Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for the Main Hawaiian Islands Insular False Killer Whale Distinct Population Segment, 35062-35095 [2018-15500]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 83, Number 142 (Tuesday, July 24, 2018)]
[Rules and Regulations]
[Pages 35062-35095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15500]



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Vol. 83

Tuesday,

No. 142

July 24, 2018

Part II





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Parts 224 and 226





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

Federal Register / Vol. 83 , No. 142 / Tuesday, July 24, 2018 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 224 and 226

[Docket No. 120815341-8396-02]
RIN 0648-BC45


Endangered and Threatened Wildlife and Plants: Final 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: Final rule.

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SUMMARY: We, NMFS, issue a final rule to designate critical habitat for 
the Main Hawaiian Islands (MHI) insular false killer whale (IFKW) 
(Pseudorca crassidens) distinct population segment (DPS) by designating 
waters from the 45-meter (m) depth contour to the 3,200-m depth contour 
around the main Hawaiian Islands from Niihau east to Hawaii, pursuant 
to section 4 of the Endangered Species Act (ESA). We have excluded 14 
areas (one area, with two sites, for the Bureau of Ocean Energy 
Management (BOEM) and 13 areas requested by the Navy) from the critical 
habitat designation because we have determined that the benefits of 
exclusion outweigh the benefits of inclusion, and exclusion will not 
result in extinction of the species. Additionally, the Ewa Training 
Minefield and the Naval Defensive Sea Area are precluded from 
designation under section 4(a)(3) ofthe 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 MHI IFKW.

DATES: This rule becomes effective August 23, 2018.

ADDRESSES: The final rule, maps, and other supporting documents 
(Economic Report, ESA Section 4(b)(2) Report, and Biological Report) 
can be found on the NMFS Pacific Island Region's website at https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#critical_habitat.

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:

Background

    On December 28, 2012, the listing of the MHI IFKW (Pseudorca 
crassidens) DPS as endangered throughout its range under the ESA became 
effective. The listing cited the population's high extinction risk and 
insufficient conservation efforts in place to reduce that risk (77 FR 
70915; November 28, 2012). With approximately 150 individuals, small 
population size and incidental take (hooking or entanglements) in 
commercial and recreational fisheries are the highest threats to this 
DPS. However, other medium-level threats such as environmental 
contaminants, competition with fisheries for food, effects from climate 
change, and acoustic disturbance may also play a role in impeding 
recovery (NMFS 2016). 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 stipulated that NMFS will submit 
the final rule to the Office of the Federal Register by July 1, 2018.
    Based on the recommendations provided in the Draft Biological 
Report, the initial Regulatory Flexibility Analysis (RFA) and ESA 
section 4(b)(2) analysis (which considers exclusions to critical 
habitat based on economic, national security and other relevant 
impacts), we published a proposed rule on November 3, 2017 (82 FR 
51186) to designate waters from the 45-m depth contour to the 3,200-m 
depth contour around the main Hawaiian Islands from Niihau east to 
Hawaii, with some exceptions, as MHI IFKW critical habitat. In 
accordance with the definition of critical habitat under the ESA, this 
area contained physical or biological features essential to 
conservation of the species and which may require special management 
considerations or protections. The proposed rule included background 
information on MHI IFKW biology and habitat use, which is not included 
here but the reader may access by referring to the proposed rule (82 FR 
51186; November 3, 2017).
    In the proposed rule, we described the physical or biological 
features essential to the conservation of MHI IFKWs as (1) island-
associated marine habitat for MHI IFKWs; (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 MHI 
IFKWs, and (4) habitat free of anthropogenic noise that would 
significantly impair the value of the habitat for false killer whale 
use or occupancy. We requested public comments through January 2, 2018. 
For a complete description of our proposed action, including the 
natural history of the MHI IKFW, we refer the reader to the proposed 
rule (82 FR 51186; November 3, 2017).

Statutory and Regulatory Background for Critical Habitat

    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 (1) essential to the conservation of the species and (2) 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.

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    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.
    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 upon determining 
that 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. 
Our regulations provide that critical habitat shall not be designated 
within foreign countries or in other areas outside U.S. jurisdiction 
(50 CFR 424.12(g)). Once critical habitat is designated, section 
7(a)(2) of the ESA requires Federal agencies to ensure that actions 
they fund, authorize, or carry out are not likely to destroy or 
adversely modify that habitat (16 U.S.C. 1536(a)(2)). This requirement 
is in addition to the section 7(a)(2) requirement that Federal agencies 
ensure their actions are not likely to jeopardize the continued 
existence of ESA-listed species. Specifying the geographic location of 
critical habitat also facilitates implementation of section 7(a)(1) of 
the ESA by identifying areas where Federal agencies can focus their 
conservation programs and use their authorities to further the purposes 
of the ESA. Critical habitat requirements do not apply to citizens 
engaged in actions on private land that do not involve a Federal 
agency. However, designating critical habitat can help focus the 
efforts of other conservation partners (e.g., State and local 
governments, individuals, and nongovernmental organizations).

Summary of Changes From the Proposed Rule

    After considering public comments received and the best scientific 
information available, we have made the following changes: (1) We have 
combined the four proposed features into a single essential feature 
with four characteristics that describe how island-associated marine 
habitat is essential to MHI IFKWs; and (2) we have excluded under 
section 4(b)(2) the Kaulakahi Channel portion of Warning area 186, the 
area north of Molokai, the reduced Alenuihaha Channel, the Hawaii Area 
Tracking System, and the Kahoolawe Training Minefield due to national 
security impacts.

Single Essential Feature

    In the proposed rule we identified four features that are essential 
to MHI IFKWs: Island-associated habitat, prey, water quality, and 
sound. We received public comments that questioned the clarity of some 
of these features, and whether certain features were sufficiently 
described to meet the definition of critical habitat. For example, one 
comment criticized the feature, island-associated marine habitat for 
MHI IFKWs, because it lacks objective parameters that warrant special 
management considerations or protections. The commenter requested more 
clarity on or removal of this feature.
    After review of this comment and other comments, we recognize the 
interdependence of movement and space, prey, sound, and water quality 
characteristics in identifying island-associated habitat that is 
essential to the conservation of the species because these habitat 
characteristics collectively support important life history functions, 
such as foraging and reproduction, which are essential for this 
population's conservation. Indeed, MHI IFKWs are an island-associated 
population of false killer whales with their range restricted to the 
shelf and slope habitat around the MHI, unlike pelagic false killer 
whales found more in open oceans. Because these habitat characteristics 
are important components to the ecology of these whales, we have 
reorganized the essential features in the proposed rule into a single 
feature, island-associated marine habitat for MHI IFKWs, with four 
characteristics that support this feature. The four characteristics 
include (1) adequate space for movement and use within shelf and slope 
habitat; (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 MHI IFKWs; and (4) sound 
levels that will not significantly impair false killer whales' use or 
occupancy (see the Physical and Biological Features section below for 
full descriptions).
    The first characteristic, adequate space for movement and use 
within shelf and slope habitat, is used to describe, in part, the 
``island-associated marine habitat'' feature in the proposed rule. We 
have highlighted this as a characteristic of the island-associated 
habitat for this final rule in response to comments that requested 
clarity on the special management considerations for this feature. 
Under the description of this feature, we note the importance of 
supporting these whales' ability to move to, from, and around areas of 
concentrated (high) use and provide details about how activities, such 
as large-scale construction or noise, may act as barriers to movement 
for these whales within their restricted range.
    Characteristics 2 and 3, prey and water quality, have not 
materially changed from the proposed rule; however, we do provide more 
information in our description in the Physical and Biological Features 
Essential for Conservation section of this final rule and in the 
Biological Report about factors that influence these characteristics. 
For example, we have used information provided in the Biological Report 
under diet to provide additional detail about the specific types of 
prey species that these whales are known to eat (NMFS 2017b). 
Additionally, we have provided more information about factors that 
threaten prey and water quality in these descriptions.
    In the proposed rule we solicited comments on the feature ``habitat 
free of anthropogenic noise that would significantly impair the value 
of the habitat for MHI IFKW use or occupancy.'' We received multiple 
comments that suggested removing this feature for the following 
reasons: The effects of noise on IFKWs are already considered under the 
jeopardy standard analysis; the absence of noise is not a feature of 
the habitat, there is not sufficient scientific justification for the 
feature, and the management of this feature is not clearly described.
    As odontocetes, these whales rely on their ability to receive and 
interpret sound within their environment in order to forage, travel, 
and communicate with one another. Accordingly, island-associated 
habitat must be capable of supporting MHI IFKWs' ability to do so. 
While noise has the potential to affect individual whales in a manner 
that may have biological significance (i.e., to result in a ``take'' by 
harassment, injury, or otherwise), scientific information also 
indicates that the introduction of a permanent or chronic noise source 
can degrade the value of habitat by interfering with the sound-reliant

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animal's ability to gain benefits from that habitat, impeding 
reproduction, foraging, or communication (i.e., altering the 
conservation value of the habitat). This reliance on sound, combined 
with the whales' adaptation to a restricted range, make sound an 
important characteristic of island-associated habitat. Thus, it is 
appropriate to consider how chronic and persistent noise sources may 
alter the value of that habitat and manage for it.
    To clarify how sound as a characteristic of habitat supports these 
whales and should be managed for this designation, we have revised the 
language of this characteristic to ``sound levels that would not 
significantly impair MHI IFKW's use or occupancy.'' For this 
characteristic we describe the importance of sound in this populations' 
ecology and describe how noise sources may alter the value of their 
habitat. After considering public comments, we recognize that the mere 
presence of noise in the environment--even noise that might result in 
harassment--does not necessarily result in adverse modification of 
critical habitat. Rather, chronic exposure to noise as well as 
persistent noise may impede the population's ability to use the habitat 
for foraging, navigating, and communicating, and may deter MHI IFKWs 
from using the habitat entirely (see also our response to Comment 6 and 
the Physical and Biological Features Essential for Conservation section 
of this rule).

Additional National Security Exclusions

    In the proposed rule we noted that we would be considering six 
additional requests submitted by the Navy, which were subsets of a 
larger area that the Navy initially requested for exclusion, but which 
NMFS determined should not be excluded under 4(b)(2). We reviewed these 
six areas along with four additional areas requested by the Navy 
consistent with the criteria reviewed for all other areas considered 
for national security exclusion for this rule.
    For the Kaulakahi Channel Portion of W-186, the area north of 
Molokai, a reduced portion of the Alenuihaha Channel, the Hawaii Area 
Tracking System, and the Kahoolawe Training Minefield (NMFS 2018b), we 
find that the benefits of exclusion for national security outweigh the 
benefit of designating MHI IFKW critical habitat. On June 22, 2017, the 
Navy requested exclusion of each of these areas as a subset of a larger 
``Entire Area.'' The Navy also identified the area north of Molokai for 
exclusion as a subset of the ``four islands region,'' and the 
Alenuihaha Channel as a portion of the ``waters surrounding the Island 
of Hawaii'' exclusion request. NMFS initially proposed not to exclude 
these areas as included in the larger units (DON 2017a, as referenced 
in NMFS 2017b). We have now reevaluated these geographically limited 
portions of the initial request in response to information submitted by 
the Navy on October 10, 2017, along with the Navy's supplemental 
information limiting the geographic scope of their request to exclude 
Alenuihaha Channel. Although the June 22, 2017 request provided a full 
description of the defense activities in all of these areas, the Navy's 
supplemental submissions helped improve our understanding of the 
geographic scope of the particular impacts to national security. For 
example, the Navy clarified that the Channel Portion of the W-186 area 
is used to support military activities occurring on the Pacific Missile 
Range Facility (PMRF) Offshore Areas and that the area north of Molokai 
provides unique bathymetry that supports the Submarine Command Course 
(DON 2017b, DON 2018). Supplemental information also identified the 
unique training capabilities provided by the bathymetry of the Hawaii 
Area Tracking System and the instrumentation found within the Kahoolawe 
Training Minefield, which support military readiness. Additionally, 
with respect to the Alenuihaha Channel, our exclusion decision is 
limited to the deeper areas of the Channel that support Undersea 
Warfare training exercises; these waters include approximately 2,609 
square kilometers (km\2\) (1,007 square miles (mi\2\)) of the 4,381 
km\2\ (1691 mi\2\) area identified in the proposed rule. In light of 
our improved understanding of the defense activities conducted and the 
reduced size of the requested exclusions, we now conclude that the 
benefits of exclusion outweigh the benefits of designating critical 
habitat, and that granting these exclusions will not result in 
extinction of the species. The Kaulakahi Channel Portion of W-186 area 
overlapped with approximately 1,631 km\2\ (630 mi\2\) or approximately 
3 percent of the area that was proposed for designation, the area north 
of Molokai overlapped with approximately 596 km\2\ (230 mi\2\) or 
approximately one percent of the area that was proposed for 
designation, and the Alenuihaha Channel overlapped with approximately 
2,609 km\2\ (866 mi\2\) or approximately 5 percent of the area that was 
proposed for designation. The Hawaii Area Tracking System overlaps with 
about 96 km\2\ (37mi\2\) or about 0.2 percent of the area that was 
proposed for designation, and the Kahoolawe Training Minefield overlaps 
with about 12 km\2\ (5 mi\2\) or about 0.02 percent of the area that 
was proposed for designation. These overlap a small area of low-use and 
lower traveled MHI IFKW habitat.
    For the other three areas identified in the Navy's October 10, 2017 
request, as well as two additional areas identified by the Navy on 
February 8, 2018, we find that the benefits of designating critical 
habitat for MHI IFKWs outweigh the benefits of excluding these areas. 
The National Security Impacts section of this rule provides a detailed 
summary of our weighing process for all areas, and the full analysis 
can be found in the ESA Section 4(b)(2) Report (NMFS 2018b).
    Thus, given these changes, in total we have excluded 14 areas (one 
area, with two sites, for BOEM and 13 areas requested by the Navy from 
the critical habitat designation because we have determined that the 
benefits of exclusion outweigh the benefits of inclusion, and exclusion 
will not result in extinction of the species. The excluded areas are: 
(1) The BOEM Call Area offshore of the Island of Oahu (which includes 
two sites, one off Kaena point and one off the south shore); (2) the 
Navy Pacific Missile Range Facility's Offshore ranges (including the 
Shallow Water Training Range (SWTR), the Barking Sands Tactical 
Underwater Range (BARSTUR), and the Barking Sands Underwater Range 
Extension (BSURE; west of Kauai)); (3) the Navy Kingfisher Range 
(northeast of Niihau); (4) Warning Area 188 (west of Kauai); (5) Kaula 
Island and Warning Area 187 (surrounding Kaula Island); (6) the Navy 
Fleet Operational Readiness Accuracy Check Site (FORACS) (west of 
Oahu); (7) the Navy Shipboard Electronic Systems Evaluation Facility 
(SESEF) (west of Oahu); (8) Warning Areas 196 and 191 (south of Oahu); 
(9) Warning Areas 193 and 194 (south of Oahu); (10) the Kaulakahi 
Channel portion of Warning area 186 (the channel between Niihau and 
Kauai and extending east); (11) the area north of Molokai; (12) the 
Alenuihaha Channel, (13) the Hawaii Area Tracking System, and (14) the 
Kahoolawe Training Minefield. 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 MHI IFKW.

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Summary of Comments and Response

    We requested comments on the proposed rule to designate critical 
habitat for the MHI IFKW and associated supporting reports as described 
above. We received 26 individual submissions in response to that 
request. We have considered all public comments, and provide responses 
to all significant issues raised by commenters that are relevant to the 
proposed designation of MHI IFKW critical habitat. We have not 
responded to comments or concerns outside the scope of this rulemaking, 
including comments disagreeing with the listing of this DPS as 
endangered, or recommendations regarding broad ESA policy issues.

