69054 Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Rules and Regulations 

regulatory taking has occurred because 

applying the OTARD rules in this 

situation will promote the important 

government interests of increasing 

competition and encouraging the 

deployment of advanced 

communication technology; economic 

harm need not be considered because no 

one has the right to operate part 15 

devices such as Wi-Fi free of 

interference; and no one has a 

reasonable expectation to generate 

revenue from the use of unlicensed 

spectrum. 

Ordering Clauses 

13. Pursuant to section 1.4000(d) of 

the Over-the-Air Reception Devices 

Rule, 47 CFR 1.4000(d), and section 1.2 

of the Commission’s rules, 47 CFR 1.2, 

that the Petition for Declaratory Ruling 

filed by Continental Airlines, Inc. on 

July 8, 2005 is granted. 

14. This Memorandum Opinion and 

Order does not change any rules, it 

grants a Petition for Declaratory Ruling, 

no Congressional Review requirements 

are necessary. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E6–20142 Filed 11–28–06; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 060228057–6283–02; I.D. 

022206D] 

RIN 0648–AU38 

Endangered and Threatened Species; 

Designation of Critical Habitat for 

Southern Resident Killer Whale 

AGENCY: National Marine Fisheries 

Service, National Oceanic and 

Atmospheric Administration, 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue a final 

rule designating critical habitat for the 

Southern Resident killer whale (Orcinus 

orca) distinct population segment (DPS). 

Three specific areas are designated, (1) 

the Summer Core Area in Haro Strait 

and waters around the San Juan Islands; 

(2) Puget Sound; and (3) the Strait of 

Juan de Fuca, which comprise 

approximately 2,560 square miles (6,630 

sq km) of marine habitat. We considered 

the economic impacts and impacts to 

national security, and concluded the 

benefits of exclusion of 18 military sites, 

comprising approximately 112 square 

miles (291 sq km), outweighed the 

benefits of inclusion because of national 

security impacts. 

We solicited comments from the 

public on all aspects of the proposed 

rule. An economic analysis, biological 

report, and Endangered Species Act 

(ESA) report were available for 

comment along with the proposed rule. 

The supporting documents have been 

finalized in support of the final critical 

habitat designation. 

DATES: This rule becomes effective 

December 29, 2006. 

ADDRESSES: The final rule, maps, and 

supporting documents used in 

preparation of this final rule, as well as 

comments and information received, are 

available on the NMFS Northwest 

Region website at http:// 

www.nwr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: 

Lynne Barre at (206) 526–4745, or Marta 

Nammack at (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Under the ESA, we are responsible for 

determining whether certain species, 

subspecies, or distinct population 

segments (DPS) are threatened or 

endangered, and designating critical 

habitat for them (16 U.S.C. 1533). In 

November 2005, we listed the Southern 

Resident killer whale DPS as 

endangered under the ESA (70 FR 

69903; November 18, 2005). At the time 

of listing, we also announced our 

intention to propose critical habitat for 

the Southern Resident killer whale. 

Critical habitat for Southern Residents 

was proposed on June 15, 2006 (71 FR 

34571). 

Killer Whale Natural History 

Three distinct forms of killer whales, 

termed residents, transients, and 

offshores, are recognized in the 

northeastern Pacific Ocean. Resident 

killer whales in U.S. waters are 

distributed from Alaska to California, 

with four distinct communities 

recognized: Southern, Northern, 

Southern Alaska, and Western Alaska 

(Krahn et al., 2002; 2004). Resident 

killer whales are fish eaters and live in 

stable matrilineal pods. The Southern 

Resident DPS consists of three pods, 

identified as J, K, and L pods, that reside 

for part of the year in the inland 

waterways of Washington State and 

British Columbia (Strait of Georgia, 

Strait of Juan de Fuca, and Puget 

Sound), principally during the late 

spring, summer, and fall (Ford et al., 

2000; Krahn et al., 2002). Pods visit 

coastal sites off Washington and 

Vancouver Island (Ford et al., 2000), but 

travel as far south as central California 

and as far north as the Queen Charlotte 

Islands. Offshore movements and 

distribution are largely unknown for the 

Southern Resident DPS. 

Detailed information on the natural 

history of Southern Residents is 

included in the Proposed Conservation 

Plan for Southern Resident Killer 

Whales (Orcinus orca) available at 

http://www.nwr.noaa.gov/ and was 

summarized in the biological report and 

the proposed rule to designate critical 

habitat (71 FR 34571; June 15, 2006). 

Summary of Comments and Responses 

We requested comments on the 

proposed rule to designate critical 

habitat for Southern Resident killer 

whales (71 FR 34571; June 15, 2006). To 

facilitate public participation, the 

proposed rule was made available on 

our regional web page and comments 

were accepted via standard mail, e-mail, 

and through the Federal eRulemaking 

portal. In addition to the proposed rule, 

several draft documents supporting the 

proposal, including a biological report, 

an economic report, and a report 

supporting NMFS’ conclusions under 

Section 4(b)(2) of the ESA, were posted. 

We obtained independent peer review 

of the draft biological report (NMFS, 

2006a) and draft Economic Analysis 

(NMFS, 2006b) and incorporated the 

peer review comments into the 

documents prior to dissemination in 

support of the proposed rule. Two 

public hearings were held on July 12, 

2006, in Seattle and July 13, 2006, in 

Friday Harbor, WA, and the public 

comment period closed on August 14, 

2006. 

We have considered all public 

comments, and they are addressed in 

the following summary. We have 

assigned comments to major issue 

categories and, where appropriate, have 

combined similar comments. 

Physical or Biological Features Essential 

for Conservation (Primary Constituent 

Elements) 

Comment 1: In our proposed listing 

determination for killer whales, we 

identified potential Primary Constituent 

Elements (PCEs) of critical habitat, 

including ‘‘Sound levels that do not 

exceed thresholds that inhibit 

communication or foraging activities or 

result in temporary or permanent 

hearing loss.’’ Many commenters 

expressed concern that the proposed 

critical habitat designation did not 

include sound as a PCE. These 

commenters pointed out that killer 


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whales rely on sound to navigate, 

forage, mate, avoid predators, and 

communicate with one another. One 

commenter noted research findings that 

vessel effects and acoustic disturbance 

are stressors on killer whales. Another 

commenter pointed to study findings 

that suggest killer whales abandon 

certain habitats when confronted with 

introduced noise. These commenters 

argued that NMFS should consider 

sound an element of the physical 

environment of water, just as NMFS 

considers water quality, prey, and 

passage habitat conditions. Commenters 

pointed out that underwater, sound 

travels farther than above water, and, 

therefore, should be considered 

differently. Others pointed out that 

sound is a commonly accepted 

pollutant, and should be treated as such 

in the critical habitat designation. They 

also pointed to the inclusion of sound 

as a concern in NMFS’ proposed 

Conservation Plan for Southern 

Residents and the 2004 Status Review. 

The commenters were particularly 

concerned with the impact of military 

sonar in Puget Sound on Southern 

Residents. Several commenters also 

mentioned the 2003 USS Shoup 

incident that reportedly affected 

Southern Resident behavior in the 

Sound as evidence of the harmful 

impacts of military sonar in the Sound. 

Other commenters focused on ambient 

noise and the noise from specific 

projects underway in the Sound as 

concerns for Southern Residents. They 

felt that excluding sound as a PCE 

would allow these activities to continue 

unmonitored for sound levels. One 

commenter argued that NMFS should 

extend critical habitat to the shoreline to 

prevent the impacts of noise related to 

nearshore activities on killer whales. 

These commenters requested NMFS 

reconsider sound as a PCE due to its 

importance to the species and create 

sound thresholds to enable enforcement 

of potential regulations. 

Response: We acknowledge the many 

observations about the potential for 

sound to startle or even physically 

injure killer whales. These effects, 

however, are direct effects to the animal 

itself and not to its habitat. The agency 

has already conducted several ESA 

section 7 consultations on construction 

activities, and measures were included 

in the action to avoid direct impacts to 

the whales. Regarding the comment in 

support of enforceable regulations to 

protect killer whales from sound, we 

have sound thresholds that we consider 

to be harassment under the Marine 

Mammal Protection Act (MMPA). We 

also recently announced our intention 

to consider new criteria to determine 

what constitutes ‘‘take’’ under the 

MMPA and ESA, through preparation of 

an environmental impact statement (70 

FR 1871; January 11, 2005). As that 

process unfolds, we may consider 

additional regulations to protect 

Southern Residents from harmful 

sounds. 

