[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Proposed Rules]
[Pages 51186-51209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23978]
[[Page 51186]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 224 and 226
[Docket No. 120815341-7866-01]
RIN 0648-BC45
Endangered and Threatened Wildlife and Plants: Proposed
Rulemaking To Designate Critical Habitat for the Main Hawaiian Islands
Insular False Killer Whale Distinct Population Segment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, propose to designate critical habitat for the Main
Hawaiian Islands insular false killer whale (Pseudorca crassidens)
distinct population segment by designating waters from the 45-meter (m)
depth contour to the 3200-m depth contour around the main Hawaiian
Islands from Niihau east to Hawaii, pursuant to section 4 of the
Endangered Species Act (ESA). Based on considerations of economic and
national security impacts, we propose to exclude the following areas
from designation because the benefits of exclusion outweigh the
benefits of inclusion and exclusion will not result in extinction of
the species: The Bureau of Ocean Energy Management's Call Area offshore
of the Island of Oahu, the Pacific Missile Range Facilities Offshore
ranges (including the Shallow Water Training Range, the Barking Sands
Tactical Underwater Range, and the Barking Sands Underwater Range
Extension), the Kingfisher Range, Warning Area 188, Kaula and Warning
Area 187, Fleet Operational Readiness Accuracy Check Site Range, the
Shipboard Electronic Systems Evaluation Facility, Warning Areas 196 and
191, and Warning Areas 193 and 194. In addition, the Ewa Training
Minefield and the Naval Defensive Sea Area are precluded from
designation under section 4(a)(3) of the ESA because they are managed
under the Joint Base Pearl Harbor-Hickam Integrated Natural Resource
Management Plan that we find provides a benefit to the Main Hawaiian
Islands insular false killer whale. We are soliciting comments on all
aspects of the proposal, including information on the economic,
national security, and other relevant impacts. We will consider
additional information received prior to making a final designation.
DATES: Comments must be received no later than 5 p.m. on January 2,
2018.
A public hearing will be held on December 7, 2017 at the Manoa
Grand Ballroom, Japanese Cultural Center, 2454 South Beretania Street,
Honolulu, HI 96826. Doors open at 6:00 p.m., and a presentation and
hearing will begin at 6:30 p.m. Parking is available and will be
validated.
ADDRESSES: You may submit comments, information, or data on this
document, identified by NOAA-NMFS-2017-0093, and on the supplemental
documents by either of the following methods:
Electronic Submission: Submit all electronic comments via the
Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0093, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Susan Pultz, Chief, Conservation
Planning and Rulemaking Branch, Protected Resources Division, National
Marine Fisheries Service, Pacific Islands Regional Office, 1845 Wasp
Blvd., Bldg. 176, Honolulu, HI 96818, Attn: MHI IFKW Critical Habitat
Proposed Rule.
Instructions: 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 by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
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).
FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Pacific Islands
Region, Chief, Conservation Planning and Rulemaking Branch, 808-725-
5150; or Lisa Manning, NMFS, Office of Protected Resources 301-427-
8466.
SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the
ESA (16 U.S.C. 1533(b)(2)) and our implementing regulations (50 CFR
424.12), this proposed rule is based on the best scientific information
available concerning the range, biology, habitat and threats to the
habitat of this distinct population segment (DPS). We have reviewed the
information (e.g., provided in peer-reviewed literature, and technical
documents) and have used it to identify the physical and biological
features essential to the conservation of this DPS. Background
documents on the biology and the economic impacts of the designation,
and documents explaining the critical habitat designation process can
be downloaded from http://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing, or requested by phone
or email from the NMFS staff in Honolulu (area code 808) listed under
FOR FURTHER INFORMATION CONTACT.
Background
On December 28, 2012, the main Hawaiian Islands (MHI) insular false
killer whale (IFKW) (Pseudorca crassidens) DPS was listed as endangered
throughout its range under the ESA (77 FR 70915; November 28, 2012).
Under section 4 of the ESA, critical habitat shall be specified to the
maximum extent prudent and determinable at the time a species is listed
as threatened or endangered (16 U.S.C. 1533 (b)(6)(C)). In the final
listing rule, we stated that critical habitat was not determinable at
the time of the listing, because sufficient information was not
currently available on the geographical area occupied by the species,
the physical and biological features essential to conservation, and the
impacts of the designation (77 FR 70915; November 28, 2012). Under
section 4 of the ESA, if critical habitat is not determinable at the
time of listing, a final critical habitat designation must be published
1 year after listing (16 U.S.C. 1533 (b)(6)(C)(ii)). The Natural
Resources Defense Council filed a complaint in July 2016 with the U. S.
District Court for the District of Columbia seeking an order to compel
NMFS to designate critical habitat for the MHI IFKW DPS, and a court-
approved settlement agreement was filed on January 24, 2017 (Natural
Resources Defense Council, Inc. v. Penny Pritzker, National Marine
Fisheries Services, 1:16-cv-1442 (D.D.C.)). The settlement agreement
stipulates that NMFS will submit the proposed rule to the Office of the
Federal Register by October 31, 2017, and the final rule by July 1,
2018. This proposed rule describes the proposed critical habitat
designation, including supporting information on MHI IFKW biology,
distribution, and habitat use, and the methods used to develop the
proposed designation.
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
[[Page 51187]]
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 that such areas are
essential for the conservation of the species.'' (16 U.S.C.
1532(5)(A)). Conservation is defined in section 3(3) of the ESA as ``.
. . to use, and the use of, all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act are no longer
necessary . . .'' (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA
provides that except 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.
Section 4(a)(3)(B) prohibits designating as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DOD) or designated for its use, that are subject to an
Integrated Natural Resources Management Plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species,
and its habitat, for which critical habitat is proposed for
designation. Although not expressly stated in section 4(b)(2), our
regulations provide that critical habitat shall not be designated
within foreign countries or in other areas outside of U.S. jurisdiction
(50 CFR 424.12 (g)).
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.'' This section also 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.'' However, the
Secretary may not exclude areas if this ``will result in the extinction
of the species.''
Once critical habitat is designated, section 7(a)(2) of the ESA
requires Federal agencies to ensure that actions they fund, authorize,
or carry out are not likely to destroy or adversely modify that habitat
(16 U.S.C. 1536(a)(2)). This requirement is additional to the section
7(a)(2) requirement that Federal agencies ensure their actions are not
likely to jeopardize the continued existence of ESA-listed species.
Specifying the geographic location of critical habitat also facilitates
implementation of section 7(a)(1) of the ESA by identifying areas where
Federal agencies can focus their conservation programs and use their
authorities to further the purposes of the ESA. Critical habitat
requirements do not apply to citizens engaged in actions on private
land that do not involve a Federal agency. However, designating
critical habitat can help focus the efforts of other conservation
partners (e.g., State and local governments, individuals, and
nongovernmental organizations).
This proposed rule describes information on the biology of this
DPS, the methods used to develop the proposed designation, and our
proposal to designate critical habitat for the MHI IFKW.
MHI IFKW Biology and Habitat Use
The false killer whale is a large social odontocete (toothed
whales) in the family Delphinidae. These whales are slender-bodied with
black or dark gray coloration, although lighter areas may occur
ventrally between the flippers or on the sides of the head. A
prominent, falcate dorsal fin is located at about the midpoint of the
back, and the tip can be pointed or rounded. The head lacks a distinct
beak, and the melon tapers gradually from the area of the blowhole to a
rounded tip. In males, the melon extends slightly further forward than
in females. The pectoral fins have a unique shape among the cetaceans,
with a distinct central hump creating an S-shaped leading edge (Oleson
et al., 2010). The maximum size reported for a male is 610 centimeters
(cm) (Leatherwood and Reeves 1983) and 506 cm for females (Perrin and
Reilly 1984).
False killer whales are long-lived, mature slowly, and reproduce
infrequently (Baird 2009, Oleson et al., 2010). Maximum estimated age
is reported at 63 years for females and 58 years for males (Kasuya
1986, Odell and McClune 1999). Females may live 10-15 years beyond
their reproductively active years, based on estimates of senescence of
around 45 years old (Ferreira 2008). This post-reproductive period is
seen in other social odontocetes, such as short-finned pilot whales and
killer whales, and may play a role in allowing these animals to pass
knowledge important to survival from one generation to the next
(McAuliffe and Whitehead 2005, Oleson et al., 2010, Nichols et al.
2016, Photopoulou et al., 2017).
Like other odontocetes, false killer whales have highly complex
acoustic sensory systems through which they produce, receive, and
interpret sounds to support navigation, communication, and foraging (Au
2000, Olsen et al., 2010). Similar to bats--these animals use
echolocation (or biosonar) to locate objects within their environment
by producing sounds, and then receiving and interpreting the returning
echoes. These animals also vocalize to communicate with one another,
and passively listen to natural and biological acoustic cues from the
ocean and other animals to understand their environment (Au 2000).
There are three categories of vocalizations that most odontocetes
make, that support their ability to interpret the surrounding
environment and to communicate with each other--echolocation clicks,
burst-pulsed vocalizations, and whistles (Au 2000) (See the
Vocalization, Hearing, and Underwater Sound section of the Draft
Biological Report for generalized vocalization ranges for odontocetes,
NMFS 2017a). Echolocation clicks (or click trains) and burst-pulsed
sounds are sometimes described as a single category termed pulsed
sounds/pulse trains (Murray et al., 1998). Functionally, echolocation
clicks support orientation and navigation within the whale's
environment, while burst-pulsed sounds and frequency modulated whistles
are social signals (Au 2000). False killer whales produce sounds that
meet all three categories and sometimes produce sounds that are
intermediate or between categories (Murray et al., 1998). In addition
to their dynamic vocalization capabilities, these whales can actively
change their hearing sensitivity to optimize their ability to hear
returning echoes or other sounds within their environment (Nachtigall
and Supin 2008). Captive studies demonstrate false killer whales are
able to perceive and distinguish harmonic combinations of sounds. This
ability may facilitate communication and coordination among false
killer whales as they travel (Yuen et al., 2007). Because vocalizations
are a primary means of navigation, communication, and foraging, it is
important that false killer whales are able to detect, interpret, and
utilize acoustic cues within their surrounding environment.
The soundscape--referring to ``all of the sound present in a
particular location and time, considered as a whole''--varies spatially
and temporally across habitats as the physical and biological
attributes of habitats shift and the physical, biological, and
anthropogenic factors that contribute to noise within that habitat
change (Pijanowski et al., 2011a, Pijanowski et al., 2011b, Hatch et
al., 2016). For
[[Page 51188]]
example, water depth, salinity, and seabed type affect how well sound
propagates in a habitat, so the soundscape will vary as those
attributes change. Additionally, the soundscape differs by the sources
that contribute to noise within the environment; these sources may be
from physical, biological, or anthropogenic noise. Physical sources of
noise (such as rain, wind, or waves) and biological sources of noise
(made by the biological community within that habitat) may vary over
time as weather patterns change or behavioral activity varies. For
example, summer storm activity or breeding activity may alter the
soundscape at different points of the year. Human activities that
contribute to noise within habitats can vary widely in frequency
content, duration, and intensity; consequently, anthropogenic sound
sources may have varied effects on a habitat, depending on how that
sound is propagated in the environment and what animals use that
habitat (Hatch et al., 2016). Considering how human activities may
change the soundscape and determining the biological significance of
that change can be complex as it includes the consideration of many
variables, such as the characteristics of human noise sources (e.g.,
frequency content, duration, and intensity); the ability of the animal
of concern to produce sound, receive sound, and adapt to other sounds
within their environment; the physical characteristics of the habitat;
the baseline soundscape; and how the animal uses that habitat (Shannon
et al., 2015, Hatch et al., 2016, Erbe et al., 2016). Noise with
certain characteristics may cause animals to avoid or abandon important
habitat, or can mask--or interfere with the detection, recognition, or
discrimination of--important acoustic cues within that habitat (Gedamke
et al., 2016). In these cases, the duration of the offending or masking
noise will determine whether the effects or degradation to the habitat
may be temporary or chronic and whether such alterations to the
soundscape may alter the conservation value of that habitat.
