[Federal Register Volume 84, Number 182 (Thursday, September 19, 2019)]
[Proposed Rules]
[Pages 49214-49235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20166]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 190829-0020]
RIN 0648-BH95


Endangered and Threatened Wildlife and Plants; Proposed 
Rulemaking To Revise Critical Habitat for the Southern Resident Killer 
Whale Distinct Population Segment

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
revise the critical habitat designation for the Southern Resident 
killer whale (Orcinus orca) distinct population segment (DPS) under the 
Endangered Species Act (ESA) by designating six new areas along the 
U.S. West Coast. Specific new areas proposed along the U.S. West Coast 
include 15,626.6 square miles (mi\2\) (40,472.7 square kilometers 
(km\2\)) of marine waters between the 6.1-meter (m) (20 feet (ft)) 
depth contour and the 200-m (656.2 ft) depth contour from the U.S. 
international border with Canada south to Point Sur, California. We 
solicit comments from the public on all aspects of the proposal, 
including information on the economic, national security, and other 
relevant impacts of the proposed revision to the critical habitat 
designation.

DATES: Comments on this proposed rule and supporting documents must be 
received by December 18, 2019. Any scheduled public hearings will be 
announced in a separate notice. Requests for additional public hearings 
must be made in writing by November 4, 2019.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2014-0041, and on the supporting documents, by either of the 
following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking 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: Submit written comments to Seattle Branch Chief, Protected 
Resources Division, West Coast Region, National Marine Fisheries 
Service, 7600 Sand Point Way NE, Building 1, Seattle, WA 98115, Attn: 
SRKW 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. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    The draft Biological Report, draft Economic Report, draft ESA 
Section 4(b)(2) Report, and complete list of all references cited in 
this proposed rule are available on our website 
www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html and at the Federal e-Rulemaking 
Portal www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2014-0041.

FOR FURTHER INFORMATION CONTACT: Nancy Young, NMFS West Coast Region, 
(206) 526-6550; or Lisa Manning, NMFS Office of Protected Resources, 
(301) 427-8466.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS listed the Southern Resident killer whale DPS as endangered 
under the ESA in 2005 (70 FR 69903; November 18, 2005). In 2006, NMFS 
designated critical habitat for the Southern Resident killer whale DPS 
in inland waters of Washington State (71 FR 69054; November 29, 2006). 
The designated critical habitat consists of three areas: (1) The Summer 
Core Area in Haro Strait and waters around the San Juan Islands, (2) 
Puget Sound Area, and (3) the Strait of Juan de Fuca Area. Together, 
these areas comprise approximately 2,560 mi\2\ (6,630 km\2\ of marine 
habitat.
    The final rule designating critical habitat identified three 
habitat features essential to the conservation of the DPS: (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.
    On January 21, 2014, we received a petition from the Center for 
Biological Diversity (CBD) requesting revisions to the critical habitat 
designation for the Southern Resident killer whale DPS. The CBD 
requested we revise critical habitat to include ``inhabited marine 
waters along the West Coast of the United States that constitute 
essential foraging and wintering areas,'' specifically the region 
between Cape Flattery, Washington and Point Reyes, California extending 
from the coast to a distance of 76 km (47.2 mi) offshore. In addition, 
the CBD requested we adopt a fourth essential habitat feature in both 
current and expanded 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 the abandonment of 
critical habitat areas.''
    On April 25, 2014, we announced in our 90-day finding that the 
petition presented substantial scientific information indicating that a 
revision to the current critical habitat designation may be warranted 
and requested public comments (79 FR 22933). Due to new information 
available regarding habitat use by Southern Resident killer whales, a 
revision to critical habitat was warranted, and we announced our 
intention to proceed toward a proposed rule in the 12 month finding (80 
FR 9682; February 24, 2015). The 12-month finding listed the following 
steps to develop a proposed rule for public comment: (1) Complete data 
collection and analysis to refine our understanding of the whales' 
habitat use and needs; (2) identify areas meeting the definition of 
critical habitat; and (3) conduct economic, national security, and 
other required analyses to inform consideration of areas for exclusion 
under section 4(b)(2) of the ESA.
    The CBD filed a complaint in August 2018 with the U. S. District 
Court for the Western District of Washington at Seattle seeking an 
order from the Court establishing deadlines for NMFS to issue proposed 
and final rules to revise the Southern Resident killer whale critical 
habitat designation. A court-approved settlement agreement was filed on 
April 17, 2019, (Center for Biological Diversity v. National Marine 
Fisheries Service, 2:18-cv-01201-RSM (W.D. Wash.)). The settlement 
agreement stipulates that NMFS must submit the proposed rule to the 
Office of the Federal Register by September 6, 2019.

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    This proposed rule describes our proposed revision to the Southern 
Resident killer whale critical habitat designation, including 
supporting information on Southern Resident killer whale biology, 
distribution, and habitat use, and the methods used to develop the 
proposed revision to the designation.

Southern Resident Killer Whale Natural History and Ecology

    The Southern Resident killer whale DPS was listed as endangered 
under the ESA in 2005 (70 FR 69903; November 18, 2005). A Recovery Plan 
was completed in 2008 and provides detailed information on the life 
history, biology, and threats to the whales and identifies actions 
needed to recover the DPS (NMFS 2008). The limiting factors described 
in the recovery plan include reduced prey availability and quality, 
high levels of contaminants from pollution, and disturbance from 
vessels and other sources of anthropogenic sound (e.g., dredging, 
drilling, construction, seismic testing, sonar). There is considerable 
uncertainty about which threats may be responsible for the decline in 
the Southern Resident killer whale population, or which is the most 
important to address for recovery. The Recovery Plan lays out an 
adaptive management approach and a recovery strategy that addresses 
each of the potential threats based on the best available science. The 
recovery action outlined within the Recovery Plan identifies numerous 
management actions necessary to recover Southern Resident killer 
whales, such as salmon restoration efforts (habitat, harvest, and 
hatchery management), actions to clean up contaminated sites and 
sediments, minimization of continuing inputs of contaminants into the 
environment, an evaluation of the need for vessel traffic restrictions, 
minimization of the risk of oil spills, stranding response, and 
education and outreach (NMFS 2008). The recovery action outline links 
management actions to an active research program to fill data gaps and 
a monitoring program to assess effectiveness. Feedback from research 
and monitoring will provide the information necessary to refine ongoing 
actions and develop and prioritize new actions.
    NMFS works closely with Canada, the State of Washington, tribes, 
and interest groups to conduct research to fill critical information 
gaps, implement recovery actions, and develop partnerships to conserve 
Southern Resident killer whales. We and partners have been implementing 
actions identified in the recovery plan for many years. A comprehensive 
review of killer whale research and regulatory actions conducted to 
recover the population following the listing can be found in NMFS' 
report, ``Southern Resident Killer Whales--10 Years of Research and 
Conservation'' (NMFS 2014).
    A five-year status review under the ESA completed in December 2016 
provides an evaluation of the current status of the population and 
progress toward meeting recovery goals, and concluded that the Southern 
Resident killer whales should remain listed as endangered (NMFS 2016b). 
The 2018 annual census from the Center for Whale Research counted 75 
whales remaining in the population as of July 1, 2018. Following the 
census, as of July 1, 2019, four whales died or were presumed dead and 
two calves were born. Although the Southern Resident killer whale 
population size has varied over time, this is a decline from the 
highest census count of 98 measured in 1995, and NMFS projects a 
downward trend in population growth over the next 50 years (NMFS 2016).
    Below we summarize several aspects of natural history of Southern 
Resident killer whales and threats as they relate to the habitat needs 
of the species. More detailed information can be found in the draft 
Biological Report that supports this proposed rule (NMFS 2019a).

Distribution

    Killer whales live in highly stable social groupings, or pods, led 
by females. The three pods of the Southern Resident DPS, identified as 
J, K, and L pods, reside for part of the year in the inland waterways 
of Washington State and British Columbia known as the Salish Sea 
(Strait of Georgia, Strait of Juan de Fuca, and Puget Sound), 
principally during the late spring, summer, and fall (Ford et al. 2000, 
Krahn et al. 2002). The whales also visit coastal waters off Washington 
and Vancouver Island, especially in the area between Grays Harbor and 
the Columbia River (Ford et al. 2000, Hanson et al. 2017), but travel 
as far south as central California and as far north as Southeast 
Alaska. Although less is known about the whales' movements in coastal 
waters, satellite tagging, opportunistic sighting, and acoustic 
recording data suggest that Southern Resident killer whales spend 
nearly all of their time on the continental shelf, within 34 km (21.1 
mi) of shore in water less than 200 m (656.2 ft) deep (Hanson et al. 
2017).
    Southern Resident killer whales are large mammals requiring 
abundant food sources to sustain metabolic processes throughout the 
year. Prey availability changes seasonally, and Southern Resident 
killer whales appear to depend on different prey species and habitats 
throughout the year. The seasonal timing of salmon returns to different 
river systems likely influences their movements. Whales may travel 
significant distances to locate prey aggregations sufficient to support 
their numbers.

Foraging and Prey

    Based on fish scales and tissue remains collected from predation 
events, fecal sampling, and stomach contents studies, Southern Resident 
killer whales are known to consume a variety of fish species (22) and 
one species of squid (Ford et al. 1998, Ford et al. 2000, Ford & Ellis 
2006, Hanson et al. 2010, Ford et al. 2016). These studies suggest an 
overall preference for Chinook salmon (Oncorhynchus tshawytscha), 
despite the much lower abundance of Chinook in some areas and during 
certain time periods compared to other salmonids. Chum (O. keta), coho 
(O. kisutch), and steelhead (O. mykiss) may also be important in the 
Southern Resident killer whale diet at particular times and in specific 
locations. Factors that might influence this preference include 
Chinook's large size, high fat and energy content, and year-round 
occurrence in the whales' geographic range. Chinook salmon have the 
highest value of total energy content compared to other salmonids 
because of their larger body size and higher energy density (O'Neill et 
al. 2014). Research suggests that killer whales are capable of 
detecting, localizing, and recognizing Chinook salmon through their 
ability to distinguish Chinook echo structure as different from other 
salmon (Au et al. 2010).
    Fewer predation events have been observed and fecal samples 
collected from Southern Resident killer whales off the Pacific coast 
than in inland waters, but recent data indicate that salmon, and 
Chinook salmon in particular, remains an important dietary component 
when the whales are in outer coastal waters (Hanson et al. In prep). 
Quantitative analyses of diet from fecal samples also indicate a high 
proportion of Chinook in the diet of whales feeding in waters off the 
coast but a greater diversity of species, of which more tha (Ophiodon 
elongatus) and steelhead also comprised a substantial portion of the 
diet (Ford et al. 2016, Hanson et al. In prep). Foraging on skate and 
halibut (Hippoglossus stenolepis) was also detected (Hanson et al. In 
prep). Most of the Chinook prey samples obtained while the whales were 
in outer coastal waters were determined to have

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originated from the Columbia River basin, including Lower Columbia 
Springs, Middle Columbia Tule, Upper Columbia Summer/Fall. However, the 
Chinook stocks included fish from as far north at the Taku River and as 
far south as the Central Valley California (Hanson et al. In prep). In 
both inland and outer coastal waters, Southern Resident killer whales 
generally consumed salmon that were younger than those consumed by 
Northern Resident killer whales (Ford & Ellis 2006, Hanson et al. In 
prep).
    Noren (2011) estimated the daily prey energy requirements for 
Southern Resident killer whales, which vary by age class and sex. Noren 
(2011) estimated that immature whales between 1 and 6 years of age 
require 41,376 to 130,246 kilocalories (kcal) per day, while juveniles 
from 7 to 12 years of age need 118,019 to 174,380 kcal per day. Females 
older than 12 years require 149,972 to 217,775 kcal per day, while 
males over 12 years require 155,885 to 269,458 kcal per day (Noren 
2011). Southern Resident killer whales' preferred prey, Chinook salmon, 
is larger and has a higher total energy content (average of 13,409 kcal 
per fish; O'Neill et al. 2014) when compared to other salmon species 
found in the region. It would take roughly 2.7 coho, 3.1 chum, 3.1 
sockeye, or 6.4 pink salmon to obtain the same amount of energy as can 
be found in one Chinook salmon (O'Neill et al. 2014). However, the 
total energy varies significantly among Chinook salmon populations due 
to variation in body size and lipid content. For example, mature Puget 
Sound Chinook has relatively low mean total energy values (8,941 kcal 
per fish), whereas Chinook returning to the Sacramento River has a mean 
total energy above 15,000 kcal per fish (O'Neill et al. 2014).
    Scarcity of prey is one of the three main threats to Southern 
Resident killer whales' survival (NMFS 2008). Salmon have declined 
because of land alteration throughout the Pacific Northwest associated 
with agriculture, timber harvest practices, the construction of dams, 
urbanization, fishery harvest practices, and hatchery operations. Many 
of the salmon populations that were once abundant historically have 
declined to the point where they have been listed as endangered or 
threatened with extinction.