Special Management Considerations or Protections

    Comment 1: We received comments suggesting that major threats to 
this DPS were not adequately addressed in the proposed designation 
including threats associated with longline factory fishing boats, water 
pollution, and noise pollution. Some commenters noted that the proposal 
did not mention the threat posed by biannual Rim of the Pacific 
(RIMPAC) exercises conducted by the Department of Defense. One 
commenter suggested that RIMPAC exercises should not be allowed to 
occur in the proposed critical habitat.
    Response: The Special Management Considerations or Protection 
section of the Draft and Final Biological Reports (NMFS 2017a, 2018a) 
provides information about the types of activities that raise 
significant habitat-based threats, and the special management 
considerations or protections that may be necessary to manage or 
protect the feature and its characteristics, essential to the 
conservation of MHI IFKWs. Water pollution, noise pollution, and 
reductions in prey or habitat were among the threats discussed. This 
section of the reports also identifies seven categories of activities 
with a Federal nexus (i.e., a project that is authorized, funded, or 
carried out by a Federal agency) that may have the potential to 
contribute to these habitat threats and that are subject to the ESA 
section 7 consultation process. Specifically, we discussed fisheries, 
activities that contribute to water pollution, and military activities, 
and how these activities may impact available prey resources, water 
quality, or sound levels in the marine environment.
    We note that federally managed longline fisheries (including the 
deep-set and shallow-set fisheries) are currently not considered a 
``major'' threat to this DPS or their habitat. As noted in the MHI IFKW 
Recovery Outline (NMFS 2016a), which categorizes the significance of 
threats to this DPS from low to high, the threat of incidental take 
(e.g., entanglements or hookings) in federally-managed longline 
fisheries is considered low because about 95 percent of the DPS' range 
is within the Main Hawaiian Islands Longline Fishing Prohibited Area 
that surrounds the MHI (NMFS 2016a; See 50 CFR 229.37(d)). Further, we 
note that fishery interactions, such as entanglements and hooking, are 
considered a threat to the individual animals themselves and not the 
habitat. Such threats are properly analyzed under the jeopardy analysis 
conducted during the section 7 consultation process.
    We note that reductions in prey are described as a medium threat, 
with several fisheries potentially contributing to this risk. In the 
Draft Biological Report we reviewed the sustainability of stocks that 
are targeted by the federally managed longline fisheries and that are 
known IFKW prey species. Current information, although incomplete, 
suggests that these stocks are sustainably managed and that additional 
management is not necessary to conserve prey species (NMFS 2018). 
However, we also note in the Draft and Final Biological Report that, as 
new information becomes available regarding MHI IFKW dietary needs or 
the sustainability of overlapping fish stocks, additional management 
measures may be taken in the future to ensure that MHI IFKW critical 
habitat is not adversely modified.
    With regard to water pollution, we have included water quality as a 
characteristic of MHI IFKW critical habitat because pollutants in 
marine waters of the island-associated habitat affect the quality of 
prey for this DPS and can create environments in which these whales are 
at higher risk of disease. The Draft and Final Biological Reports 
discuss water quality threats to MHI IFKW habitat under the Activities 
that Contribute to Water Pollution section, and discuss activities that 
may reduce water or prey quality by increasing persistent organic 
pollutants (POP) or other chemicals of emerging concern, heavy metals, 
pathogens, or naturally occurring toxins in Hawaii's surrounding waters 
(NMFS 2017a, 2018a). Although we have not identified additional 
management measures beyond the existing protections already granted 
from other regulations (e.g., the Clean Water Act), we note that 
special management considerations may be necessary in the future, and 
that a project's specific details, such as discharge location, chemical 
or biological composition, frequency, duration, and concentration, will 
help determine necessary conservation measures.
    With regard to military activities, the Draft Biological Report 
indicated that a wide variety of activities were covered by this 
category including training, construction, and research activities 
undertaken by the Department of Defense. We have revised the Final 
Biological Report to clarify that RIMPAC exercises are included among 
the military training exercises considered under this category. The 
report notes that many of the military exercises in the Hawaii Range 
Complex are subject to a five-year MMPA authorization for the 
incidental take of marine mammals, which is subject to the consultation 
requirements of the ESA. These five-year reviews include the 
consideration of exercises that are undertaken during biannual RIMPAC 
events.
    With regard to the comment that we should not allow RIMPAC to occur 
in critical habitat, we note that a critical habitat designation does 
not restrict activities from occurring in critical habitat; it is only 
during the section 7 consultation process that effects on critical 
habitat are determined and additional conservation and management 
measures are considered, as appropriate.
    Comment 2: BOEM commented that the characterization of offshore 
energy projects as a threat to the physical and biological features of 
critical habitat is not supported by information in the rule or 
supporting documents, and that NMFS was inconsistent in describing the 
relative risk of activities that are identified as possibly threatening 
habitat features compared with other activities. BOEM's comment noted 
that, despite threats from specific energy-related development being 
described as either uncertain or already managed under existing 
regulatory protections, the Biological Report suggests that special 
management considerations would include changes in siting of energy 
projects based on the boundaries of proposed critical habitat. BOEM 
noted that this contrasts with NMFS' discussion of and recommendations 
for the management of fisheries, in which additional management 
considerations are not suggested for federally managed commercial 
fisheries, despite the threat of reduced prey availability being 
described as a moderate risk for the listing of this DPS. BOEM 
recommended that we ``remove energy activities from [our] list of 
activities that may threaten

[[Page 35066]]

the physical and biological features of critical habitat based on [low 
risk and uncertain] conclusions made in [our] Draft Biological Report 
and focus instead on management considerations for other activities 
that are consistent with habitat requirements for IFKWs.''
    Response: We conclude that that offshore energy projects should 
remain on the list of activities that may affect the physical and 
biological feature of MHI IFKW critical habitat because there is 
sufficient information available to suggest that these projects have 
the potential to affect MHI IFKW critical habitat. Offshore energy 
includes a broad suite of different projects (e.g., wind, wave, and 
ocean thermal) that may involve constructing or placing structures in 
the marine environment, as well as operating and maintaining these 
structures. As cited in the Draft and Final Biological Reports, the 
Department of Energy acknowledges that there are common elements among 
these projects that pose a risk of adverse environmental effects 
including, but not limited to, noise during construction and operation; 
alteration of substrates; sediment transportation and deposition; 
generation of electromagnetic fields (EMF); toxicity of paints, 
lubricants, and antifouling coatings; and interference with animal 
movements (Cada 2009). This list of environmental effects indicates 
that these projects present risk to MHI IFKW prey, water quality, sound 
levels, and adequate space for movement and use.
    As acknowledged in the Draft Biological Report (NMFS 2017a), 
current information suggests that risks associated with certain threats 
may be minimal (e.g., EMF) or sufficiently managed under existing 
regulatory regimes (e.g., water quality). However, the fact that 
habitat characteristics may directly or indirectly benefit from 
existing regulatory regimes is not determinative of whether energy 
development activities have the potential to adversely affect the 
feature and characteristics essential to MHI IFKWs, such that the 
feature may require special management or protection. Further, other 
risks related to noise and adequate space for movement and use remain 
relatively unclear because noise sources vary (in levels and frequency) 
among device types, and effects to habitat use as a result of 
structures in the water may vary locally (Bergstrom et al. 2014, 
Teilmann and Carstensen 2012, Scheidat et al. 2011). For example, 
Teilmann and Carstensen (2012) report a decline in harbor porpoise 
habitat use followed by evidence of slow recovery since a large scale 
offshore wind farm was installed in the Baltic, while Scheidat et al. 
(2011) report increased habitat use by harbor porpoises in a wind farm 
in the Dutch North Sea. Accordingly, project-specific details would be 
required to analyze the relative risk that any particular type of 
energy development project may have on MHI IFKW critical habitat. Due 
to the uncertainties associated with the size and scope of these 
projects and their impact on MHI IFKWs and their habitat, we expect 
that monitoring will be recommended for many first generation projects 
in Hawaiian waters.
    As noted by the Department of Energy, project location can play a 
large role in minimizing the environmental impacts of any particular 
project (DOE 2009). While we do find that impacts to critical habitat 
from offshore energy activities may occur, we do not expect that these 
project siting considerations will be raised as late as the formal 
section 7 consultation process. Based on BOEM's objective to work with 
regulatory agencies early in the planning process and to choose 
locations that will minimize environmental impacts (Gilman et al. 
2016), we expect that site locations that minimize potential effects to 
MHI IFKWs and their habitat will be made early in the planning process. 
We have made revisions to the Final Biological Report and Economic 
Report to help clarify that change in location of projects is not an 
expected modification to be made during section 7 consultation; rather, 
regulatory agencies are likely to consider the sensitivity of the 
habitat early in the planning process and to select sites that will 
minimize any potential environmental effects, which is likely to 
minimize impacts to both MHI IFKWs and their critical habitat.
    With regard to the perceived inconsistency between modifications 
for fishery and energy development activities, we note that our 
anticipated modifications to minimize effects to MHI IFKW critical 
habitat vary among activities based on the available information. We 
recognize that fisheries have the potential to adversely affect MHI 
IFKW prey stocks and have included this activity in the list of 
activities that may affect MHI IFKW critical habitat. However, as noted 
in the Draft and Final Biological Reports, commercial fisheries are 
already regulated under catch limits and area restrictions that help 
ensure sustainability of fish stocks, and there is no current 
information suggesting that fishery catch rates are adversely affecting 
the availability of prey for IFKWs (NMFS 2017a and 2018a). 
Nevertheless, we anticipate that through the consultation process, NMFS 
will recommend project-specific modifications that will help reduce 
impacts to critical habitat, whether that activity involves commercial 
fisheries, energy development, or some other Federal action.

Essential Features

    Comment 3: The Hawaii Longline Association (HLA) provided comments 
noting several reasons why the ``prey'' feature may not be 
appropriately identified as a biological feature essential to the 
conservation of the MHI IFKW and why the proposed feature should not be 
used to determine future fisheries management. These comments stated 
that prey is not a limiting factor for this DPS, and noted that the 
Biological Report's conclusion, which anticipated no additional 
management for the longline fisheries, suggests that there are no 
special management measures required for this feature. HLA noted that 
without the need for special management measures, this feature does not 
meet the definition of features that can be used to delineate critical 
habitat under the ESA. HLA also noted that there is insufficient detail 
describing the prey feature (e.g., standards identifying the quantity, 
quality, or availability of prey that is necessary to support MHI IFKW 
conservation) for NMFS to regulate the fisheries in the future, and 
noted that any revised management measures premised upon impacts to the 
prey feature would require a revision to the designation and an updated 
economic analysis to consider the impacts to and any potential 
exclusions for commercial fisheries.
    Response: As noted in the Summary of Changes from the Proposed Rule 
section, we have restructured the feature essential to the conservation 
of MHI IFKWs to clarify that prey is one of four characteristics that 
support the feature, island-associated marine habitat for MHI IFKWs. 
These characteristics, in combination, support the unique ecology of 
MHI IFKWs, and each characteristic may require special management 
considerations or protection to support the overall health and recovery 
of this population.
    The ESA defines critical habitat, in relevant part, as the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical and biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protection, 16 U.S.C. 
1532(5)(A)(i).

[[Page 35067]]

    Merriam-Webster defines a limiting factor as the environmental 
factor that is of predominant importance in restricting the size of a 
population. The ESA does not require that a feature be limiting, but 
only that it be essential to conservation and that it may require 
special management. It is rare that a single factor limits a species' 
conservation; instead, most listed species face multiple threats of 
varying magnitudes, and the combination of these threats can hinder 
recovery. As noted in the species' status review and recovery outline 
(Oleson et al. 2010 and NMFS 2016a), reductions in prey size and 
biomass as well as environmental contaminants (received through prey) 
are medium threats for this DPS (Oleson et al. 2010, and NMFS 2016a), 
indicating that prey is an element in supporting recovery of MHI IFKWs. 
Accordingly, the availability of prey is an important characteristic 
that supports the successful growth and health of individuals 
throughout all life-stages. Further, the successful management of this 
characteristic, which does have competition from fisheries that catch 
MHI IFKW prey within island-associated marine habitat for MHI IFKWs, 
will ultimately support recovery of the population.
    The phrase ``may require'' indicates that critical habitat includes 
features that may now, or at some point in the future, be in need of 
special management or protection. Similar to our analyses in the 
proposed rule, we determined that this characteristic of the essential 
feature may require special management considerations or protections 
due to competition from fisheries that catch MHI IFKW prey. Certain 
laws and regulatory regimes already directly or indirectly protect, to 
differing degrees and for various purposes, the prey characteristic of 
the essential feature. However, in determining whether essential 
features may require special management considerations or protection, 
we do not base our decision on whether management is currently in 
place, or whether that management is adequate, but simply that it may 
require management. That is, we cannot read the statute to require that 
additional special management be required before we designate critical 
habitat (See Center for Biological Diversity v. Norton, 240 F.Supp.2d 
1090 (D. Ariz. 2003)). That a feature essential to conservation may be 
under an existing management program is not determinative of whether it 
meets the definition of critical habitat.
    We recognize that there is uncertainty associated with the relative 
importance of particular prey items in the diet; however, the diet of 
these whales and their energetic requirements are sufficiently 
described in the Draft and Final Biological Reports (NMFS 2017a and 
2018a). Specifically, MHI IFKWs are known to primarily forage on large 
pelagic fish, including yellowfin tuna, albacore tuna, skipjack tuna, 
broadbill swordfish, mahi-mahi, wahoo, and lustrous pomfret (for the 
full list of dietary items see Table 2 of the Final Biological Report; 
NMFS 2018a), and the energetic requirements for the population is 
estimated to be approximately 2.6 to 3.5 million pounds of fish 
annually (see the Diet section of the Final Biological Report, NMFS 
2017a). As noted in the Fisheries section of the Final Biological 
Report several fisheries target or catch MHI IFKW prey species. At 
least nine MHI IFKW prey species (from Table 2) are taken by the 
Federally managed longline fisheries (see Table 3 of the Final 
Biological Report) and several other species are incidentally caught by 
the state and Federal bottomfish fisheries. This overlap in targeted 
species of fish indicates there may be competition between fisheries 
and MHI IFKWs. Our designation and associated economic analysis are 
based upon the best available scientific information available at the 
time of designation. At this time, the prey characteristic of the 
essential feature meets the definition of critical habitat, in that it 
is essential to the conservation of the species and may require special 
management considerations or protection.
    Comment 4: The Western Pacific Regional Fishery Management Council 
(the Council) submitted comments noting that they agree with our 
assessment of prey competition between MHI IFKWs and federally managed 
fisheries and our conclusion that additional management is not 
necessary for these activities. However, the Council disagreed with 
statements that future revised management measures could be necessary 
for Federal fisheries, noting that this was unlikely in the foreseeable 
future given the diverse prey base of MHI IFKWs and given existing 
protections already in place to manage healthy levels of pelagic fish 
stocks.
    Response: As noted in our response to comment 3, we recognize that 
current information indicates that MHI IFKWs prey on a number of 
species (see Table 2 of the Final Biological Report; NMFS 2018a) and 
that their diet is diversified; however, as noted in the Biological 
Report, there is little known about specific diet composition, prey 
preferences, or potential differences among the diets of MHI IFKWs of 
different age, size, sex, or even social cluster. However, we do have 
information that false killer whales prefer pelagic prey species (e.g., 
broadbill swordfish, skipjack tuna, albacore tuna, yellowfin tuna, blue 
marlin, and bigeye tuna) targeted by commercial fisheries. While we do 
not expect modifications to fishery management at present, we cannot 
assume that Federal regulations that are designed to maintain 
sustainable fisheries will be adequate by themselves to address the 
prey needs of a recovering IFKW DPS. Accordingly, we refrain from 
speculating as to the need for additional management of this 
characteristic as more information becomes available in the future.
    Comment 5: BOEM commented that there are no special management 
considerations or protective measures that can reasonably be attributed 
to the ``Island-associated marine habitat for MHI IKFWs'' feature, 
without which the feature has little or no utility within the context 
of ESA consultations. BOEM recommended removing the feature to minimize 
confusion and avoid unnecessary analyses.
    Response: As noted in the Summary of Changes from the Proposed Rule 
section, we have restructured the feature essential to the conservation 
of MHI IFKWs. The feature, island-associated marine habitat for MHI 
IFKWs, now consists of four component characteristics that, in 
combination, help describe the feature of habitat that is essential to 
MHI IFKWs. As noted above, we previously attempted to describe the 
significance of allowing for movement to, from, and within this habitat 
as part of the description of the proposed ``island-associated marine 
habitat'' feature. In the restructured version of the essential feature 
for this critical habitat designation, we have specifically described 
``adequate space for movement and use within shelf and slope habitat'' 
as a characteristic of this feature. To clarify the special management 
considerations or protections, each characteristic includes a 
discussion of factors that may threaten or pose a risk to that 
characteristic. With regard to adequate space for movement and use 
within shelf and slope habitat, we specify that human activities that 
interfere with whale movement through the habitat by acting as a 
barrier may adversely affect this characteristic. We also provide 
examples of activities that may act as barriers to movement, such as 
large marine structures or sustained acoustic disturbance, and describe 
factors that may intensify these habitat effects, many of which can be 
minimized or mitigated.

