[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47635-47669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18832]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 130404330-3330-01]
RIN 0648-BC76


Endangered and Threatened Species; Designation of Critical 
Habitat for Yelloweye Rockfish, Canary Rockfish and Bocaccio of the 
Puget Sound/Georgia Basin

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate critical habitat for three species of rockfish listed under 
the Endangered Species Act (ESA), including the threatened Distinct 
Population Segment (DPS) of yelloweye rockfish (Sebastes ruberrimus), 
the threatened DPS of canary rockfish (S. pinniger), and the endangered 
DPS of bocaccio (S. paucispinus) (listed rockfish). The specific areas 
proposed for designation for canary rockfish and bocaccio include 
approximately 1,184.75 sq mi (3,068.5 sq km) of marine habitat in Puget 
Sound, Washington. The specific areas proposed for designation for 
yelloweye rockfish include approximately 574.75 sq mi (1,488.6 sq km) 
of marine habitat in Puget Sound, Washington. We propose to exclude 
some particular areas from designation because the benefits of 
exclusion outweigh the benefits of inclusion and exclusion of those 
areas will not result in the extinction of the species.
    We are soliciting comments from the public on all aspects of the 
proposal, including information on the economic, national security, and 
other relevant impacts of the proposed designations, as well as the 
benefits to the species from designations. We will consider additional 
information received prior to making final designations.

DATES: Comments on this proposed rule must be received by 5 p.m. P.S.T. 
on

[[Page 47636]]

November 4, 2013. Requests for public hearings must be made in writing 
by September 20, 2013.

ADDRESSES: You may submit comments on the proposed rule, identified by 
FDMS docket number [NOAA-NMFS-2013-0105], by any one of the following 
methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Fax: 206-526-6426, Attn: Dan Tonnes.
     Mail: Chief, Protected Resources Division, Northwest 
Region, National Marine Fisheries Service, 7600 Sand Point Way NE., 
Seattle, WA, 98115.
    Instructions: You must submit comments by one of the above methods 
to ensure that we receive, document, and consider them. Comments sent 
by any other method, to any other address or individual, or received 
after the end of the comment period may not be considered. All comments 
received are a part of the public record and will generally be posted 
for public viewing on http://www.regulations.gov without change. All 
personal identifying information (e.g., name, address, etc.) 
confidential business information, or otherwise sensitive information 
submitted voluntarily by the sender will be publicly accessible. We 
will accept anonymous comments (enter ``N/A'' in the required fields if 
you wish to remain anonymous). Attachments to electronic comments will 
be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
    The proposed rule, list of references and supporting documents 
(including the Draft Biological Report (NMFS, 2013a), the Draft 
Economic Analysis (NMFS, 2013b), and the Draft Section 4(b)(2) Report 
(NMFS, 2013c)) are also available electronically at http://www.nwr.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Dan Tonnes, NMFS, Northwest Region, 
Protected Resources Division, at the address above or at 206-526-4643; 
or Dwayne Meadows, NMFS, Office of Protected Resources, Silver Spring, 
MD, 301-427-8403.

SUPPLEMENTARY INFORMATION: 

Background

    On April 28, 2010, we listed the Puget Sound/Georgia Basin Distinct 
Population Segments (DPSs) of yelloweye rockfish and canary rockfish as 
threatened under the Endangered Species Act (ESA), and bocaccio as 
endangered (75 FR 22276). We are responsible for determining whether 
species, subspecies, or distinct population segments (DPSs) are 
threatened or endangered and designating their critical habitat under 
the ESA (16 U.S.C. 1531 et seq.). In our proposal to list yelloweye 
rockfish, canary rockfish, and bocaccio (74 FR 18516, April 23, 2009), 
we requested information on the identification of specific areas that 
meet the definition of critical habitat. We also solicited biological 
and economic information relevant to making a critical habitat 
designation for each species. We reviewed the comments provided and the 
best available scientific information, and at the time of listing we 
concluded that critical habitat was not determinable for each species 
because sufficient information was not available to: (1) Identify the 
physical and biological features essential to conservation, and (2) 
assess the impacts of a designation. In addition to the data gaps 
identified at the time of listing, sufficient information was not 
available to fully determine the geographical area occupied by each 
species. Following promulgation of the final rule to list each species, 
we continued compiling the best available information necessary to 
consider a critical habitat designation and additional information is 
now available for these three DPSs to better inform the designation 
process.
    We considered various alternatives to the proposed critical habitat 
designation for yelloweye rockfish, canary rockfish, and bocaccio of 
the Puget Sound/Georgia Basin. The alternative of not designating 
critical habitat for each species would impose no economic, national 
security, or other relevant impacts, but would not provide any 
conservation benefit to the species. This alternative was considered 
and rejected because it does not meet the legal requirements of the ESA 
and would not provide for the conservation of each species. The 
alternative of designating all potential critical habitat areas (i.e., 
no areas excluded) also was considered and rejected because for some 
areas the benefits of exclusion outweighed the benefits of inclusion. 
An alternative to designating all potential critical habitat areas is 
the designation of critical habitat within a subset of these areas. 
Under section 4(b)(2) of the ESA, we must consider the economic 
impacts, impacts on national security, and other relevant impacts of 
designating any particular area as critical habitat. The Secretary of 
Commerce (Secretary) has the discretion to exclude an area from 
designation as critical habitat if the benefits of exclusion (i.e., the 
impacts that would be avoided if an area were excluded from the 
designation) outweigh the benefits of designation (i.e., the 
conservation benefits to these species if an area were designated) so 
long as exclusion of the area will not result in extinction of the 
species. We prepared an analysis describing our exercise of discretion, 
which is contained in our final Section4(b)(2) Report (NMFS, 2013c). 
Under this alternative we propose to exclude Indian lands as well as 
several areas under the control of the Department of Defense (DOD). We 
selected this alternative because it results in a critical habitat 
designation that provides for the conservation of listed rockfish while 
avoiding impacts to Indian lands and impacts to national security. This 
alternative also meets the requirements under the ESA and our joint 
NMFS-U.S. Fish and Wildlife Service (USFWS) regulations concerning 
critical habitat.

Yelloweye Rockfish, Canary Rockfish, and Bocaccio Natural History and 
Habitat Use

    Our draft Biological Report (NMFS, 2013a) describes the life 
histories of yelloweye rockfish, canary rockfish and bocaccio in 
detail, which are summarized here. Their life histories include pelagic 
larval and juvenile stages followed by a juvenile stage in shallower 
waters, and a sub-adult/adult stage. Much of the life history of these 
three species is similar, with differences noted below.
    Rockfish are iteroparous (i.e., have multiple reproductive cycles 
during their lifetime) and are typically long-lived (Love et al., 
2002). Yelloweye rockfish are one of the longest lived of the 
rockfishes, reaching more than 100 years of age. Yelloweye rockfish 
reach 50 percent maturity at sizes of 16 to 20 inches (40 to 50 
centimeters) and ages of 15 to 20 years (Rosenthal et al., 1982; 
Yamanaka and Kronlund, 1997). The maximum age of canary rockfish is at 
least 84 years (Love et al. 2002), although 60 to 75 years is more 
common (Caillet et al., 2000). Canary rockfish reach 50 percent 
maturity at sizes around 16 inches (40 centimeters) and ages of 7 to 9 
years. The maximum age of bocaccio is unknown, but may exceed 50 years. 
Bocaccio are reproductively mature near age 6 (FishBase, 2010). Mature 
females of each species produce from several thousand to over a million 
eggs annually (Love et al., 2002). Being long-lived allows each species 
to persist through many years of poor reproduction until a good 
recruitment year occurs.

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    Rockfish fertilize their eggs internally and the young are extruded 
as larvae. Upon parturition (birth), larval rockfish can occupy the 
full water column but generally occur in the upper 80 m (262 feet) 
(Love et al., 2002; Weis, 2004). Larval rockfish have been documented 
in Puget Sound (Greene and Godersky, 2012), yet most studies have not 
identified individual fish to species. There is little information 
regarding the habitat requirements of rockfish larvae, though other 
marine fish larvae biologically similar to rockfish larvae are 
vulnerable to low dissolved oxygen levels and elevated suspended 
sediment levels that can alter feeding rates and cause abrasion to 
gills (Boehlert, 1984; Boehlert and Morgan, 1985; Morgan and Levings, 
1989). Larvae have also been observed immediately under free-floating 
algae, seagrass, and detached kelp (Shaffer et al., 1995; Love et al., 
2002). Oceanographic conditions within many areas of Puget Sound likely 
result in the larvae staying within the basin where they are born 
rather than being more broadly dispersed by tidal action or currents 
(Drake et al., 2010).
    Pelagic juveniles occur throughout the water column (Love et al., 
2002; Weis, 2004). When bocaccio and canary rockfish reach sizes of 1 
to 3.5 inches (3 to 9 centimeters) or 3 to 6 months old, they settle 
into shallow, intertidal, nearshore waters in rocky, cobble and sand 
substrates with or without kelp (Love et al., 1991; Love et al., 2002). 
This habitat feature offers a beneficial mix of warmer temperatures, 
food, and refuge from predators (Love et al., 1991). Areas with 
floating and submerged kelp species support the highest densities of 
juvenile bocaccio and canary rockfish, as well as many other rockfish 
species (Carr, 1983; Halderson and Richards, 1987; Matthews, 1989; Love 
et al., 2002). Unlike bocaccio and canary rockfish, juvenile yelloweye 
rockfish are not typically found in intertidal waters (Love et al. 
1991; Studebaker et al. 2009), but are most frequently observed in 
waters deeper than 98 feet (30 meters) near the upper depth range of 
adults (Yamanaka et al., 2006).
    Depth is generally the most important determinant in the 
distribution of many rockfish species of the Pacific coast (Chen, 1971; 
Williams and Ralston, 2002; Anderson and Yoklavich, 2007;Young et al., 
2010). Adult yelloweye rockfish, canary rockfish, and bocaccio 
generally occupy habitats from approximately 30 to 425 m (90 ft to 
1,394 ft) (Orr et al., 2000; Love et al., 2002), and in Federal waters 
off the Pacific coast each species is considered part of the ``shelf 
rockfish'' assemblage under the authorities of the Magnuson-Stevens 
Fishery Conservation and Management Act because of their generally 
similar habitat usages (50 CFR Part 660, Subparts C-G).
    Adult yelloweye rockfish, canary rockfish, and bocaccio most 
readily use habitats within and adjacent to areas that are highly 
rugose (rough). These are benthic habitats with moderate to extreme 
steepness; complex bathymetry; and/or substrates consisting of 
fractured bedrock, rock, and boulder-cobble complexes (Yoklavich et 
al., 2000; Love et al., 2002; Wang, 2005; Anderson and Yoklavich, 
2007). Most of the benthic habitats in Puget Sound consist of 
unconsolidated materials such as mud, sand, clays, cobbles and 
boulders, and despite the relative lack of rock, some of these benthic 
habitats are moderately to highly rugose. More complex marine habitats 
are generally used by higher numbers of fish species relative to less 
complex areas (Anderson and Yoklavich, 2007; Young et al., 2010), thus 
supporting food sources for sub-adult and adult yelloweye rockfish, 
canary rockfish, and bocaccio. More complex marine habitats also 
provide refuge from predators and their structure may provide shelter 
from currents, thus leading to energy conservation (Young et al., 
2010).
    Though areas near rocky habitats or other complex structure are 
most readily used by adults of each species, non-rocky benthic habitats 
are also occupied. In Puget Sound, adult yelloweye rockfish, canary 
rockfish, and bocaccio have been documented in areas with non-rocky 
substrates such as sand, mud, and other unconsolidated sediments (Haw 
and Buckley, 1971; Washington, 1977; Miller and Borton, 1980; Reum, 
2006).

Prey

    Food sources for yelloweye rockfish, canary rockfish, and bocaccio 
occur throughout Puget Sound. However, each of the basins has unique 
biomass and species compositions of fishes and invertebrates, which 
vary temporally and spatially (Rice, 2007; Rice et al., 2012). Absolute 
and relative abundance and species richness of most fish species in the 
Puget Sound/Georgia Basin increase with latitude (Rice, 2007; Rice et 
al., 2012). Despite these differences, each basin hosts common food 
sources for yelloweye rockfish, canary rockfish, and bocaccio as 
described below.
    Larval and juvenile rockfish feed on very small organisms such as 
zooplankton, copepods and phytoplankton, small crustaceans, 
invertebrate eggs, krill, and other invertebrates (Moser and Boehlert, 
1991; Love et al., 1991; Love et al., 2002). Larger juveniles also feed 
upon small fish (Love et al., 1991). Adult yelloweye rockfish, canary 
rockfish, and bocaccio have diverse diets that include many species of 
fishes and invertebrates including but not limited to crabs, various 
rockfish (Sebastes spp.), flatfish (Pleuronectidae spp.), juvenile 
salmon (Oncorhynchus spp.), walleye pollock, (Theragra chalcogramma), 
Pacific hake (Merluccius productus), Pacific cod (Gadus macrocephalus), 
green sea urchin (Stongylocentrotus droebachiensis), lingcod (Ophiodon 
elongates) eggs, various shrimp species (Pandalus spp.), and perch 
(Rhacochilus spp.). Common forage fish that are part of their diets 
include Pacific herring (Clupea harengus pallasi), surf smelt 
(Hypomesus pretiosus), and Pacific sand lance (Ammodytes hexapterus) 
(Washington et al., 1978; Lea et al., 1999; Love et al., 2002; Yamanaka 
et al., 2006).

Statutory and Regulatory Background for Critical Habitat Designations

    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
The specific areas within the geographical area occupied by the 
species, at the time it is listed . . . , on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed . . 
. upon a determination by the Secretary [of Commerce] that such areas 
are essential for the conservation of the species.''
    Section 4(a) of the ESA precludes military land from designation, 
where that land is covered by an Integrated Natural Resource Management 
Plan that the Secretary has found in writing will benefit the listed 
species.
    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' It grants the Secretary of Commerce (Secretary) discretion 
to exclude any area from critical habitat if he determines ``the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat.'' In adopting this provision, 
Congress explained that, ``[t]he consideration and weight given to any 
particular impact is completely within the Secretary's discretion.'' 
H.R.

[[Page 47638]]

No. 95-1625, at 16-17 (1978). The Secretary's discretion to exclude is 
limited, as he may not exclude areas that ``will result in the 
extinction of the species.''
    Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure they do not fund, authorize, or carry out 
any actions that will destroy or adversely modify that habitat. This 
requirement is in addition to the section 7 requirement that Federal 
agencies ensure their actions do not jeopardize the continued existence 
of listed species.

Methods and Criteria Used To Identify Specific Areas Eligible for 
Critical Habitat

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our implementing regulations and the key 
methods and criteria used to prepare this proposed critical habitat 
designation. Discussion of the specific implementation of each item 
occurs within the species-specific sections. In accordance with section 
4(b)(2) of the ESA and our implementing regulations (50 CFR 424.12), 
this proposed designation is based on the best scientific information 
available concerning the species' present and historical range, 
habitat, and biology, as well as threats to their habitat. In preparing 
this proposed designation, we reviewed and summarized current 
information on these species, including recent biological surveys and 
reports, peer-reviewed literature, NMFS status reviews, and the 
proposed and final rules to list these species. All of the information 
gathered to create this proposed rule has been collated and analyzed in 
three supporting documents: A Draft Biological Report (NMFS, 2013a); a 
Draft Economic Analysis (NMFS, 2013b); and a Draft Section 4(b)(2) 
Report (NMFS, 2013c). We used these reports to inform the 
identification of specific areas as critical habitat. We followed a 
five-step process in order to identify these specific areas: (1) 
Determine the geographical area occupied by the species at the time of 
listing, (2) identify physical or biological habitat features essential 
to the conservation of the species, (3) delineate specific areas within 
the geographical area occupied by the species on which are found the 
physical or biological features, (4) determine whether the features in 
a specific area may require special management considerations or 
protections, and (5) determine whether any unoccupied areas are 
essential for conservation. As described later, we did not identify any 
unoccupied areas that are essential for conservation. Once we have 
identified specific areas, we then considered the economic impact, 
impact on national security, and any other relevant impacts. The 
Secretary has the discretion to exclude an area from designation if he 
determines the benefits of exclusion (that is, avoiding the impact that 
would result from designation), outweigh the benefits of designation 
based on the best available scientific and commercial information. Our 
evaluation and determinations are described in detail in the following 
sections, in addition to our consideration of military lands.

