Endangered and Threatened Wildlife and Plants: Proposed Rulemaking To Designate Critical Habitat for the Main Hawaiian Islands Insular False Killer Whale Distinct Population Segment, 51186-51209 [2017-23978]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Proposed Rules]
[Pages 51186-51209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23978]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 224 and 226

[Docket No. 120815341-7866-01]
RIN 0648-BC45


Endangered and Threatened Wildlife and Plants: Proposed 
Rulemaking To Designate Critical Habitat for the Main Hawaiian Islands 
Insular False Killer Whale Distinct Population Segment

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, NMFS, propose to designate critical habitat for the Main 
Hawaiian Islands insular false killer whale (Pseudorca crassidens) 
distinct population segment by designating waters from the 45-meter (m) 
depth contour to the 3200-m depth contour around the main Hawaiian 
Islands from Niihau east to Hawaii, pursuant to section 4 of the 
Endangered Species Act (ESA). Based on considerations of economic and 
national security impacts, we propose to exclude the following areas 
from designation because the benefits of exclusion outweigh the 
benefits of inclusion and exclusion will not result in extinction of 
the species: The Bureau of Ocean Energy Management's Call Area offshore 
of the Island of Oahu, the Pacific Missile Range Facilities Offshore 
ranges (including the Shallow Water Training Range, the Barking Sands 
Tactical Underwater Range, and the Barking Sands Underwater Range 
Extension), the Kingfisher Range, Warning Area 188, Kaula and Warning 
Area 187, Fleet Operational Readiness Accuracy Check Site Range, the 
Shipboard Electronic Systems Evaluation Facility, Warning Areas 196 and 
191, and Warning Areas 193 and 194. In addition, the Ewa Training 
Minefield and the Naval Defensive Sea Area are precluded from 
designation under section 4(a)(3) of the ESA because they are managed 
under the Joint Base Pearl Harbor-Hickam Integrated Natural Resource 
Management Plan that we find provides a benefit to the Main Hawaiian 
Islands insular false killer whale. We are soliciting comments on all 
aspects of the proposal, including information on the economic, 
national security, and other relevant impacts. We will consider 
additional information received prior to making a final designation.

DATES: Comments must be received no later than 5 p.m. on January 2, 
2018.
    A public hearing will be held on December 7, 2017 at the Manoa 
Grand Ballroom, Japanese Cultural Center, 2454 South Beretania Street, 
Honolulu, HI 96826. Doors open at 6:00 p.m., and a presentation and 
hearing will begin at 6:30 p.m. Parking is available and will be 
validated.

ADDRESSES: You may submit comments, information, or data on this 
document, identified by NOAA-NMFS-2017-0093, and on the supplemental 
documents by either of the following methods:
    Electronic Submission: Submit all electronic comments via the 
Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0093, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
    Mail: Submit written comments to Susan Pultz, Chief, Conservation 
Planning and Rulemaking Branch, Protected Resources Division, National 
Marine Fisheries Service, Pacific Islands Regional Office, 1845 Wasp 
Blvd., Bldg. 176, Honolulu, HI 96818, Attn: MHI IFKW Critical Habitat 
Proposed Rule.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Pacific Islands 
Region, Chief, Conservation Planning and Rulemaking Branch, 808-725-
5150; or Lisa Manning, NMFS, Office of Protected Resources 301-427-
8466.

SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the 
ESA (16 U.S.C. 1533(b)(2)) and our implementing regulations (50 CFR 
424.12), this proposed rule is based on the best scientific information 
available concerning the range, biology, habitat and threats to the 
habitat of this distinct population segment (DPS). We have reviewed the 
information (e.g., provided in peer-reviewed literature, and technical 
documents) and have used it to identify the physical and biological 
features essential to the conservation of this DPS. Background 
documents on the biology and the economic impacts of the designation, 
and documents explaining the critical habitat designation process can 
be downloaded from https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing, or requested by phone 
or email from the NMFS staff in Honolulu (area code 808) listed under 
FOR FURTHER INFORMATION CONTACT.

Background

    On December 28, 2012, the main Hawaiian Islands (MHI) insular false 
killer whale (IFKW) (Pseudorca crassidens) DPS was listed as endangered 
throughout its range under the ESA (77 FR 70915; November 28, 2012). 
Under section 4 of the ESA, critical habitat shall be specified to the 
maximum extent prudent and determinable at the time a species is listed 
as threatened or endangered (16 U.S.C. 1533 (b)(6)(C)). In the final 
listing rule, we stated that critical habitat was not determinable at 
the time of the listing, because sufficient information was not 
currently available on the geographical area occupied by the species, 
the physical and biological features essential to conservation, and the 
impacts of the designation (77 FR 70915; November 28, 2012). Under 
section 4 of the ESA, if critical habitat is not determinable at the 
time of listing, a final critical habitat designation must be published 
1 year after listing (16 U.S.C. 1533 (b)(6)(C)(ii)). The Natural 
Resources Defense Council filed a complaint in July 2016 with the U. S. 
District Court for the District of Columbia seeking an order to compel 
NMFS to designate critical habitat for the MHI IFKW DPS, and a court-
approved settlement agreement was filed on January 24, 2017 (Natural 
Resources Defense Council, Inc. v. Penny Pritzker, National Marine 
Fisheries Services, 1:16-cv-1442 (D.D.C.)). The settlement agreement 
stipulates that NMFS will submit the proposed rule to the Office of the 
Federal Register by October 31, 2017, and the final rule by July 1, 
2018. This proposed rule describes the proposed critical habitat 
designation, including supporting information on MHI IFKW biology, 
distribution, and habitat use, and the methods used to develop the 
proposed designation.
    The ESA defines critical habitat under section 3(5)(A) as: ``(i) 
the specific areas within the geographical area occupied by the 
species, at the time it is listed . . . , on which are found those 
physical or biological features (I) essential to the

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conservation of the species and (II) which may require special 
management considerations or protection; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed . . . upon a determination by the Secretary that such areas are 
essential for the conservation of the species.'' (16 U.S.C. 
1532(5)(A)). Conservation is defined in section 3(3) of the ESA as ``. 
. . to use, and the use of, all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary . . .'' (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA 
provides that except in those circumstances determined by the 
Secretary, critical habitat shall not include the entire geographical 
area which can be occupied by the threatened or endangered species.
    Section 4(a)(3)(B) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DOD) or designated for its use, that are subject to an 
Integrated Natural Resources Management Plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species, 
and its habitat, for which critical habitat is proposed for 
designation. Although not expressly stated in section 4(b)(2), our 
regulations provide that critical habitat shall not be designated 
within foreign countries or in other areas outside of U.S. jurisdiction 
(50 CFR 424.12 (g)).
    Section 4(b)(2) of the ESA requires us to designate critical 
habitat for threatened and endangered species ``on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical 
habitat.'' This section also grants the Secretary of Commerce 
(Secretary) discretion to exclude any area from critical habitat if he 
determines ``the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat.'' However, the 
Secretary may not exclude areas if this ``will result in the extinction 
of the species.''
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they fund, authorize, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is additional to the section 
7(a)(2) requirement that Federal agencies ensure their actions are not 
likely to jeopardize the continued existence of ESA-listed species. 
Specifying the geographic location of critical habitat also facilitates 
implementation of section 7(a)(1) of the ESA by identifying areas where 
Federal agencies can focus their conservation programs and use their 
authorities to further the purposes of the ESA. Critical habitat 
requirements do not apply to citizens engaged in actions on private 
land that do not involve a Federal agency. However, designating 
critical habitat can help focus the efforts of other conservation 
partners (e.g., State and local governments, individuals, and 
nongovernmental organizations).
    This proposed rule describes information on the biology of this 
DPS, the methods used to develop the proposed designation, and our 
proposal to designate critical habitat for the MHI IFKW.

MHI IFKW Biology and Habitat Use

    The false killer whale is a large social odontocete (toothed 
whales) in the family Delphinidae. These whales are slender-bodied with 
black or dark gray coloration, although lighter areas may occur 
ventrally between the flippers or on the sides of the head. A 
prominent, falcate dorsal fin is located at about the midpoint of the 
back, and the tip can be pointed or rounded. The head lacks a distinct 
beak, and the melon tapers gradually from the area of the blowhole to a 
rounded tip. In males, the melon extends slightly further forward than 
in females. The pectoral fins have a unique shape among the cetaceans, 
with a distinct central hump creating an S-shaped leading edge (Oleson 
et al., 2010). The maximum size reported for a male is 610 centimeters 
(cm) (Leatherwood and Reeves 1983) and 506 cm for females (Perrin and 
Reilly 1984).
    False killer whales are long-lived, mature slowly, and reproduce 
infrequently (Baird 2009, Oleson et al., 2010). Maximum estimated age 
is reported at 63 years for females and 58 years for males (Kasuya 
1986, Odell and McClune 1999). Females may live 10-15 years beyond 
their reproductively active years, based on estimates of senescence of 
around 45 years old (Ferreira 2008). This post-reproductive period is 
seen in other social odontocetes, such as short-finned pilot whales and 
killer whales, and may play a role in allowing these animals to pass 
knowledge important to survival from one generation to the next 
(McAuliffe and Whitehead 2005, Oleson et al., 2010, Nichols et al. 
2016, Photopoulou et al., 2017).
    Like other odontocetes, false killer whales have highly complex 
acoustic sensory systems through which they produce, receive, and 
interpret sounds to support navigation, communication, and foraging (Au 
2000, Olsen et al., 2010). Similar to bats--these animals use 
echolocation (or biosonar) to locate objects within their environment 
by producing sounds, and then receiving and interpreting the returning 
echoes. These animals also vocalize to communicate with one another, 
and passively listen to natural and biological acoustic cues from the 
ocean and other animals to understand their environment (Au 2000).
    There are three categories of vocalizations that most odontocetes 
make, that support their ability to interpret the surrounding 
environment and to communicate with each other--echolocation clicks, 
burst-pulsed vocalizations, and whistles (Au 2000) (See the 
Vocalization, Hearing, and Underwater Sound section of the Draft 
Biological Report for generalized vocalization ranges for odontocetes, 
NMFS 2017a). Echolocation clicks (or click trains) and burst-pulsed 
sounds are sometimes described as a single category termed pulsed 
sounds/pulse trains (Murray et al., 1998). Functionally, echolocation 
clicks support orientation and navigation within the whale's 
environment, while burst-pulsed sounds and frequency modulated whistles 
are social signals (Au 2000). False killer whales produce sounds that 
meet all three categories and sometimes produce sounds that are 
intermediate or between categories (Murray et al., 1998). In addition 
to their dynamic vocalization capabilities, these whales can actively 
change their hearing sensitivity to optimize their ability to hear 
returning echoes or other sounds within their environment (Nachtigall 
and Supin 2008). Captive studies demonstrate false killer whales are 
able to perceive and distinguish harmonic combinations of sounds. This 
ability may facilitate communication and coordination among false 
killer whales as they travel (Yuen et al., 2007). Because vocalizations 
are a primary means of navigation, communication, and foraging, it is 
important that false killer whales are able to detect, interpret, and 
utilize acoustic cues within their surrounding environment.
    The soundscape--referring to ``all of the sound present in a 
particular location and time, considered as a whole''--varies spatially 
and temporally across habitats as the physical and biological 
attributes of habitats shift and the physical, biological, and 
anthropogenic factors that contribute to noise within that habitat 
change (Pijanowski et al., 2011a, Pijanowski et al., 2011b, Hatch et 
al., 2016). For