[[Page 35068]]

    Comment 6: We received several comments (from HLA, State of 
Hawaii's Division of Aquatic Resources (DAR), BOEM and the Navy) 
recommending that NMFS remove the ``habitat free of anthropogenic 
noise'' feature. The DAR noted that noise is related to an activity and 
is not a feature of the habitat, and that anthropogenic noise should be 
considered for its potential negative impacts to IFKWs, but it should 
not be an essential feature of the habitat. BOEM recommended removing 
the feature from the designation because (1) the proposed feature is 
not an existing physical or biological habitat feature, (2) effects of 
anthropogenic sound are evaluated through the ESA section 7 analysis as 
a direct effect to the DPS, and (3) there is insufficient information 
available to predict with confidence if, how, and where noise-related 
activities may require additional management as an element of habitat 
for the DPS. HLA noted that it is not appropriate or lawful for NMFS to 
include the absence of an element (sound) as an essential feature. HLA 
noted that the absence of certain levels of sound is not a tangible 
physical or biological feature that can be found in a specific area, 
and that the presence of sound should be evaluated under the 
``jeopardy'' prong of a section 7 consultation because any 
determination by NMFS that sound may adversely affect the IFKW would be 
predicated on the finding that the sound affects the animals, not the 
animal's habitat. Further, HLA noted that many of NMFS' past critical 
habitat designations for other species that are susceptible to adverse 
effects associated with in-water sound do not include sound as a 
feature, and that we should not change our existing policy by 
identifying it as a feature for this species. The Navy submitted 
comments expressing concerns that the proposed rule did not include 
examples of what activities or impacts might adversely affect or 
adversely modify the proposed sound feature and requested that NMFS 
remove the feature until such time that the science becomes more 
mature.
    Response: As noted in our response above and the Summary of Changes 
from the Proposed Rule section, based on this and other comments, we 
have restructured the feature essential to the conservation of MHI 
IFKWs. In the final rule, the several features described as independent 
features in the proposed rule now appear as characteristics that exist 
in combination under a single essential feature, island-associated 
marine habitat for MHI IFKWs. We agree with the commenters that the 
description ``free of anthropogenic noise'' does not provide a clear 
standard for determining how this habitat characteristic supports MHI 
IFKW conservation within island-associated habitat. However, we still 
find that sound levels are an important attribute of the island-
associated habitat that is essential to MHI IFKWs' conservation.
    As odontocetes, these whales rely on their ability to receive and 
interpret sound within their environment in order to forage, travel, 
and communicate with one another. Accordingly, island-associated 
habitat must be capable of supporting MHI IFKWs' ability to do so. 
While it is clear that noise introduced into the environment has the 
potential to affect individual whales in a manner that may have 
biological significance (i.e., to result in a take by harassment or 
injury), scientific information also indicates that the introduction of 
a permanent, chronic, or persistent noise source can degrade the 
habitat of such sound-reliant species by adversely altering the 
animal's ability to use the habitat for foraging, navigating, or 
reproduction (i.e., altering the conservation value of the habitat). 
This reliance on sound, combined with the fact that these whales are 
adapted to a restricted range, make sound levels an important 
characteristic of island-associated habitat. Thus, it is appropriate to 
consider how permanent, chronic, or persistent noise sources may alter 
the value of that habitat and manage for it.
    With regard to the comment that this characteristic has not been 
expressed as a feature of the habitat, we considered rephrasing this 
characteristic to describe how ambient sound levels support MHI IFKW's 
capacity to forage, navigate, and communicate. However, we find that 
this articulation would not provide sufficient guidance to the 
regulated community about human activities that may degrade listening 
conditions for MHI IFKWs within island-associated marine habitat. To 
clarify how sound as a characteristic of habitat supports these whales 
and how human activities may adversely affect this characteristic we 
have revised the language describing this characteristic from ``Habitat 
free of anthropogenic noise that would significantly impair the value 
of the habitat for false killer whales' use or occupancy'' to ``sound 
levels that would not significantly impair MHI IFKW's use or 
occupancy.'' We believe that this formulation appropriately identifies 
that these whales rely on sound levels within their environment, and 
that noise that alters sound levels such that it interferes with these 
whales' use or occupancy may result in adverse effects to MHI IFKW 
critical habitat.
    In this rule (see the Physical and Biological Features Essential 
for Conservation section) and the Final Biological Report (NMFS 2018a) 
we describe the importance of sound in this populations' ecology and 
how chronic noise sources may alter the value of their habitat. We 
recognize that the mere presence of noise, or even noise which might 
cause harassment of the species, does not necessarily result in adverse 
modification. Rather, we emphasize that chronic, or persistent noise 
sources are of concern and should be evaluated to consider the degree 
to which the noise may impede the population's ability to use the 
habitat for foraging, navigating, and communicating, or whether the 
noise source may deter MHI IFKWs from using the habitat entirely.
    Our designation must be based on the best available scientific 
information at the time of designation and this includes considerable 
information on the species' reliance on sound in the environment and 
the effects of sound on their ability to communicate, forage and 
travel. Although we may not be able to predict exactly what noise-
related activities may result in adverse modification of critical 
habitat or the management measures that will be taken in the future, we 
conclude that sound is an important characteristic of this species' 
habitat that may need special management considerations.
    While previous critical habitat designations may not always have 
directly identified sound levels as a characteristic of critical 
habitat, we have considered how anthropogenic noise affects habitat use 
for species that are susceptible to the adverse effects associated with 
in-water sound for example, by creating barriers to passage or movement 
of Southern Resident killer whales (71 FR 69054; November 29, 2006) and 
Atlantic sturgeon (82 FR 39160, August 17, 2017). Although we 
ultimately did not include sound as an essential feature for the 
Southern Resident killer whale, our designation of critical habitat for 
Cook Inlet beluga whales does include the essential feature of the 
absence of in-water noise at levels resulting in the abandonment of 
habitat by Cook Inlet whales'' (76 FR 20180; April 11, 2011).
    As discussed in the Final Biological Report, how human activities 
that introduce noise in the environment might change the animals' use 
of habitat and determining the biological significance of that change 
can be complex and involve consideration of site specific variables, 
including: The characteristics of the introduced sound (frequency 
content, duration, and intensity); the physical characteristics of

[[Page 35069]]

the habitat; the baseline soundscape; and the animal's use of that 
habitat. For the MHI IFKW designation, we include ``sound levels'' as a 
characteristic of the essential feature, because it notifies Federal 
agencies of the significance of sound levels in supporting MHI IFKWs' 
habitat use. Additionally, it allows these agencies to use the best 
available information to consider whether their activities may result 
in adverse effects to MHI IFKW habitat.

Areas Included in the Designation

    Comment 7: We received several comments in support of the size and 
protections associated with the proposed designation. These comments 
generally acknowledged the importance of protecting habitat for this 
DPS. A number of these comments noted that the designation may provide 
ancillary habitat protections, thereby benefiting other species, 
biological resources, or cultural resources in Hawaiian waters.
    Response: We agree that critical habitat designations are important 
in supporting thoughtful planning for the conservation of a species 
and, as noted in the Draft and Final Economic Reports, these 
designations can provide ancillary habitat protections to other species 
and resources that overlap with those areas (Cardno 2017 and 2018).
    Comment 8: We received several additional comments about the 
overall size of this designation and the area included. Comments from 
BOEM and DAR suggested that the size of the designation was too large 
and both agencies recommended that NMFS focus the designation on high-
use areas for IFKWs. Specifically, BOEM noted that the proposed 
designation includes the entire area used by this DPS, yet the proposed 
rule suggests that ``high-use'' and ``low-use'' areas within the 
designation may be used to identify special management considerations 
for siting offshore energy facilities. BOEM noted that the proposed 
rule considers access to high-use areas to be important, but does not 
describe how access may be affected by human activities in an open 
ocean environment. BOEM recommended focusing on ``high-use areas to 
provide better definition for special management considerations and/or 
protections of habitat.''
    DAR referred to the large area of the proposed designation at 
19,184 mi\2\ and noted that the proposal seemed overly large for 151 
animals, providing an average of 127 mi\2\ per animal. DAR indicated 
that the non-uniform habitat use patterns of this DPS suggests that all 
waters within the 45-3,200 m depth range are not equally important and 
that designating all of these waters is not logical. DAR recommended 
that NMFS focus on the areas that seem to be important (i.e., high-use 
areas) as the basis for critical habitat designation.
    Comments received from the Marine Mammal Commission (MMC) also 
noted the large size of this designation and the potential difficulty 
in managing acute threats to IFKWs over a broad designation. However, 
the MMC also noted that, for the time being, the size of this 
designation was appropriate because information necessary to refine 
this designation is not yet available for this DPS. The MMC noted that 
the proposal meets the statutory requirements and went on to recommend 
that NMFS continue to undertake and support research needed to refine 
the designation in the future to further support recovery needs for 
this DPS.
    Response: We find that the area designated as critical habitat is 
appropriate and representative of the ecological needs of this large 
marine predator. Moreover, it is based on the best available 
information, and does not include the entire range of the DPS. The area 
that is being designated includes approximately 26.5 percent of this 
DPS's range. The boundaries take into consideration the population's 
preference for deeper waters just offshore (45 m) and align with 
habitat use on the leeward and windward sides of the islands, while 
also allowing for travel around and among the islands through the 
selection of the offshore depth boundary at 3,200 m. While much 
information has been gained about habitat use for this DPS, there is 
still more to be learned about how habitat use differs among social 
clusters and over time as seasonal or long-term oceanographic changes 
influence prey. As noted in this comment, the proposed rule and the 
Biological Report (Baird et al. 2012) applied a density analysis to MHI 
IFKW satellite tracking information to identify high-density areas 
(also referred to as high-use areas) of the DPS's range; these portions 
of the range likely represent particularly important feeding areas for 
the animals represented in the data (Baird et al. 2012). We note 
however, that the known high-use areas are not necessarily 
representative of all clusters, as very few animals from some clusters 
have been tagged to date. Based on the incomplete information 
available, we cannot conclude that the documented high-use areas 
represent all feeding areas or sources of prey essential for the 
conservation of this DPS.
    Rather, current information suggests that these whales travel great 
distances throughout the MHI (Baird et al. 2012), and their prey 
species are also known to be broadly ranging, widely migratory species 
that are patchily distributed throughout the whales' range (Oleson et 
al. 2010). Additionally, these whales are observed feeding throughout 
the low-density areas of their range (Baird et al. 2012). Although the 
data indicates that the whales concentrate efforts in certain areas 
where foraging success is high, additional information indicates MHI 
IFKWs continue to forage for prey located throughout their range; 
therefore, other areas of the waters surrounding the MHI meet the 
definition of critical habitat.
    We have not identified the high-use areas of the range as an 
independent feature of MHI IFKW critical habitat, but rather as a 
strong indicator of the presence of characteristics of the essential 
feature. We also use the information about known concentrated habitat 
use to evaluate the conservation value of areas, as noted in the ESA 
Section 4(b)(2) Report (NMFS 2018b). Because of the concentrated use of 
this habitat, we infer the conservation value for high-use areas to be 
higher than low-use areas of the range. In other words, we considered 
that these high-use areas of the designation may offer more benefits to 
IFKWs and that the loss or degradation of these areas may result in a 
greater impact to the DPS as a whole. In our response to Comment 5, we 
note that we revised our Biological Report to clarify that we expect 
siting decisions for renewable energy projects to occur early in the 
planning stage rather than at the consultation stage. Nonetheless, we 
do expect planners to take into consideration IFKW use of a particular 
area and to minimize any potential impacts to these whales and their 
habitat. Thus, while the effects of certain technologies are largely 
uncertain, planning groups may choose to avoid placing projects in high 
conservation value areas if alternative locations exist in low-use 
areas.
    Comment 9: We received comments specific to the boundaries that 
were selected for the proposed designation. Two comments suggested that 
NMFS reconsider the inner boundary of the designation. In particular, 
the National Park Service recommended that the inner boundary of the 
designation be moved to 30 m in depth to incorporate additional areas 
where this DPS has been documented (in accordance with Baird et al. 
2010) and to include a buffer zone. Alternatively, DAR suggested that 
NMFS use IFKW satellite tagging data to select a boundary for the 
designation. DAR noted that this data seems to support a critical 
habitat designation

[[Page 35070]]

that is in closer proximity to the islands, especially near Molokai and 
Hawaii.
    The Council requested that NMFS provide further clarification on 
the basis for selecting the outer boundary of 3,200 m in depth. The 
Council noted that the depth appears to have been selected to allow the 
designation to be drawn in a continuous range around the MHI and that 
the designation may include areas that may not be essential to the 
conservation of the MHI IFKWs. The Council recommended that an 
alternative delineation be made based on different depth ranges around 
each island and the channels to account separately for habitat 
characteristics around each island and areas used among islands for 
movement.
    Response: In response to these comments we re-analyzed the data 
used to select the boundaries for this designation as well as new 
satellite information received from Cascadia Research Collective to 
determine if different boundaries may be appropriate. We also reviewed 
the data by island to consider whether alternative patterns exist at 
different depths or distances from shore.
    Review of this information revealed that 2.5-3.8 percent of 
satellite-tag locations were shallower than 45 m across the islands 
(the higher percent includes points located on land, which likely fall 
into shallow locations due to the associated error with these 
satellite-tag locations). When we mapped shallow satellite-tag 
locations across the islands, we did not observe clear spatial patterns 
around each island, but saw that shallower use varied somewhat between 
islands. Similar to the proposed rule, we then reviewed depth frequency 
histograms of satellite-tag locations, but considered these locations 
specific to each island as requested by the above comments. These 
histograms varied slightly from island to island, but we noted that 
when high-use areas are located near islands, the depth frequency 
histogram for that island is skewed toward deeper depths, indicating 
these data may be limited in describing meaningful patterns around the 
entire island. In addition to considering depth around each island, we 
reviewed distance from shore and found similarly disparate patterns 
ranging from 500 m offshore to over 1,200 m. Looking across the islands 
as a whole, less than four percent of the satellite-tag locations are 
found at depths shallower than 45 m, and this remains a depth at which 
the frequency of satellite-tag locations increases and remains more 
consistent.
    Throughout this review we considered whether prescribing a 
different depth or distance from shore for each island would provide 
more clarity about MHI IFKW habitat use or management of their habitat 
around each island; however, prescribing island-specific boundaries 
would not better match how these animals use Hawaiian waters. Given the 
DPS's non-uniform treatment of habitat around each island, splitting 
these data by island may not partition the habitat in manner that is 
ecologically meaningful.
    With regard to the outer boundary, we selected the outer depth 
boundary to incorporate those areas of island-associated habitat where 
MHI false killer whales are known to spend a larger proportion of their 
time (see high-use discussion in Movement and Habitat Use in the 
Biological Report), and to include island-associated habitat that 
allows for movement between islands and around each island. As noted 
above, these whales move great distances throughout the MHI, moving 
back and forth between areas off multiple islands. The 3,200 m depth 
boundary best aligns with the span of habitat used on the leeward and 
windward sides of the islands, allowing for ample space for these 
whales to move among areas of concentrated or high-use, including 
habitat across the core portions of the range.
    We have not revised the boundaries at this time because the 
commenters requested revisions are not supported by the data, although 
some aspects of our analysis indicate that further consideration may be 
warranted as additional information becomes available. The current 
delineation of 45-3,200 m is appropriate because it includes a depth 
just offshore where MHI IFKWs are more likely to be found and an outer 
boundary that aligns with habitat use on the leeward and windward sides 
of the islands, while allowing for travel around and between the 
islands.
    Comment 10: DAR provided comments on the vertical extent of this 
designation, noting that NMFS should limit the designation to those 
depths that are utilized by the DPS and their prey. DAR noted that 
1,272 m is the maximum dive depth recorded for this DPS, and 
recommended that, similar to the monk seal critical habitat designation 
which focuses on the habitat 10-m from the bottom where monk seals 
forage, the IFKW designation focus on the upper 1,500 m of the water 
column which is the portion of the habitat being used by the IFKWs.
    Response: We considered the recommendation to limit this 
designation to the depth of 1,500 m; however, given the limited data 
available and other management considerations associated with water 
quality and sound, we have not limited the designation to a specific 
depth. For the Hawaiian monk seal we limited the critical habitat 
designation to 10 m from the bottom to help clarify where Hawaiian monk 
seal foraging areas, an essential feature of the designation, exist and 
to help clarify where protections should apply (80 FR 50926; August 21, 
2015). While we recognize that MHI IFKWs and their prey may limit their 
habitat use to specific depths, information about these patterns is 
still relatively limited. Further, sound levels and water quality, 
which also support the feature essential to the conservation of MHI 
IFKWs, may be at risk at a wider range of depths.
    Comment 11: One commenter noted that a study by Baird et al. (2011) 
found an island-associated population of false killer whales in the 
Papahanaumokuakea Marine National Monument and suggested that this area 
be added to the critical habitat of the MHI IFKW DPS, because the area 
is free of anthropogenic noises, and the listed species has been found 
in this region. The commenter went on to note that an expansion of 
critical habitat into this region may also shield the DPS from climate 
change impacts and prepare for range shifts in the DPS or in their prey 
as a result of climate change.
    Response: We have not included areas of the Papahanaumokuakea 
Marine National Monument in this designation of critical habitat 
because we find that this area is unoccupied habitat outside the range 
of the DPS and is not essential to its conservation. To be clear, the 
MHI IFKW is one of three false killer whale populations found in 
Hawaiian waters: The MHI IFKW, Northwestern Hawaiian Islands FKW, and 
pelagic FKW. Only the MHI IFKW is listed under the ESA. Although the 
range of the MHI IFKW overlaps with that of the Northwestern Hawaiian 
Islands and pelagic populations, the MHI IFKW range does not extend 
into the Papahanaumokuakea Marine National Monument. While we can 
consider designation of critical habitat outside the geographic range 
of a listed species, given the unique ecology of the MHI IFKW, their 
reliance on the shelf and slope habitat of the MHI, and the fact that 
another population of false killer whales occupies the waters of the 
NWHI, we find no information to suggest that waters in the NWHI are 
essential to conservation. Further, climate change predictions do not 
provide information that would allow us to conclude that the NWHI will

[[Page 35071]]

provide habitat that is essential to conserving MHI IFKWs.