Geographical Area Occupied by the Species

    In the status review and final ESA listing for each species, we 
identified a Puget Sound/Georgia Basin DPS for yelloweye rockfish, 
canary rockfish, and bocaccio (Drake et al. 2010; 75 FR 22276, April 
28, 2010). Our review of the best available data confirmed that 
yelloweye rockfish, canary rockfish, and bocaccio occupy each of the 
major biogeographic basins of the Puget Sound/Georgia Basin (NMFS, 
2013a). The range of the DPS includes portions of Canada; however, we 
cannot designate areas outside U.S. jurisdiction as critical habitat 
(50 CFR 424.12(h)). Puget Sound and Georgia Basin make up the southern 
arm of an inland sea located on the Pacific Coast of North America and 
connected to the Pacific Ocean by the Strait of Juan de Fuca. The term 
``Puget Sound proper'' refers to the waters east of and including 
Admiralty Inlet. Puget Sound is a fjord-like estuary covering 2,331.8 
sq mi (6,039.3 sq km) and has 14 major river systems and its benthic 
areas consist of a series of interconnected basins separated by 
relatively shallow sills, which are bathymetric shallow areas.

Physical or Biological Features Essential to Conservation

    Agency regulations at 50 CFR 424.12(b) interpret the statutory 
phrase ``physical or biological features essential to the conservation 
of the species.'' The regulations state that these features include, 
but are not limited to, space for individual and population growth and 
for normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing of offspring; and habitats that are 
protected from disturbance or are representative of the historical 
geographical and ecological distribution of a species. These 
regulations go on to emphasize that the agency shall focus on ``primary 
constituent elements'' within the specific areas considered for 
designation. The regulations state:

    Primary constituent elements may include, but are not limited 
to, the following: roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quality or 
quantity, host species or plant pollinator, geological formation, 
vegetation type, tide, and specific soil types.

    Based on the best available scientific information regarding 
natural history and habitat needs, we developed a list of physical and 
biological features essential to the conservation of adult and juvenile 
yelloweye rockfish, canary rockfish, and bocaccio and relevant to 
determining whether proposed specific areas are consistent with the 
above regulations and the ESA section (3)(5)(A) definition of 
``critical habitat.'' We do not currently have sufficient information 
regarding the habitat requirements of larval yelloweye rockfish, canary 
rockfish, and bocaccio to determine which features are essential for 
conservation, and thus are not proposing to designate critical habitat 
specifically for this life-stage. However, we will continue to 
investigate this issue and seek comment on it as part of this proposed 
rule. The physical or biological features essential to the conservation 
of yelloweye rockfish, canary rockfish, and bocaccio fall into major 
categories reflecting key life history phases:

Physical or Biological Features Essential to the Conservation of Adult 
Canary Rockfish and Bocaccio, and Adult and Juvenile Yelloweye Rockfish

    Benthic habitats or sites deeper than 30m (98ft) that possess or 
are adjacent to areas of complex bathymetry consisting of rock and or 
highly rugose habitat are essential to conservation because these 
features support growth, survival, reproduction, and feeding 
opportunities by providing the structure for rockfish to avoid 
predation, seek food and persist for decades. Several attributes of 
these sites determine the quality of the habitat and are useful in 
considering the conservation value of the associated feature, and 
whether the feature may require special management considerations or 
protection. These attributes are also relevant in the evaluation of the 
effects of a proposed action in a section 7 consultation if the 
specific area containing the site is designated as critical habitat. 
These attributes include: (1) Quantity, quality, and availability of 
prey species to support individual growth, survival, reproduction, and 
feeding opportunities, (2) water quality and sufficient levels of 
dissolved oxygen to

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support growth, survival, reproduction, and feeding opportunities, and 
(3) the type and amount of structure and rugosity that supports feeding 
opportunities and predator avoidance.

Physical and Biological Features Essential to the Conservation of 
Juvenile Canary Rockfish and Bocaccio

    Juvenile settlement habitats located in the nearshore with 
substrates such as sand, rock and/or cobble compositions that also 
support kelp (families Chordaceae, Alariaceae, Lessoniacea, 
Costariaceae, and Laminaricea) are essential for conservation because 
these features enable forage opportunities and refuge from predators 
and enable behavioral and physiological changes needed for juveniles to 
occupy deeper adult habitats. Several attributes of these sites 
determine the quality of the area and are useful in considering the 
conservation value of the associated feature and, in determining 
whether the feature may require special management considerations or 
protection. These features also are relevant to evaluating the effects 
of a proposed action in a section 7 consultation if the specific area 
containing the site is designated as critical habitat. These attributes 
include: (1) Quantity, quality, and availability of prey species to 
support individual growth, survival, reproduction, and feeding 
opportunities; and (2) water quality and sufficient levels of dissolved 
oxygen to support growth, survival, reproduction, and feeding 
opportunities.

Specific Areas Within the Geographical Area Occupied by the Species

    After determining the geographical area of the Puget Sound/Georgia 
Basin occupied by adult and juvenile yelloweye rockfish, canary 
rockfish, and bocaccio, and the physical and biological features 
essential to their conservation, we next identified the specific areas 
within the geographical area occupied by the species that contain the 
essential features. The U.S. portion of Puget Sound/Georgia Basin that 
is occupied by yelloweye, canary, and bocaccio can be divided into five 
biogeographic basins or areas based on the presence and distribution of 
adult and juvenile rockfish, geographic conditions, and habitat 
features (Figure 1). These five interconnected areas are: (1) The San 
Juan/Strait of Juan de Fuca Basin, (2) Main Basin, (3) Whidbey Basin, 
(4) South Puget Sound, and (5) Hood Canal (Drake et al., 2010, NMFS 
2013a). These interconnected basins are separated by relatively shallow 
sills. The configuration of sills and deep basins results in the 
partial recirculation of water masses in the Puget Sound and the 
retention of contaminants, sediment, and biota (Strickland, 1983). The 
sills largely define the boundaries between the basins and contribute 
to the generation of relatively fast water currents during portions of 
the tidal cycle. The sills, in combination with bathymetry, freshwater 
input, and tidal exchange, influence environmental conditions such as 
the movement and exchange of biota from one region to the next, water 
temperatures and water quality, and they also restrict water exchange 
(Ebbesmeyer et al., 1984; Burns, 1985; Rice, 2007). In addition, each 
basin differs in biological condition; depth profiles and contours; 
sub-tidal benthic, intertidal habitats; and shoreline composition and 
condition (Downing, 1983; Ebbesmeyer et al., 1984; Burns, 1985; Rice, 
2007; Drake et al., 2010). These areas also meet the definition of 
specific areas under ESA section (3)(5)(A) because each one contains 
the essential physical and biological features for juvenile rearing 
and/or adult reproduction, sheltering, or feeding for yelloweye 
rockfish, canary rockfish, and bocaccio. We do not currently have 
sufficient information regarding the habitat requirements of larval 
yelloweye rockfish, canary rockfish, and bocaccio to allow us to 
determine essential features specific to the larval life stage.
BILLING CODE 3501-2210-P

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[GRAPHIC] [TIFF OMITTED] TP06AU13.043

BILLING CODE 3501-22-C
    We considered the distribution of the essential features within 
these areas. We used available geographic data to

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delineate and map the essential features within each of the specific 
areas.

Delineating and Mapping Areas of Complex Bathymetry Deeper than 30 
Meters Containing Features Essential to the Conservation of Adult 
Canary, Yelloweye and Bocaccio Rockfish and Juvenile Yelloweye

    To determine the distribution of essential features of benthic 
habitats deeper than 30 m (98 ft) with complex bathymetry, we relied on 
benthic habitat characterizations of each of the five basins of Puget 
Sound. We used the Benthic Terrain Model (BTM) developed by the NMFS 
Northwest Fisheries Science Center, which classifies terrain in all 
five basins (Davies, 2009). We also assessed recent benthic maps in the 
San Juan Basin (Greene and Barrie, 2011; Greene, 2012). We used these 
information sources to assess the presence of complex bathymetry in 
waters deeper than 30 m (98 ft).
    The BTM is a collection of ArcGIS-based terrain visualization tools 
that can be used to examine the deepwater benthic environment using 
input bathymetric data sets. High resolution bathymetric data, most 
often obtained through acoustic means such as multibeam sonar mapping 
instruments, creates a digital representation of seafloor topography. 
The spatial analysis functions of a geographic information system (GIS) 
allow for the extraction of several derived products from bathymetric 
data, such as slope, bathymetric position, and rugosity. The BTM can 
also be used to classify data based on a combination of slope (a first-
order derivative of bathymetry), and broad- and fine-scaled bathymetric 
position indices (Bathymetric Position Index, second-order derivatives 
of bathymetry) describing the depth of a specific point relative to the 
surrounding bathymetry, and produces grid layers of terrain-based zones 
and structures. The BTM classifies benthic terrain at a 30 m (98 ft) 
grid scale in several categories that include flats, depressions, 
crests, shelves, and slopes, but does not delineate benthic substrate 
type. The BTM also provides a ``rugosity'' value, which is a 
measurement of variations or amplitude in the height of a surface--in 
this case, the seafloor (Kvitek et al., 2003; Dunn and Halpin, 2009). 
Rugosity values range from 0 (i.e., flat habitat) to 5.7 (very complex 
habitat). We refer to benthic areas with rugosity values of 1.005 or 
higher as ``high rugosity.'' We selected a rugosity value of 1.005 and 
higher as representing the presence of this essential feature because 
the spatial area mapped as proposed critical habitat at that level of 
rugosity encompassed the vast majority of the documented occurrences 
with precise spatial data of yelloweye rockfish (90%), canary rockfish 
(86%), and bocaccio (92%) within the DPSs (NMFS, 2013a). Rugosity 
values can be used as a surrogate for reef fish diversity when other 
data on habitats are lacking (Pittman et al. 2007). Similarly, areas of 
high rugosity have been used as an indicator of hard-bottomed habitat 
(Dunn and Halpin 2009).
    In addition to the BTM, we used available benthic maps to assess 
rockfish habitat in the San Juan Basin. Unlike the rest of the basins 
of the Puget Sound, comprehensive seafloor characterization and mapping 
has occurred in most of the San Juan Archipelago and southern Georgia 
Strait (Greene and Barrie, 2011; Greene, 2012). This mapping was 
generated by multibeam and backscatter sonar surveys. These habitat 
maps provide information on the benthic terrain for most of the San 
Juan area, including specific benthic terrain types (i.e., ``fractured 
bedrock'' and ``hummocky unconsolidated sediments''), which can be used 
to identify complex bathymetry.
    We analyzed whether the BTM encompassed the rocky habitats of the 
San Juan Islands mapped by Green and Barrie (2011) and found just over 
1 sq mi (1.6 sq km) was composed of rock but not identified as having 
rugosity values equal to or greater than 1.005 by the BTM. This is just 
2 percent of the overall amount of rocky areas mapped by Green and 
Barrie (2011). This assessment served as verification that the BTM's 
rugosity values of equal to or greater than 1.005 encompass most rocky 
terrain in the San Juan Basin. In addition to the areas identified as 
high rugosity by the BTM, we concluded that the 2 percent of rocky 
areas in the San Juan Basin not characterized as high rugosity contain 
the essential features of rockfish critical habitat and were added to 
the final distribution map for this essential feature (NMFS, 2013a).

Delineating and Mapping Settlement Sites Containing Features Essential 
to the Conservation of Juvenile Canary and Boccacio Rockfish

    In delineating juvenile settlement sites in Puget Sound, we focused 
on the area contiguous with the shoreline from extreme high water out 
to a depth no greater than 30 meters relative to mean lower low water 
because this area coincides with the maximum depth of the photic zone 
in Puget Sound and thus, with appropriate substrates that can support 
the growth of kelp and rearing canary rockfish and bocaccio. To 
determine the distribution of essential features of nearshore habitats 
for juvenile canary rockfish and bocaccio, we used the Washington State 
Department of Natural Resources' (DNR) shorezone inventory (Berry, 
2001) in combination with the benthic habitat classifications of the 
BTM related to the locations where moderate and large rivers enter 
Puget Sound (NMFS, 2013a).
    The DNR shorezone habitat classifications are available for all of 
the shoreline within the ranges of the DPSs. We used the habitat 
characteristics described in the shorezone inventory to assist in 
determining if essential features for juvenile canary rockfish and 
bocaccio occur along particular nearshore areas. The shorezone 
inventory was conducted by aerial visual surveys between 1994 and 2000 
along all of Washington State's shorelines (Berry et al., 2001). The 
DNR subdivided beaches into units that are sections of beach with 
similar geomorphic characteristics. Within each unit, the DNR 
documented the presence of eelgrass or kelp, among other biological 
parameters. There are 6,856 shoreline segments in the range of the 
rockfish DPSs, ranging from 0.02 to 14 kilometers (0.01 to 8.7 mi) in 
length. The DNR delineated 15 different geomorphic shoreline types. The 
DNR's mapping of aquatic vegetation had limitations, because shoreline 
segments were observed by aerial surveys during different years and 
months. Aquatic vegetation growth, including kelp, is variable from 
month to month and year to year. Some kelp species are annuals, thus 
surveys that took place during non-growing seasons may have not mapped 
kelp beds where they actually occur. Non-floating kelp species in 
particular may have also been underestimated by the DNR survey methods 
because they were more difficult to document than floating kelp. In 
particular, all kelp species mapped were usually not visible to their 
lower depth limit because of poor visibility through the water column. 
While beds of vegetation may have been visible underwater, often it was 
not possible to determine what particular type of vegetation was 
present because of a lack of color characteristics. In addition, 
because floating kelp occurs in shallow waters, off-shore of the area 
visible from the aircraft, it was not mapped in many cases. For these 
reasons, the mapped kelp within the shorezone database represents an 
underestimation of the total amount of kelp along Puget Sound 
shorelines.
    To determine which shorelines contained the essential features for

[[Page 47642]]

juvenile canary rockfish and bocaccio, we reviewed their geomorphic 
classifications to see if they possessed ``substrates such as sand, 
rock and/or cobble compositions.'' In addition, we assessed the 
relative overlap of mapped kelp in these shoreline types. All but the 
``Estuary Wetland'' and ``Mud Flat'' type shoreline segments had at 
least 20 percent of the segment with ``continuous'' or ``sporadic'' 
kelp mapped by DNR. The Estuary Wetland and Mud Flat type segments had 
very small portions of kelp (1.5 and 2.6 percent, respectively). We 
found that the Estuary Wetland and Mud Flat type shoreline segments 
longer than one-half lineal mile in length lack essential features for 
canary rockfish and bocaccio.
    To assess nearshore estuaries and deltas of moderate and large 
rivers that enter Puget Sound, we used information from Burns (1983) 
and Teizeen (2012) to determine the location and annual flows of these 
rivers. These rivers input various volumes of sediment and fresh water 
into Puget Sound (Downing, 1983; Burns, 1985; Czuba et al., 2011) and 
profoundly influence local benthic habitat characteristics, salinity 
levels, and local biota. The nearshore areas adjacent to moderate-to-
large river deltas are characterized by the input of fresh water and 
fine sediments that create relatively flat habitats (termed ``shelves'' 
by the BTM) that do not support the growth of kelp (NMFS, 2013a). In 
addition, the net outward flow of these deltas may prevent post-
settlement juvenile canary rockfish or bocaccio from readily using 
these habitats. For these reasons we found that these nearshore areas 
do not contain the essential features of rearing sites for canary 
rockfish or bocaccio (juvenile yelloweye rockfish most commonly occupy 
waters deeper than the nearshore).
    The DNR shorezone survey did not delineate the geomorphic extent of 
shoreline segments associated with estuaries and deltas. Thus we 
determined the geographical extent of these estuaries and shelves from 
the BTM ``shelf'' seafloor designation associated with the particular 
river because it indicates the geomorphic extension of the tidal and 
sub-tidal delta where fresh water enters Puget Sound. Not all of the 
shorelines associated with estuaries and deltas were labeled as 
``estuary wetland'' and ``mud flat'' by DNR, thus we delineated 
juvenile settlement sites located in the nearshore at the border of 
these deltas at either the geomorphic terminus of the delta at the 30 m 
(98 ft) contour, and/or at the shoreline segment mapped with kelp by 
the DNR. By doing this, we eliminated some of the other shorezone 
geomorphic shoreline types from proposed critical habitat designation 
because available information did not support the presence of essential 
features at some specific areas adjacent to moderate to large rivers 
(see NMFS, 2013a).