Continuous sounds may interfere with 

the whales’ echolocation and 

communication. At this time, however, 

we lack sufficient information to 

include sound as a PCE of killer whale 

critical habitat. We will continue to 

consider sound in any future revisions 

of the critical habitat designation. 

Geographical Area Occupied by the 

Species 

Comment 2: We received many 

comments regarding the proposal to 

designate critical habitat in waters 

deeper than 20 feet (6.1 m) based on 

extreme high water. The majority of 

commenters felt that we should include 

waters shallower than 20 feet (6.1 m) 

because killer whale prey, particularly 

salmon, occupy these waters, and these 

areas are essential to the conservation of 

the Southern Residents. The importance 

of these habitats for salmon and forage 

fish was the predominant argument for 

including shallow waters as critical 

habitat for Southern Residents. Several 

commenters argued against our 

assessment that the Southern Residents′ 

size prevents them from occupying 

shallow waters, pointing to the activities 

of other killer whales that use shallow 

waters for rubbing on rock bottoms and 

for foraging on marine mammals as 

evidence of killer whales′ ability to 

occupy shallow waters. In contrast, 

there were commenters who supported 

our determination that there is very 

little evidence to indicate that the 

whales occupy shallow waters. 

Commenters also cited the lack of a 

barrier between shallow and deep 

waters and mentioned that human 

activities occurring in shallow waters 

inevitably affect Southern Residents in 

deeper waters. Of particular concern 

was the fact that much of the pollution 

in the Sound enters through shallow 

waters and that excluding these waters 

from designation would limit our ability 

to address polluting activities. 

Commenters believed that including 

shallow waters in the critical habitat 

designation would increase the clean-up 

priority of contaminated sediments and 

limit industrialization. Some 

commenters listed specific projects in 

shallow waters that pose pollution and 

noise threats to Southern Residents. 

These commenters felt that including 

shallow waters would allow closer 

regulation of these projects to prevent 

harmful impacts on the deeper water 

habitat of Southern Residents. One 

commenter believed that including 

shallow water in critical habitat is 

necessary to ensure water quality and 

prey sustainability, two of the PCEs 

identified by NMFS. 

In addition, several commenters 

asserted that it would be difficult to 

determine a 20–foot (6.1–m) depth 

contour relative to extreme high water 

because such a line is not commonly 

found on reference maps and charts. We 

received suggestions that using the 

shoreline as the critical habitat 

boundary would make it easier for the 

public to understand the boundaries of 

critical habitat and for Federal action 

agencies to evaluate their projects and 

effects on critical habitat. 

Response: The overwhelming majority 

of comments focused on the importance 

of shallow nearshore waters for salmon 

and forage fish species. In the critical 

habitat proposal, we did not consider 

shallow waters (i.e., nearshore areas 

between the line of extreme high tide 

and a depth of 20 feet (6.1 m) relative 

to this line) of Puget Sound to be within 

the geographical area occupied by 

Southern Resident killer whales. While 

we acknowledged observations of 

transient whales beaching themselves to 

attack marine mammals, and those of 

Northern Residents using shallow areas 

at rubbing beaches, we did not have any 

similar accounts for Southern Resident 

whales and so requested additional 

information on use of shallow waters 

from the public during the comment 

period. 

We received comments providing 

some information on Southern Resident 

killer whale use of shallow waters. One 

researcher and several other individuals 

submitted accounts and photos of 

Southern Resident whales using specific 

shallow areas, though it was not clear if 

these areas were less than 20 feet (6.1 m) 

deep based on extreme high water. We 

specifically requested public comments 

on use of shallow areas, and the limited 

information received is not sufficient to 

consider all shallow areas as occupied. 

Joint NMFS-U.S. Fish and Wildlife 

Service (FWS) regulations provide that 

we will designate unoccupied areas as 

critical habitat only upon a finding that 

the currently occupied habitat is 

inadequate for conservation (50 CFR 

424.12(e)). At this time we lack 

sufficient information to determine that 

the currently occupied habitat is 

inadequate and that additional 

unoccupied habitat in the shallow areas 

less than 20–feet (6.1 m) deep is 

essential for conservation of the species. 

We will consider any new information 


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indicating that the current occupied 

habitat is a limiting factor for recovery 

as more research is conducted. 

The final critical habitat designation 

is consistent with the proposed rule and 

does not include waters shallower than 

20 feet (6.1 m) based on extreme high 

water. Tidal fluctuations vary at 

locations throughout the critical habitat 

areas, but generally, the shallow areas 

not included in the critical habitat 

designation are very shallow (5–10 feet) 

(1.5–3m) in some tidal conditions and 

can even be exposed at very low tides. 

During some tidal conditions these areas 

are not accessible by the whales, and we 

do not have data indicating that these 

areas are frequently used by whales. 

Regarding the importance of using 

lines found on standard maps, we agree 

it can be problematic to draw a line at 

the 20–foot (6.1 m) depth because 

standard topographic maps and nautical 

charts do not always depict such a line. 

The line of extreme high water, 

however, can be determined using 

visual cues (Cowardin et al., 1979; Ritter 

et al., 1996) and using site-specific tidal 

information and similar depth contours 

(e.g., 20 feet or 6.1 meters) found on 

maps and nautical charts to evaluate if 

their activities are taking place in or 

may affect designated critical habitat 

deeper than 20 feet (6.1 m) at extreme 

high water. Thus, Federal agencies can 

determine whether their proposed 

actions may affect critical habitat, and 

the public and other entities can discern 

where habitat critical to Southern 

Resident killer whales has been 

designated. 

In our proposed rule, we estimated 

the total area and shoreline proposed for 

designation using readily available 

Geographic Information System (GIS) 

data depicting Washington shorezones 

(Berry et al., 2000). These data are 

widely used by various state and 

Federal agencies in Puget Sound to 

locate and evaluate projects and 

activities in the nearshore zone. The GIS 

data approximate the line of ordinary 

high water, but do not include 

bathymetry, so we did not attempt to 

subtract the areas shallower than 20 feet 

(6.1 m), though areas shallower than 20 

feet are not designated as critical habitat 

in this final rule. We have used the 

same dataset to make calculations 

supporting this final critical habitat 

designation. 

Prior to issuing proposed critical 

habitat, we did make some 

modifications to the GIS data described 

above, notably, the exclusion of 

estuarine and freshwater areas upstream 

of river and creek mouths. In reevaluating the nearshore areas proposed 

for critical habitat, we identified several 

small or shallow inlets, harbors, coves 

and bays, some with very narrow 

entrances, and obtained more detailed 

sighting information to assist with 

drawing a shoreline boundary for some 

areas. In most cases, the whales had not 

been sighted within the small water 

bodies (e.g., Drayton Harbor, Wescott 

Bay, Guthrie Cove, Tulalip Bay, Port 

Gardner/eastern side of Jetty Island, 

Chapman Cove, Big Fishtrap Inlet, Gull 

Harbor, Rocky Bay at the mouth of 

Rocky Creek, Taylor Bay, Mayo Cove, 

Horsehead Bay, Wollochet Bay, Mystery 

Bay, Eagle Harbor, Jarrell Cove and 

Sequim Bay), so we have further 

modified the GIS data to excise these 

areas, totaling approximately 15 square 

miles (39 sq. km), in the final 

designation. We did include several 

small harbors where we had reports of 

Southern Resident whales at the harbor 

entrances (e.g., Keystone Harbor, Gig 

Harbor). 

Not designating waters shallower than 

20 feet (6.1 m) (based on extreme high 

water) as critical habitat does not 

preclude consultation on activities that 

occur in these shallow nearshore areas. 

ESA section 7’s requirement that 

Federal agencies ensure their actions 

aren’t likely to adversely modify critical 

habitat applies equally to actions 

occurring outside as to actions occurring 

within designated critical habitat. 

Comment 3: Many commenters 

argued for including Hood Canal (Canal) 

in the critical habitat designation. 

