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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations Secretary of Commerce Secretary that such areas are essential for the conservation of the species 16 U.S.C.
15325A. Conservation is defined in section 33 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.
15323. Section 35C of the ESA
provides that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. Our regulations provide that critical habitat shall not be designated within foreign countries or in other areas outside U.S.
jurisdiction 50 CFR 424.12g.
Section 4a3B 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 for which critical habitat is designated.
Section 4b2 of the ESA requires us to designate critical habitat for threatened and endangered species on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.
Pursuant to this section, the Secretary may exclude any area from critical habitat upon determining that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat. However, the Secretary may not exclude areas if this will result in the extinction of the species.
Once critical habitat is designated, section 7a2 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. 1536a2. This requirement is in addition to the section 7a2 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 7a1 of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to
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further the purposes of the ESA. Critical habitat requirements do not apply to citizens engaged in actions on private land that do not involve a Federal agency. However, designating critical habitat can help focus the efforts of other conservation partners e.g., state and local governments, individuals, and non-governmental organizations.
Summary of Changes From the Proposed Rule We evaluated the comments and information received from the public during the public comment period and at public hearings. Based on our consideration of these comments and information and our reconsideration of issues discussed in the proposed rule, the final rule and supporting documents include one substantive change to the exclusions for national security impacts, as well as inclusion of clarifications and new information and references in response to public comments. Below we briefly summarize these changes and clarifications, which are discussed in further detail in the relevant responses to comments and other sections of this final rule.
After considering public comments received and the best scientific information available, the final rule reduces the extent of the excluded 10km buffer around the Quinault Range Site QRS where the QRS overlaps with the Olympic Coast National Marine Sanctuary OCNMS.
In accordance with section 4b2 of the ESA, our proposed rule excluded the QRS based on national security impacts. It also excluded a 10-km buffer around the site, calculated by the Navy based on the full extent to which noiserelated impacts on fish species are estimated to occur from the use of the largest explosives the Navy foresees testing within the QRS. We received numerous public comments opposing the exclusion and one comment pointing out that part of the QRS
overlaps with the OCNMS.
After considering these comments and requesting additional information from the Navy regarding planned activities in the OCNMS, we have reduced the extent of the 10-km buffer being excluded, where the QRS overlaps with the OCNMS. As detailed in the Section 4b2 Report NMFS 2021b, we found the benefits of designating critical habitat for Southern Resident killer whales within this portion of the buffer are not outweighed by national security impacts of including that portion. This change represents a reduction in the size of the area being excluded from critical habitat compared to the proposed rule. The proposed exclusion
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area encompassed approximately 1,687.9 mi2 4,371.5 km2 of potential critical habitat, and the final exclusion area encompasses 1,400.4 mi2 3627
km2 of potential critical habitat.
In addition to the one substantive change in the final rule, we also updated our supporting documents with additional information and clarifications based on the public comments, including updates related to sound, inclusion of newly available references, and clarifications related to our economic analysis. A number of comments requested that we include sound as a fourth essential feature or more explicitly describe how communication space is encompassed within the prey and passage essential features. After carefully considering the studies cited by commenters seeking to include sound as a fourth essential feature, we are still not able to identify specific in-water sound levels or thresholds for communication, behavioral or displacement impacts on Southern Resident killer whales as requested by CBD so we consider effects of sound qualitatively see further explanation in section Physical and Biological Features Essential to Conservation and in the Biological Report, NMFS 2021a, section V.B.4.
Because potential impacts of sound are already addressed through qualitative section 7 analyses of the prey and passage features, as well as analyses of effects of sound on individual whales themselves, we have not included sound as a separate feature. However, in response to the concerns expressed in the comments, we have added more detail to the Final Biological Report NMFS 2021a, sections V.B.2, V.B.3, and V.B.4 to clarify that the effects of anthropogenic noise on communication and social behavior are and will continue to be evaluated through the prey and passage essential features, as well as analyses of effects to individual whales. Activities producing sound that impact Southern Resident prey availability including access to prey and impacts to communication for prey sharing or safe and unrestricted passage including passage necessary for social behavior are considered activities that may require special management considerations under section 7 of the ESA. Finally, we also updated the Final Biological Report to include information on how this approach is compatible with the approaches used to address sound for other listed species: Cook Inlet beluga whale DPS, the Main Hawaiian Islands insular false killer whale DPS, and listed humpback whale
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