Special Management Considerations or Protection

    An occupied area cannot be designated as critical habitat unless it 
contains physical or biological features that ``may require special 
management considerations or protection.'' Agency regulations at 50 CFR 
424.02(j) define ``special management considerations or protection'' to 
mean ``any methods or procedures useful in protecting physical and 
biological features of the environment for the conservation of listed 
species.'' Many forms of human activities have the potential to affect 
the essential features of listed rockfish species: (1) Nearshore 
development and in-water construction (e.g., beach armoring, pier 
construction, jetty or harbor construction, pile driving construction, 
residential and commercial construction); (2) dredging and disposal of 
dredged material; (3) pollution and runoff; (4) underwater construction 
and operation of alternative energy hydrokinetic projects (tidal or 
wave energy projects) and cable laying; (5) kelp harvest; (6) 
fisheries; (7) non-indigenous species introduction and management; (8) 
artificial habitats; (9) research activities; and (10) aquaculture. All 
of these activities may have an effect on one or more physical or 
biological features via their potential alteration of one or more of 
the following: adult habitats, food resources, juvenile settlement 
habitat, and water quality. Further detail regarding the biological and 
ecological effect of these species management considerations is found 
in the draft Biological Report (NMFS, 2013a).

Descriptions of Essential Features and Special Management 
Considerations in Each Specific Area

    We describe the five basins (the specific areas) of the Puget Sound 
below in terms of their biological condition and attributes, and full 
details are found in the biological report supporting this proposed 
designation (NMFS, 2013a). Each basin has different levels of human 
impacts related to the sensitivity of the local environment, and degree 
and type of human-derived impacts. We have also included examples of 
some of the activities that occur within these basins that affect the 
essential features such that they may require special management 
considerations or protection.
    The San Juan/Strait of Juan de Fuca Basin--This basin is the 
northwestern boundary of the U.S. portion of the DPSs. The basin is 
delimited to the north by the Canadian border and includes Bellingham 
Bay, to the west by the entrance to the Strait of Juan de Fuca, to the 
south by the Olympic Peninsula and Admiralty Inlet, and to the east by 
Whidbey Island and the mainland between Anacortes and Blaine, 
Washington. The predominant feature of this basin is the Strait of Juan 
de Fuca, which is 99.4 mi (160 km) long and varies from 13.7 mi (22 km) 
wide at its western end to over 24.9 mi (40 km) wide at its eastern end 
(Thomson, 1994). Drake et al. (2010) considered the western boundary of 
the DPSs as the Victoria Sill because it is hypothesized to control 
larval dispersal for rockfish (and other biota) of the region. Water 
temperatures are lower and more similar to coastal marine waters than 
to Puget Sound proper, and circulation in the strait consists of a 
seaward surface flow of diluted seawater (<30.0 practical salinity 
units [psu]) in the upper layer and an inshore flow of saline oceanic 
water (>33.0 psu) at depth (Drake et al., 2010). Water exchange in this 
basin has not been determined because, unlike the rest of the basins of 
the DPSs, it is more oceanic in character and water circulation is not 
nearly as constrained by geography and sills as it is in the other 
basins.
    The San Juan/Strait of Juan de Fuca Basin has the most rocky 
shoreline and benthic habitats of the U.S. portion of the DPSs. Most of 
the basin's numerous islands have rocky shorelines with extensive, 
submerged aquatic vegetation and floating kelp beds necessary for 
juvenile canary rockfish and bocaccio settlement sites.
    This basin also contains abundant sites deeper than 30 meters that 
possess or are adjacent to areas of complex bathymetry. Approximately 
93 percent of the rocky benthic habitats of the U.S. portion of the 
range of all three DPSs are in this basin (Palsson et al., 2009). Plate 
tectonic processes and glacial scouring/deposition have produced a 
complex of fjords, grooved and polished bedrock outcrops, and erratic 
boulders and moraines along the seafloor of the San Juan Archipelago 
(Greene, 2012). Banks of till and glacial advance outwash deposits have 
also formed and contribute to the variety of relief and habitat within 
the basin. These processes have contributed to the development of 
benthic areas with complex bathymetry.

[[Page 47643]]

    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented in the San Juan Archipelago, in addition to the southern 
portion of this basin along the Strait of Juan de Fuca (Washington, 
1977; Moulton and Miller, 1987; Pacunski, 2013). The southern portion 
of this basin has several pinnacles that include Hein, Eastern, Middle, 
MacArthur, Partridge, and Coyote Banks. Yelloweye rockfish were once 
commonly caught by anglers along these areas, particularly Middle Bank 
(Olander, 1991).
    As described in more detail in the biological report (NMFS, 2013a), 
there are several activities that occur in this basin that affect the 
essential features such that they may require special management 
considerations. Commercial and recreational fisheries occur here, as 
well as scientific research. The highest concentration of derelict 
fishing nets in the DPSs remain here, including over 100 nets in waters 
deeper than 100 ft (30.5 m) (NRC, 2010), and an estimated 705 nets in 
waters shallower than 100 ft (30.5 m) (Northwest Straits Initiative, 
2011). Because this basin has the most kelp in the DPSs, commercial 
harvest of kelp could be proposed for the San Juan Islands area. The 
Ports of Bellingham and Anacortes are located in this basin, and 
numerous dredging and dredge disposal projects and nearshore 
development, such as new docks, piers, and bulkheads occur in this 
basin. These development actions have the potential to alter juvenile 
settlement sites of canary rockfish and bocaccio. Two open-water dredge 
disposal sites are located in the basin, one in Rosario Strait and the 
other northwest of Port Townsend. These are termed dispersive sites 
because they have higher current velocities; thus, dredged material 
does not accumulate at the disposal site and settles on benthic 
environments over a broad area (Army Corps of Engineers, 2010). 
Sediment disposal activities in this specific area may temporarily 
alter water quality (dissolved oxygen levels) and feeding opportunities 
(the ability of juvenile rockfish to seek out prey). There are several 
areas with contaminated sediments along the eastern portion of this 
basin, particularly in Bellingham Bay and Guemes Channel near 
Anacortes.
    Whidbey Basin--The Whidbey Basin includes the marine waters east of 
Whidbey Island and is delimited to the south by a line between 
Possession Point on Whidbey Island and Meadowdale, south of Mukilteo. 
The northern boundary is Deception Pass at the northern tip of Whidbey 
Island. The Skagit, Snohomish, and Stillaguamish Rivers flow into this 
basin and contribute the largest influx of freshwater inflow to Puget 
Sound (Burns, 1985). Water retention is approximately 5.4 months due to 
the geography and sills at Deception Pass (Ebbesmeyer et al., 1984).
    Most of the nearshore of the Whidbey Basin consists of bluff-backed 
beaches with unconsolidated materials ranging from mud and sand to 
mixes or gravels and cobbles (McBride 2006). Some of these nearshore 
areas support the growth of kelp. Some of the northern part of this 
basin is relatively shallow with moderately flat bathymetry near the 
Skagit, Stillaguamish and Snohomish River deltas and does not support 
kelp growth because it lacks suitable areas for holdfast attachment, 
such as rock and cobble.
    Benthic areas in this basin contain sites deeper than 30 meters 
that possess or are adjacent to areas of complex bathymetry. The 
southern portion of the basin has more complex bathymetry compared to 
the north, with deeper waters adjacent to Whidbey Island, southern 
Camano Island, and near the City of Mukilteo.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented in the Whidbey basin, with most occurrences within the 
southern portion near south Camano Island, Hat (Gedney) Island, and 
offshore of the City of Mukilteo. It is not known if the southern 
portion of the Whidbey basin has more attractive rockfish habitat 
compared to the northern portion, or if most documented occurrences are 
a reflection of uneven sampling effort over the years.
    As described in more detail in the biological report, there are 
several activities that occur in this basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging projects and dredge disposal operations, nearshore 
development projects, aquaculture and tidal energy projects. An 
estimated 18 derelict nets remain in waters shallower than 100 ft (30.5 
m) in this basin (Northwest Straits Initiative, 2011). A potential 
tidal energy site is located within the Deception Pass area, at the 
northern tip of Whidbey Island. Pollution and runoff are also concerns 
in this basin, mostly near the Port Gardner area. There are several 
areas with contaminated sediments along the eastern portion of this 
basin, particularly near the Cities of Mukilteo and Everett.
    Main Basin--The 62.1 mi (100 km) long Main Basin is delimited to 
the north by a line between Point Wilson near Port Townsend and 
Partridge Point on Whidbey Island, to the south by Tacoma Narrows, and 
to the east by a line between Possession Point on Whidbey Island and 
Meadow Point. The sill at the border of Admiralty Inlet and the eastern 
Straits of Juan de Fuca regulates water exchange of Puget Sound (Burns, 
1985). The Main Basin is the largest basin, holding 60 percent of the 
water in Puget Sound proper. Water retention is estimated to be one 
month due to the sills at Admiralty Inlet and Deception Pass 
(Ebbesmeyer et al., 1984).
    Approximately 33 percent (439.3 mi (707 km)) of Puget Sound's 
shoreline occurs within this basin and nearshore habitats consist of 
bluff-backed beaches with unconsolidated materials ranging from mud and 
sand to mixes or gravels and cobbles (Drake et al., 2010). Some of 
these nearshore areas support the growth of kelp. Subtidal surface 
sediments in Admiralty Inlet tend to consist largely of sand and 
gravel, whereas sediments just south of the inlet and southwest of 
Whidbey Island are primarily sand. Areas deeper than 30 meters in the 
Main Basin have varying amounts of sites that possess or are adjacent 
to areas of complex bathymetry. Sediments in the deeper areas of the 
central portion of the Main Basin generally consist of mud or sandy mud 
(Bailey et al., 1998) and are generally not complex. Possession Point 
is centrally located within this basin at the southern end of Whidbey 
Island, and has relatively steep eastern, southern, and western edges 
and also has some rocky substrates (Squire and Smith, 1977). There are 
benthic areas deeper than 98 ft (30 m) along Possession Point, 
Admiralty Inlet and the rims of Puget Sound beyond the nearshore that 
feature complex bathymetry, with slopes and areas of high rugosity.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented at Possession Point, near the port of Kingston and Apple 
Cove, and along much of the eastern shoreline of this basin 
(Washington, 1977; Moulton and Miller, 1987).
    As described in more detail in the biological report, there are 
several activities that occur in this basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging projects and dredge disposal operations, nearshore 
development projects, aquaculture and tidal energy projects. An 
estimated 75 derelict nets in waters

[[Page 47644]]

shallower than 100 ft (30.5 m) remain in this basin (Northwest Straits 
Initiative, 2011). A planned tidal energy site is located within the 
Admiralty Inlet area off Whidbey Island. Pollution and runoff are also 
concerns in this basin because of extensive amounts of impervious 
surface located on its eastern side. Two open-water dredge disposal 
sites are located in the basin, one located in Elliot Bay and the other 
in Commencement Bay. These are non-dispersive disposal sites, which are 
areas where currents are slow enough that dredged material is deposited 
on the disposal target area rather than dispersing broadly with 
prevailing currents (Army Corps of Engineers, 2010). An estimated 36 
percent of the shoreline in this area has been modified by human 
activities (Drake et al., 2010) and bulkhead/pier repair projects and 
new docks/piers are proposed regularly in this basin. There are several 
areas with contaminated sediments in this basin, particularly in Elliot 
Bay, Sinclair Inlet, and Commencement Bay.
    South Puget Sound--This basin includes all waterways south of 
Tacoma Narrows, and is characterized by numerous islands and shallow 
(generally <65 ft (20 m)) inlets with extensive shoreline areas. The 
sill at Tacoma Narrows restricts water exchange between the South Puget 
Sound and the Main Basin and water retention is an estimated 1.9 months 
(Ebbesmeyer et al., 1984). This restricted water exchange influences 
environmental characteristics of the South Puget Sound such as nutrient 
levels and dissolved oxygen, and perhaps its biotic communities 
(Ebbesmeyer et al., 1984; Rice, 2007).
    Wide assortments of sediments are found in the nearshore and 
intertidal areas of this basin (Bailey et al., 1998). The most common 
sediments and the percent of the intertidal area they cover (with 95 
percent confidence limits) are: Mud, 38.3  29.3 percent; 
sand, 21.7  23.9 percent; mixed fine, 22.9  
16.1 percent; and gravel, 11.1  4.9 percent. Subtidal areas 
have a similar diversity of surface sediments, with shallower areas 
consisting of mixtures of mud and sand and deeper areas consisting of 
mud (Puget Sound Water Quality Authority, 1987). The southern inlets of 
this basin include Oakland Bay, Totten Inlet, Bud Inlet and Eld Inlet, 
in addition to the Nisqually River delta. These inlets have relatively 
muddy habitats that do not support essential nearshore features such as 
holdfasts for kelp, and rock and cobble areas for rearing juvenile 
canary rockfish and bocaccio. Despite the prevalence of muddy and sandy 
substrate in the southern portion of this basin, some of these 
nearshore areas support the growth of kelp and therefore contain 
juvenile settlement sites.
    With a mean depth of 121 ft (37 m), this basin is the shallowest of 
the five basins (Burns 1985). Benthic areas deeper than 98 ft (30 m) 
occur in portions of the Tacoma Narrows and Dana Passage and around the 
rims of the basin. Sediments in Tacoma Narrows and Dana Passage consist 
primarily of gravel and sand. The rims of South Puget Sound beyond the 
nearshore feature complex bathymetry, with slopes and areas of high 
rugosity.
    Yelloweye rockfish, canary rockfish, and bocaccio have been 
documented within the South Puget Sound (NMFS, 2013a). Canary rockfish 
may have been historically most abundant in the South Sound (Drake et 
al., 2010).
    As described in more detail in the biological report, there are 
several activities that occur in this basin that affect the essential 
features such that they may require special management considerations. 
Activities include commercial and recreational fisheries, scientific 
research, dredging and dredge disposal, nearshore development, 
pollution and runoff, aquaculture operations, and potential tidal 
energy projects. An estimated 4 derelict nets in waters shallower than 
100 ft (30.5 m) remain in this basin (Northwest Straits Initiative, 
2011). A non-dispersive dredge disposal site is located off Anderson/
Ketron Island (Army Corps of Engineers, 2010). A potential tidal energy 
site is located in the Tacoma Narrows area. Important point sources of 
waste include sewage treatment facilities, and about 5 percent of the 
nutrients (as inorganic nitrogen) entering greater Puget Sound enter 
this basin through nonpoint sources (Embrey and Inkpen, 1998). An 
estimated 34 percent of the shoreline in this area has been modified by 
human activities (Drake et al., 2010), and bulkhead/pier repair 
projects and new docks/piers are proposed regularly in this basin. The 
major urban areas, and thus more pollution and runoff into the South 
Puget Sound, are found in the western portions of Pierce County. Other 
urban centers in Southern Puget Sound include Olympia and Shelton. 
There are several areas with contaminated sediments in this basin in 
Carr Inlet and near Olympia.
    Hood Canal--Hood Canal branches off the northwest part of the Main 
Basin near Admiralty Inlet and is the smallest of the greater Puget 
Sound basins, being 55.9 mi (90 km) long and 0.6 to 1.2 mi (1 to 2 km) 
wide (Drake et al., 2010). Water retention is estimated at 9.3 months; 
exchange in Hood Canal is regulated by a 164-foot (50-meter) deep sill 
near its entrance that limits the transport of deep marine waters in 
and out of Hood Canal (Ebbesmeyer et al., 1984; Burns, 1985). The major 
components of this basin consist of the Hood Canal entrance, Dabob Bay, 
the central basin, and the Great Bend at the southern end. A 
combination of relatively little freshwater inflow, the sill at 
Admiralty Inlet, and bathymetry lead to relatively slow currents; thus, 
water residence time within Hood Canal is the longest of the 
biogeographic basins, with net surface flow generally northward 
(Ebbesmeyer et al., 1984).
    The intertidal and nearshore zone consists mostly of mud (53.4 
 89.3 percent of the intertidal area), with similar amounts 
of mixed fine sediment and sand (18.0  18.5 percent and 
16.7  13.7 percent, respectively) (Bailey et al., 1998). 
Some of the nearshore areas of Hood Canal have cobble and gravel 
substrates intermixed with sand that support the growth of kelp. 
Surface sediments in the subtidal areas also consist primarily of mud 
and cobbles (Puget Sound Water Quality Authority, 1987). The shallow 
areas of the Great Bend, Dabob Bay, and the Hamma Hamma, Quilcene, 
Duckabusch, Dosewallips, Tahuya and Skokomish River deltas feature 
relatively muddy habitats that lack holdfasts for kelp, such as rock 
and cobble areas, and thus do not support kelp growth. Such areas thus 
lack the essential feature of juvenile settlement sites for juvenile 
canary rockfish and bocaccio.
    Benthic areas deeper than 98 ft (30 m) occur along the rim of 
nearly all of Hood Canal, and these areas feature complex bathymetry, 
with slopes and areas of high rugosity.
    Bocaccio have been documented in Hood Canal (NMFS, 2013a). 
Yelloweye and canary rockfish have also been documented at several 
locations and have been caught in relatively low numbers for the past 
several years (WDFW, 2011).
    As described in more detail in the biological report, there are 
several activities that occur in this basin that affect the essential 
features such that they may require special management considerations. 
Activities in Hood Canal include commercial and recreational fisheries, 
scientific research, nearshore development, non-indigenous species 
management, aquaculture, and pollution and runoff. An estimated 81 
derelict nets in waters shallower than 100 ft (30.5 m) remain in this 
basin (Northwest Straits Initiative, 2011). The unique bathymetry and 
low water exchange have led to episodic periods of low dissolved oxygen 
(Newton et al., 2007),