Ultimately, noise with certain characteristics (i.e., characteristics
that can mask acoustic cues or deter MHI IFKWs) can negatively affect
MHI IFKWs' ability to detect, interpret, and utilize acoustic cues
within that habitat. Additional information about vocalization and
hearing specific to false killer whales can be found in the Draft
Biological Report (NMFS 2017a).
Under the Marine Mammal Protection Act (MMPA), we recognize and
manage three populations of false killer whales in Hawaii: the MHI
Insular (i.e., IFKW), the Northwestern Hawaiian Islands, and the
pelagic populations (Carretta et al., 2016). The MHI IFKW is the only
population of false killer whale protected under the ESA, because this
population was found to meet the DPS Policy (61 FR 4722; February 7,
1996) criteria and was listed as endangered based on the DPS' high
extinction risk and the insufficient conservation efforts in place to
reduce that risk (77 FR 70915; November 28, 2012). Hereafter, we use
``this DPS'' synonymous with the MHI IFKW to refer to this endangered
population.
Genetically distinct from the two other populations of false killer
whales that overlap their range in Hawaii (Martien et al., 2014), MHI
IFKWs are set apart from these and other false killer whales because
they do not exhibit the pelagic and wide-ranging behaviors more
commonly characteristic of false killer whales as a species. Instead,
individuals of this DPS exhibit island-associated habitat use patterns,
restricting their movements to the waters surrounding the main Hawaiian
Islands (Oleson et al., 2010; Baird et al., 2012). With such a
restricted range, this DPS relies entirely on the submerged habitats of
the MHI for foraging, socializing, and reproducing. These behavior
patterns may reflect in large part the unique habitat that the MHI
offers in the middle of the Pacific basin. Specifically, the Hawaiian
Islands are part of the Hawaiian-Emperor Seamount Chain; these
submerged mountains disrupt and influence basin-wide oceanographic and
atmospheric processes, and this disruption and influence, in turn,
influence the productivity in the surrounding waters (Oleson et al.,
2010, Martien et al., 2014, Gove et al., 2016). Referred to as the
``Island Mass Effect,'' islands (land surrounded by water) and atolls
(a ring-shaped reef, or grouping of small islands surrounding a lagoon)
can create a self-fueling cycle where the geomorphic type (atoll vs.
island), bathymetric slope, reef area, and local human impacts (e.g.,
human-derived nutrient input) influence the phytoplankton biomass and
the trophic-structure of the entire surrounding marine ecosystem (Doty
and Oguri 1956, Gove et al., 2016). As a result, in the center of the
North Pacific Ocean the Hawaiian Islands create biological hotspots
(Gove et al., 2016), concentrating prey resources in and around
different parts of the submerged island habitats. MHI IFKW behavioral
patterns indicate that these whales are employing a foraging strategy
that focuses on the pelagic portions of the submerged habitats of the
MHI.
Population Status and Trends
The 2015 Stock Assessment Report (SAR) provides the best estimate
of population size for the MHI IFKW as 151 animals (CV=0.20) (Carretta
et al., 2016). This estimate relies on an open population model from
2006-2009 identified in the Status Review for the MHI insular stock and
was reported as being a possible overestimate because it does not
account for known missed matches of individuals within the photographic
catalog (Oleson et al., 2010). The minimum population estimate for the
MHI IFKW is reported as 92 false killer whales, which is the number of
distinctive individuals identified in photo identification studies from
2011-2014 by Baird et al. (2015) (Carretta et al., 2016). A complete
history of MHI IFKW status and trends is unknown; however, the Status
Review and the 2015 SAR provide an overview of information that
suggests that this DPS has experienced a historical decline (Oleson et
al., 2010, Carretta et al., 2016).
Group Dynamics and Social Networks
As social odontocetes, false killer whales rely on group dynamics
to support daily activities, including foraging; group structures also
support these animals as they nurture young, socialize, and avoid
predators. Studies in Hawaii indicate that MHI IFKWs are most commonly
observed in groups (or subgroups) of about 10 to 20 animals; however,
these groupings may actually be part of a larger aggregation of
multiple subgroups that are dispersed over a wider area (Baird et al.,
2008, Reeves et al., 2009, Baird et al., 2010, Oleson et al., 2010).
Baird et al. (2008) describes these larger groups (of many subgroups)
as temporary, larger, loose associations of subgroups generally moving
in a consistent direction and at a similar speed. These aggregations of
subgroups may allow these whales to effectively search a large area for
prey and converge when one sub-group locates a prey source (Baird
2009). Yuen et al. (2007) notes that this species' capacity to
distinguish and produce different combinations of sounds may play an
important role in facilitating coordinated movements of subgroups and
maintaining associations over wide areas.
This DPS demonstrates social structure; observations from field
studies indicate that uniquely identified individuals associate and
regularly interact with at least one or more common individuals (Baird
2009, Baird
[[Page 51189]]
et al., 2010). Evidence from photo-identification and tracking studies
suggests that somewhat stable bonds exist among individuals, lasting
over periods of years (Baird et al., 2008, Baird et al., 2010).
Further, genetic analyses of this DPS also suggest that both males and
females exhibit philopatry to natal social clusters (meaning these
animals stay within their natal groups), and that mating occurs both
within and between social clusters (Martien et al., 2011).
Social network analyses once divided the DPS into three broad
social clusters based on these connections (Baird et al., 2012).
However, increased information from field studies indicates more
complexity in these social connections, and a fourth social cluster has
been identified (Robin Baird, pers. communication October 2016 and June
2017). Older analyses (before 2017) may only identify Clusters 1, 2,
and 3; however, newer analyses will introduce information about Cluster
4.
Range
MHI IFKWs are found in the waters surrounding each of the main
Hawaiian Islands (Niihau east to Hawaii). At the time of the ESA
listing (2012) the range of the MHI IFKW DPS was described consistent
with the range identified in the 2012 SAR under the MMPA as nearshore
of the main Hawaiian Islands out to 140 kilometers (km) (approximately
75 nautical miles) (77 FR 70915; November 28, 2012; Carretta et al.,
2013). New satellite-tracking data has since proved the range to be
more restricted than that of the 2012 SAR description, especially on
the windward sides of the islands (Bradford et al., 2015). NMFS revised
the MHI IFKW's range in the 2015 SAR, under the MMPA (Carretta et al.,
2016), in accordance with a review and reevaluation of satellite
tracking data by Bradford et al. (2015).
Overall, tracking information from 31 MHI IFKWs (23 from Cluster 1,
and 8 from Cluster 3) suggests that the DPS has a much smaller range
than previously thought, and that the use of habitat is not uniform
around the islands (Bradford et al., 2015). Specifically, MHI IFKWs
show less offshore movement on the windward sides of the islands
(maximum distance from shore of 51.4 km) than on the leeward sides of
the islands (maximum distance from shore of 115 km). Acknowledging that
the available tracking information has a seasonal bias (88.6 percent
collected from August through January) and that data were lacking from
Clusters 2 and 3, Bradford et al. (2015) set goals to refine the range
in a manner that would reflect known differences in habitat use and
allow for uncertainty in spatial and seasonal habitat use. The MHI
IFKW's range was derived from a minimum convex polygon of a 72-km
radius (~39 nautical miles) extending around the Main Hawaiian Islands,
with the offshore extent of the radii connected on the leeward sides of
Hawaii Island and Niihau to encompass the offshore movements within
that region (see Figure 1). Since this analysis, a single individual
from Cluster 2 and several more individuals from Cluster 3 were tagged;
tracking locations received from these animals are contained within the
revised boundary established by the 2015 SAR (Carretta et al., 2016;
Baird, pers. communication November 7, 2016).
BILLING CODE 3510-22-P
[[Page 51190]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.000
BILLING CODE 3510-22-C
Movement and Habitat Use
As noted earlier, MHI IFKWs constitute an island-associated
population of false killer whales that restrict their movement and
foraging to waters surrounding the main Hawaiian Islands (Baird et al.,
2008, Baird et al., 2012). Within these waters, generally, this DPS is
found in deeper areas just offshore, rather than the shallow nearshore
habitats used by island-associated spinner or bottlenose dolphins
(Baird et al., 2010). Within these deeper waters, MHI IFKWs
circumnavigate the islands and quickly move throughout their range
(Baird et al., 2008, Baird et al., 2012). For example, one individual
moved from Hawaii to Maui to Lanai to Oahu to Molokai, covering a
minimum distance of 449 km over a 96-hour period (Baird et al., 2010,
Oleson et al., 2010). Overall tracking information demonstrates that
individuals generally spent equal amounts of time on both leeward and
windward sides of the islands; however, these animals exhibit greater
offshore movements on the leeward sides of the islands, with reported
distances as far as 122 km from shore (Baird et al., 2012).
Baird et al. (2012) applied density analyses to tracking data to
help distinguish significant MHI IFKW habitat areas and explored
environmental characteristics that may define those areas. High-use
areas for this DPS were described as the north side of the island of
Hawaii (both east and west sides), a broad area extending from north of
Maui to northwest of Molokai, and a small area to the southwest of
Lanai. Habitat use appeared to vary based on social cluster. For
example, the area off the north end of Hawaii was a high-use area only
for individuals from Cluster 1, whereas the north side of Molokai was
primarily high-use for Cluster 3 animals (Baird et al., 2012). Updates
to this analysis, using newly available tracking information, indicate
that high-use areas may extend further towards Oahu and into the
channel between Molokai and Oahu (see the Draft Biological Report for a
map of these areas and the updated information provided by Cascadia
Research Collective). Due to the small and resident nature of this DPS,
these high-use areas meet the definition of ``biologically important
areas'' as established by NOAA's CetMap program, and are used to
highlight areas that can assist resource managers with planning,
analyses, and decisions regarding how to reduce adverse impacts to
cetaceans resulting from human activities (Baird et al., 2015, Gedamke
et al., 2016).
Baird et al. (2012) compared physical and oceanographic
characteristics of IFKW high-use and low-use areas of the range.
Generally, they found that MHI IFKW high-use areas were on average
shallower, closer to shore, and had gentler slopes compared to other
areas of this DPS' range. Additionally, these areas had higher average
surface chlorophyll-a concentrations (compared to low-use areas), which
may be indicative of higher productivity. Baird et al. (2012) suggested
that high-use areas may indicate habitats where
[[Page 51191]]
IFKWs have increased foraging success and may be particularly important
to the conservation of this DPS. Still, the data set was limited, and
more high-use areas may be identified as information is gained from all
social clusters and for all months of the year.
Recent information suggests that estimated maximum dive depths once
reported at 500 m (Cummings and Fish 1971) and later reported in excess
of 600-700 m (Olsen et al., 2010, Minamikawa et al., 2013) may be
underestimates for this species. This new information from tagged MHI
IFKWs indicates that these animals are capable of diving deeper than
reported earlier. Data received from depth-transmitting LIMPET (Low
Impact Minimally Percutaneous Electronic Transmitter) satellite tags on
four MHI IFKWs (3 from Cluster 3, and 1 from Cluster 1) demonstrate a
maximum dive depth of 1,272 m, with maximum dive durations reported as
13.85 minutes (Baird, pers communication, March 2017). Looking at
information from all four animals, average maximum dive depths were
similar during the day and night (912 m and 1,019 m respectively). The
data demonstrate that these animals are diving greater than 50 m about
twice as often during the day (0.72 dives/hour) than at night (0.35
dives/hour) (Baird pers communication, March 2017). In summary, limited
data (from four individuals tagged in 2010 during the months of October
and December) still indicate that a majority of foraging activity
happens during the day, but that some nighttime activity also includes
foraging.