Areas Ineligible for Designation

    Comment 12: We received several comments that disagreed with or 
questioned our determination that the Joint Base Pearl Harbor Hickam 
(JBPHH) INRMP provides a benefit to MHI IFKWs. Comments received from 
the MMC, Natural Resources Defense Council (NRDC), the Center for 
Biological Diversity (CBD), and a researcher with the Cascadia Research 
Collective noted that MHI IFKW habitat-use information suggests that 
the overlapping areas (the Ewa Training Minefield and National 
Defensive Sea Area) provide important corridors for MHI IFKWs and that 
NMFS should consider this information in meeting its ESA section 
4(a)(3) requirements. These comments also noted that the INRMP was 
approved prior to the listing of the MHI IFKW, and therefore does not 
take into account the unique conservation needs of this DPS. Comments 
from the MMC noted that JBPHH conservation measures mentioned in the 
proposed rule do not provide a direct, quantifiable, or obviously 
substantial benefit to MHI IFKWs. The MMC recommended that NMFS 
withdraw its proposed determination and subsequent preclusion of areas 
managed under the JBPHH, but if retained, that the INRMP be updated to 
include activities that benefit IFKWs more directly. In a joint 
comment, NRDC and CBD also noted that there is not a direct link 
between the JBPHH conservation measures and direct benefits to the MHI 
IFKW or their prey. NRDC and CBD noted that many of these measures are 
merely proposed and not yet officially included in the JBPHH INRMP, 
which is due to be drafted in 2018. NRDC and CBD similarly recommended 
that NMFS re-evaluate its consideration of whether the INRMP provides a 
benefit to MHI IFKWs and that NMFS not preclude these areas from the 
critical habitat designation due to the high conservation value of 
these areas for MHI IFKWs.
    Response: In response to these comments we reviewed our 
determination regarding the JBPHH INRMP; we also contacted the Navy for 
additional information about the on-going implementation and the plans 
for revision of this INRMP. As noted in the ESA Section 4(b)(2) Report 
(NMFS 2018b), regulations at 50 CFR 424.12(h) provide that the 
Secretary will not designate as critical habitat DOD lands that are 
subject to an INRMP if the Secretary determines in writing that such 
plan provides a conservation benefit to the species for which critical 
habitat is being designated. In determining whether such a benefit is 
provided, NMFS considers (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. Importantly, NMFS can 
find that an INRMP provides a benefit to a species where, as here, the 
species is not directly addressed in the INRMP. In these cases, we 
consider adaptive conservation management for the feature essential to 
the conservation of the species (i.e., its habitat features) or the 
species itself either directly or indirectly. We also consider whether 
adaptive conservation management measures are effective and reasonably 
certain to be implemented.
    The JBPHH INRMP overlaps with the areas under consideration for 
critical habitat in two areas, the Naval Defensive Sea Area and the Ewa 
Training Minefield, which include approximately 27 km\2\ (~10 mi\2\) of 
area or approximately 0.5 percent of the areas under consideration for 
critical habitat. Based on our review of relevant data, including 
supplemental satellite-tracking information from Cascadia Research 
Collective (3 new animals), we consider these areas to be low-use (low-
density) areas for MHI IFKWs, and note that they travel through these 
areas at moderate levels (see Figure 4 of the ESA Section 4(b)(2) 
Report). We therefore consider these areas to be of low to moderate 
conservation value to MHI IFKWs in comparison to other areas of the 
designation.
    During development of the proposed rule the Navy highlighted a 
number of JBPHH management efforts that benefit MHI IFKW habitat. After 
reevaluation, we still find that the JBPHH INRMP provides a number of 
conservation measures that benefit MHI IFKWs and their habitat, 
including those that address water quality and fishery prey base (see 
the Application of ESA Section 4(a)(3)(B)(i)(Military Lands) section of 
this rule). Specifically, measures taken to improve water quality, 
including restoration projects and pollution prevention plans, directly 
improve or maintain the water quality characteristic of MHI IFKW 
critical habitat. Actions taken to remove feral animals, as well as 
restrictions on free roaming cats in residential areas, also help to 
maintain water quality and lower the risk of infectious agents being 
introduced into MHI IFKW habitat. The Navy's participation as an active 
member of the Toxoplasmosis and At-Large Cat Technical Working Group 
helps address issues that JBPHH faces on base and encourages a broader 
response to a conservation issue that threatens much of Hawaii's 
wildlife, including MHI IFKWs. Finally, the Navy has issued fishing 
restrictions adjacent to and within areas that overlap the potential 
designation, and conducts creel surveys that provide information about 
fisheries in unrestricted areas of Pearl Harbor. These measures provide 
protections for and information about the marine ecosystem and food web 
that supports MHI IFKW prey species.
    We find that some of these protections (e.g., stormwater and 
pollution measures or watershed enhancement activities) address effects 
that would otherwise be addressed through an adverse modification 
analysis (provided they are not already addressed through baseline 
protections). Other conservation measures (e.g., controlling cats to 
prevent the spread of toxoplasmosis and fishery restrictions) address 
effects to MHI IFKW habitat that otherwise may not be subject to a 
section 7 consultation. 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.
    As part of an adaptive management approach for this INRMP, NMFS 
staff participates in JBPHH INRMP annual reviews to provide 
recommendations about plan implementation and effectiveness and to 
receive information about upcoming plan amendments. These reviews help 
ensure that the plan provides an effective mechanism for addressing MHI 
IFKW conservation within areas managed under the JBPHH INRMP. 
Specifically, the reviews provide a reliable method for feedback, 
regular assurances that the above-described conservation measures are 
being implemented, and a procedure for assessing and modifying measures 
to ensure conservation effectiveness.
    Although not essential to our determination that the JBPHH INRMP 
provides a benefit to the MHI IFKW, we also take into consideration 
additional future measures that the Navy plans to include in updates to 
the INRMP by December 2018. These expected additional measures include 
(1) specific information about MHI IFKWs, (2) where MHI IFKWs may be 
found in areas managed by the installation, (3)

[[Page 35072]]

new projects associated with watershed enhancement, and (4) mandatory 
mitigation measures already used by the Pacific Fleet to minimize 
impacts to MHI IFKWs as they use these areas. Procedural mitigation 
measures are mandatory activity-specific measures taken to avoid or 
reduce the potential impacts on biological resources from stressors, 
including those that may cause acoustic or physical disturbance to 
marine mammals during Navy training and testing. These procedural 
measures are required in the Navy's Protective Measures Assessment 
Protocol consistent with letters of authorization for training 
activities issued under the MMPA and supporting ESA analyses. 
Procedural mitigation measures are adaptively managed as new 
information becomes available about effective mitigation techniques and 
are identified in the current Hawaii-Southern California Training and 
Testing Final Environmental Impact Statement. Examples of measures 
include training personnel to spot and identify marine mammals 
(lookouts), reporting requirements for trained lookouts, and halt or 
maneuvering requirements when marine mammals are spotted within 
identified mitigation zones of Navy activities (DON 2013 and 2017c). 
Although not restricted to the JBPHH areas, these mandatory mitigation 
measures help ensure that the Navy will avoid or reduce the impacts 
from acoustic stressors on MHI IKFWs as the INRMP is updated by 
December 2018.
    After careful review, we are satisfied that the Navy's 2011 JBPHH 
INRMP provides a benefit to the MHI IFKW in this relatively small (0.5 
percent of habitat that overlaps with areas that meet the definition of 
MHI IFKW critical habitat) area having low-moderate conservation value 
to MHI IFKWs. We are satisfied that the Navy's documented history of 
consistent plan implementation and their commitment to adaptive 
management through the implementation of mandatory mitigation measures 
will ensure that MHI IFKWs receive benefits under the JBPHH INRMP, 
particularly with respect to improving watershed health in the Pearl 
Harbor area, which will benefit prey and water quality characteristics. 
Further, we expect that the Navy will continue to strengthen its INRMP 
through scheduled updates to be completed by December 2018.

Comments on the Economic Impacts

    Comment 13: We received comments from BOEM indicating that the 
proposed rule did not describe the full range of the economic effects 
because the analysis was limited to a discussion of incremental 
administrative costs and did not describe, quantitatively or 
qualitatively, the cost factors associated with changes in site 
selection should the proposed critical habitat be interpreted to 
require such changes. BOEM noted that even small changes to siting 
decisions can equate to large costs, and that during initial planning 
these decisions can impact the viability of developing reliable and 
cost-effective renewable energy resources. Additionally, BOEM noted 
that ``the economic report does not appear to reconcile the estimated 
increases in administrative costs between sectors [comparing energy and 
fisheries] when compared with its conclusions for the management needs 
that are used to justify incremental increases in administrative 
costs.''
    Response: As noted in our response to Comment 2, we expect that 
BOEM will make site location decisions that minimize potential effects 
to MHI IFKWs and their habitat early in the planning process (Gilman et 
al. 2016). We also note that current potential site locations are 
predominantly found in low-use habitat areas. Accordingly, we have 
revised the Biological Report to clarify that site relocation is not an 
anticipated modification identified during section 7 consultation for 
this designation. With regard to the comment about estimated increases 
in administrative costs between sectors, Chapter 4 of the Economic 
Report (Cardno 2018) points out that the administrative costs for each 
activity are estimated using the number of consultations for that 
activity over the last 10 years (from NMFS section 7 database) as well 
as any information gathered about likely future projects that may 
require consultation. These administrative costs take into 
consideration whether technical assistance, informal, formal, or 
programmatic consultation is expected and do not include incremental 
costs associated with any recommended project modifications to minimize 
the impacts to critical habitat (see Table 4-1; Cardno 2018). The 
administrative cost differences between fishery activities and energy 
activities are therefore based on the number and type of consultations 
expected over the next ten years and do not include any incremental 
modification costs associated with consultation. Fishery activities 
regularly undergo consultation around Hawaii, and the consultation 
history indicated that this category of activity underwent 7 formal, 17 
informal and 2 technical assistances over the 10-year period. Thus, the 
administrative costs for fishery activities were estimated assuming a 
similar pattern of consultation. Renewable energy development 
activities do not have the robust history of consultation in Hawaii 
that fishery activities have. As such, we estimated the administrative 
costs for these activities based on information provided about three 
anticipated projects within the next 10 years (the time frame of the 
analysis), which are assumed to require formal consultation. BOEM and 
Hawaii State Energy staff indicated that there was uncertainty 
regarding whether the projects would be implemented in the next ten 
years. As such, the administrative cost estimates for energy activities 
were estimated in a range from a low of 0 to a high of 16,000 dollars, 
to reflect alternatives in which none of the projects occur (0 dollar 
estimate) and all three projects occur and require consultation in the 
next 10 years (16,000 dollar estimate).
    Comment 14: DAR provided comments suggesting that Federal agencies 
may not be the only ones impacted by a broad designation and noted that 
an overly broad critical habitat designation wouldn't necessarily 
identify important habitats that are essential for the conservation of 
the species and could unintentionally and unnecessarily, increase 
management costs. This comment referred to costs and delays to projects 
associated with the management of Essential Fish Habitat (EFH) and 
suggested that a broad critical habitat designation could result in 
similar costs and delays.
    Response: As noted in our response to Comment 8, we conclude that 
this designation is representative of the ecological needs of this 
endangered population and is based on the best available information. 
We do not agree that designation is overly broad, as it is based on 
habitat characteristics that support important biological needs, and 
includes less than thirty percent of the IFKW's occupied range. 
Moreover, as noted in the Economic Report (Cardno 2018), the economic 
impacts of this designation are low because the designation does not 
include many nearshore areas, including developed shoreline, harbors 
and inlets, where a majority of Hawaii's marine section 7 consultations 
occur, and because existing regulatory measures provide some baseline 
protections for habitat characteristics, such as water quality and 
prey. As such, we anticipate that the costs of this designation will be 
largely attributed to federally-managed fisheries, Department of 
Defense activities, and marine-related construction and energy 
development,

[[Page 35073]]

and we do not anticipate that the additional consultation on effects to 
critical habitat will result in significant, additional project delays 
or costs.
    We note that the consultation process for critical habitat under 
the ESA and EFH under the Magnuson-Stevens Act have different 
requirements and work under different timeframes. We have no basis to 
conclude that the costs associated with conserving existing EFH are 
related to costs associated with this critical habitat designation.

Comments on 4(b)(2) Exclusions

    Comment 15: The MMC provided comments on the 4(b)(2) weighing 
process for national security exclusions, expressing concerns that, 
without a quantitative analysis of benefits to security or 
conservation, decisions to designate or exclude an area from the 
designation based on qualitatively balancing IFKW use with potential 
regulatory compliance burden appear to be somewhat arbitrary. The MMC, 
provided examples: ``Waters Enroute to PMRF,'' Kingfisher Range, and 
Kaula and Warning Area 187, in which NMFS chose not to exclude the 
first area and to exclude the second and third areas, using essentially 
the same reasoning of having low MHI IFKW use and a minor impact to the 
Navy's consultation. The MMC recommended that NMFS reconsider its 
benefit analysis, and investigate methods to draw equivalence, ideally 
quantitative, between conservation benefits inferred from IFKW usage 
and benefits of relief from potential regulatory compliance impacts.
    Response: We have not identified a quantitative method to compare 
the benefits of excluding particular areas for national security to the 
benefits of designation of critical habitat for MHI IFKWs. A 
qualitative approach allows us to better evaluate the different factors 
that weigh in the balancing test. We note that even where we have 
quantitative information, that information is incomplete and may 
require qualitative assessment. For example, in our comparison of 
benefits of exclusion versus benefits of designation, we consider MHI 
IFKW habitat use in areas where satellite tracking information may be 
underrepresented (e.g., areas known to be used by cluster 2 and 4 
animals).
    With regard to the ``Waters Enroute to PMRF,'' Kingfisher Range, 
and Kaula and Warning Area 187 examples, we disagree that our weighing 
process was inconsistent in the proposed rule, and we note that key 
differences in our analyses outlined in the ESA Section 4(b)(2) Report 
turned on differences associated with the size of the requests, the 
control that DOD has over each area, and the likelihood that other 
Federal activities may require consultation and may occur in each area. 
For example, both the Kingfisher and Kaula areas are relatively small 
in size, and DOD control and use of these areas are likely to preclude 
other Federal activities that would otherwise undergo consultation, 
thus presenting a lower benefit of designating critical habitat in 
these areas. In contrast, ``Waters Enroute to PMRF'' includes a larger 
area in which the Air Force's activities and use are not likely to 
preclude other Federal activities that would otherwise undergo 
consultation. However, based on this comment, and the question raised 
about inconsistencies in our decision making process, we have revised 
tables in our ESA Section 4(b)(2) Report to articulate more clearly the 
differences in our determinations for this weighing process.
    As noted above, we have reassessed our evaluation of the waters 
south and east of PMRF (the Kaulakahi Channel portion of Warning area 
186) after considering supplemental information furnished by the Navy 
in October of 2017, and for the reasons discussed above, we concluded 
that the benefits of excluding this area outweigh the benefits of 
designation. While the Kaulakahi Channel portion of Warning area 186 
overlaps in part with the ``Waters Enroute to PMRF,'' these two areas 
were assessed independently based on differences in the geographic 
scopes of the requests made by the Air Force and Navy, as well as 
differences in the activities occurring in these areas (DOAF 2017, DON 
2017b, DON 2018). Although our independent weighing of the Air Force's 
request for the ``Waters Enroute to PMRF'' area did not change, we note 
that a portion of this area is now excluded from critical habitat 
because it overlaps with the Kaulakahi Channel portion of Warning area 
186, where the benefits of exclusion (for Navy activities) were found 
to outweigh the benefits of designation.
    Comment 16: Cascadia Research Collective's Researcher Robin Baird, 
Ph.D., provided additional information about MHI IFKW habitat use for 
13 of the areas analyzed in our 4(b)(2) national security exclusion 
process as well as the six additional areas we identified in the 
proposed rule but for which we did not include a proposed exclusion 
determination. This information included analyses of a larger sample 
size of satellite tag data from that reported in the Draft Biological 
Report (i.e., 3 additional individuals' data was included with the 27 
already considered in the Draft Biological Report). Using this 
satellite-tag information and the boundaries of the areas under 
consideration for exclusion, Baird calculated the total area requested 
for exclusion (in km\2\), percent of the total range, percent of total 
time spent in an area, days spent in area (per 100 km\2\), and the 
number of visits (per 100 km\2\). Baird noted that these analyses show 
that a number of areas that are proposed for exclusion are relatively 
high-use areas or appear to be important as transit areas. Baird noted 
that NMFS should reconsider the exclusion of areas such as FORACS and 
SESEF based on these calculations. Baird also noted that the NDSA and 
Ewa Training Minefield, which were determined ineligible under 4(a)(3), 
also lie within the same important transit corridor off Oahu, and that 
NMFS should reconsider this decision in terms of the costs of not 
including these two areas in critical habitat. Comments received from 
NRDC also requested that we reconsider the exclusion of FORACS, SESEF, 
and Kingfisher in light of these areas being high transit areas.
    With regard to the six additional areas under consideration for 
exclusion, Baird noted that only one area, the Kaulakahi Channel 
Portion of W-186, represents an area that is likely not particularly 
important to the population. The other five areas, however, represent 
areas where MHI IFKWs spend a disproportionate amount of time. NRDC and 
the CBD also commented that the NMFS should not exclude the area south 
of Oahu, the Kaiwi Channel, or the Alenuihaha Channel due to the 
importance of areas to MHI IFKWs.
    Response: We have reanalyzed the areas under consideration for 
exclusion using the Navy's initial June 2017 request, as supplemented 
by its October 2017 input and Baird's updated satellite tracking 
information. As noted in the Draft ESA Section 4(b)(2) Report (NMFS 
2017b), for the proposed rule we relied on density analysis of 
satellite-tracking data to provide information about MHI IFKW habitat 
use, and the conservation value for high-use areas was inferred to be 
higher than low-use areas of the range. For particular areas of the 
range, we also used additional information (e.g., observational data of 
MHI IFKWs from boat surveys in portions of the MHI) that may supplement 
our current understanding of MHI IFKW habitat use patterns, because 
current information provides a limited representation for social 
clusters 2 and 4.
    To consider the conservation value of a particular area relative to 
other areas of the potential designation, we overlaid tracking 
information from Cascadia