Commenters reported sightings of 

Southern Residents in the Canal, and 

asserted that until the 1980s Southern 

Residents regularly visited the Canal, 

making the Canal part of the home range 

of the species. These commenters felt 

we used too short of a time frame in our 

assessment and that a longer time frame 

of up to 20 years would result in the 

inclusion of Hood Canal in the 

designation. Others noted that transient 

killer whales use the Canal frequently, 

and, therefore, it should be designated 

critical habitat. Some commenters 

expressed concern that exclusion from 

designation would allow further 

development of the Canal, strip mining, 

industrial harbor pollution, continued 

sewer runoff into the Canal, and heavy 

commercial traffic, harming the Canal′s 

ecosystem, contributing to low oxygen 

levels, and further discouraging 

Southern Residents from using its 

waters. Many commenters felt that Hood 

Canal and its salmon populations 

should be a top concern for NMFS, 

predicting that with salmon recovery in 

the waterway, Southern Residents 

would return to seek out prey. These 

commenters felt strongly that protecting 

Southern Resident food sources, 

specifically salmon, was reason enough 

to designate Hood Canal critical habitat. 

All of these commenters believe Hood 

Canal is essential to the recovery of 

Southern Residents. 

Response: Section 3(5)(A) of the ESA 

defines critical habitat as areas either 

occupied or not occupied by the species 

‘‘at the time it is listed.’’ We relied on 

the best available information on killer 

whale distribution to develop the 

proposed critical habitat areas. The 

sighting data we received from the 

Whale Museum included sightings of 

Southern Residents from 1990–2003, 

which was the most reliable information 

in their long-term database. Whales 

were identified by pod when possible, 

and sightings of transients, northern 

residents, and offshore whales were not 

included in the Whale Museum data set. 

There were no sightings of Southern 

Resident killer whales reported in Hood 

Canal from 1990–2003. In addition to 

the sighting data, we received one report 

of a sound recording made in Hood 

Canal from 1995, which was confirmed 

as calls of Southern Residents. Based on 

the one recording, we did not consider 

Hood Canal as occupied by the species 

at the time of listing. Commenters 

compared the one occurrence of 

Southern Residents in Hood Canal in 

1995 to the areas in South Puget Sound 

that also had small numbers of 

sightings. The Puget Sound sightings, 

however, were often more than one 

sighting, were more recent, and were 

contiguous with areas of greater 

numbers of sightings. In contrast, Hood 

Canal has a narrow entrance, and its 

waters are not adjacent to areas with 

regular sightings. 

The information we received during 

the public comment period included 

three additional sightings of killer 

whales in Hood Canal with sufficient 

information (photos, sound recordings, 

detailed field notes) to confirm that they 

were Southern Residents. The sound 

recording was made in 1958, the 

photograph was taken in 1973, and the 

detailed account was from a sighting in 

1977. In addition, there were many 

anecdotal accounts of groups of whales 

with larger group sizes than are typical 

for transient whales and may have been 

Southern Residents spanning the 

1940’s–1980’s. In the past, we have 

considered opportunistic or historical 

information on a specicies’ occupied 

habitat when current documentation is 

not available. However, for Southern 

Residents, we have a more recent 

sighting record from the Whale 

Museum. Even if we increased the time 

span under consideration to 20 years, it 

would not add any confirmed sightings 

of Southern Residents in Hood Canal at 


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the time of listing. At this time, there are 

not sufficient data to consider Hood 

Canal as occupied at the time of listing. 

The commenters also argued that if 

Hood Canal is not currently considered 

‘‘occupied by the species,’’ it should 

still be designated as critical habitat 

because it contains the PCEs necessary 

for conservation (i.e., prey), and it is 

essential for conservation. Joint NMFSU.S. Fish and Wildlife Service (FWS) 

regulations provide that we will 

designate unoccupied areas as critical 

habitat only upon a finding that the 

currently occupied habitat is inadequate 

for conservation (50 CFR 424.12(e)). At 

this time we lack sufficient information 

to determine that the currently occupied 

habitat is inadequate and that additional 

unoccupied habitat in Hood Canal is 

essential for conservation of the species. 

We will consider any new information 

indicating that the current occupied 

habitat is a limiting factor for recovery 

as more research is conducted. 

We appreciate the efforts by the Hood 

Canal community to gather the 

historical information on killer whale 

use of the area. If, as some predict, the 

whales do return to Hood Canal in 

response to increasing populations of 

prey species, we will continue to work 

with the local community to gather 

information and reevaluate the 

importance of Hood Canal as Southern 

Resident habitat. 

Specific Areas 

Comment 4: Several commenters 

urged us to designate areas as critical 

habitat for killer whales if they are 

essential for salmon conservation, based 

on a variety of theories. Some 

commenters pointed out that nearshore 

areas and/or freshwater areas that 

support salmon contain physical or 

biological features essential for 

conservation of killer whales (those 

features being salmon, or the features 

that support salmon). Some commenters 

urged us to consider nearshore areas, 

bays, and even freshwater areas as 

unoccupied areas ‘‘essential for 

conservation’’ of the whales - one 

stating that the statutory provision 

regarding ‘‘physical or biological 

features’’ applies to both occupied and 

unoccupied areas and another stating 

that there is no statutory requirement for 

unoccupied areas to contain physical or 

biological features. One commenter 

stated that because nearshore and 

offshore waters are connected, it is 

arbitrary to draw a line separating the 

two (that is, the line we proposed at the 

20–foot (6.1 m) depth). 

Response: The presence of salmon in 

densities and/or bathymetric conditions 

that make them available to killer 

whales appears to be the primary factor 

determining what areas the whales are 

likely to occupy. The fact that this 

essential feature is also present in areas 

the whales cannot occupy does not 

make those outside areas ′′occupied′′ in 

the statutory sense. Nor does the fact 

that those unoccupied areas may be 

essential to salmon make them essential 

to killer whale conservation. Joint 

NMFS-U.S. Fish and Wildlife Service 

(FWS) regulations provide that we will 

designate unoccupied areas as critical 

habitat only upon a finding that the 

currently occupied habitat is inadequate 

for conservation (50 CFR 424.12(e)). At 

this time we lack sufficient information 

to determine that the currently occupied 

habitat is inadequate and that additional 

unoccupied habitat is essential for 

conservation of the species. We will 

consider any new information 

indicating that the current occupied 

habitat is a limiting factor for recovery 

as more research is conducted. 

No matter where the line is drawn to 

delineate a specific area, there will be 

activities occurring outside of the 

delineated area that may affect the 

features within the area. When prey 

items are a biological feature that moves 

freely in and out of the geographical 

area occupied by the species, it creates 

a situation in which there is a 

′′biological feature′′ outside the occupied 

specific areas. This fact does not make 

line-drawing arbitrary because the 

statute requires us to designate as 

critical habitat specific areas occupied 

by the species that contain those 

physical and biological features 

essential to conservation and may 

require special management 

considerations or protection, or 

unoccupied areas essential to the 

conservation of the species. Here we 

have chosen a reasonable line on a map 

(as our regulations require) to clearly 

identify ‘‘specific areas within the 

geographical area occupied by the 

species.’’ Moreover, section 7’s 

requirement that Federal agencies 

ensure their actions are not likely to 

adversely modify critical habitat apply 

equally to actions occurring outside and 

within designated critical habitat. We 

have identified a depth contour of 20 

feet (6.1 m) based on extreme high water 

for the final critical habitat. We believe 

this is a reasonable way to delineate a 

‘‘specific area within the geographical 

area occupied by the species.’’

Comment 5: Many commenters 

requested that we include the offshore 

waters of Washington, Oregon, and 

California in the critical habitat 

designation. One commenter 

recommended we begin our designation 

at a reasonable depth and extend it to 

five miles (8.0 km) offshore to 

adequately protect waters used by 

Southern Residents. Many comments 

specifically requested that the Olympic 

Coast National Marine Sanctuary be 

included in the critical habitat 

designation. Most felt there was 

sufficient evidence to include offshore 

waters in the critical habitat designation 

at this time. Others encouraged us to 

conduct additional research on the 

winter coastal habitat of Southern 

Residents to gather information to 

support expansion of the critical habitat 

designation in the future. 

Response: In the proposed rule, we 

identified the data gaps regarding 

distribution of Southern Residents in 

coastal and offshore waters and 

uncertainty regarding the important 

habitat features of these areas. At this 

time, we do not feel there is sufficient 

data to identify the specific areas in 

offshore waters in which the essential 

habitat features are found. This concern 

applies equally to the Olympic Coast 

National Marine Sanctuary and to other 

offshore areas. There is an active 

research program underway to gather 

information and fill in these data gaps, 

and we will consider any new 

information on coastal and offshore 

habitats that becomes available. 

