[Federal Register Volume 79, Number 80 (Friday, April 25, 2014)]
[Proposed Rules]
[Pages 22933-22935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09483]



National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 140407321-4321-01]
RIN 0648-XD233

Listing Endangered or Threatened Species: 90-Day Finding on a 
Petition To Revise the Critical Habitat Designation for the Southern 
Resident Killer Whale

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

ACTION: 90-day petition finding; request for information.


SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
90-day finding on a petition from the Center for Biological Diversity 
to revise the critical habitat designation for the Southern Resident 
killer whale (Orcinus orca) Distinct Population Segment (DPS) under the 
Endangered Species Act (ESA). In November 2006 we issued a final rule 
designating approximately 2,560 square miles (6,630 square km) of 
inland waters of Washington State as critical habitat for the Southern 
Resident killer whale DPS. The petition requests we revise this 
critical habitat to include inhabited Pacific Ocean marine waters along 
the West Coast of the United States that constitute essential foraging 
and wintering areas. Additionally, the petition requests that we adopt 
protective in-water sound levels as a primary constituent element for 
both currently designated critical habitat and the proposed revised 
critical habitat. We find that the petition to revise critical habitat, 
viewed in the context of information readily available in our files, 
presents substantial scientific information indicating the petitioned 
action may be warranted. We are hereby initiating a review of the 
currently designated critical habitat to determine whether revision is 
warranted. To ensure a comprehensive review, we are soliciting 
scientific and commercial information pertaining to this action.

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by June 24, 2014.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by the code NOAA-NMFS-2014-0041, by any of the 
following methods: Electronic Submissions: Submit all electronic 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Mail or hand-delivery: NMFS, West Coast Region, Protected Resources 
Division, 7600 Sand Point Way NE., Seattle, WA 98115. Attention--Lynne 
Barre, Seattle Branch Chief.
    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), although submitting comments anonymously will prevent us 
from contacting you if we have difficulty retrieving your submission. 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only.
    Copies of the petition and the list of references are available 
online at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/esa_status.html.

(206) 526-4745; or Dwayne Meadows, NMFS Office of Protected Resources, 
(301) 427-8403.



    On January 21, 2014, we received a petition from the Center for 
Biological Diversity requesting revision to the critical habitat 
designation for the Southern Resident killer whale DPS.
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
The specific areas within the geographical area currently occupied by 
the species, at the time it is listed . . . on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed upon 
a determination by the Secretary that such areas are essential for the 
conservation of the species.''

[[Page 22934]]

    Joint NMFS-Fish and Wildlife Service (FWS) regulations for 
designating critical habitat at 50 CFR 424.12(b) state that the 
agencies ``shall consider those physical and biological features that 
are essential to the conservation of a given species and that may 
require special management considerations or protection'' (hereafter 
also referred to as ``Essential Features'' or ``Primary Constituent 
Elements'' (PCEs). Pursuant to these regulations, such features 
include: Space for individual and population growth, and normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historic geographical and 
ecological distribution of a species. We are required to focus on the 
PCEs that best represent the principal biological or physical features 
of the habitat. PCEs may include: Nesting grounds, feeding sites, water 
quality, tide, and geological formation. Our implementing regulations 
(50 CFR 424.02) define ``special management considerations or 
protection'' as any method or procedure useful in protecting physical 
and biological features of the environment for the conservation of the 
    Section 4(b)(2) of the ESA requires us to designate and make 
revisions to critical habitat for listed species based on 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. 
The Secretary of Commerce may exclude any particular area from critical 
habitat if she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines that the failure to designate such area as 
critical habitat will result in the extinction of the species 
    The ESA provides that NMFS may, from time-to-time, revise critical 
habitat as appropriate (section 4(a)(3)(A)(ii)). In accordance with 
section 4(b)(3)(D)(i) of the ESA, to the maximum extent practicable, 
within 90 days of receipt of a petition to revise critical habitat, the 
Secretary of Commerce is required to make a finding as to whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register.
    ESA implementing regulations issued jointly by NMFS and FWS (50 CFR 
424.14(b)) define ``substantial information'' as the amount of 
information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted. In evaluating 
whether substantial information is contained in a petition to revise 
critical habitat, the Secretary must consider whether the petition 
contains: (1) ``Information indicating that areas petitioned to be 
added to critical habitat contain physical or biological features 
essential to, and that may require special management to provide for, 
the conservation of the species involved''; or (2) ``information 
indicating that areas designated as critical habitat do not contain 
resources essential to, or do not require special management to provide 
for, the conservation of the species involved.''
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action may be 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that the petitioned action is warranted (See Center for Biological 
Diversity v. Kempthorne, 2007 WL 163244, at *4, *7 (N.D. Cal. Jan. 19, 
2007)). At the 90-day stage, we evaluate the petitioner's request based 
upon the information in the petition, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us evaluate the petition. We will accept the 
petitioner's sources and characterizations of the information 
presented, if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude that it supports the petitioner's assertions. If 
we find that a petition presents substantial information indicating 
that the revision may be warranted, within 12 months after receiving 
the petition, we are required to determine how we intend to proceed 
with the requested revision and promptly publish notice of such 
intention in the Federal Register (Section 4(b)(3)(D)(ii) of the ESA). 
Because the finding at the 12-month stage is based on a more thorough 
review of the available information, a ``may be warranted'' finding at 
the 90-day stage does not prejudge the outcome of our review.