[[Page 35074]]

Research Collective across the whole area under consideration for 
designation using the grid squares from the high-density areas analysis 
(from Baird et al. 2012). We calculated the number of times tagged 
animals passed through each grid square and used the standard deviation 
from these calculations to display travel areas from high to low across 
the range, similar to the high-density areas. We incorporated 
information relevant to travel within these areas into our 
considerations with regard to the benefits of designation, along with 
information that may supplement our knowledge of particular areas with 
regard to MHI IFKWs (see ESA Section 4(b)(2) Report for additional 
detail; NMFS 2018b).
    Looking at the maps of MHI IFKW high-density and travel 
information, FORACS includes areas that fall within low-use areas and 
moderate to low transit areas, and SESEF and Kingfisher generally fall 
within low-use areas and low transit areas. After taking into 
consideration DOD's use of the area (including the types of activities 
that occur here and the uniqueness of that activity), the likelihood of 
changes to the consultation, the level of protection already provided 
by management and the likelihood of non-DOD actions occurring in these 
areas, we confirm our initial finding that the benefits of excluding 
these areas for national security still outweigh the benefits of 
designation. While we recognize that travel to, from, and around 
habitat areas is important for these whales, we find that existing 
management protections provide adequate levels of protections for these 
sites and that Navy control and use of these areas is likely to deter 
other non-DOD actions that may otherwise require consultation in these 
particular areas. As such we have excluded these areas from the final 
designation.
    With regard to the six additional areas under consideration for 
exclusion, we reviewed each area consistent with the review of all 
other areas considered for national security exclusions for this rule. 
We agree with commenters that three of these areas (the area north and 
east of Oahu, the Kaiwi Channel, and the area south of Oahu) represent 
high-use or high to moderate travel areas for MHI IFKWs. However, the 
Kaulakahi Channel Portion of W-186, and the area north of Molokai fall 
within mostly low-use and low travel areas of the designation. 
Additionally, as noted in the Summary of Changes from the Proposed Rule 
section above, the Alenuihaha Channel request was reduced in geographic 
scope to only include those deeper areas of the Channel that support 
Undersea Warfare training, which only overlaps with low-use and low-
travel areas.
    For the Kaulakahi Channel Portion of W-186, the area north of 
Molokai, and the reduced Alenuihaha Channel area (NMFS 2018b), we found 
that the benefits of exclusion for national security outweigh the 
benefits of designating MHI IFKW critical habitat. We note that on June 
22, 2017, the Navy requested exclusion of these areas as a subset of 
the larger ``Entire Area'' and, in the case of the area north of 
Molokai, as a subset of the ``four islands region.'' NMFS initially 
proposed not to exclude these two larger units. Although the June 22, 
2017, request provided a full description of the defense activities in 
these areas (DON 2017a as referenced in NMFS 2017b), the Navy's 
supplemental submission in October 2017 helped improve our 
understanding of the geographic scope of the particular impacts to 
national security in the Kaulakahi Channel Portion of W-186 and the 
area north of Molokai (see Figure 2 of the proposed rule (82 FR 51186; 
November 03, 2017) and NMFS 2018b). Additionally, the Navy provided 
supplemental information regarding training activities in the 
Alenuihaha Channel, and clarified that its request for exclusion 
included only the deeper areas of the Channel that support Undersea 
Warfare training exercises. We also note that all three of these areas 
represent largely low-use and low-transit habitat and were identified 
as significant for Navy use and activities. Given our improved 
understanding of the defense activities conducted and the reduced size 
of the exclusions, we conclude that the benefits of exclusion outweigh 
the benefits of designating critical habitat, and that exclusions will 
not result in extinction of the species.
    With respect to the remaining three sites (the area north and east 
of Oahu, the Kaiwi Channel, and the area south of Oahu), we found that 
the benefits of designation outweighed the benefits of exclusion, 
largely because these areas represent high-use or high to moderate 
transit areas for MHI IFKWs and other non-DOD activities that may 
require consultation may occur in these areas.
    With regard to the comment on the Naval Defensive Sea Area and the 
Ewa Training Minefield, we refer to our response to Comment 12 
regarding our decision to find that the JBPHH INRMP provides a benefit 
to MHI IFKWs.
    Comment 17: We received comments from the MMC requesting that NMFS 
provide an opportunity for the public to comment on the inclusion or 
exclusion of any of the six areas that were still under consideration 
for national security exclusion for the Navy. Similarly, NRDC and CBD 
noted that the public should have the opportunity to comment on the 
exclusion of any of these areas, given the large size and overlap with 
significant proportion of the proposed critical habitat designation.
    Response: As explained above, we have exercised our discretion to 
exclude three of the six sites requested, the Kaulakahi Channel Portion 
of W-186, the area north of Molokai, and the reduced Alenuihaha Channel 
area (NMFS 2018b), because we find that the benefits of exclusion for 
national security outweigh the benefit of designating MHI IFKW critical 
habitat. As indicated above, on June 22, 2017, the Navy requested 
exclusion of these areas as a subset of a larger ``Entire Area''. The 
Navy also requested exclusion of the area north of Molokai as a subset 
of the larger ``four islands region''. In the proposed rule, we 
determined that these areas did not warrant exclusion as part of the 
larger units. While the Navy's June 22, 2017, request provided a full 
description of the defense activities conducted in these areas, the 
Navy's supplemental submission in October 2017 helped us reassess our 
initial decision in the context of a more spatially limited area. 
Additionally, the Navy clarified that it was only seeking exclusion of 
the deeper areas of the Alenuihaha Channel that support Undersea 
Warfare training exercises. Because in the proposed rule we identified 
both the national security importance of the areas as well as the 
Navy's supplemental request limiting the geographic scope of the 
requested exclusions, we are satisfied that the public was afforded a 
sufficient opportunity to comment on the proposed exclusions.
    Comment 18: We received several comments on the proposed exclusion 
related to the BOEM Call Area, found northwest and south of Oahu.
    The Navy submitted comments noting that, while the Navy supports 
the exclusion of areas suitable for renewable energy development, 
portions of the currently identified areas (BOEM Call Areas) are not 
suitable for renewable energy development, due to national security 
concerns. The Navy asserted that it is committed to bringing renewable 
energy to Oahu and has identified alternative locations which the Navy 
deems suitable. In support of identifying areas for renewable energy 
development, the Navy completed an assessment of areas (see https://greenfleet.dodlive.mil/rsc/department-of-the-navy-hawaii-offshore-wind-compatibility/) around Oahu, noting where commercial wind energy 
projects

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are not compatible with military activities and identifying only small 
sections of the two sites (i.e., two sections of the Call Area) that 
are compatible (DON 2016).
    Response: We understand that the Navy and BOEM continue to discuss 
areas that are suitable for military activities as well as offshore 
energy production and that, through these consultations, the most 
suitable sites will be selected for wind-energy development. However, 
in determining the economic costs of this designation, we rely on the 
best available information to identify where economic costs are likely 
to occur. The two sites noticed as the BOEM Call Area (81 FR 41335; 
June 24, 2016) remain significant in meeting Hawaii's renewable energy 
goals as these sites have been identified as areas where wind 
resources, water depth, and proximity to shore are favorable for wind-
energy development. Given that the boundaries of these two sites have 
not been revised and that the sites are noted as significant for energy 
development, we have weighed the benefit of excluding the BOEM Call 
Area based on the economic impacts that may result from this 
designation. After determining that economic benefits of exclusion 
outweigh the benefits of designation, we have excluded the BOEM Call 
Area from this critical habitat designation (see the Economic Impacts 
of Designation section).
    Comment 19: Several other comments (received from the MMC; NRDC and 
CBD (in a joint letter); and the Humane Society of the United States, 
the Humane Society Legislative Fund, and Whale and Dolphin Conservation 
(in a joint letter)) expressed disagreement with NMFS' weighing of the 
benefits of exclusion versus the benefits of designation for the BOEM 
Call Area and recommended that NMFS not exclude the sites from critical 
habitat. Among these, several comments noted that the benefits of 
exclusion do not appear to outweigh the benefits of designation, 
particularly because these areas represent rather large sections of 
habitat, which additional satellite tracking information suggests is 
important to MHI IFKWs for travel. Comments noted the scientific 
uncertainty about the effects of renewable energy and large-scale in-
water projects on MHI IFKWs and their habitat and noted that these 
factors should favor providing additional protections for the habitat 
of an endangered DPS with a restricted range.
    In recommending that NMFS not exclude this area, the MMC noted that 
NMFS should only consider exclusion in instances in which the exclusion 
would not result in the extinction of the DPS and noted that, due to 
the precarious status of IFKWs, the apparent importance of its entire 
range to its continued existence, and NMFS' inability to identify which 
factor or factors caused the population to decline in the past and may 
continue to threaten its persistence, the exclusion of any of the areas 
proposed as critical habitat from the final designation could 
contribute to the population's eventual extirpation.
    Response: As noted in our response above, we have excluded the BOEM 
Call Area (both of the sites northwest and south of Oahu) from this 
designation (see the Economic Impacts of Designation section) 
Generally, these areas include low-use and lower transit areas for MHI 
IFKWs, although small areas of overlap occur with moderate transit 
areas along the northeast tip and eastern edge of the south Oahu area. 
As noted in the ESA Section 4(b)(2) Report, NMFS is satisfied that 
there are sufficient pathways within critical habitat to allow for 
unimpeded transit for MHI IFKWs and that the small overlap in this area 
will not significantly impede MHI IFKW movement to other areas of 
critical habitat, due to the relatively small size of this overall 
exclusion (NMFS 2018b). Although large in-water construction projects 
are an activity of concern for this DPS, consultations required to 
ensure that activities are not likely to jeopardize the MHI IFKWs are 
expected to achieve substantially the same conservation benefits of 
designating this area as critical habitat for this DPS. Moreover, 
Federal activities in this area for wind energy development are not 
expected to result in destruction or adverse modification of MHI IFKW 
critical habitat.
    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, the existing baseline protections, and the low-use by MHI 
IKFWs, we find that the benefits of exclusion of this area outweigh the 
benefits of designation. Based on our best scientific judgment and 
acknowledging the relatively small size of the area (approximately 0.2 
percent of the overall designation), and other safeguards that are in 
place (e.g., protections already afforded MHI IFKWs under its ESA 
listing, or regulatory efforts that provide ancillary protections to 
water quality and prey characteristics, such as the Clean Water Act as 
amended by the Oil Pollution Act, or the Magnuson-Stevens Fishery 
Conservation and Management Act), we find that exclusion of this area 
will not result in the extinction of the species.
    Furthermore, we conclude that none of the exclusions will result in 
extirpation of the species. As previously noted, this population and 
its habitat benefit throughout its range from other protections under 
the ESA as well as other statutes and their regulations. In addition, 
the exclusions outlined in this rule are limited in scope and include 
habitat that is of lower conservation value for this population. Thus, 
this designation provides protections throughout the core portions of 
the MHI IFKWs' range and in areas of high conservation value.
    Comment 20: One comment expressed concerns that the BOEM Call Area 
identified for exclusion could be subject to changes after the public's 
ability to comment and noted that it was not clear if the public will 
have an opportunity to see and comment on any changes that could 
adversely affect protection of the area critical to the survival of 
this DPS.
    Response: As noted in our responses above, we are excluding the 
BOEM Call Area that was noticed in our proposed rule and, as a result, 
revisions have not been made to the boundaries. While we recognize that 
ongoing negotiations between the Navy and BOEM and additional public 
participation may result in future Call Area boundary changes, we base 
our decision on the best information currently available and do not 
speculate on revisions that may occur in the future. The basis for our 
excluding this area for economic impacts has not changed from the 
proposed rule (see the Economic Impacts of Designation section).
    Comment 21: One comment noted that designation of critical habitat 
in these areas will benefit BOEM, the State of Hawaii, and prospective 
offshore wind developers by raising awareness that the endangered MHI 
IFKW may be regularly transiting through the site and allowing these 
groups to appropriately evaluate the risks of any prospective 
development.
    Response: We agree with the commenter's assertion that the 
designation of critical habitat will raise awareness and provide public 
education benefits regarding habitat use of MHI IFKWs (Cardno 2018), 
and will allow prospective developers to evaluate the risks of 
developing in particular areas of this designation. However, as more 
fully described above, we also found that for the BOEM Call Area, the 
benefits of exclusion outweigh the benefits of designation and that 
exclusion of this mostly low-use area of habitat will not result in 
extinction of this DPS.

[[Page 35076]]

    Comment 22: We received comments that expressed concern as well as 
confusion about the areas being proposed for exclusion and the 
protections associated with critical habitat. One commenter expressed 
concern that a fractured critical habitat designation, due to 
exclusions, would not provide benefits to MHI IFKWs. Another commenter 
disagreed with the exemption of military agencies from this rule and 
noted that the military should be required to obtain permission to 
conduct projects within critical habitat. A third commenter noted that 
loud anthropogenic noise created from military activities are in 
violation of the Marine Mammal Protection Act because it can cause 
damage to the whales' echolocation system. This commenter suggested 
that NMFS take into consideration a study by Nachtigall and Supin 
(2013) on the effects of the louder sounds on false killer whale 
echolocation systems.
    Response: The 4(b)(2) exclusion process allows us to consider the 
benefits of designating critical habitat compared with the benefit of 
excluding particular areas due to economics, national security, or 
other relevant impacts, as long as the exclusion of that area will not 
result in extinction of the species. Although we have excluded certain 
areas from designation, ESA protections still apply to MHI IFKWs 
wherever the species is found (including the excluded areas) due to 
their listing, and all Federal agencies (including military agencies) 
that authorize, fund, or carry out activities in these areas will still 
be subject to section 7 consultation to ensure that their activities 
are not likely to jeopardize the continued existence of the species. It 
is through this consultation process that the effects of sound, as well 
as other effects of the action on individuals and the population are 
considered. Further, there are often other regulatory protections for 
marine habitat that will support to some degree the characteristics and 
feature of MHI IFKWs critical habitat (e.g., the Clean Water Act and 
the Magnuson-Stevens Fishery Conservation and Management Act). Based on 
these underlying protections and the designation of critical habitat, 
which still includes large contiguous portions of high and low-use 
habitat, we conclude that MHI IFKWs will benefit from this designation. 
See the Benefits of the Designation section and the Economic Report 
(Cardno 2018) for further detail regarding direct and ancillary 
benefits of designation.
    With regard to the comments about requiring permission and 
minimizing the impacts of sound, we also refer back to our response to 
Comment 1, which explains that military activities already undergo 
consultation to minimize the impacts of their activities and ensure 
they are not likely to jeopardize the species. Specifically, military 
readiness activities in the Hawaii Range Complex are subject to a 5-
year MMPA incidental take authorization for marine mammals, which is 
subject to ESA consultation. These review and consultation efforts 
under the ESA and MMPA help to identify management or mitigation that 
may be necessary to minimize adverse impacts to MHI IFKWs, and such 
analyses include reviews of the best scientific information available, 
including works such as Nachtigall and Supin (2013), to help identify 
mitigation measures. MHI IFKW critical habitat will establish an 
additional consideration to the existing ESA section 7 consultation 
process in designated areas.