Special Management Considerations 

Comment 6: We received a number of 

comments on the threats to the Southern 

Resident killer whales and suggestions 

for management actions that could be 

taken. These included: concerns 

regarding fisheries management to 

ensure sufficient prey for the whales; 

high pollution levels in Puget Sound 

and the sewage dumping practices of 

particular areas; stress from whale 

watching and other vessels; and 

potential effects from research practices 

and oil spills. 

Response: For each of the specific 

areas proposed for critical habitat 

designation, we identified the PCEs and 

their special management 

considerations, which generally are the 

same concerns as those expressed by 

commenters. We will also consider the 

comments pertaining to specific threats 

to the whales and their habitat and 

potential management actions in 

developing a recovery plan for Southern 

Resident killer whales. 

Activities That May Be Affected 

Comment 7: One commenter 

requested at least a partial list of the 

type of projects that would likely 

require ESA section 7 consultation to 

assist agencies and project sponsors. 

Another commenter suggested that 

Federal hydropower projects should 


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also be considered because of their 

potential to affect abundance of killer 

whale prey. Several commenters 

encouraged us to explore a Federal 

nexus under section 7 that would allow 

us to address vessels in Puget Sound. 

Response: We provided a list of 

activities that may be affected by this 

designation, including, but not limited 

to, fishery management practices, vessel 

traffic, dredging and disposal, submarine cable/pipline installation and 

repair, oil and gas exploration, pollutant 

discharge, and oil spill prevention and 

response. If hydropower actions can be 

shown to significantly reduce the 

abundance of salmon available to the 

whales in designated critical habitat, 

they could adversely modify that 

habitat. As noted in response to 

Comment 8 below, most hydropower 

operations in the range of salmon and 

steelhead are already subject to 

modifications to protect listed salmon 

and steelhead. We will work with the 

Coast Guard and other agencies that 

oversee vessel activities to explore 

actions regarding vessels that may 

require section 7 consultation under the 

ESA. 

Application of ESA section 4(b)(2) 

Economic Impacts 

Comment 8: We received several 

comments requesting that we include 

additional quantified estimates of 

economic impacts of designating critical 

habitat for Southern Resident killer 

whales in the economics report. One 

commenter objected to the focus of the 

economic analysis on potential impacts 

to fisheries. One commenter suggested 

Federal hydropower projects be 

considered under section 7 of the ESA 

and economic impacts of those 

consultations be considered in the 

economic analysis. Other commenters 

requested inclusion of costs associated 

with water quality and stormwater 

management and noise-producing 

activities, such as construction. Another 

suggested that information about 

economic costs associated with climate 

change be included. 

Response: The range of economic 

costs estimated for critical habitat 

designation was related to possible 

reductions in harvest of prey species. 

While the economic analysis may 

appear to focus on potential impacts to 

fisheries, the economic report addresses 

other impacts such as those to water 

quality which could not be quantified. 

The inability to quantify these costs 

does not reduce their relative 

importance. In the ESA section 4(b)(2) 

report, we acknowledge that there are 

also additional costs associated with 

prey in addition to harvest, though we 

could not attribute these costs to the 

designation of critical habitat for 

Southern Resident killer whales. In 

designating critical habitat for the Puget 

Sound Chinook ESU, there were over 

$70,000,000 of economic impacts 

identified for the designated areas. 

Examples of other programs affecting 

salmon habitat include Shared Strategy 

for salmon recovery and Puget Sound 

Action Team and Puget Sound 

Partnership efforts to improve 

conditions in Puget Sound, which may 

cost hundreds of millions of dollars. 

In the case of hydroelectric projects, 

particularly the Federal projects the 

commenter identified, many 

hydroelectric project modifications to 

protect salmon and steelhead are 

already required to protect ESA-listed 

salmon or steelhead. Along the entire 

West Coast, nearly all salmon-bearing 

streams are home to listed salmon and 

steelhead (only coastal streams in 

Western Washington contain no listed 

salmon or steelhead). To the extent 

there is a Federal nexus on hydropower 

operations affecting these listed salmon 

and steelhead, the Federal agency 

involved must ensure its actions aren′t 

likely to jeopardize the listed salmonids 

or adversely modify their critical 

habitat. As a result, hydropower 

operations that might affect the 

abundance of killer whale prey 

(including those in the Columbia River 

basin) are already modified to protect 

salmon and their critical habitat. It 

would be inappropriate to attribute the 

cost of modifications to killer whale 

critical habitat designation when they 

are already required to protect salmon 

and steelhead; however, if additional 

project modifications are required to 

prevent reductions of prey abundance 

for Southern Resident killer whales in 

designated critical habitat, these 

impacts would be attributable to this 

designation. 

Regarding water quality, we lack 

sufficient information at this time to 

determine which contaminants are 

likely to be the focus of future ESA 

section 7 consultations and what 

threshold levels are appropriate to 

protect Southern Residents. Until we 

have better information about the 

number and type of section 7 

consultations on water quality 

management, and the extent of changes 

that may be required as a result of those 

consultations, it would be speculative to 

try to estimate associated costs. We do 

not have a consultation history for killer 

whales that would provide information 

on changes that might be required in 

water quality management to protect 

killer whale habitat from adverse 

modification. Nor do we have 

information that would allow us to 

estimate with any confidence what 

those changes might be. One commenter 

suggested that we rely on the 

consultation history of salmon to 

estimate economic costs for water 

quality management. However, there are 

different contaminants of concern for 

salmon, and, as noted above, costs 

associated with salmon consultations 

would not be appropriate to count 

twice. Impacts from Southern Resident 

critical habitat designation will likely 

come in areas different than those that 

stem from salmon protection and 

recovery. 

There are likely to be significant costs 

associated with construction activities 

as a result of our listing of Southern 

Resident killer whales because these 

sound-producing activities have a direct 

effect on the whales, as described in our 

response to Comment 1. We have 

already conducted several ESA section 

7 consultations on construction 

activities, and measures were included 

in the action to avoid direct impacts to 

the whales. Because we consider such 

sound to be an impact on the whales 

rather than on the whales′ habitat, 

however, we did not include the costs 

associated with these measures in our 

analysis of the economic impacts of 

designation. 

At this time it would be too 

speculative to try to determine what 

management changes may be required 

for salmon and steelhead in response to 

climate change. 

Comment 9: One commenter 

questioned the information in the 

economics report regarding stormwater 

outfalls, including the number of 

outfalls listed, and suggested we 

consider the contaminant levels for 

individual outfalls and sources rather 

than the number of outfalls or the 

agency responsible for managing the 

outfalls. 

Response: We recognize that the 

quantity and quality of stormwater, not 

the number of outfalls, will determine 

what changes would need to be made, 

if any, as a result of critical habitat 

designation. We also recognize that 

outfalls without any Federal nexus will 

not be subject to an ESA section 7 

consultation. We included the number 

of outfalls that might be subject to 

consultation in the draft economics 

report, where such numbers were 

available, to give the decision maker 

some context for considering the 

potential impact of critical habitat 

designation, as required by ESA section 

4(b)(2). In light of this comment, we 

have removed the table from the 


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economics report showing the number 

of outfalls. 

Comment 10: Commenters suggested 

that additional information on the 

economic benefits of recovered 

Southern Resident and salmon 

populations be included in the report. 

Response: While there may be studies 

that may provide some information 

relevant to estimating the benefits of 

recovered Southern Resident killer 

whale and salmon populations, there is 

insufficient information to estimate the 

incremental benefits (in addition to the 

current salmon recovery efforts) of 

critical habitat designation for Southern 

Residents on the status of Southern 

Resident and Pacific Northwest salmon 

populations. 

Comment 11: One commenter 

objected to the inclusion of polycyclic 

aromatic hydrocarbons (PAH) as a 

contaminant of potential concern to 

Southern Resident killer whales in the 

economic report. The commenter 

acknowledged that PAHs are mentioned 

in the conservation plan, but that since 

they were not specifically addressed in 

the listing or biological report, like other 

contaminants such as polychlorinated 

biphenyls (PCB) and dichloro-diphenyltrichloroethane ( DDT), they should 

therefore not be included in the 

economic analysis. 