Diet
Literature on false killer whales indicates the species eats
primarily fish and squid (Oleson et al., 2010, Ortega-Ortiz et al.,
2014, Clarke 1996). This DPS' restricted range surrounding the Hawaiian
Islands is a unique ecological setting for false killer whales.
Accordingly, the foraging strategies and prey preferences of this DPS
likely differ somewhat from that of their pelagic counterparts (Oleson
et al., 2010). Still, studies examining the diet of this DPS suggest
that pelagic fish and squid remain primary prey targets. Table 2 of the
Draft Biological Report provides a list of prey species identified from
field observations and stomach content analyses, as well as potential
prey species determined from depredation data of the longline
fisheries; this list includes large pelagic game fish, including
dolphinfish (mahi-mahi), wahoo, several species of tuna, and marlin
(NMFS 2017a).
Little is known about diet composition, prey preferences, or
potential differences between the diets of MHI IFKWs of different age,
size, sex, or even social cluster, and different methodologies create
different biases about common prey items. From field studies, Baird et
al. (2008) reports dolphinfish (mahi-mahi) as the most commonly
observed prey, among other pelagic species reported. However,
observations are limited to those foraging events where MHI IFKWs are
found at or near the water's surface. In comparison, stomach content
analysis from five MHI IFKWs that stranded off the Island of Hawaii
(from 2010-2016) indicates that squid may play an important role in the
diet along with other pelagic fish species (West 2016). Notably, data
from stomach content analyses are from 5 whales identified as part of
social Cluster 3, and it is unknown if this information may reflect
differences in foraging preferences or strategy between social
clusters, or if the relative health of these individuals may have
influenced prey consumption just prior to death. Tracking information
and observational data demonstrate that social clusters may
preferentially use some areas of the range over others. For example,
Cluster 2 individuals are seen more often than expected off the Island
of Hawaii, and differences were noted between the preferences of
Clusters 1 and 3 for certain high-use areas (Baird et al., 2012).
However, without additional data, it is difficult to know if these
differences in habitat use may also reflect subtle differences in prey
preference.
The Status Review determined the energy requirements for the IFKW
DPS based on a model developed by Noren (2011) for killer whales
(Oleson et al., 2010). Using the best population estimate of 151
animals from the recent SAR, this DPS consumes approximately 2.6 to 3.5
million pounds (1.2 to 1.6 million kilograms) of fish annually,
depending on the whale population age structure used (see Oleson et
al., 2010 for calculation method) (Brad Hanson, NMFS Northwest
Fisheries Science Center (NWFSC), pers. communication 2017).
As noted above, the Hawaiian Islands create biological hotspots
that aggregate species at all trophic levels, including pelagic fish
and squid (Gove et al., 2016, Bower et al., 1999, Itano and Holland
2000). In the same way that false killer whales exploit the resources
of these islands, some large pelagic fish and squid also demonstrate
island-associated patterns utilizing island resources and phenomena to
support foraging or breeding activities (Bower et al., 1999, Itano and
Holland 2000, Seki et al., 2002). Examples include: Several species of
squid that show increased spawning near the MHI to take advantage of
higher productivity regions (Bower et al., 1999); yellowfin tuna in
Hawaii that appear to exhibit an island-associated, inshore-spawning
run, peaking in the June-August period (Itano and Holland 2000); and
eddies created by the influence of the islands that are known to
concentrate prey resources of larger game fish (Seki et al., 2002).
Understanding the geographic extent and temporal aspects of overlap
with prey species that demonstrate these island-associated patterns may
provide further insight into factors that influence the diet of this
DPS. Most of the species identified in Table 2 of the Draft Biological
Report (NFMS 2017a) are species that are pelagic in nature, but that
are found year-round in Hawaii's waters. Distribution of these large
pelagic fish varies with seasonal changes in ocean temperature (Oleson
et al., 2010). Scrawled filefish and the threadfin jack are commonly
associated with reef systems but are also found in the coastal open
water areas surrounding Hawaii (Oleson et al., 2010). Without further
information about prey preferences, it is difficult to determine where
prey resources of higher value exist for this DPS. However, foraging
activities likely occur throughout the range, as this species takes
advantage of patchily distributed prey resources.
Critical Habitat Identification
In the following sections, we describe the relevant definitions and
requirements in the ESA and our implementing regulations, and the key
information and criteria used to prepare this proposed critical habitat
designation. In accordance with section 4(b)(2) of the ESA and our
implementing regulations at 50 CFR part 424, this proposed rule is
based on the best scientific data available.
To assist with identifying potential MHI IFKW critical habitat
areas, we convened a critical habitat review team (CHRT) consisting of
five NMFS staff with experience working on issues related to MHI IFKWs
and Hawaii's pelagic ecosystem. The CHRT used the best available
scientific data and its best professional judgment to: (1) Determine
the geographical area occupied by the DPS at the time of listing, (2)
identify the physical and biological features essential to the
conservation of the species, and (3) identify specific areas within the
occupied area containing those essential physical and biological
features. The CHRT's evaluation and
[[Page 51192]]
recommendations are described in detail in the Draft Biological Report
(NFMS 2017a). Beyond the description of the areas, the critical habitat
designation process includes two additional steps: (4) Identify whether
any area may be precluded from designation because the area is subject
to an Integrated Natural Resources Management Plan (INRMP) that we have
determined provides a benefit to the DPS, and (5) consider the
economic, national security, or any other impacts of designating
critical habitat and determine whether to exercise our discretion to
exclude any particular areas. These consideration processes are
described further in the Draft ESA Section 4(b)(2) report (NMFS 2017b),
and economic impacts of this designation are described in detail in the
draft Economic Report (Cardno 2017).
Physical and Biological Features Essential for Conservation
The ESA does not specifically define physical or biological
features; however, court decisions and joint NMFS-USFWS regulations at
50 CFR 424.02 (81 FR 7413; February 11, 2016) provide guidance on how
physical or biological features are expressed.
Physical and biological features support the life-history needs of
the species, including but not limited to, water characteristics, soil
type, geological features, sites, prey, vegetation, symbiotic species,
or other features. A feature may be a single habitat characteristic, or
a more complex combination of habitat characteristics that support
ephemeral or dynamic habitat conditions. Features may also be expressed
in terms relating to principles of conservation biology, such as patch
size, distribution distances, and connectivity. The features may also
be combinations of habitat characteristics and may encompass the
relationship between characteristics or the necessary amount of a
characteristic needed to support the life history of the species.
Based on the best available scientific information, the CHRT
identified specific biological and physical features essential for the
conservation of the Hawaiian IFKW DPS, to include the following:
(1) Island-associated marine habitat for MHI insular false killer
whales.
MHI IFKWs are an island-associated population of false killer
whales that relies entirely on the productive submerged habitats of the
main Hawaiian Islands to support all of their life-history stages.
Adapted to an island-associated foraging strategy and ecology, these
whales are generally found in deeper waters just offshore, moving
primarily throughout and among the shelf and slope habitat on both the
windward and leeward sides of all the islands. These areas offer a wide
range of depths for IFKWs to travel, forage, and move freely around and
between the main Hawaiian Islands.
(2) Prey species of sufficient quantity, quality, and availability
to support individual growth, reproduction, and development, as well as
overall population growth.
MHI IFKWs are top predators that feed on a variety of large pelagic
fish as well as squid. Within waters surrounding the main Hawaiian
Islands, habitat conditions that support the successful growth,
recruitment, and nutritional quality of prey are necessary to support
the individual growth, reproduction, and development of MHI IFKWs.
(3) Waters free of pollutants of a type and amount harmful to MHI
insular false killer whales.
Water quality plays an important role as a feature that supports
the MHI IFKW's ability to forage and reproduce free from disease and
impairment. Biomagnification of some pollutants can adversely affect
health in these top marine predators, causing immune suppression,
decreased reproduction, or other impairments. Water pollution and
changes in water temperatures may also increase pathogens, naturally
occurring toxins, or parasites in surrounding waters. Environmental
exposure to these toxins may adversely affect their health or ability
to reproduce.
(4) Habitat free of anthropogenic noise that would significantly
impair the value of the habitat for false killer whales' use or
occupancy.
False killer whales rely on their ability to produce and receive
sound within their environment to navigate, communicate, and detect
predators and prey. Anthropogenic noise of a certain level, intensity,
and duration can alter these whales' ability to detect, interpret, and
utilize acoustic cues that support important life history functions, or
can result in long-term habitat avoidance or abandonment. Long-term
changes to habitat use or occupancy can reduce the benefits that the
animals receive from that environment (e.g., opportunities to forage or
reproduce), thereby reducing the value that habitat provides for
conservation. Habitats that support conservation of MHI insular false
killer whales allow these whales to employ sound within their
environment to support important life history functions.
NMFS has coordinated with numerous federal agencies on this
essential feature. As a result, NMFS is seeking additional relevant
information to assist us in evaluating whether it is appropriate to
include ``habitat free of anthropogenic noise that would significantly
impair the value of the habitat for false killer whales' use or
occupancy'' as a feature essential to the conservation of MHI IFKWs in
the final rule and, if so, what scientific data are available that
would assist action agencies and NMFS in determining noise levels that
result in adverse modification or destruction, such as by inhibiting
communication or foraging activities, or causing the abandonment of
critical habitat areas (see Public Comments Solicited). If we determine
that a noise essential feature is not appropriate, we will update the
economic analysis and any other relevant documents accordingly.
Geographical Area Occupied by the Species
One of the first steps in the critical habitat revision process was
to define the geographical area occupied by the species at the time of
listing and to identify specific areas, within this geographically
occupied area, that contain at least one of the essential features that
may require special management considerations or protection. As noted
earlier, the best available information indicates that the range of
this DPS is smaller than identified at the time of listing (77 FR
70915, November 28, 2012; Bradford et al., 2015). After reviewing
available information, the CHRT noted, and we agree, that the range
proposed by Bradford et al. (2015), and recognized in the 2015 NMFS
Stock Assessment Report, provides the best available information to
describe the areas occupied by this DPS, because this range includes
all locations tagged animals have visited in Hawaii's surrounding
waters and accommodates for uncertainty in the data (see Range above).
Therefore, the area occupied by the DPS is the current range shown in
Figure 1 and identified in the 2015 SAR, which includes 188,262 km\2\
(72,688 mi\2\) of marine habitat surrounding the MHI (Carretta et al.,
2016).
To be eligible for designation as critical habitat under the ESA's
definition of occupied areas, each specific area must contain at least
one essential feature that may require special management
considerations or protection. To meet this standard, the CHRT concluded
that false killer whale tracking data would provide the best available
information to identify habitat use patterns by these whales and to
recognize where the physical and
[[Page 51193]]
biological features essential to their conservation exist. Cascadia
Research Collective provided access to MHI IFKW tracking data for the
purposes of identifying critical habitat for this DPS. Due to the
unique ecology of this island-associated population, habitat use is
largely driven by depth. Thus, the features essential to the species'
conservation are found in those depths that allow the whales to travel
throughout a majority of their range seeking food and opportunities to
socialize and reproduce.
