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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations There are several reasons why the approach to sound for Southern Resident killer whales is compatible with the approaches for the other two species, Cook Inlet beluga whale DPS
and the Main Hawaiian Islands insular false killer whale MHI IFKW DPS, which include sound qualitatively as a feature or a characteristic of a feature.
The MHI IFKW designation considered the effects of sound on navigation, communication, and foraging by including sound as a characteristic of the habitat feature. Similarly, we are able to analyze the equivalent effects for Southern Resident killer whales through the passage and prey features as these similarly address navigation for access to areas, communication for prey sharing, and movement for foraging access to prey. For Cook Inlet beluga whale critical habitat, the sound feature focuses on identifying noise levels that do not lead to abandonment of the area, providing a level of protection that is equivalent to our consideration of acoustic barriers in the passage feature for Southern Resident killer whales passage feature addresses access to areas. Therefore, descriptions of both sound essential features for false killer whales and beluga whales inform the qualitative assessment of habitat-related impacts from anthropogenic sound, specifically on passage, access to critical habitat, and use of critical habitat, similar to passage and prey features for Southern Residents killer whales that equally address access and use of critical habitat. Likewise, the critical habitat Habitat of Special Importance established by Canada in Canadian waters includes an acoustic environment feature that addresses the effects of anthropogenic underwater noise on life history functions, but all the life history functions that the feature includes are captured in the prey and passage features of critical habitat in U.S. waters, making the two approaches consistent in the level of protection they provide for the species. Finally, no qualitative sound-related feature has been identified for other whale species with larger ranges like Southern Resident killer whales such as humpback whales 84 FR 54354;
October 9, 2019, North Atlantic right whales 81 FR 4838, January 27, 2016, and north Pacific right whales 68 FR
19000, April 8, 2008.
Consistent with the proposed rule, this final rule does not include sound as an essential feature for Southern Resident killer whale critical habitat.
We will continue to consider the habitat-related effects of anthropogenic sound on the whales via the prey and
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passage essential features, as detailed above.
Comment 9: Many commenters discussed the importance of prey availability for the recovery of Southern Resident killer whales, noting the value of the coastal critical habitat for supporting the whales access to prey.
One commenter felt that our description of the prey feature should provide greater specificity by specifying prey species and priority Chinook salmon runs that constitute essential features, and identifying quantitative thresholds for prey quantity, quality, and availability.
Response: We agree with the commenters view that prey availability is important to Southern Resident recovery, and we will continue to carry out section 7 consultations to evaluate potential jeopardy to killer whales from fisheries and other activities with a Federal nexus that may impact the whales prey species. In addition, certain priority Chinook salmon runs consumed by Southern Resident killer whales are also ESA-listed, and we will continue to carry out section 7
consultations on Federal activities that may jeopardize ESA-listed salmon. As stated in the proposed rule and supported by the subsequent Final Draft Risk Assessment for Salmon FMP
Impacts to Southern Resident Killer Whales PFMC 2020 and our recent Biological Opinions on Implementation of the PFMC Salmon FMP NMFS 2020, NMFS 2021c, we continue to find that there is not sufficient information to establish a specific threshold level of prey abundance and accessibility for ensuring recovery of the whales. While we have used thresholds of low Chinook salmon abundance to describe high risk conditions for the whales, we have not been able to identify a quantitative threshold for a critical habitat prey feature. Even without such a threshold for critical habitat, however, the final rule and Final Biological Report highlight the rigorous scientific information available that supports our evaluation of prey availability as a feature. That supporting information also includes our current understanding of the different prey species important to the whales.
There is extensive evidence that Southern Resident killer whales have a preference for Chinook salmon prey in inland waters in the summer and fall, as well as other species of salmonids at particular times and locations Final Biological Report, NMFS 2021a. There is emerging scientific information supporting a similar preference for Chinook salmon in coastal waters as longer term studies have documented
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for inland waters, though the studies in coastal waters have also documented a wider range of prey species in the diet compared to the diet in inland waters.
The coastal data, however, are limited small sample size from limited areas and seasons compared to data for inland waters and still emerging as research continues. Therefore, we have not specified prey species in the description of the prey feature at this time.
However, we will continue to use the best available information on prey species in the diet of the whales and incorporate new information on prey as our understanding evolves, as we have in consultations on the inland waters critical habitat.
Comment 10: One commenter disputed the proposed rules analysis regarding the relationship between Chinook salmon abundance on the outer coast and the availability of prey for Southern Resident killer whales. The commenter felt that NMFS did not use the best available data in concluding that Chinook salmon abundance on the outer coast may pose a risk to the killer whales, citing several studies for additional consideration. The commenter emphasized the uncertainties that still exist in our understanding of the relationship between Southern Resident killer whales population dynamics and Chinook salmon. They noted the new information available in the Risk Assessment produced by the PFMCs Southern Resident Killer Whale Working Group, and requested that these findings be incorporated into the final rule.
Response: The Draft Biological Report NMFS 2019a provided a comprehensive review of the scientific literature on prey availability as a potential threat to Southern Resident killer whales. The Draft Biological Report included studies noted by the commenter for consideration, and acknowledged the limitations and uncertainties of the currently available information. Since the publication of the proposed rule on August 27, 2019, new research has been published in the Final Draft Risk Assessment for Salmon FMP Impacts to Southern Resident Killer Whales PFMC 2020 and our recent Biological Opinions on Implementation of the PFMC Salmon FMP NMFS 2020, NMFS 2021c. The Final Biological Report NMFS 2021a and FEA IEc 2021 have been updated to include these new analyses.
Special Management Considerations Comment 11: Several commenters mentioned the importance of addressing upstream threats to Southern Resident
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