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example, water depth, salinity, and seabed type affect how well sound 
propagates in a habitat, so the soundscape will vary as those 
attributes change. Additionally, the soundscape differs by the sources 
that contribute to noise within the environment; these sources may be 
from physical, biological, or anthropogenic noise. Physical sources of 
noise (such as rain, wind, or waves) and biological sources of noise 
(made by the biological community within that habitat) may vary over 
time as weather patterns change or behavioral activity varies. For 
example, summer storm activity or breeding activity may alter the 
soundscape at different points of the year. Human activities that 
contribute to noise within habitats can vary widely in frequency 
content, duration, and intensity; consequently, anthropogenic sound 
sources may have varied effects on a habitat, depending on how that 
sound is propagated in the environment and what animals use that 
habitat (Hatch et al., 2016). Considering how human activities may 
change the soundscape and determining the biological significance of 
that change can be complex as it includes the consideration of many 
variables, such as the characteristics of human noise sources (e.g., 
frequency content, duration, and intensity); the ability of the animal 
of concern to produce sound, receive sound, and adapt to other sounds 
within their environment; the physical characteristics of the habitat; 
the baseline soundscape; and how the animal uses that habitat (Shannon 
et al., 2015, Hatch et al., 2016, Erbe et al., 2016). Noise with 
certain characteristics may cause animals to avoid or abandon important 
habitat, or can mask--or interfere with the detection, recognition, or 
discrimination of--important acoustic cues within that habitat (Gedamke 
et al., 2016). In these cases, the duration of the offending or masking 
noise will determine whether the effects or degradation to the habitat 
may be temporary or chronic and whether such alterations to the 
soundscape may alter the conservation value of that habitat. 
Ultimately, noise with certain characteristics (i.e., characteristics 
that can mask acoustic cues or deter MHI IFKWs) can negatively affect 
MHI IFKWs' ability to detect, interpret, and utilize acoustic cues 
within that habitat. Additional information about vocalization and 
hearing specific to false killer whales can be found in the Draft 
Biological Report (NMFS 2017a).
    Under the Marine Mammal Protection Act (MMPA), we recognize and 
manage three populations of false killer whales in Hawaii: the MHI 
Insular (i.e., IFKW), the Northwestern Hawaiian Islands, and the 
pelagic populations (Carretta et al., 2016). The MHI IFKW is the only 
population of false killer whale protected under the ESA, because this 
population was found to meet the DPS Policy (61 FR 4722; February 7, 
1996) criteria and was listed as endangered based on the DPS' high 
extinction risk and the insufficient conservation efforts in place to 
reduce that risk (77 FR 70915; November 28, 2012). Hereafter, we use 
``this DPS'' synonymous with the MHI IFKW to refer to this endangered 
population.
    Genetically distinct from the two other populations of false killer 
whales that overlap their range in Hawaii (Martien et al., 2014), MHI 
IFKWs are set apart from these and other false killer whales because 
they do not exhibit the pelagic and wide-ranging behaviors more 
commonly characteristic of false killer whales as a species. Instead, 
individuals of this DPS exhibit island-associated habitat use patterns, 
restricting their movements to the waters surrounding the main Hawaiian 
Islands (Oleson et al., 2010; Baird et al., 2012). With such a 
restricted range, this DPS relies entirely on the submerged habitats of 
the MHI for foraging, socializing, and reproducing. These behavior 
patterns may reflect in large part the unique habitat that the MHI 
offers in the middle of the Pacific basin. Specifically, the Hawaiian 
Islands are part of the Hawaiian-Emperor Seamount Chain; these 
submerged mountains disrupt and influence basin-wide oceanographic and 
atmospheric processes, and this disruption and influence, in turn, 
influence the productivity in the surrounding waters (Oleson et al., 
2010, Martien et al., 2014, Gove et al., 2016). Referred to as the 
``Island Mass Effect,'' islands (land surrounded by water) and atolls 
(a ring-shaped reef, or grouping of small islands surrounding a lagoon) 
can create a self-fueling cycle where the geomorphic type (atoll vs. 
island), bathymetric slope, reef area, and local human impacts (e.g., 
human-derived nutrient input) influence the phytoplankton biomass and 
the trophic-structure of the entire surrounding marine ecosystem (Doty 
and Oguri 1956, Gove et al., 2016). As a result, in the center of the 
North Pacific Ocean the Hawaiian Islands create biological hotspots 
(Gove et al., 2016), concentrating prey resources in and around 
different parts of the submerged island habitats. MHI IFKW behavioral 
patterns indicate that these whales are employing a foraging strategy 
that focuses on the pelagic portions of the submerged habitats of the 
MHI.

Population Status and Trends

    The 2015 Stock Assessment Report (SAR) provides the best estimate 
of population size for the MHI IFKW as 151 animals (CV=0.20) (Carretta 
et al., 2016). This estimate relies on an open population model from 
2006-2009 identified in the Status Review for the MHI insular stock and 
was reported as being a possible overestimate because it does not 
account for known missed matches of individuals within the photographic 
catalog (Oleson et al., 2010). The minimum population estimate for the 
MHI IFKW is reported as 92 false killer whales, which is the number of 
distinctive individuals identified in photo identification studies from 
2011-2014 by Baird et al. (2015) (Carretta et al., 2016). A complete 
history of MHI IFKW status and trends is unknown; however, the Status 
Review and the 2015 SAR provide an overview of information that 
suggests that this DPS has experienced a historical decline (Oleson et 
al., 2010, Carretta et al., 2016).

Group Dynamics and Social Networks

    As social odontocetes, false killer whales rely on group dynamics 
to support daily activities, including foraging; group structures also 
support these animals as they nurture young, socialize, and avoid 
predators. Studies in Hawaii indicate that MHI IFKWs are most commonly 
observed in groups (or subgroups) of about 10 to 20 animals; however, 
these groupings may actually be part of a larger aggregation of 
multiple subgroups that are dispersed over a wider area (Baird et al., 
2008, Reeves et al., 2009, Baird et al., 2010, Oleson et al., 2010). 
Baird et al. (2008) describes these larger groups (of many subgroups) 
as temporary, larger, loose associations of subgroups generally moving 
in a consistent direction and at a similar speed. These aggregations of 
subgroups may allow these whales to effectively search a large area for 
prey and converge when one sub-group locates a prey source (Baird 
2009). Yuen et al. (2007) notes that this species' capacity to 
distinguish and produce different combinations of sounds may play an 
important role in facilitating coordinated movements of subgroups and 
maintaining associations over wide areas.
    This DPS demonstrates social structure; observations from field 
studies indicate that uniquely identified individuals associate and 
regularly interact with at least one or more common individuals (Baird 
2009, Baird

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et al., 2010). Evidence from photo-identification and tracking studies 
suggests that somewhat stable bonds exist among individuals, lasting 
over periods of years (Baird et al., 2008, Baird et al., 2010). 
Further, genetic analyses of this DPS also suggest that both males and 
females exhibit philopatry to natal social clusters (meaning these 
animals stay within their natal groups), and that mating occurs both 
within and between social clusters (Martien et al., 2011).
    Social network analyses once divided the DPS into three broad 
social clusters based on these connections (Baird et al., 2012). 
However, increased information from field studies indicates more 
complexity in these social connections, and a fourth social cluster has 
been identified (Robin Baird, pers. communication October 2016 and June 
2017). Older analyses (before 2017) may only identify Clusters 1, 2, 
and 3; however, newer analyses will introduce information about Cluster 
4.

Range

    MHI IFKWs are found in the waters surrounding each of the main 
Hawaiian Islands (Niihau east to Hawaii). At the time of the ESA 
listing (2012) the range of the MHI IFKW DPS was described consistent 
with the range identified in the 2012 SAR under the MMPA as nearshore 
of the main Hawaiian Islands out to 140 kilometers (km) (approximately 
75 nautical miles) (77 FR 70915; November 28, 2012; Carretta et al., 
2013). New satellite-tracking data has since proved the range to be 
more restricted than that of the 2012 SAR description, especially on 
the windward sides of the islands (Bradford et al., 2015). NMFS revised 
the MHI IFKW's range in the 2015 SAR, under the MMPA (Carretta et al., 
2016), in accordance with a review and reevaluation of satellite 
tracking data by Bradford et al. (2015).
    Overall, tracking information from 31 MHI IFKWs (23 from Cluster 1, 
and 8 from Cluster 3) suggests that the DPS has a much smaller range 
than previously thought, and that the use of habitat is not uniform 
around the islands (Bradford et al., 2015). Specifically, MHI IFKWs 
show less offshore movement on the windward sides of the islands 
(maximum distance from shore of 51.4 km) than on the leeward sides of 
the islands (maximum distance from shore of 115 km). Acknowledging that 
the available tracking information has a seasonal bias (88.6 percent 
collected from August through January) and that data were lacking from 
Clusters 2 and 3, Bradford et al. (2015) set goals to refine the range 
in a manner that would reflect known differences in habitat use and 
allow for uncertainty in spatial and seasonal habitat use. The MHI 
IFKW's range was derived from a minimum convex polygon of a 72-km 
radius (~39 nautical miles) extending around the Main Hawaiian Islands, 
with the offshore extent of the radii connected on the leeward sides of 
Hawaii Island and Niihau to encompass the offshore movements within 
that region (see Figure 1). Since this analysis, a single individual 
from Cluster 2 and several more individuals from Cluster 3 were tagged; 
tracking locations received from these animals are contained within the 
revised boundary established by the 2015 SAR (Carretta et al., 2016; 
Baird, pers. communication November 7, 2016).
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Movement and Habitat Use

    As noted earlier, MHI IFKWs constitute an island-associated 
population of false killer whales that restrict their movement and 
foraging to waters surrounding the main Hawaiian Islands (Baird et al., 
2008, Baird et al., 2012). Within these waters, generally, this DPS is 
found in deeper areas just offshore, rather than the shallow nearshore 
habitats used by island-associated spinner or bottlenose dolphins 
(Baird et al., 2010). Within these deeper waters, MHI IFKWs 
circumnavigate the islands and quickly move throughout their range 
(Baird et al., 2008, Baird et al., 2012). For example, one individual 
moved from Hawaii to Maui to Lanai to Oahu to Molokai, covering a 
minimum distance of 449 km over a 96-hour period (Baird et al., 2010, 
Oleson et al., 2010). Overall tracking information demonstrates that 
individuals generally spent equal amounts of time on both leeward and 
windward sides of the islands; however, these animals exhibit greater 
offshore movements on the leeward sides of the islands, with reported 
distances as far as 122 km from shore (Baird et al., 2012).
    Baird et al. (2012) applied density analyses to tracking data to 
help distinguish significant MHI IFKW habitat areas and explored 
environmental characteristics that may define those areas. High-use 
areas for this DPS were described as the north side of the island of 
Hawaii (both east and west sides), a broad area extending from north of 
Maui to northwest of Molokai, and a small area to the southwest of 
Lanai. Habitat use appeared to vary based on social cluster. For 
example, the area off the north end of Hawaii was a high-use area only 
for individuals from Cluster 1, whereas the north side of Molokai was 
primarily high-use for Cluster 3 animals (Baird et al., 2012). Updates 
to this analysis, using newly available tracking information, indicate 
that high-use areas may extend further towards Oahu and into the 
channel between Molokai and Oahu (see the Draft Biological Report for a 
map of these areas and the updated information provided by Cascadia 
Research Collective). Due to the small and resident nature of this DPS, 
these high-use areas meet the definition of ``biologically important 
areas'' as established by NOAA's CetMap program, and are used to 
highlight areas that can assist resource managers with planning, 
analyses, and decisions regarding how to reduce adverse impacts to 
cetaceans resulting from human activities (Baird et al., 2015, Gedamke 
et al., 2016).
    Baird et al. (2012) compared physical and oceanographic 
characteristics of IFKW high-use and low-use areas of the range. 
Generally, they found that MHI IFKW high-use areas were on average 
shallower, closer to shore, and had gentler slopes compared to other 
areas of this DPS' range. Additionally, these areas had higher average 
surface chlorophyll-a concentrations (compared to low-use areas), which 
may be indicative of higher productivity. Baird et al. (2012) suggested 
that high-use areas may indicate habitats where

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IFKWs have increased foraging success and may be particularly important 
to the conservation of this DPS. Still, the data set was limited, and 
more high-use areas may be identified as information is gained from all 
social clusters and for all months of the year.
    Recent information suggests that estimated maximum dive depths once 
reported at 500 m (Cummings and Fish 1971) and later reported in excess 
of 600-700 m (Olsen et al., 2010, Minamikawa et al., 2013) may be 
underestimates for this species. This new information from tagged MHI 
IFKWs indicates that these animals are capable of diving deeper than 
reported earlier. Data received from depth-transmitting LIMPET (Low 
Impact Minimally Percutaneous Electronic Transmitter) satellite tags on 
four MHI IFKWs (3 from Cluster 3, and 1 from Cluster 1) demonstrate a 
maximum dive depth of 1,272 m, with maximum dive durations reported as 
13.85 minutes (Baird, pers communication, March 2017). Looking at 
information from all four animals, average maximum dive depths were 
similar during the day and night (912 m and 1,019 m respectively). The 
data demonstrate that these animals are diving greater than 50 m about 
twice as often during the day (0.72 dives/hour) than at night (0.35 
dives/hour) (Baird pers communication, March 2017). In summary, limited 
data (from four individuals tagged in 2010 during the months of October 
and December) still indicate that a majority of foraging activity 
happens during the day, but that some nighttime activity also includes 
foraging.