One area has been identified as including the essential features
for the MHI IFKW DPS; this area ranges from the 45-m depth contour to
the 3200-m depth contour in waters that surround the main Hawaiian
Islands from Niihau east to the Island of Hawaii (see the draft
Biological Report for additional detail). As noted above, MHI IFKWs are
generally found in deeper areas just offshore, rather than shallow
nearshore areas (Baird et al., 2010). MHI IFKW locations were used to
identify a nearshore depth at which habitat use by MHI IFKWs may be
more consistent. Specifically, at depths less than 45 m MHI IFKW
locations are infrequent (less than 2 percent of locations are captured
at these depths), and there does not appear to be a spatial pattern
associated with these shallower depth locations (i.e., locations were
not clumped in specific areas). The frequency of MHI IFKW locations
increases at depths greater than 45 m and appears to demonstrate more
consistent use of marine habitat beyond this depth. The 45-m depth
contour was selected to delineate the inshore extent of areas that
would include the essential features for MHI IFKWs based on these
patterns in the IFKW data.
An outer boundary of the 3200-m depth contour was selected to
incorporate those areas of island-associated habitat where MHI IFKWs
are known to spend a larger proportion of their time, and to include
island-associated habitat that allows for movement between and around
each island. This full range of depths--from the 45-m to the 3200-m
depth contours--incorporates a majority of the tracking locations of
MHI IFKW and includes those island-associated habitats and features
essential to the MHI IFKWS DPS. This area under consideration for
critical habitat includes 56,821 km\2\ (21,933 mi\2\) or 30 percent of
the MHI IFKW DPS' range.
Need for Special Management Considerations or Protection
Joint NMFS and USFWS regulations at 50 CFR 424.02 define special
management considerations or protection to mean methods or procedures
useful in protecting physical and biological features essential to the
conservation of listed species.
Several activities were identified that may threaten the physical
and biological features essential to conservation such that special
management considerations or protection may be required, based on
information from the MHI IFKW Recovery Outline, Status Review for this
DPS, and discussions from the Main Hawaiian Islands Insular False
Killer Whale Recovery Planning Workshop (Oleson et al., 2010, NMFS
2016). Major categories of activities include: (1) In-water
construction (including dredging); (2) energy development (including
renewable energy projects); (3) activities that affect water quality;
(4) aquaculture/mariculture; (5) fisheries; (6) environmental
restoration and response activities (including responses to oil spills
and vessel groundings, and marine debris clean-up activities); and (7)
some military activities. All of these activities may have an effect on
one or more of the essential features by altering the quantity, quality
or availability of the features that support MHI IFKW critical habitat.
This is not an exhaustive or complete list of potential effects; rather
it is a description of the primary concerns and potential effects that
we are aware of at this time and that should be considered in
accordance with section 7 of the ESA when Federal agencies authorize,
fund, or carry out these activities. The draft Biological Report (NMFS
2017a) and draft Economic Analysis Report (Cardno 2017) provide a more
detailed description of the potential effects of each category of
activities and threats on the essential features. For example,
activities such as in-water construction, energy projects, aquaculture
projects, and some military activities may have impacts on one or more
of the essential features.
Unoccupied Critical Habitat 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 the Secretary determines ``that such areas
are essential for the conservation of the species.'' There is
insufficient evidence at this time to indicate that areas outside the
present range are essential for the conservation of this DPS;
therefore, no unoccupied areas were identified for designation.
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
Section 4(a)(3)(B) of the ESA prohibits designating as critical
habitat any lands or other geographical areas owned or controlled by
DOD, or designated for its use, that are subject to an INRMP prepared
under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such a plan provides a benefit to the
species for which critical habitat is proposed for designation.
Regulations at 50 CFR 424.12(h) provide that in determining whether
an applicable benefit is provided by a ``compliant or operational''
plan, we will consider:
(1) The extent of the area and features present;
(2) The type and frequency of use of the area by the species;
(3) The relevant elements of the INRMP in terms of management
objectives, activities covered, and best management practices, and the
certainty that the relevant elements will be implemented; and
(4) The degree to which the relevant elements of the INRMP will
protect the habitat from the types of effects that would be addressed
through a destruction-or-adverse-modification analysis.
In May 2017, we requested information from the DOD to assist in our
analysis. Specifically, we asked for a list of facilities that occur
within the potential critical habitat areas and available INRMPs for
those facilities. The U.S. Navy stated that areas subject to the Joint
Base Pearl Harbor Hickam (JBPHH) INRMP overlap with the areas under
consideration for MHI IFKW critical habitat; no other INRMPs were
identified as overlapping with the potential designation. The JBPHH
INRMP provided by the Navy was signed in 2012. The Naval Defensive Sea
Area (NDSA) and the Ewa Training Minefield are subject to the JBPHH
INRMP and overlap approximately 23 km\2\ (~9 mi\2\) and 4 km\2\ (~1.5
mi\2\), respectively, with the areas under consideration for MHI IFKW
critical habitat. Satellite-tracking information indicates that these
areas are low-use or (low-density) areas for MHI IFKWs (Baird et al.,
2012). This INRMP was drafted prior to the ESA listing of the MHI IFKW
and it currently does not incorporate conservation measures that are
specific to MHI IFKWs. This plan is compliant through the end of 2017
and the Navy will review and update the JBPHH INRMP starting in 2018,
which will include additional information about how on-going
conservation
[[Page 51194]]
measures at JBPHH support MHI IFKWs and their habitat.
In the response to NMFS' request for information about this INRMP,
the Navy outlined several elements of the 2012 INRMP and ongoing
conservation measures that may benefit the MHI IFKW and their habitat,
including: Fishing restrictions adjacent to and within areas that
overlap the potential designation; creel surveys that provide
information about fisheries in unrestricted areas of Pearl Harbor;
restrictions on free roaming cats and dogs in residential areas; feral
animal removal; participation in the Toxoplasmosis and At-large Cat
Technical working group (which focuses on providing technical
information to support policy decisions to address the effects of
toxoplasmosis on protected wildlife and provides education and outreach
materials on the impacts that free-roaming cats have on Hawaii's
environment); efforts taken to prevent and reduce the spread of
biotoxins and contaminants from Navy lands (including best management
practices, monitoring for contamination, restoration of sediments, and
spill prevention); a Stormwater Management Plan and a Stormwater
Pollution Control Plan associated with their National Pollutant
Discharge Elimination System (NPDES); and coastal wetland habitat
restoration projects.
Although the JBPHH INRMP does not specifically address the MHI
IFKW, we agree that several of the above measures support the
protection of the IFKW and the physical and biological features
identified for this designation. Specifically, the Navy's efforts
focused on preventing the spread of toxoplasmosis, biotoxins, and other
contaminants to the marine environment provide protections for MHI IFKW
water quality and address threats to this feature; these threats are
identified in our draft Biological Report (NMFS 2017a). Further,
efforts to support coastal wetland habitat restoration provide
protections for MHI IFKW water quality and provide ancillary benefits
to MHI IFKW prey, which also rely on these marine ecosystems.
Additionally, fishery restrictions in the NDSA and Ewa Training
Minefield provide protections to MHI IFKW prey within the limited
overlap areas. Some of the protections associated with the management
of stormwater and pollution address effects that would otherwise be
addressed through an adverse modification analysis. Other protections,
associated with the spread of toxoplasmosis to the marine environment
or that enhance prey, address effects to MHI IFKW habitat that
otherwise may not be subject to a section 7 consultation or an adverse
modification analysis because the activities that create these
stressors are not funded, carried out, or authorized by a Federal
agency. In these instances, the Navy's INRMP provides protections
aligned with 7(a)(1) of the ESA, which instructs Federal agencies to
aid in the conservation of listed species.
After consideration of the above factors, we have determined that
the Navy's JBPHH INRMP provides a benefit to the MHI IFKW and its
habitat. In accordance with 4(a)(3)(B)(i) of the ESA, the Ewa Training
Minefield, and the Naval Defense Sea Area, both found south of Oahu,
are not eligible for designation of MHI IFKW critical habitat.
Application of ESA Section 4(b)(2)
Section 4(b)(2) of the ESA requires the Secretary to consider the
economic, national security, and any other relevant impacts of
designating any particular area as critical habitat. Any particular
area may be excluded from critical habitat if the Secretary determines
that the benefits of excluding the area outweigh the benefits of
designating the area. The Secretary may not exclude a particular area
from designation if exclusion will result in the extinction of the
species. Because the authority to exclude is discretionary, exclusion
is not required for any areas. In this proposed designation, the
Secretary has applied statutory discretion to exclude 10 occupied areas
from critical habitat where the benefits of exclusion outweigh the
benefits of designation for the reasons set forth below.
In preparation for the ESA section 4(b)(2) analysis we identified
the ``particular areas'' to be analyzed. The ``particular areas''
considered for exclusion are defined based on the impacts that were
identified. We considered economic impacts and weighed the economic
benefits of exclusion against the conservation benefits of designation
for two particular areas where economic impacts were identified as
being potentially much higher than the costs of administrative efforts
and where impacts were geographically concentrated. We also considered
exclusions based on impacts on national security. Delineating
particular areas based on impacts on national security was based on
land ownership or control (e.g., land controlled by the DOD within
which national security impacts may exist) or on areas identified by
DOD as supporting particular military activities. We request
information on other relevant impacts that should be considered (see
``Public Comments Solicited''). For each particular area we identified
the impacts of designation (i.e., the costs of designation). These
impacts of designation are equivalent to the benefits of exclusion. We
also consider the benefits achieved from designation or the
conservation benefits that may result from a critical habitat
designation in that area. We then weigh the benefits of designation
against the benefits of exclusion to identify areas where the benefits
of exclusion outweigh the benefits of designation. These steps and the
resulting list of areas proposed for exclusion from designation are
described in detail in the sections below.
Impacts of Designation
The primary impact of a critical habitat designation stems from the
requirement under section 7(a)(2) of the ESA that Federal agencies
ensure that 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 also ensure their actions are
not likely to jeopardize the species' continued existence. One
incremental impact of the 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 the listing and the
jeopardy requirement. When the same modification would be required due
to impacts to both the species and critical habitat, the impact of the
designation is considered co-extensive with the ESA listing of the
species (i.e., attributable to both the listing of the species and the
designation of critical habitat). Additional impacts of designation
include State and local protections that may be triggered as a result
of the designation, and the benefits from educating the public about
the importance of each area for species conservation. Thus, the impacts
of the designation include conservation impacts for MHI IFKWs and its
habitat, economic impacts, impacts on national security and other
relevant impacts that may result from the designation and the
application of ESA section 7(a)(2).
In determining the impacts of designation, we focused on the
incremental change in Federal agency actions as a result of critical
habitat designation and the adverse modification provision, beyond the
[[Page 51195]]
changes predicted to occur as a result of listing and the jeopardy
provision. Following a line of recent court decisions (including
Arizona Cattle Growers Association v. Salazar, 606 F. 3d 1160 (9th Cir.
2010), cert. denied, 562 U.S. 1216 (2011 (Arizona Cattle Growers); and
Home Builders Association of Northern California et al., v. U.S. Fish
and Wildlife Service, 616 F.3d 983 (9th Cir. 2010), cert. denied, 562
U.S. 1217 (2011) (Home Builders)), economic impacts that occur
regardless of the critical habitat designation are treated as part of
the regulatory baseline and are not factored into the analysis of the
effects of the critical habitat designation. In other words, we focus
on the potential incremental impacts beyond the impacts that would
result from the listing and jeopardy provision. In some instances,
potential impacts from the critical habitat designation could not be
distinguished from protections that may already occur under the
baseline (i.e., protections already afforded MHI IFKWs under its
listing or under other Federal, state, and local regulations). For
example, the project modifications needed to prevent destruction or
adverse modification of critical habitat may be similar to the project
modifications necessary to prevent jeopardy to the species in an area.