Hearing and Vocalizations

    Like all dolphins, killer whales produce numerous types of 
vocalizations that are useful in navigation, communication, and 
foraging (Dahlheim & Awbrey 1982, Ford 1989, Barrett-Lennard et al. 
1996, Ford et al. 2000, Miller 2002, Miller et al. 2004, Saulitis et 
al. 2005). Most calls consist of both low- and high-frequency 
components (Bain & Dahlheim 1994). Killer whales produce three 
categories of sounds: Echolocation clicks, tonal whistles, and pulsed 
calls (Ford 1989). Clicks are brief pulses of ultrasonic sound given 
singly or more often in series known as click trains. They are used 
primarily for navigation and discriminating prey and other objects in 
the surrounding environment, but are also commonly heard during social 
interactions and may have a communicative function (Barrett-Lennard et 
al. 1996). Barrett-Lennard et al. (1996). Southern Residents produce 
whistles for both long-range communication (e.g., during foraging and 
slow traveling) and social interactions (Riesch et al. 2006). Pulsed 
calls are the most common type of vocalization in killer whales and 
resemble squeaks, screams, and squawks to the human ear. Three 
categories of pulsed calls are distinguishable: Discrete, variable, and 
aberrant (Ford 1989). Discrete calls are the predominant sound type 
during foraging and traveling, and are used for maintaining acoustic 
contact with other group members, especially those out of visual range 
(Ford 1989, Ford et al. 2000, Miller 2002). Variable and aberrant calls 
are given more frequently after animals join together and interact 
socially.
    Killer whales hear sounds through the lower jaw and other portions 
of the head, which transmit the sound signals to receptor cells in the 
middle and inner ears (M[oslash]hl et al. 1999, Au 2002). Killer whales 
are considered mid-frequency cetaceans (NMFS 2018). Their hearing 
ability extends from approximately 600 hertz (Hz) to 114 kilohertz 
(kHz), but is most sensitive in the range of 5-81 kHz (Branstetter et 
al. 2017).

Health and Contaminants

    Persistent organic pollutants (POP), such as polychlorinated 
biphenyls (PCB), polybrominated diphenyl ethers (PBDE), and 
dichlorodiphenyltrichloroethane (DDT), are of particular concern to 
Southern Resident killer whales. Whales become exposed to POPs through 
their prey as well as through nursing, when adult females offload the 
contaminants stored in their blubber as it is metabolized to produce 
milk, which then carries those contaminants to the offspring. High 
contaminant levels exacerbate the effects of reduced prey abundance as 
the contaminants become mobilized in the blood stream when stored fat 
is metabolized in the absence of food. High concentrations of POPs have 
been linked to endocrine, metabolic, and immune disruption, cancer, 
decreased reproduction, and increased calf mortality (Reijnders 1986, 
de Swart et al. 1996, Schwacke et al. 2002, Ylitalo et al. 2005, 
Buckman et al. 2011, Gockel & Mongillo 2013, Lundin et al. 2016, 
Mongillo et al. 2016, Hall et al. 2018).
    Exposure to petroleum hydrocarbons released into the marine 
environment via oil spills and other discharge sources represents a 
serious potential health risk for Southern Resident killer whales. 
Polycyclic aromatic hydrocarbons, a component of oil (crude and 
refined) and motor exhaust, are a group of compounds known to be 
carcinogenic and mutagenic (Pashin & Bakhitova 1979). While marine 
mammals are generally able to metabolize and excrete limited amounts of 
hydrocarbons, acute or chronic exposure poses greater toxicological 
risks (Grant & Ross 2002). Oil spills are also potentially destructive 
to prey populations and therefore may adversely affect Southern 
Resident killer whales by reducing food availability.

Statutory and Regulatory Background for Critical Habitat Designations

    The ESA defines critical habitat under section 3(5)(A) as the (1) 
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 essential to the conservation of the species and which may 
require special management considerations or protection; and (2) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary of 
Commerce that such areas are essential for the conservation of the 
species (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. Our 
regulations provide that critical habitat shall not be designated 
within foreign countries or in other areas outside U.S. jurisdiction 
(50 CFR 424.12(g)).
    Section 4(a)(3)(B) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense

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(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 of Commerce determines 
in writing that such plan provides a benefit to the species, and its 
habitat, for which critical habitat is proposed for designation.
    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. 
Pursuant to this section, the Secretary of Commerce (Secretary) may 
exclude any area from critical habitat upon determining that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat. The decision to exclude is 
discretionary; in no circumstances is an exclusion of any particular 
area required by the ESA (50 CFR 424.19; 81 FR 7226, February 11, 
2016). 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 in addition 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 non-
governmental organizations).

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

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our implementing regulations and the key 
information and criteria used to prepare this proposed revision to the 
Southern Resident killer whale critical habitat designation. In 
accordance with section 4(b)(2) of the ESA and our implementing 
regulations (50 CFR 424.12), this proposed designation is based on the 
best scientific information available concerning the species' present 
and historical range, habitat, and biology, as well as threats to its 
habitat. The information gathered to create this proposed rule has been 
collated and analyzed in three supporting documents: A draft Biological 
Report (NMFS 2019a); a draft Economic Report (IEc 2018); and a draft 
ESA Section 4(b)(2) Report (NMFS 2019b). We used the information and 
analyses in these reports to inform our proposal to designate specific 
areas within the whales' coastal range as critical habitat.
    We followed a five-step process in order to identify the specific 
areas eligible for critical habitat designation: (1) Determine the 
geographical area occupied by the species at the time of listing, (2) 
identify physical or biological habitat features essential to the 
conservation of the species, (3) delineate specific areas within the 
geographical area occupied by the species on which are found the 
physical or biological features, (4) determine whether the feature(s) 
in a specific area may require special management considerations or 
protections, and (5) determine whether any unoccupied areas are 
essential for conservation. Our evaluation and determinations are 
described in detail in the draft Biological Report (NMFS 2019a) and are 
summarized below.
    Beyond the identification and description of the areas, the 
critical habitat designation process also include additional steps: 
Identify whether any area may be precluded from designation because the 
area is subject to an INRMP that we have determined provides a benefit 
to the species; and 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 steps 
are described in the draft ESA Section 4(b)(2) Report (NMFS 2019b) and 
the draft Economic Report (IEc 2019) and are summarized in later 
sections of this proposed rule.

Geographical Area Occupied by the Species

    The term ``geographical area occupied by the species'' is defined 
as an area that may generally be delineated around a species' 
occurrences as determined by the Secretary (i.e., range). Such areas 
may include those areas used throughout all or part of the species' 
life cycle, even if not used on a regular basis (e.g., migratory 
corridors, seasonal habitats, and habitats used periodically, but not 
solely by vagrant individuals) (50 CFR 424.02).
    Southern Resident killer whale summer inland habitat use was 
previously described in the 2006 critical habitat designation (71 FR 
69054, November 29, 2006). At that time, few data were available on 
Southern Resident distribution and habitat use of coastal and offshore 
areas in the Pacific Ocean. While it was known that the whales occupied 
these waters for a portion of the year, only 28 sightings of Southern 
Resident killer whales were available to describe their coastal range 
(Krahn et al. 2004, NMFS 2006). In the 2006 designation, these coastal 
areas were included in the identified geographical area occupied by the 
species, but the lack of data precluded the agency from designating 
specific areas within the coastal range as critical habitat.
    Since the 2006 designation, considerable effort has been made to 
better understand the range and movements of Southern Resident killer 
whales once they leave inland waters. Land- and vessel-based 
opportunistic and survey-based visual sightings, satellite tracking, 
and passive acoustic research conducted since 2006 have provided an 
updated estimate of the whales' coastal range that extends from the 
Monterey Bay area in California, north to Chatham Straight in southeast 
Alaska. In addition, these data have provided a better understanding of 
the whales' use of these waters, allowing us to identify areas that 
meet the definition of critical habitat under the ESA.
    While the range of Southern Resident killer whales includes coastal 
and inland waters of British Columbia, Canada, we cannot designate 
critical habitat in areas outside of U.S. jurisdiction (50 CFR 
424.12(h)). The Government of Canada has designated critical habitat 
for Northern and Southern Resident killer whales in Canadian waters 
under its Species at Risk Act. In its 2008 recovery strategy and 2011 
amended recovery strategy, the Government of Canada identified the 
Canadian side of Haro and Juan de Fuca Straits, as well as Boundary 
Pass and adjoining areas in the Strait of Georgia as critical habitat 
for Southern Resident killer whales (Fisheries and Oceans Canada 2011). 
The Government of Canada recently designated a new critical habitat 
area for Northern and Southern Resident killer whales in ocean waters 
on the continental shelf off southwestern Vancouver Island,

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including Swiftsure and La P[eacute]rouse Banks (Fisheries and Oceans 
Canada 2018). Additional areas are identified as critical habitat for 
Northern Resident killer whales only.
    Some Alaskan waters are considered to be within the geographic area 
occupied by Southern Resident killer whales, but we are not considering 
expanding critical habitat there at this time because there is 
insufficient information about the whales' distribution, behavior, and 
habitat use in these areas. For example, there is only one sighting of 
Southern Resident killer whales in southeast Alaska, in Chatham Strait 
in 2007. While we can infer that some of the essential habitat 
features, such as prey, must be present to support the whales there, we 
do not have sufficient data to describe them adequately and identify 
specific areas with those features.

Physical and Biological Features Essential to Conservation

    The ESA does not specifically define physical or biological 
features. However, court decisions and joint NMFS and U.S. Fish and 
Wildlife Service (U.S. FWS) 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. Features may include 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.
    Based on the best available scientific information regarding 
natural history and habitat needs, the following features were 
identified in the 2006 critical habitat designation as essential to the 
conservation of the species within inland waters of Washington: (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. We identified the same three biological and physical features 
as essential for the conservation of Southern Resident killer whales 
within their coastal range, as described below.
    (1) Water quality to support growth and development. Water quality 
supports Southern Resident killer whales' ability to forage, grow, and 
reproduce free from disease and impairment. Southern Resident killer 
whales are highly susceptible to biomagnification of pollutants, such 
that chemical pollution is considered one of the prime impediments to 
their recovery (NMFS 2008). Water quality is essential to the whales' 
conservation, given the whales' present contamination levels, small 
population numbers, increased extinction risk caused by any additional 
mortalities, and geographic range (and range of their primary prey) 
that includes highly populated and industrialized areas. Water quality 
is especially important in high-use areas where foraging behaviors 
occur and contaminants can enter the food chain. The absence of 
contaminants or other agents of a type and/or amount that would inhibit 
reproduction, impair immune function, result in mortalities, or 
otherwise impede the growth and recovery of the Southern Resident 
population is a habitat feature essential for the species' recovery. 
Exposure to oil spills also poses additional direct threats as well as 
longer-term population level impacts. Therefore, the absence of these 
chemicals is of the utmost importance to Southern Resident conservation 
and survival.
    (2) Prey species of sufficient quantity, quality and availability 
to support individual growth, reproduction and development, as well as 
overall population growth. Southern Resident killer whales need to 
maintain their energy balance all year long to support daily activities 
(foraging, traveling, resting, socializing) as well as gestation, 
lactation, and growth. Maintaining their energy balance and body 
condition is also important because when stored fat is metabolized, 
lipophilic contaminants may become more mobilized in the blood stream, 
with potentially harmful health effect (Mongillo et al. 2016). Southern 
Resident killer whales are top predators that show a strong preference 
for salmonids in inland waters, particularly larger, older age class 
Chinook (age class of 3 years or older) (Ford & Ellis 2006, Hanson et 
al. 2010). Samples collected during observed feeding activities, as 
well as the timing and locations of killer whales' high-use areas that 
coincide with Chinook fish runs, suggest the whales' preference for 
Chinook extends to outer coastal habitat use as well (Hanson et al. 
2017, Shelton et al. 2018, Hanson et al. In prep). The diets of whales 
in outer coastal areas are more varied than those of inland habitats, 
which suggests there may not be sufficient quantity of Chinook along 
the coast to sustain them. Habitat conditions should support the 
successful growth, recruitment, and sustainability of abundant prey to 
support the individual growth, reproduction, and development of 
Southern Resident killer whales.
    Age, size, and caloric content all affect the quality of prey, as 
do contaminants and pollution. The availability of key prey is also 
essential to the whales' conservation. Availability of prey along the 
coast is likely limited at particular times of year due to the small 
run sizes of some important Chinook stocks, as well as the distribution 
of preferred adult Chinook that may be relatively spread out prior to 
their aggregation when returning to their natal rivers. Availability of 
Chinook to the whales may also be impacted by sound from vessels or 
other sounds sources if they raise average background noise within the 
animal's critical bandwidth to a level that is expected to chronically 
or regularly reduce echolocation space (Joy et al., 2019, Veirs et al. 
2016), and by competition from other predators including other resident 
killer whales, pinnipeds, and fisheries (Chasco et al. 2017).
    (3) Passage conditions to allow for migration, resting, and 
foraging. Southern Resident killer whales are highly mobile, can cover 
large distances, and range over a variety of habitats, including inland 
waters and open ocean coastal areas from the Monterey Bay area in 
California north to Southeast Alaska. The whales' habitat utilization 
is dynamic. Noren and Hauser (2016) evaluated Southern Resident killer 
whales' behavior and fine-scale habitat use within the inland critical 
habitat Summer Core Area in Haro Strait and waters around the San Juan 
Islands and found that the whales engaged in most activity states 
(travel, forage, rest, and social behavior) throughout the area, but 
that foraging and resting predominantly occurred in some localized 
regions. Similar data collection and analysis has not been conducted to 
identify geographic variability or hotspots in the whales' activity or 
behavioral states in waters along the outer coast. However, analysis of 
Southern Resident killer whales' movement patterns on the outer coast 
from satellite tag data has revealed preferred depth bands and 
distances from shore that suggest potential travel corridors, and 
variations in travel speed or duration of occurrence that may indicate 
different behavioral states (Hanson et al. 2017).