[[Page 47645]]

though the relative role of nutrient input from humans in exacerbating 
these periods of hypoxia is in doubt (Cope and Roberts, 2012). 
Dissolved oxygen levels have decreased to levels that cause behavioral 
changes and kill some rockfish (i.e., below 1.0 mg/L (1 ppm)) (Palsson 
et al., 2008). An estimated 34 percent of the shoreline in this area 
has been modified by human activities (Drake et al., 2010), and 
bulkhead/pier repairs and new docks/piers are regularly proposed in 
this basin. The non-indigenous tunicate (Ciona savignyi) has been 
document at 86 percent of sites surveyed in Hood Canal (Drake et al., 
2010), and may impact benthic habitat function that include rearing and 
settlement habitat for rockfish.

Depicting Proposed Critical Habitat With Maps

    As previously described, we first used available geographic data to 
identify the locations of benthic sites with or adjacent to complex 
bathymetry and shoreline sites with sand, rock and/or cobble 
compositions that also support kelp, as described in more detail in the 
draft Biological Report (NMFS, 2013a). Once we identified these sites, 
we aggregated sites located in close proximity through Geographic 
Information Systems methods described in NMFS (2013a), consistent with 
the regulatory guidance regarding designation of an inclusive area for 
habitats in close proximity (50 CFR 424.12(d)).
    The specific areas we identified are large and we relied on recent 
agency rulemaking to refine the designation and provide a critical 
habitat map that clearly delineates where the essential features are 
found within the specific areas. The agency recently amended its 
critical habitat regulations to state that instead of designating 
critical habitat using lines on a map, we will show critical habitat on 
a map, with additional information discussed in the preamble of the 
rulemaking and in agency records (50 CFR 424.12(c)), rather than 
requiring long textual description in the Code of Federal Regulations 
(CFR). In adopting this amendment to our regulations, we stated in 
response to comments:

    [I]n instances where there are areas within a bigger area that 
do not contain the physical and biological features necessary for 
the conservation of the species, the Services would have the option 
of drawing the map to reflect only those parts of the area that do 
contain those features (77 FR 25611, May 1, 2012).

    The maps we developed for the present designation conform to this 
new regulation. In addition, in agency records, and available on our 
Web site, we provide the GIS plot points used to create these maps, so 
interested persons may determine whether any place of interest is 
within critical habitat boundaries (http://www.nwr.noaa.gov).

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
``specific areas outside the geographical area occupied at the time 
[the species] is listed'' if these areas are essential for the 
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize 
that the agency ``shall designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' We conducted a review of the 
documented occurrences of each listed rockfish in the five 
biogeographic basins of Puget Sound (NMFS, 2013a). We found that each 
of the basins is currently occupied by listed rockfish and our 
biological review did not identify any unoccupied areas that are 
essential to conservation and thus have not identified any unoccupied 
areas as candidates for critical habitat designation (NMFS, 2013a). 
However, we will continue to investigate this issue and seek comment on 
this issue as part of this proposed rule.
    Section 3(5)(C) of the ESA provides that ``[e]xcept in those 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species.'' In this case we are proposing to 
designate all the specific areas that possess essential features that 
can be mapped (such as complex bathymetry in waters deeper than 30 
meters, and nearshore areas such as sand, rock and/or cobble 
compositions that also support kelp) and as described above, we are 
only designating those portions of the specific areas that actually 
contain the essential features. We acknowledge that some listed 
rockfish have been documented to occur outside of the mapped areas that 
we propose to designate as critical habitat (NMFS, 2013a) and that 
larval listed rockfish could occur throughout the specific areas. 
Therefore, although each specific area contains habitat proposed for 
designation, we conclude that the proposed designation does not 
constitute ``the entire geographical area which can be occupied'' by 
the listed rockfish species.

Identifying Military Lands Ineligible for Designation

    Section 4(a)(3) of the ESA precludes the Secretary from designating 
military lands as critical habitat if those lands are subject to an 
Integrated Natural Resource Management Plan (INRMP) under the Sikes Act 
that the Secretary certifies in writing benefits the listed species. We 
consulted with the DOD and determined that there are several 
installations with INRMPs which overlap with marine habitats occupied 
by listed rockfish: (1) Joint base Lewis-McCord: (2) Manchester Fuel 
Department, (3) Naval Air Station Whidbey Island, (4) Naval Station 
Everett, and (5) Naval Station Kitsap.
    We found that Naval Station Everett does not overlap with essential 
features for listed rockfish in the nearshore and thus the area covered 
by the INRMP is not proposed for critical habitat designation. We 
identified habitat meeting the statutory definition of critical habitat 
at all of the other installations and reviewed the INRMPs, as well as 
other information available, regarding the management of these military 
lands. Our preliminary review indicates that each of these INRMPs 
addresses listed rockfish habitat, and all contain measures that 
provide benefits to the listed rockfish DPSs. Examples of the types of 
benefits include actions that improve shoreline conditions, control 
erosion and water quality, prevention of and prompt response to 
chemical and oil spills, and monitoring of listed species and their 
habitats. As a result, we conclude that the areas identified with 
INRMPs are not eligible for critical habitat designation (see appendix 
c of NMFS, 2013c).

Summary of Areas Meeting the Definition for Proposed Critical Habitat 
Designation

    We have determined that approximately 643.7 sq mi (1,665.5 sq km) 
of nearshore habitat for juvenile canary rockfish and bocaccio, and 
610.1 sq mi (1,580.95 sq km) of deepwater habitat for yelloweye 
rockfish, canary rockfish, and bocaccio meet the definition of proposed 
critical habitat (Table 1).

[[Page 47646]]



    Table 1--Physical and Biological Features and Management Considerations for Yelloweye Rockfish, Canary Rockfish and Bocaccio in Areas Meeting the
                                                             Definition of Critical Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
              DPS basin                Nearshore sq    Deepwater sq           Physical or biological features                      Activities
                                         mi. (for     mi. (for adult
                                         juvenile      and juvenile
                                        canary and       yelloweye
                                      bocaccio only)     rockfish,
                                                       adult canary
                                                       rockfish, and
                                                           adult
                                                         bocaccio)
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Strait of Juan de Fuca.....           352.2          298.98  Deepwater sites <30      Nearshore juvenile      1, 2, 3, 6, 9, 10
                                                                       meters) that support     rearing sites with
                                                                       growth survival          sand, rock and/or
                                                                       reproduction and         cobbles to support
                                                                       feeding opportunities.   forage and refuge.
Whidbey Basin.......................           51.44           41.47                                                   1, 2, 3, 4, 6, 9, 10
Main Basin..........................          145.75          179.74                                                   1, 2, 3, 4, 6, 7, 9, 10
South Puget Sound...................           73.72           40.12                                                   1, 2, 3, 4, 6, 7, 9, 10
Hood Canal..........................              20           50.06                                                   1, 2, 3, 6, 7, 9, 10
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Management Considerations Codes: (1) Nearshore development and in-
water construction (e.g., beach armoring, pier construction, jetty or 
harbor construction, pile driving construction, residential and 
commercial construction); (2) dredging and disposal of dredged 
material; (3) pollution and runoff; (4) underwater construction and 
operation of alternative energy hydrokinetic projects (tidal or wave 
energy projects) and cable laying; (5) kelp harvest; (6) fisheries; (7) 
non-indigenous species introduction and management; (8) artificial 
habitats; (9) research; and (10) aquaculture. Commercial kelp harvest 
does not occur presently, but would probably be concentrated in the San 
Juan/Georgia Basin. Artificial habitats could be proposed to be placed 
in each of the basins. Non-indigenous species introduction and 
management could occur in each basin.

Application of ESA Section 4(b)(2)

    The foregoing discussion describes those areas that are eligible 
for designation as critical habitat--the specific areas that fall 
within the ESA section 3(5)(A) definition of critical habitat, not 
including lands owned or controlled by the DOD, or designated for its 
use, that are covered by an INRMP that the Secretary has determined in 
writing provides a benefit to the species. Specific areas eligible for 
designation are not automatically designated as critical habitat. As 
described above, Section 4(b)(2) of the ESA requires that the Secretary 
first consider the economic impact, impact on national security, and 
any other relevant impact. The Secretary has the discretion to exclude 
an area from designation if he determines the benefits of exclusion 
(that is, avoiding the impact that would result from designation), 
outweigh the benefits of designation based on the best available 
scientific and commercial information. The Secretary may not exclude an 
area from designation if exclusion will result in the extinction of the 
species. Because the authority to exclude is wholly discretionary, 
exclusion is not required for any areas.
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of 
the ESA defines critical habitat as ``specific areas,'' while section 
4(b)(2) of the ESA requires the agency to consider certain factors 
before designating any ``particular area.'' Depending on the biology of 
the species, the characteristics of its habitat, and the nature of the 
impacts of designation, ``specific'' areas might be different from, or 
the same as, ``particular'' areas. For this designation, we identified 
the ``specific'' areas as (1) The San Juan/Strait of Juan de Fuca 
Basin, (2) Main Basin, (3) Whidbey Basin, (4) South Puget Sound, and 
(5) Hood Canal. For our economic impact analysis we defined the 
``particular'' areas as equivalent to the ``specific'' areas. This 
approach allowed us to most effectively consider the conservation value 
of the different areas when balancing conservation benefits of 
designation against economic benefits of exclusion. However, to assess 
impacts of designation on national security and Indian lands, we 
instead used a delineation of ``particular'' areas based on ownership 
or control of the area. These ``particular'' areas consisted of marine 
areas that overlap with designated military areas and Indian lands. 
This approach allowed us to consider impacts and benefits associated 
with management by the military or land ownership and management by 
Indian tribes.

Identify and Determining the Impacts of Designation

    Section 4(b)(2) of the ESA provides that the Secretary shall 
consider ``the economic impact, impact on national security, and any 
other relevant impact of specifying any particular area as critical 
habitat.'' The primary impact of a critical habitat designation stems 
from the requirement under section 7(a)(2) of the ESA that Federal 
agencies ensure their actions are not likely to result in the 
destruction or adverse modification of critical habitat. Determining 
this impact is complicated by the fact that section 7(a)(2) contains 
the overlapping requirement that Federal agencies must ensure their 
actions are not likely to jeopardize the species' continued existence. 
The true impact of designation is the extent to which Federal agencies 
modify their actions to ensure their actions are not likely to destroy 
or adversely modify the critical habitat of the species, beyond any 
modifications they would make because of listing and the jeopardy 
requirement for the species. Additional impacts of designation include 
state and local protections that may be triggered as a result of the 
designation.
    In determining the impacts of designation, we assessed the 
incremental change in Federal agency actions as a result of critical 
habitat designation and the adverse modification prohibition, beyond 
the changes predicted to occur as a result of listing and the jeopardy 
provision. In August 2012 the USFWS and NOAA published a proposed rule 
to amend our joint regulations at 50 CFR 424.19 to

[[Page 47647]]

make clear that in considering impacts of designation as required by 
Section 4(b)(2) we would consider the incremental impacts (77 FR 51503, 
August 24, 2012). This approach is in contrast to our 2005 critical 
habitat designations for salmon and steelhead (70 FR 52630, September 
2, 2005) where we considered the ``coextensive'' impact of designation. 
The consideration of co-extensive impacts was in accordance with a 
Tenth Circuit Court decision (New Mexico Cattle Growers Association v. 
U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001)). More 
recently, several courts (including the 9th Circuit Court of Appeals) 
have approved an approach that considers the incremental impact of 
designation. The Federal Register notice (77 FR 5103, August 24, 2012) 
announcing the proposed policy on considering impacts of designation 
describes and discusses these court cases: Arizona Cattlegrowers' Ass'n 
v. Salazar, 606 F3.d 1160, 1172-74 (9th Cir. 2010), cert. denied, 131 
S. Ct. 1471, 179 L. Ed. 2d 300 (2011); Homebuilders Ass'n v. FWS, 616 
F3d 983, 991093j (9th Cir. 2010) cert. denied, 131 S. Ct. 1475, 179 L. 
Ed. 2d 301 (2011). The notice also discusses a Department of Interior 
Solicitor's memo (M-3706 The Secretary's Authority to Exclude Areas 
from Critical Habitat Designation Under 4(b)(2) of the Endangered 
Species Act (Oct. 3, 2008) (DOI 2008)). In more recent critical habitat 
designations, both NMFS and the USFWS have considered the incremental 
impact of critical habitat designation (for example, NMFS' designation 
of critical habitat for the Southern DPS of green sturgeon (74 FR 
52300, October 9, 2009) and the Southern DPS of Pacific eulachon (76 FR 
65324, October 20, 2011), and the U.S. Fish and Wildlife's designation 
of critical habitat for the Oregon chub (75 FR 11031, March 10, 2010)).
    Consistent with our proposed regulatory amendments (77 FR 51503, 
August 24, 2012), the more recent court cases, and more recent agency 
practice, we estimated the incremental impacts of designation, beyond 
the impacts that would result from the listing and jeopardy provision. 
In addition, because these proposed designations almost completely 
overlap our previous salmonid, killer whale and green sturgeon critical 
habitat designations in Puget Sound, and the essential features defined 
for those species in previous designations are similar to those for 
listed rockfish (NMFS, 2013a), we estimated only the incremental 
impacts of designation beyond the impacts already imposed by those 
prior designations.
    To determine the impact of designation, we examined what the state 
of the world would be with and without the designation of critical 
habitat for listed rockfish. The ``without critical habitat'' scenario 
represents the baseline for the analysis. It includes process 
requirements and habitat protections already afforded listed rockfish 
under their Federal listing or under other Federal, state, and local 
regulations. Such regulations include protections afforded listed 
rockfish habitat from other co-occurring ESA listings and critical 
habitat designations, such as those for Pacific salmon and steelhead 
(70 FR 52630, September 2, 2005), North American green sturgeon (74 FR 
52300, October 9, 2009), Southern Resident Killer Whales (71 FR 69054, 
November 29, 2006), and bull trout (75 FR 63898, October 18, 2010) (see 
the Final Economic Analysis for listed rockfish (NMFS, 2013a) for 
examples of protections for other species that would benefit listed 
rockfish). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for listed rockfish. The primary impacts of critical 
habitat designation we found were: (1) The economic costs associated 
with additional administrative effort of including a critical habitat 
analysis in section 7 consultations for these three DPSs, (2) impacts 
to national security, and (3) the possible harm to our working 
relationship with Indian tribes and landowners and entities with 
conservation plans.

