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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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DPSs. Also, see the response to comment 8 regarding sound.
Multiple commenters provided information and citations for recent scientific studies not included in the proposed rule. In response, we have added to the Final Biological Report NMFS 2021a descriptions of and reference to multiple new studies that were published since the publication of the proposed critical habitat rule.
The Final Economic Analysis FEA
in the Final Economic Report IEc 2021
includes updates and clarifications from the draft version in response to public comments. Specifically, the analysis incorporates new information made available after development of the Draft Economic Analysis DEA on the Pacific Fishery Management Council PFMCs ad-hoc Southern Resident Killer Whale Working Group, and publication of its Final Draft Risk Assessment for Salmon Fishery Management Plan FMP
Impacts to Southern Resident Killer Whales PFMC 2020. In response to public comment, the Sacramento District has been added to the list of United States Army Corps of Engineers USACE districts that manage activities that may be affected by the expansion section 2.10, IEc 2021. The FEA IEc 2021 also incorporates a Final Regulatory Flexibility Analysis FRFA
and updates the timeframe and dollar year of the analysis to reflect the present schedule of the final rule. Therefore, differences in anticipated costs between the DEA and the FEA reflect an update to the timeframe of the analysis and the dollar year, as opposed to changes in the costs of consultation. No substantive changes were made between the IRFA
and the Final Regulatory Flexibility Analysis FRFA as changes incorporated in the final rule do not affect the economic analysis and conclusions.
Summary of Comments and Responses We solicited comments on the proposed designations and exclusions as well as the documents supporting the proposed rulemaking. To facilitate public participation, the proposed rule was made available on our website and comments were accepted via standard mail and through the Federal eRulemaking portal. We also solicited public comments at three public hearings, which were held on November 4, 2019, in Santa Cruz, CA; November 5, 2019, in Newport, OR; and November 6, 2019, in Seattle, WA. The public comment period closed on December 18, 2019.
We received 218 unique comments, including 180 in support, 22 opposed, and 16 that provided information and/

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or requested changes to the rule without stating support or opposition. We have considered all public comments, and provide responses to all substantive issues raised by commenters that are relevant to the proposed revision of Southern Resident killer whale critical habitat. We have not responded to comments or concerns outside the scope of this rulemaking. Comments were received from a range of sources including: Global and local environmental non-profit groups, fishing industry associations, local and state government, state agencies, other Federal agencies e.g., the Marine Mammal Commission, NOAAs National Ocean Service National Marine Sanctuaries Program, USACE, merchant shipping associations, trade associations, scientists and scientific groups, university students, elementary school students, educational groups, aquariums, legal groups, and individual citizens. The majority of individual concerned citizens were in support of the expanded critical habitat designation. The Marine Mammal Commission generally agreed with NMFSs determinations and supports the geographic boundaries we proposed.
Criteria for Designating Critical Habitat Comment 1: One commenter felt that the revised critical habitat was not prudent, stating that it would not result in any new conservation measures or protections and, therefore, would not provide benefits to the species. The commenter referred to 16 U.S.C.
1533a3 to argue that NMFS must demonstrate that designation of critical habitat designation is prudent, and cited 50 CFR 424.12a1ii subsequently revised in 2019 to argue that designation is not prudent when it would not be beneficial to the species.
Response: The ESA requires that NMFS designate critical habitat to the maximum extent prudent and determinable 16 U.S.C. 1533a3.
Contrary to the interpretation of the commenter, it does not require that NMFS demonstrate prudence as a condition for designating critical habitat.
The proposed and final rules to revise critical habitat for Southern Resident killer whales follow previous ESA
implementing regulations, as the most recent revisions to the implementing regulations, which became effective on September 26, 2019, only apply to classification and critical habitat rules for which a proposed rule was published after September 26, 2019 see 84 FR 45020; August 27, 2019. The proposed rule for the revision to
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Southern Resident killer whale critical habitat 84 FR 49214 was published on September 19, 2019. With respect to critical habitat designations, the previous ESA implementing regulations at 50 CFR 424.12a1ii stated that a designation of critical habitat is not prudent when such a designation is not beneficial to the species. In determining if designation would not be beneficial, NMFS may consider, among other factors, whether the present or threatened destruction, modification, or curtailment of the habitat or range of a species is not a threat to the species, or if any areas meet the definition of critical habitat.
In general, not prudent determinations are uncommon, because most species are listed under ESA, at least in part, due to impacts to their habitat or curtailment of their range see 81 FR 7413; February 11, 2016 response to Comment 61, and because there is an inherent benefit of critical habitat designation. Most not prudent findings are a result of a determination that designating habitat would increase harm or threats to the species, such as species highly prized for collection where identifying locations would render the species vulnerable to collection. Southern Residents killer whales were listed as endangered, in part, due to modification to their habitat from vessel traffic, contaminants, and changes to prey availability see 70 FR
69903; November 18, 2005. If areas do not meet the definition of critical habitat, it is also permissible to not designate critical habitat; however, specific areas within the geographical area occupied by Southern Resident killer whales that we are designating, do meet the definition of critical habitat i.e., they contain the essential features and may require special management considerations or protection.
The commenters statement that the proposed critical habitat would not result in any new conservation measures or protections refers to our findings in the DEA IEc 2019 that there are no particular projects or activities for which NMFS considers it likely that section 7 consultation on coastal critical habitat for the killer whales would result in different conservation efforts than section 7 consultation without the revised critical habitat. However, this finding does not mean the critical habitat designation provides no benefits to the species. We find there are benefits and disagree with the commenter. First, although we do not consider additional conservation efforts from section 7
consultations to be likely, we cannot rule out that some modifications may result from section 7 consultations, and
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