[[Page 49219]]

    Southern Resident killer whales require open waterways that are 
free from obstruction (e.g., physical, acoustic) to move within and 
migrate between important habitat areas throughout their range, find 
prey, and fulfill other life history requirements. As an example of an 
``acoustic obstruction,'' killer whale occurrence in the Broughton 
Archipelago, Canada declined significantly when acoustic harassment 
devices were in use at a salmon farm, and returned to baseline levels 
once the devices were no longer used (Morton & Symonds 2002), 
indicating the introduction of this chronic noise source into the 
environment acted as an acoustic barrier to the whales' use of the 
area. The passage feature may be less likely to be impacted in coastal 
ocean waters compared to the more geographically constricted inland 
waters because the whales may be able to more easily navigate around 
potential obstructions in the open ocean, but these passage conditions 
are still a feature essential to the whales' conservation and which may 
require special management or protection.
    We also considered whether to identify sound as a fourth essential 
feature. Southern Resident killer whales produce and detect sounds for 
communication, navigation, and foraging. An acoustic environment, or 
soundscape, in which the whales can detect and interpret sounds is 
critical for carrying out these basic life functions. In recognition of 
this, we previously considered identifying sound as a potential 
essential feature (69 FR 76673; December 22, 2004), but ultimately 
concluded that we lacked sufficient information to do so. CBD 
petitioned us to again consider identifying in-water sound as an 
essential feature of the currently designated critical habitat and any 
new designation.
    Under the ESA, we separately consider effects of anthropogenic 
sound on individual whales (which is scaled up to the listed species 
unit) and habitat-related impacts (which is scaled up to the critical 
habitat designation). For the former, NMFS has an established framework 
and thresholds for considering impacts to marine mammals' hearing 
(specifically temporary or permanent hearing loss), as outlined in our 
``Technical Guidance for Assessing the Effects of Anthropogenic Sound 
on Marine Mammal Hearing'' (NMFS 2018), and NMFS is also working to 
refine our guidance on the effects of anthropogenic sound on marine 
mammal behavior. We will continue to evaluate and manage direct and 
indirect effects of anthropogenic sound on individual animals and the 
population relative to the jeopardy standard in ESA section 7 analyses 
and through MMPA incidental take authorizations.
    Adverse habitat-related effects may stem from the introduction of a 
chronic noise source that degrades the value of habitat by interfering 
with the sound-reliant animal's ability to gain benefits from that 
habitat (i.e., altering the conservation value of the habitat). NMFS 
does not currently have a quantifiable methodology to establish 
thresholds for determining when chronic noise reaches a level such that 
it alters the conservation value in this way. However, we can, and do, 
consider these effects qualitatively. For example, NMFS identified 
sound-related essential features in the critical habitat designations 
for the Cook Inlet beluga whale DPS and Main Hawaiian Islands (MHI) 
insular false killer whale DPS. Although sound is identified as an 
essential feature for Cook Inlet beluga whale critical habitat and as a 
characteristic of an essential feature for MHI insular false killer 
whale critical habitat in a non-quantitative manner, the descriptions 
of both essential features inform the qualitative assessment of 
habitat-related impacts from anthropogenic sound. NMFS has not 
identified a sound-related essential feature for other marine mammal 
critical habitat designations.
    In our experience evaluating effects to Southern resident killer 
whale critical habitat in inland waters, we are already able to assess 
adverse habitat-related effects of anthropogenic sound by evaluating 
impacts to the prey and passage essential features of current critical 
habitat for Southern Resident killer whales, and thus we do not 
consider it necessary to identify sound as a separate essential 
feature. For example, we evaluate whether chronic anthropogenic sound 
might alter the conservation value of habitat by reducing the 
availability of the whales' prey in a particular foraging area by 
reducing the effective echolocation space for the whales to forage, or 
creating a barrier that restricts movements through or within an area 
necessary for migration, resting, or foraging. We consider the 
protections resulting from these analyses to be consistent with those 
resulting from the evaluation of sound-related essential features in 
the Cook Inlet beluga whale and MHI insular false killer whale 
designations. If critical habitat is finalized consistent with this 
proposed rule, we would use the same approach for evaluating these 
effects in coastal critical habitat, consistent with our existing 
practice in inland waters critical habitat.

Specific Areas Within the Geographical Area Occupied by the Species

    The three specific areas within the geographic area (range) 
occupied by the species identified in the 2006 critical habitat 
designation are carried forward unchanged by the proposed critical 
habitat revision. We refer to them here as Inland Waters Areas 1-3 to 
differentiate them from the six newly identified specific coastal areas 
proposed for designation (Coastal Areas 1-6). In the 2006 designation, 
a lack of data precluded us from determining whether any specific areas 
within the coastal range met the definition of critical habitat. 
Research and data collected since then have allowed us to better 
characterize the whales' habitat use (NMFS 2019a). These data are now 
sufficient to identify specific areas within the whales' coastal range.
    The CBD requested that we identify critical habitat in areas of the 
Pacific Ocean between Cape Flattery, Washington, and Point Reyes, 
California, extending approximately 47 mi (76 km) offshore. This 
requested area was based mainly on the extent of the whales' movements 
from NMFS' satellite tag data: Tagged animals traveled as far south as 
Point Reyes and as far offshore as 47 mi. However, the petition stated 
that because NMFS was continuing to analyze data describing the 
Southern Resident killer whales' use of coastal and offshore waters, 
the petition requested we ``refine this proposal, as necessary, to 
include additional inhabited zones or to focus specifically on areas of 
concentrated use'' (CBD 2014). To delineate specific areas, we relied 
on the satellite tag data but also incorporated information on 
sightings, acoustic data, and prey sampling. As a result, our proposed 
specific areas differ in their boundaries from the petitioner's 
request. For example, there are documented sightings of Southern 
Resident killer whales south of Point Reyes, so the boundary of the 
proposed critical habitat is farther south than the petitioners 
requested.
    We identified six specific areas off the U.S. West Coast, 
delineated based on their habitat features and use by Southern Resident 
killer whales. They encompass most of the whales' U.S. coastal range, 
and they vary in size. The ESA and regulations provide the agency 
discretion to determine the scale at which specific areas are 
identified (50 CFR 424.12; 81 FR 7413, February 11, 2016). We selected 
the boundaries

[[Page 49220]]

between areas to reflect the spatial scale of the whales' movements and 
behavioral changes (e.g., where tagged whales were primarily traveling 
versus observed foraging), as well as to align with some existing 
fishery management boundaries (e.g., Pigeon Point and Point Sur are 
geographic points used by the Pacific Fishery Management Council in 
salmon management; PFMC 2016). Each area contains all three essential 
features, although the primary feature of each area is noted below. 
More information about each area, including descriptions of the whales' 
use of the area based on sighting, satellite tagging, and acoustic 
detection data, can be found in the draft Biological Report (NMFS 
2019a). Although we consider it to be informative for future section 7 
consultations to identify six specific areas of coastal critical 
habitat given the differences in the whales' use of the areas, we are 
soliciting public comment on whether the areas should be combined into 
a single continuous unit (see Public Comments Solicited section below).
    Beginning at the westernmost extent of the currently designated 
Strait of Juan de Fuca critical habitat area (Inland Waters Area 3), 
the new coastal areas span the U.S. West Coast from the U.S. 
international border with Canada south to Point Sur, California, which 
is just south of the southernmost sightings of Southern Resident killer 
whales in Monterey Bay. On January 27, 2008, Southern Resident killer 
whales were sighted off Cypress Point, Carmel Bay, just south of 
Monterey Bay, traveling south (N. Black, Monterey Bay Whale Watch, Orca 
Network sightings archives). Given uncertainty in the exact extent of 
the whales' southward movements, we elected to delineate the southern 
boundary of the specific area just south of the last sighting (by 
approximately 20 mi (32.2 km)) and align the boundary with the existing 
salmon management area boundary at Point Sur, California (PFMC 2016).
    The inshore (eastern) boundary of the areas is delineated by a 
continuous line along the coast at 20-ft (6.1-m) depth relative to mean 
high water. This continuous line crosses river mouths and entrances to 
semi-enclosed bays and estuaries. This is consistent with the inshore 
boundary of the 2006 critical habitat designation in inland waters 
(although the inshore boundary of the coastal critical habitat is 
delineated relative to the mean high water line instead of extreme high 
water, the inshore boundary in inland waters). We do not have data 
indicating that the whales frequently occur in waters shallower than 
6.1 m. For example, based on data from four satellite-tagged Southern 
Resident killer whales, less than 1 percent of the whales' outer 
coastal locations were in depths less than 6 m (NWFSC unpubl. data). In 
addition, there are no data from sightings or satellite tags to 
indicate that Southern Resident killer whales enter river mouths or 
semi-enclosed bays and estuaries along the coast, although data 
indicate the whales do use the open embayment of Monterey Bay in 
California. Thus, based on the available data, we defined the shoreward 
boundary of the specific areas as a line along the coast at 6.1 m in 
depth relative to the mean high water line.
    The offshore (western) boundary of the areas is the 200-m (656.2-
ft) depth contour, or isobath. This was selected because movement data 
from satellite-tagged Southern Resident killer whales indicate that 
most coastal locations were in water depths of 200 m or less (96.5 
percent) and within 34 km (21.1 mi) from shore (95 percent) (Hanson et 
al. 2017). Additionally, the limited information available on the 
distribution of salmon in offshore waters indicates Southern Resident 
killer whale prey (an essential feature of the habitat) is present in 
waters of 200 m or less. The two areas off the coast of Washington 
share the same northern and southern boundaries but are separated 
longitudinally at the 50-m (164.0-ft) isobath, such that Coastal Area 1 
ranges from 6.1-50 m depth while Coastal Area 2 ranges from 50-200 m 
depth. The 50-m isobath was selected to distinguish the areas because 
the majority (42 of 52, or 76.4 percent) of prey samples from observed 
Southern Resident killer whale predation events in these two areas were 
collected in water depths of 50 m or less, and just over half of the 
satellite tag locations in these two areas (54 percent) were in water 
depths of 50 m or less (NWFSC unpubl. data; Hanson et al. In prep).
    The latitudinal boundaries between the specific coastal areas were 
initially selected to coincide with some of the coastal salmon 
management area boundaries as defined in the Pacific Salmon Fishery 
Management Plan (FMP) and used for the management of salmon harvest 
(Chinook and Coho specifically) (PFMC 2016). Although the areas of 
highest Southern Resident killer whale occurrence, as indicated by a 
duration-of-occurrence model from satellite tag data (Hanson et al. 
2017), did not precisely match the salmon management areas, they 
generally align with the available information on salmonid and other 
fish species that may be prey to Southern Resident killer whales. For 
example, the whales' highest use areas occurred in the North of Falcon 
fishery management area between Cape Falcon, Oregon and the Canadian 
border, and relatively high use occurred within the Klamath Management 
Zone. Similar to inland waters, we assume that Southern Resident killer 
whales respond to regional and seasonal abundance of salmon, 
particularly Chinook runs. We then adjusted some of the boundaries to 
better reflect what we know about the whales' use of the areas (e.g., 
areas where foraging has been observed and/or prey samples collected, 
versus areas where whales are considered mainly to be traveling 
through). We selected Cape Meares, Oregon as the southern boundary of 
Areas 1 and 2 instead of Cape Falcon just to the north, because the 
Cape Meares boundary encompassed all but one of the observed predation 
events and prey sample locations off the Washington and Oregon coasts. 
We selected Cape Mendocino, California as the boundary between Areas 4 
and 5 instead of Horse Mountain just to the south because the three 
predation events observed in California occurred off the Eel River just 
north of Cape Mendocino, and that boundary better demarcated the 
southern extent of a higher-use area based on the duration-of-
occurrence model of satellite-tagged whale movements (NMFS 2019a).
    The six specific coastal areas are:
    Coastal Area 1--Coastal Washington/Northern Oregon Inshore Area: 
U.S. marine waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. 
international border with Canada south to Cape Meares (45[deg]29'12'' 
N), between the 6.1-m and 50-m isobath contours. This area covers 
1,441.9 mi\2\ (3,734.6 km\2\) and includes waters off Clallam, 
Jefferson, Grays Harbor, and Pacific counties in Washington and Clatsop 
and Tillamook counties in Oregon. The primary essential feature of this 
area is prey.
    Coastal Area 2--Coastal Washington/Northern Oregon Offshore Area: 
U.S. marine waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. 
international border with Canada south to Cape Meares (45[deg]29'12'' 
N), between the 50-m and 200-m isobath contours. This area covers 
4,617.2 mi\2\ (11,958.6 km\2\), and as with Area 1, includes waters off 
Clallam, Jefferson, Grays Harbor, and Pacific counties in

[[Page 49221]]

Washington and Clatsop and Tillamook counties in Oregon. The primary 
essential feature of this area is prey.
    Coastal Area 3--Central/Southern Oregon Coast Area: U.S. marine 
waters from Cape Meares (45[deg]29'12'' N) south to the OR/CA border 
(42[deg]00'00'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 4,962.6 mi\2\ (12,853.1 km\2\) and includes waters off 
Tillamook, Lincoln, Lane, Douglas, Coos, and Curry counties in Oregon. 
The primary essential feature of this area is passage.
    Coastal Area 4--Northern California Coast Area: U.S. marine waters 
from the OR/CA border (42[deg]00'00'' N) south to Cape Mendocino, CA 
(40[deg]26'19'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 1,606.8 mi\2\ (4,161.5 km\2\) and includes waters off Del 
Norte and Humboldt counties in California. The primary essential 
feature of this area is prey.
    Coastal Specific Area 5--North Central California Coast Area: U.S. 
marine waters from Cape Mendocino, CA (40[deg]26'19'' N) south to 
Pigeon Point, CA (37[deg]11'00'' N), between the 6.1-m and 200-m 
isobath contours. This area covers 3,976.2 mi\2\ (10,298.4 km\2\) and 
includes waters off Humboldt, Mendocino, Sonoma, Marin, San Francisco, 
and San Mateo counties in California. The primary essential feature of 
this area is passage.
    Coastal Specific Area 6--Monterey Bay Area: U.S. marine waters from 
Pigeon Point, CA (37[deg]11'00'' N) south to Point Sur, CA 
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This 
area covers 710.1 mi\2\ (1,839.2 km\2\) and includes waters off San 
Mateo, Santa Cruz, and Monterey counties in California. The primary 
essential feature of this area is prey.