Comments on the Biological Report

    Comment 23: We received comments referring to figures used in the 
Biological Report. One comment noted that the report illustrates the 
boundaries of the critical habitat but fails to indicate that areas 
would be excluded. This comment recommended that NMFS avoid public 
confusion about the actual designation by including maps that depicted 
the full designation, including all exclusions, in this report. A 
comment also requested that we re-examine more recent data when 
reviewing habitat use by this DPS. This comment noted that a figure 
from Baird et al. (2015) shows areas of higher habitat use that are not 
reflected in Figure 4 of the Biological Report.
    Response: The Biological Report is completed prior to analyses 
pursuant to 4(b)(2) and 4(a)(3) of the ESA, and provides information 
from the critical habitat review team about features and areas that 
meet the ESA definition of critical habitat as a first step in the 
determination process. Only after these areas are identified can we 
determine which areas warrant consideration under 4(a)(3) or 4(b)(2) of 
the ESA. That said, we understand the commenter's concerns regarding 
how maps in this report may mistakenly be taken for the final 
designation. To clarify this point, we have revised the captions to 
these maps (in the Biological Report) indicating that this is not the 
final designation and point the reader to the final rule. With regard 
to the request to use the most recent information, we note that our 
information has been updated to include satellite tracking information 
as of the beginning of January 2018, and we used this updated 
information to supplement other data upon which we based our exclusions 
under 4(b)(2) (NMFS 2018b). However, we also wish to clarify that the 
information used in Baird et al. (2015) relies on one standard 
deviation from the mean to identify biologically import areas, whereas 
we have relied on the methods used in Baird et al. (2012) using two 
standard deviations from the mean to indicate areas of high use.

Other Comments

    Comment 24: We received recommendations from DAR that NMFS hold 
public hearings on the Kauai, Maui, and Hawaii Islands, in addition to 
the one hearing that was held on Oahu. With IFKW high-use areas off 
Hawaii, Northern Molokai, and around the Maui-Nui complex, DAR noted 
that potential impacts of the proposed designation could be greater for 
those islands, and that these people should have the opportunity to be 
heard in the process.
    Response: The public comment period was open for 60 days and, and 
consistent with 50 CFR 424.16(c), NMFS gave notice of and held one 
public hearing on the proposed action on the island of Oahu. The 60-day 
comment period provided ample time and opportunity for the public to 
provide comments electronically or by mail. It should be noted that 
comments submitted electronically or by mail have the same weight as 
comments made in public hearings. We held the public hearing in 
Honolulu, not only because this location is centralized for a majority 
of the state's population, but also because our Economic Report 
indicated that a majority of the Federal action agencies, regulated 
entities, and individual applicants affected by this designation are 
located on Oahu. In contrast to DAR's statement of concern, we did not 
find that impacts were likely to be greatest along MHI IFKWs' high-use 
areas, because these areas do not coincide with areas of high-use for 
Federal activities, such as offshore development. Aside from this 
comment, we received no requests for public hearings in other areas of 
the State and found no additional information to suggest that impacts 
would be higher near MHI IFKWs' high-use areas.
    Comment 25: Comments from the Council stated that critical habitat 
designations for marine species provide little conservation benefit for 
the species unless habitat-related factors are known to be inhibiting 
recovery, and that NMFS did not identify anthropogenic

[[Page 35077]]

activities that are likely to negatively affect the habitat's essential 
features. Accordingly, the Council suggested that, similar to NMFS' 
finding for the exclusion of renewable energy areas, section 7 analysis 
associated with the listing of the MHI IFKW DPS should provide 
substantially the same conservation benefits for most Federal 
activities, including fisheries.
    Response: As noted in the Special Management Considerations or 
Protections section of this rule and the Biological Report, MHI IFKWs 
do face habitat-related threats (NMFS 2018a). As such, we identified 
anthropogenic activities that are likely to negatively affect the 
habitat's essential features. Further, as noted in our response to 
Comment 3 above, multiple threats often act as obstacles to recovery, 
requiring that a suite of measures be taken to ensure that imperiled 
species are able to increase in number and eventually thrive. Critical 
habitat designations provide important details about habitat 
characteristics and the conservation value of habitat, which, in turn, 
serve as valuable planning tools for ensuring that Federal planning and 
development do not limit recovery for the species. While we found that 
the section 7 analysis associated with listing would provide 
substantially the same conservation benefits within the BOEM Call Area, 
we caution that this finding was site-specific and activity-specific 
and may not be true across all areas of the designation or from 
activity to activity.

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 critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations at 50 CFR part 424, this final 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 agency 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 recommendations are described in 
detail in the Biological Report (NMFS 2018a). Beyond the description of 
the areas, the critical habitat designation process includes two 
additional steps (although these are not conducted by the CHRT): (1) 
Identify whether any area may be precluded from designation because the 
area is subject to an INRMP that we have determined provides a benefit 
to the DPS, and (2) 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 
considerations are described further in the Final ESA Section 4(b)(2) 
Report (NMFS 2018b), and economic impacts of this designation are 
described in detail in the Final Economic Report (Cardno 2018).

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. Features may constitute 
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 and in response 
to public comments, the CHRT identified the specific biological and 
physical feature essential for the conservation of the Hawaiian IFKW 
DPS, as the following: Island-associated marine habitat for MHI insular 
false killer whales.
    MHI IFKWs are island-associated whales that rely entirely on the 
productive submerged habitat of the main Hawaiian Islands to support 
all of their life-history stages. The following characteristics of this 
habitat support insular false killer whales' ability to travel, forage, 
communicate, and move freely around and among between the main Hawaiian 
Islands:
    (1) Adequate space for movement and use within shelf and slope 
habitat--As large marine predators, MHI IFKWs are highly mobile, 
employing a foraging strategy that includes circumnavigating the 
islands and moving throughout their range. Generally found in deeper 
waters just offshore of the MHI, these whales move primarily throughout 
and among the shelf and slope habitat on both the windward and leeward 
sides of all the islands. This generally includes depths ranging from 
45 m to 3,200 m. Available data indicates that habitat use is not 
uniform in waters that surround the islands, and may be concentrated in 
certain areas (often described as high-use or high-density areas) that 
are likely to provide greater foraging success than other areas, and 
that high-use areas may be specific to certain social clusters.
    Human activities can interfere with movement of the whales and 
adversely affect their ability to travel to and move throughout areas 
of high-use. In particular, large marine structures or long-term 
acoustic disturbance may present obstacles to whale movement. These 
obstacles could cause the whales to swim further to reach high-use 
areas, expending additional energy and displacing these whales into 
waters farther from shore. In severe cases, such obstacles may cause 
the whales to abandon areas of concentrated use.
    (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 and squid. Prey preference and relative importance is still 
difficult to determine for this population; however, commonly described 
prey species from observations include large game fish such as mahi 
mahi, wahoo, yellowfin tuna, albacore tuna, skipjack tuna, broadbill 
swordfish and threadfin jack. In addition, analyses from recent 
strandings of insular false killer whales suggest that some species of 
squid may play a role in the IFKW diet.
    Sustained decreases in prey quantity and availability in island-
associated waters can decrease foraging success of these whales and 
eventually lead to reduced individual growth, reproduction, and 
development. Additionally, factors that reduce prey size and introduce 
or increase contaminant or toxin levels reduce the quality of prey for 
these whales. Decreased prey size reduces the energetic value gained, 
while

[[Page 35078]]

contaminants and toxins introduced through prey consumption may put 
these whales' individual health or reproduction at risk.
    (3) Waters free of pollutants of a type and amount harmful to MHI 
insular false killer whales.
    Pollutants that reach Hawaii's marine waters through point source 
and nonpoint source pollution have the potential to degrade the water 
quality or prey quality and increase the health risks to MHI IFKWs. As 
a long-lived, top marine predator, water quality plays an important 
role in supporting the MHI IFKWs' ability to forage and reproduce free 
from disease and impairment. Environmental contaminants, such as 
organochlorines, heavy metals, and other chemicals that persist and 
accrue in waters surrounding the MHI, accumulate in prey species and 
subsequently in MHI IFKWs. 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. MHI insular false killer whales' may be exposed to these 
infectious or harmful agents (such as bacteria, viruses, toxins, or 
parasites) either through their prey or directly through ingestion of 
contaminated waters. Exposure to water pollutants are known to 
adversely affect the health and reproduction of cetaceans, including 
false killer whales.
    (4) Sound levels that would not significantly impair false killer 
whales' use or occupancy.
    For the purposes of this final rule, noises that would 
significantly impair use or occupancy are those that inhibit MHI IFKW's 
ability to receive and interpret sound for the purposes of navigation, 
communication, and detection of predators and prey. Such noises are 
likely to be long-lasting, continuous, and/or persistent in the marine 
environment and, either alone or added to other ambient noises, 
significantly raise local sound levels over a significant portion of an 
area.
    False killer whales rely on their ability to produce and receive 
sound within their environment to navigate, communicate, and detect 
predators and prey. With a foraging strategy that is adapted to the 
shelf and slope habitat of the MHI, these large marine predators travel 
in subgroups that are dispersed from each other but converge when prey 
resources are found. Accordingly, these animals rely on their ability 
to receive and interpret acoustic cues to find prey at a distance and 
convey information about available prey resources to other dispersed 
subgroups of IFKWs. Habitats that contribute to the conservation of MHI 
IFKWs allow these whales to employ underwater sound in ways that 
support important life history functions, such as foraging and 
communicating.
    A large body of scientific information on the effects of 
anthropogenic noise on the behavior and distribution of toothed whales, 
including false killer whales, demonstrates that the presence of 
anthropogenic noise can adversely affect the value of marine habitat to 
MHI IFKWs (Shannon et al. 2015, Erbe et al. 2016, Gedamke et al. 2016, 
Hatch et al. 2016). Of particular concern are those noises that are 
chronic or persistent and cause cumulative interference such that the 
animals' ability to receive benefits (e.g., opportunities to forage or 
reproduce) from these habitats is sufficiently inhibited.
    How human activities that introduce noise in the environment might 
change the animals' use of habitat and the determination of the 
biological significance of that change can be complex and involve 
consideration of site specific variables, including: The 
characteristics of the introduced sound (frequency content, duration, 
and intensity); the physical characteristics of the habitat; the 
baseline soundscape; and the animal's use of that habitat. NMFS will 
continue to use the best scientific information available to analyze 
chronic or persistent noise sources and determine whether they degrade 
listening conditions within habitat for the IFKW, including but not 
limited to, the Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing, (81 FR 51693; August 04, 
2016; NMFS 2016b, or replacement publications).

Geographical Area Occupied by the Species

    The first steps in the critical habitat revision process is to 
define the geographical area occupied by the species at the time of 
listing, and to identify specific areas within this geographical 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 the range 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. This is because this range includes all locations 
that tagged animals have visited in Hawaii's surrounding waters and 
accommodates for uncertainty in the data. Therefore, the area occupied 
by the DPS is the current range as 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).

Areas Under Consideration for Critical Habitat

    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 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 feature for 
the MHI IFKW DPS. This area ranges from the 45-m depth contour to the 
3,200-m depth contour in waters that surround the MHIs from Niihau east 
to the Island of Hawaii (see the Biological Report for additional 
detail; NMFS 2018a). MHI IFKWs are generally found in deeper areas just 
offshore (Baird et al., 2010). For the proposed rule, MHI IFKW tracking 
locations were used to identify a nearshore depth at which habitat use 
by MHI IFKWs is fairly consistent. Specifically, MHI IFKW locations 
were found to be infrequent at depths less than 45 m (less than 2 
percent of locations are captured at these depths), and a spatial 
pattern was not evident in shallower depth locations (i.e., locations 
were not clumped in specific areas around the MHI). Because the 
frequency of MHI IFKW locations increased at depths greater than 45 m 
and appeared 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

[[Page 35079]]

would include the proposed essential features for MHI IFKWs. An outer 
boundary of the 3,200-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.
    In response to some public comments that suggested we choose 
different boundaries for this designation (see Comment 9 and response), 
we re-analyzed the data used to select the boundaries for this 
designation, and also analyzed new satellite information received from 
Cascadia Research Collective.
    Review of this information revealed that 2.5-3.8 percent of 
satellite-tag location data were shallower than 45 m across the islands 
(the higher percentage includes points located on land, which likely 
fall into shallow locations due to the error associated with these 
points). When shallow points were mapped across the islands (using 
GIS), clear spatial patterns were not evident across all islands; for 
some islands shallower use was seen around a good portion of the island 
(e.g., Oahu), while for other islands use seemed to vary along 
different portions of the coastline. In addition to considering depth 
around each island, we reviewed distance from shore and found disparate 
patterns ranging from 500 m offshore to over 1,200 m offshore. Looking 
across the islands as a whole, 45 m remained a depth at which frequency 
of satellite-tag location data increased and remained more consistent.
    Throughout this review we considered whether prescribing a 
different depth or distance from shore for each island would provide 
more clarity about MHI IFKW habitat use or for management of their 
habitat around each island; however, it was not clear that prescribing 
island-specific boundaries would better match how these animals use 
Hawaiian waters. Given the population's non-uniform treatment of 
habitat around each island, splitting these points by island may not 
partition the habitat in manner that is ecologically meaningful.
    As noted above, these whales move great distances throughout the 
MHI, moving back and forth between areas off multiple islands. NMFS 
found that the 3,200 m depth boundary best aligns with the span of 
habitat used on the leeward and windward sides of the islands, allowed 
for ample space for these whales to move among areas of concentrated or 
high-use, and included habitat across the core portions of the range.
    At this time we find that the current delineation of 45-3,200 m 
allows for travel around and among the islands and incorporates our 
objectives of selecting an inner boundary and outer boundary where MHI 
IFKWs are most likely to be found. The full range of depths--from the 
45-m to the 3,200-m depth contours--incorporates approximately 90 
percent of the tracking locations of MHI IFKW and includes the feature 
and characteristics essential to the conservation of the MHI IFKWS DPS. 
The area that was under consideration for critical habitat included 
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 feature essential to conservation such that special 
management considerations or protection may be required. This is 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 (NMFS 2016a, Oleson et al., 
2010, NMFS 2016c). 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 readiness activities. All of these activities may have an 
effect on one or more characteristics of the essential feature 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 Biological Report (NMFS 2018a) and Economic Analysis 
Report (Cardno 2018) 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 
readiness activities may have impacts on one or more characteristics of 
the essential feature.

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 the following:
    (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.
    NMFS can find that an INRMP provides a benefit to a species where, 
as here, the species is not directly addressed in the INRMP. In these 
cases, we consider adaptive conservation management for the features 
essential to the conservation of the species (i.e., its habitat 
features) or the species itself either directly or indirectly. We also 
consider whether adaptive conservation management measures are 
effective and reasonably certain to be implemented.