Response: While we concur with the 

commenter that PCBs and other 

contaminants pose a greater risk to 

Southern Residents than PAHs, PAHs 

are still a concern and we have modified 

the biological report to ensure it clearly 

reflects this concern. Exposure to PAHs 

can be chronic or acute in the case of 

an oil spill. Although there are few 

studies of PAH levels and effects in wild 

marine mammals and no studies linking 

PAHs to the decline in the Southern 

Residents, there are concerns regarding 

carcinogenic effects of high levels of 

PAHs in some marine mammals (e.g., 

beluga whales). PAHs were not 

specifically identified as a primary 

concern in the listing of Southern 

Residents, but their inclusion in the 

conservation plan and the economic 

report indicates that they may be a 

concern for Southern Residents. No 

specific costs were associated with 

inclusion of PAHs in the economic 

report. 

National Security Impacts 

Comment 12: Many commenters 

disagreed with the decision to exclude 

18 military sites on the basis of national 

security. Commenters requested that we 

review and offer explanations for the 

exclusion of each facility on a case-bycase basis, balancing national security 

interests with those of Southern 

Residents. Reducing the size of 

exemptions, limiting the degree of the 

exemptions, or entering into an 

agreement with the Navy to address 

their activities were several of the 

recommendations of commenters. Many 

of the commenters expressed concern 

about non-military activities that occur 

in the exempt areas and whether they 

would be subject to critical habitat 

regulations. These commenters hoped 

we could find a way to protect Southern 

Residents from harmful, non-military 

activities in these zones. An additional 

concern for these commenters was the 

impact of military sonar. We received 

recommendations that the military 

increase its efforts to protect killer 

whales when conducting tests, using 

passive sonar to locate whales and avoid 

sonar usage when whales are in 

potentially harmful proximity to the 

military vessel. 

Response: In an appendix to the ESA 

Section 4(b)(2) report, we provided 

detailed information on each of the 

military sites and summarized the 

national security concerns raised by the 

Department of Defense (DOD). We 

concluded that the national security 

impacts outweighed the benefits to the 

species. There is no mechanism in the 

ESA to exclude just the military and not 

other Federal agencies from the impacts 

of critical habitat designation. The 

exclusion of the military sites from 

critical habitat designation, however, 

does not mean that Federal actions in 

those areas are exempt from all 

consultation obligations under section 7 

of the ESA. Federal agencies must 

ensure their actions do not jeopardize 

the continued existence of listed species 

- a requirement that applies regardless 

of whether specific areas are designated 

as critical habitat. We will continue to 

be concerned about activities that harm 

Southern Resident killer whales and 

their habitat, regardless of whether that 

habitat is designated. We expect that 

where critical habitat is designated, it 

will more precisely focus our analysis 

on how the action will alter the habitat 

and how that will affect the ability of 

the habitat to support species’

conservation. 

Regarding sonar use, the Navy has 

operating procedures in place to reduce 

the risk to marine mammals, and these 

are included in the Proposed 

Conservation Plan for Southern 

Resident Killer Whales (available at 

www.nwr.noaa.gov). As stated above, 

the military exclusions from critical 

habitat designation do not affect the 

Navy’s obligations under section 7 of 

the ESA to consult on Federal actions 

that may affect Southern Resident killer 

whales regardless of whether they occur 

in designated critical habitat. 

Comment 13: We received several 

requests for additional exclusions based 

on impacts to national security. 

Commenters requested exclusions for 

refineries and ports in Puget Sound. 

Refinery operators requested exclusions 

because of their role in producing the 

petroleum products used by the U.S. 

military. These commenters felt that 

being subject to critical habitat 

consultations would limit the ability of 

refineries to efficiently provide oil to the 

military in a situation of national 

security. They also argued critical 

habitat designations would affect 

security, maintenance, operations and 

emergency preparedness at refineries. 

Those requesting national security 

exemptions for the ports located in 

Puget Sound argued that ports play an 

essential role in protecting the United 

States from terrorist threats because they 

are a primary entry and exit point. The 

commenters also argued there would be 

economic impacts to designating critical 

habitat in ports, making the ports less 

competitive. The commenters felt that, 

given that Southern Residents do not 

often use port waters, and many of the 

areas are already designated as critical 

habitat for Chinook salmon, an 

additional critical habitat designation 

would impact ports and not offer 

benefits to killer whales. 

Response: We concluded that the 

national security benefits of exclusion 

outweighed the conservation benefits of 

designation for 18 military sites. The 

Navy and Army provided information 

on the direct and potentially substantial 

impacts to national security including 

preventing, restricting, or delaying 

training or testing exercises or access to 

sites; restricting, or delaying activities 

associated with vessel/facility 

maintenance and ordnance loading; and 

delaying response time for ship 

deployments and overall operations. 

The DOD did not identify any concerns 

regarding impacts to national security 

beyond those at their sites. National 

security is the primary mission for the 

military, and we considered the high 

priority placed on national security 

when weighing the benefits of exclusion 

against conservation benefits. Refineries 

and ports, however, are commercial 

operations, and the national security 

concerns associated with these sites are 

a part of their overall activities. We 

consider that designating critical habitat 

in these areas will provide some 

conservation benefit through ESA 

section 7 consultations on refinery and 

port actions that may impact habitat by 

affecting prey availability, contaminant 

levels, or passage. There was 


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insufficient information to demonstrate 

that any national security benefits 

outweigh the conservation benefits. 

National Environmental Protection Act 

of 1969 (NEPA) 

Comment 14: We received one 

comment arguing that the agency must 

comply with the NEPA to inform the 

public and help ensure that critical 

habitat designations do not result in 

unintended environmental 

consequences. 

Response: We believe that in Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied, 116 S.Ct. 698 (1996), 

the Ninth Circuit Court of Appeals 

correctly interpreted the relationship 

between NEPA and critical habitat 

designation under the ESA. The Court 

rejected the suggestion, identical to that 

raised by commenters, that 

irreconcilable statutory conflict or 

duplicative statutory procedures are the 

only exceptions to application of NEPA 

to Federal actions. The Court held that 

the legislative history of the ESA 

demonstrated that Congress intended to 

displace NEPA procedures with 

carefully crafted procedures specific to 

critical habitat designation. Further, the 

Douglas County Court held that the 

critical habitat mandate of the ESA 

conflicts with NEPA in that, although 

the Secretary may exclude areas from 

critical habitat designation if such 

exclusion would be more beneficial 

than harmful, the Secretary has no 

discretion to exclude areas from 

designation if such exclusion would 

result in extinction. The Court noted 

that the ESA also conflicts with NEPA’s 

demand for impact analysis, in that the 

ESA dictates that the Secretary ‘‘shall’’

designate critical habitat for listed 

species based upon an evaluation of 

economic and other ‘‘relevant’’ impacts, 

which the Court interpreted as narrower 

than NEPA’s directive. Finally, the 

Court, based upon a review of precedent 

from several circuits including the Fifth 

Circuit, held that an environmental 

impact statement is not required for 

actions that do not change the physical 

environment. 

Delay Designation Pending Resolution 

of Legal Issues 

Comment 15: One commenter 

requested that we delay designation of 

critical habitat until clarification of 

outstanding legal issues, including 

litigation over the listing of the 

Southern Resident DPS and the 

definition of ′′adverse modification′′ of 

critical habitat, are resolved. 

Response: Litigation is currently 

pending that challenges our listing of 

Southern Resident killer whales as 

endangered under the ESA [Washington 

State Farm Bureau and Building 

Industry Association of Washington v. 

NMFS]. Pending a decision on that 

challenge, the whales are listed, and the 

ESA requires that we designate critical 

habitat within one year of listing. Past 

court decisions on the agency′s 

regulatory definition of adverse 

modification have no effect on the 

statutory requirement to designate 

critical habitat. 

Coordination with Canada 

Comment 16: We received a number 

of comments regarding the use of 

Canadian waters by Southern Residents. 

These commenters felt we should 

coordinate with Canada on our efforts 

for protecting Southern Residents and 

their habitat. 

Response: We have some sighting data 

for Southern Residents in Canadian 

waters, and while our regulations limit 

us to designating critical habitat in areas 

under U.S. jurisdiction, we will 

continue to coordinate with Canada on 

both critical habitat designated in U. S. 

waters and recovery planning on both 

sides of the border. 

Critical Habitat Identification and 

Designation 

Section 3 of the ESA defines critical 

habitat as ‘‘(i) the specific areas within 

the geographical area occupied by the 

species, at the time it is listed * * *, on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed * * *, upon a determination 

by the Secretary that such areas are 

essential for the conservation of the 

species.’’ Section 3 of the ESA (16 

U.S.C. 1532(3)) also defines the terms 

‘‘conserve,’’ ‘‘conserving,’’ and 

‘‘conservation’’ to mean: ‘‘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 

chapter are no longer necessary.’’

