservation and to their emaciated appearance, have access prey within their feeding areas Management Act (16 U.S.C. 1801, et been reported in recent years in Prince (e.g., prey densities are decreased such seq.) to demonstrate that management of William Sound and Glacier Bay, Alaska that whales cannot feed), such an effect the prey feature is not only possible but (Straley et al. 2018; and see https:// would constitute an impact on the is ongoing. We therefore conclude that irma.nps.gov/DataStore/DownloadFile/ proposed prey essential feature. the prey feature may require special 620535). The lowest calving rates on management considerations or record (since 1985) have also been Special Management Considerations or protection. These threat categories are observed in recent years (2016–2018, Protection summarized here and discussed in more https://irma.nps.gov/DataStore/ A specific area within the geographic detail in the Draft Biological Report DownloadFile/620535) in Southeast area occupied by a species may only be (NMFS 2019a). Alaska, and juvenile return rates to the designated as critical habitat if the areas area are also low (Gabriele and Neilson Climate Change contains one or more essential physical 2018). It is not yet clear whether or biological feature that ‘‘may require Multiple studies have detected nutritional stress or some other factor special management considerations or changes in the abundance, quality, and (e.g., parasites, disease) is the cause of protection’’ (16 U.S.C. 1532(5)(A)(ii); 50 distribution of species that serve as prey the poor body condition and observed CFR 424.12(b)(iv)). ‘‘Special for humpback whales in association low calving rates of these whales, but management considerations or with climate shifts, particularly with some researchers hypothesize that protection’’ is defined as methods or ocean warming. The nature and extent reduced prey availability and/or quality procedures useful in protecting the of impacts have varied across study driven by the marine heat wave of physical or biological features essential areas and species; however, in many 2013–2016 and other climate factors is to the conservation of listed species (50 cases, ocean warming has led to the likely cause (Gabriele and Neilson CFR 424.02). Courts have made clear negative impacts on humpback whale 2018). that the ‘‘may require’’ standard requires prey species. For instance, in the that NMFS determine that special California Current Ecosystem (CCE), Direct Harvest management considerations or during the anomalous warming of the Within the areas under consideration protection of the features might be upper ocean and weak upwelling from for designation, a few fisheries directly required either now or in the future, but 2013–2016, often referred to as the target prey species that form a major such considerations or protection need ‘‘blob’’ or the ‘‘warm blob,’’ sharp part of the humpback whale diet (e.g., not be immediately required. See Cape decreases in euphausiid biomass were Pacific herring, Pacific sardine, northern Hatteras Access Pres. Alliance v. U.S. observed, as evidenced by declines in anchovy), and other fisheries can Dept. of Interior, 344 F. Supp. 2d 108, both abundance and body length incidentally capture important prey 123–24 (D.D.C. 2004); Home Builders (Harvey et al. 2017, Peterson et al. species. This creates the potential for Ass’n of N. California v. U.S. Fish and 2017). Comparisons of samples direct competition between humpback Wildlife Serv., 268 F. Supp. 2d 1197, collected in the Northern California whales and certain fisheries (Trites et al. 1218 (E.D. Cal. 2003). The relevant Current region during years of cool 1997). In fact, current management of management need may be ‘‘in the future (2011, 2012), warm (2000, 2002), and key forage species like Pacific sardine based on possibility.’’ See Bear Valley intermediate (2015, 2016) conditions, and northern anchovy under their Mut. Water Co. v. Salazar, No. SACV also indicated that body condition of associated Federal fishery management 11–01263–JVS, 2012 WL 5353353, at northern anchovy, Pacific herring, and plan includes a specific objective of *25 (C.D. Cal. Oct. 17, 2012. See also Pacific sardine were better in cool years providing adequate forage for dependent Center for Biological Diversity v. Norton, compared to warm years, and species, like whales and other higher 240 F. Supp. 2d 1090, 1098–99 (D. Ariz. significantly so for anchovy and herring trophic level species (PFMC 2019). 2003) (noting that the ‘‘may require’’ (Brodeur et al. 2018). During the Humpback whales target large, dense phrase can be rephrased and understood anomalous warm blob event, sardine schools of prey, and the best available as ‘‘can require’’ or ‘‘possibly requires’’). spawned earlier and appeared farther data support the conclusion that, though Four broad categories of actions, or north within the Northern California not yet quantifiable, there is a density threats, were identified by the CHRT as Current than in previous years (Auth et threshold below which humpback having the potential to negatively al. 2018). Shifts in prey abundance and whales will not feed or cannot feed impact the essential prey feature and the distributions may lead to corresponding effectively due to trade-offs with the ability of feeding areas to support the shifts in marine mammal distributions energetic demands of feeding. conservation of listed humpback whales (King et al. 2011). In Monterey Bay, Consequences of prey depletion as a in the North Pacific: Climate change, California, such a response was reported result of fishing activities are also likely direct harvest of the prey by fisheries, for blue, fin, and humpback whales, the to be exacerbated in years when marine pollution, and underwater noise. densities of which all declined with El alternative humpback whale prey Each of these threats could Nin˜ o -associated declines in species are naturally low in abundance independently or in combination result euphausiids (Benson et al. 2002). due to climate or environmental factors. in the need for special management or Consequences of climate-driven and Sufficient depletion of prey on the protections of the essential prey feature. climate-related reductions in the quality feeding grounds can lead to nutritional The ‘‘may require’’ standard is met or and abundance of prey species can stress, which in turn can lead to exceeded with respect to management of cascade upwardly through ecosystems decreases in body condition, size, the essential prey feature. Although we by decreasing energy transfers to higher reproductive output, and survival (as in do not speculate as to what specific trophic levels and potentially even Steller sea lions, Trites and Donnelly conservation measures might be causing reproductive failures and die- 2003; gray whales, Bradford et al. 2012; required in the future through section 7 offs of some predators (Coyle et al. 2011, right whales, Seyboth et al. 2016). For

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humpback whales in the Atlantic from health and fitness consequences to Hobron and Akutan, Alaska, where they Ocean, there is some evidence that mortality and reductions in abundance were once heavily exploited (Zerbini et variation in prey availability during the (Popper and Hastings 2009, Kight and al. 2006). The NMFS 2017 Marine summer may be connected to variation Swaddle 2011, Radford et al. 2014). For Mammal Stock Assessments for the in annual reproductive rates in the instance, there is evidence that marine Western and Central North Pacific following year (Clapham 1993). seismic surveys can result in behavioral regions conclude that humpback whales effects as well as significant injury and are currently found throughout their Marine Pollution mortality of fishes and zooplankton historical feeding range (Muto et al. Although pollution was not identified (McCauley et al. 2017, Carroll et al. 2018). Because ESA-listed humpback as a significant threat to any of the 2017); however, such impacts may be whales are considered to occupy their North Pacific DPSs of humpback whales relatively short in duration and spatially entire historical range that falls within in the recent status review (Bettridge et limited (to within the survey footprint U.S. jurisdiction, we find that there are al. 2015), consumption of contaminated and extending out ∼15 km) and may be no unoccupied areas that are essential to or low quality prey may negatively minimized by ocean circulation their recovery and further conclude that affect the health, population growth, (Richardson et al. 2017). Available a designation limited to geographical and ultimately the recovery of listed research also suggests that other noises areas occupied by humpback whales humpback whales. Humpback whales in the marine environment from sources would be adequate to conserve the three are susceptible to bioaccumulation of such as impact pile driving and listed DPSs. lipophilic contaminants because they underwater explosives may have Specific Areas Containing the Essential have long lifespans and large fat negative consequences on certain Feature deposits in their tissues. Some species of fish and invertebrates such as contaminants may also be passed to trauma or tissue damage, mortality (of To determine what areas qualify as young whales during gestation and various life stages), stress, disruptions of critical habitat within the geographical lactation (as in fin whales, Aguilar and schooling, or reduced foraging success area occupied by the species, we are Borrell 1994). In comparisons of (Popper and Hastings 2009, Weilgart required to identify ‘‘specific areas’’ that samples collected from Northern 2017). Whether and how specific contain the physical or biological Hemisphere feeding grounds, Elfes et al. humpback whale prey are currently features essential to the conservation of (2010) reported that concentrations of being impacted by various noise sources the species (50 CFR 424.12(b)(1)(iii)). contaminants within humpback whale and levels is not yet clear, but the Delineation of the specific areas is done blubber were high in southern available information is sufficient to ‘‘at a scale determined by the Secretary California and in the Northern Gulf of indicate that ocean noise poses a [of Commerce] to be appropriate’’ (50 Maine. Marine pollution in the form of management concern for many fish and CFR 424.12(b)(1)). Regulations at 50 plastics is also a concern for marine invertebrate species such that they may CFR 424.12(c) also require that each systems worldwide, and microplastics require management considerations or critical habitat area be shown on a map. in particular have entered into marine protection (Hawkins and Popper 2017). In determining the scale and systems and food webs. Microplastics boundaries for the specific areas, the could be consumed via contaminated Unoccupied Areas CHRT considered, among other things, prey or ingested directly by whales Section 3(5)(A)(ii) of the ESA the scales at which biological data are when microplastics co-occur in the authorizes the designation of specific available and the availability of water column with target prey. areas outside the geographical area standardized geographical data Marine pollution may also lead to occupied by the species if those areas necessary to map boundaries. Because secondary impacts on the whales’ are determined to be essential for the the ESA implementing regulations allow habitat. For instance, pollution from conservation of the species. Recently for discretion in determining the untreated industrial and domestic revised regulations at 50 CFR appropriate scale at which specific areas wastewater may be contributing to the 424.12(b)(2), similar to the regulations are drawn (50 CFR 424.12(b)(1)), we are occurrences of algal blooms. During that were in effect prior to 2016, require not required to, nor was it possible to, some algal blooms, toxins (e.g., that we first evaluate areas occupied by determine that each square inch, acre, or saxitoxin, domoic acid) can become the species and only consider even square mile independently meets increasingly concentrated as they move unoccupied areas to be essential where the definition of ‘‘critical habitat.’’ A up the food chain. Although much of a critical habitat designation limited to main goal in determining and mapping the humpback whales’ prey are lower geographical areas occupied would be the boundaries of the specific areas is to trophic-level species, several unusual inadequate to ensure the conservation of provide a clear description and mortality events have been documented the species (84 FR 45020; August 27, documentation of the areas containing in the Atlantic Ocean, indicating that 2019; effective September 26, 2019). the identified essential feature. This is such toxins can pose a concern for Within the North Pacific Ocean, ultimately crucial to ensuring that humpback whales. During one event in humpback whales historically ranged Federal action agencies are able to which 16 humpback whale carcasses throughout all coastal areas of Asia and determine whether their particular were found, some of the humpback North America. Although humpback actions may affect the critical habitat. whales had saxitoxin poisoning and/or whale abundances were greatly reduced Another goal of this effort was to contained domoic acid (Gulland 2006). throughout their range by commercial delineate specific areas in a manner that In another event, 14 humpback whales whaling (Rice 1978, Rice and Wolman would facilitate subsequent analyses for were determined to have died as a result 1982, Johnson and Wolman 1984), they each humpback whale DPS under of consuming Atlantic mackerel still occur in areas where they were section 4(b)(2) of the ESA (e.g., containing saxitoxin (Geraci et al. 1989). once targeted by commercial whaling consideration of economic impacts). See operations, or to some degree have 16 U.S.C. 1533(b)(2). Ocean Noise returned to areas where they had not Ultimately, based on a review of the Lastly, effects of noise on fish and been observed for many years. For best available data, the CHRT delineated zooplankton species, which is a topic of instance, humpback whales are common 19 specific areas along the coasts of increasing research attention, may range in the former whaling grounds off Port Alaska, Washington, Oregon, and

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California that meet the definition of ‘‘critical habitat’’ because the best whales in these areas, humpback whale critical habitat for one or more of the available scientific data indicate that the sightings data, and/or presence of three DPSs of whales (Figure 1). Each of essential feature is present, as evidenced humpback whale prey. these areas meets the definition of by documented feeding behavior of the BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C models were made for the entire U.S. Washington, Oregon, and California to In delineating the specific areas, the West Coast from the coast to 300 nmi delineate the shoreward boundary for CHRT applied identified datasets in a offshore (the study area was critical habitat units in each of those systematic way across each region and approximately 1,141,800 km2). respective regions. Based on the depth- DPS to ensure consistency in how Predictions from the winter/spring frequency histograms for Alaska, the 1- boundaries were determined. The models were made in a subset of this m depth contour (relative to mean lower approach and data used by the CHRT region: south of 38° N and east of 125° low water (MLLW)) or a BIA boundary, are summarized here; further detail is W (the study areas was approximately whichever was closer to shore, was provided in the Draft Biological Report 385,460 km2.) The Becker et al. 2016 selected as the nearshore boundary for (NMFS 2019a). First, the CHRT and 2017 models summarize expected the habitat units in Alaska. Humpback considered the humpback whale BIAs humpback whale distributions in the whales in Alaska have frequently been and decided that the BIAs would remain CCE over a long time-period and observed feeding extremely close to intact within a given specific area incorporate oceanographic variability shore during high tide (J. Moran, AFSC, unless there was a compelling reason to observed during the surveys. pers. comm., May 23, 2018), which change or divide it. As noted earlier, the The Becker et al. (2016 and 2017) comports with the CHRT’s selection of humpback whale BIAs have all been models predicted humpback whale the 1-m depth contour (or isobath). identified as ‘‘feeding’’ BIAs, which are abundance in approximately 10 by 10 Based on the depth frequency defined as follows: km grid cells. Cells containing the histograms for the U.S. West Coast, the Areas and times within which aggregations highest 90 percent of the predicted CHRT selected the 50-m isobaths as the of a particular species preferentially feed. study area abundance were used to help shoreward boundary for each specific These either may be persistent in space and delineate the offshore extent of the area unless it clipped out a portion of time or associated with ephemeral features specific areas. (All or 100 percent of the a BIA. Cases where this occurred (i.e., that are less predictable but are located predicted abundance had a distribution within a larger area that can be delineated Units 16 and 17) and how it was (Ferguson et al. 2015b). that extended out to and even beyond addressed are discussed in more detail the U.S. EEZ.) The Becker et al. (2016 in the descriptions of each specific area. As discussed in Van Parijs (2015) and and 2017) predictions also contributed In the following sections, we provide Ferguson et al. (2015b), BIAs were to delineating the north/south additional details regarding the developed for cetacean species within boundaries between the specific areas. boundaries of each of the 19 specific all regions of the United States through As no such coast-wide habitat model is areas and briefly describe humpback rigorous reviews of survey data and available for Alaska, the CHRT relied on whales’ use of the specific area. We note habitat models by multiple teams of published surveys and available that these delineations of specific units scientists. BIAs were identified to sightings data. Where available, of habitat do not necessarily represent inform regulatory, management, and humpback whale sightings data were discrete feeding aggregations or conservation decision-making by mapped and overlaid with the BIAs to populations of humpback whales— NOAA, other Federal agencies, and the inform selection of boundaries between individual whales generally move public. Although the BIAs are non- specific areas. across many of these boundaries. More regulatory, non-binding, and were not For applicable habitat units, the detailed information regarding whale intended to be synonymous with critical CHRT also considered the polygons and prey distributions is provided in the habitat under the ESA, they were derived from ARS data from satellite- Draft Biological Report (NMFS 2019a). regarded by the CHRT as an important tagged whales (Mate et al. 2018). These source of the best available data and polygons provided the CHRT with Unit 1—Bristol Bay very informative to their review of areas additional information and support This unit is bounded along the that meet the definition of critical regarding where humpback whales feed northern edge by a line extending due habitat for humpback whales. The and over what size area they may feed. west from Egegik (at 58°14′ N, 157°28′ CHRT was also aware that humpback When considering these data, the CHRT W) to encompass the humpback whale whale BIAs for Alaska and for the U.S. only used polygons representing the BIA within Bristol Bay. The boundary West Coast were developed by different overlay of two or more individual then extends southwest and then teams and were supported by very whales (i.e., data representing southward tangentially along the BIA to different types and levels of data, and movements of just a single whale were the coastline at Moffet Point (55°27′ N, that, therefore, the BIAs for these two not determinative of specific area 162°35′ W). The nearshore boundary of major regions were not entirely boundaries). this unit follows the 1-m isobath consistent in terms of how they were To determine where to draw (relative to MLLW). This unit covers ultimately drawn. nearshore boundaries for the specific 19,279 nmi2 and includes waters off For U.S. West Coast areas areas, the CHRT created depth- Bristol Bay and Lake and Peninsula (Washington, Oregon, and California), frequency histograms using sightings Boroughs, and a small portion of the CHRT applied the results of a data from multiple studies (e.g., Aleutians East Borough. habitat model for the CCE that Calambokidis et al. 2008, Zerbini et al. Unit 1 boundaries were drawn based incorporated 275 humpback whale 2006, Baker et al. 2016). Collectively, largely on the location of a humpback sightings from seven systematic line- the sightings datasets represent results whale feeding BIA, which was in turn transect cetacean surveys conducted in of different types of sampling efforts identified largely based on results of summer and fall (July–December) (e.g., targeted small boat surveys, systematic surveys reported in Clapham between 1991–2009 (Becker et al. 2016) systematic line-transect surveys), et al. 2012, Friday et al. 2012, and and a habitat model for southern different time-periods (2001–2003, Friday et al. 2013, indicating high California (i.e., Units 16–19) that 2004, 2005), and different study densities of humpback whales in this incorporated 53 humpback whale locations. Rather than select any one area (see Ferguson et al. 2015c). sighting from 20 surveys conducted particular data set or study over another, However, Unit 1 extends farther into between 2005 and 2015 during winter the CHRT generated depth frequency Bristol Bay relative to the BIA to reflect and spring (January- April, Becker et al. histograms from all these sightings in sightings from 1999 aerial surveys of 2017). Predictions from the summer/fall Alaska and for all sightings off of Bristol Bay (Friday et al. 2012) and