Economic Impacts

    Our economic analysis sought to determine the impacts on land uses 
and other activities from the proposed designation of critical habitat, 
above and beyond--or incremental to--those ``baseline'' impacts due to 
existing or planned conservation efforts being undertaken due to other 
Federal, state, and local regulations or guidelines (NMFS, 2013b). 
Other Federal agencies, as well as state and local governments, may 
also seek to protect the natural resources under their jurisdiction. If 
compliance with the Clean Water Act or state environmental quality 
laws, for example, protects habitat for the species, such protective 
efforts are considered to be baseline protections and costs associated 
with these efforts are not quantified as impacts of critical habitat 
designation.
    When critical habitat is designated, section 7 requires Federal 
agencies to ensure that their actions will not result in the 
destruction or adverse modification of critical habitat, in addition to 
ensuring that the actions are not likely to jeopardize the continued 
existence of the species. The added administrative costs of considering 
critical habitat in section 7 consultations and the additional impacts 
of implementing project modifications to protect critical habitat are 
the direct result of the designation of critical habitat. These costs 
are not in the baseline, and are considered incremental impacts of the 
rulemaking.
    Incremental economic impacts may include the direct costs 
associated with additional effort for future consultations, reinitiated 
consultations, new consultations occurring specifically because of the 
designation, and additional project modifications that would not have 
been required to avoid jeopardizing the continued existence of the 
species. Additionally, incremental economic impacts may include 
indirect impacts resulting from reaction to the potential designation 
of critical habitat (e.g., developing habitat conservation plans in an 
effort to avoid designation of critical habitat), triggering of 
additional requirements under State or local laws intended to protect 
sensitive habitat, and uncertainty and perceptional effects on markets.
    To evaluate the potential administrative and project modification 
costs of designating critical habitat we examined our ESA section 7 
consultation record for rockfish for the years 2010 and 2011. As 
further explained in the supporting economic report (NMFS, 2013b), to 
quantify the economic impact of designation, we employed the following 
three steps:
    (1) Define the geographic study area for the analysis, and identify 
the units of analysis (the ``particular areas''). In this case, we 
defined the five biogeographic basins of the Puget Sound/Georgia Basin 
that encompass occupied marine areas as the particular areas.
    (2) Identify potentially affected economic activities and determine 
how management may increase due to the designation of listed rockfish 
critical habitat, both in terms of project administration and potential 
project modification.
    (3) Estimate the economic impacts associated with both potential 
administrative costs and costs from project modifications. In this 
proposed critical habitat designation we did not identify potential 
systematic project modification costs (NMFS, 2013b).
    We estimated that the additional effort to address adverse 
modification of critical habitat in a section 7

[[Page 47648]]

consultation is equivalent to one third of the effort already devoted 
to the consultation to consider the species. This is based on estimates 
of additional U.S. Fish and Wildlife Service effort for bull trout 
consultations in the Northwest, and which was considered relevant to 
the current critical habitat designation (NMFS, 2013b). That is, for 
every three hours spent considering a jeopardy analysis for rockfish, 
an additional hour would be needed to consider rockfish critical 
habitat. Based on that assumption, we estimated a total annualized 
incremental administrative cost of approximately $123,000 (discounted 
at 7 percent) for designating the five specific areas as listed 
rockfish critical habitat. The greatest costs are associated with 
nearshore work, transportation, water quality, and utilities (see NMFS, 
2013b for more details). The estimated annual incremental costs across 
the five biogeographic basins range from $32,100 in the San Juan/Strait 
of Juan de Fuca Basin to $10,200 in Hood Canal (NMFS, 2013b).
    For the second category of impacts, we consider it unlikely there 
will be incremental costs for project modifications specific to 
rockfish critical habitat for most individual project types. This is 
because of the existing high level of protection afforded by previous 
salmonid, green sturgeon and killer whale critical habitat designations 
that have generally similar biological features, and the protections 
already afforded listed rockfish through the separate jeopardy analysis 
(see NMFS, 2013b for more details). The results of our economic 
analysis are discussed in greater detail in a separate report that is 
available for public review and comment (NMFS, 2013b).

Impacts to National Security

    During preparations for the proposed designation we sent a letter 
to the DOD seeking information to better understand their activities 
taking place in areas owned or controlled by them and the potential 
impact of designating critical habitat in these areas. We received two 
letters from the DOD in response to our initial inquiry. A single 
letter from the U.S. Air Force and U.S. Army stated that these services 
did not foresee any adverse impacts to their national security or 
training missions from proposed rockfish critical habitat designations. 
The second letter, from the U.S. Navy, identified 14 Restricted Areas, 
Operating Areas and Danger Zones within the range of listed rockfish in 
each of the five basins of the Puget Sound. The Navy confirmed that it 
uses all of these areas, and assessed the potential for critical 
habitat designation to adversely affect operations, testing, training, 
and other essential military activities. Of the 14 areas identified by 
the Navy, only one area is already designated as critical habitat for 
other ESA-listed species (southern resident killer whales). The Navy 
letter identified several aspects of potential impacts to national 
security from critical habitat designation and requested that areas 
owned or controlled by the Navy be excluded from designation. We had 
several conversations with the Navy subsequent to their letter to 
further understand their uses of the areas, concerns identified in 
their response letter, and any related habitat protections resulting 
from Navy policies and initiatives (NMFS, 2013c).

Other Relevant Impacts--Impacts to Tribal Sovereignty and Self-
Governance

    During preparations for the proposed designation we sent a letter 
to Puget Sound Indian tribes, notifying them of our intent to propose 
critical habitat for listed rockfish. We identified several areas under 
consideration for critical habitat designation that overlap with Indian 
lands in each of the specific areas (Figures 2 and 3). The federally 
recognized tribes with lands potentially affected are the Lummi, 
Swinomish, Tulalip, Puyallup, Squaxin Island, Skokomish, Port Gamble, 
and Port Madison. In addition to the economic impacts described above, 
designating these tribes' Indian lands would have an impact on Federal 
policies promoting tribal sovereignty and self-governance. The 
longstanding and distinctive relationship between the Federal and 
tribal governments is defined by treaties, statutes, executive orders, 
secretarial orders, judicial decisions, and agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the U.S. Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the U.S. toward Indian tribes 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. Pursuant to these authorities, lands have been 
retained by Indian tribes or have been set aside for tribal use. These 
lands are managed by Indian tribes in accordance with tribal goals and 
objectives within the framework of applicable treaties and laws.
    Tribal governments have a unique status with respect to salmon, 
steelhead, and other marine resources in the Pacific Northwest, where 
they are co-managers of these resources throughout the region. The co-
manager relationship crosses tribal, federal, and state boundaries, and 
addresses all aspects of the species' life cycle. The positive working 
relationship between the federal government and tribes can be seen in 
federal-tribal participation within the U.S. v. Oregon and U.S. v. 
Washington framework and the participation of tribes on interstate 
(Pacific Fisheries Management Council) and international (Pacific 
Salmon Commission) management bodies. Additionally, there are 
innumerable local and regional forums and planning efforts in which the 
tribes are engaged with the federal government, including ESA section 6 
species recovery grants to the tribes. While many of these activities 
currently concentrate on recovery of listed salmon and steelhead in 
Puget Sound, they nonetheless result in several benefits to habitats 
used by listed rockfish through the conservation of habitats and prey 
sources of rockfish (NMFS, 2013c).

Other Relevant Impacts--Impacts to Landowners/Entities With Contractual 
Commitments to Conservation

    Section 10(a)(1)(B) of the ESA authorizes us to issue to non-
Federal entities a permit for the incidental take of endangered and 
threatened species. This permit allows a non-Federal landowner/entity 
to proceed with an activity that is legal in all other respects, but 
that results in the incidental taking of a listed species (i.e., take 
that is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity). The ESA specifies that an application for 
an incidental take permit (ITP) must be accompanied by a conservation 
plan, and specifies the content of such a plan. The purpose of such 
conservation plans is to describe and ensure that the effects of the 
permitted action on covered species are adequately minimized and 
mitigated, and that the action does not appreciably reduce the 
likelihood of the survival and recovery of the species. Conservation 
plans that cover habitat actions are common for terrestrial and 
freshwater species and can benefit species threatened by land use 
activities. Conservation plans that cover fisheries are less common and 
can benefit species and habitats threatened by fishing activities.
    Conservation agreements with non-Federal landowners and other 
entities enhance species conservation by extending species' protections 
beyond those available through section 7 consultations. We have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a

[[Page 47649]]

view that we can achieve greater species' conservation on non-Federal 
land through such partnerships than we can through coercive methods (61 
FR 63854, December 2, 1996). In past critical habitat designations we 
have found there is a benefit to excluding some areas covered by 
conservation agreements when there was affirmative evidence that the 
conservation partner considered exclusion beneficial to our 
relationship and beneficial to implementation of the conservation 
agreement (e.g., for Pacific salmon 70 FR 52630, September 2, 2005). We 
considered the benefit of exclusion to be a conservation benefit to the 
affected species because of the enhanced implementation of the 
agreement and the incentive for others to enter into conservation 
agreements with us to further protect the species.
    In the case of the listed rockfish species, there are two 
conservation agreements that partially or wholly overlap with proposed 
critical habitat. The first is with the Washington Department of 
Natural Resources (WDNR) and covers geoduck harvest on lands managed by 
the department. The second is with the Washington Department of Fish 
and Wildlife (WDFW) and covers fisheries and research in Puget Sound 
that incidentally takes the listed rockfish and other listed species 
and may also affect rockfish habitat.

Determine Whether To Exercise the Discretion To Exclude

    Benefits of critical habitat designation are those conservation 
benefits to the species, while benefits of exclusion result from 
avoiding the impacts of designation identified above. For the present 
designation, we decided to balance benefits of designation against 
benefits of exclusion because some impacts of designation implicate 
competing Federal values, such as national security and tribal 
sovereignty and self-governance (see NMFS, 2013c).

Benefits of Designation

    The principal benefit of designating critical habitat is that ESA 
section 7 requires every Federal agency to ensure that any action it 
authorizes funds or carries out is not likely to result in the 
destruction or adverse modification of designated critical habitat. 
This complements the Section 7 provision that federal agencies ensure 
their actions are not likely to jeopardize the continued existence of a 
listed species. The requirement that agencies avoid adversely modifying 
critical habitat is in addition to the requirement that they avoid 
jeopardy to the species, thus the benefit of designating critical 
habitat is ``incremental'' to the benefit that comes with listing. 
Another possible benefit is that the designation of critical habitat 
can serve to educate the public regarding the potential conservation 
value of an area. Systematic analysis and delineation of important 
rockfish habitat has not been previously conducted in the Puget Sound, 
so designating critical habitat may focus and contribute to 
conservation efforts by clearly delineating areas that are important to 
species conservation.
    Ideally the consideration and balancing of benefits would involve 
first translating all benefits into a common metric. Executive branch 
guidance from the Office of Management and Budget (OMB) suggests that 
benefits should first be monetized--converted into dollars. Benefits 
that cannot be monetized should be quantified (for example, numbers of 
fish saved). Where benefits can neither be monetized nor quantified, 
agencies are to describe the expected benefits (OMB, 2003).
    It may be possible to monetize benefits of critical habitat 
designation for a threatened or endangered species in terms of 
willingness-to-pay (OMB, 2003). However, we are not aware of any 
available data at the scale of our designation (the five basins of 
Puget Sound Sound) that would support such an analysis for listed 
rockfish. In addition, section 4(b)(2) requires analysis of impacts 
other than economic impacts that are equally difficult to monetize, 
such as benefits to national security of excluding areas from critical 
habitat. In the case of rockfish designations, impacts to Northwest 
Indian tribes or to our program to promote voluntary conservation 
agreements are ``other relevant'' impacts that also may be difficult to 
monetize.
    Because we could not monetize or quantify the conservation benefit 
of designating the particular areas, we qualitatively describe their 
conservation value to the listed species. The rockfish critical habitat 
we have identified consists of only five areas. Each area is a 
biogeographic basin that represents a unique ecological setting with 
unique habitats and biological communities. This diversity of habitats 
is important to maintaining long-term viability of the DPSs. Four of 
the five areas are also relatively spatially isolated in terms of water 
circulation and exchange of some biota. Although we lack detailed 
genetic information to confirm that this isolation has led to 
reproductive isolation among basins, it is likely that there is some 
degree of reproductive isolation and that the unique habitat conditions 
in each basin have therefore resulted in important adaptations. The 
diversity this creates in the population, like the diversity in 
habitats, is important to long-term viability. These factors suggest 
that all of the populations and basins are important in maintaining the 
diversity and spatial structure of each DPS. Though we have not yet 
developed a recovery plan for these DPSs, it is likely that all five 
areas are important to recovery of the listed DPSs and therefore have 
high conservation value (NMFS, 2013a).

Balancing Economic Impacts

    In our 2005 final and 2013 proposed critical habitat designations 
for salmon and steelhead, we balanced conservation benefits of 
designation against economic benefits of exclusion and excluded 
particular areas for many of the affected species. Our approach was 
informed by both biology and policy (78 FR 2725, January 14, 2013; 70 
FR 52630, September 2, 2005). In deciding to balance benefits, we noted 
that salmon and steelhead are widely distributed and their range 
includes areas that have both high and low conservation value; thus, it 
may be possible to construct different scenarios for achieving 
conservation. We also noted Administration policy regarding 
regulations, as expressed in Executive Order 12866, which directs 
agencies to select regulatory approaches that ``maximize net 
benefits,'' and to ``design regulations in the most cost-effective 
manner to achieve the regulatory objective.''
    For the salmon and steelhead designations, we used a cost 
effectiveness approach in which we identified areas to consider for 
economic exclusion by balancing relative conservation value against 
relative economic impact. Where the relative conservation value of an 
area was lower than the relative economic impact, we considered the 
area eligible for exclusion. Relying on policies that promote 
conservation of threatened and endangered species in general and salmon 
in particular, we did not consider areas for exclusion if exclusion 
would significantly impede conservation. We concluded that exclusion of 
high conservation value areas would significantly impede conservation 
and therefore we did not consider any high conservation value areas for 
exclusion for salmon and steelhead.
    In considering economic exclusions for listed rockfish, we 
considered the following factors: (1) Section 2 of the ESA provides 
that a purpose of the act is ``to provide a means whereby the 
ecosystems upon which endangered

[[Page 47650]]

species and threatened species depend may be conserved.''; (2) in 
listing the three listed rockfish DPSs under the ESA, we concluded that 
degradation of rocky habitat, loss of eelgrass and kelp, introduction 
of non-native habitat-modifying species, and degraded water quality 
were all threats to the species. We also noted that rocky habitats are 
rare in Puget Sound and have been affected by or are threatened by 
derelict fishing gear, development, and construction and dredging 
activities; (3) as described above, there are only five habitat areas 
and all are of high conservation value; and (4) the economic impacts of 
designating any particular area are small (the largest impact is 
$32,100 in the San Juan/Strait of Juan de Fuca Basin), as is the 
economic impact of designating the entire area ($123,000).
    For these reasons, we conclude that the economic benefit of 
excluding any of these particular areas does not outweigh the 
conservation benefit of designation. Therefore, none of the areas were 
eligible for exclusion based on economic impacts.

