21082 Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Lisa Network, and the Wishtoyo Foundation Manning, NMFS, Office of Protected filed a complaint seeking court-ordered National Oceanic and Atmospheric Resources, 301–427–8466. deadlines for the issuance of proposed Administration SUPPLEMENTARY INFORMATION: and final rules to designate critical habitat for the CAM, MX, and WNP 50 CFR Parts 223, 224, and 226 Background DPSs of humpback whales. See Center Under the ESA, we are responsible for for Biological Diversity et al. v. National [Docket No. 210415–0080] determining whether certain species are Marine Fisheries Service, et al., No. threatened or endangered, and, to the 3:18–cv–01628–EDL (N.D. Cal.). The RIN 0648–BI06 maximum extent prudent and parties entered into a settlement determinable, designating critical agreement with the approval and Endangered and Threatened Wildlife habitat for endangered and threatened oversight of the court, and subsequently and Plants: Designating Critical species at the time of listing (16 U.S.C. amended the dates specified in the Habitat for the Central America, 1533(a)(3)(A)(i)). On September 8, 2016, original order. The amended settlement Mexico, and Western North Pacific we published a final rule that revised agreement stipulated that NMFS submit Distinct Population Segments of the listing of humpback whales under a proposed determination concerning Humpback Whales the ESA by removing the original, the designation of critical habitat for taxonomic-level species listing, and in these three DPSs to the Federal Register AGENCY: National Marine Fisheries its place listing four DPSs as endangered by September 26, 2019. This deadline Service (NMFS), National Oceanic and and one DPS as threatened (81 FR was met and a proposed rule was Atmospheric Administration (NOAA), 62260). We also determined that nine published on October 9, 2019 (84 FR Commerce. additional DPSs did not warrant listing. 54354). The parties recently agreed to ACTION: Final rule. Prior to this revision, the humpback extend the date for submission of the whale had been listed as an endangered final rule to the Federal Register to SUMMARY: We, the NMFS, issue this April 15, 2021. final rule to designate critical habitat for species in 1970 under the precursor to the endangered Western North Pacific the ESA (the Endangered Species In 2018, a critical habitat review team distinct population segment (DPS), the Conservation Act of 1969), and then (CHRT), consisting of biologists from endangered Central America DPS, and transferred to the list of endangered NMFS and NOS, was convened to assess the threatened Mexico DPS of species under the ESA. Although the and evaluate information in support of humpback whales (Megaptera ESA was later amended to require the a critical habitat designation for the novaeangliae) pursuant to section 4 of designation of critical habitat for listed CAM, MX, and WNP DPSs of humpback the Endangered Species Act (ESA). species, when humpback whales were whales. Based on the Draft Biological Specific areas designated as critical originally listed, there was no statutory Report (NMFS 2019a), the Draft habitat for the Western North Pacific requirement to designate critical habitat Economic Analysis (IEc 2019), and the DPS of humpback whales contain for this species. Section 4(a)(3)(A)(i) of initial Draft Section 4(b)(2) Report approximately 59,411 square nautical the ESA now requires that, to the (NMFS 2019b), we published a miles (nmi2) of marine habitat in the maximum extent prudent and proposed rule (84 FR 54354, October 9, North Pacific Ocean, including areas determinable, critical habitat be 2019) to designate critical habitat for all within the eastern Bering Sea and Gulf designated at the time of listing (16 three DPSs. All of the areas proposed for of Alaska. Specific areas designated as U.S.C. 1533(a)(3)(A)(i)). Pursuant to designation serve as feeding habitat for critical habitat for the Central America implementing regulations at 50 CFR the relevant listed DPSs and contain the 424.12(g), critical habitat is not essential biological feature of humpback DPS of humpback whales contain 2 approximately 48,521 nmi2 of marine designated within foreign countries or whale prey. Approximately 78,690 nmi habitat in the North Pacific Ocean in areas outside the jurisdiction of the of marine habitat within the eastern within the portions of the California United States. Thus, the listing of DPSs Bering Sea, around the eastern Aleutian Current Ecosystem off the coasts of of humpback whales under the ESA in Islands, and in the western Gulf of Washington, Oregon, and California. 