Need for Special Management Considerations or Protection

    Joint NMFS and U.S. FWS 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.
    Human activities managed under a variety of legal mandates have the 
potential to affect the habitat features essential to the conservation 
of Southern Resident killer whales, including those that could increase 
water contamination and/or chemical exposure, decrease the quantity or 
quality of prey, or could inhibit safe, unrestricted passage between 
important habitat areas to find prey and fulfill other life history 
requirements. Examples of these types of activities include (but are 
not limited to): (1) Salmon fisheries and fisheries that take salmon as 
bycatch; (2) salmon hatcheries; (3) offshore aquaculture/mariculture; 
(4) alternative energy development; (5) oil spills and response; (6) 
military activities; (7) vessel traffic; (8) dredging and dredge 
material disposal; (9) oil and gas exploration and production; (10) 
mineral mining (including sand and gravel mining); (11) geologic 
surveys (including seismic surveys); and (12) upstream activities 
(including activities contributing to point-source water pollution, 
power plant operations, liquefied natural gas terminals, desalinization 
plants). We identified these activities based on our ESA section 7 
consultation history since 2006 for existing Southern Resident killer 
whale critical habitat, along with additional information that has 
become available since the original designation. This is not an 
exhaustive or complete list of potential activities; rather, these 
activities are of primary concern because of their 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 ESA section 7 requirement that 
Federal agencies ensure their actions are not likely to adversely 
modify critical habitat applies not only to actions occurring within 
designated critical habitat, but also to actions occurring outside of 
designated areas which can impact the features of the critical habitat. 
For example, consultation could be required on activities that occur in 
waters shallower than 20 ft (6.1 m) or in upstream freshwater locations 
if those actions are likely to adversely affect essential habitat 
features in designated critical habitat.
    Table 1 lists the activities that may affect the essential features 
in each of the six specific coastal areas such that the essential 
features may require special management or consideration. The draft 
Biological Report (NMFS 2019a) and draft Economic Report (IEc 2019) 
provide a more detailed description of the potential effects of these 
activities on the essential features.

      Table 1--Summary of Specific Areas Along the U.S. West Coast
------------------------------------------------------------------------
         Specific area            Size (mi\2\)          Activities
------------------------------------------------------------------------
1--Coastal Washington/Northern          1,441.9  FISH, HAT, SPILL, MIL,
 Oregon Inshore Area.                             VESS, DR, POLL, PP.
2--Coastal Washington/Northern          4,617.2  FISH, HAT, SPILL, MIL,
 Oregon Offshore Area.                            VESS, DR, POLL, PP.
3--Central/Southern Oregon              4,962.6  FISH, HAT, EN, SPILL,
 Coast Area.                                      MIL, VESS, DR, GEO,
                                                  POLL, PP, LNG.
4--Northern California Coast            1,606.8  FISH, HAT, SPILL, MIL,
 Area.                                            VESS, DR, POLL, PP.
5--North Central California             3,976.2  FISH, HAT, SPILL, MIL,
 Coast Area.                                      VESS, DR, MIN, POLL,
                                                  PP.
6--Monterey Bay Area...........           710.1  FISH, HAT, SPILL, VESS,
                                                  DR, POLL, PP, DESAL.
------------------------------------------------------------------------
Note: The size of the area, essential features present, and activities
  that may affect the essential features and necessitate the need for
  special management considerations or protection within each area are
  listed. Some activities occur upstream but may affect features in the
  specific area. Activities: FISH = fisheries, HAT = hatcheries, EN =
  alternative energy projects, SPILL = oil spills and response, MIL =
  military activities, VES = vessel traffic, DR = dredging and dredge
  material disposal, MIN = mineral mining, GEO = geologic surveys, POLL
  = point-source water pollution, PP = power plants, LNG = LNG
  terminals, DESAL = desalinization plants.

Unoccupied Areas

    The ESA section 3(5)(A)(ii) definition of critical habitat includes 
unoccupied areas, which are defined as specific areas outside the 
geographical area occupied by the species at the time it is listed if 
such areas are determined to be essential to the conservation of the 
species. At the present time, we have not identified additional 
specific areas outside the geographic area occupied by Southern 
Resident killer whales that may be essential for the conservation of 
the species. We considered potential future impacts that climate change 
might have on the geographical area occupied by the whales, 
particularly with respect to shifts in distribution of their salmon 
prey. In accordance with NMFS guidance on the treatment of climate 
change in NMFS ESA decisions (NMFS 2016a), we determined that there is 
insufficient evidence to identify unoccupied areas based on potential 
impacts from climate change.

[[Page 49222]]

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 
of Commerce determines in writing that such a plan provides a benefit 
to the species for which critical habitat is proposed for designation.
    DOD (Army, Navy, and Air Force) helped us identify military lands 
that may overlap with areas under consideration for critical habitat. 
The Navy identified two military installations adjacent to these areas, 
both of which have INRMPs in place for land-based installation 
activities: Pacific Beach Annex, Naval Station Everett, Washington, and 
Naval Support Activity (NSA) Monterey, California. Based on our review 
of these plans, these two shore-based military areas covered by INRMPs 
do not overlap the critical habitat areas, and thus the critical 
habitat areas are not ``subject to'' INRMPs or ineligible for 
designation (see section III.F of the draft ESA Section 4(b)(2) Report, 
NMFS 2019b).

Application of ESA Section 4(b)(2)

    The foregoing discussion describes those areas that are eligible 
for designation as critical habitat. Specific areas eligible for 
designation are not automatically designated as critical habitat. As 
described previously, section 4(b)(2) of the ESA requires that the 
Secretary consider the economic impact, impact on national security, 
and any other relevant impact. The Secretary may exclude an area from 
designation if he determines the benefits of exclusion outweigh the 
benefits of designation based on the best available scientific and 
commercial information. The Secretary may not exclude an area from 
designation if exclusion will result in the extinction of the species. 
Because the authority to exclude is wholly discretionary, exclusion is 
not required for any areas (50 CFR 424.19; 81 FR 7226; February 11, 
2016).
    The first step in conducting an ESA section 4(b)(2) analysis is to 
identify the ``particular areas'' to be analyzed. Section 3(5)(A) of 
the ESA defines critical habitat as ``specific areas,'' while section 
4(b)(2) of the ESA requires the agency to consider certain factors 
before designating any ``particular area.'' The ESA and regulations 
provide the agency discretion to determine the scale at which specific 
areas (50 CFR 424.12) and particular areas (50 CFR 424.19) are 
identified. For this proposed revision to the designation of Southern 
Resident killer whale critical habitat, we identified six ``specific'' 
areas off the coasts of Washington, Oregon, and California, as 
described above. For our economic impact analysis, we defined the 
``particular areas'' to be equivalent to the ``specific areas.'' This 
approach and scale allowed us to most effectively consider the 
conservation value of the different areas when balancing conservation 
benefit of designation against economic benefits of exclusion. Where we 
considered impacts on national security or impacts on tribes, we based 
the ``particular areas'' on land ownership or control (e.g., land 
controlled by the DOD within which national security impacts may exist, 
or Indian lands). This approach and scale allowed us to consider 
impacts and benefits associated with management by the military or land 
ownership and management by Indian tribes.

Identify and Determine 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 
insure 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 associated 
requirement that Federal agencies must also insure their actions are 
not likely to jeopardize the species' (in this case the DPS') continued 
existence. The true impact of this 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 DPS, 
beyond any modifications they would make because of the DPS' listing 
and the jeopardy provision, and the associated increase in consultation 
costs. Additional impacts of designation include state and local 
protections that may be triggered as a result of the designation.
    In determining the impacts of designation, consistent with our 
regulations (50 CFR 424.19) and policy (81 FR 7226; February 11, 2016), 
we focused on identifying the incremental impacts. We examined what the 
state of the world would be with and without the designation of coastal 
critical habitat for Southern Resident killer whales. The ``without 
critical habitat'' scenario represents the baseline for the analysis. 
It includes process requirements and habitat protections already 
afforded Southern Resident killer whales under their Federal listing or 
under other Federal, state, and local regulations. The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of coastal critical habitat for 
Southern Resident killer whales. The primary potential impacts of 
critical habitat designation we identified were: (1) The economic costs 
associated with additional administrative effort of including a coastal 
critical habitat analysis in section 7 consultations for Southern 
Resident killer whales, (2) impacts to national security, and (3) the 
possible harm to our working relationship with Indian tribes.

Economic Impacts

    The draft Economic Report prepared by Industrial Economics, 
Incorporated (IEc) sought to determine the impacts on economic 
activities due to the designation of critical habitat, above and 
beyond--or incremental to--those ``baseline'' impacts due to existing 
required or voluntary conservation efforts being undertaken due to 
other Federal, State, and local regulations or guidelines (IEc 2019). 
Incremental impacts may include the direct costs associated with 
additional effort for section 7 consultations (including consultations 
that otherwise would have been limited to jeopardy issues, reinitiated 
consultations, or new consultations occurring specifically because of 
the designation) as well as the direct costs associated with 
conservation efforts or project modifications that would not have been 
required under the jeopardy standard. Additionally, incremental impacts 
may include indirect impacts resulting from reaction to the potential 
designation of critical habitat and triggering of additional 
requirements under State or local laws intended to protect sensitive 
habitat.
    To quantify the economic impact of designation, IEc (2019) employed 
the following steps:
    (1) Identify the baseline of economic activity and the statutes and 
regulations that constrain that activity in the absence of the critical 
habitat designation in the additional areas being proposed;
    (2) Identify the types of activities that are likely to be affected 
by critical habitat designation;
    (3) Project the projects and activities identified in Step 2 over 
space and time based on the best available information on planned 
projects, permitting schedules, or average annual levels of activity;
    (4) Estimate the costs of administrative effort and, where 
applicable, conservation efforts or project modifications recommended 
for

