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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Rules and Regulations
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action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a biological opinion. If we conclude in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, we 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 agencys 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 where: 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 reinitiation of consultation 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 10a1B permit from NMFS, or some other Federal action, including funding e.g., Federal Highway Administration FHA or Federal Emergency Management Agency FEMA 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 nonFederal and private lands that are not carried out, funded, or authorized by a Federal agency.
Activities That May Be Affected ESA section 4b8 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 Southern Resident killer
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whale critical habitat and may be subject to the ESA section 7
consultation processes when carried out, funded, or authorized by a Federal agency. These include: 1 Salmon fisheries and other fisheries that have incidental bycatch of salmon; 2 salmon hatcheries; 3 offshore aquaculture/
mariculture; 4 alternative energy development; 5 oil spills and response;
6 military activities; 7 vessel traffic;
8 dredging and dredge material disposal; 9 oil and gas exploration and production; 10 mineral mining including sand and gravel mining; 11
geologic surveys including seismic surveys; and 12 activities occurring adjacent to or upstream of critical habitat that may affect essential features, that we refer to as upstream activities including activities contributing to point-source water pollution, power plant operations, liquefied natural gas terminals, desalinization plants.
Section 7 consultations must be based on the best scientific and commercial information available when they are undertaken, and outcomes are casespecific. Inclusion or exclusion from this list, therefore, does not predetermine the occurrence or outcome of any consultation.
Private or non-Federal entities may also be affected by this critical habitat designation if a Federal permit is required, Federal funding is received, or the entity is involved in or receives benefits from a Federal project. These activities would need to be evaluated with respect to their potential to destroy or adversely modify Southern Resident killer whale critical habitat. For ongoing activities, this designation of critical habitat may trigger reinitiation of past consultations. Although we cannot predetermine the outcome of section 7
consultations, we do not anticipate at this time that the outcome of reinitiated consultations would likely require additional conservation efforts, because effects to Southern Resident killer whales and their prey species would in most instances have been assessed in the original consultation. We are committed to working closely with other Federal agencies to conduct any reinitiated consultations in an efficient and streamlined manner to the maximum extent possible and consistent with our statutory and regulatory requirements. 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.

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Technical Changes to the Southern Resident Killer Whale Critical Habitat Regulations In addition to designating coastal critical habitat, we are making three technical changes to the existing Southern Resident killer whale critical habitat regulations in 50 CFR 226.206.
First, the introductory paragraph of the existing regulations states that the textual descriptions of critical habitat are the definitive source for determining the critical habitat boundaries and the overview map is provided for general guidance purposes only. In 2012, NMFS
and the USFWS revised the ESA
implementing regulations to specify that the boundaries of critical habitat as mapped or otherwise described in the regulations will be the official delineation of the designation 77 FR
25611; May 1, 2012. To comply with this revision, we are deleting the second and third sentences of the introductory paragraph of 50 CFR 226.206, and replacing them with the following: The maps, clarified by the textual descriptions in this section, are the definitive source for determining the critical habitat boundaries.
Second, the existing regulations specify primary constituent elements PCE essential for conservation of Southern Resident killer whales. In 2016, NMFS and the USFWS revised the ESA implementing regulations to remove the term PCE and replaced it with the statutory term physical or biological features 81 FR 7226;
February 11, 2016. These are also referred to as essential features. To comply with this revision, we are revising 50 CFR 226.206c by replacing the term PCE with the term essential features.
Third, we are moving the maps to the end of the section to accommodate the additional text necessary to describe the newly added critical habitat areas.
References Cited A complete list of all references cited in this final rule can be found on our website at www.westcoast.fisheries.noaa.gov/
protected_species/marine_mammals/
killer_whale/critical_habitat.html or the Federal e-Rulemaking Portal at www.regulations.gov/
!docketDetail;D=NOAA-NMFS-20140041, and is available upon request from the NMFS West Coast Region office in Seattle, Washington see ADDRESSES.
Classification Executive Order 12630, Takings Under E.O. 12630, Federal agencies must consider the effects of their actions
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