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sightings from the 2017 IWC Pacific the BIA and extends eastward to 164°25′ follows the 1-m isobath (relative to Ocean Whale and Ecosystem Research W. The nearshore boundary of this unit MLLW). This unit is mainly within the Program (POWER) survey (Matsuoka et is the 1-m isobath (relative to MLLW). Aleutians East Borough but includes a al. 2018) indicating that humpback This unit includes waters off the small portion of the Lake and Peninsula whales may also be common in these Aleutian East and Aleutian West Borough. Unit 3 covers 13,162 nmi2 of waters. The southern, nearshore Boroughs. Unit 2 covers 28,829 nmi2 of marine habitat. boundary was drawn to accommodate marine habitat. This area was drawn from the the nearshore areas (around the 50 m This area encompasses a humpback boundary of Unit 2 eastward to isobath) indicated by sightings reported whale feeding BIA, which was drawn to encompass an identified BIA (Ferguson in Friday et al. (2013). Unit 1 does not include high density sightings of et al. 2015a). This BIA is within the extend into the intertidal portions of humpback whales as reported in Zerbini 1,000-m isobath, which was selected as northern Bristol Bay based on the lack et al. 2006, Clapham et al. 2012, Friday the offshore boundary for this unit. of detections of humpbacks in the small et al. 2012, and Friday et al. 2013 (See Surveys conducted within this area bays along the coast of northern Bristol Ferguson et al. 2015c). Telemetry and indicate that feeding aggregations of Bay (Friday et al. 2012, Matsuoka et al. sightings data indicate that humpback humpback whales consistently occur in 2018, and J. Moran, AFSC, pers. comm. whales use the coastal waters to the coastal areas south of these islands and May 23, 2018). Humpback whale north and south of the islands as well around the Shumagin Islands (Waite et sightings collected within North Pacific as within the passes (Zerbini et al. 2006, al. 1999, Witteveen et al. 2004, Zerbini right whale critical habitat during Sigler et al. 2012, Kennedy et al. 2014). et al. 2006, Wynne and Witteveen 2013), systematic vessel and aerial surveys The western edge of the Unit 2, where the whales have been observed conducted by the National Marine however, does not include the small targeting dense schools of krill (Wynne Mammal Laboratory (NMML) were portion of the BIA that extends west of and Witteveen 2013). During the considered but were not determinative Samalga Pass. The reason why the University of Alaska’s Gulf Apex of the area’s boundaries given the high boundary was selected for the critical Predator-Prey (GAP) Study surveys intensity of effort represented by those habitat unit is that this pass coincides within this area, conducted across 14 surveys and the resulting significant with an abrupt oceanographic break, feeding seasons, 654 individual upwards bias in the humpback whale and the frequency of humpback whale humpback whales were identified out of sightings documented in this area. sightings have been very low or absent 1,437 total sightings. Analyses of these Surveys conducted during 2004 and west of Samalga Pass (Zerbini et al. sightings indicate a fairly high degree of 2006–2010 within the eastern Bering 2006; P. Wade, pers. comm., May 23, site fidelity to this area, with an average Sea and that overlapped with a portion 2018). The northwestern edge of the annual rate of return of 37 percent (SD of Unit 1, indicated widespread and Unit 2 also extends slightly north of the = 11.8%; Witteveen and Wynne 2016a). persistent concentrations of euphausiids BIA, because available sightings data Surveys conducted in 1985 indicated in the survey area (Sigler et al. 2012). indicate humpback whales use waters that humpback whales were widely Stomach content analyses and north of Unimak Pass and along the distributed throughout this area but corresponding fish distributions middle and outer Bering Sea shelf and were typically observed near island indicate humpback whales may also slope (Calambokidis et al. 2008, Friday complexes, the shelf break, and banks, feed on various species of schooling et al. 2012, Friday et al. 2013, Matsuoka such as Sanak Bank, Shumagin Bank, fish, such as capelin and sand lance, in et al. 2018). Surveys conducted during and an additional unnamed bank, with this region (Nemoto 1959, Ormseth 2004 and2006–2010 within the eastern repeated observations of whales at both 2015, Andrews et al. 2016). Bering Sea indicated widespread and Shumagin Bank and the unnamed bank Photo-identification data are not persistent concentrations of euphausiids (Brueggeman et al. 1987). available to validate occurrences of in this area (Sigler et al. 2012), and Photo-identification data indicate this particular DPSs within this unit; general additive models using area is a destination for whales from the however, the available data suggest this environmental datasets from summers HI, MX, and WNP DPSs (Witteveen et area is a destination for whales from the 2008–2010 for the Eastern Bering Sea al. 2004, Calambokidis et al. 2008). Hawaii (HI, which are not listed), WNP, also predict relatively high levels of Unit 4—Central Peninsula Area and MX DPSs (Baker et al. 2013). Five euphausiid biomass occurring within marked whales are also documented to this area (Zerbini et al. 2016). In The western edge of this area extends have moved between this general region addition to targeting euphausiids, along 158°39′ out to a line and the WNP breeding grounds (Omura humpback whales also consume corresponding to the 1,000-m isobath, and Ohsumi 1964). multiple fish species occurring in this which marks the offshore boundary. The eastern boundary is at 154°54′ W, just Unit 2—Aleutian Island Area region such as capelin, sand lance, Atka mackerel, and walleye pollock (Nemoto east of the Shumagin Islands. The This unit includes waters along the 1959, Ormseth 2015, 2017). nearshore boundary of this unit follows northern side of Unimak Island, waters Photo-identification data indicate this the 1-m isobath (relative to MLLW). around Umnak and Unalaska Islands, area is a destination for whales from the This unit is within the Lake and and waters within Umnak and Unimak HI, WNP, and MX DPSs (Calambokidis Peninsula Borough. Unit 4 covers Pass. At its eastern edge, the northern et al. 2008). 15,026 nmi2 of marine habitat. boundary of this area extends from This area captures the waters between 55°41N/162°41′ W, tangentially along Unit 3—Shumagin Islands Area two identified feeding BIAs. Survey data the northern edge of a humpback whale This area extends from 164°25′ W indicate that humpback whales are BIA west out to 169° 30’ W. The western eastward to 158°39′ W and encompasses consistently found in these waters boundary extends southward through the feeding BIA around the Shumagin (Brueggeman et al. 1989, Zerbini et al. Samalga Pass to the BIA boundary on Islands. The area is bounded on its 2006) and at least occasionally transit the south side of the islands, which southern (offshore) edge by a line drawn between the Shumagin Island area and corresponds closely to a line drawn along the 1,000-m isobath, which also Kodiak Island (5 of 171 whales; along the 2,000-m isobath. This runs along the southern edge of the BIA. Witteveen et al. 2004). Results of southern boundary follows the edge of The nearshore boundary of this unit systematic surveys conducted in the

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summers of 2001, 2002, and 2003, Cook Inlet and Prince William Sound the Kodiak Island area (Unit 5) have indicate that fin whales occurred in (Waite et al. 1999, Witteveen et al. been observed (Witteveen et al. 2011), high densities in Unit 4, and in 2011). Waite et al. (1999) estimated that indicating that the whales feeding in particular around the Semidi Islands, only 3 to 6 percent of the Kodiak whales this area do not comprise a completely relative to the adjacent areas (Units 3 also visit Prince William Sound, and the distinct feeding aggregation. Based on and 5); while humpback whales had the two areas are viewed as supporting stable isotope analyses of pooled skin opposite distribution pattern (Zerbini et largely separate feeding groups (Waite et samples collected from whales found al. 2006). Brueggeman et al. (1989) al. 1999, Witteveen et al. 2011). during the feeding season (May— report a fairly similar pattern based on Humpback whales were also historically December) in lower Cook Inlet, Kenai their aerial and shipboard surveys common in this area and were taken in Fjords, and Prince William Sound conducted in 1985 and 1987, a commercial whale fishery that region, humpback whales in this area respectively. Although these two whale operated out of Port Hobron, off the appear to primarily consume fish species are often sympatric and have southeastern coast of Kodiak Island species (Witteveen et al. 2011). overlapping diets, previous surveys and (Witteveen et al. 2007). While the Photo-identification data demonstrate isotope analyses have provided whales occur throughout this area, they that HI and MX DPS whales occur in evidence of trophic niche partitioning appear to be most abundant off the this area (Calambokidis et al. 2008). between fin and humpback whales, with northeastern and southern coastlines, WNP DPS whales have not been photo- the latter being more piscivorous and are less frequently observed within identified in this specific area; however, (Wynne and Witteveen 2013, Shelikof Strait (Zerbini et al. 2006). their presence in this area has been Gavrilchuk et al. 2014, Witteveen et al. Relative proportions of prey items inferred based on available data 2015, Witteveen et al. 2016). within the humpback diet have been indicating that humpback whales from Photo-identification data demonstrate shown to vary between years, but key WNP wintering areas occur in this that this area is a destination for whales prey targeted by the whales within this general region of Alaska (NMFS 2019a, from the HI and MX DPSs unit include krill, capelin, juvenile Table C8). (Calambokidis et al. 2008). WNP DPSs pollock, sand lance (Witteveen et al. Unit 7—Kenai Peninsula Area whales have not been photo-identified 2012, Wright et al. 2016). in this area but their presence has been Photo-identification data demonstrate This area extends eastward from inferred based on documented this area is a destination for whales from 150°40′ W at the boundary with Unit 5 occurrences in the adjacent units (i.e., the HI, MX, and WNP DPSs (Kodiak Island Area) to 148°31′ W, and Units 3 and 5). (Calambokidis et al. 2008). extends offshore to a boundary marked by the 1,000-m isobath. The nearshore Unit 5—Kodiak Island Area Unit 6—Cook Inlet boundary of this unit is the 1-m isobath This area includes the waters around This area extends from the mouth of (relative to MLLW). This unit measures Kodiak Island and the Barren Islands. Cook Inlet where it is bounded by a line 8,496 nmi2 and is within the Kenai The western boundary runs southward that extends from Cape Douglas across Peninsula Borough. along 154°54′ W to a line that follows the inlet to Cape Adam. The northern This area captures the region the 1,000-m isobath, and then extends boundary is the 60°20′ N latitude line, separating the Kodiak Island and Prince eastward to a boundary at 150°40′ W. just south of Kalgin Island. The William Sound BIAs and includes The area also extends northward to the nearshore boundary of this unit is the feeding areas around the Kenai Fjords. mouth of Cook Inlet where it is bounded 1-m isobath (relative to MLLW). This Estimated densities of humpback by a line that extends from Cape area borders the Kenai Peninsula whales within the shelf portion of the Douglas across the inlet to Cape Adam. Borough. This unit covers 3,366 nmi2 of Navy Temporary Maritime Activities The nearshore boundary of this unit marine habitat. Area, which overlaps with a portion of follows the 1-m isobath (relative to The southern boundary of this area Unit 7, has ranged from 0.0930 in 2013 MLLW). This unit is within the Kodiak approximates the ecological shift (CV = 0.74) to 0.0050 in 2015 (CV = Island Borough but includes a small between the Kodiak Island Area (Unit 5) 0.32, Rone et al. 2017). Based on results portion of the Kenai Peninsula Borough. and Cook Inlet. Unit 6 does not include reported in Witteveen et al. 2011, site Unit 5 covers 17,420 nmi2 of marine the upper portions of Cook Inlet, fidelity of humpback whales to this area habitat. because humpback sightings are rare can be inferred to be fairly high. Inter- This area was drawn to capture the north of Kalgin Island despite extensive, annual movement of whales has also Kodiak Island BIA, as well as routine aerial surveys of this area for been observed between this area and the documented aggregations of humpback Cook Inlet beluga whales (K. Sheldon, coastal waters around Kodiak Island whales around the Barren Islands and in NMML, pers. comm., August 2, 2018). (Witteveen et al. 2011). As noted waters to the east of Kodiak (Rice and North of the Forelands, the inlet previously for Unit 6, stable isotope Wolman 1982, Zerbini et al. 2006, becomes shallow and highly turbid due analyses of pooled skin samples Ferguson et al. 2015a, Rone et al. 2017). to deposition of glacial silt. With its collected from whales found during the Waters around Kodiak Islands have extreme tidal range, mudflats, and low feeding season (May—December) in been surveyed extensively since 1999 as visibility, the upper inlet does not Kenai Fjords, lower Cook Inlet, and part of the GAP study. Over 17 years of provide suitable feeding habitat for Prince William Sound region, suggest GAP surveys in this area, 1,187 unique humpback whales despite the presence that humpback whales in this area humpback whales were identified in the of prey species (e.g., eulachon). primarily consume fish species Kodiak region (out of 2,173 total Humpback whales are routinely sighted (Witteveen et al. 2011). sightings), with an average annual rate in the lower portions of the inlet Photo-identification data demonstrate of return of 35 percent (SD = 15.2 (NMML, unpubl. data, 1994–2018), but this area is a destination for whales from percent, Witteveen and Wynn 2016), the density of whales and level of site the HI and MX DPSs (Calambokidis et indicating a high degree of site fidelity fidelity of humpback whales to this al. 2008). Satellite telemetry data also to this area. Some inter-annual feeding area has not been established. indicate this is a destination for MX movement of whales has also been Inter-annual movements of humpback DPS whales. A calf tagged off the observed between this area and lower whales between lower Cook Inlet and Revillagigedo Islands in 2003, travelled

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to the Gulf of Alaska with its mother percent of the Kodiak whales also visit DPS in this specific area; however, and spent 30 days feeding on Portlock Prince William Sound, and the two presence of these whales has been Bank (located largely within Unit 7) areas are thought to support largely assumed based on available data until tracking ceased (Lagerquist et al. separate feeding groups (Waite et al. suggesting that humpback whales from 2008). WNP DPS whales have not been 1999, Witteveen et al. 2011). WNP wintering areas could occur in this photo-identified in this specific area, Photo-identification data confirm this general region (NMFS 2019a, Table C8). but presence of WNP DPS whales has area is a destination for whales from the Given the increased distance of this unit been assumed based on available data HI and MX DPSs (Baker et al. 1986, from other confirmed sighting of whales indicating that humpback whales from Calambokidis et al. 2008). WNP DPS from the WNP DPS, there is greater WNP wintering areas occur within the whales have not been photo-identified uncertainty regarding whether WNP Gulf of Alaska (NMFS 2019a, Table C8). in this specific area; however, presence DPS whales occur in this unit. has been assumed based on available Unit 8—Prince William Sound Area data indicating that humpback whales Unit 10—Southeastern Alaska This area extends from 148°31′ W from WNP wintering areas occur in the This area extends from 139°24′ W, eastward to 145°27′ W, and extends Gulf of Alaska (NMFS 2019a, Table C8). southeastward to the U.S. border with offshore to a boundary drawn along the Canada and encompasses a humpback 1,000-m isobath. The nearshore Unit 9—Northeastern Gulf of Alaska whale BIA. The area also extends boundary of this unit is the 1-m isobath This area extends from 145°27′ W to offshore to a boundary drawn along the (relative to MLLW). This unit is within 139°24′ W and to an offshore drawn 2,000-m isobath, which corresponds to the Valdez-Cordova Borough and covers along the 1,000-m isobath. The the offshore extent of the BIA. The 8,166 nmi2 of marine habitat. nearshore boundary of this unit is the 1- nearshore boundary of this unit also This area was drawn to encompass m isobath (relative to MLLW). This unit corresponds to the BIA boundary. This the Prince William Sound feeding BIA mainly borders Yakutat Borough, but unit borders unorganized boroughs, but (Ferguson et al. 2015a), which was also borders a small portion of Valdez- includes water off of Skagway-Hoonah- identified based on studies conducted Cordova. Unit 9 covers 9,065 nmi2 of Angoon, Haines, Juneau, Sitka, mainly in the western and southern marine habitat. Petersburg, Wrangell, and Ketchikan portions of the sound (e.g., von Ziegesar This area was drawn to capture a Gateway. Unit 10 covers 22,152 nmi2 of et al. 2001, Rice et al. 2011). The BIA section of the Gulf of Alaska between marine habitat. encompasses the portion of this unit two feeding BIAs (in Units 8 and 10). This area was drawn to encompass where humpback whale densities have Surveys within this unit have been well established feeding grounds in been documented to be high and where relatively limited. Surveys conducted in southeast Alaska and an identified feeding aggregations have been June–August of 1980 by Rice and feeding BIA (Andrews 1909, Baker et al. consistently observed. Survey effort has Wolman (1982) indicated that 1985, Straley 1990, Dahlheim et al. been very limited in the areas outside of humpback whales were sparsely 2009, Ferguson et al. 2015a). Humpback the BIA, especially the shelf waters. distributed in the Gulf of Alaska whales occur year-round in this unit, This unit was drawn to include waters (populations were still depleted), but with highest densities occurring in beyond the boundaries of the BIA based they noted minor aggregations of summer and fall (Baker et al. 1985, on the additional sightings reported in humpback whales in Yakutat Bay (13 1986). Periods of occupancy of over 100 Witteveen et al. (2011, and as detected whales). More recently, 21 groups (33 days have been reported for a significant during SPLASH surveys) and individuals) of humpbacks were sighted portion of the whales using this area observations reported by von Ziegesar in this area during an IWC-POWER (Baker et al. 1985). Based on sighting (2013) indicating that humpback whales survey in July/August of 2012 data for summer months during 1985– move between the sound and the fiords (Matsuoka et al. 2013). Sightings of 2014 in Glacier Bay and Icy Strait, over along the coast. Minor aggregations of humpback whales were also recorded in 60 percent of the adult whales remained humpback whales (8–13 whales) were this area by the NMFS Southwest in this area to feed for more than 20 also observed near Middleton Island Fisheries Science Center (SWFSC) as days, and average residency time for during systematic surveys conducted in part of the SPLASH surveys in 2004 and whales seen on more than 1 day within summer 1980 in the Gulf of Alaska (Rice 2005 (Calambokidis et al. 2008; see also a season was 67 days (SD = 38.3; and Wolman 1982). Humpback whales Witteveen et al. 2011). Based on limited Gabriele et al. 2017). Photo- occur year-round in Prince William sampling, results of stable isotope identification data collected in Sound, but densities are greatest during analyses suggest that whales in this area Southeast Alaska from 1979 to 1983 summer and fall, and decline in late have a mixed diet of fish and indicate a high degree of site fidelity to December to early January (Straley et al. zooplankton (Witteveen et al. 2011). this area, with 47.2 percent of whales 2018). Presence of humpback whales in Photo-identification data confirm this being sighted in more than one year the sound is strongly associated with area is a destination for whales from the (154 whales out of 326 unique the seasonal formation of Pacific herring non-listed HI DPS (Baker et al. 1986, individuals; Baker et al. 1986). Sightings aggregations (Rice et al. 2011, Straley et Calambokidis et al. 2008; and SPLASH histories for three female humpback al. 2018, Moran and Straley 2018). data courtesy of C. Gabriele, NPS). whales in particular indicate these Results of surveys conducted during Satellite telemetry data indicate this whales returned in each of 12 or 13 fall/winter of 2007–2009 indicated that area is also a destination for MX DPS years during 1977–1992 (Straley et al. a small percentage of photo-identified whales. A calf tagged off Socorro Island 1994). Evaluation of sighting histories in whales (under 2 percent, n = 4) (in Revillagigedo Archipelago) in 2003 Glacier Bay and portions of Icy Strait overwintered in the sound (Rice et al. travelled with its mother to this area from 1985 to 2013 also indicate a high 2011). Inter-annual movements of (Lagerquist et al. 2008). (The mother/ degree of site fidelity with 63 percent whales have been observed between the calf pair remained in this area for only (244 of 386 total whales identified) of sound and the coastal waters around about 4 days before travelling to other non-calves returning to the survey area Kodiak Island (Waite et al. 1999, areas of Alaska (Lagerquist et al. 2008).) in more than 1-year, 17 percent (n = 66) Witteveen et al. 2011). However, Waite There are no reported sightings of returning every year, and an additional et al. (1999) estimated that only 3 to 6 photo-identified whales of the WNP 10 percent (n = 39) returning in all but