Current Critical Habitat Designation

    Following the ESA listing of the Southern Resident killer whale DPS 
(70 FR 69903; November 18, 2005), we initiated our effort to designate 
critical habitat for the Southern Resident killer whale DPS and 
finalized the designation in 2006 (71 FR 69054, November 29, 2006). 
Based on the natural history of the Southern Resident killer whales and 
their habitat needs, the physical or biological features necessary for 
conservation were identified as: (1) Water quality to support growth 
and development; (2) prey species of sufficient quantity, quality and 
availability to support individual growth, reproduction and 
development, as well as overall population growth; and (3) passage 
conditions to allow for migration, resting, and foraging. At that time, 
we noted that there were few data on Southern Resident killer whale 
distribution and habitat use of the coastal and offshore areas in the 
Pacific Ocean. Although we recognized that the whales occupy these 
waters for a portion of the year and considered them part of the 
geographical area occupied by the species, we declined to designate 
these areas as critical habitat because we found that the data 
informing whale distribution, behavior and habitat use was insufficient 
to define ``specific areas'' based upon defined physical and biological 
features (See Coastal and Offshore Areas section; 71 FR 69054; November 
29, 2006). The final critical habitat designation identified three 
specific areas, within the area occupied, that contained the essential 
features listed above. The three specific areas designated as critical 
habitat were (1) the Summer Core Area in Haro Strait and waters around 
the San Juan Islands; (2) Puget Sound; and (3) the Strait of Juan de 
Fuca, which in total comprise approximately 2,560 square miles (6,630 
sq km) of marine habitat. We determined that the economic benefits of 
exclusion of any of the areas did not outweigh the benefits of 
designation, and we therefore did not exclude any areas based on 
economic impacts. We considered the impacts to national security, and 
concluded the benefits of exclusion of 18 military sites, comprising 
approximately 112 square miles (291 sq km), outweighed the benefits of 
inclusion, because of national security impacts, and therefore, the 
sites were not included in the

[[Page 22935]]

designation. The critical habitat designation included waters deeper 
than 20 feet (6.1 m) relative to the extreme high water tidal datum. 
Although we did not include coastal and offshore areas based on the 
limited information on coastal habitat use and essential features in 
the offshore areas of the whales' range, we acknowledged that there was 
an active research program in place to gather information about 
movements and activities and noted that as we collected new information 
we hoped to fill data gaps about habitat features in the Pacific Ocean 
coastal and offshore areas to inform future considerations of critical 