Balancing Impacts to Tribal Sovereignty and Self-Determination

    We balanced the conservation benefits to rockfish of designation 
against the benefits of exclusion for Indian lands in light of the 
unique Federal tribal relationship, the unique status of Indian lands, 
and the Federal policies promoting tribal sovereignty and self-
determination, among others. Indian lands potentially affected by a 
critical habitat designation occur within the range of the listed 
rockfish and are specific to nearshore juvenile rearing sites for 
canary rockfish and bocaccio. We are not proposing any nearshore areas 
of Puget Sound as critical habitat for yelloweye rockfish (NMFS, 
2013a). There are eight tribes with Indian lands that overlap the 
proposed critical habitat in all five basins. Approximately 55.1 lineal 
miles of shoreline within reservation boundaries overlap with the 
nearshore component of proposed critical habitat.
    The principal benefit of designating critical habitat is section 
7's requirement that Federal agencies ensure their actions are not 
likely to result in adverse modification of that habitat. To understand 
the benefit of designating critical habitat on Indian lands, we 
considered the number of miles of shoreline affected, and the types of 
activities occurring there that would be likely to undergo a section 7 
consultation along this relatively small amount of shoreline area. The 
types of activities occurring in these areas that would be likely to 
undergo a section 7 consultation include activities associated with: 
Nearshore development, utilities, dredging, water quality projects, 
transportation, and other project types.
    The benefit of excluding these areas is that Federal agencies 
acting on behalf of, funding, or issuing permits to the tribes would 
not need to reinitiate consultation on ongoing activities for which 
consultation has been completed. Reinitiation of consultation would 
likely require some commitment of resources on the part of the affected 
tribe. Moreover, in a reinitiated consultation, or in any future 
consultation, it is possible that tribes may be required to modify some 
of their activities to ensure the activities would not be likely to 
adversely modify the critical habitat (though given the small 
proportion of shoreline length with essential features, and tribal 
shoreline management this is unlikely). The benefits of excluding 
Indian lands from designation include: (1) The furtherance of 
established national policies, our Federal trust obligations, and our 
deference to the tribes in management of natural resources on their 
lands; (2) the maintenance of effective long-term working relationships 
to promote the conservation of rockfish; (3) the allowance for 
continued meaningful collaboration and cooperation in scientific work 
to learn more about the conservation needs of the species; and (4) 
continued respect for tribal sovereignty over management of natural 
resources on Indian lands through established tribal natural resource 
programs. We also considered the degree to which the tribes believe 
designation will affect their participation in regional management 
forums and their ability to manage their lands.
    Based on our consideration, and given the following factors, we 
concluded that the benefits to conservation of listed rockfish from 
full tribal participation in Puget Sound recovery efforts mitigates the 
potential loss of conservation benefits that could result from 
designation of tribal lands. With this mitigating conservation benefit 
in mind, we further concluded that the benefits to tribal governments, 
with whom the Federal government has a unique trust relationship, 
particularly with regard to land held by the Federal government in 
trust for the tribes, outweigh the conservation benefits of designation 
for listed rockfish (NMFS, 2013c).
    The Indian lands specifically proposed for exclusion are those 
defined in the Secretarial Order 3206, including: (1) Lands held in 
trust by the United States for the benefit of any Indian tribe; (2) 
land held in trust by the United States for any Indian tribe or 
individual subject to restrictions by the United States against 
alienation; (3) fee lands, either within or outside the reservation 
boundaries, owned by the tribal government; and, (4) fee lands within 
the reservation boundaries owned by individual Indians. Our 
consideration of whether these exclusions would result in extinction of 
listed rockfish is described below.

Balancing Impacts to Landowners/Entities With Contractual Commitments 
to Conservation

    Our consideration of the WDNR and the WDFW conservation plans is 
described in detail in NMFS (2013c). We balanced the conservation 
benefits to rockfish of proposed critical habitat against the benefits 
of exclusion (referring to the impacts of designation section above) of 
the areas covered in each conservation plan. Each plan covers several 
activities that may take listed species and harm habitats we propose as 
listed rockfish critical habitat in Puget Sound. Congress added section 
10 to the ESA to encourage ``creative partnerships between the private 
sector and local, state, and Federal agencies for the protection of 
endangered species and habitat conservation'' (H.R. Rep. No. 835, 97th 
Congress, 2nd Session 31; Reprinted in 1982 U.S. Code Congressional and 
Administrative News 2807, 2831). If excluding areas from critical 
habitat designation promotes such conservation partnerships, such 
exclusions may have conservation benefits that offset the loss of 
conservation benefit that would have resulted from designation.
    The covered areas of the WDNR conservation plan overlap with 
approximately 30,000 acres of nearshore proposed critical habitat for 
canary rockfish and bocaccio. The covered areas of the WDFW 
conservation plan overlap with the entire proposed critical habitat for 
yelloweye rockfish, canary rockfish, and bocaccio. The WDNR covered 
activities are geoduck research and harvest management. The WDFW 
covered activities are the management of recreational bottom fish 
fishing and commercial shrimp trawls. The types of activities occurring 
in these areas that would be likely to undergo a section 7 consultation 
include nearshore development, dredging, aquaculture operations, 
fisheries management, alternative energy projects and cable laying, and 
others (NMFS, 2013a).
    In general, the benefits of designating the covered areas of each 
conservation plan is, that once critical habitat is

[[Page 47651]]

designated, section 7(a)(2) of the ESA provides that Federal agencies 
must ensure any actions they authorize, fund, or carry out are not 
likely to result in the destruction or adverse modification of 
designated critical habitat. An additional benefit of inclusion is that 
a systematic analysis and delineation of important rockfish habitat has 
not been previously conducted in the Puget Sound. Thus, for non-Federal 
activities occurring in the covered areas, designation may raise public 
awareness of habitats important to rockfish and encourage additional 
conservation measures and voluntary conservation agreements within the 
section 10 program. The benefits of designating areas covered by these 
two conservation plans may be less than what they would be on areas not 
covered by conservation plans because of the fact that the permit 
holder has put conservation measures in place through provisions of the 
plan. These measures provide protection when actions are allowed that 
could affect critical habitat (geoduck harvest and management by WDNR, 
and fisheries by WDFW). However, these conservation plans are unlike 
other land-based conservation plans in the Northwest (such as forestry 
conservation plans) because the WDNR and WDFW plans cover a small 
subset of potential actions that could be affected by future Federal 
actions in Puget Sound (i.e., Federal permits for nearshore 
development, fisheries that cause new derelict fishing nets, tidal 
energy or cable-laying, and others).
    The benefits of excluding these covered areas from designation 
include the potential furtherance of our ongoing relationship with 
these entities; in particular, the potential that the exclusion of 
these areas may provide an incentive for other entities to seek 
conservation plans, and the general promotion of the section 10 
conservation program. Conservation agreements on non-federally 
controlled areas of Puget Sound provide important benefits to listed 
species. Section 7 applies to only Federal agency actions. Its 
requirements protect listed fishes only when a Federal permit or 
funding is involved; thus, its reach is limited. Neither WDNR nor WDFW 
identified any potential impacts to our relationship or implementation 
of each conservation plan.
    For each rockfish DPS we considered the areas each conservation 
plan covered and the types of Federal activities in those areas that 
would likely undergo section 7 consultation. We also considered the 
degree to which the WDNR and WDFW believe the designation would affect 
the ongoing relationship that is essential to the continued successful 
implementation of the conservation plan and the extent to which 
exclusion provides an incentive to other entities.
    Based on our consideration, and given the following factors, we 
concluded that the benefits of excluding the areas covered by each 
conservation plan do not outweigh the benefits of designation. We 
considered the following factors in reaching this conclusion: (1) The 
WDNR and WDFW did not identify any impacts to our ongoing relationship; 
(2) the WDNR and WDFW did not identify any impacts to their 
implementation of the existing conservation plans; and (3) the WDNR and 
WDFW conservation plans only cover a subset of activities that could 
affect rockfish critical habitat conducted by other entities such as 
private landowners, municipalities, and Federal agencies in the covered 
areas. Thus, designation would not impact our relationship with WDNR 
and WDFW nor harm the implementation of their conservation plans. In 
general, designation would benefit rockfish conservation by enabling 
section 7 consultations for activities not covered by each conservation 
plan to ensure adverse modification is avoided by Federal activities.

Balancing Impacts to National Security

    Based on information provided by the three branches of the military 
on impacts to national security of potential critical habitat 
designations described above, we consulted with the DOD to better 
understand the potential impact of designating critical habitat at 
these sites. The DOD confirmed that all of the Areas are used by the 
Navy, and confirmed the potential for critical habitat designation to 
impact national security by adversely affect their ability to conduct 
operations, testing, training, and other essential military activities. 
The Navy letter identified several aspects of potential impacts from 
critical habitat designation that include the possible prevention, 
restriction, or delay of training or testing exercises and delayed 
response time for ship deployments. We had several conversations with 
the Navy subsequent to their letter to further understand their uses of 
the Areas, concerns identified in their response letter, and any 
related habitat protections derived by Navy policies and initiatives. 
We also had further discussions with the Navy regarding the extent of 
the proposed designation associated with these sites. The Navy agreed 
to refine the delineation of offshore areas in Puget Sound where the 
Navy has established security zones. Similar to the salmonid critical 
habitat designation (NMFS, 2005) the Navy agreed that the military zone 
could be delineated in terms of the mean lower low tide without raising 
national security concerns at all but one site at Dabob Bay. Because 
many of the activities affecting rockfish in the nearshore zone are 
land-based, this refinement allowed us to retain most of the 
conservation benefit of designating nearshore areas as critical habitat 
while still retaining the benefit to national security of excluding 
offshore military areas (NMFS, 2013c).
    We balanced the conservation benefits of designation to rockfish 
against the benefits of exclusion for Naval Areas as ultimately defined 
by the Navy in the Puget Sound/Georgia Basin. The Navy requested that 
14 areas be excluded from critical habitat designation, including four 
in the San Juan/Strait of Juan de Fuca Basin, three in Hood Canal, two 
in the Whidbey Basin, four in the Main Basin, and one in South Puget 
Sound based on the impacts to national security. The factors we 
consider relevant to assessing the impact to national security and the 
benefits of exclusion include: (1) The percent of the military area 
that would be designated; and (2) the importance of the area activity 
to national security and likelihood an activity would need to be 
changed to avoid adverse modification.
    The factors we consider relevant to assessing the benefits of 
designation to rockfish conservation include: (1) The percent of the 
nearshore and deepwater critical habitat that would be designated in 
that basin; (2) uniqueness and conservation role of the habitat in 
particular DOD area; (3) the likelihood that Navy activities would 
destroy or adversely modify critical habitat; and (4) the likelihood 
habitat would be adversely modified by other Federal or non-Federal 
activities, considering Navy protections (this factor considers the 
type and frequency of Navy actions that occur in each site and their 
potential effect on rockfish habitat features, which informs the 
benefit to conservation that would occur by a section 7 consultation 
that considers rockfish critical habitat).
    All but the quantitative factors were given a qualitative rating of 
high, medium, or low (NMFS, 2013c). Based on our analysis, we recommend 
excluding 13 of the 14 areas requested by the Navy. We do not propose 
to exclude Operating Area R-6713 (Navy 3). This area is a polygon off 
the western side of Naval Air Station Whidbey Island (appearing on NOAA 
Chart 18400) which is used in conjunction with the restricted area 
under 33 CFR

[[Page 47652]]

334.1180 for surface vessel training activities. The total proposed 
excluded areas total approximately 33.1 nearshore sq mi and 35.6 
deepwater sq mi of potential critical habitat.
    Critical habitat is proposed in a narrow nearshore zone (from the 
extreme high tide datum down to mean lower low water (MLLW)) within 
Navy security zone areas that are not subject to an approved INRMP or 
associated with Department of Defense easements or rights-of-way with 
the exception of NAS Whidbey Island, Crescent Harbor and a small area 
of the Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing 
Area. The following Department of Defense areas are proposed for 
exclusion:

    (1) Small Arms Danger Zone off Western Side of Naval Air Station 
Whidbey Island and additional Accident Potential Zone restricted 
areas--In the waters located in the San Juan De Fuca Strait 
beginning on the beach of NAS Whidbey Island, Oak Harbor, Washington 
at latitude 48[deg]19'20.00'' N, longitude 122[deg]42'6.92'' W; 
thence southerly, along the mean high water mark, to latitude 
48[deg]17'41'' N, longitude 122[deg]43'35'' W; thence southwesterly 
to latitude 48[deg]17'23'' N, longitude 122[deg]45'14'' W; thence 
northerly to latitude 48[deg]20'00'' N, longitude 122[deg]44'00'' W; 
thence easterly, landward to the point of origin. Accident Potential 
Zone Area No. 1 is bounded by a line commencing at latitude 
48[deg]20'57'' N, longitude 122[deg]40'39'' W; thence to latitude 
48[deg]20'40'' N, longitude 122[deg]42'59'' W; thence to latitude 
48[deg]21'19'' N, longitude 122[deg]43'02'' W; thence to latitude 
48[deg]21'13'' N, longitude 122[deg]40'26'' W; and thence along the 
shore line to the point of beginning. Accident Potential Zone Area 
No. 2 is bounded by a line commencing at latitude 48[deg]21'53'' N, 
longitude 122[deg]40'00'' W; thence to latitude 48[deg]23'12'' N, 
longitude 122[deg]41'17'' W; thence to latitude 48[deg]23'29'' N, 
longitude 122[deg]40'22'' W; thence to latitude 48[deg]22'21'' N, 
longitude 122[deg]39'50'' W; and thence along the shore line to the 
point of beginning.
    (2) Strait of Juan de Fuca Naval Air-to-Surface Weapon Range 
Restricted Area--A circular area immediately west of Smith Island 
with a radius of 1.25 nautical mi having its center at latitude 
48[deg]19'11'' N and longitude 122[deg]54'12'' W.
    (3) Hood Canal and Dabob Bay Naval Non-Explosive Torpedo Testing 
Area--All waters of Hood Canal between latitude 47[deg]46'00'' N and 
latitude 47[deg]42'00'' W, exclusive of navigation lanes one-fourth 
nautical mile wide along the west shore and along the east shore 
south from the town of Bangor (latitude 47[deg]43'28'' N). All 
waters of Dabob Bay beginning at latitude 47[deg]39'27'' N, 
longitude 122[deg]52'22'' W; thence northeasterly to latitude 
47[deg]40'19'' N, longitude 122[deg]50'10'' W; thence northeasterly 
to a point on the mean high water line at Takutsko Pt.; thence 
northerly along the mean high water line to latitude 47[deg]48'00'' 
N; thence west on latitude 47[deg]48'00'' N to the mean high water 
line on the Bolton Peninsula; thence southwesterly along the mean 
high water line of the Bolton Peninsula to a point on longitude 
122[deg]51'06'' N; thence south on longitude 122[deg]51'06'' W to 
the mean high water line at Whitney Pt.; thence along the mean water 
line to a point on longitude 122[deg]51'15'' W; thence southwesterly 
to the point of beginning. The nearshore from Tsuktsko Pt. 
47[deg]41'30.0'' sec N latitude, 122[deg]49'48'' W longitude to the 
north at 47[deg]50'0.0'' sec N latitude, 122[deg]47'30'' W 
longitude.
    (4) Admiralty Inlet Naval Restricted Area -- This area begins at 
Point Wilson Light thence southwesterly along the coast line to 
latitude 48[deg]07' N; thence northwesterly to a point at latitude 
48[deg]15'00'' N longitude 123[deg]00'00'' W; thence due east to 
Whidbey Island; thence southerly along the coast line to latitude 
48[deg]12'30'' N; thence southerly to the point of beginning.
    (5) Port Gardner, Everett Naval Base, Naval Restricted Area--The 
waters of Port Gardner and East Waterway surrounding Naval Station 
Everett begin at a point near the northwest corner of Naval Station 
Everett at latitude 47[deg]59'40'' N, longitude 122[deg]13'23.5'' W 
and thence to latitude 47[deg]59'40'' N, longitude 122[deg]13'30'' 
W; thence to latitude 47[deg]59'20'' N, longitude 122[deg]13'33'' W; 
thence to latitude 47[deg]59'13'' N, longitude 122[deg]13'38'' W; 
thence to latitude 47[deg]59'05.5'' N, longitude 122[deg]13'48.5'' 
W; thence to latitude 47[deg]58'51'' N, longitude 122[deg]14'04'' W; 
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'53'' W; 
thence to latitude 47[deg]58'45.5'' N, longitude 122[deg]13'44'' W; 
thence to latitude 47[deg]58'48'' N, longitude 122[deg]13'40'' W; 
thence to latitude 47[deg]58'59'' N, longitude 122[deg]13'30'' W; 
thence to latitude 47[deg]59'14'' N, longitude 122[deg]13'18'' W 
(Point 11); thence to latitude 47[deg]59'13'' N, longitude 
122[deg]13'12'' W; thence to latitude 47[deg]59'20'' N, longitude 
122[deg]13'08'' W; thence to latitude 47[deg]59'20'' N, longitude 
122[deg]13'02.5'' W, a point upon the Naval Station's shore in the 
northeast corner of East Waterway.
    (6) Hood Canal, Bangor Naval Restricted Areas--The Naval 
restricted area described in 33 CFR 334.1220 has two areas. Area No. 
1 is bounded by a line commencing on the east shore of Hood Canal in 
relation to the property boundary and area No. 2 compasses waters of 
Hood Canal with a 1,000 yard radius diameter from a central point. 
Area No. 1 is bounded by a line commencing on the east shore of Hood 
Canal at latitude 47[deg]46'18'' N longitude 122[deg]42'18'' W; 
thence to latitude 47[deg]46'32'' N, longitude 122[deg]42'20'' W; 
thence to latitude 47[deg]46'38'' N, longitude 122[deg]42'52'' W; 
thence to latitude 47[deg]44'15'' N, longitude 122[deg]44'50'' W; 
thence to latitude 47[deg]43'53'' N, longitude 122[deg]44'58'' W; 
thence to latitude 47[deg]43'17'' N, longitude 122[deg]44'49'' W. 
Area 2 is waters of Hood Canal within a circle of 1,000 yards 
diameter centered on a point located at latitude 47[deg]46'26'' N, 
longitude 122[deg]42'49'' W.
    (7) Port Orchard Naval Restricted Area--The Naval restricted 
area described in 33 CFR 334.1230 is shoreward of a line beginning 
at a point on the west shoreline of Port Orchard bearing 90[deg] 
from stack (at latitude 47[deg]42'01'' N, longitude 122[deg]36'54'' 
W); thence 90[deg], approximately 190 yards, to a point 350 yards 
from stack; thence 165[deg], 6,000 yards, to a point bearing 
179[deg], 1,280 yards, from Battle Point Light; thence westerly to 
the shoreline at latitude 47[deg]39'08'' N (approximate location of 
the Brownsville Pier).
    (8) Sinclair Inlet Naval Restricted Areas--The Naval restricted 
area described in 33 CFR 334.1240 to include: Area No. 1--All the 
waters of Sinclair Inlet westerly of a line drawn from the Bremerton 
Ferry Landing at latitude 47[deg]33'48'' N, longitude 
122[deg]37'23'' W on the north shore of Sinclair Inlet and latitude 
47[deg]32'52'' N, longitude 122[deg]36'58'' W on the south shore of 
Sinclair Inlet; and Area No. 2--That area of Sinclair Inlet to the 
north and west of an area bounded by a line commencing at latitude 
47[deg]33'43'' N, longitude 122[deg]37'31'' W thence south to 
latitude 47[deg]33'39'' N, longitude 122[deg]37'27'' W thence 
southwest to latitude 47[deg]33'23'' N, longitude 122[deg]37'45'' W 
thence southwest to latitude 47[deg]33'19'' N, longitude 
122[deg]38'12'' W thence southwest to latitude 47[deg]33'10'' N, 
longitude 122[deg]38'19'' W thence southwest to latitude 
47[deg]33'07'' N, longitude 122[deg]38'29'' W thence west to 
latitude 47[deg]33'07'' N, longitude 122[deg]38'58'' W thence 
southwest to latitude 47[deg]33'04'' N, longitude 122[deg]39'07'' W 
thence west to the north shore of Sinclair Inlet at latitude 
47[deg]33'04.11'' N, longitude 122[deg]39'41.92'' W.
    (9) Dabob Bay, Whitney Point Naval Restricted Area--The Naval 
restricted area described in 33 CFR 334.1260 beginning at the high 
water line along the westerly shore of Dabob Bay at the Naval 
Control Building located at latitude 47[deg]45'36'' N and longitude 
122[deg]51'00'' W. The western shoreline boundary is 100 yards north 
and 100 yards south from that point. From the north and south 
points, go eastward 2,000 yards into Dabob Bay. The eastern boundary 
is a virtual vertical line between the two points (200 yards in 
length).
    (10) Carr Inlet, Naval Restricted Area--The Naval restricted 
area described in 33 CFR 334.1250 to include: The area in the Waters 
of Carr Inlet bounded on the southeast by a line running from Gibson 
Point on Fox Island to Hyde Point on McNeil Island, on the northwest 
by a line running from Green Point (at latitude 47[deg]16'54'' N, 
longitude 122[deg]41'33'' W) to Penrose Point; plus that portion of 
Pitt Passage extending from Carr Inlet to Pitt Island, and that 
portion of Hale Passage extending from Carr Inlet southeasterly to a 
line drawn perpendicular to the channel 500 yards northwesterly of 
the Fox Island Bridge.
    (11) Port Townsend, Indian Island, Walan Point Naval Restricted 
Area--The Naval restricted area described in 33 CFR 334.1270 to 
include: The waters of Port Townsend Bay bounded by a line 
commencing on the north shore of Walan Point at latitude 
48[deg]04'42'' N, longitude 122[deg]44'30'' W; thence to latitude 
48[deg]04'50'' N, longitude 122[deg]44'38'' W; thence to latitude 
48[deg]04'52'' N, longitude 122[deg]44'57'' West; thence to latitude 
48[deg]04'44'' N, longitude 122[deg]45'12'' W; thence to latitude 
48[deg]04'26'' N, longitude 122[deg]45'21'' W; thence to latitude 
48[deg]04'10'' N, longitude 122[deg]45'15'' W; thence to latitude 
48[deg]04'07'' N, longitude 122[deg]44'49'' W; thence to a point on 
the Walan Point shoreline at latitude 48[deg]04'16'' N, longitude 
122[deg]44'37'' W.
    (12) NAS Whidbey Island, Crescent Harbor--The Navy did not 
provide a textual description of this Restricted Area.
    (13) Puget Sound, Manchester Fuel Depot, Naval Restricted 
Areas--The waters of Puget

[[Page 47653]]

Sound surrounding the Manchester Fuel Depot bounded by a line 
commencing along the northern shoreline of the Manchester Fuel Depot 
at latitude 47[deg]33'55'' N, longitude 122[deg]31'55'' W; thence to 
latitude 47[deg]33'37'' North, longitude 122[deg]31'50'' W; thence 
to latitude 47[deg]33'32'' N, longitude 122[deg]32'06'' W; thence to 
latitude 47[deg]33'45.9'' North, longitude 122[deg]32'16.04'' W, a 
point in Puget Sound on the southern shoreline of the Manchester 
Fuel Depot then back to the original point.

Exclusion Will Not Result in Extinction of the Species

    Section 4(b)(2) of the ESA limits our discretion to exclude areas 
from designation if exclusion will result in extinction of the species. 
We do not propose to exclude any habitat areas based on economic 
impacts or 10(a)(1)(B) permits (conservation plans). We do propose to 
exclude 55.1 lineal mi (88.7 km) of marine habitat adjacent to Indian 
lands and a total of approximately 68.7 sq mi of marine habitat area 
(33.1 sq mi of nearshore, 35.6 sq mi of deepwater) controlled by the 
Navy as described above. We conclude that excluding Indian lands--and 
thereby furthering the federal government's policy of promoting respect 
for tribal sovereignty and self-governance--in addition to several 
areas controlled by the Navy, will not result in extinction of listed 
rockfish. Listed rockfish habitat on Indian lands represents a small 
proportion of total area occupied by these DPSs, and the Tribes are 
actively engaged in fisheries management, habitat management and Puget 
Sound ecosystem recovery programs that benefit listed rockfish.
    Listed rockfish habitat within areas controlled by the Navy 
represents approximately 5 percent of the nearshore area and 
approximately 5 percent of the deepwater area we determined to have 
essential features. In addition to the small size of these proposed 
exclusions, the Navy actively seeks to protect actions that would 
impact their mission and these protections provide ancillary 
protections to rockfish habitat by restricting actions that may harm 
the Navy mission and rockfish in the respective area (NMFS, 2013c). 
Thus the benefit of designating these areas as critical habitat would 
be reduced.
    For the following reasons, we conclude that the exclusions 
described above, in combination, will not result in the extinction of 
the yelloweye rockfish, canary rockfish or bocaccio DPSs: (1) The 
proposed Indian land exclusions involve nearshore habitats that are 
already managed by the tribes for conservation; (2) The proposed Navy 
exclusions involve nearshore and deepwater habitats that are already 
afforded some protections by the Navy, and; (3) The extent of Indian 
lands exclusions and Navy exclusions are spread amongst each of the 
five biogeographic basins of Puget Sound, and cumulatively total a 
fraction of the overall habitats that have essential features for 
listed rockfish.

Proposed Critical Habitat Designation

    In total we propose to designate approximately 610.0 sq mi of 
nearshore habitat for canary rockfish and bocaccio, and 574.8 sq mi of 
deepwater habitat for yelloweye rockfish, canary rockfish and bocaccio 
within the geographical area of the DPSs occupied by each species 
(Figures 2 and 3). Aside from some deepwater areas proposed as critical 
habitat for rockfish in Hood Canal, all other proposed critical habitat 
overlaps with designated critical habitat for other species. Other co-
occurring ESA-listed species with designated critical habitat that, 
collectively, almost completely overlap with proposed rockfish critical 
habitat include Pacific salmon (70 FR 52630, September 2, 2005), North 
American green sturgeon (74 FR 52300, October 9, 2009), Southern 
Resident Killer Whales (71 FR 69054, November 29, 2006), and bull trout 
(75 FR 63898, October 18, 2010). The areas proposed for designation are 
all within the geographical area occupied by the species and contain 
physical and biological features essential to the conservation of the 
species and that may require special management considerations or 
protection. No unoccupied areas were identified that are considered 
essential for the conservation of the species. All of the areas 
proposed for designation have high conservation value (NMFS, 2013a). As 
a result of the balancing process for some military areas and tribal 
lands described above, we are proposing to exclude from the designation 
small areas listed in Table 2 (see Figures 1 and 2 for locations of 
tribal lands). As a result of the balancing process for economic 
impacts described above, we conclude that the economic benefit of 
excluding any of these particular areas does not outweigh the 
conservation benefit of designation. Therefore none of the areas were 
eligible for exclusion based on economic impacts. As a result of the 
balancing process for areas covered by Conservation Plans we concluded 
that the benefits of excluding the areas covered by each conservation 
plan do not outweigh the benefits of designation (NMFS, 2013c). As a 
result of the balancing process for tribal areas we concluded that the 
benefits of excluding these areas outweigh the benefits of designation 
(NMFS, 2013c).
BILLNG CODE 3510-22-P

[[Page 47654]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.044


[[Page 47655]]


[GRAPHIC] [TIFF OMITTED] TP06AU13.045

BILLING CODE 3510-22-C
    On May 1, 2012, NMFS and the USFWS revised the critical habitat 
implementing regulations to eliminate the requirement to publish 
textual

[[Page 47656]]

descriptions of proposed (NMFS only) and final (NMFS and USFWS) 
critical habitat boundaries in the Regulation Promulgation section of 
the Federal Register for codification and printing in the CFR (77 FR 
25611, May 1, 2012). The regulations instead provide that the map(s), 
as clarified or refined by any textual language within the preamble of 
the proposed or final rule, constitutes the definition of the 
boundaries of a critical habitat (50 CFR 17.94(b), 226.101, 424.12(c), 
424.16(b) and (c)(1)(ii), and 424.18(a)). The revised regulations 
provide that the boundaries of critical habitat as mapped or otherwise 
described in the Regulation Promulgation section of a rulemaking 
published in the Federal Register will be the official delineation of 
the designation (50 CFR 424.12). In this proposed designation we 
include some latitude-longitude coordinates (to delineate certain 
Department of Defense controlled boundaries) to provide clarity on the 
location of DOD areas proposed for exclusion but also rely on the maps 
to depict critical habitat for yelloweye rockfish, canary rockfish and 
bocaccio. The Geographical Information System data that the maps have 
been generated from are included in the administrative record located 
on our Web site.
    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
``specific areas outside the geographical area occupied at the time 
[the species] is listed'' if these areas are essential for the 
conservation of the species. Regulations at 50 CFR 424.12(e) emphasize 
that the agency ``shall designate as critical habitat areas outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' We conducted a review of the 
documented occurrences of each listed rockfish in the five 
biogeographic basins (NMFS, 2013a). We found that each of the basins is 
currently occupied by yelloweye rockfish, canary rockfish, and 
bocaccio. We have not identified any unoccupied areas as candidates for 
critical habitat designation.

    Table 2--Habitat Areas Within the Geographical Range of for Yelloweye Rockfish, Canary Rockfish and Bocaccio Proposed for Exclusion From Critical
                                                                         Habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Total                                                 Indian lands
                                                          annualized                               DOD areas        exclusions         Exclusions for
         Specific area            Conservation value       estimated     Economic exclusions       proposed         proposed by      conservation plan
                                                           economic                             exclusion from     ``particular        permit holders
                                                         impacts (7%)                          critical habitat       areas''             proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Juan/Straits of Juan de     High..................         $32,100  No...................  Yes.............  Yes.............  No.
 Fuca.
Whidbey Basin.................  High..................          30,100  No...................  Yes.............  Yes.............  No.
Main Basin....................  High..................          29,000  No...................  Yes.............  Yes.............  No.
Hood Canal....................  High..................          10,200  No...................  Yes.............  Yes.............  No.
South Puget Sound.............  High..................          21,200  No...................  Yes.............  Yes.............  No.
                               -------------------------------------------------------------------------------------------------------------------------
    Totals....................  na....................         123,000  na...................  35.6 sq mi        55.1 lineal mi..  na.
                                                                                                deepwater.
                                                                                               33.1 sq mi
                                                                                                nearshore.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies to ensure that 
any action authorized, funded, or carried out by the agency (agency 
action) does not jeopardize the continued existence of any threatened 
or endangered species or destroy or adversely modify designated 
critical habitat. Federal agencies are also required to confer with us 
regarding any actions likely to jeopardize a species proposed for 
listing under the ESA, or likely to destroy or adversely modify 
proposed critical habitat, pursuant to section 7(a)(4). A conference 
involves informal discussions in which we may recommend conservation 
measures to minimize or avoid adverse effects. The discussions and 
conservation recommendations are to be documented in a conference 
report provided to the Federal agency. If requested by the Federal 
agency, a formal conference report may be issued (including a 
biological opinion prepared according to 50 CFR 402.14). A formal 
conference report may be adopted as the biological opinion when the 
species is listed or critical habitat designated, if no significant new 
information or changes to the action alter the content of the opinion.
    When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions to be conducted 
in an area where the species is present or that may affect the species 
or its critical habitat. During the consultation, we would evaluate the 
agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue our findings in a 
biological opinion or concurrence letter. If we conclude in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, we would also 
recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives (defined in 50 CFR 402.02) are 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of a 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities subject to the ESA section 7 consultation process 
include activities on Federal lands and activities on private or state 
lands requiring a permit from a Federal agency (e.g., a Clean Water 
Act, Section 404 dredge or fill permit from U.S. Army Corps of 
Engineers) or some other Federal action,

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including funding (e.g., Federal Highway Administration funding for 
transportation projects). ESA section 7 consultation would not be 
required for Federal actions that do not affect listed species or 
critical habitat and for actions on non-Federal and private lands that 
are not Federally funded, authorized, or carried out.