The extent to which these modifications differ may be project specific,
and the incremental changes or impacts to the project may be difficult
to tease apart without further project specificity.
Once we determined the impacts of the designation, we then
determined the benefits of designation and the benefits of exclusion
based on the impacts of the designation. The benefits of designation
include the conservation impacts for MHI IFKWs and their habitat that
result from the critical habitat designation and the application of ESA
section 7(a)(2). The benefits of exclusion include avoidance of the
economic, national security, and other relevant impacts (e.g., impacts
on conservation plans) of the designation if a particular area were to
be excluded from the critical habitat designation. The following
sections describe how we determined the benefits of designation and the
benefits of exclusion, and how those benefits were considered, as
required under section 4(b)(2) of the ESA, to identify particular areas
that may be eligible for exclusion from the designation. We also
summarize the results of our weighing process and determinations of the
areas that may be eligible for exclusion (for additional information
see the Draft ESA Section 4(b)(2) Report (NMFS 2017b)).
Benefits of Designation
The primary benefit of designation is the protection afforded under
section 7(a)(2) of the ESA, requiring all Federal agencies to ensure
their actions are not likely to destroy or adversely modify designated
critical habitat. This is in addition to the requirement that all
Federal agencies ensure their actions are not likely to jeopardize the
continued existence of the species. Section 7(a)(1) of the ESA also
requires all Federal agencies to use their authorities in furtherance
of the purposes of the ESA by carrying out programs for the
conservation of endangered and threatened species. Another benefit of
critical habitat designation is that it provides specific notice of the
features essential to the conservation of the MHI IFKW DPS and where
those features occur. This information will focus future consultations
and other conservation efforts on the key habitat attributes that
support conservation of this DPS. There may also be enhanced awareness
by Federal agencies and the general public of activities that might
affect those essential features. Accordingly, identification of these
features may improve discussions with action agencies regarding
relevant habitat considerations of proposed projects.
In addition to the protections described above, Chapter 12 of the
draft Economic Report (Cardno 2017) discusses other forms of indirect
benefits that may be attributed to the designation, including but not
limited to, use benefits, and non-use or passive use benefits (Cardno
2017). Use benefits include positive changes that protections
associated with the designation may provide for resource users, such as
increased fishery resources, sustained or enhanced aesthetic appeal in
ocean areas, or sustained wildlife-viewing opportunities. Non-use or
passive benefits include those independent of resource use, where
conservation of MHI IFKW habitat aligns with beliefs or values held by
particular entities (e.g., existence, bequest, and cultural values)
(Cardno 2017). More information about these types of values may be
found in Chapter 12 of the draft Economic Report (Cardno 2017).
Most of these benefits are not directly comparable to the costs of
designation for purposes of conducting the section 4(b)(2) analysis
described below. Ideally, benefits and costs should be compared on
equal terms (e.g., apples to apples); however, there is insufficient
information regarding the extent of the benefits and the associated
values to monetize all of these benefits. We have not identified any
available data to monetize the benefits of designation (e.g., estimates
of the monetary value of the essential features within areas designated
as critical habitat, or of the monetary value of education and outreach
benefits). Further, section 4(b)(2) also requires that we consider and
weigh impacts other than economic impacts that may be intangible and do
not lend themselves to quantification in monetary terms, such as the
benefits to national security of excluding areas from critical habitat.
Given the lack of information that would allow us either to quantify or
monetize the benefits of the designation for MHI IFKWs discussed above,
we determined that conservation benefits should be considered from a
qualitative standpoint. In determining the benefits of designation, we
considered a number of factors. We took into account MHI IFKW use of
the habitat, the existing baseline protections that may protect that
habitat regardless of designation, and how essential features may be
affected by activities that occur in these areas if critical habitat
were not designated. These factors combined provided an understanding
of the importance of protecting the habitat for the overall
conservation of the DPS.
Generally, we relied on density analysis of satellite-tracking data
to provide information about MHI IFKW habitat use. Cascadia Research
Collective supplied these data (using the methods previously outlined
in Baird et al., 2012) to support NMFS' critical habitat designation.
The data included information from 27 tagged individuals (18 from
Cluster 1, 1 from Cluster 2, 7 from Cluster 3, and 1 from Cluster 4)
(Baird pers. communication June 2017). For maps of these areas see the
Draft ESA Section 4(b)(2) Report (NMFS 2017b). High-use areas denote
areas where satellite-tracking information indicates MHI IFKWs spend
more time. Due to the increased time spent in these areas, we inferred
that these high-use areas have a higher conservation value than low-use
areas of the range. As noted in the draft Biological Report (NMFS
2017a), there is limited representation among social clusters in the
tracking data, and information received does not span the full calendar
year. Therefore, this data set may not be fully representative of MHI
IFKWs' habitat use. Where available, we included additional information
that may supplement our understanding of MHI IFKW habitat use patterns
(e.g.,
[[Page 51196]]
patterns of MHI IFKW habitat use from observational studies).
Generally, we describe high-use areas as indicating areas of higher
conservation value where greater foraging and/or reproductive
opportunities are believed to exist. However, all areas support the
essential features and meet the definition of critical habitat for this
DPS. Within a restricted range, low-use areas continue to offer
essential features and may provide unique opportunities for foraging as
oceanic conditions vary seasonally or temporally.
Economic Impacts of Designation
Economic costs of the designation accrue primarily through
implementation of section 7 of the ESA in consultations with Federal
agencies to ensure their proposed actions are not likely to destroy or
adversely modify critical habitat. The draft Economic Report (Cardno
2017) considered the Federal activities that may be subject to a
section 7 consultation and the range of potential changes that may be
required for each of these activities under the adverse modification
provision. Where possible, the analysis focused on changes beyond those
impacts that may result from the listing of the species or that are
established within the environmental baseline. However, the report
acknowledges that some existing protections to prevent jeopardy to MHI
IFKWs are likely to overlap with those protections that may be put in
place to prevent adverse modification (Cardno 2017). The project
modification impacts represent the benefits of excluding each
particular area (that is, the impacts that would be avoided if an area
were excluded from the designation).
The draft Economic Report (Cardno 2017) estimates the impacts based
on activities that are considered reasonably foreseeable, which include
activities that are currently authorized, permitted, or funded by a
Federal agency, or for which proposed plans are currently available to
the public. These activities align with those identified under the Need
for Special Management Considerations and Protection section (above).
Projections were evaluated for the next 10-year period. The analysis
relied upon NMFS' records of section 7 consultations to estimate the
average number of projects that were likely to occur within the
specific area (i.e., projections were also based on past numbers of
consultations) and to determine the level of consultation (formal,
informal) that would be necessary based on the described activity.
The draft Economic Report (Cardno 2017) identifies the total
estimated present value of the quantified incremental impacts of this
designation to be between approximately 196,000 to 213,000 dollars over
the next 10 years; on an annualized undiscounted basis, the impacts are
equivalent to 19,600 to 21,300 dollars per year. These impacts include
only additional administrative efforts to consider critical habitat in
section 7 consultations for the section 7 activities identified under
the Need for Special Management Considerations or Protection section of
this rule. However, private energy developers may also bear some of the
administrative costs of consultation for large energy projects;
annually these costs are estimated between 0 and 300 dollars
undiscounted and are expected to involve three consultation projects
over the next 10 years. Across the MHI, economic impacts are expected
to be small and largely associated with the administrative costs borne
by Federal agencies, but may include low administrative costs to non-
federal entities as well.
Both the draft Biological Report and the draft Economic Report
recognize that some of the future impacts of the designation are
difficult to predict (NMFS 2017a, Cardno 2017). Although considered
unlikely, NMFS cannot rule out future modifications for federally
managed fisheries and activities that contribute to water quality (NMFS
2017a). For federally managed fisheries, modifications were not
predicted based on current management of the fisheries. However, we
noted that future revised management measures could result as more
information is gained about MHI IFKW foraging ecology, or as we gain a
better understanding of the relative importance of certain prey species
to the health and recovery of a larger MHI IFKW population. Similarly,
modifications to water quality standards were not predicted as a result
of this designation; however, future modifications were not ruled out
because future management measures may be necessary as more information
is gained about how pollutants affect MHI IFKW critical habitat. The
draft Economic Report discusses this qualitatively, but does not
provide quantified costs associated with any uncertain future
modifications (Cardno 2017).
In summary, economic impacts from the designation are largely
attributed to the administrative costs of consultations. Generally, the
quantified economic impacts for this designation are relatively low
because in Hawaii most projects that would require section 7
consultation occur onshore or nearshore and would not overlap with the
designation. Projects with a Federal nexus (i.e., funded, authorized,
or carried out by a Federal agency) that occur in deeper waters are
already subject to consultation under section 7 to ensure that
activities are not likely to jeopardize MHI IFKWs, and throughout the
specific area, activities of concern are already subject to multiple
environmental laws, regulations, and permits that afford the essential
features a high level of baseline protection. Despite these
protections, significant uncertainty remains regarding the true extent
of the impacts that some activities like fishing and activities
affecting water quality may have on the essential features, and
economic impacts of the designation may not be fully realized. Because
the economic impacts of these activities are largely speculative, we
lack sufficient information with which to balance them against the
benefits of designation.
The draft Economic Report (Cardno 2017) found that costs attributed
with this designation are largely administrative in nature and that a
majority of those costs are borne by Federal agencies, with only a
small cost of consultation (approximately 0 to 3,000 dollars over the
next 10 years) borne by non-Federal entities. These impacts are
expected to occur as a result of three potential offshore wind-energy
projects in the Bureau of Ocean Energy Management's Call Area offshore
the island of Oahu (which includes two sites, one off Kaena point and
one off the south shore) (81 FR 41335; June 24, 2016). The area
overlaps with approximately 1,961 km\2\ (757 mi\2\), or approximately
3.5 percent of the areas under consideration for designation. Density
analysis of satellite-tracking information indicates that these sites
are not high-use areas for MHI IFKWs. As noted above, the baseline
protections are strong, and energy projects are likely to undergo
formal section 7 consultation to ensure that the activities are not
likely to jeopardize MHI IFKWs, along with other protected species
(Cardno 2017).
Although economic costs of this designation are considered low,
NMFS also considers the potential intangible costs of designation in
light of Executive Order 13795, Implementing an America-First Offshore
Energy Strategy, which sets forth the nation's policy for encouraging
environmentally responsible energy exploration and production,
including on the Outer Continental Shelf, to maintain the Nation's
position as a global energy leader and foster energy security. In
[[Page 51197]]
particular, both Hawaii's State Energy Office and the Bureau of Ocean
Energy Management expressed concerns that the designation may
discourage companies from investing in offshore energy projects in
areas that are identified as critical habitat and noted that the costs
of lost opportunities to meet Hawaii's renewable energy goals could be
significant (Cardno 2017). Because Oahu has the greatest energy needs
among the Main Hawaiian Islands and has limited areas available for
this type of development, and receiving energy via interconnection
between islands is technologically difficult, these wind projects off
Oahu are considered necessary to meet the State of Hawaii's renewable
energy goals of 100 percent renewable energy by 2045 (Cardno 2017).
Although large in-water construction projects are an activity of
concern for this DPS, we anticipate that consultations required to
ensure that activities are not likely to jeopardize the MHI IFKWs will
achieve substantially the same conservation benefits for this DPS.