Diet

    Literature on false killer whales indicates the species eats 
primarily fish and squid (Oleson et al., 2010, Ortega-Ortiz et al., 
2014, Clarke 1996). This DPS' restricted range surrounding the Hawaiian 
Islands is a unique ecological setting for false killer whales. 
Accordingly, the foraging strategies and prey preferences of this DPS 
likely differ somewhat from that of their pelagic counterparts (Oleson 
et al., 2010). Still, studies examining the diet of this DPS suggest 
that pelagic fish and squid remain primary prey targets. Table 2 of the 
Draft Biological Report provides a list of prey species identified from 
field observations and stomach content analyses, as well as potential 
prey species determined from depredation data of the longline 
fisheries; this list includes large pelagic game fish, including 
dolphinfish (mahi-mahi), wahoo, several species of tuna, and marlin 
(NMFS 2017a).
    Little is known about diet composition, prey preferences, or 
potential differences between the diets of MHI IFKWs of different age, 
size, sex, or even social cluster, and different methodologies create 
different biases about common prey items. From field studies, Baird et 
al. (2008) reports dolphinfish (mahi-mahi) as the most commonly 
observed prey, among other pelagic species reported. However, 
observations are limited to those foraging events where MHI IFKWs are 
found at or near the water's surface. In comparison, stomach content 
analysis from five MHI IFKWs that stranded off the Island of Hawaii 
(from 2010-2016) indicates that squid may play an important role in the 
diet along with other pelagic fish species (West 2016). Notably, data 
from stomach content analyses are from 5 whales identified as part of 
social Cluster 3, and it is unknown if this information may reflect 
differences in foraging preferences or strategy between social 
clusters, or if the relative health of these individuals may have 
influenced prey consumption just prior to death. Tracking information 
and observational data demonstrate that social clusters may 
preferentially use some areas of the range over others. For example, 
Cluster 2 individuals are seen more often than expected off the Island 
of Hawaii, and differences were noted between the preferences of 
Clusters 1 and 3 for certain high-use areas (Baird et al., 2012). 
However, without additional data, it is difficult to know if these 
differences in habitat use may also reflect subtle differences in prey 
preference.
    The Status Review determined the energy requirements for the IFKW 
DPS based on a model developed by Noren (2011) for killer whales 
(Oleson et al., 2010). Using the best population estimate of 151 
animals from the recent SAR, this DPS consumes approximately 2.6 to 3.5 
million pounds (1.2 to 1.6 million kilograms) of fish annually, 
depending on the whale population age structure used (see Oleson et 
al., 2010 for calculation method) (Brad Hanson, NMFS Northwest 
Fisheries Science Center (NWFSC), pers. communication 2017).
    As noted above, the Hawaiian Islands create biological hotspots 
that aggregate species at all trophic levels, including pelagic fish 
and squid (Gove et al., 2016, Bower et al., 1999, Itano and Holland 
2000). In the same way that false killer whales exploit the resources 
of these islands, some large pelagic fish and squid also demonstrate 
island-associated patterns utilizing island resources and phenomena to 
support foraging or breeding activities (Bower et al., 1999, Itano and 
Holland 2000, Seki et al., 2002). Examples include: Several species of 
squid that show increased spawning near the MHI to take advantage of 
higher productivity regions (Bower et al., 1999); yellowfin tuna in 
Hawaii that appear to exhibit an island-associated, inshore-spawning 
run, peaking in the June-August period (Itano and Holland 2000); and 
eddies created by the influence of the islands that are known to 
concentrate prey resources of larger game fish (Seki et al., 2002). 
Understanding the geographic extent and temporal aspects of overlap 
with prey species that demonstrate these island-associated patterns may 
provide further insight into factors that influence the diet of this 
DPS. Most of the species identified in Table 2 of the Draft Biological 
Report (NFMS 2017a) are species that are pelagic in nature, but that 
are found year-round in Hawaii's waters. Distribution of these large 
pelagic fish varies with seasonal changes in ocean temperature (Oleson 
et al., 2010). Scrawled filefish and the threadfin jack are commonly 
associated with reef systems but are also found in the coastal open 
water areas surrounding Hawaii (Oleson et al., 2010). Without further 
information about prey preferences, it is difficult to determine where 
prey resources of higher value exist for this DPS. However, foraging 
activities likely occur throughout the range, as this species takes 
advantage of patchily distributed prey resources.

Critical Habitat Identification

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and our implementing regulations, and the key 
information and criteria used to prepare this proposed critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations at 50 CFR part 424, this proposed rule is 
based on the best scientific data available.
    To assist with identifying potential MHI IFKW critical habitat 
areas, we convened a critical habitat review team (CHRT) consisting of 
five NMFS staff with experience working on issues related to MHI IFKWs 
and Hawaii's pelagic ecosystem. The CHRT used the best available 
scientific data and its best professional judgment to: (1) Determine 
the geographical area occupied by the DPS at the time of listing, (2) 
identify the physical and biological features essential to the 
conservation of the species, and (3) identify specific areas within the 
occupied area containing those essential physical and biological 
features. The CHRT's evaluation and

[[Page 51192]]

recommendations are described in detail in the Draft Biological Report 
(NFMS 2017a). Beyond the description of the areas, the critical habitat 
designation process includes two additional steps: (4) Identify whether 
any area may be precluded from designation because the area is subject 
to an Integrated Natural Resources Management Plan (INRMP) that we have 
determined provides a benefit to the DPS, and (5) consider the 
economic, national security, or any other impacts of designating 
critical habitat and determine whether to exercise our discretion to 
exclude any particular areas. These consideration processes are 
described further in the Draft ESA Section 4(b)(2) report (NMFS 2017b), 
and economic impacts of this designation are described in detail in the 
draft Economic Report (Cardno 2017).

Physical and Biological Features Essential for Conservation

    The ESA does not specifically define physical or biological 
features; however, court decisions and joint NMFS-USFWS regulations at 
50 CFR 424.02 (81 FR 7413; February 11, 2016) provide guidance on how 
physical or biological features are expressed.
    Physical and biological features support the life-history needs of 
the species, including but not limited to, water characteristics, soil 
type, geological features, sites, prey, vegetation, symbiotic species, 
or other features. A feature may be a single habitat characteristic, or 
a more complex combination of habitat characteristics that support 
ephemeral or dynamic habitat conditions. Features may also be expressed 
in terms relating to principles of conservation biology, such as patch 
size, distribution distances, and connectivity. The features may also 
be combinations of habitat characteristics and may encompass the 
relationship between characteristics or the necessary amount of a 
characteristic needed to support the life history of the species.
    Based on the best available scientific information, the CHRT 
identified specific biological and physical features essential for the 
conservation of the Hawaiian IFKW DPS, to include the following:
    (1) Island-associated marine habitat for MHI insular false killer 
whales.
    MHI IFKWs are an island-associated population of false killer 
whales that relies entirely on the productive submerged habitats of the 
main Hawaiian Islands to support all of their life-history stages. 
Adapted to an island-associated foraging strategy and ecology, these 
whales are generally found in deeper waters just offshore, moving 
primarily throughout and among the shelf and slope habitat on both the 
windward and leeward sides of all the islands. These areas offer a wide 
range of depths for IFKWs to travel, forage, and move freely around and 
between the main Hawaiian Islands.
    (2) Prey species of sufficient quantity, quality, and availability 
to support individual growth, reproduction, and development, as well as 
overall population growth.
    MHI IFKWs are top predators that feed on a variety of large pelagic 
fish as well as squid. Within waters surrounding the main Hawaiian 
Islands, habitat conditions that support the successful growth, 
recruitment, and nutritional quality of prey are necessary to support 
the individual growth, reproduction, and development of MHI IFKWs.
    (3) Waters free of pollutants of a type and amount harmful to MHI 
insular false killer whales.
    Water quality plays an important role as a feature that supports 
the MHI IFKW's ability to forage and reproduce free from disease and 
impairment. Biomagnification of some pollutants can adversely affect 
health in these top marine predators, causing immune suppression, 
decreased reproduction, or other impairments. Water pollution and 
changes in water temperatures may also increase pathogens, naturally 
occurring toxins, or parasites in surrounding waters. Environmental 
exposure to these toxins may adversely affect their health or ability 
to reproduce.
    (4) Habitat free of anthropogenic noise that would significantly 
impair the value of the habitat for false killer whales' use or 
occupancy.
    False killer whales rely on their ability to produce and receive 
sound within their environment to navigate, communicate, and detect 
predators and prey. Anthropogenic noise of a certain level, intensity, 
and duration can alter these whales' ability to detect, interpret, and 
utilize acoustic cues that support important life history functions, or 
can result in long-term habitat avoidance or abandonment. Long-term 
changes to habitat use or occupancy can reduce the benefits that the 
animals receive from that environment (e.g., opportunities to forage or 
reproduce), thereby reducing the value that habitat provides for 
conservation. Habitats that support conservation of MHI insular false 
killer whales allow these whales to employ sound within their 
environment to support important life history functions.
    NMFS has coordinated with numerous federal agencies on this 
essential feature. As a result, NMFS is seeking additional relevant 
information to assist us in evaluating whether it is appropriate to 
include ``habitat free of anthropogenic noise that would significantly 
impair the value of the habitat for false killer whales' use or 
occupancy'' as a feature essential to the conservation of MHI IFKWs in 
the final rule and, if so, what scientific data are available that 
would assist action agencies and NMFS in determining noise levels that 
result in adverse modification or destruction, such as by inhibiting 
communication or foraging activities, or causing the abandonment of 
critical habitat areas (see Public Comments Solicited). If we determine 
that a noise essential feature is not appropriate, we will update the 
economic analysis and any other relevant documents accordingly.

Geographical Area Occupied by the Species

    One of the first steps in the critical habitat revision process was 
to define the geographical area occupied by the species at the time of 
listing and to identify specific areas, within this geographically 
occupied area, that contain at least one of the essential features that 
may require special management considerations or protection. As noted 
earlier, the best available information indicates that the range of 
this DPS is smaller than identified at the time of listing (77 FR 
70915, November 28, 2012; Bradford et al., 2015). After reviewing 
available information, the CHRT noted, and we agree, that the range 
proposed by Bradford et al. (2015), and recognized in the 2015 NMFS 
Stock Assessment Report, provides the best available information to 
describe the areas occupied by this DPS, because this range includes 
all locations tagged animals have visited in Hawaii's surrounding 
waters and accommodates for uncertainty in the data (see Range above). 
Therefore, the area occupied by the DPS is the current range shown in 
Figure 1 and identified in the 2015 SAR, which includes 188,262 km\2\ 
(72,688 mi\2\) of marine habitat surrounding the MHI (Carretta et al., 
2016).
    To be eligible for designation as critical habitat under the ESA's 
definition of occupied areas, each specific area must contain at least 
one essential feature that may require special management 
considerations or protection. To meet this standard, the CHRT concluded 
that false killer whale tracking data would provide the best available 
information to identify habitat use patterns by these whales and to 
recognize where the physical and

[[Page 51193]]

biological features essential to their conservation exist. Cascadia 
Research Collective provided access to MHI IFKW tracking data for the 
purposes of identifying critical habitat for this DPS. Due to the 
unique ecology of this island-associated population, habitat use is 
largely driven by depth. Thus, the features essential to the species' 
conservation are found in those depths that allow the whales to travel 
throughout a majority of their range seeking food and opportunities to 
socialize and reproduce.
    One area has been identified as including the essential features 
for the MHI IFKW DPS; this area ranges from the 45-m depth contour to 
the 3200-m depth contour in waters that surround the main Hawaiian 
Islands from Niihau east to the Island of Hawaii (see the draft 
Biological Report for additional detail). As noted above, MHI IFKWs are 
generally found in deeper areas just offshore, rather than shallow 
nearshore areas (Baird et al., 2010). MHI IFKW locations were used to 
identify a nearshore depth at which habitat use by MHI IFKWs may be 
more consistent. Specifically, at depths less than 45 m MHI IFKW 
locations are infrequent (less than 2 percent of locations are captured 
at these depths), and there does not appear to be a spatial pattern 
associated with these shallower depth locations (i.e., locations were 
not clumped in specific areas). The frequency of MHI IFKW locations 
increases at depths greater than 45 m and appears to demonstrate more 
consistent use of marine habitat beyond this depth. The 45-m depth 
contour was selected to delineate the inshore extent of areas that 
would include the essential features for MHI IFKWs based on these 
patterns in the IFKW data.
    An outer boundary of the 3200-m depth contour was selected to 
incorporate those areas of island-associated habitat where MHI IFKWs 
are known to spend a larger proportion of their time, and to include 
island-associated habitat that allows for movement between and around 
each island. This full range of depths--from the 45-m to the 3200-m 
depth contours--incorporates a majority of the tracking locations of 
MHI IFKW and includes those island-associated habitats and features 
essential to the MHI IFKWS DPS. This area under consideration for 
critical habitat includes 56,821 km\2\ (21,933 mi\2\) or 30 percent of 
the MHI IFKW DPS' range.