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1 year (Gabriele et al. 2017). Humpback reporting rates from areas within the model predictions begin to shift farther whales are known to feed on krill, Salish Sea have likely resulted in a offshore. herring, capelin, sand lance, biased understanding of humpback Photo-identification data are not myctophids, and juvenile pollock whale abundance in these waters; available to validate occurrences of within Southeast Alaska, but dominant however, hundreds of whales appear to particular DPSs within this unit; prey within the diet vary among the be using the strait (J. Calambokidis, however, the best available data support specific locations and seasons (Bryant et CRC, pers. comm., May 23, 2018). The a conclusion that this area is a al. 1981, Straley et al. 2018). offshore boundary for Unit 11 was destination for whales from the MX and Photo-identification data confirm this selected to follow the contour of cells CAM DPSs (Calambokidis et al. 2000). area is a destination for whales from the containing the highest 90 percent of the Some available data also suggest that HI HI and MX DPSs (Baker et al. 1985, study area abundance predicted by the DPS whales may occur in this unit 1986; Calambokidis et al. 2008). Becker et al. (2016) habitat model, (Mate et al. 2018). Although sightings of WNP DPS whales which generally coincided with the Unit 13—Coastal Oregon are reported for general areas to either 1,200-m isobath. Multiple, persistent, side of this unit (Kodiak, Alaska and This area extends southward from dense aggregations (hotspots) of krill ° ′ ° ′ Vancouver Island, British Columbia, (humpback prey) occur near the Juan de 45 10 latitude to 42 10 , and extends e.g., Calambokidis et al. 2001), portions Fuca canyon in this area, likely due to offshore to a boundary at the 1,200-m of Unit 10 have been surveyed the canyon feature (Santora et al. 2018). isobath. The 50-m isobath forms the extensively, and those survey data do Humpback whales have also been shoreward boundary. This area includes not indicate that the WNP DPS occurs shown to associate with the shelf edge, the BIA at Stonewall and Heceta Bay, in Unit 10. particularly near submarine canyons off and includes waters off of Tillamook, Lincoln, Lane, Douglas, Coos, and Curry Unit 11—Coastal Washington Washington (Green et al. 1992). 2 Humpback whales also target various Counties. Unit 13 covers 5,750 nmi of This area extends southward from the forage-fish species within this unit, with marine habitat. U.S. EEZ to 46°50′ N, just north of This unit includes the Stonewall and Pacific herring being one of the most Willapa Bay, WA. The unit extends Heceta Bank BIA, which supports prevalent forage fish off Washington and offshore to a boundary corresponding to humpback whale feeding aggregations Northern Oregon (Brodeur et al. 2005, the 1,200-m isobath, which also aligns from May to November (Calambokidis et Zwolinski et al. 2012). with the seaward extent of a BIA. The al. 2015). The northern and offshore unit includes waters within the U.S. Photo-identification data confirm this boundaries of this unit correspond to portion of the Strait of Juan de Fuca to area is a destination for whales from the cells containing the highest 90 percent an eastern boundary line at Angeles HI, MX, and Central America (CAM) of the study area abundance predicted Point (123°33′ W). The 50-m isobath DPSs (Calambokidis et al. 2008). by the Becker et al. (2016) habitat forms the shoreward boundary. The unit Unit 12—Columbia River Area model. The southern boundary of this includes waters off Clallam and unit was drawn just north of another Jefferson Counties, and a portion of This area extends southward from ° ′ ° ′ BIA. Based on surveys conducted in Grays Harbor County. Unit 11 covers 46 50 N to 45 10 N and extends out to spring and summer of 2000 as part of 3,441 nmi2 of marine habitat. a seaward boundary corresponding to the US Global Ocean Ecosystem This area was drawn to encompass the 1,200-m isobath. The 50-m isobath Dynamics (GLOBEC) Northeast Pacific the Northern Washington BIA forms the shoreward boundary. This program, concentrations of humpback (Calambokidis et al. 2015), located at the area includes waters off of Pacific whales on Heceta Bank were shown to northern edge of this unit, and cells County, WA and Clatsop County, OR. correspond to high densities of fish 2 containing the highest 90 percent of the This unit covers 3,636 nmi of marine (Pacific sardine and juvenile salmon) study area abundance predicted by the habitat. and large, high density patches of krill Becker et al. (2016) habitat model. The This unit was drawn to capture the (Tynan et al. 2005, Ressler et al. 2005). BIA typically supports humpback whale Columbia River plume system, which Within this unit, large, persistent feeding aggregations from May to supports foraging by many predators, aggregations of krill have been observed November. In addition to the habitat including concentrations of humpback inshore of Heceta Bank, off Cape Blanco, model results, clusters of humpback whales. The unit extends both north and in association with submarine canyons whale sightings just off Grays Harbor south of the mouth of the Columbia (Ressler et al. 2005, Santora et al. 2018). area (see Calambokidis et al. 2015) and River to capture the spatial variation of Photo-identification data confirm this movement data collected from five the plume system. Within this unit, as area is a destination for whales from the humpback whales with LIMPET satellite well as others along the West Coast, MX DPS (Calambokidis et al. 2008). tags (Schorr et al. 2013) support hotspots with persistent, heightened Presence of CAM DPS whales in this inclusion of waters beyond the BIA in abundance of krill also occur in area is indicated by genetic data as well this unit. The unit also includes waters association with submarine canyons as modelling of sightings data (Wade within the Strait of Juan de Fuca where (Santora et al. 2018). The area extends 2017, Mate et al. 2018). whales have been observed foraging in out to the 1,200-m isobath to capture the recent years (and which falls outside of outer edge of cells containing the Unit 14—Southern Oregon/Northern the area covered by surveys used to highest 90 percent of the study area California generate the habitat model predictions). abundance predicted by the Becker et This area is bounded in the north at Although humpback whales have been al. (2016) habitat model. The area also 42°10′ and extends south to the increasingly observed within the Salish encompasses areas over which Mendocino escarpment at 40°20′. The Sea (i.e., the waters of the Strait of humpback whales have been observed area extends offshore to a boundary Georgia, the Strait of Juan de Fuca, to feed based on ARS data from satellite drawn along the 2,000-m isobath. The Puget Sound, and around the San Juan tagged whales (Mate et al. 2018). The 50-m isobath forms the shoreward Islands, Calambokidis et al. 2017), Unit southern boundary at 45°10′ N was boundary. The area includes the marine 11 does not extend beyond the strait drawn to encompass the available ARS waters off Del Norte County, CA, and farther into the Salish Sea. High areas and to reflect where the habitat most of Humboldt County, CA, and

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borders a small portion of Curry County, and extends southward to 38°40′ N, by the Becker et al. (2016) habitat OR. Unit 14 covers 3,412 nmi2 of marine which corresponds to the approximate model. In this unit, the habitat model habitat. southern boundary of an identified BIA. predictions extend farther offshore This unit includes the Point St. The area extends offshore to a boundary relative to the more northern West Coast George BIA, which typically supports drawn at the 3,000-m isobath. The 50- units, and extend even farther offshore whale feeding aggregations during July– m isobath forms the shoreward based on modeled whale distributions November (Calambokidis et al. 2015). boundary. This area includes marine in colder months (January–April, see The northern boundary of this unit waters off the coasts of Humboldt and Becker et al. 2017). Therefore, the corresponds to the boundary of this BIA. Mendocino counties, CA, and covers offshore boundary was placed at the The southern boundary corresponds 4,898 nmi2 of marine habitat. 3,700-m isobath to capture areas of with the Cape Mendocino/the The northern boundary of this unit higher predicted abundances in both Mendocino escarpment, where the corresponds to the Mendocino summer and winter. (The area covered predicted abundance from the habitat escarpment and a shift farther offshore by the Becker et al. (2017) winter model model shows a somewhat abrupt shift in the habitat model predictions (Becker starts at 38°00′, and we are not aware of offshore (Becker et al. 2016). The et al. 2016). The offshore boundary of any other models based on winter seaward boundary for this unit extends this unit extends out to the 3,000-m distributions for areas north of this out to the 2,000-m isobath to capture the isobath to more closely correspond to unit.) This area also extends into the habitat model predictions. ARS areas cells containing the highest 90 percent mouth of the San Francisco Bay to derived from satellite tracking data (n = of the study area abundance predicted capture a recently recognized important 26 whales, Mate et al. 2018) indicate by the Becker et al. (2016) habitat foraging area for humpback whales that feeding behavior occurs throughout model. This boundary is also supported (Calambokidis et al. 2017) as well as this unit, and although some ARS data by ARS data indicating that whales are ARS data indicating that whales are indicate whales feed seaward of the feeding farther from shore (Mate et al. feeding in and around the mouth of the 2,000-m isobath, the majority of the ARS 2018). Encompassed within this unit is bay (Mate et al. 2018). The highest behavior is captured within the a BIA that extends from Fort Bragg to densities of whales are seen at the boundaries of this unit. Multiple, Point Arena and that typically supports entrance to San Francisco Bay, with a recurring, high density aggregations feeding aggregations of humpback few extending into the Bay (J. (hotspots) of krill occur off of Cape whales from July to November Calambokidis pers. comm., May 23, Mendocino and elsewhere in this unit, (Calambokidis et al. 2015). The southern 2018). Based on data from in association with submarine canyons boundary of the unit corresponds to the hydroacoustic surveys spanning (Santora et al. 2018). Within this unit northern boundary of another BIA. multiple years between 2000–2009, and southward along the coast to High-density, persistent aggregations of persistent and recurring, high-density Southern California (i.e., Unit 19), krill occur off Cape Mendocino and in aggregations of krill ranging in size from Fleming et al. (2016) collected 259 skin association with canyon features within about 578 km2 to 950 km2 have been samples from humpback whales during this unit (Santora et al. 2018). Krill shown to occur in multiple areas within 1993–2012 and used stable carbon and hotspots, measuring about 216–320 km2, this unit, including Bodega Head, nitrogen isotope analyses to evaluate the have also been documented offshore of Cordell Bank, Gulf of the Farallones, relative contribution of euphausiids Point Arena near the 2,000-m isobath Pescadora, and Monterey Bay (Santora versus fish to the diet. Shifts over the (Santora et al. 2011, Dorman et al. et al. 2011, Dorman et al. 2015, Santora 20-year study period in isotope 2015). et al. 2018). signatures in whale skin samples Photo-identification data are not Photo-identification data confirm this observed by Fleming et al. (2016) available to validate occurrences of area is a destination for whales from the indicate trophic-level shifts in the particular DPSs within this unit; MX and CAM DPSs (Baker et al. 1986, humpback whale diet, and these shifts however, the available data strongly Calambokidis et al. 2008). corresponded to shifts in relative prey support the conclusion that this area is Unit 17—Central California Coast Area abundance (krill versus anchovy and a destination for whales from the MX sardine) and changing oceanographic and CAM DPSs (Calambokidis et al. This area extends from 36°00′ N to a conditions within the CCE. These 2000). southern boundary at 34°30′ N, just results suggest that the dominant prey south of an identified BIA. The Unit 16—San Francisco and Monterey in humpback whale diet switched from nearshore boundary is defined by the Bay Area krill to fish, and back to krill during the 30-m isobath, and the seaward boundary 20-year period, depending on the This area extends from 38°40′ N is drawn along the 3,700-m isobath. relative abundance of each prey. southward to 36°00′ N to encompass a This unit includes waters off of Temporal shifts in diet composition BIA. The seaward boundary is drawn southern Monterey county, and San (e.g., from euphausiids and sardine in along the 3,700-m isobath. The inshore Luis Obispo and Santa Barbara counties. the 1920s to mainly anchovy in the boundary is mainly defined by the 15- Unit 17 covers 6,697 nmi2 of marine 1950s and 1960s) are also reflected in m isobath, but also extends up to the habitat. historical whaling data and stomach Golden Gate Bridge within San This unit encompasses a BIA that content data from harvested whales Francisco Bay. This area includes extends from Morro Bay to Point Sal (Rice 1963, Clapham et al. 1997). waters off of the southern edge of and typically supports high density Photo-identification data confirm this Mendocino County, and Sonoma, feeding aggregations of humpback area is a destination for whales from the Marin, San Francisco, San Mateo, Santa whales from April to November MX and CAM DPSs (Calambokidis et al. Cruz, and Monterey counties. Unit 16 (Calambokidis et al. 2015). In this area, 2008). covers 12,349 nmi2 of marine habitat. as with Unit 16, the predicted This unit encompasses the Gulf of the abundance extends farther offshore in Unit 15—California North Coast Area Farallones-Monterey Bay BIA the warmer months (July–December) This unit is bounded along its (Calambokidis et al. 2015) as well as and even more so in cooler months northern edge by the Mendocino cells containing the highest 90 percent (January–April) relative to the northern escarpment at approximately 40°20′ N of the study area abundance predicted units (Becker et al. 2016 and 2017).