Specifically, we anticipate that conservation measures implemented as a
result of consultation to address impacts to the species will also
provide incidental protections to habitat features. Additionally,
Federal activities that may result in destruction or adverse
modification are not expected in these areas if developed for wind
energy projects. Given the significance of this offshore area in
supporting renewable energy goals for the State of Hawaii and the goals
of Executive Order 13795, the low administrative costs of this
designation, and the low-use of this area by MHI IKFWs, we find that
the benefits of exclusion of this identified area outweigh the benefits
of designation. Based on our best scientific judgment, and
acknowledging the relatively small size of this area (approximately 3.5
percent of the overall designation), and other safeguards that are in
place (e.g., protections already afforded MHI IFKWs under its listing
and other regulatory mechanisms), we conclude that exclusion of this
area will not result in the extinction of the species.
Our exclusion analysis is based on the current BOEM Call Area as
published in 81 FR 41335 (June 24, 2016). However, NMFS is aware that
the Navy has conducted an offshore wind energy mission compatibility
assessment of the waters surrounding Oahu to support BOEM and the State
of Hawaii in identifying areas that will support wind energy
development and be compatible with the Navy mission requirements. At
this time, NMFS cannot reliably predict what Call Area boundary
revisions may be made as a result of this assessment or continuing
consultations between the Navy and BOEM. Accordingly, while our
proposed designation is based on the current Call Area, NMFS will
reevaluate this 4(b)(2) analysis prior to publishing a final
designation, taking into account any planned boundary changes in the
Call Area.
National Security Impacts
The national security benefits of exclusion are the national
security impacts that would be avoided by excluding particular areas
from the designation. We contacted representatives of DOD and the
Department of Homeland Security to request information on potential
national security impacts that may result from the designation of
particular areas as critical habitat for the MHI IFKW DPS. In response
to the request, the Navy and U.S. Coast Guard each submitted a request
that all areas be excluded from critical habitat out of concerns
associated with activities that introduce noise to the marine
environment. Although we considered the request for exclusion of all
areas proposed for critical habitat (see Table 1), we also separately
considered particular areas identified by the Navy because these areas
support specific military activities. The Coast Guard did not provide
specific explanations with regard to particular areas. The Air Force
provided a request for exclusion that included the waters leading to
and the offshore ranges of the Pacific Missile Range Facility (PMRF).
As the PMRF offshore ranges were also highlighted as important to Navy
activities, we included considerations associated with the Air Force's
request for exclusion for the PMRF ranges with the Navy's information,
due to the similarities between the activities and impacts identified
for these areas (e.g., both requests in this area were associated with
training and testing activities). We separately considered the waters
leading to the range for exclusion because activities differ from those
planned for the PMRF ranges and DOD does not exert control over these
areas. Although not specifically requested for exclusion, the Navy
highlighted the Puuloa Underwater Detonation Range in the materials
they provided; this area was not considered for exclusion because it
does not overlap with the areas under consideration for critical
habitat. We considered a total of 13 sites for exclusion, and we
propose 8 of those sites for exclusion; the results of the impacts vs.
benefits for the 13 sites are summarized in Table 1 (below).
As in the analysis of economic impacts, we weighed the benefits of
exclusion (i.e., the impacts to national security that would be
avoided) against the benefits of designation. The Navy and Air Force
provided information regarding the activities that take place in each
area, and they assessed the potential for a critical habitat
designation to adversely affect their ability to conduct operations,
tests, training, and other essential military activities. The possible
impacts to national security summarized by both groups included
restraints and constraints on military operations, training, research
and development, and preparedness vital for combat operations for
around the world.
The primary benefit of exclusion is that the DOD would not be
required to consult with NMFS under section 7 of the ESA regarding DOD
actions that may affect critical habitat, and thus potential delays or
costs associated with conservation measures for critical habitat would
be avoided. For each particular area, national security impacts were
weighed considering the intensity of use of the area by DOD and how
activities in that area may affect the features essential to the
conservation of MHI IFKWs. Where additional consultation requirements
are likely due to critical habitat at a site, we considered how the
consultation may change the DOD activities, and how unique the DOD
activities are at the site.
Benefits to the conservation of MHI IFKWs depend on whether
designation of critical habitat at a site leads to additional
conservation of the DPS above what is already provided by being listed
as endangered under the ESA in the first place. We weighed the
potential for additional conservation by considering several factors
that provide an understanding of the importance of protecting the
habitat for the overall conservation of the DPS including: MHI IFKW use
of the habitat, the existing baseline protections that may protect that
habitat regardless of designation, and the likelihood of other Federal
(non-DOD) actions being proposed within the site that would be subject
to section 7 consultation associated with critical habitat. Throughout
the weighing process the overall size of the area considered for
exclusion was considered, along with our overall understanding of
importance of protecting that area for conservation purposes.
As discussed in the Benefits of Designation section (above), the
benefits of designation may not be directly comparable to the benefits
of exclusion for purposes of conducting the section
[[Page 51198]]
4(b)(2) analysis, because neither may be fully quantified. The Draft
ESA Section 4(b)(2) Report (NMFS 2017b) provides our qualitative
comparison of the national security impacts to the conservation
benefits in order to determine which is greater. If we found that
national security impacts outweigh conservation benefits, the site is
excluded from the proposed critical habitat. If conservation benefits
outweigh national security impacts, the site is not excluded from the
proposed critical habitat. The decision to exclude any sites from a
designation of critical habitat is always at the discretion of NMFS.
Table 1 (below) outlines the determinations made for each particular
area identified and the factors that weighed significantly in that
process.
Table 1--Summary of the Assessment of Particular Areas for Exclusion for the DOD and U.S. Coast Guard Based on
Impacts on National Security
----------------------------------------------------------------------------------------------------------------
Size of particular
area; approximate
DOD Site; Agency percent of the total Exclusion proposed? Significant weighing
area under factors
consideration
----------------------------------------------------------------------------------------------------------------
(1) Entire Area Under Consideration 56,821 km\2\ (21,933 No.................. This area includes the
for Designation; Navy and Coast mi\2\); 100%. entire designation and all
Guard. benefits from MHI IFKW
critical habitat would be
lost. Impacts from delays
and possible major
modifications to
consultation are
outweighed by benefits of
protecting the entire
area, which includes both
high and low-use MHI IFKW
habitat, from future DOD
and non-DOD Federal
actions.
(2) PMRF Offshore Areas; Navy and 843 km2 (~325 mi2); Yes................. This area overlaps a
Air Force. 1.5%. relatively small area of
low-use MHI IFKW habitat.
This area is unique for
DOD and provides specific
opportunities important
for DOD training and
testing. The impacts from
delays and possible major
modifications to
consultation outweigh
benefits of protecting low-
use habitat where future
non-DOD Federal actions
are considered unlikely.
(3) Waters on-route to PMRF from the 1,077 km2 (~416 mi2); No.................. This area overlaps a
Port Allen Harbor; Air Force. 2%. relatively small area of
low-use MHI IFKW habitat
that is not owned or
controlled by DOD. It is
possible that non-DOD
Federal actions could be
proposed within the site
that may affect the
essential features.
Impacts from DOD section 7
consultations are expected
to be minor. Thus, short
delays for minor
modifications to
consultation are
outweighed by benefits of
protecting this habitat
from future DOD and non-
DOD Federal actions.
(4) Kingfisher Range; Navy.......... 14 km2 (~6 mi2); 0.03%. Yes................. This area overlaps a small
area of low-use MHI IFKW
habitat. This area is
unique for DOD and
provides specific
opportunities for DOD
training. Impacts from
short delays from minor
modifications to
consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
(5) Warning Area 188; Navy.......... 2,674 km2 (~1,032 mi2); Yes................. This area overlaps a medium
5%. area of low-use MHI IFKW
habitat. DOD maintains
control over portions of
the nearshore area, and
uses deeper waters for
important training
activities. Impacts from
delays and possible major
modifications to
consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
(6) Kaula and Warning Area W-187; 266 km2 (~103 mi2); Yes................. This area overlaps a small
Navy. 0.5%. area of low-use MHI IFKW
habitat. This area is
unique for DOD and
provides specific
opportunities for DOD
training. Impacts from
short delays from expected
informal consultation
outweigh benefits of
protecting low-use habitat
where future non-DoD
Federal actions are
considered unlikely.
(7) Warning Area 189, HELO Quickdraw 2,886 km2 (~1,114 mi2); No.................. This area overlaps a medium
Box and Oahu Danger Zone; Navy. 5%. area of low-use MHI IFKW
habitat and a small high-
use area for MHI IFKWs.
The DOD does not maintain
full control over these
waters. Impacts from
delays and possible
modifications to
consultation are
outweighed by benefits of
protecting both high and
low-use MHI IFKW habitat,
from future DOD and non-
DOD Federal actions.
(8) Fleet Operational Readiness 74 km2 (~29 mi2); 0.1%. Yes................. This area overlaps a small
Accuracy Check Site Range (FORACS); area of low-use MHI IFKW
Navy. habitat. This area is
unique for DOD and
provides specific
opportunities for DOD
testing to maintain
equipment accuracy.
Impacts from delays and
possible modifications to
consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
(9) Shipboard Electronic Systems 74 km\2\ (~29 mi\2\); Yes................. This area overlaps a small
Evaluation Facility Range (SESEF); 0.1%. area of low-use MHI IFKW
Navy. habitat. This area is
unique for DOD and
provides specific
opportunities for DOD
testing to maintain
equipment accuracy.
Impacts from delays and
possible modifications to
consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
[[Page 51199]]
(10) Warning Areas 196 and 191; Navy 728 km2 (~281 mi2); 1%. Yes................. This area overlaps a
relatively small area of
low-use MHI IFKW habitat
that is used by DOD.
Impacts from short delays
and possible modifications
to consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
(11) Warning Areas 193 and 194; Navy 458 km2 (~177 mi2); 1%. Yes................. This area overlaps a
relatively small area of
low-use MHI IFKW habitat
that is used by DOD.
Impacts from short delays
and possible modifications
to consultation outweigh
benefits of protecting low-
use habitat where future
non-DoD Federal actions
are considered unlikely.
(12) Four Islands Region (Maui, 15,389 km2 (~5,940 No.................. This area includes a
Lanai, Molokai Kahoolawe); Navy. mi2); 27%. relatively large area of
both high and low-use MHI
IKFW habitat that is not
owned or controlled by
DOD. Impacts from delays
and possible major
modifications to
consultation are
outweighed by benefits of
protecting the entire
area, which includes both
high and low-use MHI IFKW
habitat, from future DOD
and non-DOD Federal
actions.
(13) Hawaii Island; Navy............ 16,931 km2 (~6,535 No.................. This area includes a
mi2); 30%. relatively large area of
both high and low-use MHI
IKFW habitat that is not
owned or fully controlled
by DOD. Impacts from
delays and possible major
modifications to
consultation are
outweighed by benefits of
protecting the entire
area, which includes both
high and low-use MHI IFKW
habitat, from future DOD
and non-DOD Federal
actions.
----------------------------------------------------------------------------------------------------------------
In coordination with DOD, the Navy requested review of six
additional areas for exclusion due to national security impacts (see
Figure 2). These additional areas are subsets of a larger area that the
Navy initially requested for exclusion (see Table I, Site 1), but which
NMFS determined should not be excluded under 4(b)(2). These areas
include (1) the Kaulakahi Channel portion of Warning area 186, as it
abuts PMRF offshore areas; (2) the area to the north and east of Oahu
including a small portion of Warning Area 189 and the Helo Quickdraw
Box; (3) the area to the south of Oahu; (4) the Kaiwi Channel; (5) the
area north and offshore of the Molokai-associated MHI IFKW high use
area; and (6) the Alenuihaha Channel. In order to meet our publishing
deadline for the proposed designation, NMFS will reconsider its
decision as it pertains to these individual areas consistent with the
weighing factors used in the draft 4(b)(2) Report (NMFS 2017b), and
provide exclusion determinations for these requests in the final rule.