Need for Special Management Considerations or Protection

    Joint NMFS and USFWS regulations at 50 CFR 424.02 define special 
management considerations or protection to mean methods or procedures 
useful in protecting physical and biological features essential to the 
conservation of listed species.
    Several activities were identified that may threaten the physical 
and biological features essential to conservation such that special 
management considerations or protection may be required, based on 
information from the MHI IFKW Recovery Outline, Status Review for this 
DPS, and discussions from the Main Hawaiian Islands Insular False 
Killer Whale Recovery Planning Workshop (Oleson et al., 2010, NMFS 
2016). Major categories of activities include: (1) In-water 
construction (including dredging); (2) energy development (including 
renewable energy projects); (3) activities that affect water quality; 
(4) aquaculture/mariculture; (5) fisheries; (6) environmental 
restoration and response activities (including responses to oil spills 
and vessel groundings, and marine debris clean-up activities); and (7) 
some military activities. All of these activities may have an effect on 
one or more of the essential features by altering the quantity, quality 
or availability of the features that support MHI IFKW critical habitat. 
This is not an exhaustive or complete list of potential effects; rather 
it is a description of the primary concerns and potential effects that 
we are aware of at this time and that should be considered in 
accordance with section 7 of the ESA when Federal agencies authorize, 
fund, or carry out these activities. The draft Biological Report (NMFS 
2017a) and draft Economic Analysis Report (Cardno 2017) provide a more 
detailed description of the potential effects of each category of 
activities and threats on the essential features. For example, 
activities such as in-water construction, energy projects, aquaculture 
projects, and some military activities may have impacts on one or more 
of the essential features.

Unoccupied Critical Habitat Areas

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
``specific areas outside the geographical area occupied'' at the time 
the species is listed, if the Secretary determines ``that such areas 
are essential for the conservation of the species.'' There is 
insufficient evidence at this time to indicate that areas outside the 
present range are essential for the conservation of this DPS; 
therefore, no unoccupied areas were identified for designation.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
DOD, or designated for its use, that are subject to an INRMP prepared 
under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such a plan provides a benefit to the 
species for which critical habitat is proposed for designation.
    Regulations at 50 CFR 424.12(h) provide that in determining whether 
an applicable benefit is provided by a ``compliant or operational'' 
plan, we will consider:
    (1) The extent of the area and features present;
    (2) The type and frequency of use of the area by the species;
    (3) The relevant elements of the INRMP in terms of management 
objectives, activities covered, and best management practices, and the 
certainty that the relevant elements will be implemented; and
    (4) The degree to which the relevant elements of the INRMP will 
protect the habitat from the types of effects that would be addressed 
through a destruction-or-adverse-modification analysis.
    In May 2017, we requested information from the DOD to assist in our 
analysis. Specifically, we asked for a list of facilities that occur 
within the potential critical habitat areas and available INRMPs for 
those facilities. The U.S. Navy stated that areas subject to the Joint 
Base Pearl Harbor Hickam (JBPHH) INRMP overlap with the areas under 
consideration for MHI IFKW critical habitat; no other INRMPs were 
identified as overlapping with the potential designation. The JBPHH 
INRMP provided by the Navy was signed in 2012. The Naval Defensive Sea 
Area (NDSA) and the Ewa Training Minefield are subject to the JBPHH 
INRMP and overlap approximately 23 km\2\ (~9 mi\2\) and 4 km\2\ (~1.5 
mi\2\), respectively, with the areas under consideration for MHI IFKW 
critical habitat. Satellite-tracking information indicates that these 
areas are low-use or (low-density) areas for MHI IFKWs (Baird et al., 
2012). This INRMP was drafted prior to the ESA listing of the MHI IFKW 
and it currently does not incorporate conservation measures that are 
specific to MHI IFKWs. This plan is compliant through the end of 2017 
and the Navy will review and update the JBPHH INRMP starting in 2018, 
which will include additional information about how on-going 
conservation

[[Page 51194]]

measures at JBPHH support MHI IFKWs and their habitat.
    In the response to NMFS' request for information about this INRMP, 
the Navy outlined several elements of the 2012 INRMP and ongoing 
conservation measures that may benefit the MHI IFKW and their habitat, 
including: Fishing restrictions adjacent to and within areas that 
overlap the potential designation; creel surveys that provide 
information about fisheries in unrestricted areas of Pearl Harbor; 
restrictions on free roaming cats and dogs in residential areas; feral 
animal removal; participation in the Toxoplasmosis and At-large Cat 
Technical working group (which focuses on providing technical 
information to support policy decisions to address the effects of 
toxoplasmosis on protected wildlife and provides education and outreach 
materials on the impacts that free-roaming cats have on Hawaii's 
environment); efforts taken to prevent and reduce the spread of 
biotoxins and contaminants from Navy lands (including best management 
practices, monitoring for contamination, restoration of sediments, and 
spill prevention); a Stormwater Management Plan and a Stormwater 
Pollution Control Plan associated with their National Pollutant 
Discharge Elimination System (NPDES); and coastal wetland habitat 
restoration projects.
    Although the JBPHH INRMP does not specifically address the MHI 
IFKW, we agree that several of the above measures support the 
protection of the IFKW and the physical and biological features 
identified for this designation. Specifically, the Navy's efforts 
focused on preventing the spread of toxoplasmosis, biotoxins, and other 
contaminants to the marine environment provide protections for MHI IFKW 
water quality and address threats to this feature; these threats are 
identified in our draft Biological Report (NMFS 2017a). Further, 
efforts to support coastal wetland habitat restoration provide 
protections for MHI IFKW water quality and provide ancillary benefits 
to MHI IFKW prey, which also rely on these marine ecosystems. 
Additionally, fishery restrictions in the NDSA and Ewa Training 
Minefield provide protections to MHI IFKW prey within the limited 
overlap areas. Some of the protections associated with the management 
of stormwater and pollution address effects that would otherwise be 
addressed through an adverse modification analysis. Other protections, 
associated with the spread of toxoplasmosis to the marine environment 
or that enhance prey, address effects to MHI IFKW habitat that 
otherwise may not be subject to a section 7 consultation or an adverse 
modification analysis because the activities that create these 
stressors are not funded, carried out, or authorized by a Federal 
agency. In these instances, the Navy's INRMP provides protections 
aligned with 7(a)(1) of the ESA, which instructs Federal agencies to 
aid in the conservation of listed species.
    After consideration of the above factors, we have determined that 
the Navy's JBPHH INRMP provides a benefit to the MHI IFKW and its 
habitat. In accordance with 4(a)(3)(B)(i) of the ESA, the Ewa Training 
Minefield, and the Naval Defense Sea Area, both found south of Oahu, 
are not eligible for designation of MHI IFKW critical habitat.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires the Secretary to consider the 
economic, national security, and any other relevant impacts of 
designating any particular area as critical habitat. Any particular 
area may be excluded from critical habitat if the Secretary determines 
that the benefits of excluding the area outweigh the benefits of 
designating the area. The Secretary may not exclude a particular area 
from designation if exclusion will result in the extinction of the 
species. Because the authority to exclude is discretionary, exclusion 
is not required for any areas. In this proposed designation, the 
Secretary has applied statutory discretion to exclude 10 occupied areas 
from critical habitat where the benefits of exclusion outweigh the 
benefits of designation for the reasons set forth below.
    In preparation for the ESA section 4(b)(2) analysis we identified 
the ``particular areas'' to be analyzed. The ``particular areas'' 
considered for exclusion are defined based on the impacts that were 
identified. We considered economic impacts and weighed the economic 
benefits of exclusion against the conservation benefits of designation 
for two particular areas where economic impacts were identified as 
being potentially much higher than the costs of administrative efforts 
and where impacts were geographically concentrated. We also considered 
exclusions based on impacts on national security. Delineating 
particular areas based on impacts on national security was based on 
land ownership or control (e.g., land controlled by the DOD within 
which national security impacts may exist) or on areas identified by 
DOD as supporting particular military activities. We request 
information on other relevant impacts that should be considered (see 
``Public Comments Solicited''). For each particular area we identified 
the impacts of designation (i.e., the costs of designation). These 
impacts of designation are equivalent to the benefits of exclusion. We 
also consider the benefits achieved from designation or the 
conservation benefits that may result from a critical habitat 
designation in that area. We then weigh the benefits of designation 
against the benefits of exclusion to identify areas where the benefits 
of exclusion outweigh the benefits of designation. These steps and the 
resulting list of areas proposed for exclusion from designation are 
described in detail in the sections below.

Impacts of Designation

    The primary impact of a critical habitat designation stems from the 
requirement under section 7(a)(2) of the ESA that Federal agencies 
ensure that their actions are not likely to result in the destruction 
or adverse modification of critical habitat. Determining this impact is 
complicated by the fact that section 7(a)(2) contains the overlapping 
requirement that Federal agencies must also ensure their actions are 
not likely to jeopardize the species' continued existence. One 
incremental impact of the designation is the extent to which Federal 
agencies modify their actions to ensure their actions are not likely to 
destroy or adversely modify the critical habitat of the species, beyond 
any modifications they would make because of the listing and the 
jeopardy requirement. When the same modification would be required due 
to impacts to both the species and critical habitat, the impact of the 
designation is considered co-extensive with the ESA listing of the 
species (i.e., attributable to both the listing of the species and the 
designation of critical habitat). Additional impacts of designation 
include State and local protections that may be triggered as a result 
of the designation, and the benefits from educating the public about 
the importance of each area for species conservation. Thus, the impacts 
of the designation include conservation impacts for MHI IFKWs and its 
habitat, economic impacts, impacts on national security and other 
relevant impacts that may result from the designation and the 
application of ESA section 7(a)(2).
    In determining the impacts of designation, we focused on the 
incremental change in Federal agency actions as a result of critical 
habitat designation and the adverse modification provision, beyond the

[[Page 51195]]

changes predicted to occur as a result of listing and the jeopardy 
provision. Following a line of recent court decisions (including 
Arizona Cattle Growers Association v. Salazar, 606 F. 3d 1160 (9th Cir. 
2010), cert. denied, 562 U.S. 1216 (2011 (Arizona Cattle Growers); and 
Home Builders Association of Northern California et al., v. U.S. Fish 
and Wildlife Service, 616 F.3d 983 (9th Cir. 2010), cert. denied, 562 
U.S. 1217 (2011) (Home Builders)), economic impacts that occur 
regardless of the critical habitat designation are treated as part of 
the regulatory baseline and are not factored into the analysis of the 
effects of the critical habitat designation. In other words, we focus 
on the potential incremental impacts beyond the impacts that would 
result from the listing and jeopardy provision. In some instances, 
potential impacts from the critical habitat designation could not be 
distinguished from protections that may already occur under the 
baseline (i.e., protections already afforded MHI IFKWs under its 
listing or under other Federal, state, and local regulations). For 
example, the project modifications needed to prevent destruction or 
adverse modification of critical habitat may be similar to the project 
modifications necessary to prevent jeopardy to the species in an area. 
The extent to which these modifications differ may be project specific, 
and the incremental changes or impacts to the project may be difficult 
to tease apart without further project specificity.
    Once we determined the impacts of the designation, we then 
determined the benefits of designation and the benefits of exclusion 
based on the impacts of the designation. The benefits of designation 
include the conservation impacts for MHI IFKWs and their habitat that 
result from the critical habitat designation and the application of ESA 
section 7(a)(2). The benefits of exclusion include avoidance of the 
economic, national security, and other relevant impacts (e.g., impacts 
on conservation plans) of the designation if a particular area were to 
be excluded from the critical habitat designation. The following 
sections describe how we determined the benefits of designation and the 
benefits of exclusion, and how those benefits were considered, as 
required under section 4(b)(2) of the ESA, to identify particular areas 
that may be eligible for exclusion from the designation. We also 
summarize the results of our weighing process and determinations of the 
areas that may be eligible for exclusion (for additional information 
see the Draft ESA Section 4(b)(2) Report (NMFS 2017b)).