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Therefore, the offshore boundary was south by the U.S. EEZ. The 50-m isobath of exclusion outweigh the benefits of placed at the 3,700-m isobath to capture forms the shoreward boundary. This inclusion of such areas. See 16 U.S.C. areas of higher predicted abundance in unit includes waters off of Los Angeles, 1533(b)(2). both summer and winter. The southern Orange, and San Diego counties, and After identifying specific areas that boundary for this area was drawn just covers 12,966 nmi2 of marine habitat. we concluded would potentially meet south of the BIA. Based on acoustic This area does not contain a BIA but the definition of critical habitat for survey data collected during 2004–2009, was drawn to capture cells containing humpback whales, we contacted DOD large krill hotspots, ranging from 700 the highest 90 percent of the study area representatives and requested km2 to 2,100 km2, occur off Big Sur, San abundance predicted by the Becker et information regarding relevant INRMPs. Luis Obispo, and Point Sal (Santora et al. (2017) habitat model. This area falls In response, the U.S. Navy (Navy) al. 2011). Hotspots with persistent, outside of the predicted high use area in provided descriptions and locations of heightened abundance of krill were also the summer/fall months but is predicted four areas adjacent to the humpback reported in this unit in association with to support high densities of whales in whale specific areas and that are bathymetric submarine canyons the winter/spring months (Becker et al. managed under Sikes Act-compliant (Santora et al. 2018). 2017). The higher densities of INRMPs: (1) Pacific Beach Annex, WA; Photo-identification data confirm this humpback whales in winter may stem (2) Naval Base Ventura County, Point area is a destination for whales from the from the fact that some of the whales Mugu, CA; (3) Naval Outlying Field, San MX and CAM DPSs (Calambokidis et al. sighted in this area are likely transiting Nicolas Island, CA; and (4) Naval 2008). through the area, rather than occupying Auxiliary Landing Field, San Clemente the area as a feeding destination. Within Island, CA. The Navy also provided Unit 18—Channel Islands Area this unit, krill hotspots ranging in size information regarding how in their This area extends from a northern from about 210 km2–430 km2 have been view, each of their approved INRMPs boundary at 34°30′ N to a boundary line observed off San Nicolas and Santa provides a conservation benefit to that extends from Oxnard, CA seaward Barbara Islands (Santora et al. 2011), humpback whales and their habitat. An to the 3,700-m isobath, along which the and additional hotspots have been additional fifth INRMP, associated with offshore boundary is drawn. The 50-m observed in association with submarine the Navy’s Southeast Alaska Acoustic isobath forms the shoreward boundary. canyons (Santora et al. 2018). Measurement Facility, AK (SEAFAC) This unit includes waters off of Santa Photo-identification data are not was mentioned as being under Barbara and Ventura counties. This unit available to validate occurrences of development. The SEAFAC INRMP is covers 9,799 nmi2 of marine habitat. particular DPSs within this unit; not yet available for review; however, a This unit encompasses the Santa however, the available data support the draft is expected to be completed in Barbara Channel-San Miguel BIA, which conclusion that this area is a destination December 2019. After reviewing the supports high density feeding for whales from the MX and CAM DPSs information and maps provided, we aggregations of humpback whales (Calambokidis et al. 2000, Rasmussen et found that the Pacific Beach Annex during March through September al. 2012). INRMP addresses an entirely upland (Calambokidis et al. 2015). The seaward Application of ESA Section 4(a)(3)(B)(i) property and does not overlap with the boundary at the 3,700-m isobath (Military Lands) areas under consideration for encompasses cells containing the designation as critical habitat. highest 90 percent of the study area Section 4(a)(3)(B)(i) of the ESA Therefore, this INRMP was not abundance predicted by both the precludes designating as critical habitat considered further. summer and winter habitat models any lands or other geographical areas Based on our initial review of the (Becker et al. 2016 and 2017). The owned or controlled by the Department remaining three, approved, Navy southern boundary of this unit was of Defense (DOD) or designated for its INRMPs pursuant to the considerations selected to correspond to where the use, that are subject to an Integrated indicated in 50 CFR 424.12(h), the plans habitat model predictions for both Natural Resources Management Plan appeared to provide a measure of models show a clear decline in (INRMP) prepared under section 101 of conservation benefit to humpback predicted densities. The area to the the Sikes Act (16 U.S.C. 670a), if the whales. However, because each of the south (i.e., Unit 19) is predicted to have Secretary determines in writing that areas addressed by the INRMPs were much lower summer densities of such plan provides a benefit to the very small relative the potential critical whales. Based on acoustic survey data species for which critical habitat is habitat units in which they are located collected during 2004–2009, a krill proposed for designation. See 16 U.S.C. (Units 18 and 19), and because a few hotspot of about 780 km2 has been 1533(a)(3)(B)(i); 50 CFR 424.12(h). additional components of the approved documented off Point Conception Where these standards are met, the INRMPs were required from the Navy to (Santora et al. 2011). Some additional relevant area is ineligible for complete our review (e.g., maps, krill hotspots have also been observed consideration as potential critical appendices to an INRMP listing specific in this unit in association with habitat. The regulations implementing management activities), we deferred bathymetric submarine canyons the ESA set forth a number of factors to further review of these INRMPs pending (Santora et al. 2018). guide consideration of whether this conclusion of our analyses under Photo-identification data confirm this standard is met, including the degree to section 4(b)(2), because that analysis area is a destination for whales from the which the plan will protect the habitat could lead to proposed exclusion of the MX and CAM DPSs (Calambokidis et al. of the species (50 CFR 424.12(h)(4)). larger specific area or areas. Once we 2008). This process is separate and distinct concluded our analysis under section from the analysis governed by section 4(b)(2) and had developed our list of Unit 19—California South Coast Area 4(b)(2) of the ESA, which directs us to potential exclusions, we ultimately The northern boundary for this unit consider the economic impact, the found it necessary to complete a final extends southwest from Oxnard, CA impact on national security, and any review of only two INRMPs—the Naval through the Santa Cruz Basin and out to other relevant impact of designation and Outlying Field San Nicolas Island (SNI) a seaward boundary along the 3,700-m affords the Secretary discretion to and Naval Base Ventura County (NBVC), isobath. The unit is also bounded in the exclude particular areas if the benefits Point Mugu. These are not fully

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encompassed by areas that we are impacts attributable to the critical of particular areas that corresponded to proposing to exclude under 4(b)(2). habitat designation relative to a baseline tribal lands, associated treaty rights, The relevant areas addressed under that reflects existing regulatory impacts and/or relevant resources. the NBVC Point Mugu INRMP are in the absence of the critical habitat. Below, we summarize the economic, submerged lands and resources 3 nmi The second sentence of section 4(b)(2) national security, and other relevant out from Point Mugu (relative to MLLW) describes an optional process by which, impacts of designating the areas and a zone that extends 0.25 nmi the Secretary may go beyond the identified as meeting the definition of offshore around San Miguel and Prince mandatory consideration of impacts and critical habitat for the three DPSs of Islands. This INRMP thus includes areas weigh the benefits of excluding any humpback whales. Additional detail is that overlap with Units 18 (i.e., the area particular area (that is, avoiding the provided in the Draft Economic around San Miguel and Prince Islands) economic, national security, or other Analysis (IEc 2019a) and the Draft and 19 (i.e., the area off Point Mugu). relevant impacts) against the benefits of Section 4(b)(2) Report (NMFS 2019b). Relevant areas within the footprint of designating it (primarily, the the SNI INRMP are the waters conservation value of the area). If the National Security Impacts surrounding SNI and Begg Rock within Secretary concludes that the benefits of To gather information on potential the 300-foot (91-m) isobath or 1 nmi excluding particular areas outweigh the national security impacts of our from shore, whichever is greater. This benefits of designation, he may exclude proposed designation, we contacted INRMP covers an area that lies mainly the particular area(s), so long as he representatives from DOD and the within Unit 19, but the area around concludes on the basis of the best Department of Homeland Security Begg Rock extends into Unit 18. available scientific and commercial (DHS) by letter dated October 9, 2018. Management efforts described within information that the exclusion will not We asked for information regarding both of these INRMPs, which are result in extinction of the species (16 impacts of a potential critical habitat discussed in detail in the Draft Section U.S.C. 1533(b)(2)). NMFS and the U.S. designation for humpback whales on 4(b)(2) Report (NMFS 2019b), include Fish and Wildlife Service have adopted military operations and national actions such as water quality monitoring a joint policy setting out non-binding security. Under the 4(b)(2) Policy, a within nearshore waters and storm- guidance explaining generally how we requesting agency must provide a water management; surveys of exercise our discretion under 4(b)(2). reasonably specific justification for the intertidal, subtidal, and deep water See Policy Regarding Implementation of assertion that there is an incremental habitats; and area closures to minimize Section 4(b)(2) of the Endangered impact on national security that would impacts of noise or other disturbances Species Act (‘‘4(b)(2) Policy,’’ 81 FR result from the designation of that on marine mammals. Based on our 7226, February 11, 2016). specific area as critical habitat (81 FR consideration of the activities listed in While section 3(5) of the ESA defines 7226, 7231, February 11, 2016). the INRMPs and their relevance to critical habitat as ‘‘specific areas,’’ Requests for exclusion due to national humpback whales and their habitat, the section 4(b)(2) requires the agency to security impacts were initially received certainty that the relevant management consider the impacts of designating any from the both the Navy and the U.S. Air actions would be implemented, the ‘‘particular area.’’ Depending on the force (USAF); however, following frequency of use of the areas by biology of the species, the subsequent discussions with USAF humpback whales, and the extent of characteristics of its habitat, and the representatives, the USAF withdrew humpback prey occurrences within the nature of the impacts of designation, their requests for exclusions. areas, we ultimately concluded that the ‘‘particular’’ areas may be—but need not On December 5, 2018, the Navy areas covered by the applicable INRMPs necessarily be—delineated so that they provided a written assessment of provide a conservation benefit to are the same as the already identified potential national security impacts and humpback whales. Thus, we determined ‘‘specific’’ areas of potential critical detailed descriptions of training and that these areas are not eligible for habitat. For this designation, we testing operations occurring in the designation as critical habitat and analyzed two types of particular areas. following ranges: removed them from Units 18 and 19. When we considered economic impacts, (1) Gulf of Alaska Temporary we used the same biologically-based Maritime Activities Area (GOA TMAA), Analysis of Impacts Under Section ‘‘specific areas’’ we had identified under 4(b)(2) of the ESA which overlaps with portions of critical section 3(5)(A) (i.e., Units 1–19, Figure habitat Units 5, 7, and 8; The first sentence of section 4(b)(2) of 1). This delineation allowed us to most (2) Southeast Alaska Acoustic the ESA requires the Secretary to effectively compare the biologically- Measurement Facility (SEAFAC), which designate critical habitat for threatened based conservation benefits of lies within critical habitat Unit 10; and endangered species on the basis of designation against economic benefits of (3) Quinault Range Site (QRS; a the best scientific data available after exclusion, which we elected to do, and component of the Naval Undersea taking into consideration the economic led us to propose excluding some units. Warfare Center Division Keyport Range impact, the impact on national security, For our consideration of impacts on Complex), which overlaps with a and any other relevant impact, of national security, however, we instead portion of Unit 11; specifying any particular area as critical used a delineation of particular areas (4) Pacific Northwest Ocean Surface/ habitat. Regulations at 50 CFR 424.19(b) based on DOD ownership or control of Subsurface Operating Area (OPAREA, a also specify that the Secretary will the area. As discussed below, this component of the Northwest Training consider the probable impacts of the consideration of national security Range Complex and within the designation at a scale that the Secretary impacts led in some cases to propose Northwest Training and Testing Study determines to be appropriate, and that excluding smaller areas from within the Area), which overlaps with portions of such impacts may be qualitatively or specific areas (units) we described, i.e., Units 11–15; quantitatively described. The Secretary redrawing the boundaries of those units. (5) Southern California Range is also required to compare impacts Similarly, for our consideration of other Complex (SOCAL) portion of the with and without the designation (50 relevant impacts, such as the impacts Hawaii-Southern California Training CFR 424.19(b)). In other words, we are designation of a particular area would and Testing Study Area, which overlaps required to assess the incremental have on Tribes, we used a delineation with Unit 19; and,

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(6) Point Mugu Sea Range (PMSR), test and evaluation activities, thereby largest explosives that could be used on which overlaps with portions of Unit impacting military readiness and the range could extend beyond the QRS 17, 18, and 19. national security. boundaries, and that excluding a buffer Based on their consideration of The QRS is a defined space off the of 10-km around QRS from the critical ongoing and planned Naval operations, coast of Washington that encompasses habitat designation would avoid the location of the potential critical air, surface (∼5,228 nmi2 (6,924 km2)) additional mitigation requirements. The habitat areas, and the essential prey and subsurface space (with variable Navy indicated that they determined feature, the Navy concluded that, at this depths up to 1.8 km), as well as a surf this specific buffer distance after taking time, they did not anticipate national zone area off the coast of Pacific Beach, into account the site specific security impacts resulting from a critical Washington. The Navy does not own or oceanographic conditions and the best habitat destination that overlapped with outright control the sea space of QRS, available science establishing fish injury the GOA TMAA, OPAREA, and PMSR. which is largely defined by the thresholds (which Navy cited as Popper The Navy indicated that there were, boundaries of the special use airspace, et al., 2014). however, anticipated national security known as W–237A, above it. The Navy The SOCAL range complex is located impacts for operations at SEAFAC, QRS, has internal control of subareas for between Dana Point and San Diego, CA and SOCAL, and requested that these scheduling purposes only. The Navy and extends more than 1,111 km range areas be excluded from any issues notices to mariners (NOTMARs) southwest into the Pacific Ocean. Most proposed humpback whale critical when the Navy engages in activities that activities occur within the eastern habitat designation. may be hazardous to vessels engaged in portion of the SOCAL range complex, SEAFAC is small area, covering 48 innocent passage, and/or recreational closer to shore and to the Navy’s largest nmi2 (164 km2) in the Western Behm and commercial activities. Compliance homeport location in the Pacific. The Canal near the city of Ketchikan, Alaska, with NOTMARS are voluntary, but help spatial extent of overlap between the and serves as the Navy’s primary to protect public safety and prevent SOCAL range and Unit 19 is 10,731.5 acoustic engineering measurement damage to test equipment. The QRS nmi2 (36,808 km2), which is facility in the Pacific. This facility overlaps with approximately 44 percent approximately 54 percent of the Navy’s comprises an instrumented site that has of Unit 11, which covers an area of core training area within SOCAL and in-water assets (such as piers, 3,441 nmi2 of marine habitat. Access to approximately 83 percent of Unit 19, hydrophones, sensors, and in-water areas within the QRS is controlled which measures 12,966 nmi2 (44,472.1 communication systems) that may be during testing events for public safety km2). A wide variety of training and deployed on permanent or long-term and to prevent damage to test testing activities occur within the bases, and an adjacent land-based equipment. Activities planned in the SOCAL range complex on a routine and support site located within 15 acres QRS to the year 2020 and beyond sometimes fairly high frequency basis. A (0.06 km2) on Back Island. This area is include activities such as at-sea sonar few types of Navy testing activities in under Navy controlled restricted use, testing, anti-submarine warfare testing, this area are those related to anti- and no other Federal activities are acoustic and oceanographic research, submarine warfare, torpedo, mine expected to occur in this area. Public countermeasure testing, torpedo testing, countermeasure, gun, missile and access to SEAFAC areas can be undersea warfare testing, etc. The Navy rocket, and propulsion testing. The restricted by the Navy with notification stated that use of explosives within the activities that occur in the SOCAL range in accordance with 33 CFR 334.1275. QRS is likely to have adverse effects on complex have the potential to impact Testing activities planned for the humpback prey species, although in the water surface or water column, with foreseeable future include, but are not their view these would not have effects the degree of impact depending on the limited to, submarine sonar testing/ at the population level. The Navy nature of the particular activity. The maintenance, acoustic component concluded that humpback whale critical Navy referred to the detailed testing, countermeasure testing, and habitat would impact the ability of the discussions on particular impacts hydrodynamic and submarine Navy to test and field new systems and provided in the Navy’s 2018 Final maneuverability testing. Although the platforms and thus impact national Environmental Impact Statement for Navy indicated they did not anticipate security if ESA section 7 consultations Hawaii-Southern California Training impacts to humpback whale critical resulted in additional mitigation and Testing. Ultimately, the Navy habitat or humpback whale prey as a requirements or restrictions on testing concluded that designation of Unit 19 as result of the majority of current testing activities in the QRS. critical habitat could lead to activities, they expressed concern Subsequent to their initial request for requirements for additional mitigations regarding future testing activities. They exclusion of QRS, the Navy conducted (avoidance, limitations, etc.) that could specifically noted that this area is used further analysis and, in September 2019, hinder Navy testing and training to evaluate cutting edge systems and submitted additional information activities, and thereby impact military platforms, which could affect future relative to this particular national readiness and national security. determinations regarding impacts on the security exclusion. Specifically, the Therefore, Navy requested that we habitat. The Navy discussed that the Navy requested that an additional 5.4- exclude Unit 19 from any critical habitat nature of the testing that is undertaken nmi (10-km) buffer around QRS be designation. at this site requires prescriptive excluded to avoid impacts to ongoing procedures and use of specific areas and and future testing activities that would Economic Impacts that any additional mitigation resulting result should Naval Sea Systems The primary impact of a critical from a critical habitat designation has Command have to halt, reduce in scope, habitat designation stems from the ESA the potential to impact military or geographically/seasonally constrain section 7(a)(2) requirement that Federal readiness by impeding the testing of testing activities to prevent adverse agencies ensure their actions are not new systems, platforms, and effects or adverse modification of likely to result in the destruction or capabilities. The Navy stated that any critical habitat. The Navy determined adverse modification of critical habitat. impact on the full utilization of that sound and energy levels that may Determining the extent of this impact in SEAFAC would impact their ability to cause injuries to humpback whale prey practical terms is complicated by the perform critical research, development, species within critical habitat from the fact that section 7(a)(2) contains the