Activities Affected by Critical Habitat Designation

    ESA section 4(b)(8) requires in any proposed or final regulation to 
designate critical habitat an evaluation and brief description of those 
activities (whether public or private) that may adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect the proposed critical habitat and may be subject 
to the ESA section 7 consultation process when carried out, funded, or 
authorized by a Federal agency. These include water and land management 
actions of Federal agencies (e.g., the Department of Defense, U.S. Army 
Corps of Engineers (USACE), the Department of Defense, the Federal 
Energy Regulatory Commission, and the Environmental Protection Agency 
and related or similar federally regulated projects). Other actions of 
concern include dredging and filling, and bank stabilization activities 
authorized or conducted by the USACE, and approval of water quality 
standards and pesticide labeling and use restrictions administered by 
the EPA.
    Private or non-Federal entities may also be affected by these 
proposed critical habitat designations if a Federal permit is required, 
if Federal funding is received or the entity is involved in or receives 
benefits from a Federal project. For example, private entities may need 
Federal permits to build or repair a bulkhead, or install an artificial 
reef. These activities will need to be evaluated with respect to their 
potential to destroy or adversely modify critical habitat for yelloweye 
rockfish, canary rockfish, or bocaccio of the Puget Sound/Georgia 
Basin.
    Questions regarding whether specific activities will constitute 
destruction or adverse modification of critical habitat should be 
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning 
the proposed designations and exclusions as well as the documents 
supporting this proposed rulemaking. We are particularly interested in 
comments and information in the following areas: (1) Information 
describing the abundance, distribution, and habitat use of yelloweye 
rockfish, canary rockfish, and bocaccio of the Puget Sound/Georgia 
Basin, including any unoccupied areas and habitats used by larval 
rockfish; (2) information on the identification, location, and the 
quality of physical or biological features that may be essential to the 
conservation of the species; (3) information regarding potential 
benefits of designating any particular area as critical habitat, 
including information on the types of Federal actions that may affect 
the area's physical and biological features; (4) information regarding 
potential impacts of designating any particular area, including the 
types of Federal actions that may trigger an ESA section 7 consultation 
and the possible modifications that may be required of those 
activities; (5) current or planned activities in the areas proposed as 
critical habitat and costs of potential modifications to those 
activities due to critical habitat designation; and (6) any foreseeable 
economic, national security, or other relevant impact resulting from 
the proposed designations.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). Copies of the proposed 
rule and supporting documentation can be found on the NMFS Web site 
http://www.nwr.noaa.gov. In preparing the final rule, we will consider 
all comments pertaining to these designations received during the 
comment period; comments must be received by November 4, 2013. 
Accordingly, the final decision may differ from this proposed rule.

Public Hearings

    Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to 
promptly hold at least one public hearing if any person requests one 
within 45 days of publication of a proposed rule to designate critical 
habitat. Public hearings provide the opportunity for interested 
individuals and parties to give comments, exchange information and 
opinions, and engage in a constructive dialogue concerning this 
proposed rule. We encourage the public's involvement in such ESA 
matters. Requests for a public hearing(s) must be made in writing (see 
ADDRESSES) by September 20, 2013.

Information Quality Act and Peer Review

    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In 
December 2004, OMB issued a Final Information Quality Bulletin for Peer 
Review pursuant to the IQA. The Bulletin was published in the Federal 
Register on January 14, 2005 (70 FR 2664). The Bulletin established 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation with regard to certain types of information disseminated 
by the Federal Government. The peer review requirements of the OMB 
Bulletin apply to influential or highly influential scientific 
information disseminated on or after June 16, 2005. Two documents 
supporting these critical habitat proposals are considered influential 
scientific information and subject to peer review. These documents are 
the draft Biological Report (NMFS, 2013a) and draft Economic Analysis 
(NMFS, 2013b). We distributed the draft Biological Report for pre-
dissemination peer review pursuant to Section 515 of Public Law 106-
554, and will distribute the Economic Analysis for peer review. The 
peer review report is available on our Web site at http://www.nwr.noaa.gov. We will distribute the economic report for 
independent peer review and will address comments received in 
developing the final drafts of the two reports. Both documents are 
available on our Web site at http://www.nwr.noaa.gov, on the Federal 
eRulemaking Web site at http://www.regulations.gov, 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105, or upon 
request (see ADDRESSES). We will announce the availability of comments 
received from peer reviewers (for the economic report) and the public 
and make them available via our Web site as soon as practicable during 
the comment period and in advance of a final rule.

Classification

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996), whenever an agency publishes a notice of rulemaking for any 
proposed or final rule, it must

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prepare and make available for public comment a regulatory flexibility 
analysis describing the effects of the rule on small entities (i.e., 
small businesses, small organizations, and small government 
jurisdictions). We have prepared an initial regulatory flexibility 
analysis, which is part of the draft economic analysis (NMFS, 2013b). 
This document is available upon request (see ADDRESSES), via our Web 
site at http://nwr.noaa.gov, or via the Federal eRulemaking Web site at 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0105. The results 
of the initial regulatory flexibility analysis are summarized below.
    The impacts to small businesses were assessed for the following 
broad categories of activities: Utilities, nearshore work, 
transportation, water quality and other activities. Small entities were 
defined by the Small Business Administration size standards for each 
activity type. We did not forecast any costs to small entities related 
to utilities projects because the only consultation associated with 
utilities are pre-consultation/technical assistance and programmatic 
consultations, which do not include any cost to third parties; 
therefore, we do not expect any impacts to small entities related to 
utilities.
    We estimated the annualized costs associated with ESA section 7 
consultations incurred per small business under a scenario intended to 
provide a measure of uncertainty regarding the number of small entities 
that may be affected by the designations for each project category 
(NMFS, 2013c). It is uncertain whether small entities will be project 
proponents for these types of consultations, so the analysis 
conservatively assumes that all consultations will be undertaken by 
small entities, and that all such consultation will be formal. Under 
these assumptions, the costs to entities engaged in nearshore work are 
an estimated $27,000 annually, or $1,900 per entity. This cost 
represents less that 0.1 percent of annual revenues in this sector. The 
costs to entities engaged in transportation projects are an estimated 
$46,000 annually, or $7,700 for entities in this sector. This cost 
represents 0.29 percent of annual revenues. The costs to entities 
engaged in water quality projects is an estimated $23,000 annually, or 
$9,100 per entity. This cost represents 1.3 percent of annual revenues 
for entities in this sector. The costs for other entities, including 
fishing would be approximately $18,000 annually, or $2,600 per entity. 
This cost represents 1.1 percent of annual revenues for entities in 
this sector.
    In accordance with the requirements of the Regulatory Flexibility 
Act (as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996) this analysis considered various alternatives to the 
critical habitat designations for these DPSs. The alternative of not 
designating critical habitat for these DPSs was considered and rejected 
because such an approach does not meet the legal requirements of the 
ESA.

Executive Order 12866

    At the guidance of OMB and in compliance with Executive Order 
12866, ``Regulatory Planning and Review,'' Federal agencies measure 
changes in economic efficiency in order to understand how society, as a 
whole, will be affected by a regulatory action. Our draft analysis of 
economic impacts can be found in NMFS (2013b), and this proposed rule 
has been determined to be not significant under Executive Order 12866.

Executive Order 13211

    On May 18, 2001, the President issued an executive order on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking any action that promulgates or is 
expected to lead to the promulgation of a final rule or regulation that 
(1) is a significant regulatory action under Executive Order 12866 and 
(2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy and find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above (NMFS, 2013b).

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, NMFS makes the 
following findings:
    (a) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute or 
regulation that would impose an enforceable duty upon state, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to state, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the state, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement.)
    ``Federal private sector mandate'' includes a regulation that 
``would impose an enforceable duty upon the private sector, except (i) 
a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.'' The designation of 
critical habitat does not impose a legally binding duty on non-Federal 
government entities or private parties. Under the ESA, the only 
regulatory effect is that Federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7. While non-Federal entities which receive Federal funding, 
assistance, permits or otherwise require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. Furthermore, to the extent that non-Federal 
entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to state governments.
    (b) Due to the existing protection afforded to the proposed 
critical habitat from existing critical habitat for salmon (70 FR 
52630, September 2, 2005), Southern DPS of green sturgeon (74 FR 52300, 
October 9, 2009), bull trout (70 FR 56212, September 26, 2005), and the

[[Page 47659]]

southern resident killer whale (71 FR 69054, November 29, 2006), we do 
not anticipate that this proposed rule will significantly or uniquely 
affect small governments. As such, a Small Government Agency Plan is 
not required

Takings

    Under Executive Order 12630, Federal agencies must consider the 
effects of their actions on constitutionally protected private property 
rights and avoid unnecessary takings of property. A taking of property 
includes actions that result in physical invasion or occupancy of 
private property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with Executive 
Order 12630, this proposed rule does not have significant takings 
implications. A takings implication assessment is not required. The 
designation of critical habitat affects only Federal agency actions. We 
do not expect the proposed critical habitat designations will impose 
additional burdens on land use or affect property values. Additionally, 
the proposed critical habitat designations do not preclude the 
development of Conservation Plans and issuance of incidental take 
permits for non-Federal actions. Owners of areas included within the 
proposed critical habitat designations would continue to have the 
opportunity to use their property in ways consistent with the survival 
of listed rockfish.

Federalism

    In accordance with Executive Order 13132, we determined that this 
proposed rule does not have significant Federalism effects and that a 
Federalism assessment is not required. In keeping with Department of 
Commerce policies, we request information from, and will coordinate 
development of these proposed critical habitat designations with, 
appropriate state resource agencies in Washington. The proposed 
designations may have some benefit to state and local resource agencies 
in that the areas essential to the conservation of the species are more 
clearly defined, and the essential features of the habitat necessary 
for the survival of the subject DPSs are specifically identified. It 
may also assist local governments in long-range planning (rather than 
waiting for case-by-case ESA section 7 consultations to occur).

Government-to-Government Relationship With Tribes

    Pursuant to Executive Order 13175 and Secretarial Order 3206, we 
contacted the affected Indian Tribes when considering the designation 
of critical habitat in an area that may impact tribal trust resources, 
tribally owned fee lands or the exercise of tribal rights. The 
responding tribes expressed concern about the intrusion into tribal 
sovereignty that critical habitat designation represents. These 
concerns are consistent with previous responses from tribes when we 
developed critical habitat designations for salmon and steelhead in 
2005 (70 FR 52630, September 2, 2005). The Secretarial Order defines 
Indian lands as ``any lands title to which is either: (1) Held in trust 
by the United States for the benefit of any Indian tribe or (2) held by 
an Indian Tribe or individual subject to restrictions by the United 
States against alienation.'' Our conversations with the tribes indicate 
that they view the designation of Indian lands as an unwanted intrusion 
into tribal self-governance, compromising the government-to-government 
relationship that is essential to achieving our mutual goal of 
conserving threatened and endangered salmonids.
    For the general reasons described in the Impacts to Tribal 
Sovereignty and Self-Governance section above, the draft ESA 4(b)(2) 
analysis has led us to propose the exclusion of all Indian lands in our 
proposed designations for yelloweye rockfish, canary rockfish, and 
bocaccio. Consistent with other proposed exclusions, any exclusion in 
the final rule will be made only after consideration of all comments 
received.

Civil Justice Reform

    The Department of Commerce has determined that this proposed rule 
does not unduly burden the judicial system and meets the requirements 
of sections 3(a) and 3(b)(2) of Executive Order 12988. We are proposing 
to designate critical habitat in accordance with the provisions of the 
ESA. This proposed rule uses standard property descriptions and 
identifies the essential features within the designated areas to assist 
the public in understanding the habitat needs of yelloweye rockfish, 
canary rockfish, and bocaccio of the Puget Sound/Georgia Basin.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection requirements for which OMB approval is required under the 
Paperwork Reduction Act (PRA). This proposed rule will not impose 
recordkeeping or reporting requirements on state or local governments, 
individuals, businesses, or organizations. Notwithstanding any other 
provision of the law, no person is required to respond to, nor shall 
any person be subject to a penalty for failure to comply with, a 
collection of information subject to the requirements of the PRA, 
unless that collection of information displays a currently valid OMB 
Control Number.

National Environmental Policy Act of 1969 (NEPA)

    We have determined that an environmental analysis as provided for 
under NEPA is not required for critical habitat designations made 
pursuant to the ESA. See Douglas County v. Babbitt, 48 F.3d 1495 (9th 
Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).

Coastal Zone Management Act

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 (16 U.S.C. 1456) requires that all Federal activities that affect 
the land or water use or natural resource of the coastal zone be 
consistent with approved state coastal zone management programs to the 
maximum extent practicable. We have determined that these proposed 
designations of critical habitat are consistent to the maximum extent 
practicable with the enforceable policies of approved Coastal Zone 
Management Programs of Washington. The determination will be submitted 
for review by the responsible state agency.

References Cited

    A complete list of all references cited in this proposed rulemaking 
can be found on our Web site at http://www.nwr.noaa.gov/ and is 
available upon request from the NMFS office in Seattle, Washington (see 
ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: July 30, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, Performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, we propose to amend part 
226, title 50 of the Code of Federal Regulations as set forth below:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
2. Add Sec.  226.2124 to read as follows:

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Sec.  226.2124  Critical habitat for the Puget Sound/Georgia Basin DPS 
of yelloweye rockfish (Sebastes ruberrimus), canary rockfish (S. 
pinniger), and bocaccio (S. paucispinus).

    Critical habitat is designated in the following states and counties 
for the following DPSs as depicted in the maps below and described in 
paragraphs (a) through (d) of this section. The maps can be viewed or 
obtained with greater resolution (http://www.nwr.noaa.gov/) to enable a 
more precise inspection of proposed critical habitat for yelloweye 
rockfish, canary rockfish and bocaccio.
    (a) Critical habitat is designated for the following DPSs in the 
following state and counties:

------------------------------------------------------------------------
             DPS                            State--Counties
------------------------------------------------------------------------
Yelloweye rockfish...........  Wa--San Juan, Whatcom, Skagit, Island,
                                Clallam, Jefferson Snohomish, King,
                                Pierce, Kitsap, Thurston, Mason.
Canary rockfish..............  Wa--San Juan, Whatcom, Skagit, Island,
                                Clallam, Jefferson Snohomish, King,
                                Pierce, Kitsap, Thurston, Mason.
Bocaccio.....................  Wa--San Juan, Whatcom, Skagit, Island,
                                Clallam, Jefferson Snohomish, King,
                                Pierce, Kitsap, Thurston, Mason.
------------------------------------------------------------------------

    (b) Critical habitat boundaries. In delineating nearshore 
(shallower than 30 m (98 ft)) areas in Puget Sound, we define proposed 
critical habitat for canary rockfish and bocaccio, as depicted in the 
maps below, as occurring from the shoreline from extreme high water out 
to a depth no greater than 30 m (98 ft) relative to mean lower low 
water. Deepwater proposed critical habitat for yelloweye rockfish, 
canary rockfish and bocaccio occurs in some areas, as depicted in the 
maps below, from depths greater than 30 m (98ft).
    (c) Essential features for juvenile canary rockfish and bocaccio. 
Juvenile settlement habitats located in the nearshore with substrates 
such as sand, rock and/or cobble compositions that also support kelp 
are essential for conservation because these features enable forage 
opportunities and refuge from predators and enable behavioral and 
physiological changes needed for juveniles to occupy deeper adult 
habitats. Several attributes of these sites determine the quality of 
the area and are useful in considering the conservation value of the 
associated feature and, in determining whether the feature may require 
special management considerations or protection. These features also 
are relevant to evaluating the effects of a proposed action in a 
section 7 consultation if the specific area containing the site is 
designated as critical habitat. These attributes include quantity, 
quality, and availability of prey species to support individual growth, 
survival, reproduction, and feeding opportunities; and water quality 
and sufficient levels of dissolved oxygen to support growth, survival, 
reproduction, and feeding opportunities. Nearshore areas are contiguous 
with the shoreline from the line of extreme high water out to a depth 
no greater than 30 meters (98 ft) relative to mean lower low water.
    (d) Essential features for adult canary rockfish and bocaccio, and 
adult and juvenile yelloweye rockfish. Benthic habitats or sites deeper 
than 30m (98ft) that possess or are adjacent to areas of complex 
bathymetry consisting of rock and or highly rugose habitat are 
essential to conservation because these features support growth, 
survival, reproduction, and feeding opportunities by providing the 
structure for rockfish to avoid predation, seek food and persist for 
decades. Several attributes of these sites determine the quality of the 
habitat and are useful in considering the conservation value of the 
associated feature, and whether the feature may require special 
management considerations or protection. These attributes are also 
relevant in the evaluation of the effects of a proposed action in a 
section 7 consultation if the specific area containing the site is 
designated as critical habitat. These attributes include:
    (1) Quantity, quality, and availability of prey species to support 
individual growth, survival, reproduction, and feeding opportunities,
    (2) water quality and sufficient levels of dissolved oxygen to 
support growth, survival, reproduction, and feeding opportunities, and
    (3) the type and amount of structure and rugosity that supports 
feeding opportunities and predator avoidance.
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[FR Doc. 2013-18832 Filed 8-5-13; 8:45 am]
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