Benefits of Designation

    The primary benefit of designation is the protection afforded under 
section 7(a)(2) of the ESA, requiring all Federal agencies to ensure 
their actions are not likely to destroy or adversely modify designated 
critical habitat. This is in addition to the requirement that all 
Federal agencies ensure their actions are not likely to jeopardize the 
continued existence of the species. Section 7(a)(1) of the ESA also 
requires all Federal agencies to use their authorities in furtherance 
of the purposes of the ESA by carrying out programs for the 
conservation of endangered and threatened species. Another benefit of 
critical habitat designation is that it provides specific notice of the 
features essential to the conservation of the MHI IFKW DPS and where 
those features occur. This information will focus future consultations 
and other conservation efforts on the key habitat attributes that 
support conservation of this DPS. There may also be enhanced awareness 
by Federal agencies and the general public of activities that might 
affect those essential features. Accordingly, identification of these 
features may improve discussions with action agencies regarding 
relevant habitat considerations of proposed projects.
    In addition to the protections described above, Chapter 12 of the 
draft Economic Report (Cardno 2017) discusses other forms of indirect 
benefits that may be attributed to the designation, including but not 
limited to, use benefits, and non-use or passive use benefits (Cardno 
2017). Use benefits include positive changes that protections 
associated with the designation may provide for resource users, such as 
increased fishery resources, sustained or enhanced aesthetic appeal in 
ocean areas, or sustained wildlife-viewing opportunities. Non-use or 
passive benefits include those independent of resource use, where 
conservation of MHI IFKW habitat aligns with beliefs or values held by 
particular entities (e.g., existence, bequest, and cultural values) 
(Cardno 2017). More information about these types of values may be 
found in Chapter 12 of the draft Economic Report (Cardno 2017).
    Most of these benefits are not directly comparable to the costs of 
designation for purposes of conducting the section 4(b)(2) analysis 
described below. Ideally, benefits and costs should be compared on 
equal terms (e.g., apples to apples); however, there is insufficient 
information regarding the extent of the benefits and the associated 
values to monetize all of these benefits. We have not identified any 
available data to monetize the benefits of designation (e.g., estimates 
of the monetary value of the essential features within areas designated 
as critical habitat, or of the monetary value of education and outreach 
benefits). Further, section 4(b)(2) also requires that we consider and 
weigh impacts other than economic impacts that may be intangible and do 
not lend themselves to quantification in monetary terms, such as the 
benefits to national security of excluding areas from critical habitat. 
Given the lack of information that would allow us either to quantify or 
monetize the benefits of the designation for MHI IFKWs discussed above, 
we determined that conservation benefits should be considered from a 
qualitative standpoint. In determining the benefits of designation, we 
considered a number of factors. We took into account MHI IFKW use of 
the habitat, the existing baseline protections that may protect that 
habitat regardless of designation, and how essential features may be 
affected by activities that occur in these areas if critical habitat 
were not designated. These factors combined provided an understanding 
of the importance of protecting the habitat for the overall 
conservation of the DPS.
    Generally, we relied on density analysis of satellite-tracking data 
to provide information about MHI IFKW habitat use. Cascadia Research 
Collective supplied these data (using the methods previously outlined 
in Baird et al., 2012) to support NMFS' critical habitat designation. 
The data included information from 27 tagged individuals (18 from 
Cluster 1, 1 from Cluster 2, 7 from Cluster 3, and 1 from Cluster 4) 
(Baird pers. communication June 2017). For maps of these areas see the 
Draft ESA Section 4(b)(2) Report (NMFS 2017b). High-use areas denote 
areas where satellite-tracking information indicates MHI IFKWs spend 
more time. Due to the increased time spent in these areas, we inferred 
that these high-use areas have a higher conservation value than low-use 
areas of the range. As noted in the draft Biological Report (NMFS 
2017a), there is limited representation among social clusters in the 
tracking data, and information received does not span the full calendar 
year. Therefore, this data set may not be fully representative of MHI 
IFKWs' habitat use. Where available, we included additional information 
that may supplement our understanding of MHI IFKW habitat use patterns 
(e.g.,

[[Page 51196]]

patterns of MHI IFKW habitat use from observational studies). 
Generally, we describe high-use areas as indicating areas of higher 
conservation value where greater foraging and/or reproductive 
opportunities are believed to exist. However, all areas support the 
essential features and meet the definition of critical habitat for this 
DPS. Within a restricted range, low-use areas continue to offer 
essential features and may provide unique opportunities for foraging as 
oceanic conditions vary seasonally or temporally.

Economic Impacts of Designation

    Economic costs of the designation accrue primarily through 
implementation of section 7 of the ESA in consultations with Federal 
agencies to ensure their proposed actions are not likely to destroy or 
adversely modify critical habitat. The draft Economic Report (Cardno 
2017) considered the Federal activities that may be subject to a 
section 7 consultation and the range of potential changes that may be 
required for each of these activities under the adverse modification 
provision. Where possible, the analysis focused on changes beyond those 
impacts that may result from the listing of the species or that are 
established within the environmental baseline. However, the report 
acknowledges that some existing protections to prevent jeopardy to MHI 
IFKWs are likely to overlap with those protections that may be put in 
place to prevent adverse modification (Cardno 2017). The project 
modification impacts represent the benefits of excluding each 
particular area (that is, the impacts that would be avoided if an area 
were excluded from the designation).
    The draft Economic Report (Cardno 2017) estimates the impacts based 
on activities that are considered reasonably foreseeable, which include 
activities that are currently authorized, permitted, or funded by a 
Federal agency, or for which proposed plans are currently available to 
the public. These activities align with those identified under the Need 
for Special Management Considerations and Protection section (above). 
Projections were evaluated for the next 10-year period. The analysis 
relied upon NMFS' records of section 7 consultations to estimate the 
average number of projects that were likely to occur within the 
specific area (i.e., projections were also based on past numbers of 
consultations) and to determine the level of consultation (formal, 
informal) that would be necessary based on the described activity.
    The draft Economic Report (Cardno 2017) identifies the total 
estimated present value of the quantified incremental impacts of this 
designation to be between approximately 196,000 to 213,000 dollars over 
the next 10 years; on an annualized undiscounted basis, the impacts are 
equivalent to 19,600 to 21,300 dollars per year. These impacts include 
only additional administrative efforts to consider critical habitat in 
section 7 consultations for the section 7 activities identified under 
the Need for Special Management Considerations or Protection section of 
this rule. However, private energy developers may also bear some of the 
administrative costs of consultation for large energy projects; 
annually these costs are estimated between 0 and 300 dollars 
undiscounted and are expected to involve three consultation projects 
over the next 10 years. Across the MHI, economic impacts are expected 
to be small and largely associated with the administrative costs borne 
by Federal agencies, but may include low administrative costs to non-
federal entities as well.
    Both the draft Biological Report and the draft Economic Report 
recognize that some of the future impacts of the designation are 
difficult to predict (NMFS 2017a, Cardno 2017). Although considered 
unlikely, NMFS cannot rule out future modifications for federally 
managed fisheries and activities that contribute to water quality (NMFS 
2017a). For federally managed fisheries, modifications were not 
predicted based on current management of the fisheries. However, we 
noted that future revised management measures could result as more 
information is gained about MHI IFKW foraging ecology, or as we gain a 
better understanding of the relative importance of certain prey species 
to the health and recovery of a larger MHI IFKW population. Similarly, 
modifications to water quality standards were not predicted as a result 
of this designation; however, future modifications were not ruled out 
because future management measures may be necessary as more information 
is gained about how pollutants affect MHI IFKW critical habitat. The 
draft Economic Report discusses this qualitatively, but does not 
provide quantified costs associated with any uncertain future 
modifications (Cardno 2017).
    In summary, economic impacts from the designation are largely 
attributed to the administrative costs of consultations. Generally, the 
quantified economic impacts for this designation are relatively low 
because in Hawaii most projects that would require section 7 
consultation occur onshore or nearshore and would not overlap with the 
designation. Projects with a Federal nexus (i.e., funded, authorized, 
or carried out by a Federal agency) that occur in deeper waters are 
already subject to consultation under section 7 to ensure that 
activities are not likely to jeopardize MHI IFKWs, and throughout the 
specific area, activities of concern are already subject to multiple 
environmental laws, regulations, and permits that afford the essential 
features a high level of baseline protection. Despite these 
protections, significant uncertainty remains regarding the true extent 
of the impacts that some activities like fishing and activities 
affecting water quality may have on the essential features, and 
economic impacts of the designation may not be fully realized. Because 
the economic impacts of these activities are largely speculative, we 
lack sufficient information with which to balance them against the 
benefits of designation.
    The draft Economic Report (Cardno 2017) found that costs attributed 
with this designation are largely administrative in nature and that a 
majority of those costs are borne by Federal agencies, with only a 
small cost of consultation (approximately 0 to 3,000 dollars over the 
next 10 years) borne by non-Federal entities. These impacts are 
expected to occur as a result of three potential offshore wind-energy 
projects in the Bureau of Ocean Energy Management's Call Area offshore 
the island of Oahu (which includes two sites, one off Kaena point and 
one off the south shore) (81 FR 41335; June 24, 2016). The area 
overlaps with approximately 1,961 km\2\ (757 mi\2\), or approximately 
3.5 percent of the areas under consideration for designation. Density 
analysis of satellite-tracking information indicates that these sites 
are not high-use areas for MHI IFKWs. As noted above, the baseline 
protections are strong, and energy projects are likely to undergo 
formal section 7 consultation to ensure that the activities are not 
likely to jeopardize MHI IFKWs, along with other protected species 
(Cardno 2017).
    Although economic costs of this designation are considered low, 
NMFS also considers the potential intangible costs of designation in 
light of Executive Order 13795, Implementing an America-First Offshore 
Energy Strategy, which sets forth the nation's policy for encouraging 
environmentally responsible energy exploration and production, 
including on the Outer Continental Shelf, to maintain the Nation's 
position as a global energy leader and foster energy security. In

[[Page 51197]]

particular, both Hawaii's State Energy Office and the Bureau of Ocean 
Energy Management expressed concerns that the designation may 
discourage companies from investing in offshore energy projects in 
areas that are identified as critical habitat and noted that the costs 
of lost opportunities to meet Hawaii's renewable energy goals could be 
significant (Cardno 2017). Because Oahu has the greatest energy needs 
among the Main Hawaiian Islands and has limited areas available for 
this type of development, and receiving energy via interconnection 
between islands is technologically difficult, these wind projects off 
Oahu are considered necessary to meet the State of Hawaii's renewable 
energy goals of 100 percent renewable energy by 2045 (Cardno 2017).
    Although large in-water construction projects are an activity of 
concern for this DPS, we anticipate that consultations required to 
ensure that activities are not likely to jeopardize the MHI IFKWs will 
achieve substantially the same conservation benefits for this DPS. 
Specifically, we anticipate that conservation measures implemented as a 
result of consultation to address impacts to the species will also 
provide incidental protections to habitat features. Additionally, 
Federal activities that may result in destruction or adverse 
modification are not expected in these areas if developed for wind 
energy projects. Given the significance of this offshore area in 
supporting renewable energy goals for the State of Hawaii and the goals 
of Executive Order 13795, the low administrative costs of this 
designation, and the low-use of this area by MHI IKFWs, we find that 
the benefits of exclusion of this identified area outweigh the benefits 
of designation. Based on our best scientific judgment, and 
acknowledging the relatively small size of this area (approximately 3.5 
percent of the overall designation), and other safeguards that are in 
place (e.g., protections already afforded MHI IFKWs under its listing 
and other regulatory mechanisms), we conclude that exclusion of this 
area will not result in the extinction of the species.
    Our exclusion analysis is based on the current BOEM Call Area as 
published in 81 FR 41335 (June 24, 2016). However, NMFS is aware that 
the Navy has conducted an offshore wind energy mission compatibility 
assessment of the waters surrounding Oahu to support BOEM and the State 
of Hawaii in identifying areas that will support wind energy 
development and be compatible with the Navy mission requirements. At 
this time, NMFS cannot reliably predict what Call Area boundary 
revisions may be made as a result of this assessment or continuing 
consultations between the Navy and BOEM. Accordingly, while our 
proposed designation is based on the current Call Area, NMFS will 
reevaluate this 4(b)(2) analysis prior to publishing a final 
designation, taking into account any planned boundary changes in the 
Call Area.