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associated but distinct requirement that The first step in the economic 7 consultations (IEc 2019a). No Federal agencies must also ensure their analysis involved identifying the additional conservation measures were actions are not likely to jeopardize the baseline level of protection already identified as likely to result from the species’ continued existence. The afforded the humpback whales in the projected consultations, largely due to incremental economic impacts of a areas being considered for designation the baseline protections in place. critical habitat designation stem from as critical habitat. The baseline for this Depending on the specific area at issue the additional effort to engage in analysis is the existing state of and the Federal action, relevant baseline consultation regarding potential adverse regulation prior to the designation of protections include, for example, effects to the critical habitat as part of critical habitat, including protections protections for co-occurring listed section 7 consultations (often referred to afforded due to the listing of the species species such as North Pacific right as administrative costs), and any under the ESA, and other Federal, state whales, Southern Resident killer conservation measures that may be and local laws and guidelines, such as whales, salmon, Southern DPS of Pacific necessary to avoid adverse modification the MMPA, Clean Water Act, and state eulachon, and the Southern DPS of and that would not otherwise be environmental quality laws. Next, in green sturgeon; designated critical implemented (often referred to as order to complete steps 2–4, we habitat for listed species; as well as project modification costs). Thus, the searched the NMFS consultation protections for humpback whales under incremental impacts attributable to database (for 2007–2018) to compile a both the ESA and the MMPA. The critical habitat stem from conservation list of Federal actions and the projected number, location, and/or effects on prey efforts that would not already be number of those actions occurring in of some other activities, particularly required due to the need to avoid each of the 19 areas under consideration seismic surveys and alternative energy jeopardy to humpback whales or due to as critical habitat. Outreach to some activities, are speculative at this time. other existing protections (e.g., for other Federal agencies was also conducted by Therefore, we did not identify any listed species, other Federal, state, or IEc to obtain additional information probable conservation recommendations local regulations). Additional economic about planned activities. As applicable that would likely be made specifically impacts of designation would include and appropriate, NMFS biologists were to avoid adverse modification of the any state and local protections that are also consulted to verify the nature and humpback whale critical habitat as a likely to be triggered as a result of number of consultations expected to result of these activities, nor was it designation. However, as discussed in occur over the next 10 years. possible to estimate the cost of any chapter 3 of the Draft Economic The following categories of activities probable project modifications. Analysis (DEA), we did not identify with a Federal nexus were identified as However, we solicit public comments state or local protections that may be having the potential to affect the and relevant data that would further triggered by a proposed humpback essential prey feature and as being inform this analysis. whale critical habitat designation (IEc expected to occur within the specific The DEA indicates that, if designated, 2019a). critical habitat areas under the 19 units of critical habitat may consideration: (1) Commercial fishing, increase administrative costs of The analysis methods and the (2) oil and gas activities (including consultations involving humpback estimated, incremental, economic seismic surveys), (3) alternative energy whales by an estimated $630,000 to impacts stemming from designation of development, (4) in-water construction $720,000 over the next ten years, the identified specific critical habitat (including dredging and offshore assuming a seven percent discount rate areas for the WNP, MX, and CAM DPSs mining), (5) vessel traffic (specifically, (IEc 2019a). This equates to an of humpback whales are described in activities related to establishment of the annualized cost of $72,000 to $82,000 detail in the DEA prepared by Industrial shipping lanes established by the U.S. over the next ten years (IEc 201a9). The Economics (IEc 2019a). To quantify the Coast Guard (USCG) (6) aquaculture, (7) largest portion of administrative costs economic impacts associated with military activities, (8) liquefied natural are anticipated in Unit 10 (17 to 22 designating the 19 units of habitat under gas (LNG) terminal activities, (9) space percent of total costs), followed by Unit consideration, IEc followed the vehicle and missile launches, (10) water 13 (11 to 12 percent) and Unit 17 (9 to following general steps: quality management (including 10 percent). In-water construction (1) Identify the baseline of economic pesticide registration, establishment of activities represent the largest share of activity and the statutes and regulations water quality standards, and Clean estimated costs (34 to 42 percent), while that constrain that activity in the Water Act general permits), (11) U.S. 18 to 21 percent of costs are associated absence of the critical habitat Forest Service activities (related to with commercial fishing, and 9 to 10 designation; timber and forest management), and (12) percent is associated with consultations (2) Identify the types of activities that inland activities (including power plant regarding military activities (IEc 2019a). are likely to be affected by critical operations, land management pesticide/ (See the DEA for the specific estimated habitat designation; herbicide application, and National impacts for each of the 19 habitat units (3) Estimate the costs of Pollutant Discharge Elimination System and for each of the 12 categories of administrative effort and, where (NPDES) permitting). These activities Federal activities.) applicable, conservation efforts have the potential to affect the essential These economic impacts are largely recommended for the activity to comply feature by altering or reducing the associated with the administrative costs with the ESA’s critical habitat quantity, quality, or the availability of borne by NMFS and other Federal provisions; the prey feature essential to the agencies and not by private entities or (4) Project over space and time the conservation of one or more of the listed small governmental jurisdictions. occurrence of the activities and the DPSs of humpback whales. However, some consultations may likelihood they will in fact need to be As discussed in chapter 2 of the DEA, include third parties (e.g., project modified; and the costs quantified in the economic proponents or landowners) that may be (5) Aggregate the costs up to the analysis include only the additional small entities. These third parties may particular area level and provide administrative effort associated with bear some portion of the administrative economic impacts as present value consideration of potential impacts to consultation costs. Ultimately, the impacts and annualized impacts. critical habitat as part of future section analysis found that consultations on in-

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water and coastal construction activities are in close proximity to areas under with potentially affected tribes and may generate costs borne by small consideration for designation as critical Native corporations as we move forward entities. All other activities are either habitat for humpback whales, have with the rulemaking process. not expected to involve small entities or usual and accustomed areas that overlap Analysis of the Benefits of Designation are associated with no more than two with critical habitat areas, or may consultations per year spread across the otherwise be affected in coastal Alaska, The primary benefit of critical habitat entire critical habitat. As described in Washington, Oregon, and California. designation—and the only regulatory chapter 5 of the DEA, the analysis Thus, at an early stage in the course of consequence—stems from the ESA anticipates approximately eight developing a proposed critical habitat section 7(a)(2) requirement that all consultations on in-water and coastal rule, we contacted all potentially Federal agencies ensure that their construction activities per year, six of affected tribes. Specifically, in actions are not likely to destroy or which are concentrated in proposed November 2018, and in coordination adversely modify the designated habitat. critical habitat Unit 10 in Alaska. This with the NMFS regional tribal liaison, This benefit is in addition to the section analysis estimates that the small entities we reached out to 27 tribes located in 7(a)(2) requirement that all Federal involved in these consultations will Washington, Oregon, and California, agencies ensure their actions are not incur $4,900 in annualized and 149 tribes and tribal organizations likely to jeopardize the species’ administrative costs (IEc 2019a). (See located within Alaska to offer the continued existence. Another benefit of ‘‘Initial Regulatory Flexibility Act’’ opportunity to consult on critical designation is that it provides notice of section of this document for information habitat for humpback whales and areas and features important to species regarding impacts on small entities.) discuss any concerns they may have. conservation, and information about the types of activities that may reduce the Tribal Impacts We provided maps and descriptions of all areas under consideration as conservation value of the habitat. Section 4(b)(2) of the ESA also allows potential critical habitat, and we (1) Critical habitat designation may also for the consideration of other relevant invited input regarding tribal resources trigger additional protections under impacts associated with the designation and issues, usual and accustomed areas, state or local regulations. In addition to the benefits of critical of critical habitat. We identified or the exercise of tribal rights that may habitat designation to the whales, there potential impacts on Federally be affected by a coastal critical habitat may be ancillary benefits. These other recognized tribes as a possible source of designation for humpback whales; (2) benefits may be economic in nature, or other impacts relevant to the humpback requested any information to assist us in whale critical habitat designation. A they may result in improvement of the determining the conservation value of broad array of activities that occur on ecological functioning of the designated nearshore areas of Indian lands as well Indian lands may trigger ESA section 7 areas. Chapter 4 of the DEA (IEc 2019a) as other possible areas of interest to the consultations. Indian lands are those discusses other forms of benefits that tribes, such as deep-water habitats defined in Secretarial Order 3206, may be attributed to the conservation outside the nearshore areas; and (3) ‘‘American Indian Tribal Rights, and recovery of humpback whales invited discussion on the tribal Federal-Tribal Trust Responsibilities, (although not specifically attributed to government’s position regarding the and the Endangered Species Act’’ (June the designation of critical habitat), designation of those areas as critical 5, 1997), and include: (1) Lands held in including use benefits (e.g., for wildlife habitat. trust by the United States for the benefit viewing), non-use benefits (e.g., of any Indian tribe; (2) land held in trust We received no requests for existence values), and ancillary by the United States for any Indian tribe consultation in response to our outreach ecosystem service benefits (e.g., water or individual subject to restrictions by efforts. We did, however, receive quality improvements and enhanced the United States against alienation; (3) responses from two tribes in habitat conditions for other marine and fee lands, either within or outside the Washington, the Quinault Indian Nation coastal species). Humpback whales are reservation boundaries, owned by the and the Quileute Tribe. Both tribes also valued in terms of the utility gained tribal government; and (4) fee lands expressed concern regarding the from whale watching experiences. In within the reservation boundaries potential impact of the critical habitat Washington, Oregon, California, and owned by individual Indians. designation on tribal fisheries, Alaska, humpback whales are a target In developing this proposed rule, we particularly within usual and species for whale watchers (IEc 2019a). reviewed maps and did not find overlap accustomed fishing areas located in Whale watch participants in these states between the areas under consideration coastal marine waters. We had multiple generate tens of millions of dollars in as critical habitat and Indian lands. follow-up communications with these economic activity annually (Pendelton Based on this, we preliminarily found tribes; however, neither tribe elected to 2006). Although humpback whales have that there were no Indian lands subject submit formal comment or information value to people nationally and serve as to consideration for possible exclusion. regarding impacts on tribal resources or an economic engine regionally, we are However, it is not clear whether there treaty rights, nor did they request unable to apply the available literature may be some nearshore areas that could additional meetings or consultation. As to quantify or monetize associated use be considered for possible exclusion. In described in the Draft Economic and non-use economic benefits that particular, we lack information Analysis (IEc 2019a), while it is possible would be attributable to a critical regarding where boundaries of tribal- that the critical habitat designation habitat designation. More information owned lands lie in relation to shoreward could result in recommendations for about these types of benefits and values boundary of the specific critical habitat changes in fishery management, we may be found in chapter 4 of the DEA areas in Alaska, which are generally consider that unlikely at this time, given (IEc 2019a). bounded by the 1-m isobath (relative to the existing requirement to consider the It would be ideal if the best available MLLW). effect of harvesting prey on the listed information allowed the benefits of As discussed further under the humpback whales and given existing designation to be monetized so they Classification section of this preamble, Federal fisheries management measures could be directly compared to the there are Indian tribes and Alaska (e.g., prohibition on krill fishing). We economic benefits of excluding a Native corporations that have lands that will continue to coordinate and consult particular area. However, sufficient and

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relevant data are not available to occurrence within each critical habitat independently rated the habitat unit for monetize the benefits of designation unit (regardless of which DPS the each relevant DPS through a structured (e.g., estimates of the monetary value of whales belong to). For habitat units decision-making process. To do this, the protecting the feature within areas along the West Coast, density of whales each team member distributed four designated as critical habitat, or the was determined using the habitat model ‘‘points’’ across the following four monetary value of education and results of Becker et al. (2016), which conservation value categories for each of outreach benefits). For this reason, the allowed for calculations of predicted the critical habitat units: ESA regulations recognize that benefits density within each specific critical (1) Very high—meaning areas where may be quantitatively or qualitatively habitat unit (i.e., predicted abundance the available data indicate the area is described (50 CFR 424.19(b)). Further, per area of the critical habitat unit). As very important to the conservation of we cannot isolate and quantify the effect no comparable modelling data exist for the DPS; that a critical habitat designation would the habitat units within Alaska (i.e., (2) high—meaning areas where the have on recovery of humpback whales Units 1–10), whale density information available data indicate the area is separate from other ongoing or planned was instead compiled from the most important to the conservation of the conservation actions. In addition, it is recent, available literature, which DPS; difficult to accurately predict the future covered various years and time periods, (3) medium—meaning the available harm to the habitat that would and addressed study areas that did not data indicate the area is moderately otherwise have been realized in the necessarily align with the critical important to the conservation of the absence of a critical habitat designation. habitat unit boundaries (see Tables C5 DPS; and, Ultimately, given these challenges and and C6 for details). These non-uniform (4) low conservation value—meaning lack of sufficient information, the data prevented the CHRT from making the available data suggest the DPS does associated incremental use and non-use any strong inferences about humpback not rely on this area for feeding. economic benefits of designating whale densities within Units 1–10 and CHRT members could place all four particular areas of the potential complicated their ability to compare points for a given habitat unit and DPS designation cannot be quantified. As an densities across units. The density data in one of these qualitative categories or alternative approach, we assessed the pulled from the literature were therefore spread those four points across any or benefits of designation using a considered in a very qualitative way and all of the four categories. The degree to biologically-based analysis of the did not directly determine any votes or which votes were spread across the specific areas. In this particular case, the conclusions. conservation value categories thus CHRT considered relevant humpback A third dataset addressed the served as a measure of uncertainty in whale datasets to qualitatively rate the presence of whales from each particular the conservation value of a particular conservation impact or value for the DPS within each critical habitat unit. unit. Because the CHRT consists of 10 DPSs if a particular area is designated as Three different pieces of information team members, each unit of critical critical habitat. These qualitative were presented in this dataset. First, habitat received a total of 40 points. conservation value ratings were then using results of the SPLASH study, the However, CHRT members were used to represent the benefits of CHRT calculated the percentage of permitted to forego assigning their four designation. The Draft Biological Report whales identified to a particular DPS points for a specific critical habitat unit (NMFS 2019a) provides a detailed out of all the matched sightings within if they concluded the available data discussion of the methods and datasets a specific unit. (Matched sightings are were either too limited to support used by the CHRT to systematically the total number of whales photo- drawing a particular conclusion or there assign a qualitative conservation value identified in both the relevant breeding was too much uncertainty associated rating to each of the habitat units areas for the DPS and the critical habitat with the available data. In these (specific areas) under consideration. unit. Note that most whales sighted in instances, CHRT members could instead In general, the multiple datasets feeding areas have not been identified as categorize the unit as ‘‘data deficient.’’ considered by the CHRT provided belonging to a particular DPS.) (See Units receiving ‘‘data deficient’’ votes information about the importance of a Table C7 in NMFS (2019a) for total from one or more CHRT member meant given area for humpback whale feeding, matches and calculations.) Secondly, those particular units received less than the level of use of the critical habitat the CHRT considered the probabilities 40 points. units by all humpback whales, and the of whales from a particular DPS moving Following an initial round of scoring, level of use of the units by whales of from their winter, breeding area to a the CHRT met to discuss their each particular DPS (see Appendix C, feeding area (critical habitat unit) as assessments of the data and results. NMFS 2019a). The first dataset calculated by Wade (2017). These Following that team discussion, CHRT contained information about the feeding movement probabilities were also members were given the opportunity to BIAs that have been identified for derived from SPLASH data. The feeding independently re-evaluate their own humpback whales (see Ferguson et al. areas from the SPLASH study and from point distributions and make any 2015a, c and Calambokidis et al. 2015). Wade (2017) represent larger geographic changes (if they elected to do so). The Rather than simply considering areas than the critical habitat units, so CHRT’s conservation ratings for each of presence/absence of a BIA and to make in many cases the same movement the habitat units are provided in Tables this information comparable across probability applied to multiple, adjacent 1–3; complete results are presented and units, the CHRT considered the size of critical habitat units. Lastly, the CHRT discussed within the Draft Biological the BIAs relative to the size of the compiled available documentation of Report (NMFS 2019a). particular critical habitat unit. whales from a specific DPS occurring in Specifically, the CHRT calculated the each unit (i.e., confirmed presence). Proposed Exclusions Based on percent of total area (km2) of a unit that These data came from both the SPLASH Economic Impacts was covered by the BIA within that unit study as well as other references, a As is clear from the preceding (see Table C4 in NMFS (2019a) for complete list of which is provided in discussion, the conservation benefits to calculations). Table C8 of NMFS (2019a). the humpback whale DPSs that would The second dataset included data on After reviewing the datasets as a result from the designation of any the density of humpback whales’ group, each member of the CHRT particular critical habitat unit,

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expressed as a qualitative rating, are not several, large, marine critical habitats rated as having a ‘‘low’’ conservation directly comparable to the economic that have been previously designated in value. By definition, these low value benefits that would result from the Pacific (e.g., leatherback sea turtle, habitat units are those specific areas, exclusion of the particular unit from 77 FR 4169, January 26, 2012; black based on the CHRT’s assessment of the designation, which is expressed as a abalone, 76 FR 66806, October 27, best available data, upon which quantified cost. However, to weigh the 2011). Relative to these other humpback whales of the particular DPS benefits of designation against the designations, the probable economic do not appear to rely on as extensively economic benefits of exclusion, we have impacts projected for the humpback for feeding, given the lower density or to compare these two types of whale critical habitat are comparatively level of occurrence of whales relative to information. As noted previously, the very low. other units with higher conservation Results of the biological and Secretary has discretion to determine value. Therefore, even though the economic analyses (see Tables 1–3) the weight to assign to the relevant estimated annualized impacts only factors and may exclude any particular indicate that habitat units rated as ranged from $680–$5,200 across all of area from the critical habitat designation having ‘‘very high’’ or ‘‘high’’ the low conservation value areas for all upon a determination that the benefits conservation value are associated with of such exclusion outweigh the benefits annualized impacts ranging from $430 DPSs, the CHRT concluded that these of specifying the particular area as part (Unit 1, WNP and MX DPSs) to $7,500 costs outweighed the minimal of the critical habitat (50 CFR 424.19(c)). (Unit 11, CAM and MX DPS). Habitat conservation benefits to the whales of The Secretary, however, cannot exclude units rated as having ‘‘medium’’ designating these areas. We concurred any particular area if, based on the best conservation value are associated with with the CHRT’s assessment and note scientific and commercial data annualized impacts ranging from $680 that even with the potential exclusions, available, the Secretary determines that (Unit 4, MX DPS) to $18,000 (Unit 10, the resulting designation includes the failure to designate that area as MX DPS). Lastly, specific areas rated as extensive areas of medium, high, and critical habitat will result in the having ‘‘low’’ conservation value were very high conservation value; and extinction of the species concerned (50 associated with annualized impacts therefore, we propose to exclude all low CFR 424.19(c)). For this analysis, we ranging from $680 (Unit 4, WNP DPS) conservation value areas from the note that each of the units identified for to $5,200 (Unit 19, CAM and MX DPSs). critical habitat designations. potential designation meet the After reviewing the costs and Specifically, we proposed to exclude the definition of critical habitat because conservation values for each specific following five units from the critical they are in the occupied range of the area and for each DPS, the CHRT habitat designation for the WNP DPS: species and contain the identified concluded that the economic impacts Unit 4—Central Peninsula Area, Unit physical or biological feature; however, for units with very high, high, and 6—Cook Inlet, Unit 7—Kenai Peninsula the areas vary as to the level of medium conservation ratings were not Area, Unit 8—Prince William Sound conservation value anticipated to result outweighed by the relatively low costs Area, and Unit 9—Northeastern Gulf of from the designation. We (exercising the attributed to any of those units. Given Alaska. Based on the application of this delegated authority of the Secretary) the data-driven process by which the same decision rule, we also propose to CHRT carefully evaluated the relative determined that the conservation exclude one specific area, Unit 19— conservation value of each critical benefits of including areas with California South Coast, from critical medium, high, or very high habitat unit, the CHRT was confident habitat for the CAM DPS. Lastly, we conservation ratings should have that areas receiving these rating propose to exclude the three low- significant weight in this analysis. classifications are all important to the Overall, the projected economic conservation of their respective DPSs. In conservation-value habitat units from impacts to Federal agencies and non- other words, these higher value feeding the critical habitat designation for the Federal entities of designating each of areas are viewed as being critical in MX DPS: Unit 7—Kenai Peninsula Area, the 19 habitat units are low, with supporting the overall life history of the Unit 9—Northeastern Gulf of Alaska, annualized impacts ranging from $430– whales, and their conservation value is and Unit 19—California South Coast. As $18,000 per habitat unit (IEc 2019a). If not outweighed by the relatively low discussed in the Draft Section 4(b)(2) all 19 units were designated, the total economic impacts projected to occur as Report (NMFS 2019b), we conclude that annualized impact is estimated to range a result of their designation as critical exclusion of these low conservation- from $72,000 to $82,000 over the next habitat. The CHRT, however, concluded value areas from the critical habitat 10 years (IEc 2019a). This estimated that the economic impacts, though designations will not result in economic impact is well below the objectively low, do outweigh the extinction of any of the three humpback annualized costs associated with benefits of designating specific areas whale DPSs.