Analysis of Petition

    As described above, the standard for determining whether a petition 
includes substantial information is whether the amount of information 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted. Based on the information presented and 
referenced in the petition, as well as all other information readily 
available in our files, we find the recent information on the whales' 
movements through their offshore habitat and discussion of sound as a 
feature of habitat meet this standard. The petition lists recent 
sources of information on the whales' habitat use along the West Coast 
of the United States, particularly from NMFS' Northwest Fisheries 
Science Center (NWFSC) programs. The petition also reviews natural 
history and threats to the whales. The Center for Biological Diversity 
proposes that the critical habitat designation be revised to include 
the Pacific Ocean region between Cape Flattery, WA and Point Reyes, CA, 
extending approximately 47 miles (76 km) offshore. The petition 
identifies that each of the three PCEs identified in the 2006 critical 
habitat designation (see Current Critical Habitat Section above) are 
also essential features in the whales' Pacific Ocean habitat. In 
addition, the petition asks us to adopt a fourth PCE for both existing 
and proposed critical habitat providing for in-water sound levels that: 
``(1) Do not exceed thresholds that inhibit communication or foraging 
activities, (2) do not result in temporary or permanent hearing loss to 
whales, and (3) do not result in abandonment of critical habitat 
    As described in the critical habitat designation in November 2006, 
we have been directly engaged in research activities to fill data gaps 
about coastal habitat use. Collecting information to better understand 
coastal distribution was also identified as a top priority in 
developing a Research Plan and Recovery Plan for Southern Resident 
killer whales (NMFS, 2008). In 2011, NMFS completed a 5-year review of 
the status Southern Resident DPS under the ESA (NMFS, 2011). In the 5-
year review, one of the recommendations for future actions was to 
increase knowledge of coastal distribution, habitat use and prey 
consumption to inform critical habitat designation. As identified in 
the petition, the NWFSC and our partners have used several techniques 
to collect information on coastal distribution and behavior, including 
land-based sightings, passive acoustic monitoring, coastal research 
cruises, and satellite tag studies. While data from these studies are 
available in our files and have begun to address data deficiencies 
identified in the 2006 critical habitat designation, there is 
considerable data analysis still needed to refine our understanding of 
the whales' habitat use and needs. While we have been actively working 
to gather and analyze data on coastal habitat use, we have not yet had 
sufficient information to propose revisions to critical habitat as 
requested in the petition. Additional data and analyses will contribute 
to identification of habitat features and areas in the Pacific Ocean 
that contain these features. In the petition, the Center for Biological 
Diversity recognized that NMFS is continuing to analyze data describing 
the Southern Residents' use of coastal and offshore waters and 
requested we refine the proposed revisions, as necessary, to include 
additional inhabited zones or to focus specifically on areas of 
concentrated use.
    Additional information since the 2006 critical habitat designation 
is also provided in the petition regarding effects of anthropogenic 
sound on marine mammals. The petition references new information on 
killer whale responses to vessel noise (Erbe et al., 2012; Holt, 2008; 
Holt et al., 2009, Williams et al., 2009; Williams et al., 2014), as 
well as a review of the acoustic quality of habitats for whale 
populations, including killer whales (Williams et al., 2013). This 
information may be relevant to consideration of sound as a new 
essential feature.

Petition Finding

    Based on the information presented and referenced in the petition, 
as well as all other information readily available in our files, and 
pursuant to the criteria specified in 50 CFR 424.14(c), we find the 
recent information on the whales' movements through their offshore 
habitat and discussion of sound as a feature of habitat present 
substantial information indicating that revision of critical habitat 
may be warranted.

Information Solicited

    To ensure that our review of Southern Resident killer whale 
critical habitat is complete and based on the best available scientific 
and commercial information, we are soliciting new information from the 
public, governmental agencies, tribes, the scientific community, 
industry, environmental entities, and any other interested parties 
concerning: (1) The essential habitat needs and use of the whales, (2) 
the West Coast area proposed in the petition for inclusion, (3) the 
physical and biological features essential to the conservation of 
Southern Residents and that may require special management 
considerations or protection, (4) information regarding potential 
benefits or impacts of designating any particular area, including 
information on the types of Federal actions that may affect the area's 
physical and biological features, and (5) current or planned activities 
in the areas the petition requests to be added as critical habitat and 
costs of potential modifications to those activities due to critical 
habitat designation.
    We request that all data and information be accompanied by 
supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address (see ADDRESSES).

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/esa_status.html.


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 21, 2014.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2014-09483 Filed 4-24-14; 8:45 am]