[[Page 35080]]

    The JBPHH INRMP overlaps with the areas under consideration for 
critical habitat in two areas, the Naval Defensive Sea Area and the Ewa 
Training Minefield, which include approximately 27 km\2\ (~10 mi\2\) of 
area or approximately 0.5 percent of the areas under consideration for 
critical habitat. Based on our review of relevant data, including 
supplemental satellite-tracking information from Cascadia Research 
Collective (3 new animals), we consider these areas to be low-use (low-
density) areas for MHI IFKWs, and note that they travel through these 
areas at moderate levels (see Figure 4 of the ESA Section 4(b)(2) 
Report). We therefore consider these areas to be of low to moderate 
conservation value to MHI IFKWs in comparison to other areas meeting 
the definition of MHI IFKW critical habitat.
    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 potential critical habitat areas and available INRMPs for those 
facilities. The U.S. Navy stated that areas subject to the JBPHH INRMP 
overlap with the areas under consideration for MHI IFKW critical 
habitat; no other INRMPs were identified as overlapping with the 
potential designation. This INRMP was drafted prior to the ESA listing 
of the MHI IFKW and did not incorporate conservation measures that are 
specific to MHI IFKWs. The plan was compliant through the end of 2017; 
and although its five-year review as to operation and effect is late, 
the INRMP remains funded and effective. The Navy continues to implement 
and report on conservation measures outlined in the JBPHH INRMP and is 
currently reviewing and updating the INRMP with a goal of finishing in 
December 2018.
    In the response to NMFS' request for information about this INRMP, 
the Navy outlined several elements of the 2011 INRMP's implemented and 
ongoing conservation measures that may benefit the MHI IFKW and their 
habitat (with the characteristic of the essential element that is 
addressed): Fishing restrictions adjacent to and within areas that 
overlap the potential designation (prey), creel surveys that provide 
information about fisheries in unrestricted areas of Pearl Harbor 
(prey), restrictions on free roaming cats and dogs in residential areas 
(water free of pollutants), feral animal removal (water free of 
pollutants), 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; waters free of pollutants), 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; waters free of 
pollutants), a Stormwater Management Plan and a Stormwater Pollution 
Control Plan associated with their National Pollutant Discharge 
Elimination System (waters free of pollutants), and coastal wetland 
habitat restoration projects (waters free of pollutants) (DON 2017a). 
Although the 2011 JBPHH INRMP does not specifically address the MHI 
IFKW, several of the above measures support the protection of the IFKW 
and the physical and biological feature identified for this 
designation. Specifically, the Navy's efforts that 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 characteristic; 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. 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.
    As part of an adaptive management approach for this INRMP, NMFS 
staff participates in JBPHH INRMP annual reviews to provide 
recommendations about plan implementation and effectiveness and to 
receive information about upcoming plan amendments. These reviews help 
ensure that the plan provides an effective mechanism for addressing MHI 
IFKW conservation within areas managed under the JBPHH INRMP. 
Specifically, the reviews provide a reliable method for feedback, 
regular assurances that the above-described conservation measures are 
being implemented, and a procedure for assessing and modifying measures 
to ensure conservation effectiveness.
    Although not essential to our determination that the JBPHH INRMP 
provides a benefit to the MHI IFKW, we also take into consideration 
additional future measures that the Navy plans to include in updates to 
the INRMP by December 2018. These expected additional measures include 
(1) specific information about MHI IFKWs, (2) where MHI IFKWs may be 
found in areas managed by the installation, (3) new projects associated 
with watershed enhancement, and (4) mandatory mitigation measures 
already used by the Pacific Fleet to minimize impacts to MHI IFKWs as 
they use these areas. Procedural mitigation measures are mandatory 
activity-specific measures taken to avoid or reduce the potential 
impacts on biological resources from stressors, including those that 
may cause acoustic or physical disturbance to marine mammals during 
Navy training and testing. These procedural measures are required in 
the Navy's Protective Measures Assessment Protocol consistent with 
letters of authorization for training activities issued under the MMPA 
and supporting ESA analyses. Procedural mitigation measures are 
adaptively managed as new information becomes available about effective 
mitigation techniques, and are identified in the current Hawaii-
Southern California Training and Testing Final Environmental Impact 
Statement. Examples of measures include training personnel to spot and 
identify marine mammals (lookouts), reporting requirements for trained 
lookouts, and halt or maneuvering requirements when marine mammals are 
spotted within identified mitigation zones of Navy activities (DON 
2017c). Although not restricted to the JBPHH areas, these mandatory 
mitigation measures help ensure that the Navy will avoid or reduce the 
impacts from acoustic stressors on MHI IKFWs. These measures will be 
reflected in the INRMP by December 2018. Additionally, the Navy's 
continued efforts towards understanding the baseline conditions of 
Pearl Harbor (and associated watersheds) and improving water quality in 
this area will also support the prey and water free of pollutants 
characteristics of MHI IFKW habitat.
    After consideration of the above factors, we determined that the 
Navy's

[[Page 35081]]

JBPHH INRMP provides a benefit to the MHI IFKW and its habitat. In 
accordance with 4(a)(3)(B)(i) of the ESA, areas managed under this 
INRMP are not eligible for the designation of MHI IFKW critical 
habitat. Therefore, the Ewa Training Minefield and the Naval Defense 
Sea Area, both found south of Oahu, are not eligible for designation.

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 designation, the Secretary has 
applied statutory discretion to exclude 14 (1 area, with two sites, for 
economic exclusion and 13 areas for national security exclusion) 
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 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 with respect to consideration of national security 
impacts 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. 
For each particular area we identified the impacts of designation 
(i.e., the economic costs of designation or impacts to national 
security). 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. Where the benefits of exclusion 
outweigh the benefits of designation, the area is excluded from 
critical habitat as long as we determine that such exclusion would not 
result in extinction of the DPS. These steps and the resulting list of 
areas excluded 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 
subsequent requirement to avoid jeopardy. 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 IFKW 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 
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 of the species and consultation under the 
jeopardy clause. 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. 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 
how the impacts of designation 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 ESA 
Section 4(b)(2) Report (NMFS 2018b)).

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

[[Page 35082]]

not likely to jeopardize the continued existence of the species. 
Another benefit of critical habitat designation is that it provides 
specific notice of the feature essential to the conservation of the MHI 
IFKW DPS and where that feature occurs. 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 that essential feature. Accordingly, 
identification of that feature may improve discussions with action 
agencies regarding relevant habitat considerations of proposed 
projects.
    In addition to the protections described above, Chapter 12 of the 
Final Economic Report (Cardno 2018) 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 
2018). 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 2018). More information about these types of values may be 
found in Chapter 12 of the Final Economic Report (Cardno 2018).
    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; 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 feature 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 the essential feature 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 
as well as an analysis of travel throughout the areas to provide 
information about MHI IFKW habitat use (Figure 4 of the Final ESA 
Section 4(b)(2) Report; NMFS 2018b). The descriptions of MHI IFKW 
habitat use provided in the sections below describe habitat in terms of 
high and low-use areas using the density analysis described in Baird et 
al. (2012) and describe how these areas may be used for travel or 
transit. Cascadia Research Collective supplied satellite-tracking 
information to support NMFS' determination of this critical habitat 
designation for the proposed and final rule. For the proposed rule, 
density analysis of data received included information from 27 tagged 
individuals (18 from Cluster 1, 1 from Cluster 2, 7 from Cluster 3, and 
1 from Cluster 4) (R. Baird, Cascadia Research Collective, pers. comm., 
June 2017). For the final rule, data from a total of 30 tagged 
individuals (2 additional animals from cluster 1 and 1 additional 
animal from cluster 4) was used to inform the analyses (R. Baird, 
Cascadia Research Collective, pers. Comm, January 2018).
    High-use areas denote areas where satellite-tracking information 
indicates more frequent use by MHI IFKWs. High to moderate travel areas 
provide further understanding about how these whales travel through 
specific areas. The conservation value for high-use and high-traveled 
areas is inferred to be higher than low-use and low-traveled areas of 
the range; however, all areas contain the essential feature and meet 
the definition of critical habitat for this DPS. As noted in the 
Biological Report (NMFS 2018a), there is limited representation among 
social clusters in the tracking data and information. Accordingly, the 
available satellite-tracking information may not be fully 
representative of MHI IFKW habitat use. While describing MHI IFKW use 
for the exclusion of some particular areas, we provide additional 
information (e.g., observation data from boat surveys) that 
supplemented our understanding of MHI IFKW habitat use patterns. In 
these instances, we describe how this information may enhance our 
understanding of the conservation value of the area.
    Generally, we describe high-use areas as indicating areas of higher 
conservation value where greater foraging and/or reproductive 
opportunities are believed to exist. Additionally, high to moderate 
travel areas indicate areas of concentrated travel. However, 
particularly within a restricted range, low-use and low-traveled areas 
continue to offer the essential feature 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 Economic Report (Cardno 2018) 
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. 
To the extent 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 2018). 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 Final Economic Report (Cardno 2018) 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 
Special Management Considerations or Protections section (above). 
Projections were calculated for the next 10-year period. The analysis 
relied largely upon NMFS' records of section 7 consultations to 
estimate the average number of projects that are likely to occur within 
the particular areas (i.e.,

[[Page 35083]]

projections were based on past numbers of consultations) and determine 
the level of consultation (formal, informal) that would be necessary 
based on the described activity. Where appropriate, the analysis also 
included projections for actions that are likely to occur within the 
particular areas that were identified by action agencies (Cardno 2018).
    The Final Economic Report (Cardno 2018) 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. Applying discounted 
rates recommended in the Office of Management and Budget Circular A-4, 
the Final Economic Report estimates these incremental impacts of 
designation to be between 170,000 to 185,000 using a 3 percent discount 
rate and 143,000 to 156,000 using a 7 percent discount rate (Cardno 
2018). These impacts include only incremental administrative efforts to 
consider critical habitat in section 7 consultations for the section 7 
activities identified under the Need for Special Management 
Considerations or Protections section of this rule. However, private 
energy developers may also bear some of the administrative costs of 
consultation for large energy projects; the Final Economic Report 
estimates these costs are between 0 and 300 dollars annually 
undiscounted and are expected to involve three consultation projects 
over the next 10 years (Cardno 2018). 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 Final Biological Report and the Final Economic Report 
recognize that some of the future impacts of the designation are 
difficult to predict (NMFS 2018a, Cardno 2018). Although considered 
unlikely, NMFS cannot rule out future modifications for federally 
managed fisheries and activities that contribute to water quality (NMFS 
2018a). For federally managed fisheries, modifications were not 
predicted as a result of the critical habitat designation 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 Final 
Economic Report discusses this qualitatively, but does not provide 
quantified costs associated with any uncertain future modifications 
(Cardno 2018).
    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., authorized, funded, 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 the continued existence of 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.
    BOEM provided comments on our proposed rule indicating their 
appreciation for the BOEM Call Area exclusion. In addition, the Navy 
submitted comments on the proposed rule noting that, while they support 
the exclusion of areas suitable for renewable energy development, 
portions of the currently identified BOEM Call Areas are not suitable 
for renewable energy development due to national security concerns. In 
support of identifying areas for renewable energy development, the Navy 
completed an assessment of areas (see https://greenfleet.dodlive.mil/rsc/department-of-the-navy-hawaii-offshore-wind-compatibility/) around 
Oahu, noting wind farm areas that are not compatible with military 
activities and identifying only small sections of the two sites that 
are compatible (DON 2016). However, the Call Area boundaries have not 
been revised as a result of the Navy's assessment.
    In determining the economic costs of this designation, we rely on 
the best available information to identify where economic costs are 
likely to occur. The two sites noticed as the BOEM Call Area remain 
significant in meeting Hawaii's renewable energy goals as these sites 
have been identified as areas where wind resources, water depth, and 
proximity to shore are favorable for wind-energy development (81 FR 
41335; June 24, 2016). Given that the boundaries of these two sites 
have not been revised and that the sites are noted as significant for 
energy development, our exclusion analysis is based on the areas of the 
current BOEM Call Area (as published in 81 FR 41335; June 24, 2016).
    The estimated economic impacts in the BOEM Call Area are expected 
to occur as a result of three potential commercial wind-energy projects 
offshore of the island of Oahu (to be located off Kaena point and off 
the south shore) (81 FR 41335; June 24, 2016).
    The BOEM Call Area sites identified for exclusion overlapped with 
approximately 1,961 km\2\ (757 mi\2\), or approximately 3.5 percent of 
the areas that were under consideration for designation. Density 
analysis of satellite-tracking information indicates that these sites 
are not high-use areas for MHI IFKWs; rather they include low-use and 
mostly lower traveled area for MHI IFKWs, with some small overlap into 
a moderately traveled area. 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 or other protected species (Cardno 2018).
    Although economic costs of this designation in the BOEM Call Area 
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 to foster energy 
security. In particular, both Hawaii's State Energy Office and BOEM 
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

[[Page 35084]]

significant (Cardno 2018). Because Oahu has the greatest energy needs 
among the MHI and has limited areas available for this type of 
development, and receiving energy via interconnection among 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 2018).
    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, the small size of these areas, 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. 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 
similar 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 the habitat feature. Additionally, wind energy projects in these 
areas are not expected to result in destruction or adverse modification 
of critical habitat. Based on our best scientific judgment, and 
acknowledging the small size of this area (approximately 0.2 percent of 
the overall designation) and that 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.

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. In preparation for the proposed rule, 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 (NMFS 2017b). Although we 
considered the request for exclusion of all areas proposed for critical 
habitat, 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 PMRF 
(NMFS 2017b). As the PMRF offshore ranges were also highlighted as 
important to Navy activities, we included the information provided by 
the Air Force regarding their 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 considered a total of 13 sites for exclusion, and we proposed 8 
of those sites for exclusion in the proposed rule. Additionally, we 
notified the public in the proposed rule that we would be considering 
six additional requests submitted by the Navy (82 FR 51186; November 
03, 2017), which were subsets of a larger area that the Navy initially 
requested for exclusion, but which NMFS determined should not be 
excluded under 4(b)(2). In addition to these six areas, the Navy 
requested the exclusion of two additional areas--north and south of 
Maui as well as the Hawaii Area Tracking System and the Kahoolawe 
Training Minefield (see the ESA Section 4(b)(2) Report, NMFS 2018b); 
these four areas were also subsets of the Four Island Region request 
for exclusion that was not proposed for exclusion at the proposed rule 
stage.
    For the final designation, we reanalyzed the 13 areas already 
considered for exclusion using the updated satellite tracking 
information from the Cascadia Research Collective. Additionally, we 
separately reviewed each of the 10 areas requested by the Navy that 
were subsets of the larger areas requested for exclusion, consistent 
with the review criteria for the 13 previous areas considered for 
national security exclusion.
    Our determinations for these 23 requests 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, 
testing, training, and other essential military readiness activities. 
The possible impacts to national security summarized by both groups 
included potential restrictions or 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's activities would 
continue under current regulatory regimes and the DOD would not be 
required to consult with NMFS under section 7 of the ESA regarding its 
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: MHI IFKW use of the 
habitat (high vs. low use or travel by MHI IFKWs and/or observational 
data), 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 are not directly comparable to the benefits of 
exclusion for purposes of conducting the section 4(b)(2) analysis 
because neither have been fully quantified. The ESA Section 4(b)(2) 
Report (NMFS 2018b) provides our qualitative comparison of the national 
security impacts to the conservation benefits in order to determine 
which is greater. If we found

[[Page 35085]]

that national security impacts outweigh conservation benefits, we 
excluded the site from the critical habitat designation. If 
conservation benefits outweigh national security impacts, we did not 
exclude the site from the critical habitat designation. The decision to 
exclude any sites from a designation of critical habitat is always at 
the discretion of NMFS. Table 1 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 warranted      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 modifications
                                                                                      to consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting the habitat.
(2) PMRF Offshore Areas, Navy and     843 km\2\ (~325 mi\2\),  Yes.................  This area overlaps a
 Air Force.                            1.5.                                           relatively small area of
                                                                                      low-use and lower traveled
                                                                                      areas of MHI IFKW habitat
                                                                                      where DOD maintains
                                                                                      control of the area. This
                                                                                      area is unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training and testing. The
                                                                                      impacts from delays and
                                                                                      possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(3) Waters Enroute to PMRF from the   1,077 km\2\ (~416        No..................  This area overlaps a
 Port Allen Harbor, Air Force.         mi\2\), 2.                                     relatively small area of
                                                                                      low-use and lower traveled
                                                                                      MHI IFKW habitat that is
                                                                                      not owned or controlled by
                                                                                      DOD and where non-DOD
                                                                                      activities may occur.
                                                                                      Impacts from 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. Note:
                                                                                      a portion of this area is
                                                                                      now excluded from critical
                                                                                      habitat because it
                                                                                      overlaps with the
                                                                                      Kaulakahi Channel portion
                                                                                      of Warning area 186.
(4) Kingfisher Range, Navy..........  14 km\2\ (~6 mi\2\),     Yes.................  This area overlaps a small
                                       .02.                                           area of low-use and lower
                                                                                      traveled MHI IFKW habitat
                                                                                      where DOD maintains
                                                                                      control of the area. 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 and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(5) Warning Area 188, Navy..........  2,674 km\2\ (~1,032      Yes.................  This area overlaps a medium
                                       mi\2\), 5.                                     area of low-use and lower
                                                                                      traveled MHI IFKW habitat.
                                                                                      DOD maintains control over
                                                                                      a portion of the habitat,
                                                                                      but does not control
                                                                                      deeper waters. Impacts
                                                                                      from delays and possible
                                                                                      major modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      less likely.
(6) Kaula and Warning Area W-187,     266 km\2\ (~103 mi\2\),  Yes.................  This area overlaps a small
 Navy.                                 0.5.                                           area of low-use and very
                                                                                      low traveled MHI IFKW
                                                                                      habitat where DOD
                                                                                      maintains control of the
                                                                                      area. This area is unique
                                                                                      for DOD and provides
                                                                                      specific opportunities for
                                                                                      DOD training. Impacts from
                                                                                      short delays by informal
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and very low traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(7) W-189, HELO Quickdraw Box and     2,886 km\2\ (~1,114      No..................  This area overlaps a medium
 Oahu Danger Zone, Navy.               mi\2\), 5.                                     area of low-use and
                                                                                      moderate to low traveled
                                                                                      MHI IFKW habitat and a
                                                                                      small high-use area for
                                                                                      MHI IFKWs. The DOD does
                                                                                      not maintain control over
                                                                                      these waters and non-DOD
                                                                                      activities are expected in
                                                                                      portions of this area.
                                                                                      Impacts from delays and
                                                                                      possible modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting both high and
                                                                                      low-use and moderate to
                                                                                      low traveled MHI IFKW
                                                                                      habitat from future DOD
                                                                                      and non-DOD Federal
                                                                                      actions.
(8) Fleet Operational Readiness       74 km\2\ (~29 mi\2\),    Yes.................  This area overlaps a small
 Accuracy Check Site Range (FORACS),   0.1.                                           area of low-use and
 Navy.                                                                                moderate to low traveled
                                                                                      MHI IFKW habitat where DOD
                                                                                      maintains control of the
                                                                                      area. 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 and moderate to low
                                                                                      traveled habitat where
                                                                                      future non-DOD Federal
                                                                                      actions are unlikely.