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 POTENTIAL CRITICAL HABITAT FOR THE WESTERN NORTH PACIFIC DPS OF HUMPBACK WHALES

Annualized Unit No. Area Conservation rating impacts

1 ...... Bristol Bay ...... high ...... $430 2 ...... Aleutian Islands Area ...... very high ...... 690–2,400 3 ...... Shumagin Islands Area ...... very high ...... 430–810 4 ...... Central Peninsula Area ...... low ...... 680–860 5 ...... Kodiak Island Area ...... high ...... 2,800–3,600 6 ...... Cook Inlet ...... low ...... 3,400–3,700 7 ...... Kenai Peninsula Area ...... low ...... 1,000 8 ...... Prince William Sound Area ...... low ...... 1,800

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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 POTENTIAL CRITICAL HABITAT FOR THE WESTERN NORTH PACIFIC DPS OF HUMPBACK WHALES—Continued

Annualized Unit No. Area Conservation rating impacts

9 ...... Northeastern Gulf of Alaska ...... low ...... 1,000

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 POTENTIAL CRITICAL HABITAT FOR THE CENTRAL AMERICA DPS OF HUMPBACK WHALES

Annualized Unit No. Area Conservation rating impacts

11 ...... Coastal Washington ...... high ...... $6,800–$7,500 12 ...... Columbia River Area ...... medium/low ...... 6,300 13 ...... Coastal Oregon ...... medium ...... 8,600–9,400 14 ...... Southern Oregon/Northern California ...... high ...... 2,300 15 ...... California North Coast ...... medium ...... 1,600 16 ...... San Francisco/Monterey Bay ...... very high ...... 2,700 17 ...... California Central Coast ...... very high ...... 7,200 18 ...... Channel Islands ...... high ...... 3,500 19 ...... California South Coast ...... low ...... 5,000–5,200

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 POTENTIAL CRITICAL HABITAT FOR THE MEXICO DPS OF HUMPBACK WHALES

Annualized Unit No. Area Conservation rating impacts

1 ...... Bristol Bay ...... high ...... $430 2 ...... Aleutian Island Area ...... very high ...... 690–2,400 3 ...... Shumagin Islands Area ...... very high ...... 430–810 4 ...... Central Peninsula Area ...... medium ...... 680–860 5 ...... Kodiak Island Area ...... high ...... 2,800–3,600 6 ...... Cook Inlet ...... medium ...... 3,400–3,700 7 ...... Kenai Peninsula Area ...... low ...... 1,000 8 ...... Prince William Sound Area ...... high ...... 1,800 9 ...... Northeastern Gulf of Alaska ...... low ...... 1,000 10 ...... Southeastern Alaska ...... medium ...... 12,000–18,000 11 ...... Coastal Washington ...... very high ...... 6,800–7,500 12 ...... Columbia River Area ...... medium ...... 6,300 13 ...... Coastal Oregon ...... medium ...... 8,600–9,400 14 ...... Southern Oregon/Northern California ...... high ...... 2,300 15 ...... California North Coast ...... medium ...... 1,600 16 ...... San Francisco/Monterey Bay Area ...... very high ...... 2,700 17 ...... California Central Coast ...... very high ...... 7,200 18 ...... Channel Islands Area ...... high ...... 3,500 19 ...... California South Coast Area ...... low ...... 5,000–5,200

Proposed Exclusions Based on National judgement as to: (1) Whether activities The size of the requested exclusion and Security Impacts on its lands or waters, or its activities on the percentage of the specific critical Based on the written information other lands or waters, have national habitat area(s) that overlaps with the provided by the Navy in December 2018 security or homeland-security Navy area; (2) the relative conservation and information provided through implications; (2) the importance of those value of the specific area for each subsequent discussions with Navy implications; and (3) the degree to particular humpback whale DPS; (3) the representatives, we evaluated whether which the cited implications would be likelihood that the Navy’s activities there was a reasonably specific adversely affected by the critical habitat would destroy or adversely modify justification indicating that designating designation. In conducting a review of critical habitat, and the likelihood that certain areas as critical habitat would these exclusion requests under section NMFS would require project have a probable incremental impact on 4(b)(2) of the ESA, we also gave great modifications to reduce or avoid these national security. In accordance with weight to the Navy’s national-security impacts; and, (4) the likelihood that our 4(b)(2) Policy (81 FR 7226, February concerns. To weigh the national security other Federal actions may occur in the 11, 2016), in instances where the Navy impacts against conservation benefits of site that would no longer be subject to provided a reasonably specific a potential critical habitat designation, the critical habitat provision if the justification, we deferred to their expert we also considered the following: (1)

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particular area were excluded from the and specific concerns regarding the to exclude this area as a result of designation. potential impact of a critical habitat national security impacts. This As noted above, SEAFAC is a small designation on their unique testing and conclusion further supports the installation (48 nmi2), comprising only training activities that occur within the proposed exclusion of Unit 19 under 0.22 percent of Unit 10, which covers QRS and the potential delay in critical section 4(b)(2) of the ESA. 22,152 nmi2 of marine habitat within missions in order to complete adverse Proposed Critical Habitat Designations Southeast Alaska, and lies entirely modification analyses, we determined outside of the recognized feeding BIA in that the benefits of excluding the QRS For the endangered WNP DPS of this region (Ferguson et al. 2015). Unit and buffer due to national security humpback whales, we propose to 10 was found to have a medium impacts outweighs the benefits of designate 78,690 nmi2 of marine habitat conservation value for the MX DPS of designating this portion of Unit 11 as off the coast of Alaska as occupied humpback whales. Given the Navy’s critical habitat for the MX and CAM critical habitat. (The proposed substantial and specific concerns DPSs. Thus, we propose to exclude this designation encompasses Units 1, 2, 3, regarding the potential impact of a DOD area from the critical habitat and 5 as shown in Figure 1.) The designation on their activities within designations for both the MX and CAM specific areas included in the proposed SEAFAC, the extremely small relative DPSs, and the boundaries of Unit 11 designation are seasonal feeding areas size of the requested exclusion, the have been adjusted accordingly. for humpback whales and contain the essential prey feature. A total area of medium conservation rating of the We considered the information 44,119 nmi2 is proposed for exclusion, habitat, and fact that other Federal provided by the Navy concerning activities are unlikely to occur in this because the benefits of exclusion were potential impacts on national security area, we determined that benefits of found to outweigh the benefits of stemming from the designation of Unit excluding this area due to national inclusion of these areas. Specifically, 19 as critical habitat, and found that the security impacts outweigh the benefits the limited conservation benefits of Navy had provided a reasonably specific of designating this area as critical designating the relevant specific areas justification for their requested habitat for the MX DPS. Therefore, we (i.e., Units 4, 6, 7, 8, and 9) were found exclusion. We considered the are proposing to exclude the SEAFAC to be outweighed by the economic information provided by the Navy area from the designation of critical impact of designating these areas. Each regarding the nature and types of habitat for the MX DPS of humpback of the areas recommended for inclusion training and testing activities that occur whales, and the boundaries of Unit 10 in the designation for the WNP DPS (i.e., have been adjusted accordingly. within the SOCAL range complex (e.g., Units 1, 2, 3, and 5) contains a After considering the information anti-submarine warfare, torpedo, mine humpback whale feeding BIA and was provided by the Navy regarding countermeasure, gun, missile and rated as having high or very high potential impacts on national security rocket, and propulsion testing) to conservation value for the WNP DPS. stemming from the designation of a evaluate their potential to affect Although one of the areas proposed for portion of Unit 11 as critical habitat, we humpback whale critical habitat. We exclusion (i.e., Unit 8) also contains a found that the Navy had provided a also reviewed the discussions about humpback whale feeding BIA, whales reasonably specific justification for their particular impacts provided in the from the WNP DPS have not been requested exclusion of the area Navy’s 2018 Final Environmental directly observed within this unit and overlapping with the QRS as well the Impact Statement for Hawaii-Southern presence has only been inferred based 10-km buffer surrounding the QRS. The California Training and Testing (e.g., on the available data. We also find that requested exclusion comprises about 44 impacts to fish and invertebrates). We the exclusion of Units 4, 6, 7, 8, and 9 percent of the area of Unit 11, which agree with the Navy’s assessment that from a designation of critical habitat for was rated as having a high conservation the activities that occur in the SOCAL the WNP DPS of humpback whales value for the CAM DPS and a very high range complex, many of which occur would not result in extinction of this conservation value for the MX DPS. To with high frequency, have the potential DPS, because these whales are not get a more precise sense of the value of to impact humpback whale prey expected to rely on these areas for the specific QRS area (including the species, with the degree of impact feeding (NMFS 2019a). No other buffer) to the whales, we reviewed the depending on the nature of the exclusions are proposed for this DPS. overlap of the QRS with the location of particular activity. We also considered We have not identified any unoccupied the BIA and the predicted whale that Unit 19 had been assessed as areas that are essential to the densities from Becker et al. (2016), having low conservation value to both conservation of this DPS, thus we are which modeled predicted densities in the MX and CAM DPSs of humpback not proposing to designate any approximately 10 km by 10 km grid whales. Although this exclusion request unoccupied areas. cells. Those comparisons indicated that extended over the entirety of Unit 19, For the endangered CAM DPS of the QRS is entirely outside of, and south given the low conservation value rating humpback whales, we propose to of, the BIA, and overlaps partially with this area received for each DPS, we designate 48,459 nmi2 of marine habitat the area where the highest densities of concluded that the benefit of exclusion off the coasts of Washington, Oregon, humpback whales are predicted to occur of this particular area outweighs the and California as occupied critical within Unit 11. In other words, an benefit of including it in either habitat. (The proposed designation exclusion of the QRS and buffer area designation. Overall, we concurred with encompasses part of Unit 11 and Units would not remove from the designation the Navy that designation of Unit 19 12–18 as shown in Figure 1.) The areas much of the comparatively high value would likely have national security being proposed for designation contain locations within Unit 11. The Navy also impacts that outweigh the benefits of the essential prey feature and serve as indicated that while access to this area designating this low conservation value the only major feeding areas for the is not as tightly controlled as with area. Thus, even though we had CAM DPS; thus, these areas are critical SEAFAC, they do exert significant previously determined that Unit 19 to supporting population growth and influence in terms of limiting other should be proposed for exclusion based recovery of this endangered DPS. A total Federal activities within this the QRS. on economic impacts, we made an of 14,489 nmi2 of marine habitat is Overall, given the Navy’s substantial independent determination to propose proposed for exclusion, because the

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benefits of exclusion were found to these areas. Given the limited evaluating the potential impacts of a outweigh the benefits of inclusion of conservation benefits of designating proposed action during consultation. If this area. Specifically, the limited these areas, exclusion of these areas will we conclude in the biological opinion conservation benefits of designating the not result in extinction of this DPS. that the agency action would likely relevant specific area (i.e., Unit 19— About 1,570 nmi2 of marine habitat result in the destruction or adverse California south Coast Area) were found corresponding to two Navy areas, one in modification of critical habitat, we to be outweighed by the economic Southeast Alaska (SEAFAC) and one off would also recommend any reasonable impact of designating this area. the coast of Washington (QRS) are being and prudent alternatives to the action. Exclusion of this area, which is not proposed for exclusion as a result of Reasonable and prudent alternatives predicted to be a high use area in the national security impacts. Although are defined in 50 CFR 402.02 as summer/fall, will not result in the these proposed exclusions are within alternative actions identified during extinction of this DPS. An area of about feeding habitat of medium and high formal consultation that can be 1,522 nmi2 corresponding to a Navy conservation value for this DPS, they are implemented in a manner consistent testing and training area off the coast of both outside of recognized BIAs, and with the intended purpose of the action, Washington (QRS and buffer) is being they comprise a small area relative to that are consistent with the scope of the proposed for exclusion as a result of the total size of the proposed Federal agency’s legal authority and national security impacts. While this designation, which includes coastal jurisdiction, that are economically and exclusion does fall within high to very marine waters off Alaska, Washington, technologically feasible, and that would high conservation-value feeding habitat Oregon, and California. Therefore, we avoid the destruction or adverse for this DPS, it does fall outside of the conclude that these proposed exclusions modification of critical habitat. The recognized feeding BIA and is small will not result in the extinction of the Service may also provide with the relative to the total size of the proposed MX DPS. biological opinion a statement designation, which extends over 48,459 As described above for the CAM DPS, containing discretionary conservation nmi2 of marine waters off of the boundary for Unit 18 (Channel recommendations. Conservation Washington, Oregon, and California. Island Area) was also adjusted so that recommendations are advisory and are Therefore, we conclude that this the footprint of the SNI INRMP (around not intended to carry any binding legal proposed exclusions will not result in Begg Rock) and of the NBVC Point force. the extinction of this DPS. Mugu INRMP (i.e., waters around San Regulations at 50 CFR 402.16 require The boundary for Unit 18 (Channel Miguel and Prince Islands) are not Federal agencies that have retained Island Area) was also adjusted so that included in the proposed designation, discretionary involvement or control the footprint of the SNI INRMP (around as these areas were determined to be over an action, or where such Begg Rock) and of the NBVC Point ineligible for designation as critical discretionary involvement or control is Mugu INRMP (i.e., waters around San habitat under section 4(a)(3)(B)(i) of the authorized by law, to reinitiate Miguel and Prince Islands) are not ESA. We have not identified any consultation on previously reviewed included in the proposed designation, unoccupied areas that are essential to actions in instances where: (1) Critical as these areas were determined to be the conservation of the MX DPS, thus habitat is subsequently designated; or ineligible for designation as critical we are not proposing to designate any (2) new information or changes to the habitat under section 4(a)(3)(B)(i) of the unoccupied areas. action may result in effects to critical ESA. We have not identified any habitat not previously considered in the Effects of Critical Habitat Designations unoccupied areas that are essential to biological opinion. Consequently, some the conservation of the CAM DPS, thus Section 7(a)(2) of the ESA requires Federal agencies may request we are not proposing to designate any Federal agencies, including NMFS, to reinitiation of consultation or unoccupied areas. ensure that any action authorized, conference with NMFS on actions for For the threated MX DPS of funded or carried out by the agency which formal consultation has been humpback whales, we propose to (agency action) is not likely to completed, if those actions may affect designate 175,812 nmi2 of marine jeopardize the continued existence of designated critical habitat for the WNP, habitat off the coasts of Alaska, any threatened or endangered species or CAM, or MX DPSs of humpback whales. Washington, Oregon, and California as destroy or adversely modify designated Activities subject to the ESA section occupied critical habitat. (The proposed critical habitat. Federal agencies must 7 consultation process include activities designation encompasses Units 1–6, 8, consult with us on any proposed agency on Federal lands, as well as activities most of Unit 10, part of Unit 11, and action that may affect the listed species requiring a permit or other authorization Units 12–18; Figure 1.) The areas being or its critical habitat. During interagency from a Federal agency (e.g., a section proposed for designation are seasonal consultation, we evaluate the agency 10(a)(1)(B) permit from NMFS), or some feeding areas that contain the essential action to determine whether the action other Federal action, including funding prey feature, and are critical in may adversely affect listed species or (e.g., Federal Emergency Management supporting population growth and critical habitat and issue our finding in Agency funding). ESA section 7 recovery of this wide-ranging threatened a biological opinion. The potential consultation would not be required for DPS. A total of 32,097 nmi2 of marine effects of a proposed action may depend Federal actions that do not affect listed habitat is proposed for exclusion, on, among other factors, the specific species or critical habitat, and would because the benefits of exclusion were timing and location of the action not be required for actions on non- found to outweigh the benefits of relative to seasonal presence of essential Federal and private lands that are not inclusion of these areas. Specifically, features or seasonal use of critical carried out, funded, or authorized by a the limited conservation benefits of habitat by the listed species for essential Federal agency. designating the relevant specific areas life history functions. While the (i.e., Unit 7—Kenai Peninsula Area, requirement to consult on an action that Activities That May Be Affected Unit 9—Northeastern Gulf of Alaska, may affect critical habitat applies ESA section 4(b)(8) requires, to the and Unit 19—California south Coast regardless of the season, NMFS maximum extent practicable, in any Area) were found to be outweighed by addresses the varying spatial and proposed regulation to designate critical the economic impact of designating temporal considerations when habitat, an evaluation and brief