BILLING CODE 3510-22-P
[[Page 51200]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.001
BILLING CODE 3510-22-C
Other Relevant Impacts of the Designation
Finally, under ESA section 4(b)(2) we consider any other relevant
impacts of critical habitat designation to inform our decision as to
whether to exclude any areas. For example, we may consider potential
adverse effects on existing management plans or conservation plans that
benefit listed species, and we may consider potential adverse effects
on tribal lands or trust resources. In preparing this proposed
designation, we have not identified any such management or conservation
plans, tribal lands or resources, or anything else that would be
adversely affected by the proposed critical habitat designation.
Accordingly, subject to further consideration based on public comment,
we do not exercise our discretionary authority to exclude any areas
based on other relevant impacts.
Proposed Critical Habitat Designation
This rule proposes to designate approximately 49,701 km\2\ (19,184
mi\2\) of marine habitat surrounding the main Hawaiian Islands within
the geographical area presently occupied by the MHI IFKW. This critical
habitat area contains physical or biological features essential to the
conservation of the DPS that may require special management
considerations or protection. We have not identified any unoccupied
areas that are essential to conservation of the MHI IFKW DPS and are
not proposing any such areas for designation as critical habitat. This
rule proposes to exclude from the designation the following areas: (1)
The Bureau of Ocean Energy Management's Call Area offshore of the
Island of Oahu (which includes two sites, one off Kaena point and one
off the south shore), (2) the Pacific Missile Range Facilities Offshore
ranges (including the Shallow Water Training Range (SWTR), the Barking
Sands Tactical Underwater Range (BARSTUR), and the Barking Sands
Underwater Range Extension (BSURE), (3) the Kingfisher Range, (4)
Warning Area 188, (5) Kaula and Warning Area 187, (6) the Fleet
Operational Readiness Accuracy Check Site (FORACS) Range, (7) the
Shipboard Electronic Systems Evaluation Facility (SESEF), (8) Warning
Areas 196 and 191, and (9) Warning Areas 193 and 194. Based on our best
scientific knowledge and expertise, we conclude that the exclusion of
these areas will not result in the extinction of the DPS, and will not
impede the conservation of the DPS. In addition, the Ewa Training
Minefield and the Naval Defensive Sea Area are precluded from
designation under section 4(a)(3) of the ESA because they are managed
under the Joint Base Pearl Harbor-Hickam Integrated Natural Resource
Management Plan that we find provides a benefit to the Main Hawaiian
Islands insular false killer whale.
Effects of Critical Habitat Designations
Section 7(a)(2) of the ESA requires Federal agencies, including
NMFS, to ensure that any action authorized, funded or carried out by
the agency (agency action) is not likely to jeopardize the continued
existence of any threatened or endangered species or destroy or
adversely modify designated critical habitat. When a species is listed
or critical habitat is designated, Federal agencies must consult with
NMFS on any agency action to be conducted in an area where the species
is present and that may affect the species or its critical habitat.
During the consultation, NMFS evaluates the agency action to determine
whether the action may adversely affect listed species or critical
habitat and
[[Page 51201]]
issues its finding in a biological opinion. If NMFS concludes in the
biological opinion that the agency action would likely result in the
destruction or adverse modification of critical habitat, NMFS would
also recommend any reasonable and prudent alternatives to the action.
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as
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 re-initiation of
consultation or conference with NMFS on actions for which formal
consultation has been completed, if those actions may affect designated
critical habitat. Activities subject to the ESA section 7 consultation
process include activities on Federal lands, as well as activities
requiring a permit or other authorization from a Federal agency (e.g.,
a section 10(a)(1)(B) permit from NMFS), or some other Federal action,
including funding (e.g., Federal Highway Administration (FHA) or
Federal Emergency Management Agency (FEMA) funding). ESA section 7
consultation would not be required for Federal actions that do not
affect listed species or critical habitat, and would not be required
for actions on non-Federal and private lands that are not carried out,
funded, or authorized by a Federal agency.
Activities That May Be Affected
ESA section 4(b)(8) requires, to the maximum extent practicable, in
any proposed 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 MHI IFKW critical
habitat and may be subject to the ESA section 7 consultation processes
when carried out, funded, or authorized by a Federal agency. The
activities most likely to be affected by this critical habitat
designation once finalized are: (1) In-water construction (including
dredging); (2) energy development (including renewable energy
projects); (3) activities that affect water quality; (4) aquaculture/
mariculture; (5) fisheries; (6) environmental restoration and response
activities (including responses to oil spills and vessel groundings,
and marine debris clean-up activities); and (7) some military
activities. Private entities may also be affected by this critical
habitat designation if a Federal permit is required, Federal funding is
received, or the entity is involved in or receives benefits from a
Federal project. These activities would need to be evaluated with
respect to their potential to destroy or adversely modify critical
habitat. Changes to the actions to minimize or avoid destruction or
adverse modification of designated critical habitat may result in
changes to some activities. Please see the draft Economic Analysis
Report (Cardno 2017) for more details and examples of changes that may
need to occur in order for activities to minimize or avoid destruction
or adverse modification of designated critical habitat. Questions
regarding whether specific activities would constitute destruction or
adverse modification of critical habitat should be directed to NMFS
(see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Public Comments Solicited
We request that interested persons submit comments, information,
and suggestions concerning this proposed rule during the comment period
(see DATES). To ensure the final action resulting from this proposal
will be as accurate and effective as possible, we solicit comments and
suggestions from the public, other concerned governments and agencies,
the scientific community, industry or any other interested party
concerning this proposed rule. Specifically, public comments are sought
concerning: (1) Whether it is appropriate to include ``habitat free of
anthropogenic noise that would significantly impair the value of the
habitat for false killer whales' use or occupancy'' as a feature
essential to the conservation of MHI IFKWs in the final rule and, if
so, what scientific data are available that would assist us in
determining noise levels that result in adverse modification or
destruction, such as by inhibiting communication or foraging
activities, or causing the abandonment of critical habitat; (2)
information regarding potential impacts of designating any particular
area, including the types of Federal activities that may trigger an ESA
section 7 consultation and the possible modifications that may be
required of those activities as a result of section 7 consultation; (3)
information regarding the benefits of excluding particular areas from
the critical habitat designation; (4) current or planned activities in
the areas proposed for designation and their possible impacts on
proposed critical habitat; (5) additional information regarding the
threats associated with global climate change and known impacts to MHI
IFKW critical habitat and/or MHI IFKW essential features; and (6) any
foreseeable economic, national security, tribal, or other relevant
impacts resulting from the proposed designations. With regard to these
described impacts, we request that the following information be
provided to inform our ESA section 4(b)(2) analysis: (1) A map and
description of the affected area (e.g., location, latitude and
longitude coordinates to define the boundaries, and the extent into
waterways); (2) a description of activities that may be affected within
the area; (3) a description of past, ongoing, or future conservation
measures conducted within the area that may protect MHI IFKW habitat;
and (4) a point of contact.
We encourage comments on this proposal. You may submit your
comments and materials by any one of several methods (see ADDRESSES).
The proposed rule, maps, references and other materials relating to
this proposal can be found on our Web site at http://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing and on the Federal
eRulemaking Portal at http://www.regulations.gov, or can be made
available upon request. We will consider all comments and information
received during the comment period for this proposed rule in preparing
the final rule.
Please be aware that all comments received are a part of the public
record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.) submitted voluntarily by the
sender will be publicly accessible. Do not submit confidential business
information or otherwise sensitive or protected information. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous).
[[Page 51202]]
References Cited
A complete list of all references cited in this proposed rule can
be found on our Web site at: http://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing or at
www.regulations.gov, and is available upon request from the NMFS office
in Honolulu, Hawaii (see ADDRESSES).
Classification
Takings
Under E.O. 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 that substantially affect its value or use. In accordance with
E.O. 12630, this proposed rule does not have significant takings
implications. The designation of critical habitat for the MHI IFKW DPS
is fully described within the offshore marine environment and is not
expected to affect the use or value of private property interests.
Therefore, a takings implication assessment is not required.
Executive Orders 12866 and 13771
OMB has determined that this proposed rule is significant for
purposes of Executive Order 12866 review. Economic and Regulatory
Impact Review Analyses and 4(b)(2) analyses as set forth and referenced
herein have been prepared to support the exclusion process under
section 4(b)(2) of the ESA. To review these documents see ADDRESSES
section above.
We have estimated the costs for this proposed rule. Economic
impacts associated with this rule stem from the ESA's requirement that
Federal agencies ensure any action authorized, funded, or carried out
will not likely jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. In practice, this requires Federal agencies to
consult with NMFS whenever they propose an action that may affect a
listed species or its designated critical habitat, and then to modify
any action that could jeopardize the species or adversely affect
critical habitat. Thus, there are two main categories of costs:
administrative costs associated with completing consultations, and
project modification costs. Costs associated with the ESA's requirement
to avoid jeopardizing the continued existence of a listed species are
not attributable to this rule, as that requirement exists in the
absence of the critical habitat designation.
The draft Economic Report (Cardno 2017) identifies the total
estimated present value of the quantified impacts above current
consultation effort to be between approximately 192,000 to 208,000
dollars over the next 10 years; on an annualized undiscounted basis,
the impacts are equivalent to 19,200 to 20,800 dollars per year. These
total impacts include the additional administrative efforts necessary
to consider critical habitat in section 7 consultations. Across the
MHI, economic impacts are expected to be small and largely associated
with the administrative costs borne by Federal agencies. However,
private energy developers may also bear the administrative costs of
consultation for large energy projects. These costs are estimated
between 0 and 3,000 dollars over the next 10 years. While there are
expected beneficial economic impacts of designating critical habitat,
there are insufficient data available to monetize those impacts (see
Benefits of Designation section).
This proposed rule is not expected to be subject to the
requirements of E.O. 13771 because this proposed rule is expected to
result in no more than de minimis costs.
Executive Order 13132, Federalism
The Executive Order on Federalism, Executive Order 13132, requires
agencies to take into account any federalism impacts of regulations
under development. It includes specific consultation directives for
situations in which a regulation may preempt state law or impose
substantial direct compliance costs on state and local governments
(unless required by statute). Pursuant to E.O. 13132, we determined
that this proposed rule does not have significant federalism effects
and that a federalism assessment is not required. However, in keeping
with Department of Commerce policies and consistent with ESA
regulations at 50 CFR 242.16(c)(1)(ii), we will request information for
this proposed rule from the state of Hawaii's Department of Land and
Natural Resources. The proposed designation may have some benefit to
state and local resource agencies in that the proposed rule more
clearly defines the physical and biological features essential to the
conservation of the species and the areas on which those features are
found.
Energy Supply, Distribution, and Use (Executive Order 13211)
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects when undertaking a ``significant energy action.''
According to Executive Order 13211, ``significant energy action'' means
any action by an agency that is expected to lead to the promulgation of
a final rule or regulation that is a significant regulatory action
under Executive Order 12866 and 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 (see section 13.2 of the draft Economic
Report; Cardno 2017). In summary, it is unlikely for the oil and gas
industry to experience a ``significant adverse effect'' due to this
designation, as Hawaii does not produce petroleum or natural gas, and
refineries are not expected to be impacted by this designation.
Offshore energy projects may affect the essential features of critical
habitat for the MHI IFKW DPS. However, foreseeable impacts are limited
to two areas off Oahu where prospective wind energy projects are under
consideration (see Economic Impacts of Designation section). Impacts to
the electricity industry would likely be limited to potential delays in
project development, costs to monitor noise, and possibly additional
administrative costs of consultation. The potential critical habitat
area is not expected to impact the current electricity production
levels in Hawaii. Further, it appears that the designation will have
little or no effect on electrical energy production decisions (other
than the location of the future project), subsequent electricity
supply, or the cost of future energy production. The designation is
unlikely to impact the industry by greater than the 1 billion kWh per
year or 500 MW of capacity provided as guidance in the executive order.