National Security Impacts

    The national security benefits of exclusion are the national 
security impacts that would be avoided by excluding particular areas 
from the designation. We contacted representatives of DOD and the 
Department of Homeland Security to request information on potential 
national security impacts that may result from the designation of 
particular areas as critical habitat for the MHI IFKW DPS. In response 
to the request, the Navy and U.S. Coast Guard each submitted a request 
that all areas be excluded from critical habitat out of concerns 
associated with activities that introduce noise to the marine 
environment. Although we considered the request for exclusion of all 
areas proposed for critical habitat (see Table 1), we also separately 
considered particular areas identified by the Navy because these areas 
support specific military activities. The Coast Guard did not provide 
specific explanations with regard to particular areas. The Air Force 
provided a request for exclusion that included the waters leading to 
and the offshore ranges of the Pacific Missile Range Facility (PMRF). 
As the PMRF offshore ranges were also highlighted as important to Navy 
activities, we included considerations associated with the Air Force's 
request for exclusion for the PMRF ranges with the Navy's information, 
due to the similarities between the activities and impacts identified 
for these areas (e.g., both requests in this area were associated with 
training and testing activities). We separately considered the waters 
leading to the range for exclusion because activities differ from those 
planned for the PMRF ranges and DOD does not exert control over these 
areas. Although not specifically requested for exclusion, the Navy 
highlighted the Puuloa Underwater Detonation Range in the materials 
they provided; this area was not considered for exclusion because it 
does not overlap with the areas under consideration for critical 
habitat. We considered a total of 13 sites for exclusion, and we 
propose 8 of those sites for exclusion; the results of the impacts vs. 
benefits for the 13 sites are summarized in Table 1 (below).
    As in the analysis of economic impacts, we weighed the benefits of 
exclusion (i.e., the impacts to national security that would be 
avoided) against the benefits of designation. The Navy and Air Force 
provided information regarding the activities that take place in each 
area, and they assessed the potential for a critical habitat 
designation to adversely affect their ability to conduct operations, 
tests, training, and other essential military activities. The possible 
impacts to national security summarized by both groups included 
restraints and constraints on military operations, training, research 
and development, and preparedness vital for combat operations for 
around the world.
    The primary benefit of exclusion is that the DOD would not be 
required to consult with NMFS under section 7 of the ESA regarding DOD 
actions that may affect critical habitat, and thus potential delays or 
costs associated with conservation measures for critical habitat would 
be avoided. For each particular area, national security impacts were 
weighed considering the intensity of use of the area by DOD and how 
activities in that area may affect the features essential to the 
conservation of MHI IFKWs. Where additional consultation requirements 
are likely due to critical habitat at a site, we considered how the 
consultation may change the DOD activities, and how unique the DOD 
activities are at the site.
    Benefits to the conservation of MHI IFKWs depend on whether 
designation of critical habitat at a site leads to additional 
conservation of the DPS above what is already provided by being listed 
as endangered under the ESA in the first place. We weighed the 
potential for additional conservation by considering several factors 
that provide an understanding of the importance of protecting the 
habitat for the overall conservation of the DPS including: MHI IFKW use 
of the habitat, the existing baseline protections that may protect that 
habitat regardless of designation, and the likelihood of other Federal 
(non-DOD) actions being proposed within the site that would be subject 
to section 7 consultation associated with critical habitat. Throughout 
the weighing process the overall size of the area considered for 
exclusion was considered, along with our overall understanding of 
importance of protecting that area for conservation purposes.
    As discussed in the Benefits of Designation section (above), the 
benefits of designation may not be directly comparable to the benefits 
of exclusion for purposes of conducting the section

[[Page 51198]]

4(b)(2) analysis, because neither may be fully quantified. The Draft 
ESA Section 4(b)(2) Report (NMFS 2017b) provides our qualitative 
comparison of the national security impacts to the conservation 
benefits in order to determine which is greater. If we found that 
national security impacts outweigh conservation benefits, the site is 
excluded from the proposed critical habitat. If conservation benefits 
outweigh national security impacts, the site is not excluded from the 
proposed critical habitat. The decision to exclude any sites from a 
designation of critical habitat is always at the discretion of NMFS. 
Table 1 (below) outlines the determinations made for each particular 
area identified and the factors that weighed significantly in that 
process.

 Table 1--Summary of the Assessment of Particular Areas for Exclusion for the DOD and U.S. Coast Guard Based on
                                          Impacts on National Security
----------------------------------------------------------------------------------------------------------------
                                         Size of particular
                                         area;  approximate
          DOD Site; Agency             percent  of the total   Exclusion  proposed?      Significant weighing
                                            area  under                                        factors
                                           consideration
----------------------------------------------------------------------------------------------------------------
(1) Entire Area Under Consideration   56,821 km\2\ (21,933     No..................  This area includes the
 for Designation; Navy and Coast       mi\2\); 100%.                                  entire designation and all
 Guard.                                                                               benefits from MHI IFKW
                                                                                      critical habitat would be
                                                                                      lost. Impacts from delays
                                                                                      and possible major
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting the entire
                                                                                      area, which includes both
                                                                                      high and low-use MHI IFKW
                                                                                      habitat, from future DOD
                                                                                      and non-DOD Federal
                                                                                      actions.
(2) PMRF Offshore Areas; Navy and     843 km2 (~325 mi2);      Yes.................  This area overlaps a
 Air Force.                            1.5%.                                          relatively small area of
                                                                                      low-use MHI IFKW habitat.
                                                                                      This area is unique for
                                                                                      DOD and provides specific
                                                                                      opportunities important
                                                                                      for DOD training and
                                                                                      testing. The impacts from
                                                                                      delays and possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DOD Federal actions
                                                                                      are considered unlikely.
(3) Waters on-route to PMRF from the  1,077 km2 (~416 mi2);    No..................  This area overlaps a
 Port Allen Harbor; Air Force.         2%.                                            relatively small area of
                                                                                      low-use MHI IFKW habitat
                                                                                      that is not owned or
                                                                                      controlled by DOD. It is
                                                                                      possible that non-DOD
                                                                                      Federal actions could be
                                                                                      proposed within the site
                                                                                      that may affect the
                                                                                      essential features.
                                                                                      Impacts from DOD section 7
                                                                                      consultations are expected
                                                                                      to be minor. Thus, short
                                                                                      delays for minor
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting this habitat
                                                                                      from future DOD and non-
                                                                                      DOD Federal actions.
(4) Kingfisher Range; Navy..........  14 km2 (~6 mi2); 0.03%.  Yes.................  This area overlaps a small
                                                                                      area of low-use MHI IFKW
                                                                                      habitat. This area is
                                                                                      unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training. Impacts from
                                                                                      short delays from minor
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.
(5) Warning Area 188; Navy..........  2,674 km2 (~1,032 mi2);  Yes.................  This area overlaps a medium
                                       5%.                                            area of low-use MHI IFKW
                                                                                      habitat. DOD maintains
                                                                                      control over portions of
                                                                                      the nearshore area, and
                                                                                      uses deeper waters for
                                                                                      important training
                                                                                      activities. Impacts from
                                                                                      delays and possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.
(6) Kaula and Warning Area W-187;     266 km2 (~103 mi2);      Yes.................  This area overlaps a small
 Navy.                                 0.5%.                                          area of low-use MHI IFKW
                                                                                      habitat. This area is
                                                                                      unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training. Impacts from
                                                                                      short delays from expected
                                                                                      informal consultation
                                                                                      outweigh benefits of
                                                                                      protecting low-use habitat
                                                                                      where future non-DoD
                                                                                      Federal actions are
                                                                                      considered unlikely.
(7) Warning Area 189, HELO Quickdraw  2,886 km2 (~1,114 mi2);  No..................  This area overlaps a medium
 Box and Oahu Danger Zone; Navy.       5%.                                            area of low-use MHI IFKW
                                                                                      habitat and a small high-
                                                                                      use area for MHI IFKWs.
                                                                                      The DOD does not maintain
                                                                                      full control over these
                                                                                      waters. Impacts from
                                                                                      delays and possible
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting both high and
                                                                                      low-use MHI IFKW habitat,
                                                                                      from future DOD and non-
                                                                                      DOD Federal actions.
(8) Fleet Operational Readiness       74 km2 (~29 mi2); 0.1%.  Yes.................  This area overlaps a small
 Accuracy Check Site Range (FORACS);                                                  area of low-use MHI IFKW
 Navy.                                                                                habitat. This area is
                                                                                      unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      testing to maintain
                                                                                      equipment accuracy.
                                                                                      Impacts from delays and
                                                                                      possible modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.
(9) Shipboard Electronic Systems      74 km\2\ (~29 mi\2\);    Yes.................  This area overlaps a small
 Evaluation Facility Range (SESEF);    0.1%.                                          area of low-use MHI IFKW
 Navy.                                                                                habitat. This area is
                                                                                      unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      testing to maintain
                                                                                      equipment accuracy.
                                                                                      Impacts from delays and
                                                                                      possible modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.

[[Page 51199]]

 
(10) Warning Areas 196 and 191; Navy  728 km2 (~281 mi2); 1%.  Yes.................  This area overlaps a
                                                                                      relatively small area of
                                                                                      low-use MHI IFKW habitat
                                                                                      that is used by DOD.
                                                                                      Impacts from short delays
                                                                                      and possible modifications
                                                                                      to consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.
(11) Warning Areas 193 and 194; Navy  458 km2 (~177 mi2); 1%.  Yes.................  This area overlaps a
                                                                                      relatively small area of
                                                                                      low-use MHI IFKW habitat
                                                                                      that is used by DOD.
                                                                                      Impacts from short delays
                                                                                      and possible modifications
                                                                                      to consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use habitat where future
                                                                                      non-DoD Federal actions
                                                                                      are considered unlikely.
(12) Four Islands Region (Maui,       15,389 km2 (~5,940       No..................  This area includes a
 Lanai, Molokai Kahoolawe); Navy.      mi2); 27%.                                     relatively large area of
                                                                                      both high and low-use MHI
                                                                                      IKFW habitat that is not
                                                                                      owned or controlled by
                                                                                      DOD. Impacts from delays
                                                                                      and possible major
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting the entire
                                                                                      area, which includes both
                                                                                      high and low-use MHI IFKW
                                                                                      habitat, from future DOD
                                                                                      and non-DOD Federal
                                                                                      actions.
(13) Hawaii Island; Navy............  16,931 km2 (~6,535       No..................  This area includes a
                                       mi2); 30%.                                     relatively large area of
                                                                                      both high and low-use MHI
                                                                                      IKFW habitat that is not
                                                                                      owned or fully controlled
                                                                                      by DOD. Impacts from
                                                                                      delays and possible major
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting the entire
                                                                                      area, which includes both
                                                                                      high and low-use MHI IFKW
                                                                                      habitat, from future DOD
                                                                                      and non-DOD Federal
                                                                                      actions.
----------------------------------------------------------------------------------------------------------------

    In coordination with DOD, the Navy requested review of six 
additional areas for exclusion due to national security impacts (see 
Figure 2). These additional areas are subsets of a larger area that the 
Navy initially requested for exclusion (see Table I, Site 1), but which 
NMFS determined should not be excluded under 4(b)(2). These areas 
include (1) the Kaulakahi Channel portion of Warning area 186, as it 
abuts PMRF offshore areas; (2) the area to the north and east of Oahu 
including a small portion of Warning Area 189 and the Helo Quickdraw 
Box; (3) the area to the south of Oahu; (4) the Kaiwi Channel; (5) the 
area north and offshore of the Molokai-associated MHI IFKW high use 
area; and (6) the Alenuihaha Channel. In order to meet our publishing 
deadline for the proposed designation, NMFS will reconsider its 
decision as it pertains to these individual areas consistent with the 
weighing factors used in the draft 4(b)(2) Report (NMFS 2017b), and 
provide exclusion determinations for these requests in the final rule.
BILLING CODE 3510-22-P

[[Page 51200]]

[GRAPHIC] [TIFF OMITTED] TP03NO17.001

BILLING CODE 3510-22-C

Other Relevant Impacts of the Designation

    Finally, under ESA section 4(b)(2) we consider any other relevant 
impacts of critical habitat designation to inform our decision as to 
whether to exclude any areas. For example, we may consider potential 
adverse effects on existing management plans or conservation plans that 
benefit listed species, and we may consider potential adverse effects 
on tribal lands or trust resources. In preparing this proposed 
designation, we have not identified any such management or conservation 
plans, tribal lands or resources, or anything else that would be 
adversely affected by the proposed critical habitat designation. 
Accordingly, subject to further consideration based on public comment, 
we do not exercise our discretionary authority to exclude any areas 
based on other relevant impacts.