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description of those activities (whether occur in each area; (3) how medium proposed designations received during public or private) that may adversely conservation value areas were assessed the comment period. Accordingly, the modify such habitat or that may be and weighed relative to the impacts final decision may differ from this affected by such designation. A wide associated with designating these proposed rule. variety of activities may affect the particular areas (i.e., should the Public Hearings proposed critical habitat and may be designation include particular medium subject to the ESA section 7 conservation-value areas or exclude Agency regulations at 50 CFR consultation processes when carried them?); (4) the boundaries of the 424.16(c)(3) require the Secretary to out, funded, or authorized by a Federal specific areas and of the proposed promptly hold at least one public agency. These include: (1) Federal critical habitats; (5) the nearshore hearing if any person requests one fisheries, (2) oil and gas activities distribution of humpback whales in within 45 days of publication of a (including seismic surveys), (3) waters off Alaska, and whether the proposed rule to designate critical alternative energy development, (4) in- benefits of excluding areas closest to habitat. Public hearings provide the water construction (including dredging shore outweigh the benefits associated opportunity for interested individuals and offshore mining), (5) vessel traffic with designating these areas; and, if and parties to give comments, exchange (specifically, activities related to nearshore areas are excluded, what information and opinions, and engage in establishment of the shipping lanes would be an appropriate distance; (6) a constructive dialogue concerning this established by the USCG), (6) information regarding potential benefits proposed rule. We encourage the aquaculture, (7) military activities, (8) of designating any particular area as public’s involvement in such ESA LNG terminal activities, (9) space critical habitat; (7) information matters. Public hearings and the dates vehicle and missile launches, (10) water regarding the types of Federal actions and specific locations for these hearings quality management (including that may trigger an ESA section 7 will be announced in a separate Federal pesticide registration, establishment of consultation and the possible Register notice. Requests for additional water quality standards, and Clean modifications that may be required of public hearings must be made in writing Water Act general permits), (11) U.S. those activities; (8) information (see ADDRESSES) by November 25, 2019. Forest Service activities (related to regarding current or planned activities References Cited timber and forest management), and (12) in the areas proposed as critical habitat, inland activities (including power plant including both Federal and non-Federal A complete list of all references cited operations, land management pesticide/ activities, that may be impacted by the in this proposed rule can be found on herbicide application, and NPDES proposed critical habitat designation; (9) the Federal e-Rulemaking Portal at permitting). any foreseeable economic, national www.regulations.gov/ Private or non-Federal entities may security, Tribal, or other relevant impact #!docketDetail;D=NOAA-NMFS-2019- also be affected by the proposed critical resulting from the proposed 0066, and is available upon request from habitat designation if there is a Federal designations, including costs arising the NMFS Office of Protected Resources nexus in that a Federal permit is from project delays due to section 7 (see ADDRESSES). required, Federal funding is received, or consultations; (10) whether any data Classifications the entity is involved in or receives used in the economic analysis needs to benefits from a Federal project. These be updated; (11) additional costs arising National Environmental Policy Act activities would need to be evaluated specifically from humpback whale with respect to their potential to destroy We have determined that an critical habitat that have not been or adversely modify humpback whale environmental analysis as provided for identified in the Draft Economic critical habitat. As noted in the solicited under the National Environmental Analysis or improved costs estimates for comments section below, NMFS also Policy Act of 1969 for critical habitat activities that are included in the Draft requests information on the types of designations made pursuant to the ESA Economic Analysis; (12) additional non-Federal activities that may be is not required. See Douglas County v. information regarding impacts on small affected by this rulemaking. Babbitt, 48 F.3d 1495 (9th Cir. 1995), businesses and Federally recognized cert. denied, 116 S.Ct. 698 (1996). Public Comments Solicited tribes that were not identified in the Regulatory Flexibility Act To ensure the final action resulting Draft Economic Analysis or the initial from this proposed rule will be as regulatory flexibility analysis; and, (13) Under the Regulatory Flexibility Act accurate and effective as possible, we any information relevant to potential (RFA) (5 U.S.C. 601 et seq.), as amended solicit comments and information from exclusions of particular areas that are by the Small Business Regulatory the public, other concerned government smaller than those considered (e.g., a Enforcement Fairness Act (SBREFA) of agencies, Federally recognized tribes particular area encompassing the San 1996, whenever an agency publishes a and organizations, the scientific Francisco Traffic Separation Scheme). notice of rulemaking for any proposed community, industry, non-governmental To the extent possible, we request that or final rule, it must prepare and make organizations, and any other interested the data or information provided be available for public comment a party concerning the proposed clearly specific to one or more of the regulatory flexibility analysis that designations of critical habitat for the DPS addressed in this proposed rule. describes the effects of the rule on small WNP, CAM, and MX DPSs of humpback You may submit your comments and entities (i.e., small businesses, small whales. In particular, we are interested materials concerning this proposal by organizations, and small government in data and information regarding the any one of several methods (see jurisdictions). We have prepared an following: (1) The distribution and ADDRESSES). The proposed rule and initial regulatory flexibility analysis habitat use of whales of the WNP, CAM, supporting documentation can be found (IRFA), which is provided in chapter 5 or MX DPS in coastal waters within the on the Federal e-Rulemaking Portal at of the Draft Economic Analysis (IEc North Pacific; (2) the relative www.regulations.gov/ 2019a). The IRFA describes the conservation value of the 19 specific #!docketDetail;D=NOAA-NMFS-2019- economic impact this proposed rule, if units of critical habitat to the specific, 0066. In preparing the final rule, we will adopted, would have on small entities. relevant DPSs of humpback whales that consider all comments pertaining to the The IRFA is summarized below.

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As discussed previously in this activity to ensure that impacts to the part of future ESA section 7 preamble and in our IRFA (see chapter habitat and features have been consultations. Primarily, consultations 5 of IEc 2019a), the designation of minimized. are between NMFS and Federal action critical habitat is required under the The proposed rule will not duplicate agencies to evaluate the potential for ESA, and in this particular case, is also or conflict with any other laws or projects and activities to result in required pursuant to a court-approved regulations. However, the protection of adverse modification of critical habitat. settlement agreement. Section 4 of the listed species and habitat under critical Therefore, most incremental impacts are ESA, requires us to designate, to the habitat may overlap other sections of the borne by NMFS and other Federal maximum extent prudent and ESA. The protections afforded to agencies and not by private entities or determinable, the specific areas that threatened and endangered species and small governmental jurisdictions. contain the physical or biological their habitat are described in section 7, However, some consultations may features essential to the conservation of 9, and 10 of the ESA. A final include third parties (e.g., project the species and that may require special determination to designate critical proponents or landowners) that may be management considerations or habitat requires Federal agencies to small entities. protections. This proposed critical consult, pursuant to section 7 of the The best available information was habitat rule does not directly apply to ESA, with NMFS on any activities the used to identify the potential impacts of any particular entity, small or large. The Federal agency funds, authorizes, or critical habitat on small entities. rule would operate in conjunction with carries out, including permitting, However, there are uncertainties that ESA section 7(a)(2), which requires that approving, or funding non-Federal complicate quantification of these Federal agencies ensure, in consultation activities (e.g., a Clean Water Act, impacts, particularly with respect to the with NMFS, that any action they Section 404 dredge or fill permit from extent to which the quantified impacts authorize, fund, or carry out is not likely USACE). The requirement to consult is may be borne by small entities. As a to jeopardize the continued existence of to ensure that any Federal action result, the IRFA employed a listed species or destroy or adversely authorized, funded, or carried out will conservative approach (i.e., more likely modify critical habitat. Consultations not likely jeopardize the continued to overestimate than underestimate may result in economic impacts to existence of any endangered or impacts to small entities) in assuming Federal agencies and proponents of threatened species or result in the that the quantified costs that are not proposed actions (e.g., permittees, destruction or adverse modification of borne by the Federal government are applicants, grantees). Those economic critical habitat. The incremental impacts borne by small entities. Because the impacts may be in the form of contemplated in this IRFA are expected critical habitat under consideration administrative costs of participating in a to result from the critical habitat occurs in marine waters, the analysis section 7 consultation and, if the designation and not from other Federal also focused on small entities located in consultation results in required regulations. counties along the Pacific Coast of While we do not here prejudge the measures to protect critical habitat, California, Oregon, and Washington, outcome of any interagency project modification costs. and in coastal counties in Alaska. consultation, the best available For all activities categories relevant to This proposed rule will not impose information supports the conclusion this analysis except in-water and coastal any recordkeeping or reporting that for most, if not all, of the Federal construction (i.e., commercial fishing, requirements on small entities. The activities predicted to occur over the oil and gas, alternative energy, critical habitat designations would time horizon of the analysis (i.e., in the aquaculture, LNG facilities, water require that Federal agencies initiate a next 10 years), if the effects to critical quality management, and inland section 7 consultation to ensure their habitat will be adverse and require activities), the expected costs borne by actions do not destroy or adversely formal consultation, those effects are third parties in related industries is modify critical habitat. During formal also expected to constitute adverse expected to be negligible. For each of consultation under the ESA, there may effects to listed humpback whales or these activities, two or fewer be communication among NMFS, the other listed species or designated consultations are anticipated per year action agency, and a third party critical habitat, either directly or spread across the area that was under participant applying for Federal funding indirectly. Thus, as discussed consideration for humpback whale or permitting in an effort to minimize previously, projects that might critical habitat. As a result, the potential adverse impacts to the habitat adversely affect the proposed essential annualized incremental costs that may or essential feature. Communication feature and proposed humpback whale be borne by small entities in related may include written letters, phone calls, critical habitat are not expected to result industries is estimated to be less than and/or meetings. Project variables such in incremental project modification $2,200. The analysis, therefore, focused as the type of consultation, the location costs. Therefore, the only costs of this on the costs of consultations on in-water of the activity, impacted essential class of actions that are attributable to and coastal construction activities, features, and activity of concern, may in this rule are the administrative costs of which occur more frequently within the turn dictate the complexity of these adding critical habitat analyses to a critical habitat area. As described in interactions. Third party costs may consultation that would otherwise occur chapter 5 of the DEA (IEc 2019a), include administrative work, such as anyway. approximately eight consultations per cost of time and materials to prepare for The designation of critical habitat year focus on in-water and coastal letters, calls, or meetings. The cost of humpback whales is expected to have a construction activities. The majority of analyses related to the activity and limited economic impact, on the order these (six per year) are concentrated associated reports may be included in of $6,900–$9,700 annualized over ten within critical habitat Unit 10 in Alaska. these administrative costs. In addition, years (at a 7 percent discount rate) for As such, the analysis focused on the following the section 7 consultation the WNP DPS, $42,000–$43,000 for the small businesses and government process, as a requirement of the funding CAM DPS, and $64,000–$75,000 for the jurisdictions in the region surrounding or permit received from the Federal MX DPS. The nature of these costs are critical habitat Unit 10. action agency, entities may be required administrative efforts to consider Relevant businesses in North to monitor progress during the said potential for adverse modification as American Industry Classification

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System (NAICS) included the following the ESA section 3 definition of critical to the responsible agencies in the industry sectors: Sand, Gravel, Clay and habitat. However, following our aforementioned states for review. Ceramic Mining and Quarrying; Water consideration of probable national By operation of Alaska State law, the and Sewer Line and Related Structures security, economic, and other relevant Federally approved Alaska Coastal Construction; Oil and Gas Pipeline and impacts of designating all the specific Management Program expired on July 1, Related Structures Construction; Power areas, we rejected this alternative. In 2011, resulting in a withdrawal from and Communication Line and Related particular, and as described in our Draft participation in the CZMA’s National Structures Construction; Highway, Section 4(b)(2) Report, we determined Coastal Management Program (76 FR Street, and Bridge Construction; Other that the benefits of excluding some 39857, July 7, 2011). The CZMA Federal Heavy and Civil Engineering specific areas outweighed the consistency provision, section 307, no Construction; Dredging and Surface conservation benefits of designating longer applies in Alaska. Cleanup Activities. Along with private those specific areas, and thus, pursuant Paperwork Reduction Act businesses, there also may be to section 4(b)(2) of the ESA, we are consultations for which small exercising our discretion to propose to The purpose of the Paperwork governmental jurisdictions (i.e., exclude some of the specific areas for Reduction Act is to minimize the jurisdictions with populations of less each of the three DPSs (see NMFS paperwork burden for individuals, small than 50,000 people) are the third parties 2019b). A third alternative of businesses, educational and nonprofit participating in the consultations rather designating a subset of the specific areas institutions, and other persons resulting than businesses. The IRFA identified 21 meeting statutory definition of critical from the collection of information by or small government jurisdictions adjacent habitat was considered and is the for the Federal government. This to critical habitat units that may be preferred alternative. As stated proposed rule does not contain any new or revised collection of information. involved in future consultations. Seven previously, under section 4(b)(2) of the This rule, if adopted, would not impose of these areas—Juneau Borough, Sitka ESA, we have the discretion to exclude recordkeeping or reporting requirements Borough, Haines Borough, Ketchikan a particular area from designation as on State or local governments, Gateway Borough, Prince of Wales- critical habitat even though it meets the individuals, businesses, or Outer Ketchikan Census Area, Skagway- definition of ‘‘critical habitat’’ if the organizations. Hoonah-Angoon Census Area, and benefits of exclusion (i.e., the impacts Wrangell-Petersburg Census Area—are that would be avoided if an area was Unfunded Mandates Reform Act (2 adjacent to critical habitat Unit 10. excluded from the designation) U.S.C. 1501 et seq.) Ultimately, based on the IRFA, up to outweigh the benefits of designation The designation of critical habitat eight small entities per year may bear (i.e., the conservation benefits to the costs associated with participation in does not impose an ‘‘enforceable duty’’ humpback whale if an area was on state, local, tribal governments, or consultation regarding humpback whale designated), so long as exclusion of the critical habitat. The total annualized the private sector and therefore does not area will not result in extinction of the qualify as a Federal mandate. In general, administrative costs that may be borne species. Exclusion under section 4(b)(2) by these small entities (businesses or a Federal mandate is a provision in of the ESA of one or more of the areas legislation, statute, or regulation that governments) engaged in in-water and considered for designation would coastal construction activities is $4,900 would impose an ‘‘enforceable duty’’ reduce the total impacts of designation. upon non-Federal governments, or the (discounted at seven percent). Across all This alternative—which is the approach in-water and coastal construction private sector and includes both taken in the proposed rule—would NAICS codes, the average annual ‘‘Federal intergovernmental mandates’’ result in a critical habitat designation revenues are $1.3 million for the small and ‘‘Federal private sector mandates.’’ that provides for the conservation of the businesses identified. As a result, the This proposed rule will not produce species while potentially reducing the total estimated annualized a Federal mandate. The designation of economic, national security and other administrative costs of $4,900 represent critical habitat does not impose an relevant impacts on entities. less than 0.4 percent of average annual enforceable or legally-binding duty on revenues at these businesses. Coastal Zone Management Act non-Federal government entities or The RFA, as amended by SBREFA, private parties. The only regulatory requires us to consider alternatives to Under section 307(c)(1)(A) of the effect is that Federal agencies must the proposed regulation that will reduce Coastal Zone Management Act (CZMA) ensure that their actions do not destroy the impacts to small entities. We (16 U.S.C. 1456(c)(1)(A)) and its or adversely modify critical habitat considered three alternatives. First, we implementing regulations, each Federal under section 7 of the ESA. Non-Federal considered the alternative of not activity within or outside the coastal entities that receive Federal funding, designating critical habitat for any of the zone that has reasonably foreseeable assistance, permits or otherwise require three humpback whale DPSs. This effects on any land or water use or approval or authorization from a Federal alternative would impose no additional natural resource of the coastal zone agency for an action, may be indirectly economic, national security or other shall be carried out in a manner which impacted by the designation of critical relevant impacts. However, after is consistent to the maximum extent habitat, but the Federal agency has the compiling and reviewing the biological practicable with the enforceable policies legally binding duty to avoid information for these DPSs, we rejected of approved State coastal management destruction or adverse modification of this alternative because it would violate programs. We have determined that the critical habitat. We do not find that this section 4 of the ESA, which specifically proposed designation of critical habitat proposed rule would significantly or requires that we designate critical designation for the CAM and MX DPSs uniquely affect small governments habitat to the maximum extent prudent of humpback whales is consistent to the because it is not likely to produce a and determinable based on maximum extent practicable with the Federal mandate of $100 million or consideration of the best available enforceable policies of the approved greater in any year; that is, it is not a scientific information. A second Coastal Zone Management Programs of ‘‘significant regulatory action’’ under alternative we considered was to Washington, Oregon, and California. the Unfunded Mandates Reform Act. In propose to designate all areas meeting This determination has been submitted addition, the designation of critical