[[Page 35086]]

 
(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 and lower
 Navy.                                                                                traveled MHI IFKW habitat
                                                                                      where DOD maintains
                                                                                      control of the area. 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 and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(10) W-196 and 191, Navy............  728 km\2\ (~281 mi\2\),  Yes.................  This area overlaps a
                                       1.                                             relatively small area of
                                                                                      low-use and lower traveled
                                                                                      MHI IFKW habitat that is
                                                                                      not controlled by DOD but
                                                                                      where non-DOD Federal
                                                                                      actions are unlikely.
                                                                                      Impacts from short delays
                                                                                      and possible modifications
                                                                                      to consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(11) W 193 and 194, Navy............  458 km\2\ (~177 mi\2\),  Yes.................  This area overlaps a
                                       1.                                             relatively small area of
                                                                                      low-use and lower traveled
                                                                                      MHI IFKW habitat that is
                                                                                      not controlled by DOD but
                                                                                      where non-DOD Federal
                                                                                      actions are unlikely.
                                                                                      Impacts from short delays
                                                                                      and possible modifications
                                                                                      to consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(12) Four Islands Region (Maui,       15,389 km\2\ (~5,940     No..................  This area includes a
 Lanai, Molokai Kahoolawe), Navy.      mi\2\), 27.                                    relatively large area of
                                                                                      both high and low-use and
                                                                                      high and lower traveled
                                                                                      MHI IKFW habitat that is
                                                                                      not 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 and high
                                                                                      and lower traveled MHI
                                                                                      IFKW habitat, from future
                                                                                      DOD and non-DOD Federal
                                                                                      actions.
(13) Hawaii Island, Navy............  16,931 km\2\ (~6,535     No..................  This area includes a
                                       mi\2\); 30.                                    relatively large area of
                                                                                      both high and low-use and
                                                                                      high and lower traveled
                                                                                      MHI IKFW habitat that is
                                                                                      not 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 and high
                                                                                      and lower traveled MHI
                                                                                      IFKW habitat, from future
                                                                                      DOD and non-DOD Federal
                                                                                      actions.
(14) Kaulakahi Channel Portion of W-  1,631 km\2\ (~630        Yes.................  This area overlaps a small
 186, Navy.                            mi\2\), 3.                                     to medium area of low-use
                                                                                      and lower traveled MHI
                                                                                      IFKW habitat that is not
                                                                                      controlled by DOD. This
                                                                                      area is unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training and testing. The
                                                                                      impacts from delays and
                                                                                      possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting low-
                                                                                      use and lower traveled
                                                                                      habitat where future non-
                                                                                      DOD Federal actions are
                                                                                      unlikely.
(15) Area North and East of Oahu,     2,472 km\2\ (~954        No..................  This area overlaps a medium
 Navy.                                 mi\2\), 4.                                     area of both high-use and
                                                                                      low-use and high to low
                                                                                      traveled MHI IFKW habitat.
                                                                                      The DOD does not maintain
                                                                                      control over these waters
                                                                                      and non-DOD activities are
                                                                                      expected in portions of
                                                                                      this area. Impacts from
                                                                                      delays and possible
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting both high and
                                                                                      low-use and high and low
                                                                                      traveled MHI IFKW habitat,
                                                                                      from future DOD and non-
                                                                                      DOD Federal actions.
(16) Area to the South of Oahu, Navy  1,803 km\2\ (~696        No..................  This area overlaps a medium
                                       mi\2\), 3.                                     area of low-use and
                                                                                      moderate to low traveled
                                                                                      MHI IFKW habitat. The DOD
                                                                                      does not maintain control
                                                                                      over these waters and non-
                                                                                      DOD activities are
                                                                                      expected in portions of
                                                                                      this area. Impacts from
                                                                                      delays and possible
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting both low-use
                                                                                      and moderate to low
                                                                                      traveled MHI IFKW habitat,
                                                                                      from future DOD and non-
                                                                                      DOD Federal actions.
(17) Kaiwi Channel, Navy............  2,355 km\2\ (~909        No..................  This area includes a medium
                                       mi\2\), 4.                                     area with mostly high-use
                                                                                      and high to low traveled
                                                                                      MHI IKFW habitat that is
                                                                                      not 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 and high
                                                                                      to low traveled MHI IFKW
                                                                                      habitat, from future DOD
                                                                                      and non-DOD Federal
                                                                                      actions.

[[Page 35087]]

 
(18) Area North and Offshore of       596 km\2\ (~230 mi\2\),  Yes.................  This area overlaps a
 Molokai; Navy.                        1.                                             relatively small area of
                                                                                      potential critical habitat
                                                                                      and includes mostly low-
                                                                                      use and low-travel area
                                                                                      for MHI IKFWs. This area
                                                                                      also includes very small
                                                                                      portions of high-use and
                                                                                      moderate to low travelled
                                                                                      MHI IFKW habitat on the
                                                                                      southern boundary of the
                                                                                      area. The DOD does not
                                                                                      maintain control over
                                                                                      these waters and non-DOD
                                                                                      activities may occur in
                                                                                      these areas. The impacts
                                                                                      from delays and possible
                                                                                      major modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting
                                                                                      mostly low-use and lower
                                                                                      traveled habitat at the
                                                                                      edge of the designation.
(19) Alenuihaha Channel, Navy.......  2,609 km\2\ (~1,007      Yes.................  This area overlaps a small
                                       mi\2\), 5.                                     to medium sized area of
                                                                                      potential critical habitat
                                                                                      and includes mostly low-
                                                                                      use and low-travel area
                                                                                      for MHI IKFWs. The DOD
                                                                                      does not maintain control
                                                                                      over these waters and non-
                                                                                      DOD activities may occur
                                                                                      in these areas. The
                                                                                      impacts from delays and
                                                                                      possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting
                                                                                      mostly low-use and lower
                                                                                      traveled habitat.
(20) Area north of Maui, Navy.......  2,590 km\2\ (~1,000      No..................  This area overlaps a medium
                                       mi\2\), 5.                                     area with high-use and
                                                                                      high to low traveled MHI
                                                                                      IFKW habitats. The DOD
                                                                                      does not maintain control
                                                                                      over these waters and non-
                                                                                      DOD activities may occur
                                                                                      in these areas. Impacts
                                                                                      from delays and possible
                                                                                      modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting portions of
                                                                                      high-use and high to low
                                                                                      traveled MHI IFKW habitat,
                                                                                      from future DOD and non-
                                                                                      DOD Federal actions.
(21) Area south of Maui, Navy.......  1,899 km\2\ (~733        No..................  This area overlaps a small
                                       mi\2\), 3.                                     to medium area of low-use
                                                                                      and lower traveled MHI
                                                                                      IFKW habitat and is
                                                                                      located between three high-
                                                                                      use areas of the
                                                                                      designation allowing for
                                                                                      contiguous travel between
                                                                                      those areas. The area is
                                                                                      not controlled by DOD.
                                                                                      This area is unique for
                                                                                      DOD and provides specific
                                                                                      opportunities for DOD
                                                                                      training and testing.
                                                                                      Impacts from delays and
                                                                                      possible modifications to
                                                                                      consultation are
                                                                                      outweighed by benefits of
                                                                                      protecting contiguous
                                                                                      habitat between MHI IFKW
                                                                                      high-use areas, from
                                                                                      future DOD and non-DOD
                                                                                      Federal actions.
(22) Hawaii Area Tracking System....  96 km\2\ (~37 mi\2\),    Yes.................  This area overlaps a small
                                       0.2.                                           area of low-use and lower
                                                                                      traveled MHI IFKW habitat
                                                                                      where DOD maintains
                                                                                      control of the area. This
                                                                                      area is unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training. The impacts from
                                                                                      delays and possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting
                                                                                      mostly low-use and lower
                                                                                      traveled habitat.
(23) Kahoolawe Training Minefield...  12 km\2\ (~5 mi\2\)      Yes.................  This area overlaps a small
                                       0.02.                                          area of low-use and lower
                                                                                      traveled MHI IFKW habitat
                                                                                      where DOD maintains
                                                                                      control of the area. This
                                                                                      area is unique for DOD and
                                                                                      provides specific
                                                                                      opportunities for DOD
                                                                                      training. The impacts from
                                                                                      delays and possible major
                                                                                      modifications to
                                                                                      consultation outweigh
                                                                                      benefits of protecting
                                                                                      mostly low-use and lower
                                                                                      traveled habitat.
----------------------------------------------------------------------------------------------------------------

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 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 critical habitat designation. Accordingly, we do not exercise 
our discretionary authority to exclude any areas based on other 
relevant impacts.

Critical Habitat Designation

    This rule designates approximately 45,504 km\2\ (17,564 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 (one 
area, two sites, for the Bureau of Ocean Energy Management (BOEM) and 
13 exclusions requested by the Navy): (1) The BOEM Call Area offshore 
of the Island of Oahu (which includes two sites, one off Kaena point 
and one off the south shore), (2) the Navy Pacific Missile Range 
Facility's Offshore ranges (including the Shallow Water Training Range 
(SWTR), the Barking Sands Tactical Underwater Range (BARSTUR), and the 
Barking Sands Underwater

[[Page 35088]]

Range Extension (BSURE; west of Kauai), (3) the Navy Kingfisher Range 
(northeast of Niihau), (4) Warning Area 188 (west of Kauai), (5) Kaula 
Island and Warning Area 187 (surrounding Kaula Island), (6) the Navy 
Fleet Operational Readiness Accuracy Check Site (FORACS) (west of 
Oahu), (7) the Navy Shipboard Electronic Systems Evaluation Facility 
(SESEF) (west of Oahu), (8) Warning Areas 196 and 191 (south of Oahu), 
(9) Warning Areas 193 and 194 (south of Oahu), (10) the Kaulakahi 
Channel portion of Warning area 186 (the channel between Niihau and 
Kauai and extending east), (11) the area north of Molokai, (12) the 
Alenuihaha Channel, (13) Hawaii Area Tracking System, and (14) the 
Kahoolawe Training Minefield. 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 JBPHH 
INRMP 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 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 in 
which (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 or Federal 
Emergency Management Agency 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 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 the following: (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 readiness 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 indirectly affected by 
delays or changes in 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 Economic Analysis 
Report (Cardno 2018) 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).

References Cited

    A complete list of all references cited in this rule can be found 
on our website 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 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 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 rule. Economic impacts 
associated with

[[Page 35089]]

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 Economic Report (Cardno 2018) 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. Applying discounted 
rates recommended in the Office of Management and Budget Circular A-4, 
the Final Economic Report estimates these incremental impacts of 
designation to be between 170,000 to 185,000 using a 3 percent discount 
rate and 143,000 to 156,000 using a 7 percent discount rate (Cardno 
2018). 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. The 
Final Economic Report estimates these costs to be 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 rule is not expected to be subject to the requirements of E.O. 
13771 because this 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 rule does not have significant federalism effects and that a 
federalism assessment is not required. We requested information from 
and coordinated development of this final critical habitat designation 
with appropriate Hawaii State resources agencies. The designation may 
have some benefit to state and local resource agencies in that the 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. While this designation would not alter where and what non-
Federally sponsored activities may occur, it may assist local 
governments in long-range planning.
    Where state and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests only on the Federal agency.

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 Economic 
Report; Cardno 2018). 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 affected 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 affect 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 RFA describing the effects of the rule on small 
entities, i.e., small businesses, small organizations, and small 
government jurisdictions. A final regulatory flexibility analysis 
(FRFA) has been prepared, which is included as Chapter 13 to the 
Economic Report (Cardno 2018). This document is available upon request 
(see ADDRESSES), via our website at https://www.fpir.noaa.gov/PRD/prd_mhi_false_killer_whale.html#fwk_esa_listing or via the Federal 
eRulemaking website at www.regulations.gov.
    A statement of need for and objectives of this rule is provided 
earlier in the preamble and is not repeated here. This rule will not 
impose any recordkeeping or reporting requirements. NMFS received 
comments on the proposed rule and supplementary reports during the 60-
day comment period; no comments were received on the initial regulatory 
flexibility analysis for this action.
    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

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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 
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 2018). Although considered unlikely (NMFS 
2018a), 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 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 2018). 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.
    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 in which 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 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 carry out, fund, 
or authorize any action that may 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 did not identify 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 2018). Although the analysis shows that we could 
have certified that there would not be significant economic impact on a 
substantial number of small entities, we are instead presenting this 
FRFA.
    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 among 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 the 
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 (CZM) Program of Hawaii. This 
determination was submitted to the Hawaii CZM Program for review. While 
the Hawaii CZM Program noted comments from Hawaii's Department of Land 
and Natural Resources DAR expressing concerns about the expansiveness 
of the proposed designation, the Hawaii CZM Program concurred with our 
consistency determination in a letter they issued to NMFS on December 
15, 2017. These concerns about the expansiveness of the designation 
were submitted by DAR and are addressed under our responses to Comments 
8 and 10 above.

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 final rule does 
not contain any new or revised collection of information. This rule, 
does 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:
    (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

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critical habitat designation is that Federal agencies must ensure that 
actions that they fund, authorize, or undertake 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 affected because they 
receive Federal assistance or participate in a voluntary Federal aid 
program; however, the Federal action agency has the obligation to avoid 
destruction or adverse modification of critical habitat.
    (B) This rule will not 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 affected by Federal regulations and as such, consideration of these 
impacts may be evaluated as other relevant impacts from the 
designation.
    We solicited comments regarding areas of overlap with the 
designation that may warrant exclusion from critical habitat for the 
MHI IFKW due to such impacts mentioned above, and/or information from 
affected Native Hawaiian organizations concerning other Native Hawaiian 
activities that may be affected in areas other than those specifically 
owned by the organization. We received no additional information 
regarding any potential impacts.
    In conclusion we find that this critical habitat designation does 
not have tribal implications, because the final critical habitat 
designation does not include any tribal lands and does not affect 
tribal trust resources or the exercise of tribal rights.

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: July 16, 2018.
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 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 revising the 
entry for ``Whale, false killer (Main Hawaiian Islands Insular DPS) 
under the ``Marine Mammals'' subheading to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                           Species \1\
-----------------------------------------------------------------  Citation(s) for     Critical
                                                  Description of       listing         habitat       ESA rules
         Common name            Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Whale, false killer (Main      Pseudorca         False killer     77 FR 70915,      Sec.           NA.
 Hawaiian Islands Insular       crassidens.       whales found     Nov. 28, 2012.    226.226.
 DPS).                                            from nearshore
                                                  of the main
                                                  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 35092]]

* * * * *

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-meter (m) 
depth contour out to the 3,200-m depth contour as depicted in the maps 
below.
    (b) Essential features. The essential feature for the conservation 
of the main Hawaiian Islands insular false killer whale is the 
following: Island-associated marine habitat for main Hawaiian Islands 
insular false killer whales. Main Hawaiian Islands insular false killer 
whales are island-associated whales that rely entirely on the 
productive submerged habitat of the main Hawaiian Islands to support 
all of their life-history stages. The following characteristics of this 
habitat support insular false killer whales' ability to travel, forage, 
communicate, and move freely around and among the waters surrounding 
the main Hawaiian Islands:
    (1) Adequate space for movement and use within shelf and slope 
habitat;
    (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; and
    (4) Sound levels that would not significantly impair 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 Endangered Species Act (ESA) section 4(b)(2), the 
following areas have been excluded from the designation: The Bureau of 
Ocean Energy Management Call Area offshore of the Island of Oahu (which 
includes two sites, one off Kaena point and one off the south shore), 
the Navy Pacific Missile Range Facility's Offshore ranges (including 
the Shallow Water Training Range (SWTR), the Barking Sands Tactical 
Underwater Range (BARSTUR), and the Barking Sands Underwater Range 
Extension (BSURE; west of Kauai), the Navy Kingfisher Range (northeast 
of Niihau), Warning Area 188 (west of Kauai), Kaula Island and Warning 
Area 187 (surrounding Kaula Island), the Navy Fleet Operational 
Readiness Accuracy Check Site (FORACS) (west of Oahu), the Navy 
Shipboard Electronic Systems Evaluation Facility (SESEF) (west of 
Oahu), Warning Areas 196 and 191 (south of Oahu), Warning Areas 193 and 
194 (south of Oahu), the Kaulakahi Channel portion of Warning area 186 
(the channel between Niihau and Kauai and extending east), the area 
north of Molokai (found offshore at the outer edge of the designation), 
the Alenuihaha Channel, the Hawaii Area Tracking System, and the 
Kahoolawe Training Minefield.
    (2) Pursuant to ESA section 4(a)(3)(B), all areas subject to the 
Joint Base Pearl Harbor-Hickam Integrated Natural Resource Management 
Pl69.
    (d) Maps of main Hawaiian Islands insular false killer whale 
critical habitat.
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