[[Page 49223]]

the activity to comply with the ESA's critical habitat provisions;
    (5) Apply well-accepted discounting methods to calculate the 
present value cost in each year of the analysis and sum over time to 
calculate the total present value and annualized impacts; and
    (6) Aggregate the costs at the particular area level. (Impacts are 
reported at the particular area level; particular areas for the 
analysis match the six specific areas.)
    The first step in the analysis was to identify the baseline level 
of protection already afforded Southern Resident killer whales in the 
additional areas being proposed as critical habitat. The baseline for 
this analysis is the existing state of regulation prior to the revision 
of critical habitat, including the listing of the species under the ESA 
(and protections under ESA sections 7, 9, and 10); ESA protections for 
listed salmon given that salmon are included as part of the prey 
essential feature of critical habitat for the whales; protections from 
other co-occurring ESA listings and critical habitat designations, such 
as those for the Southern DPS of North American green sturgeon (50 CFR 
226.219) and the leatherback sea turtle (50 CFR 226.207); and other 
Federal, state and local laws and guidelines, such as the Marine Mammal 
Protection Act, Clean Water Act, and state environmental quality laws 
(IEc 2019).
    In step 2, the NMFS West Coast Region's record of section 7 
consultations and NMFS' experience and professional judgment in 
conducting section 7 consultations were used to identify Federal 
activities that occur within the areas being considered for Southern 
Resident killer whale critical habitat and that may affect the critical 
habitat features. Activities occurring adjacent to or upstream of those 
areas that may affect the water quality and prey availability essential 
features within the critical habitat areas were also identified. These 
activities included salmon fisheries and other fisheries that have 
incidental bycatch of salmon, salmon hatcheries, offshore aquaculture/
mariculture, alternative energy development, oil spills and response, 
military activities, vessel traffic, dredging and dredge material 
disposal, oil and gas exploration and production, geologic surveys 
(including seismic surveys), activities contributing to point-source 
water pollution, power plant operations, liquefied natural gas 
terminals, and desalinization plants. The draft Economic Report assumes 
that future occurrences of these activities within or affecting 
critical habitat for the whales will result in consultation. The 
identification of these activities and the associated threats are 
further discussed in the draft Biological Report (NMFS 2019a) and the 
draft Economic Report (IEc 2019).
    In steps 3 and 4, the incremental administrative costs of including 
analysis of Southern Resident killer whale coastal critical habitat in 
future section 7 consultations were estimated. The occurrence of the 
projects and activities identified in step 2 and the estimated number 
and type of consultations were projected over space and time using the 
best available information on planned projects, permitting schedules, 
or average annual level of activities from NMFS' consultation history 
for 2006-2016 and other information sources (e.g., U.S. Army Corps of 
Engineers permit and project data, and interviews with Federal action 
agencies). The administrative costs of a given consultation vary 
depending on the type (i.e., informal, formal, programmatic) and 
specifics of the project, and it may not be possible to predict the 
level of effort required for each future consultation. The analysis 
accordingly employed estimated average incremental administrative costs 
per consultation, which were based on the expected amount of time spent 
considering adverse modification as part of future section 7 
consultations.
    As described in Chapter 2 of the draft Economic Report (IEc 2019), 
there are no particular projects or activities for which NMFS considers 
it likely that section 7 consultation on coastal critical habitat for 
the killer whales would result in different conservation 
recommendations than section 7 consultation without coastal critical 
habitat. We regularly consult on the types of activities relevant to 
this analysis to consider the potential for jeopardy to the listed 
killer whales, their listed prey, and other listed species with 
overlapping ranges, as well as to consider the potential for adverse 
modification to the critical habitat of other listed species--some of 
which may have similar essential features (e.g., Southern DPS of North 
American green sturgeon, for which the essential features within 
nearshore coastal marine critical habitat include, among others, a 
migratory corridor within marine habitat and water quality with 
acceptably low levels of contaminants)--and we make conservation 
recommendations accordingly. We anticipate that it is most likely that 
these baseline conservation recommendations would involve measures that 
would avoid adverse modification of Southern Resident killer whale 
critical habitat because they directly or indirectly address impacts to 
the essential features of the whales' critical habitat (water quality, 
prey, and passage).
    In steps 5 and 6, well-accepted discounting methods were used to 
calculate the present value cost in each year of the analysis, summed 
over time to calculate the total present value and annualized impact, 
and then aggregated at the particular area level. As noted above, for 
the economic analysis, ``particular areas'' were defined to be 
equivalent to the six ``specific areas'' occupied by Southern Resident 
killer whales off the coasts of Washington, Oregon, and California. 
However, due to the difficulty in determining precise locations of 
future consultations occurring in Areas 1 and 2 off the coast of 
Washington (because assignment of the consultation to Area 1 or 2 would 
require specific information about the activity such as its latitude/
longitude or depth), the draft Economic Report presents economic 
impacts collectively for these two areas.
    Additionally, administrative costs of consultations on upstream 
activities were not assigned to a particular critical habitat area as 
there is no information available to inform the connection between the 
particular locations of upstream activities with the downstream effects 
on particular critical habitat areas. Accordingly, the incremental 
economic impacts associated with consultations on upstream activities 
do not reflect the economic impact of designating any given area, but 
rather the expanded critical habitat as a whole.
    The draft Economic Report (IEc 2019) estimates the total present 
value of the quantified incremental impacts to be approximately 
$600,000 over the next 10 years, assuming a seven percent discount 
rate. Total annualized impacts are estimated to be $68,000. The 
evaluation of costs associated with each particular area is complicated 
by the fact that many activities and consultations span more than one 
area, and because costs to Areas 1 and 2 could not be estimated 
separately. However, annualized impacts from projects occurring in only 
one area (or two in the case of Areas 1 and 2) ranged from $8,800 for 
Areas 1/2 to $1,100 for Area 6. Over 40 percent of estimated impacts 
occur upstream of critical habitat areas. The greatest impacts are 
associated with dredging and in-water construction and ``other'' 
activities (see IEc 2019 for more details).

[[Page 49224]]

National Security Impacts

    During preparations for the proposed revision to Southern Resident 
killer whale critical habitat, we provided DOD (Navy, Army, and Air 
Force) with information regarding the areas under consideration for 
Southern Resident killer whale critical habitat, and requested they 
identify areas they own or control which may overlap with the areas 
under consideration. We also asked them to identify any impacts to 
national security that might arise from the proposed designation of 
critical habitat. In addition, we considered information regarding 
potential national security impacts provided by the U.S. Coast Guard 
(USCG; Department of Homeland Security) in their response to our 90-day 
finding on the petition to revise critical habitat.
    The Army did not provide a response. The Air Force stated that it 
had not identified any significant concerns with the proposed revision 
of Southern Resident killer whale critical habitat to include coastal 
waters along the U.S. West Coast. The Navy stated that they conduct 
training and testing activities, collectively referred to as ``military 
readiness activities,'' within the coastal areas being considered for 
designation as critical habitat. Specifically, military readiness 
activities occur in the offshore Pacific Northwest Ocean Surface/
Subsurface Operating Area (OPAREA), Warning Area 237 (W-237), and the 
Olympic A and B Military Operation Areas (MOA), which are all 
considered at-sea components of the Northwest Training Range Complex 
(NWTRC), as well as in the Quinault Range Site (QRS), which is a 
component of the Keyport Range Complex. The Navy refers to all the at-
sea areas used for training and testing as the Northwest Training and 
Testing (NWTT) study area. The Navy believes there would be national 
security impacts where specific coastal areas 1 and 2 proposed for 
designation overlap with the QRS. The Navy requested exclusion of the 
QRS (including its associated surf zone off the coast of Pacific Beach, 
Washington) from the proposed critical habitat based on national 
security impacts arising from additional mitigation requirements that 
have the potential to impact the effectiveness of ongoing and future 
testing activities (NMFS 2019b). During the pre-publication inter-
agency review process for this proposed rule, the Navy also requested 
exclusion of a 10-km (6.2 mi) buffer around the QRS. The Navy stated 
that they used site-specific oceanographic conditions and the best 
available science establishing fish injury thresholds (Popper et al. 
2014) to determine that sound and energy levels from the largest 
explosives that could be used in the QRS may cause injuries to fish 
(i.e., prey species) out to 10 km beyond the boundary of the QRS. If 
the QRS alone were excluded (without the buffer), the largest 
explosives in the QRS may affect the prey feature within proposed 
critical habitat (in the buffer area). The Navy argued that there would 
be national security impacts if NMFS required additional mitigation 
that resulted in the Navy having to halt, reduce in scope, or 
geographically/seasonally constrain testing activities to prevent 
adverse effects or adverse modification of critical habitat.
    The USCG also provided information on potential impacts to national 
security and maritime safety. The USCG stated that expanded critical 
habitat might impair their ability to safely conduct defense readiness 
and additional missions if the designation results in restrictions to 
the ability of USCG maritime assets to transit, deploy, train, and/or 
conduct gunnery exercises within the critical habitat areas. These 
additional missions include emergency response, search and rescue, law 
enforcement, conservation activities, and training operations. With 
respect to gunnery exercises, they noted that USCG Section/Station/
Maritime Force Protection Unit boats are limited to going a maximum of 
10 to 50 mi (16-80.5 km) offshore depending on vessel type, and 
requiring them to go over 50 mi would be unsafe and provide unrealistic 
training/gunnery scenarios to effectively become proficient with 
meeting mission objectives. In general, USCG Sector/Station assets 
conduct gunnery exercises with small arms and ammunition, pistols, and 
up to .50 caliber machine guns. Major afloat cutters conduct exercises 
with small arms and ammunition, in addition to more sophisticated 
systems (i.e., 25 millimeter (mm), 57 mm, and 76 mm guns, close-in 
weapon systems), but rarely conduct exercises in the areas under 
consideration for critical habitat, with the exception of the NWTRC.
    Although we have not conducted a section 7 analysis on a particular 
proposed action and we are not predetermining any future ESA 
conclusions now, as a general matter, and based on the information 
currently available, we consider it unlikely that the USCG's routine 
operations in support of emergency response, homeland security, law 
enforcement, and conservation affect the essential features of Southern 
Resident killer whale critical habitat, and as such, we do not expect 
designation of critical habitat will have a national security impact on 
these activities. Separately, we consider the USCG's concerns regarding 
potential national security impacts to their defense readiness 
activities to be generally overlapping with those of the Navy, given 
the similarities in some of the USCG's activities (i.e., gunnery 
exercises involving small- and large-caliber projectiles, similar to 
the Navy's surface-to-surface gunnery exercises) and area of operations 
(i.e., generally the NWTRC). At this time, the Navy has only been able 
to express concerns about national security impacts to testing 
activities conducted in the QRS, including underwater explosions 
associated with mine countermeasure and neutralization testing 
activities. Pending discussions between the Navy and NMFS will help the 
Navy determine if there are other national security impacts from the 
proposed critical habitat designation. The USCG does not use these 
types of explosives in their defense readiness activities, and thus we 
consider it unlikely that the USCG would have national security 
concerns beyond those conveyed by the Navy.
    As documented in our draft ESA Section 4(b)(2) Report (NMFS 2019b), 
we assessed several factors to evaluate the potential impacts of 
designating critical habitat within the QRS and a 10-km buffer around 
it, such as the size and percentage of the QRS and buffer that would be 
designated; the importance of the area to the Navy mission and military 
readiness; the likelihood that Navy activities would destroy or 
adversely modify critical habitat and that NMFS would require project 
modification to avoid adverse effects or modification of critical 
habitat, thus potentially negatively impacting the effectiveness of the 
Navy's training and testing activities); the level of protection 
provided to one or more essential features by existing DOD safeguards 
(e.g., management or protection already in place); and the likelihood 
that other Federal actions may occur in the site that would no longer 
be subject to the critical habitat provision if the particular area 
were excluded from the designation.

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

    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 other entities that interact with, or are affected by, 
the Federal government. This relationship has given rise to a

[[Page 49225]]

special Federal trust responsibility involving the legal 
responsibilities and obligations of the United States toward Indian 
tribes and with respect to Indian lands, tribal trust resources, and 
the exercise of tribal rights. Pursuant to these authorities, lands 
have been retained by Indian tribes or have been set aside for tribal 
use. These lands are managed by Indian tribes in accordance with tribal 
goals and objectives within the framework of applicable treaties and 
laws. Executive Order (E.O.) 13175, Consultation and Coordination with 
Indian Tribal Governments, outlines the responsibilities of the Federal 
Government in matters affecting tribal interests.
    There is a broad array of activities on Indian lands that may 
trigger ESA section 7 consultations. Indian lands are those defined in 
the Secretarial Order American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act (June 5, 1997), 
including: (1) Lands held in trust by the United States for the benefit 
of any Indian tribe; (2) land held in trust by the United States for 
any Indian tribe or individual subject to restrictions by the United 
States against alienation; (3) fee lands, either within or outside the 
reservation boundaries, owned by the tribal government; and (4) fee 
lands within the reservation boundaries owned by individual Indians.
    In developing this proposed rule, we reviewed maps and did not 
identify any areas under consideration as coastal critical habitat that 
overlap with Indian lands, because the shoreward extent of the areas 
under consideration for designation is 6.1 m (20 ft) water depth. Based 
on this, we preliminarily found that there were no Indian lands subject 
to consideration for possible exclusion. However, our preliminary 
assessment indicated that the following federally-recognized tribes (83 
FR 4235; January 30, 2018) have lands that may be in close proximity to 
areas under consideration for designation as critical habitat for 
Southern Resident killer whales, have usual and accustomed (U&A) 
fishing areas that overlap with critical habitat areas, or may 
otherwise be affected: Confederated Tribes of the Chehalis Reservation, 
Hoh Indian Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian 
Nation, and Shoalwater Bay Indian Tribe in Washington; Confederated 
Tribes of Coos, Lower Umpqua, and Siuslaw Indians, Confederated Tribes 
of the Siletz Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae 
Heights Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, 
Karuk Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, 
Wiyot Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California.
    We contacted each of these tribes to solicit comments regarding 
Indian lands that may overlap and may warrant exclusion from critical 
habitat for Southern Resident killer whales. We also sought information 
from these tribes concerning other tribal activities that may be 
affected in areas other than tribal lands (e.g., tribal fisheries in 
usual and accustomed coastal marine areas).
    We received responses from two tribes in Washington and California. 
The tribes were primarily concerned with the potential impact of the 
critical habitat designation on tribal fisheries, particularly within 
U&A fishing areas located in coastal marine waters. As described in the 
draft Economic Report, while it is possible that the critical habitat 
designation could result in recommendations for changes in fishery 
management, we consider this unlikely, given the existing consideration 
of fisheries' impacts on Southern Resident killer whales and their prey 
(including ESA-listed salmon) in ESA section 7 consultations in the 
jeopardy analysis and the implementation of management strategies and 
actions for the conservation and recovery of these species (IEc 2019). 
However, we will continue to coordinate and consult with potentially 
affected tribes as we move forward with the rulemaking process.