Section 4 of the ESA requires that, 

before designating critical habitat, we 

consider economic impacts, impacts on 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat. The Secretary may 

exclude any area from critical habitat if 

he determines that the benefits of 

exclusion outweigh the benefits of 

designation, unless excluding an area 

from critical habitat will result in the 

extinction of the species concerned. 

Once critical habitat is designated, 

section 7(a)(2) of the ESA requires that 

each Federal agency, in consultation 

with us and with our assistance, ensure 

that any action it authorizes, funds, or 

carries out is not likely to result in the 

destruction or adverse modification of 

critical habitat. 

Physical or Biological Features 

Essential to Conservation (Primary 

Constituent Elements) 

Joint NMFS-FWS regulations for 

listing endangered and threatened 

species and designating critical habitat 

at 50 CFR 424.12(b) state that the 

agencies ‘‘shall consider those physical 

and biological features that are essential 

to the conservation of a given species 

and that may require special 

management considerations or 

protection (hereafter also referred to as 

‘‘Essential Features’ or ‘‘Primary 

Constituent Elements’/PCEs’).’’ Pursuant 

to the regulations, such requirements 

include, but are not limited to, the 

following: (1) Space for individual and 

population growth, and for normal 

behavior; (2) food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and 

generally, (5) habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. These 

regulations state that we shall focus on 

essential features within the specific 

areas considered for designation. These 

features ′′may include, but are not 

limited to, the following: spawning 

sites, feeding sites, seasonal wetland or 

dryland, water quality or quantity, 

geological formation, vegetation type, 

tide, and specific soil types.’’

Fish are the major dietary component 

of resident killer whales in the 

northeastern Pacific, with 22 species of 

fish and 1 species of squid (Gonatopsis 

borealis) known to be eaten (Scheffer 

and Slipp, 1948; Ford et al., 1998; 2000; 

Ford and Ellis, 2005; Saulitis et al., 

2000). Observations from this region 

indicate that salmon are clearly 

preferred as prey (Ford et al., 1998; Ford 

and Ellis, 2005) and are likely 

consumed in large amounts, as 

indicated by the estimates of total 

salmon consumed by the Southern 

Resident killer whale DPS. Sufficient 

prey abundance is necessary to support 

individual growth to reach sexual 

maturity and reproduction, including 

lactation and successful rearing of 

calves. 

In addition to a sufficient biomass of 

prey species, the prey must not have 


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amounts of contaminants that exceed 

levels that can cause mortality or 

reproductive failure in Southern 

Residents. Because of their long life 

span, position at the top of the food 

chain, and their blubber stores, killer 

whales accumulate high concentrations 

of contaminants. Organochlorines, such 

as PCBs and DDT, and many other 

chemical compounds including 

polychlorinated napthalenes, 

brominated flame retardants, PAHs, 

dioxins, furans, and heavy metals, are a 

concern because of their ability to 

induce immune suppression, 

reproductive impairment, or other 

physiological damage, as observed in 

several species of marine mammals 

(Albers and Loughlin, 2003; Boland et 

al., 1998; Bergman et al., 1992; De Guise 

et al., 2003; Jepson et al., 1999; 

Reijinders, 2003; Ross, 2002). 

To move between important habitat 

areas, find prey, and fulfill other life 

history requirements, the Southern 

Resident killer whales require open 

waterways that are free from 

obstruction. In-water structures that 

block passage, for example, could affect 

Southern Resident killer whale 

movement. 

Killer whale habitat use is dynamic, 

and specific breeding, calving, or resting 

areas have not been documented. Births 

occur largely from October to March, 

but may take place in any month 

(Olesiuk et al., 1990), and, therefore, 

potentially in any part of the whales′ 

range. Southern Residents are highly 

mobile and can travel up to 100 miles 

(160 km) in a 24–hour period (Baird, 

2000), allowing rapid movements 

between areas. These movements likely 

coincide with prey concentrations. 

Individual knowledge of productive 

feeding areas and other special habitats 

is probably important in the selection of 

locations visited and is likely a learned 

tradition passed from one generation to 

the next (Ford et al., 1998). 

Based on this natural history of the 

Southern Resident killer whales and 

their habitat needs, the physical or 

biological features of Southern Resident 

killer whale habitat are: 

(1) Water quality to support growth 

and development; 

(2) Prey species of sufficient quantity, 

quality and availability to support 

individual growth, reproduction and 

development, as well as overall 

population growth; and 

(3) Passage conditions to allow for 

migration, resting, and foraging. 

Geographical Area Occupied by the 

Species 

Photo-identification studies, tracking 

by boats, and opportunistic sightings 

have provided considerable information 

on the ranges and movements of 

Southern Resident killer whales since 

the early 1970s. Ranges are best known 

from late spring to early autumn (MaySeptember), when survey effort is 

greatest. During this period, all three 

Southern Resident pods- J, K and L- are 

regularly present in the Georgia Basin 

(defined as the Georgia Strait, San Juan 

Islands, and Strait of Juan de Fuca) 

(Heimlich- Boran, 1988; Felleman et al., 

1991; Olson, 1998; Osborne, 1999). 

While in inland waters during 

summer months, all of the pods 

concentrate their activity in Haro Strait, 

Boundary Pass, the southern Gulf 

Islands, the northeastern end of the 

Strait of Juan de Fuca, and several 

localities in southern Georgia Strait 

(Heimlich-Boran, 1988; Felleman et al., 

1991; Olson, 1998; Ford et al., 2000). 

Pods commonly occur and are observed 

foraging in areas where salmon frequent, 

especially during the times of year 

salmon are migrating to their natal 

rivers (Heimlich-Boran, 1986, 1988; 

Nichol and Shackleton, 1996). Notable 

concentrations include Haro Strait and 

Boundary Passage, the southern tip of 

Vancouver Island, Swanson Channel off 

North Pender Island, and the mouth of 

the Fraser River delta, which is visited 

by all three pods in September and 

October (Felleman et al., 1991; Ford et 

al., 2000). These sites are major 

corridors for migrating salmon. 

Individual pods are generally similar 

in their preferred areas of use (Olson, 

1998), although some seasonal and 

temporal differences exist in areas used. 

All three pods typically arrive in May or 

June and spend most of their time in 

inland waters until departing in October 

or November. However, K and L pods 

make frequent trips lasting a few days 

to the outer coasts of Washington and 

southern Vancouver Island during this 

time period (Ford et al., 2000). During 

early autumn, Southern Resident pods, 

especially J pod, routinely expand their 

movements into Puget Sound, probably 

to take advantage of chum and Chinook 

salmon runs (Osborne, 1999). 

Additional recent studies have 

identified finer scale pod differences in 

seasonal movement patterns and use of 

core areas (Hauser, 2006). 

There are no confirmed sightings of 

Southern Resident killer whales inside 

Hood Canal in the 1990–2003 sighting 

database. On one occasion in 1995, 

acoustic recordings from Dabob Bay 

were identified as J pod vocalizations 

(Unger, 1997). Although additional 

historical sightings and recordings from 

the 1970s and earlier were provided 

during the comment period, we do not 

consider this sufficient evidence of 

presence to find Hood Canal ′′within the 

geographical area occupied by the 

species at the time of listing.′′ (Transient 

killer whales, in contrast, have been 

observed in Hood Canal on multiple 

occasions and have remained in Hood 

Canal for extended periods in the last 

several years.) 

In the critical habitat proposed rule 

we did not consider extremely shallow 

waters of Puget Sound (less than 20 feet 

(6.1 m) deep relative to the extreme high 

water line) to be within the geographical 

area occupied by the species and 

requested information during the public 

comment period. The public and a 

scientific researcher provided accounts 

and photographs of Southern Resident 

killer whales using some shallow areas. 

The information received is not 

sufficient to consider all shallow areas 

as occupied. The final critical habitat 

designation is consistent with the 

proposed rule and does not include 

waters shallower than 20 feet (6.1 m) 

based on extreme high tide. Tidal 

fluctuations vary at locations 

throughout the critical habitat areas, but 

generally the shallow areas not included 

in the critical habitat designation are 

very shallow (5–10 feet (1.5–3 m)) in 

some tidal conditions and can even be 

exposed at very low tides. During some 

tidal conditions these areas are not 

accessible by the whales, and we do not 

have data indicating that these areas are 

frequently used by whales. We used this 

same shoreline data for the final rule, 

which is readily available from the 

Washington Department of Natural 

Resources, to display and calculate the 

critical habitat areas as we did in the 

proposed rule. 