Proposed Critical Habitat Designation

    This rule proposes to designate approximately 49,701 km\2\ (19,184 
mi\2\) of marine habitat surrounding the main Hawaiian Islands within 
the geographical area presently occupied by the MHI IFKW. This critical 
habitat area contains physical or biological features essential to the 
conservation of the DPS that may require special management 
considerations or protection. We have not identified any unoccupied 
areas that are essential to conservation of the MHI IFKW DPS and are 
not proposing any such areas for designation as critical habitat. This 
rule proposes to exclude from the designation the following areas: (1) 
The Bureau of Ocean Energy Management's Call Area offshore of the 
Island of Oahu (which includes two sites, one off Kaena point and one 
off the south shore), (2) the Pacific Missile Range Facilities Offshore 
ranges (including the Shallow Water Training Range (SWTR), the Barking 
Sands Tactical Underwater Range (BARSTUR), and the Barking Sands 
Underwater Range Extension (BSURE), (3) the Kingfisher Range, (4) 
Warning Area 188, (5) Kaula and Warning Area 187, (6) the Fleet 
Operational Readiness Accuracy Check Site (FORACS) Range, (7) the 
Shipboard Electronic Systems Evaluation Facility (SESEF), (8) Warning 
Areas 196 and 191, and (9) Warning Areas 193 and 194. Based on our best 
scientific knowledge and expertise, we conclude that the exclusion of 
these areas will not result in the extinction of the DPS, and will not 
impede the conservation of the DPS. In addition, the Ewa Training 
Minefield and the Naval Defensive Sea Area are precluded from 
designation under section 4(a)(3) of the ESA because they are managed 
under the Joint Base Pearl Harbor-Hickam Integrated Natural Resource 
Management Plan that we find provides a benefit to the Main Hawaiian 
Islands insular false killer whale.

Effects of Critical Habitat Designations

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded or carried out by 
the agency (agency action) is not likely to jeopardize the continued 
existence of any threatened or endangered species or destroy or 
adversely modify designated critical habitat. When a species is listed 
or critical habitat is designated, Federal agencies must consult with 
NMFS on any agency action to be conducted in an area where the species 
is present and that may affect the species or its critical habitat. 
During the consultation, NMFS evaluates the agency action to determine 
whether the action may adversely affect listed species or critical 
habitat and

[[Page 51201]]

issues its finding in a biological opinion. If NMFS concludes in the 
biological opinion that the agency action would likely result in the 
destruction or adverse modification of critical habitat, NMFS would 
also recommend any reasonable and prudent alternatives to the action. 
Reasonable and prudent alternatives are defined in 50 CFR 402.02 as 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request re-initiation of 
consultation or conference with NMFS on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat. Activities subject to the ESA section 7 consultation 
process include activities on Federal lands, as well as activities 
requiring a permit or other authorization from a Federal agency (e.g., 
a section 10(a)(1)(B) permit from NMFS), or some other Federal action, 
including funding (e.g., Federal Highway Administration (FHA) or 
Federal Emergency Management Agency (FEMA) funding). ESA section 7 
consultation would not be required for Federal actions that do not 
affect listed species or critical habitat, and would not be required 
for actions on non-Federal and private lands that are not carried out, 
funded, or authorized by a Federal agency.

Activities That May Be Affected

    ESA section 4(b)(8) requires, to the maximum extent practicable, in 
any proposed regulation to designate critical habitat, an evaluation 
and brief description of those activities (whether public or private) 
that may adversely modify such habitat or that may be affected by such 
designation. A wide variety of activities may affect MHI IFKW critical 
habitat and may be subject to the ESA section 7 consultation processes 
when carried out, funded, or authorized by a Federal agency. The 
activities most likely to be affected by this critical habitat 
designation once finalized are: (1) In-water construction (including 
dredging); (2) energy development (including renewable energy 
projects); (3) activities that affect water quality; (4) aquaculture/
mariculture; (5) fisheries; (6) environmental restoration and response 
activities (including responses to oil spills and vessel groundings, 
and marine debris clean-up activities); and (7) some military 
activities. Private entities may also be affected by this critical 
habitat designation if a Federal permit is required, Federal funding is 
received, or the entity is involved in or receives benefits from a 
Federal project. These activities would need to be evaluated with 
respect to their potential to destroy or adversely modify critical 
habitat. Changes to the actions to minimize or avoid destruction or 
adverse modification of designated critical habitat may result in 
changes to some activities. Please see the draft Economic Analysis 
Report (Cardno 2017) for more details and examples of changes that may 
need to occur in order for activities to minimize or avoid destruction 
or adverse modification of designated critical habitat. Questions 
regarding whether specific activities would constitute destruction or 
adverse modification of critical habitat should be directed to NMFS 
(see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Public Comments Solicited

    We request that interested persons submit comments, information, 
and suggestions concerning this proposed rule during the comment period 
(see DATES). To ensure the final action resulting from this proposal 
will be as accurate and effective as possible, we solicit comments and 
suggestions from the public, other concerned governments and agencies, 
the scientific community, industry or any other interested party 
concerning this proposed rule. Specifically, public comments are sought 
concerning: (1) Whether it is appropriate to include ``habitat free of 
anthropogenic noise that would significantly impair the value of the 
habitat for false killer whales' use or occupancy'' as a feature 
essential to the conservation of MHI IFKWs in the final rule and, if 
so, what scientific data are available that would assist us in 
determining noise levels that result in adverse modification or 
destruction, such as by inhibiting communication or foraging 
activities, or causing the abandonment of critical habitat; (2) 
information regarding potential impacts of designating any particular 
area, including the types of Federal activities that may trigger an ESA 
section 7 consultation and the possible modifications that may be 
required of those activities as a result of section 7 consultation; (3) 
information regarding the benefits of excluding particular areas from 
the critical habitat designation; (4) current or planned activities in 
the areas proposed for designation and their possible impacts on 
proposed critical habitat; (5) additional information regarding the 
threats associated with global climate change and known impacts to MHI 
IFKW critical habitat and/or MHI IFKW essential features; and (6) any 
foreseeable economic, national security, tribal, or other relevant 
impacts resulting from the proposed designations. With regard to these 
described impacts, we request that the following information be 
provided to inform our ESA section 4(b)(2) analysis: (1) A map and 
description of the affected area (e.g., location, latitude and 
longitude coordinates to define the boundaries, and the extent into 
waterways); (2) a description of activities that may be affected within 
the area; (3) a description of past, ongoing, or future conservation 
measures conducted within the area that may protect MHI IFKW habitat; 
and (4) a point of contact.
    We encourage comments on this proposal. You may submit your 
comments and materials by any one of several methods (see ADDRESSES). 
The proposed rule, maps, references and other materials relating to 
this proposal can be found on our Web site at https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing and on the Federal 
eRulemaking Portal at https://www.regulations.gov, or can be made 
available upon request. We will consider all comments and information 
received during the comment period for this proposed rule in preparing 
the final rule.
    Please be aware that all comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).

[[Page 51202]]

References Cited

    A complete list of all references cited in this proposed rule can 
be found on our Web site at: https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing or at 
www.regulations.gov, and is available upon request from the NMFS office 
in Honolulu, Hawaii (see ADDRESSES).

Classification

Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property that substantially affect its value or use. In accordance with 
E.O. 12630, this proposed rule does not have significant takings 
implications. The designation of critical habitat for the MHI IFKW DPS 
is fully described within the offshore marine environment and is not 
expected to affect the use or value of private property interests. 
Therefore, a takings implication assessment is not required.

Executive Orders 12866 and 13771

    OMB has determined that this proposed rule is significant for 
purposes of Executive Order 12866 review. Economic and Regulatory 
Impact Review Analyses and 4(b)(2) analyses as set forth and referenced 
herein have been prepared to support the exclusion process under 
section 4(b)(2) of the ESA. To review these documents see ADDRESSES 
section above.
    We have estimated the costs for this proposed rule. Economic 
impacts associated with this rule stem from the ESA's requirement that 
Federal agencies ensure any action authorized, funded, or carried out 
will not likely jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat. In practice, this requires Federal agencies to 
consult with NMFS whenever they propose an action that may affect a 
listed species or its designated critical habitat, and then to modify 
any action that could jeopardize the species or adversely affect 
critical habitat. Thus, there are two main categories of costs: 
administrative costs associated with completing consultations, and 
project modification costs. Costs associated with the ESA's requirement 
to avoid jeopardizing the continued existence of a listed species are 
not attributable to this rule, as that requirement exists in the 
absence of the critical habitat designation.
    The draft Economic Report (Cardno 2017) identifies the total 
estimated present value of the quantified impacts above current 
consultation effort to be between approximately 192,000 to 208,000 
dollars over the next 10 years; on an annualized undiscounted basis, 
the impacts are equivalent to 19,200 to 20,800 dollars per year. These 
total impacts include the additional administrative efforts necessary 
to consider critical habitat in section 7 consultations. Across the 
MHI, economic impacts are expected to be small and largely associated 
with the administrative costs borne by Federal agencies. However, 
private energy developers may also bear the administrative costs of 
consultation for large energy projects. These costs are estimated 
between 0 and 3,000 dollars over the next 10 years. While there are 
expected beneficial economic impacts of designating critical habitat, 
there are insufficient data available to monetize those impacts (see 
Benefits of Designation section).
    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 because this proposed rule is expected to 
result in no more than de minimis costs.

Executive Order 13132, Federalism

    The Executive Order on Federalism, Executive Order 13132, requires 
agencies to take into account any federalism impacts of regulations 
under development. It includes specific consultation directives for 
situations in which a regulation may preempt state law or impose 
substantial direct compliance costs on state and local governments 
(unless required by statute). Pursuant to E.O. 13132, we determined 
that this proposed rule does not have significant federalism effects 
and that a federalism assessment is not required. However, in keeping 
with Department of Commerce policies and consistent with ESA 
regulations at 50 CFR 242.16(c)(1)(ii), we will request information for 
this proposed rule from the state of Hawaii's Department of Land and 
Natural Resources. The proposed designation may have some benefit to 
state and local resource agencies in that the proposed rule more 
clearly defines the physical and biological features essential to the 
conservation of the species and the areas on which those features are 
found.