It is therefore unlikely for the electricity production industry to
experience a significant adverse effect due to the MHI IFKW critical
habitat designation.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must 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. An initial
regulatory flexibility analysis (IRFA) has been prepared, which is
included as Chapter 13 to the draft Economic Report (Cardno 2017). This
document is available upon request (see ADDRESSES),
[[Page 51203]]
via our Web site at http://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing or via the Federal
eRulemaking Web site at www.regulations.gov.
A statement of need for and objectives of this proposed rule is
provided earlier in the preamble and is not repeated here. This
proposed rule will not impose any recordkeeping or reporting
requirements.
We identified the impacts to small businesses by considering the
seven activities most likely impacted by the designation: (1) In-water
construction (including dredging); (2) energy development (including
renewable energy projects); (3) activities that affect water quality;
(4) aquaculture/mariculture; (5) fisheries; (6) environmental
restoration and response activities (including responses to oil spills
and vessel groundings, and marine debris clean-up activities); and (7)
some military activities. As discussed in the Economic Impacts of
Designation section of this proposed rule and the draft Economic
Report, the only entities identified as bearing economic impacts (above
administrative costs) by the potential critical habitat designation are
two developers of offshore wind energy projects; however, these
entities exceed the criterion established by SBA for small businesses
(Cardno 2017). Although considered unlikely (NMFS 2017a), there remains
a small, unquantifiable possibility that Federally-managed longline
boats (i.e., deep-set or shallow-set fisheries) could be subject to
additional conservation and management measures. At this time, however,
NMFS has no information to suggest that additional measures are
reasonably necessary to protect prey species. Chapter 13 of the draft
Economic Report provides a description and estimate of the number of
these entities that fit the criterion that could be impacted by the
designation if future management measures were identified (Cardno
2017). Due to the inherent uncertainty involved in predicting possible
economic impacts that could result from future consultations, we
acknowledge that other unidentified impacts may occur, and we invite
public comment on those impacts.
In accordance with the requirements of the RFA, this analysis
considered alternatives to the critical habitat designation for the MHI
IFKW that would achieve the goals of designating critical habitat
without unduly burdening small entities. The alternative of not
designating critical habitat for the MHI IFKW was considered and
rejected because such an approach does not meet our statutory
requirements under the ESA. We also considered and rejected the
alternative of designating as critical habitat all areas that contain
at least one identified essential feature (i.e., no areas excluded),
because the alternative does not allow the agency to take into account
circumstances where the benefits of exclusion for economic, national
security, and other relevant impacts outweigh the benefits of critical
habitat designation. Finally, through the ESA 4(b)(2) consideration
process we also identified and selected an alternative that may lessen
the impacts of the overall designation for certain entities, including
small entities. Under this alternative, we considered excluding
particular areas within the designated specific area based on economic
and national security impacts. This selected alternative may help to
reduce the indirect impact to small businesses that are economically
involved with military activities or other activities that undergo
section 7 consultation in these areas. However, as the costs resulting
from critical habitat designation are primarily administrative and are
borne mostly by the Federal agencies involved in consultation, there is
insufficient information to monetize the costs and benefits of these
exclusions at this time. We did not consider other economic or relevant
exclusions from critical habitat designation because our analyses
identified only low-cost administrative impacts to Federal entities in
other areas not proposed for exclusion. In summary, the primary benefit
of this designation is to ensure that Federal agencies consult with
NMFS whenever they take, fund, or authorize any action that might
adversely affect MHI IFKW critical habitat. Costs associated with
critical habitat are primarily administrative costs borne by the
Federal agency taking the action. Our analysis has not identified any
economic impacts to small businesses based on this designation and
current information does not suggest that small businesses will be
disproportionately affected by this designation (Cardno 2017). We
solicit additional information regarding the impacts to small
businesses that may result from this proposed designation, and we will
consider any additional information received in developing our final
determination to designate or exclude areas from critical habitat
designation for the MHI IFKW.
During a formal Section 7 consultation under the ESA, NMFS, the
action agency, and the third party applying for Federal funding or
permitting (if applicable) communicate in an effort to minimize
potential adverse effects to the species and to the proposed critical
habitat. Communication between these parties may occur via written
letters, phone calls, in-person meetings, or any combination of these.
The duration and complexity of these communications depend on a number
of variables, including the type of consultation, the species, the
activity of concern, and the potential effects to the species and
designated critical habitat associated with the activity that has been
proposed. The third-party costs associated with these consultations
include the administrative costs, such as the costs of time spent in
meetings, preparing letters, and the development of research, including
biological studies and engineering reports. There are no small
businesses directly regulated by this action and there are no
additional costs to small businesses as a result of Section 7
consultations to consider.
Coastal Zone Management Act
Under section 307(c)(1)(A) of the Coastal Zone Management Act
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each
Federal activity within or outside the coastal zone that has reasonably
foreseeable effects on any land or water use or natural resource of the
coastal zone shall be carried out in a manner which is consistent to
the maximum extent practicable with the enforceable policies of
approved State coastal management programs. We have determined that
this proposed designation of critical habitat for the MHI IFKW DPS is
consistent to the maximum extent practicable with the enforceable
policies of the approved Coastal Zone Management Program of Hawaii.
This determination has been submitted to the Hawaii Coastal Zone
Management Program for review.
Paperwork Reduction Act
The purpose of the Paperwork Reduction Act is to minimize the
paperwork burden for individuals, small businesses, educational and
nonprofit institutions, and other persons resulting from the collection
of information by or for the Federal government. This proposed rule
does not contain any new or revised collection of information. This
rule, if adopted, would not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
[[Page 51204]]
(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.''
The designation of critical habitat does not impose an enforceable duty
on non-Federal government entities or private parties. The only
regulatory effect of a critical habitat designation is that Federal
agencies must ensure that their actions are not likely to destroy or
adversely modify critical habitat under ESA section 7. Non-Federal
entities that receive funding, assistance, or permits from Federal
agencies or otherwise require approval or authorization from a Federal
agency for an action may be indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program;
however, 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 prohibition against take of the MHI IFKW both within
and outside of the designated areas, 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.
Consultation and Coordination With Indian Tribal Governments
The longstanding and distinctive relationship between the Federal
and tribal governments is defined by treaties, statutes, executive
orders, judicial decisions, and agreements, which differentiate tribal
governments from the other entities that deal with, or are affected by,
the Federal government. This relationship has given rise to a special
Federal trust responsibility involving the legal responsibilities and
obligations of the United States towards Indian tribes and the
application of fiduciary standards of due care with respect to Indian
lands, tribal trust resources, and the exercise of tribal rights.
Executive Order 13175, entitled ``Consultation and Coordination with
Indian Tribal Governments,'' outlines the responsibilities of the
Federal government in matters affecting tribal interests. ``Federally
recognized tribe'' means an Indian or Alaska Native tribe or community
that is acknowledged as an Indian tribe under the Federally Recognized
Indian Tribe List Act of 1994 (25 U.S.C. 479a). In the list published
annually by the Secretary, there are no federally recognized tribes in
the State of Hawaii (74 FR 40218; August 11, 2009). Although Native
Hawaiian lands are not tribal lands for purposes of the requirements of
the President's Memorandum or the Department Manual, recent Department
of Interior regulations (43 CFR 50) set forth a process for
establishing formal government-to-government relationship with the
Native Hawaiian Community. Moreover, we recognize that Native Hawaiian
organizations have the potential to be impacted by Federal regulations
and as such, consideration of these impacts may be evaluated as other
relevant impacts from the designation. At this time, we are not aware
of anticipated impacts resultant from the designation; however, we seek
comments regarding areas of overlap that may warrant exclusion from
critical habitat designation. We also seek information from affected
Native Hawaiian organizations concerning other Native Hawaiian
activities that may be affected.
Information Quality Act (IQA)
Pursuant to the Information Quality Act (section 515 of Pub. L.
106-554), this information product has undergone a pre-dissemination
review by NMFS. The signed Pre-dissemination Review and Documentation
Form is on file with the NMFS Pacific Islands Regional Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects
50 CFR Part 224
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: October 31, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 224 and 226
are proposed to be amended as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. In Sec. 224.101, amend the table in paragraph (h) by adding a new
citation under the critical habitat column, for the ``Whale, false
killer (Main Hawaiian Islands Insular DPS) under the ``Marine Mammals''
sub heading, to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) The endangered species under the jurisdiction of the Secretary
of Commerce are:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species \1\
------------------------------------------------------------------------------------------------- Citation(s) for listing Critical ESA rules
Common name Scientific name Description of listed entity determination(s) habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, false killer (Main Hawaiian Pseudorca crassidens..... False killer whales found 77 FR 70915, Nov. 28, Sec. NA
Islands Insular DPS). from nearshore of the main 2012. 226.226
Hawaiian Islands out to 140
km (approximately 75
nautical miles) and that
permanently reside within
this geographic range.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
[[Page 51205]]
* * * * *
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Add Sec. 226.226, to read as follows:
Sec. 226.226 Critical habitat for the main Hawaiian Islands insular
false killer whale (Pseudorca crassidens) Distinct Population Segment.
Critical habitat is designated for main Hawaiian Islands insular
false killer whale as described in this section. The maps, clarified by
the textual descriptions in this section, are the definitive source for
determining the critical habitat boundaries.
(a) Critical habitat boundaries. Critical habitat is designated in
the waters surrounding the main Hawaiian Islands from the 45-m depth
contour out to the 3,200-m depth contour as depicted in the maps below.
(b) Essential Features. The essential features for the conservation
of the main Hawaiian Islands insular false killer whale are:
(1) Island-associated marine habitat for main Hawaiian Islands
insular false killer whales.
(2) Prey species of sufficient quantity, quality, and availability
to support individual growth, reproduction, and development, as well as
overall population growth.
(3) Waters free of pollutants of a type and amount harmful to main
Hawaiian Islands insular false killer whales.
(4) Habitat free of anthropogenic noise that would significantly
impair the value of the habitat for false killer whales' use or
occupancy.
(c) Areas not included in critical habitat. Critical habitat does
not include the following particular areas where they overlap with the
areas described in paragraph (a) of this section:
(1) Pursuant to ESA section 4(b)(2) the following areas have been
excluded from the designation: The Bureau of Ocean Energy Management's
Call Area offshore of the Island of Oahu (which includes two sites, one
off of Kaena point and one off the south shore--see BOEM Lease Areas in
maps); the Pacific Missile Range Facilities Offshore ranges (including
the Shallow Water Training Range, the Barking Sands Tactical Underwater
Range, and the Barking Sands Underwater Range Extension); the
Kingfisher Range; Warning Area 188; Kaula and Warning Area 187; Fleet
Operational Readiness Accuracy Check Site Range; the Shipboard
Electronic Systems Evaluation Facility; Warning Areas 196 and 191; and
Warning Areas 193 and 194.
(2) Pursuant to ESA section 4(a)(3)(B) all areas subject to the
Joint Base Pearl Harbor-Hickam Integrated Natural Resource Management
Plan.
(d) Maps of main Hawaiian Islands insular false killer whale
critical habitat.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TP03NO17.002
[[Page 51206]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.003
[[Page 51207]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.004
[[Page 51208]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.005
[[Page 51209]]
[GRAPHIC] [TIFF OMITTED] TP03NO17.006
[FR Doc. 2017-23978 Filed 11-2-17; 8:45 am]
BILLING CODE 3510-22-C