Exclusion of Areas Under Section 4(b)(2) of the ESA

    As stated previously, the Secretary may exclude an area from 
designation if he determines the benefits of exclusion outweigh the 
benefits of designation based on the best available scientific and 
commercial information. This discretion is limited, however, in that 
the Secretary may not exclude an area from designation if exclusion 
will result in the extinction of the species (ESA section 4(b)(2)).
    We decided to exercise the discretion delegated to us by the 
Secretary to conduct an exclusion analysis and balance the benefits of 
designation against the benefits of exclusion. Benefits of critical 
habitat designation are those conservation benefits to the species, 
while benefits of exclusion result from avoiding the impacts of 
designation identified above. Below we describe the benefits of 
designation, then further consider and weigh the benefits of 
designation and exclusion based on economic and national security 
impacts. (As discussed above, we preliminarily found that there were no 
Indian lands subject to consideration for possible exclusion). We have 
broad discretion as to what factors to consider as benefits of 
designation and benefits of exclusion, and what weight to assign to 
each factor--nothing in the ESA, its implementing regulations, or our 
Policy Regarding Implementation of Section 4(b)(2) of the ESA 
(``4(b)(2) Policy'') limits this discretion (50 CFR 424.19; 81 FR 7226, 
February 11, 2016). We also relied on a qualitative cost-benefit 
analysis, as described in OMB Circular A-4.

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7 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. The revision to the critical 
habitat designation is also expected to provide benefits by informing 
the entities engaged in section 7 consultations and the general public 
about the status of Southern Resident killer whales, including the 
coastal areas and features (or habitat) important to whales' 
conservation.
    Other forms of benefits that may be attributed to the conservation 
and recovery of Southern Resident killer whales (although not 
specifically attributed to the designation of critical habitat), 
include use benefits (e.g., for wildlife viewing), non-use or passive 
use benefits (e.g., existence, option, and bequest values), and 
ancillary ecosystem service benefits (e.g., water quality improvements 
and enhanced habitat conditions for other marine and coastal species). 
Some species, including Southern Resident killer whales, also have 
significant spiritual and cultural value to particular communities, 
such as tribes. Such values are generally not expressed in monetary 
terms.
    These benefits are not directly comparable to the costs of 
designation for purposes of conducting the section 4(b)(2) analysis. 
Ideally, benefits and costs should be compared on equal terms in the 
same units. However, there is insufficient information regarding the 
extent of the benefits and the associated values to monetize all of 
these benefits. Because we could not quantify or monetize all of the 
benefits of revising the critical habitat designation for Southern 
Resident killer whale discussed above, we qualitatively described the 
conservation value of the areas to the DPS.
    As discussed in Appendix B of the draft ESA Section 4(b)(2) Report 
(NMFS

[[Page 49226]]

2019b), we considered categories of information to characterize 
Southern Resident killer whales' relative use of the particular areas 
and the importance of physical and biological features in the areas. 
However, gaps in or limitations of existing data made an evaluation 
across all of the areas using any sort of quantitative scoring system 
challenging. For example, the proportion of prey samples collected from 
each area might be used to characterize the areas' relative importance 
for foraging, where a higher proportion of samples might indicate 
greater foraging or prey resources. However, nearly all (93 percent) of 
the prey samples were collected during field efforts directed by the 
locations of satellite-tagged whales, and satellite-tagged whales did 
not go into Area 6, so this metric would underestimate the conservation 
value of Area 6. (Predation has been observed but not sampled in Area 
6; Black et al. 2001). Any spatial bias in NMFS' and partners' ability 
to conduct on-water response in particular locations to collect prey 
samples would also limit the usefulness of this factor for comparing 
relative importance of the critical habitat areas. Another potential 
metric we considered was the proportion of confirmed opportunistic 
sightings of Southern Resident killer whales observed in the area, or 
number of sightings per unit area. However, while opportunistic 
sightings data provide information on when and where whales occur along 
the coast, they are less useful for informing a relative ranking of the 
whales' use of the specific areas due to their spatial bias (e.g., 
sightings may be influenced by locations of population centers or whale 
watching operations). Therefore, we determined that the most 
appropriate approach was to qualitatively assess the conservation value 
of each area using the available data, mindful of the spatial and 
temporal gaps and potential biases.
    Based on the available information on the whales' use of the areas 
(and considering gaps in information), and the physical and biological 
features essential to the whales' conservation, we considered the 
conservation value of each coastal area to be high. However, we 
considered the value of Areas 1 and 2 to be very high relative to the 
other coastal areas, given the whales' particularly high use of 
portions of the areas, as indicated by models of satellite tag data 
(they are the only coastal critical habitat areas with usage in some 
locations that is more than two and three standard deviations above the 
mean), acoustic data indicating higher rates of detections than would 
be expected based on monitoring effort (Hanson et al. 2013), the 
documented use by all three pods, year-round use of the areas, and 
observations of foraging with a substantial number of prey samples 
collected in portions of the areas.

Weighing Economic Impacts

    The draft Economic Report (IEc 2019) concluded that costs 
attributed to the revision of the Southern Resident killer whale 
critical habitat designation are largely administrative in nature and 
that a majority of those costs are borne by Federal agencies. Only a 
small cost of consultation (total annualized impacts of $7,800, 
discounted at seven percent) are estimated to be borne by a small 
number (1-8) of non-Federal small entities (businesses or governments).
    In accordance with section 4(b)(2) of the ESA, its implementing 
regulations (50 CFR 424.19) and the 4(b)(2) Policy (81 FR 7226; 
February 11, 2016), in evaluating the exclusion of areas based on 
probable economic impacts, we considered the nature of those impacts 
and not a particular threshold level. Additionally, we considered the 
following factors:
    (1) Section 2 of the ESA provides that a purpose of the act is to 
provide a means whereby the ecosystems upon which endangered species 
and threatened species depend may be conserved.
    (2) In listing Southern Resident killer whales under the ESA, we 
concluded that the current and threatened destruction or adverse 
modification of the species' habitat is likely contributing to 
fluctuations in abundance and exacerbating the risk of extinction 
naturally faced by a small population (70 FR 69903, November 18, 2005). 
We identified contaminants, vessel traffic, and changes in prey 
availability as factors that have modified the whales' habitat and 
considered them to be threats to the species.
    (3) As described above, the six particular areas under 
consideration for critical habitat designation are all of high or very 
high conservation value.
    (4) The economic impacts to Federal agencies and non-Federal 
entities of designating each of the six particular areas are small (the 
largest annualized impacts are $8,800 in Areas 1 and 2 combined), as is 
the annualized economic impact of designating the entire area 
($68,000). The potential economic impacts borne by non-federal entities 
of designating all six areas are even smaller (total annualized impacts 
of $7,800 over the next ten years, discounted at 7 percent), with one 
to eight non-federal entities expected to be affected. This reflects 
approximately six consultations per year that may involve non-federal 
entities, for example, businesses engaged coastal and in-water 
construction activities, renewable energy developments, or seismic 
surveys.
    For these reasons, we conclude that the economic benefit of 
excluding any of the particular areas does not outweigh the 
conservation benefit of designation. Therefore, none of the areas are 
proposed for exclusion based on economic impacts.

Weighing Impacts to National Security and Proposed Exclusion

    As described above, we consulted with the DOD regarding the 
activities taking place at sites managed by DOD and the potential 
impact of designating critical habitat at these sites. A reply from the 
Air Force stated: ``At this time the AF has not identified any 
significant concerns with the proposed addition of Southern Resident 
killer whale critical habitat to coastal waters along the U.S. West 
Coast as depicted on the provided map.'' The Navy stated that they 
believe there would be national security impacts where critical habitat 
coastal areas 1 and 2 overlap the QRS, including its associated surf 
zone off the coast of Pacific Beach, Washington, and a 10-km buffer 
around it, and requested exclusion of this particular area from 
critical habitat. The Navy provided information on testing activities 
proposed in the QRS beyond 2020 and into the foreseeable future, and 
identified national security concerns regarding potential impacts to 
their national mission and ongoing and future Navy testing activities 
if critical habitat were designated there or within a 10-km buffer 
around the QRS.
    We weighed the conservation benefits of designation to Southern 
Resident killer whales against the benefits of exclusion, initially for 
the Navy's QRS, and later during the pre-publication inter-agency 
review period, the combined area of the QRS and a 10-km buffer around 
it. We considered various factors relevant to assessing the benefits of 
exclusion including:
    (1) The size of the DOD site, the percentage of the DOD site that 
would be designated (because only a portion of the DOD site is within 
critical habitat), and the percentage of the proposed specific area(s) 
that overlaps with the DOD site (because the DOD site overlaps with 
only a portion of the critical habitat area(s));
    (2) The importance of the area to the Navy's national mission 
(e.g., frequency/intensity of use, complexity of Navy actions within 
it, and

[[Page 49227]]

significance and uniqueness of the site to the overall Navy mission);
    (3) The likelihood of a consultation with the DOD in this site;
    (4) The likelihood that DOD activities would destroy or adversely 
modify critical habitat; based on the DOD's activities at the site, and 
that NMFS would require project modifications to reduce or avoid these 
impacts;
    (5) The level of protection provided to one or more essential 
feature by existing DOD safeguards (e.g., management or protection 
already in place); and
    (6) The likelihood that other Federal actions may occur in the site 
that would no longer be subject to the critical habitat provision if 
the particular area were excluded from the designation.
    Dependent on available information, each of these factors may weigh 
either in favor of exclusion of the area or in favor of designation of 
the area. We give great weight to the national security and defense 
missions (81 FR 7226; February 11, 2016). We weighed this information 
against the benefits of designating the site, which was based on the 
conservation value rating for the specific area(s) overlapping the DOD 
site, as well as more specific information regarding Southern Resident 
killer whale use of the DOD site. As documented in the draft ESA 
Section 4(b)(2) Report (NMFS 2019b), based on the great weight afforded 
military impacts, the unique training in support of military readiness 
that occurs within the QRS, and the potential delay in critical 
missions in order to complete adverse modification analyses, we found 
that the national security impacts tip the scale and outweigh the 
limited impact to conservation values in just over one-fourth of the 
identified critical habitat Areas 1 and 2 where those areas overlap 
with the QRS and a 10-km buffer around it. We determined that the 
benefit to national security of excluding this particular area 
outweighs the conservation benefit of designation, and exclusion of the 
area would not result in extinction of the species (DPS). We therefore 
propose excluding the QRS and a 10-km buffer around it from the 
critical habitat designation. The total area proposed for exclusion is 
1,687.9 mi\2\ (4,371.5 km\2\) or 9.7 percent of potential coastal 
critical habitat.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 15,626.6 mi\2\ 
(40,472.7 km\2\) of marine habitat within the area occupied by Southern 
Resident killer whales along the coasts of Washington, Oregon, and 
California. Combined with the currently designated critical habitat in 
inland waters of Washington (2,560 mi\2\ (6,630 km\2\)), the total 
designation would comprise approximately 18,186.5 mi\2\ (47,102.7 
km\2\). In both the currently designated and proposed new critical 
habitat, areas with water less than 20 ft (6.1 m) deep are not included 
as critical habitat. As described in the preamble to the final rule 
designating critical habitat in inland waters (71 FR 69054; November 
29, 2006), due to a lack of bathymetry data, we were not able to 
subtract the shallow areas from the estimate of the inland critical 
habitat area, so the estimated area of this portion of the critical 
habitat is an overestimate. However, high-quality shoreline and 
bathymetry data were available for the outer coastal areas, so we were 
able to interpolate a 20-ft depth contour as the inshore boundary and 
include only the areas proposed for designation in the coastal area 
calculations. However, the coastal shoreline product we used to 
delineate the coastal areas, NOAA's Continually Updated Shoreline 
Product, uses mean high water as the vertical datum (the surface of 
zero elevation to which heights are referenced), so the inshore 
boundary of coastal critical habitat is 20 ft of water depth relative 
to mean high water. This is in contrast to the inshore boundary for 
critical habitat in inland waters, which uses 20 ft water depth 
relative to extreme high water.
    The proposed areas are occupied and contain physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The Navy's 
QRS and a 10-km buffer around it is not proposed for designation (and 
is not included in the area calculations above) because we determined 
the benefits to national security of exclusion (that is, avoiding the 
impact that would result from designation) outweigh the benefits of 
designation. We determined that the economic benefits of excluding any 
of the areas do not outweigh the benefits of designation, and we are 
therefore not proposing to exclude any areas based on economic impacts. 
Section 4(b)(2) does not allow the agency to exclude areas if exclusion 
will result in extinction of the species. We are proposing to exclude 
only a small percentage of the whales' habitat (9.7 percent of coastal 
habitat; 8.0 percent of coastal and inland habitat combined) because of 
impacts to national security. Given this small percentage, we conclude 
that the exclusion of these areas will not result in extinction of the 
Southern Resident killer whale DPS. No unoccupied areas are currently 
proposed for designation.