Energy Supply, Distribution, and Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects when undertaking a ``significant energy action.'' 
According to Executive Order 13211, ``significant energy action'' means 
any action by an agency that is expected to lead to the promulgation of 
a final rule or regulation that is a significant regulatory action 
under Executive Order 12866 and is likely to have a significant adverse 
effect on the supply, distribution, or use of energy. We have 
considered the potential impacts of this action on the supply, 
distribution, or use of energy (see section 13.2 of the draft Economic 
Report; Cardno 2017). In summary, it is unlikely for the oil and gas 
industry to experience a ``significant adverse effect'' due to this 
designation, as Hawaii does not produce petroleum or natural gas, and 
refineries are not expected to be impacted by this designation. 
Offshore energy projects may affect the essential features of critical 
habitat for the MHI IFKW DPS. However, foreseeable impacts are limited 
to two areas off Oahu where prospective wind energy projects are under 
consideration (see Economic Impacts of Designation section). Impacts to 
the electricity industry would likely be limited to potential delays in 
project development, costs to monitor noise, and possibly additional 
administrative costs of consultation. The potential critical habitat 
area is not expected to impact the current electricity production 
levels in Hawaii. Further, it appears that the designation will have 
little or no effect on electrical energy production decisions (other 
than the location of the future project), subsequent electricity 
supply, or the cost of future energy production. The designation is 
unlikely to impact the industry by greater than the 1 billion kWh per 
year or 500 MW of capacity provided as guidance in the executive order. 
It is therefore unlikely for the electricity production industry to 
experience a significant adverse effect due to the MHI IFKW critical 
habitat designation.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a Regulatory Flexibility Analysis describing the effects 
of the rule on small entities, i.e., small businesses, small 
organizations, and small government jurisdictions. An initial 
regulatory flexibility analysis (IRFA) has been prepared, which is 
included as Chapter 13 to the draft Economic Report (Cardno 2017). This 
document is available upon request (see ADDRESSES),

[[Page 51203]]

via our Web site at https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing or via the Federal 
eRulemaking Web site at www.regulations.gov.
    A statement of need for and objectives of this proposed rule is 
provided earlier in the preamble and is not repeated here. This 
proposed rule will not impose any recordkeeping or reporting 
requirements.
    We identified the impacts to small businesses by considering the 
seven activities most likely impacted by the designation: (1) In-water 
construction (including dredging); (2) energy development (including 
renewable energy projects); (3) activities that affect water quality; 
(4) aquaculture/mariculture; (5) fisheries; (6) environmental 
restoration and response activities (including responses to oil spills 
and vessel groundings, and marine debris clean-up activities); and (7) 
some military activities. As discussed in the Economic Impacts of 
Designation section of this proposed rule and the draft Economic 
Report, the only entities identified as bearing economic impacts (above 
administrative costs) by the potential critical habitat designation are 
two developers of offshore wind energy projects; however, these 
entities exceed the criterion established by SBA for small businesses 
(Cardno 2017). Although considered unlikely (NMFS 2017a), there remains 
a small, unquantifiable possibility that Federally-managed longline 
boats (i.e., deep-set or shallow-set fisheries) could be subject to 
additional conservation and management measures. At this time, however, 
NMFS has no information to suggest that additional measures are 
reasonably necessary to protect prey species. Chapter 13 of the draft 
Economic Report provides a description and estimate of the number of 
these entities that fit the criterion that could be impacted by the 
designation if future management measures were identified (Cardno 
2017). Due to the inherent uncertainty involved in predicting possible 
economic impacts that could result from future consultations, we 
acknowledge that other unidentified impacts may occur, and we invite 
public comment on those impacts.
    In accordance with the requirements of the RFA, this analysis 
considered alternatives to the critical habitat designation for the MHI 
IFKW that would achieve the goals of designating critical habitat 
without unduly burdening small entities. The alternative of not 
designating critical habitat for the MHI IFKW was considered and 
rejected because such an approach does not meet our statutory 
requirements under the ESA. We also considered and rejected the 
alternative of designating as critical habitat all areas that contain 
at least one identified essential feature (i.e., no areas excluded), 
because the alternative does not allow the agency to take into account 
circumstances where the benefits of exclusion for economic, national 
security, and other relevant impacts outweigh the benefits of critical 
habitat designation. Finally, through the ESA 4(b)(2) consideration 
process we also identified and selected an alternative that may lessen 
the impacts of the overall designation for certain entities, including 
small entities. Under this alternative, we considered excluding 
particular areas within the designated specific area based on economic 
and national security impacts. This selected alternative may help to 
reduce the indirect impact to small businesses that are economically 
involved with military activities or other activities that undergo 
section 7 consultation in these areas. However, as the costs resulting 
from critical habitat designation are primarily administrative and are 
borne mostly by the Federal agencies involved in consultation, there is 
insufficient information to monetize the costs and benefits of these 
exclusions at this time. We did not consider other economic or relevant 
exclusions from critical habitat designation because our analyses 
identified only low-cost administrative impacts to Federal entities in 
other areas not proposed for exclusion. In summary, the primary benefit 
of this designation is to ensure that Federal agencies consult with 
NMFS whenever they take, fund, or authorize any action that might 
adversely affect MHI IFKW critical habitat. Costs associated with 
critical habitat are primarily administrative costs borne by the 
Federal agency taking the action. Our analysis has not identified any 
economic impacts to small businesses based on this designation and 
current information does not suggest that small businesses will be 
disproportionately affected by this designation (Cardno 2017). We 
solicit additional information regarding the impacts to small 
businesses that may result from this proposed designation, and we will 
consider any additional information received in developing our final 
determination to designate or exclude areas from critical habitat 
designation for the MHI IFKW.
    During a formal Section 7 consultation under the ESA, NMFS, the 
action agency, and the third party applying for Federal funding or 
permitting (if applicable) communicate in an effort to minimize 
potential adverse effects to the species and to the proposed critical 
habitat. Communication between these parties may occur via written 
letters, phone calls, in-person meetings, or any combination of these. 
The duration and complexity of these communications depend on a number 
of variables, including the type of consultation, the species, the 
activity of concern, and the potential effects to the species and 
designated critical habitat associated with the activity that has been 
proposed. The third-party costs associated with these consultations 
include the administrative costs, such as the costs of time spent in 
meetings, preparing letters, and the development of research, including 
biological studies and engineering reports. There are no small 
businesses directly regulated by this action and there are no 
additional costs to small businesses as a result of Section 7 
consultations to consider.

Coastal Zone Management Act

    Under section 307(c)(1)(A) of the Coastal Zone Management Act 
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each 
Federal activity within or outside the coastal zone that has reasonably 
foreseeable effects on any land or water use or natural resource of the 
coastal zone shall be carried out in a manner which is consistent to 
the maximum extent practicable with the enforceable policies of 
approved State coastal management programs. We have determined that 
this proposed designation of critical habitat for the MHI IFKW DPS is 
consistent to the maximum extent practicable with the enforceable 
policies of the approved Coastal Zone Management Program of Hawaii. 
This determination has been submitted to the Hawaii Coastal Zone 
Management Program for review.

Paperwork Reduction Act

    The purpose of the Paperwork Reduction Act is to minimize the 
paperwork burden for individuals, small businesses, educational and 
nonprofit institutions, and other persons resulting from the collection 
of information by or for the Federal government. This proposed rule 
does not contain any new or revised collection of information. This 
rule, if adopted, would not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations.

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:

[[Page 51204]]

    (A) This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
The designation of critical habitat does not impose an enforceable duty 
on non-Federal government entities or private parties. The only 
regulatory effect of a critical habitat designation is that Federal 
agencies must ensure that their actions are not likely to destroy or 
adversely modify critical habitat under ESA section 7. Non-Federal 
entities that receive funding, assistance, or permits from Federal 
agencies or otherwise require approval or authorization from a Federal 
agency for an action may be indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program; 
however, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above to state governments.
    (B) Due to the prohibition against take of the MHI IFKW both within 
and outside of the designated areas, we do not anticipate that this 
proposed rule will significantly or uniquely affect small governments. 
As such, a Small Government Agency Plan is not required.

Consultation and Coordination With Indian Tribal Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States towards Indian tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. 
Executive Order 13175, entitled ``Consultation and Coordination with 
Indian Tribal Governments,'' outlines the responsibilities of the 
Federal government in matters affecting tribal interests. ``Federally 
recognized tribe'' means an Indian or Alaska Native tribe or community 
that is acknowledged as an Indian tribe under the Federally Recognized 
Indian Tribe List Act of 1994 (25 U.S.C. 479a). In the list published 
annually by the Secretary, there are no federally recognized tribes in 
the State of Hawaii (74 FR 40218; August 11, 2009). Although Native 
Hawaiian lands are not tribal lands for purposes of the requirements of 
the President's Memorandum or the Department Manual, recent Department 
of Interior regulations (43 CFR 50) set forth a process for 
establishing formal government-to-government relationship with the 
Native Hawaiian Community. Moreover, we recognize that Native Hawaiian 
organizations have the potential to be impacted by Federal regulations 
and as such, consideration of these impacts may be evaluated as other 
relevant impacts from the designation. At this time, we are not aware 
of anticipated impacts resultant from the designation; however, we seek 
comments regarding areas of overlap that may warrant exclusion from 
critical habitat designation. We also seek information from affected 
Native Hawaiian organizations concerning other Native Hawaiian 
activities that may be affected.

Information Quality Act (IQA)

    Pursuant to the Information Quality Act (section 515 of Pub. L. 
106-554), this information product has undergone a pre-dissemination 
review by NMFS. The signed Pre-dissemination Review and Documentation 
Form is on file with the NMFS Pacific Islands Regional Office (see FOR 
FURTHER INFORMATION CONTACT).

List of Subjects

50 CFR Part 224

    Endangered and threatened species, Exports, Imports, 
Transportation.

50 CFR Part 226

    Endangered and threatened species.

    Dated: October 31, 2017.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 224 and 226 
are proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
2. In Sec.  224.101, amend the table in paragraph (h) by adding a new 
citation under the critical habitat column, for the ``Whale, false 
killer (Main Hawaiian Islands Insular DPS) under the ``Marine Mammals'' 
sub heading, to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) The endangered species under the jurisdiction of the Secretary 
of Commerce are:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Species \1\
-------------------------------------------------------------------------------------------------  Citation(s) for listing     Critical      ESA rules
              Common name                    Scientific name        Description of listed entity       determination(s)        habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Whale, false killer (Main Hawaiian      Pseudorca crassidens.....  False killer whales found      77 FR 70915, Nov. 28,             Sec.              NA
 Islands Insular DPS).                                              from nearshore of the main     2012.                         226.226
                                                                    Hawaiian Islands out to 140
                                                                    km (approximately 75
                                                                    nautical miles) and that
                                                                    permanently reside within
                                                                    this geographic range.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).


[[Page 51205]]

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority:  16 U.S.C. 1533.

0
4. Add Sec.  226.226, to read as follows:


Sec.  226.226  Critical habitat for the main Hawaiian Islands insular 
false killer whale (Pseudorca crassidens) Distinct Population Segment.

    Critical habitat is designated for main Hawaiian Islands insular 
false killer whale as described in this section. The maps, clarified by 
the textual descriptions in this section, are the definitive source for 
determining the critical habitat boundaries.
    (a) Critical habitat boundaries. Critical habitat is designated in 
the waters surrounding the main Hawaiian Islands from the 45-m depth 
contour out to the 3,200-m depth contour as depicted in the maps below.
    (b) Essential Features. The essential features for the conservation 
of the main Hawaiian Islands insular false killer whale are:
    (1) Island-associated marine habitat for main Hawaiian Islands 
insular false killer whales.
    (2) Prey species of sufficient quantity, quality, and availability 
to support individual growth, reproduction, and development, as well as 
overall population growth.
    (3) Waters free of pollutants of a type and amount harmful to main 
Hawaiian Islands insular false killer whales.
    (4) Habitat free of anthropogenic noise that would significantly 
impair the value of the habitat for false killer whales' use or 
occupancy.
    (c) Areas not included in critical habitat. Critical habitat does 
not include the following particular areas where they overlap with the 
areas described in paragraph (a) of this section:
    (1) Pursuant to ESA section 4(b)(2) the following areas have been 
excluded from the designation: The Bureau of Ocean Energy Management's 
Call Area offshore of the Island of Oahu (which includes two sites, one 
off of Kaena point and one off the south shore--see BOEM Lease Areas in 
maps); the Pacific Missile Range Facilities Offshore ranges (including 
the Shallow Water Training Range, the Barking Sands Tactical Underwater 
Range, and the Barking Sands Underwater Range Extension); the 
Kingfisher Range; Warning Area 188; Kaula and Warning Area 187; Fleet 
Operational Readiness Accuracy Check Site Range; the Shipboard 
Electronic Systems Evaluation Facility; Warning Areas 196 and 191; and 
Warning Areas 193 and 194.
    (2) Pursuant to ESA section 4(a)(3)(B) all areas subject to the 
Joint Base Pearl Harbor-Hickam Integrated Natural Resource Management 
Plan.
    (d) Maps of main Hawaiian Islands insular false killer whale 
critical habitat.

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