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habitat imposes no obligations on local, However, in November 2018, we discretion in determining the state or tribal governments. Therefore, a received requests for technical-to- appropriate process and level of peer Small Government Agency Plan is not technical meetings from the Quileute review. Stricter standards were required. Tribe and the Quinault Indian Nation. established for the peer review of A technical meeting with ‘‘highly influential scientific Executive Order 13175, Consultation representatives from the Quinault assessments,’’ defined as information and Coordination With Indian Tribal Indian Nation was held on December whose ‘‘dissemination could have a Governments 14, 2018, to share information and potential impact of more than $500 The longstanding and distinctive discuss concerns regarding a million in any one year on either the relationship between the Federal and designation of critical habitat for public or private sector or that the tribal governments is defined by humpback whales. Immediately dissemination is novel, controversial, or treaties, statutes, executive orders, following that meeting, we provided precedent-setting, or has significant judicial decisions, and co-management additional materials and maps to the interagency interest.’’ agreements, which differentiate tribal Quinault representatives. We did not The information in the Draft governments from the other entities that receive any further correspondence from Biological Report (NMFS 2019a) and the deal with, or are affected by, the Federal the Quinault Indian Nation. We made DEA (IEc 2019a) supporting this Government. This relationship has several attempts to schedule the proposed critical habitat rule are given rise to a special Federal trust requested meeting with the Quileute considered influential scientific responsibility involving the legal Tribe; however, we did not receive information and subject to peer review. responsibilities and obligations of the further correspondence in response to To satisfy our requirements under the United States toward Indian tribes and our last effort to schedule a meeting. If OMB Bulletin, we obtained independent the application of fiduciary standards of we receive any additional requests in peer review of the information used to due care with respect to Indian lands, response to this proposed rule, we will draft both of these reports, and tribal trust resources, and the exercise of individually respond to each request incorporated the peer reviewer tribal rights. Executive Order 13175 on prior to issuing a final rule. However, at comments as applicable into the draft Consultation and Coordination with this time and on the basis of the reports prior to dissemination of this Indian Tribal Governments outlines the foregoing communications, it does not proposed rulemaking. Comments responsibilities of the Federal appear that this designation will have received from peer reviewers of the DEA Government in matters affecting tribal ‘‘tribal implications’’ (defined as having and the Draft Biological Report are interests. Section 161 of Public Law a substantial direct effect on one or available online at https:// 108–199 (188 Stat. 452), as amended by more Indian tribes, on the relationship www.cio.noaa.gov/services_programs/ section 518 of Public Law 108–447 (118 between the Federal Government and prplans/ID404.html and https:// Stat. 3267), directs all Federal agencies Indian tribes, or on the distribution of www.cio.noaa.gov/services_programs/ to consult with Alaska Native power and responsibilities between the prplans/ID400.html, respectively. corporations on the same basis as Indian Federal Government and Indian tribes) Executive Order 12630, Takings tribes under E.O. 13175. such as would trigger a requirement to As all of the specific areas under conduct Government to Government Under E.O. 12630, Federal agencies consideration as potential critical consultations. must consider the effects of their actions habitat area were located seaward of the on constitutionally protected private coast line, we preliminarily found that Information Quality Act and Peer property rights and avoid unnecessary there were no Indian lands subject to Review takings of property. A taking of property consideration for possible exclusion. The data and analyses supporting this includes actions that result in physical However, the areas we were considering proposed action have undergone a pre- invasion or occupancy of private as potential critical habitat overlap with dissemination review and have been property that substantially affect its areas used by Indian tribes and Alaska determined to be in compliance with value or use. In accordance with E.O. Natives for subsistence, cultural, usual applicable information quality 12630, the proposed rule does not have and accustomed fishing, or other guidelines implementing the significant takings implications. The purposes. Thus, consistent with the Information Quality Act (Section 515 of designation of critical habitat affects Secretarial Order (#3206), American Pub. L. 106–554). only Federal agency actions. Further, no Indian Tribal Rights, Federal-Tribal On December 16, 2004, the Office of areas of private property exist within Trust Responsibilities, and the Management and Budget (OMB) issued the proposed critical habitat and Endangered Species Act, and Executive its Final Information Quality Bulletin therefore none would be affected by this Order 13175, Consultation and for Peer Review (Bulletin). The Bulletin action. Therefore, a takings implication Coordination with Indian Tribal was published in the Federal Register assessment is not required. Governments (2000), we notified Native on January 14, 2005 (70 FR 2664). The corporations and tribal governments primary purpose of the Bulletin is to Executive Order 12866, Regulatory early on in the process to develop this improve the quality and credibility of Planning and Review, and Executive proposed rule to provide time for scientific information disseminated by Order 13771, Reducing Regulation and meaningful consultation and/or the Federal government by requiring Controlling Regulatory Costs collaboration with appropriate staffs to peer review of ‘‘influential scientific OMB has determined that this inform any proposed critical habitat information’’ and ‘‘highly influential proposed rule is significant for purposes designation. Specifically, we contacted scientific information’’ prior to public of E.O. 12866 review. A Draft Economic potentially affected tribes and Native dissemination. ‘‘Influential scientific Report (IEc 2019a) and Draft ESA groups by mail and offered them the information’’ is defined as ‘‘information Section 4(b)(2) Report (NMFS 2019b) opportunity to consult on and discuss the agency reasonably can determine have been prepared to support the any concerns regarding the designation will have or does have a clear and exclusion process under section 4(b)(2) of critical habitat for humpback whales. substantial impact on important public of the ESA and our consideration of We received no requests for policies or private sector decisions.’’ alternatives to this rulemaking as consultation in response to this mailing. The Bulletin provides agencies broad required under E.O. 12866. To review

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these documents, see the ADDRESSES Overall, economic impacts are expected Executive Order 13211, Energy Supply, section above. to be small and largely associated with Distribution, and Use Based on the Draft Economic Report the administrative costs borne by E.O. 13211 requires agencies to (IEc 2019a), the total estimated present Federal agencies. These impacts are also prepare a Statement of Energy Effects value of the quantified incremental not additive with those associated with when undertaking a significant energy impacts of the proposed critical habitat the WNP and CAM DPSs, as the areas action. Under E.O. 13211, a significant designation for the WNP DPS are proposed for the MX DPS are almost energy action means any action by an approximately $61,000–$85,000 over entirely overlapping with areas being agency that is expected to lead to the the next 10 years. Assuming a 7 percent proposed for another DPS. Because the promulgation of a final rule or discount rate on an annualized basis, proposed designation for the this DPS regulation that is a significant regulatory the impacts are estimated to be $6,900– extends over all other areas proposed as action under E.O. 12866 and is likely to $9,700 per year. These total impacts critical habitat for the other two DPSs, have a significant adverse effect on the include the additional administrative the estimated economic impacts supply, distribution, or use of energy. efforts necessary to consider critical associated with the proposed We have considered the potential habitat in section 7 consultations. These designation for the MX DPS actually impacts of this proposed action on the impacts are also not additive with those represent the total estimated impacts supply, distribution, or use of energy associated with the MX DPS, as the across all DPSs. As with the other DPSs, and find that the designation of critical areas proposed for the WNP DPS are there are expected beneficial economic entirely overlapping with areas being habitat would not have impacts that impacts of designating critical habitat exceed the thresholds identified in proposed for the MX DPS. Overall, for the MX DPS; however, insufficient economic impacts are expected to be OMB’s memorandum M–01–27, data are available to monetize those Guidance for Implementing E.O. 13211. small and largely associated with the impacts (see Benefits of Designation administrative costs borne by Federal Thus, this proposed designation, if section). finalized, would not have a significant agencies. While there are expected This proposed rulemaking is expected beneficial economic impacts of adverse effect within the meaning of the to be considered ‘‘regulatory’’ under designating critical habitat for the WNP executive order. The energy impacts E.O. 13771. DPS, insufficient data are available to analysis is presented in chapter 5 of the monetize those impacts (see Benefits of Executive Order 13132, Federalism Draft Economic Analysis (IEc 2019a). Designation section). List of Subjects Based on the Draft Economic Report Executive Order 13132 requires (IEc 2019a), the total estimated present agencies to take into account any 50 CFR Part 223 value of the quantified incremental federalism impacts of regulations under Endangered and threatened species, impacts of the proposed critical habitat development. It includes specific Exports, Imports, Transportation. designation for the CAM DPS are consultation directives for situations in approximately $370,000–$380,000 over which a regulation may preempt state 50 CFR Part 224 the next 10 years. Assuming a 7 percent law or impose substantial direct Endangered and threatened species, discount rate on an annualized basis, compliance costs on state and local Exports, Imports, Transportation. governments (unless required by the impacts are estimated to be $42,000– 50 CFR Part 226 $43,000 per year. These total impacts statute). Pursuant to E.O. 13132, we include the additional administrative determined that this proposed rule does Endangered and threatened species. efforts necessary to consider critical not have significant federalism effects Dated: September 25, 2019. habitat in section 7 consultations. These and that a federalism assessment is not Samuel D. Rauch III, required. The designation of critical impacts are also not additive with those Deputy Assistant Administrator for associated with the MX DPS, as the habitat directly affects only the Regulatory Programs, National Marine areas proposed for the CAM DPS are responsibilities of Federal agencies. As Fisheries Service. a result, the proposed rule does not have entirely overlapping with areas being For the reasons set out in the substantial direct effects on the States, proposed for the MX DPS. Overall, preamble, 50 CFR parts 223, 224, and on the relationship between the national economic impacts are expected to be 226 are proposed to be amended as government and the States, or on the small and largely associated with the follows: administrative costs borne by Federal distribution of power and agencies. While there are expected responsibilities among the various PART 223—THREATENED MARINE beneficial economic impacts of levels of government, as specified in the AND ANADROMOUS SPECIES designating critical habitat for the CAM Order. State or local governments may DPS, insufficient data are available to be indirectly affected by the proposed ■ 1. The authority citation for part 223 monetize those impacts (see Benefits of designation if they require Federal continues to read as follows: Designation section). funds or formal approval or Authority: 16 U.S.C. 1531–1543; subpart B, Based on the Draft Economic Report authorization from a Federal agency as § 223.201–202 also issued under 16 U.S.C. (IEc 2019a), the total estimated present a prerequisite to conducting an action. 1361 et seq.; 16 U.S.C. 5503(d) for value of the quantified incremental In these cases, the State or local § 223.206(d)(9). impacts of the proposed critical habitat government agency may participate in ■ 2. In § 223.102, in paragraph (e), add designation for the MX DPS are the section 7 consultation as a third a new citation, in alphabetical order, approximately $570,000–$660,000 over party. However, in keeping with under the critical habitat column for the the next 10 years. Assuming a 7 percent Department of Commerce policies and ‘‘whale, humpback (Mexico DPS)’’ discount rate on an annualized basis, consistent with ESA regulations at 50 under Marine Mammals to read as the impacts are estimated to be $64,000– CFR 424.16(c)(1)(ii), we will request follows: $75,000 per year. These total impacts information for this proposed rule from include the additional administrative the appropriate state resources agencies § 223.102 Enumeration of threatened efforts necessary to consider critical in Alaska, Washington, Oregon, and marine and anadromous species. habitat in section 7 consultations. California. * * * * *

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(e) * * *

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

Marine Mammals

******* Whale, humpback Megaptera Humpback whales that breed or winter in the 81 FR 62260, Sept. 8, [Insert 226.227] ...... 223.213 (Mexico DPS). novaeangliae. area of mainland Mexico and the 2016. Revillagigedo Islands, transit Baja California, or feed in the North Pacific Ocean, primarily off California-Oregon, 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).

PART 224—ENDANGERED MARINE ■ 4. In § 224.101, in the table in under the Marine Mammals heading to AND ANADROMOUS SPECIES paragraph (h), add a new citation, in read as follows: alphabetical order, under the critical ■ 3. The authority citation for part 224 § 224.101 Enumeration of endangered habitat column for ‘‘Whale, humpback continues to read as follows: marine and anadromous species. (Central America DPS)’’ and ‘‘Whale, * * * * * Authority: 16 U.S.C. 1531–1543 and 16 humpback (Western North Pacific DPS) U.S.C. 1361 et seq. (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 Humpback whales that breed in waters off 81 FR 62260, Sept. 8, [Insert 226.227]. tral America DPS). novaeangliae. Central America in the North Pacific Ocean 2016. and feed along the west coast of the United States and southern British Columbia. Whale, humpback Megaptera Humpback whales that breed or winter in the 81 FR 62260, Sept. 8, [Insert 226.227]. (Western North Pa- novaeangliae. area of Okinawa and the Philippines in the 2016. cific DPS). Kuroshio Current (as well as unknown breeding grounds in the Western North Pa- cific 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). 2 Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, is limited to tur- tles while in the water.

PART 226—DESIGNATED CRITICAL § 226.227 Critical habitat for the Central clarified by the textual descriptions in HABITAT America, Mexico, and Western North Pacific this section, are the definitive source for distinct population segments (DPSs) of determining the critical habitat ■ humpback whales (Megaptera boundaries. 5. The authority citation of part 226 novaeangliae). continues to read as follows: (a) List of States and Counties. Critical Critical habitat is designated for the habitat is designated in waters off the Authority: 16 U.S.C. 1533. Central America, Mexico, and Western coast of the following states and ■ 6. Add § 226.227, to read as follows: North Pacific humpback whale DPSs as counties for the listed humpback whale described in this section. The maps, 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—Bristol Bay, Lake and Peninsula, Aleutians East, Aleutian West, Kodiak Island, Kenai Peninsula, Valdez-Cordova, unorganized boroughs, Skagway-Hoonah-Angoon, Haines, Juneau, Sitka, Petersburg, Wrangell, Ketchikan Gateway. (ii) WA—Clallam, Jefferson, Grays Harbor, Pacific.

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DPS State-counties

(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—Bristol Bay, Lake and Peninsula, Aleutians East, Aleutian West, Kodiak Island, Kenai Peninsula.

(b) Critical habitat boundaries for the southward through Samalga Pass to a side of the Aleutian Islands, the seaward Central America DPS. Critical habitat boundary drawn along the 2,000-m boundary of the critical habitat is for the Central America DPS includes all isobath on the south side of the islands. defined by a line extending due west marine waters within the designated This isobath forms the southern from Egegik (at 58°14′ N, 157°28′ W) out areas as shown by the maps, including boundary of the critical habitat, to 58°14′ N, 162°0′ W, then southwest to those prepared and made available by eastward to 164°25′ W. The 1,000-m 57°25′ N, 163°29′, then southward to NMFS pursuant to 50 CFR 424.18. isobath forms the offshore boundary for 55°41 N, 162°41′ W; and from this point, (1) Washington. The nearshore the remainder of the critical habitat west to 55°41′ N, 169°30′ W, then boundary is defined by the 50-m (along Aleutian Island and in the Gulf southward through Samalga Pass to a isobath, and the offshore boundary is of Alaska areas), except in Southeast boundary drawn along the 2,000-m defined by the 1,200-m isobath relative Alaska, where the offshore boundary isobath on the south side of the islands. to MLLW. Critical habitat also includes extends out the 2,000-m isobath. Critical This isobath forms the southern waters within the U.S. portion of the habitat extends into Cook Inlet as far boundary of the critical habitat, ° ′ Strait of Juan de Fuca to an eastern north as 60 20 N, just south of Kalgin eastward to 164°25′ W. From this point, boundary line at Angeles Point at Island. ° ′ the 1,000-m isobath forms the offshore 123 33 W. (2) Washington. The nearshore boundary, which extends eastward to (2) Oregon. The nearshore boundary is boundary is defined by the 50-m 158°39′ W. Critical habitat also includes defined by the 50-m isobath. The isobath, and the offshore boundary is the waters around Kodiak Island and the offshore boundary is defined by the defined by the 1,200-m isobath relative Barren Islands. The western boundary 1,200-m isobath relative to MLLW; to MLLW. Critical habitat also includes for this area runs southward along except, in areas off Oregon south of waters within the U.S. portion of the 154°54′ W to the 1,000-m depth contour, 42°10′, the offshore boundary is defined Strait of Juan de Fuca to an eastern and then extends eastward to a by the 2,000-m isobath. boundary line at Angeles Point at boundary at 150°40′ W. The area also (3) California. The nearshore 123°33′ W. boundary is defined by the 50-m isobath (3) Oregon. The nearshore boundary is extends northward to the mouth of Cook relative to MLLW except, from 38°40′ N defined by the 50-m isobath. The Inlet where it is bounded by a line that to 36°00′ N, the nearshore boundary is offshore boundary is defined by the extends from Cape Douglas across the defined by the 15-m isobath relative to 1,200-m isobath relative to MLLW; inlet to Cape Adam. MLLW; and from 36°00′ N to 34°30′ N, except, in areas off Oregon south of (e) Essential feature. Prey species, the nearshore boundary is defined by 42°10′, the offshore boundary is defined primarily euphausiids and small pelagic the 30-m isobath relative to MLLW. by the 2,000-m isobath. schooling fishes of sufficient quality, North of 40°20′ N, the offshore (4) California. The nearshore abundance, and accessibility within boundary of the critical habitat is boundary is defined by the 50-m isobath humpback whale feeding areas to defined by a line corresponding to the relative to MLLW except, from 38°40′ N support feeding and population growth. 2,000-m isobath, and from 40°20′ N to to 36°00′ N, the nearshore boundary is (f) Sites owned or controlled by the 38°40′ N, the offshore boundary is defined by the 15-m isobath relative to Department of Defense. Critical habitat defined by the 3,000-m isobath. From MLLW; and from 36°00′ N to 34°30′ N, does not include the following 38°40′ N southward, the remaining areas the nearshore boundary is defined by particular areas owned or controlled by have an offshore boundary defined by a the 30-m isobath relative to MLLW. the Department of Defense, or line corresponding to the 3,700-m North of 40°20′ N, the offshore designated for its use, where they isobath. boundary of the critical habitat is overlap with the areas described in (c) Critical habitat boundaries for defined by a line corresponding to the paragraph (b) of this section: Mexico DPS. Critical habitat for the 2,000-m isobath, and from 40°20′ N to Mexico DPS of humpback whales 38°40′ N, the offshore boundary is (1) Pursuant to ESA section 4(a)(3)(B), includes all marine waters within the defined by the 3,000-m isobath. From all areas subject to the Naval Base designated areas as shown by the maps, 38°40′ N southward, the remaining areas Ventura County, Point Mugu, CA, and including those prepared and made have an offshore boundary defined by a the Naval Outlying Field, San Nicolas available by NMFS pursuant to 50 CFR line corresponding to the 3,700-m Island, CA approved Integrated Natural 424.18. isobath. Resource Management Plans (INRMPs); (1) Alaska. The nearshore boundaries (d) Critical habitat boundaries for (2) Pursuant to ESA section 4(b)(2), are generally defined by the 1-m isobath Western North Pacific DPS. Critical the Quinault Range Site (QRS) with an relative to mean lower low water habitat for the Western North Pacific additional 10-km buffer around QRS (MLLW). In Bristol Bay and on the north DPS of humpback whales includes all and the Southeast Alaska Acoustic side of the Aleutian Islands, the seaward marine waters within the designated Measurement Facility (SEAFAC). boundary of the critical habitat is areas as shown by the maps, including (g) Maps of humpback whale critical defined by a line extending due west those prepared and made available by habitat. from Egegik (at 58°14′ N, 157°28′ W) out NMFS pursuant to 50 CFR 424.18. to 58°14′ N, 162°0′ W, then southwest to (1) Alaska. The nearshore boundaries (1) Overview map of critical habitat 57°25′ N, 163°29′, then southward to are generally defined by the 1-m isobath for the Central America DPS of 55°41 N, 162°41′ W; and from this point, relative to mean lower low water humpback whales: west to 55°41′ N, 169°30′ W, then (MLLW). In Bristol Bay and on the north BILLING CODE 3510–22–P

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

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

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[FR Doc. 2019–21186 Filed 10–8–19; 8:45 am] BILLING CODE 3510–22–C

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