Effects of Critical Habitat Designation

    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 
us on any agency action that may affect the listed species or its 
critical habitat. During the consultation, we evaluate the agency 
action to determine whether the action may adversely affect listed 
species or critical habitat and issues our finding in a biological 
opinion. If we conclude in the biological opinion that the agency 
action would likely result in the destruction or adverse modification 
of critical habitat, we would also recommend any reasonable and prudent 
alternatives to the action. Reasonable and prudent alternatives 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 reinitiation 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

[[Page 49228]]

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 the proposed 
critical habitat and may be subject to the ESA section 7 consultation 
processes when carried out, funded, or authorized by a Federal agency. 
These include: (1) Salmon fisheries and other fisheries that have 
incidental bycatch of salmon; (2) salmon hatcheries; (3) offshore 
aquaculture/mariculture; (4) alternative energy development; (5) oil 
spills and response; (6) military activities; (7) vessel traffic; (8) 
dredging and dredge material disposal; (9) oil and gas exploration and 
production; (10) mineral mining (including sand and gravel mining); 
(11) geologic surveys (including seismic surveys); and (12) upstream 
activities (including activities contributing to point-source water 
pollution, power plant operations, liquefied natural gas terminals, 
desalinization plants).
    Private or non-Federal entities may also be affected by the 
proposed 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 Southern Resident killer whale 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). 
As noted in the Public Comments Solicited section below, NMFS also 
requests information on the types of non-Federal activities that may be 
affected by this rulemaking.

Technical Changes to the Southern Resident Killer Whale Critical 
Habitat Regulations

    In addition to proposing the designation of coastal critical 
habitat, we propose to make three technical changes to the existing 
Southern Resident killer whale critical habitat regulations in 50 CFR 
226.206. First, the introductory paragraph of the existing regulations 
states that the textual descriptions of critical habitat are the 
definitive source for determining the critical habitat boundaries and 
the overview map is provided for general guidance purposes only. In 
2012, NMFS and the U.S. FWS revised the ESA implementing regulations to 
specify that the boundaries of critical habitat as mapped or otherwise 
described in the regulations will be the official delineation of the 
designation (77 FR 25611; May 1, 2012). To comply with this revision, 
we propose to delete the second and third sentences of the introductory 
paragraph of 50 CFR 226.206, and replace them with the following 
sentence: ``The maps, clarified by the textual descriptions in this 
section, are the definitive source for determining the critical habitat 
boundaries.''
    Second, the existing regulations specify primary constituent 
elements (PCE) essential for conservation of Southern Resident killer 
whales. In 2016, NMFS and the U.S. FWS revised the ESA implementing 
regulations to remove the term PCE and replaced it with the statutory 
term ``physical or biological features'' (81 FR 7226; February 11, 
2016). These are also referred to as ``essential features.'' To comply 
with this revision, we propose to revise 50 CFR 226.206(c) by replacing 
the term PCE with the term ``essential features.''
    Third, we propose to move the map(s) to the end of the section to 
accommodate the additional text necessary to describe the added, 
proposed critical habitat areas.

Public Comments Solicited

    We solicit comments or suggestions from the public, other concerned 
governments and agencies, the scientific community, industry, non-
governmental organizations, or any other interested party concerning 
the proposed designations and exclusions as well as the documents 
supporting this proposed rulemaking. We are particularly interested in 
comments and information in the following areas: (1) Specific 
information describing the distribution and habitat use of Southern 
Resident killer whales in coastal waters, including southeast Alaska or 
shallow areas with less than 20 ft (6.1 m) of water; (2) information on 
the identification, location, and the quality of physical or biological 
features that may be essential to the conservation of the species, 
including information on sound as a feature; (3) the boundaries of the 
specific areas and whether they should be combined into a single unit; 
(4) information regarding potential benefits of designating any 
particular area as critical habitat, including information on the types 
of Federal actions that may affect the area's physical and biological 
features; (5) information regarding potential impacts of designating 
any particular area, including the types of Federal actions that may 
trigger an ESA section 7 consultation and the possible modifications 
that may be required of those activities; (6) current or planned 
activities in the areas proposed as critical habitat, including both 
Federal and non-Federal activities, and costs of potential 
modifications to those activities due to critical habitat designation; 
(7) any foreseeable economic, national security, or other relevant 
impact resulting from the proposed designations; (8) potential for 
impacts to small businesses and government entities; (9) information 
pertaining to administrative costs of participating in consultation or, 
more specifically, related to considering critical habitat as part of 
section 7 consultations; (10) foreseeable project delays resulting from 
the proposed designation and the associated costs of delays; (11) any 
specific impacts to Indian tribes or other relevant tribal issues; (12) 
whether the data used in the economic analysis needs to be updated; and 
(13) whether there are additional particular areas that should be 
considered for exclusion under ESA section 4(b)(2) (e.g., a particular 
area encompassing the San Francisco Traffic Separation Scheme).
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES). The proposed rule and 
supporting documentation can be found on our website at 
www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or the Federal E-Rulemaking Portal 
at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041. In 
preparing the final rule, we will consider all comments pertaining to 
the revision to the designations received during the comment period. 
Accordingly, the final decision may differ from this proposed rule.

Public Hearings

    Agency regulations at 50 CFR 424.16(c)(3) require the Secretary to 
promptly hold at least one public hearing if any person requests one 
within 45 days of publication of a proposed rule to designate critical 
habitat. Public hearings provide the opportunity for interested 
individuals and parties to give comments, exchange information and 
opinions, and engage in

[[Page 49229]]

a constructive dialogue concerning this proposed rule. We encourage the 
public's involvement in such ESA matters. Any scheduled public hearings 
will be announced in a separate notice. Requests for additional public 
hearings must be made in writing (see ADDRESSES) by November 4, 2019.

References Cited

    A complete list of all references cited in this proposed rule can 
be found on our website at www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/critical_habitat.html or 
the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0041, and is available upon request 
from the NMFS West Coast Region office in Seattle, Washington (see 
ADDRESSES).

Classification

Executive Order 12630, 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, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
the proposed rule does not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat affects only Federal agency actions (i.e., those 
actions authorized, funded, or carried out by Federal agencies). 
Therefore, the critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits. This 
designation would not increase or decrease the current restrictions on 
private property concerning take of Southern Resident killer whales, 
nor do we expect the final critical habitat designation to impose 
substantial additional burdens on land use or substantially affect 
property values. Additionally, a final critical habitat designation 
would not preclude the development of Habitat Conservation Plans and 
issuance of incidental take permits for non-Federal actions. Owners of 
areas included within the proposed critical habitat designation would 
continue to have the opportunity to use their property in ways 
consistent with the survival of listed Southern Resident killer whales.

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13771, Reducing Regulation and Controlling Regulatory Costs

    OMB has determined that this proposed rule is significant for 
purposes of E.O. 12866 review. A draft Economic Report (IEc 2019) and 
draft ESA Section 4(b)(2) Report (NMFS 2019b) have been prepared to 
support the exclusion process under section 4(b)(2) of the ESA and our 
consideration of alternatives to this rulemaking as required under E.O. 
12866. To review these documents, see the 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 (IEc 2019) identifies the total estimated 
present value of the quantified impacts above current consultation 
effort to be approximately $600,000 over the next 10 years. Assuming a 
7 percent discount rate on an annualized basis, the impacts are 
estimated to be $68,000 per year. These total impacts include the 
additional administrative efforts necessary to consider critical 
habitat in section 7 consultations. Coast-wide, economic impacts are 
expected to be small and largely associated with the administrative 
costs borne by Federal agencies. 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 rulemaking is expected to be regulatory under E.O. 
13771.

Executive Order 12988, Civil Justice Reform

    In accordance with E.O. 12988, we have determined that this 
proposed rule does not unduly burden the judicial system and meets the 
requirements of sections 3(a) and 3(b)(2) of the E.O. We are proposing 
to designate critical habitat in accordance with the provisions of the 
ESA. This proposed rule uses standard property descriptions and 
identifies the essential features within the designated areas to assist 
the public in understanding the habitat needs of Southern Resident 
killer whales.

Executive Order 13132, Federalism

    The E.O. 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 424.16(c)(1)(ii), we will request information for 
this proposed rule from the appropriate state resources agencies in 
Washington, Oregon, and California. 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 coastal areas in 
which those features are found. While this designation would not alter 
where and what non-Federally sponsored activities may occur, it may 
assist local governments in long-range planning (rather than waiting 
for case-by-case ESA section 7 consultations to occur).
    Where state and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests only on the Federal agency.

[[Page 49230]]

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The long-standing 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 toward Indian Tribes and with respect 
to Indian lands, tribal trust resources, and the exercise of tribal 
rights. Pursuant to these authorities, lands have been retained by 
Indian Tribes or have been set aside for tribal use. These lands are 
managed by Indian Tribes in accordance with tribal goals and objectives 
within the framework of applicable treaties and laws. E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, outlines 
the responsibilities of the Federal Government in matters affecting 
tribal interests.
    There is a broad array of activities on Indian lands that may 
trigger ESA section 7 consultations. In developing this proposed rule 
to revise Southern Resident killer whale critical habitat, we reviewed 
maps and did not identify any areas under consideration for critical 
habitat along the coast that overlap with Indian lands, because the 
shoreward extent of the areas under consideration for designation is 
6.1 m (20 ft) water depth. Based on this, we preliminarily found that 
there were no Indian lands subject to consideration for possible 
exclusion. However, as discussed above, our preliminary assessment 
indicated that some federally-recognized tribes (83 FR 4235; January 
30, 2018) have lands that may be in close proximity to areas under 
consideration for designation as critical habitat for Southern Resident 
killer whales, have usual and accustomed fishing areas that overlap 
with critical habitat areas, or may otherwise be affected. These 
include: Confederated Tribes of the Chehalis Reservation, Hoh Indian 
Tribe, Makah Indian Tribe, Quileute Tribe, Quinault Indian Nation, and 
Shoalwater Bay Indian Tribe in Washington; Confederated Tribes of Coos, 
Lower Umpqua, and Siuslaw Indians, Confederated Tribes of the Siletz 
Indians, and Coquille Indian Tribe in Oregon; and Cher-Ae Heights 
Indian Community of the Trinidad Rancheria, Hoopa Valley Tribe, Karuk 
Tribe, Big Valley Band of Pomo Indians, Tolowa Dee-Ni' Nation, Wiyot 
Tribe, and Yurok Tribe in California. We also identified the non-
federally recognized Wintu Tribe of Northern California.
    As discussed above, we contacted each of these tribes to solicit 
comments regarding Indian lands that may overlap and may warrant 
exclusion from critical habitat for Southern Resident killer whales. We 
also sought information from these tribes concerning other tribal 
activities that may be affected in areas other than tribal lands (e.g., 
tribal fisheries in usual and accustomed coastal marine areas). We will 
continue to consult with affected tribes regarding this proposal to 
designate critical habitat.

Executive Order 13211, Energy Supply, Distribution, and Use

    E.O. 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 and find the revision to the designation 
of critical habitat will not have impacts that exceed the thresholds 
identified in OMB's memorandum M-01-27, Guidance for Implementing E.O. 
13211 (See IEc 2019).

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 that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). We have prepared an 
initial regulatory flexibility analysis (IRFA), which is part of the 
draft Economic Report (IEc 2019). This document is available upon 
request and online (see ADDRESSES). The analysis is summarized below.
    NMFS listed the Southern Resident killer whale Distinct Population 
Segment as endangered under the ESA on November 18, 2005 (70 FR 69903) 
and on November 29, 2006 issued a final rule designating critical 
habitat for the whales in inland waters of Washington (71 FR 69054). 
NMFS is now proposing to expand the critical habitat designating by 
adding waters along the Pacific Coast between Cape Flattery, Washington 
and Point Sur, California. The objective of the rule is to utilize the 
best scientific and commercial information available to expand critical 
habitat for the Southern Resident killer whale to best meet the 
conservation needs of the species in order to meet recovery goals. 
Section 4(a)(3)(A)(ii) of the ESA allows NMFS to revise designations to 
critical habitat as appropriate and is the legal basis for this rule. 
This proposed rule will not impose any recordkeeping or reporting 
requirements on small entities and will not duplicate, overlap, or 
conflict with any other laws or regulations.
    The expansion of critical habitat for the Southern Resident killer 
whales is expected to have a limited economic impact, on the order of 
$68,000 annualized over 10 years. The nature of these costs are 
administrative efforts to consider potential for adverse modification 
part of future ESA section 7 consultations. Primarily, consultations 
are between NMFS and Federal action agencies to evaluate the potential 
for projects and activities to result in adverse modification of 
critical habitat. Therefore, most incremental impacts are borne by NMFS 
and other Federal agencies and not by private entities or small 
governmental jurisdictions. However, some consultations may include 
third parties (e.g., project proponents or landowners) that may be 
small entities. These third parties may bear some portion of the 
administrative consultation costs.
    Of the activities for which future consultations are forecast and 
expected to result in incremental economic impacts due to the expanded 
critical habitat designation, only a subset involve third parties that 
may be small entities. Specifically, consultations on renewable energy 
development, dredging and in-water construction, and seismic surveying 
may involve small entities, including small businesses or governments. 
The analysis anticipates approximately six consultations on in-water 
and coastal construction activities per year, 0.5 consultations on 
renewable energy development, and 0.1 consultations on seismic surveys. 
While the activity forecast includes less than one consultation 
annually on renewable energy development and seismic surveying, the 
IRFA evaluates the impacts associated with one consultation on each of 
these activities to reflect a high-end estimate for a single year. 
Administrative costs of