2016 triggered the requirement to Alaska were proposed for designation designate critical habitat, to the for the WNP DPS. Approximately Specific areas designated as critical 2 habitat for the Mexico DPS of humpback maximum extent prudent and 48,459 nmi of marine habitat within whales contain approximately 116,098 determinable, for those DPSs occurring portions of the California Current nmi2 of marine habitat in the North in areas under U.S. jurisdiction— Ecosystem (CCE) off the coasts of Pacific Ocean, including areas within specifically, the Central America (CAM), Washington, Oregon, and California Mexico (MX), and Western North Pacific were proposed for designation for the portions of the eastern Bering Sea, Gulf 2 of Alaska, and California Current (WNP) DPSs. The statute and our CAM DPS. Approximately 175,812 nmi Ecosystem. regulations presume that designation is of marine habitat within eastern Bering prudent except in relatively rare Sea, around the eastern Aleutian DATES: This rule becomes effective on circumstances where a finding that it is Islands, in the Gulf of Alaska, and May 21, 2021. not prudent may be appropriate (see 50 within CCE were proposed for the MX ADDRESSES: This final rule, critical CFR 424.12(a)(1)). DPS. Based on consideration of habitat maps, as well as documents In the final rule to list five DPSs of economic impacts under section 4(b)(2) supporting this final rule are available humpback whales, we concluded that of the ESA, we proposed to exclude on our website (www.fisheries.noaa.gov/ critical habitat was not yet approximately 44,119 nmi2 of marine species/humpback-whale#conservation- determinable, which had the effect of habitat from the designation for the management), or may be obtained by extending by one year the statutory WNP DPS, approximately 12,966 nmi2 contacting Lisa Manning, Endangered deadline for designating critical habitat of marine habitat from the designation Species Division, Office of Protected (16 U.S.C. 1533(b)(6)(C)(ii)). On March for the CAM DPS, and approximately Resources, National Marine Fisheries 15, 2018, the Center for Biological 30,527 nmi2 of marine habitat from the Service. Diversity, Turtle Island Restoration designation for the MX DPS. Based on VerDate Sep<11>2014 20:30 Apr 20, 2021 Jkt 253001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\21APR3.SGM 21APR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 86, No. 75 / Wednesday, April 21, 2021 / Rules and Regulations 21083 consideration of national security biological features (I) essential to the habitat serve to validate that any area impacts under section 4(b)(2) of the conservation of the species and (II) meeting that statutory definition is in ESA, we also proposed to exclude which may require special management fact habitat. approximately 48 nmi2 of marine considerations or protection; and (ii) In determining whether the essential habitat from the critical habitat specific areas outside the geographical physical or biological features ‘‘may designation for the MX DPS in area occupied by the species at the time require’’ special management Southeast Alaska and about 1,522 nmi2 it is listed, upon a determination by the considerations or protection, it is of marine habitat off the coast of Secretary that such areas are essential necessary only to find that there is a Washington from the designations for for the conservation of the species (16 possibility that the features may require the CAM and MX DPSs. U.S.C. 1532(5)(A)). Certain areas owned special management considerations or We requested public comment on the or controlled by the Department of protection in the future; it is not proposed designations and supporting Defense are ineligible for designation necessary to find that such management reports (i.e., Draft Biological Report (16 U.S.C. 1533(a)(3)(B)(i). Section is presently or immediately required. (NMFS 2019a), Draft Economic Analysis 3(5)(C) of the ESA provides that, except Home Builders Ass’n of N. California v. (IEc 2019a), and Draft Section 4(b)(2) in those circumstances determined by U.S. Fish and Wildlife Serv., 268 F. Report (NMFS 2019b)) through the Secretary, critical habitat shall not Supp. 2d 1197, 1218 (E.D. Cal. 2003). December 9, 2019, and held five public include the entire geographical area The relevant management need may be hearings (84 FR 55530, October 17, which can be occupied by the ‘‘in the future based on possibility.’’ 2019). In response to requests, we threatened or endangered species. Bear Valley Mut. Water Co. v. Salazar, extended the public comment period Under our implementing regulations, No. SACV 11–01263–JVS, 2012 WL through January 31, 2020 (84 FR 65346, we may consider designating 5353353, at *25 (C.D. Cal. Oct. 17, November 27, 2019) and held a sixth unoccupied areas that are essential for 2012). See also Cape Hatteras Access public hearing (84 FR 65346, November the conservation of the species only Pres. Alliance v. U.S. Dept. of Interior, 27, 2019). For a complete description of where a designation limited to occupied 731 F. Supp. 2d 15, 24 (D.D.C.