During the late fall, winter, and early 

spring, the ranges and movements of the 

Southern Residents are less well known. 

J pod continues to occur intermittently 

in the Georgia Basin and Puget Sound 

part of this time, but its location during 

apparent absences is uncertain 

(Osborne, 1999). One sighting of this 

pod was made off Cape Flattery, 

Washington, in March 2004 (Krahn et 

al., 2004). Prior to 1999, K and L pods 

followed a general pattern in which they 

spent progressively smaller amounts of 

time in inland waters during October 

and November and departed them 

entirely by December of most years 

(Osborne, 1999). Sightings of both 

groups passing through the Strait of 

Juan de Fuca in late fall suggested that 

activity shifted to the outer coasts of 

Vancouver Island and Washington 

(Krahn et al., 2002), although it is 

unclear if the whales spend a 

substantial portion of their time in this 

area or simply transit to other locations. 


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While there are considerable data on 

the use of inland waters of Washington, 

there is very little information on the 

movements of Southern Resident killer 

whales off the coast. Areas of activity of 

all pods are virtually unknown during 

their absences from inland waters. In 

the last 30 years of study, there are only 

28 confirmed sightings in outside waters 

(Krahn et al., 2004; NWFSC unpubl. 

data). The majority of these sightings 

were opportunistic, with most occurring 

within 10 miles (16.1 km) of shore, and 

we do not know how far from shore the 

Southern Residents range. Several new 

sightings occurred during the last five 

years, when effort was increased with 

dedicated ship surveys and expanded 

volunteer coastal sighting networks. Our 

knowledge of the southern and northern 

boundaries of the range has expanded 

with these new sightings from California 

and the Queen Charlotte Islands in 

recent years. At this time there are few 

data on how the whales are using 

offshore areas; however, some of the 

sightings included observations of 

feeding. 

There is an active research effort 

underway to identify coastal and 

offshore distribution of Southern 

Residents. We have increased outreach 

efforts to gather sighting information 

from coastal communities, vessel 

operators, and pilots along the coasts of 

Oregon, Washington, and British 

Columbia. In addition, researchers are 

conducting dedicated ship surveys to 

locate the whales and observe their 

activities outside of Puget Sound. The 

research program is a long-term effort, 

but we hope to greatly increase the 

number of coastal observations in the 

next five years. As new information is 

collected on the coastal and offshore 

distribution and habitat use, we hope to 

fill in the data gaps about the important 

habitat features of these coastal and 

offshore areas. 

NMFS regulations at 50 CFR 424.12(h) 

state: ‘‘Critical habitat shall not be 

designated within foreign countries or 

in other areas outside of United States 

jurisdiction.’’ Although the Southern 

Residents′ range includes inland waters 

of Canada, we are not proposing these 

areas for designation. 

Specific Areas within the Geographical 

Area Occupied by the Species 

We reviewed the available 

information on Southern Resident 

distribution, habitat use, and habitat 

needs in a biological report to assist in 

identifying critical habitat (NMFS, 

2006a). Within the geographical area 

occupied by the Southern Resident 

killer whales we have identified three 

specific areas that contain essential 

habitat features. We have divided the 

inside waters of Washington State into 

specific areas based on the habitat 

features and the use patterns of the 

Southern Resident killer whales. 

We analyzed Southern Resident killer 

whale sightings data from The Whale 

Museum (Osborne, 2005; The Whale 

Museum Orca Master, 1990–2003) to 

assist in identifying specific areas based 

on habitat use patterns by the whales. 

The Whale Museum data are 

predominantly opportunistic sightings 

from a variety of sources, including 

public reports, commercial whale 

watching industry pager system, 

Soundwatch, Lime Kiln State Park landbased observations, and compilations of 

independent researcher reports. The 

whales are identified as belonging to a 

particular pod when possible, and 

sightings of transient or offshore whales 

are not included in the database. The 

data set does not account for level of 

effort by season or location, and, 

therefore, the sampling and data are 

biased (Osborne, 2005). The 1990–2003 

Whale Museum data set is, however, the 

most comprehensive long-term data 

available to evaluate broad-scale whale 

distribution in inland waters at this time 

(with a total number of sighting records 

of 22,509). In order to evaluate 

frequency of use, our analysis of the 

sightings was limited to one unique 

location sighting, per location, per day 

to reduce the bias introduced by 

multiple sightings of the same whales in 

the same location on the same day (total 

number of unique sightings per day is 

11,836). For the majority of the killer 

whale sightings the location reported 

was not an exact point location (Lat./ 

Long.), and all locations were 

subsequently assigned to a center point 

in a quadrant system (Osborne, 2005). 

Almost half of the data is from the 

Whale Watch pager system created by 

the commercial whale watch industry 

and available to subscribers. A 

validation of recent pager data revealed 

greater than 90 percent accuracy in 

locating whales (Hauser et al., 2006). 

From the sightings and other data, we 

identified three ‘‘specific areas,’’ within 

the geographical area occupied by the 

species, that contain PCEs. We 

considered presence and movements of 

the whales, behavioral observations and 

studies, and other information to verify 

that one or more of the physical or 

biological features, or PCEs, can be 

found in these three areas. In some cases 

where direct data on PCEs were not 

available, we relied on distribution 

patterns of the whales to infer presence 

of PCEs. 

Area 1. Core Summer Area - Bordered 

to the North and West by the U.S./ 

Canadian border, Area 1 includes the 

waters surrounding the San Juan 

Islands, the U.S. portion of the Southern 

Strait of Georgia, and areas directly 

offshore of Skagit and Whatcom 

counties. Prey species, one of the PCEs, 

are present in Area 1. Runs of salmon 

passing through Area 1 include 

Chinook, chum, coho, pink, and sockeye 

salmon, which have all been identified 

as prey for Southern Residents (Ford et 

al., 1998; Ford and Ellis, 2005; NWFSC, 

unpubl. data). The Strait of Juan de 

Fuca, Haro Strait, and Georgia Strait are 

relatively narrow channels and 

concentrate salmon returning from the 

Pacific Ocean to spawn in U.S. and 

Canadian rivers. In particular, Area 1 

lies near the mouth of the Fraser River, 

which has the largest salmon runs in the 

Georgia Basin/Puget Sound region 

(Northcote and Atagi, 1997). 

Occurrence of Southern Residents in 

Area 1 coincides with concentrations of 

salmon. Southern Resident killer whales 

have been sighted in Area 1 during 

every month of the year, but sightings 

are more consistent and concentrated in 

the summer months of June through 

August. The Whale Museum database 

from 1990–2003 contains 11,836 unique 

sightings after duplicate locations on the 

same date are excluded. Of these, 8,508 

are in U.S. waters, and 85 percent of the 

U.S. sightings are in Area 1. Although 

sighting effort in Area 1 is extensive 

during the summer months as compared 

to other areas, which biases the data, the 

strength of the summer use pattern 

would undoubtedly persist if 

accounting for sighting effort. The 

largest number of sightings in 

Washington′s inland waters is from 

Haro Strait off the west side of San Juan 

Island. There are over 1,200 unique 

sightings from 1990–2003 in one 

quadrant off the west side of San Juan 

Island. 

Much of the behavioral research on 

Southern Residents takes place within 

Area 1. Southern Residents are observed 

exhibiting a variety of behaviors in this 

area, including travel, forage, social, and 

play behaviors. Resident whales spend 

50–67 percent of their time foraging 

(Heimlich Boran, 1988; Ford, 1989; 

Morton, 1990; Felleman et al., 1991). 

Opportunities to forage are presumed to 

be a major factor attracting Southern 

Residents to Area 1, particularly in the 

summer months when it is considered 

a primary feeding area for all three pods 

(J, K, and L). 

Area 2. Puget Sound - south from 

Deception Pass Bridge, entrance to 

Admiralty Inlet, Hood Canal Bridge. 

Southern Resident killer whale 

occurrence in Area 2 has been 

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related PCE. Feeding has been observed 

in Area 2 (NWFSC, unpubl. data), 

though few behavioral studies have 

been conducted in this area. During the 

fall, Southern Residents, especially J 

pod, expand their movements into Puget 

Sound, likely taking advantage of chum 

and Chinook salmon runs (Osborne, 

1999). A fall chum run was suggested as 

the likely reason for an extended 

presence of members of L pod in Dyes 

Inlet during October and November of 

1997. 

