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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
Resident killer whales relative use of the particular areas and the importance of physical and biological features in the areas. However, gaps in or limitations of existing data made an evaluation across all of the areas using any sort of quantitative scoring system challenging.
For example, the proportion of prey samples collected from each area might be used to characterize the areas relative importance for foraging, where a higher proportion of samples might indicate greater foraging or prey resources. However, nearly all 93
percent of the prey samples were collected during field efforts directed by the locations of satellite-tagged whales, and satellite-tagged whales did not go into Area 6, so this metric would underestimate the conservation value of Area 6. Predation has been observed but not sampled in Area 6; Black et al.
2001. Any spatial bias in NMFS and partners ability to conduct on-water response in particular locations to collect prey samples would also limit the usefulness of this factor for comparing relative importance of the critical habitat areas. Another potential metric we considered was the proportion of confirmed opportunistic sightings of Southern Resident killer whales observed in the area, or number of sightings per unit area. However, while opportunistic sightings data provide information on when and where whales occur along the coast, they are less useful for informing a relative ranking of the whales use of the specific areas due to their spatial bias e.g., sightings may be influenced by locations of population centers or whale watching operations. Therefore, we determined that the most appropriate approach was to qualitatively assess the conservation value of each area using the available data, mindful of the spatial and temporal gaps and potential biases.
Based on the available information on the whales use of the areas and considering gaps in information, and the physical and biological features essential to the whales conservation, we considered the conservation value of each coastal area to be high. However, we considered the value of Areas 1 and 2 to be very high relative to the other coastal areas, given the whales particularly high use of portions of the areas, as indicated by models of satellite tag data they are the only coastal critical habitat areas with usage in some locations that is more than two and three standard deviations above the mean, acoustic data indicating higher rates of detections than would be expected based on monitoring effort Hanson et al. 2013, the documented
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use by all three pods, year-round use of the areas, and observations of foraging with a substantial number of prey samples collected in portions of the areas.
Weighing Economic Impacts The FEA IEc 2021 concluded that costs attributed to the revision of the Southern Resident killer whale critical habitat designation are largely administrative in nature and that a majority of those costs are borne by Federal agencies. Only a small cost of consultation total annualized impacts of $9,000, discounted at 7 percent are estimated to be borne by a small number 18 of non-Federal small entities businesses or governments.
In accordance with section 4b2 of the ESA, its implementing regulations 50 CFR 424.19 and the 4b2 Policy 81 FR 7226; February 11, 2016, in evaluating the exclusion of areas based on probable economic impacts, we considered the nature of those impacts and not a particular threshold level.
Additionally, we considered the following factors:
1 Section 2 of the ESA provides that a purpose of the act is to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.
2 In listing Southern Resident killer whales under the ESA, we concluded that the current and threatened destruction or adverse modification of the species habitat is likely contributing to fluctuations in abundance and exacerbating the risk of extinction naturally faced by a small population 70 FR 69903, November 18, 2005. We identified contaminants, vessel traffic, and changes in prey availability as factors that have modified the whales habitat and considered them to be threats to the species.
3 As described above, the six particular areas under consideration for critical habitat designation are all of high or very high conservation value.
4 The economic impacts to Federal agencies and non-Federal entities of designating each of the six particular areas are small the largest annualized impacts are $10,000 in Areas 1 and 2
combined, as is the annualized economic impact of designating the entire area $80,000. The potential economic impacts borne by non-Federal entities of designating all six areas are even smaller total annualized impacts of $9,000 over the next 10 years, discounted at 7 percent, with one to eight non-Federal entities expected to be affected. This reflects approximately six consultations per year that may involve
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non-Federal entities, for example, businesses engaged coastal and in-water construction activities, renewable energy developments, or seismic surveys.
For these reasons, we conclude that the economic benefit of excluding any of the particular areas does not outweigh the conservation benefit of designation. Therefore, none of the areas are excluded based on economic impacts.
Weighing Impacts to National Security and Exclusion As described above, we consulted with the DOD regarding the activities taking place at sites managed by DOD
and the potential impact of designating critical habitat at these sites. A reply from the Air Force AF stated: At this time the AF has not identified any significant concerns with the proposed addition of Southern Resident killer whale critical habitat to coastal waters along the U.S. West Coast as depicted on the provided map. The Navy stated that it believes there would be national security impacts where critical habitat coastal areas 1 and 2 overlap the QRS, including its associated surf zone off the coast of Pacific Beach, Washington, and a 10-km buffer around it, and requested exclusion of this particular area from critical habitat. The Navy provided information on testing activities proposed in the QRS beyond 2020 and into the foreseeable future, and identified national security concerns regarding potential impacts to their national mission and ongoing and future Navy testing activities if critical habitat were designated there or within a 10-km buffer around the QRS.
We weighed the conservation benefits of designation to Southern Resident killer whales against the benefits of exclusion for the combined area of the QRS and a 10-km buffer around it. We considered various factors relevant to assessing the benefits of exclusion including:
1 The size of the DOD site, the percentage of the DOD site that would be designated because only a portion of the DOD site is within critical habitat, and the percentage of the proposed specific areas that overlaps with the DOD site because the DOD site overlaps with only a portion of the critical habitat areas;
2 The importance of the area to the Navys national mission e.g., frequency/intensity of use, complexity of Navy actions within it, and significance and uniqueness of the site to the overall Navy mission;
3 The likelihood of an ESA section 7 consultation with the DOD in this site;

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