[[Page 49231]]

consultations on fisheries, military activities, and hatchery 
operations are unlikely to involve third parties beyond NMFS and the 
Federal action agency.
    For the consultations that may involve third parties, it is not 
known whether the third parties bearing administrative costs are likely 
to be large or small entities. The analysis therefore conservatively 
assumes all third parties involved in these consultations are small 
entities. The number of small entities bearing these incremental 
administrative costs in a given year is uncertain. To provide 
information on the range of potential entities affected and the 
potential costs borne by these entities, the analysis presents two 
scenarios reflecting the extremes:
    (1) Scenario 1 identifies the maximum number of future 
consultations involving small entities and assumes that each 
consultation involves one unique small entity. We estimate the maximum 
number of future consultations, and accordingly number of potentially 
affected entities, to be eight. This represents the total number of 
annual consultations that occur across all critical habitat units 
involved with in-water construction, renewable energy development, and 
seismic surveying. Scenario 1 accordingly provides a high-end estimate 
of the number of potentially affected small entities (assuming each 
consultation involves a unique third party and all third parties are 
small entities), and a low-end estimate of the potential effect in 
terms of the economic effects (i.e., percent of annual revenues) for 
each entity (total third party costs of the consultations are divided 
across the high-end number of small entities). This scenario may 
overstate the number of small entities likely to be affected by the 
rule and may understate the potential impact per entity. Under Scenario 
1, we estimate that eight small entities have the potential to bear an 
impact of $890 to $1,600 per entity.
    (2) Scenario 2 assumes all future costs to an industry are borne by 
a single small entity within that industry. This scenario may 
understate the number of small entities affected and overstate the per-
entity impacts. As such, this scenario arrives at a low-end estimate of 
potentially affected entities and a high-end estimate of potential 
economic cost effects. Under this scenario, one small entity in the in-
water construction industry would bear costs of $5,200.
    Because the analysis assumes a maximum of one consultation on both 
renewable energy development and seismic surveying in a single year, 
the cost estimates for these activities are identical under both 
scenarios ($1,100 for one small entity in the renewable energy 
development industry and $1,600 for one small entity in the seismic 
survey industry). However, for in-water construction and dredging, 
these scenarios reflect a range of potentially affected entities and 
associated revenue effects. The actual number of small in-water 
construction entities affected, and the per-entity revenue effects are 
likely to be somewhere in the middle. In other words, some subset 
greater than one and less than 6 of the in-water construction small 
entities may participate in the section 7 consultations and bear the 
associated impacts.
    Under both scenarios, potential costs borne by small entities are 
expected to be minor. Ultimately, up to eight small entities per year 
may bear costs associated with participation in consultation regarding 
the proposed expansion of critical habitat for Southern Resident killer 
whale. The total annualized administrative costs that may be borne by 
these small entities (businesses or governments) is $7,800 (discounted 
at 7 percent). We request public comment on this analysis, including on 
the number of small entities that may be affected (see the Public 
Comments Solicited section above).
    The RFA, as amended by SBREFA, requires us to consider alternatives 
to the proposed regulation that will reduce the impacts to small 
entities. We considered an alternative of not expanding critical 
habitat for Southern Resident killer whales within their coastal range 
because it would impose none of the additional economic, national 
security, or other relevant impacts described in the draft Economic 
Report or the draft ESA Section 4(b)(2) Report. Under this alternative, 
Southern Resident killer whales would continue to receive protections 
provided under the ESA, the existing critical habitat, as well as other 
Federal, state, and local laws. We rejected this alternative because we 
determined that the proposed expanded critical habitat is prudent and 
determinable, and the ESA requires critical habitat designation in that 
circumstance. We also considered alternatives in which we designated 
all six of the identified ``specific areas'' (i.e., no area excluded), 
or designated some subset of the ``specific areas'' (i.e., some 
``particular areas'' within the identified ``specific areas'' would be 
excluded). As described in our draft ESA Section 4(b)(2) report, we 
considered the economic impacts, impacts to national security, and 
other relevant impacts that would result from designation, and weighed 
the benefits of designation against the benefits of exclusion. 
Ultimately, we selected an alternative in which one particular area was 
excluded from the designation, the Navy's Quinault Range Site off the 
coast of Washington and a 10-km buffer around it, because we considered 
impacts to national security outweighed the benefits of designating 
critical habitat there.

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 revision of the critical habitat designation for Southern 
Resident killer whales is consistent to the maximum extent practicable 
with the enforceable policies of the approved Coastal Zone Management 
Programs of Washington, Oregon, and California. This determination has 
been submitted to the responsible agencies in the aforementioned states 
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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (a) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute or 
regulation that would impose an enforceable duty upon State, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
The designation of critical habitat does not impose an enforceable duty 
on non-Federal government entities or private

[[Page 49232]]

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 by the 
designation of critical habitat, but the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency. Furthermore, to the extent that non-Federal 
entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply. Nor would critical 
habitat shift the costs of the large entitlement programs listed above 
to state governments.
    (b) Due to the prohibition against take of Southern Resident killer 
whales 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.

Information Quality Act and Peer Review

    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 West Coast Regional Office in Seattle, 
Washington (see FOR FURTHER INFORMATION CONTACT).
    On December 16, 2004, the Office of Management and Budget (OMB) 
issued its Final Information Quality Bulletin for Peer Review 
(Bulletin). The Bulletin was published in the Federal Register on 
January 14, 2005 (70 FR 2664), and went into effect on June 16, 2005. 
The primary purpose of the Bulletin is to improve the quality and 
credibility of scientific information disseminated by the Federal 
government by requiring peer review of ``influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. Influential scientific information is defined 
as information the agency reasonably can determine will have or does 
have a clear and substantial impact on important public policies or 
private sector decisions. The Bulletin provides agencies broad 
discretion in determining the appropriate process and level of peer 
review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest. The draft Biological Report (NMFS 
2019a) and draft Economic Report (IEc 2019) supporting this proposed 
rule are considered influential scientific information and subject to 
peer review. These two reports were distributed to five independent 
reviewers for review before the publication date of this proposed rule, 
and peer review comments were incorporated prior to their dissemination 
in support of this proposed rulemaking. The peer reviewer comments were 
compiled into peer review reports that are available at the following 
website: https://www.cio.noaa.gov/services_programs/prplans/ID402.html.
    On April 24, 2019, OMB issued memorandum M-19-15 to reinforce, 
clarify, and interpret agency responsibilities under the Information 
Quality Act. The memorandum directs agencies to update their agency-
specific guidelines within 90 days to be consistent with certain 
parameters. NOAA has not yet issued revised guidance.

National Environmental Policy Act (NEPA)

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

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: September 12, 2019.
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 226 is 
proposed to be amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

0
2. Revise Sec.  226.206 to read as follows:


Sec.  226.206  Critical habitat for the Southern Resident killer whale 
(Orcinus orca).

    Critical habitat is designated for the Southern Resident 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 to 
include all areas in paragraphs (a)(1) and (2) of this section.
    (1) Inland waters of Washington State. Critical habitat includes 
three specific marine areas of Puget Sound, Washington, within the 
following counties: Clallam, Jefferson, King, Kitsap, Island, Mason, 
Pierce, San Juan, Skagit, Snohomish, Thurston, and Whatcom. Critical 
habitat includes all waters relative to a contiguous shoreline 
delimited by the line at a depth of 20 feet (ft) (6.1 meters (m)) 
relative to extreme high water in each of the following areas:
    (i) Summer Core Area: All U.S. marine waters in Whatcom and San 
Juan counties; and all marine waters in Skagit County west and north of 
the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W).
    (ii) Puget Sound Area: All marine waters in Island County east and 
south of the Deception Pass Bridge (Highway 20) (48[deg]24'25'' N/
122[deg]38'35'' W), and east of a line connecting the Point Wilson 
Lighthouse (48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey 
Island located at 48[deg]12'30'' N/122[deg]44'26'' W; all marine waters 
in Skagit County east of the Deception Pass Bridge (Highway 20) 
(48[deg]24'25'' N/122[deg]38'35'' W); all marine waters of Jefferson 
County east of a line connecting the Point Wilson Lighthouse 
(48[deg]8'39'' N/122[deg]45'12'' W) and a point on Whidbey Island 
located at latitude 48[deg]12'30'' N/122[deg]44'26'' W, and north of 
the Hood Canal Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' 
W); all marine waters in eastern Kitsap County east of the Hood Canal 
Bridge (Highway 104) (47[deg]51'36'' N/122[deg]37'23'' W); all marine 
waters (excluding Hood Canal) in Mason County; and all marine waters in 
King, Pierce, Snohomish, and Thurston counties.
    (iii) Strait of Juan de Fuca Area: All U.S. marine waters in 
Clallam County east of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W); all marine waters in 
Jefferson and Island counties west of the Deception Pass Bridge 
(Highway 20) (48[deg]24'25'' N/122[deg]38'35'' W), and west of

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a line connecting the Point Wilson Lighthouse (48[deg]8'39'' N/
122[deg]45'12'' W) and a point on Whidbey Island located at 
48[deg]12'30'' N/122[deg]44'26'' W.
    (2) Coastal marine waters along the U.S. West Coast. Critical 
habitat includes six specific marine areas along the coasts of 
Washington, Oregon, and California. Critical habitat includes all 
waters relative to a contiguous shoreline delimited by the line at a 
depth of 20 ft (6.1 m) relative to mean high water in each of the 
following areas:
    (i) Coastal Washington/Northern Oregon Inshore Area: U.S. marine 
waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W), from the U.S. 
international border with Canada south to Cape Meares, Oregon 
(45[deg]29'12'' N), between the 6.1-m and 50-m isobath contours. This 
includes waters off Clallam, Jefferson, Grays Harbor, and Pacific 
counties in Washington and Clatsop and Tillamook counties in Oregon.
    (ii) Coastal Washington/Northern Oregon Offshore Area: U.S. marine 
waters west of a line connecting Cape Flattery, Washington 
(48[deg]23'10'' N/124[deg]43'32'' W), Tatoosh Island, Washington 
(48[deg]23'30'' N/124[deg]44'12'' W), and Bonilla Point, British 
Columbia (48[deg]35'30'' N/124[deg]43'00'' W) south to Cape Meares, 
Oregon (45[deg]29'12'' N), between the 50-m and 200-m isobath contours. 
This includes waters off Clallam, Jefferson, Grays Harbor, and Pacific 
counties in Washington and Clatsop and Tillamook counties in Oregon.
    (iii) Central/Southern Oregon Coast Area: U.S. marine waters from 
Cape Meares, Oregon (45[deg]29'12'' N) south to the border between 
Oregon and California (42[deg]00'00'' N), between the 6.1-m and 200-m 
isobath contours. This includes waters off Tillamook, Lincoln, Lane, 
Douglas, Coos, and Curry counties in Oregon.
    (iv) Northern California Coast Area: U.S. marine waters from the 
border between Oregon and California (42[deg]00'00'' N) south to Cape 
Mendocino, California (40[deg]26'19'' N), between the 6.1-m and 200-m 
isobath contours. This includes waters off Del Norte and Humboldt 
counties in California
    (v) North Central California Coast Area: U.S. marine waters from 
Cape Mendocino, California (40[deg]26'19'' N) south to Pigeon Point, 
California (37[deg]11'00'' N), between the 6.1-m and 200-m isobath 
contours. This includes waters off Humboldt, Mendocino, Sonoma, Marin, 
San Francisco, and San Mateo counties in California.
    (vi) Monterey Bay Area: U.S. marine waters from Pigeon Point, 
California (37[deg]11'00'' N) south to Point Sur, California 
(36[deg]18'00'' N), between the 6.1-m and 200-m isobath contours. This 
includes waters off San Mateo, Santa Cruz, and Monterey counties in 
California.
    (b) Essential features. The essential features for the conservation 
of Southern Resident killer whales are the following:
    (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.
    (c) Sites owned or controlled by the Department of Defense. 
Critical habitat does not include the following particular areas owned 
or controlled by the Department of Defense, or designated for its use, 
in the State of Washington, including shoreline, nearshore areas around 
structures such as docks and piers, and marine areas where they overlap 
with the areas described in paragraph (a) of this section:
    (1) Naval Undersea Warfare Center, Keyport;
    (2) Naval Ordnance Center, Port Hadlock (Indian Island);
    (3) Naval Fuel Depot, Manchester;
    (4) Naval Air Station, Whidbey Island;
    (5) Naval Station, Everett;
    (6) Naval Hospital Bremerton;
    (7) Fort Lewis (Army);
    (8) Pier 23 (Army);
    (9) Puget Sound Naval Ship Yard;
    (10) Strait of Juan de Fuca naval air-to-surface weapon range, 
restricted area;
    (11) Strait of Juan de Fuca and Whidbey Island naval restricted 
areas;
    (12) Admiralty Inlet naval restricted area;
    (13) Port Gardner Naval Base restricted area;
    (14) Port Orchard Passage naval restricted area;
    (15) Sinclair Inlet naval restricted area;
    (16) Carr Inlet naval restricted area;
    (17) Port Townsend/Indian Island/Walan Point naval restricted area;
    (18) Crescent Harbor Explosive Ordnance Units Training Area; and
    (19) Quinault Range (including the surf zone at Pacific Beach) and 
a 10-km buffer around the Quinault Range.
    (d) Maps of Southern Resident killer whale critical habitat.
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[FR Doc. 2019-20166 Filed 9-18-19; 8:45 am]
BILLING CODE 3510-22-C