Southern Resident killer whales have 

been sighted in parts of Area 2 in all 

seasons despite limited search effort. 

The presence of Southern Residents in 

Area 2 is intermittent, with the smallest 

number of sightings in May-July. There 

are different sighting patterns in Area 2 

for the three pods. In the most southern 

portion of Area 2, south of Tacoma 

Narrows Bridge, there have been only a 

small number of Southern Resident 

sightings from October-January, with 

one additional sighting in April. 

Area 3. Strait of Juan de Fuca - 

Deception Pass Bridge, San Juan and 

Skagit County lines to the northeast, 

entrance to Admiralty Inlet to the 

southeast, U.S./Canadian border to the 

north, Bonilla Point/Tatoosh Island line 

to the West. All pods regularly use the 

Strait of Juan de Fuca for passage from 

Areas 1 and 2 to outside waters in the 

Pacific Ocean. Area 3 is predominantly 

a passage used to access outer coastal 

water feeding grounds, including 

Swiftsure and La Perouse Banks, off 

Tofino, British Columbia, and off 

Westport, as well as other areas with 

unknown usage, such as the coast of 

northern California. Recent observations 

at Westport coincided with presence of 

a spring Chinook salmon run, although 

other species were also likely present 

(NWFSC, unpubl. data). The presence of 

migrating salmonids in the Strait of Juan 

de Fuca suggests that feeding might 

occur during times the whales are 

transiting. However, the whales are not 

known to spend long periods in 

localized areas in the Strait. Sightings of 

the Southern Residents in Area 3 are 

limited, particularly on the U.S. side of 

the international boundary, as there is 

little observation effort in the area, 

particularly to the west toward the 

Bonilla Point/Tatoosh Island line. Even 

with a small number of actual sightings, 

we can infer that the whales are using 

this corridor, and the passage PCE is 

present in Area 3 based on the inland 

and coastal sightings of whales. The 

Strait of Juan de Fuca is not the only 

transit corridor between inland waters 

and coastal British Columbia, and the 

whales occasionally use the Strait of 

Georgia and Johnstone Strait in 

Canadian waters as an alternate route. 

Special Management Considerations 

The specific areas within the 

geographical area occupied by a species 

meet the definition of critical habitat 

only if they contain physical or 

biological features that ‘‘may require 

special management considerations or 

protection.’’ Agency regulations at 50 

CFR 424.02(j) define ‘‘special 

management considerations or 

protection’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ Several forms of human 

activity have the potential to affect the 

habitat of killer whales and, specifically, 

the PCEs that are essential to their 

conservation. 

Most salmon stocks throughout the 

Northwest are at a fraction of their 

historic levels. Historically, overfishing 

was a major cause of decline. More 

recently the major cause is loss of 

freshwater habitat. Poor ocean 

conditions over the past two decades 

reduced populations already weakened 

by the degradation and loss of 

freshwater and estuary habitat, fishing 

pressures, hydropower system 

management, and hatchery practices. 

Continued regulation of contaminants 

and pollution in Puget Sound is also 

necessary to protect the prey PCE for 

Southern Residents through 

management schemes, such as the 

National Pollutant Discharge 

Elimination System (NPDES). 

Contaminants enter marine waters and 

sediments from numerous sources, but 

are typically concentrated near areas of 

high human population and 

industrialization. Once in the 

environment these substances proceed 

up the food chain, accumulating in 

long-lived top predators like Southern 

Resident killer whales. Chemical 

contamination through the food chain 

continues to be a potential threat to 

Southern Resident killer whales, despite 

the enactment of modern pollution 

controls in recent decades, which were 

successful in reducing, but not 

eliminating, the presence of many 

contaminants in the environment. 

Oil spills are another source of 

contamination that can have longlasting impacts on habitat (although the 

primary concern with oil spills is the 

potential for direct injury to the whales). 

The Environmental Protection Agency 

and U.S. Coast Guard oversee the Oil 

Pollution Prevention regulations 

promulgated under the authority of the 

Federal Water Pollution Control Act. 

There is a Northwest Area Contingency 

Plan, developed by the Northwest Area 

Committee, which serves as the primary 

guidance document for oil spill 

response in Washington and Oregon. 

Southern Residents are highly mobile 

and use a variety of areas for foraging 

and other activities, as well as for 

traveling between these areas. Human 

activities can interfere with movements 

of the whales and impact the passage 

PCE. In particular, vessels may present 

obstacles to whale passage, causing the 

whales to swim further and change 

direction more often, which potentially 

increases energy expenditure for whales 

and impacts foraging behavior (although 

this effect of vessels is primarily a direct 

effect on the whales rather than an effect 

on their habitat). 

The PCEs identified for this 

designation may require special 

management considerations or 

protection. Fishery management, vessel 

activities, and water quality 

management are all activities that have 

the potential to affect the PCEs by 

altering prey abundance, prey 

contamination levels, and passage 

between areas. The proposed rule 

included information regarding which 

features may require special 

management considerations or 

protection for each of the three specific 

areas designated as critical habitat (71 

FR 34571; June 15, 2006). 

Coastal and Offshore Areas 

We have few data on Southern 

Resident distribution and habitat use of 

coastal and offshore areas in the Pacific 

Ocean. While we know that the whales 

occupy these waters for a portion of the 

year and they are considered part of the 

geographical area occupied by the 

species, we do not have detailed 

information about distribution, 

behavior, and habitat. While we can 

infer that some of the PCEs, such as 

prey, must be present to support the 

whales, we do not have sufficient data 

to describe them adequately and 

identify ′′specific areas′′ with those 

features. Based on the difficulties of 

determining the presence of the PCEs in 

specific offshore areas, we cannot assess 

the human activities affecting them or 

the special management considerations 

for their protection. At this time we are 

not designating coastal or offshore areas, 

though we do recognize that they are 

important for the Southern Resident 

killer whales. There is an active 

research program to fill the data gaps 

regarding coastal and offshore 

distribution and habitat features, and we 

anticipate obtaining additional data in 

the coming years. We will consider new 

information as it becomes available to 


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inform future considerations of critical 

habitat for Southern Residents. 

Unoccupied Areas 

ESA section 3(5)(A)(ii) further defines 

critical habitat to include ‘‘specific areas 

outside the geographical area occupied’’

if the areas are determined by the 

Secretary to be ‘‘essential for the 

conservation of the species.’’

Regulations at 50 CFR 424.12(e) specify 

that NMFS ‘‘shall designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species.’’

At the present time we have not 

identified any areas outside the 

geographical area occupied by the 

species that are essential for its 

conservation, and, therefore, we are not 

designating any unoccupied areas. 

Activities That May be Affected 

Section 4(b)(8) of the ESA requires 

that we describe briefly and evaluate, in 

any proposed or final regulation to 

designate critical habitat, those 

activities that may destroy or adversely 

modify such habitat or that may be 

affected by such designation. A wide 

variety of activities may affect critical 

habitat and, when carried out, funded, 

or authorized by a Federal agency, 

require an ESA section 7 consultation. 

Such activities include, but are not 

limited to, fishery management 

practices, vessel traffic, dredging and 

disposal, sub-marine cable/pipeline 

installation and repair, oil and gas 

exploration, pollutant discharge, and oil 

spill prevention and response. 

This critical habitat designation will 

provide Federal agencies, private 

entities, and the public with clear 

notification of critical habitat for 

Southern Resident killer whales and the 

boundaries of the habitat. This 

designation will also assist Federal 

agencies and others in evaluating the 

potential effects of their activities on 

critical habitat and in determining if 

ESA section 7 consultation with NMFS 

is needed. Consistent with recent 

agency guidance on conducting adverse 

modification analyses (NMFS, 2005), we 

will apply the statutory provisions of 

the ESA, including those in section 3 

that define ‘‘critical habitat’’ and 

‘‘conservation,’’ to determine whether a 

proposed action might result in the 

destruction or adverse modification of 

critical habitat. 

Application of ESA Section 4(b)(2) 

Section 4(b)(2) of the ESA provides 

that the Secretary shall consider certain 

impacts before designating critical 

habitat: ‘‘the Secretary shall designate 

critical habitat . . . on the basis of the 

best scientific data available and after 

taking into consideration the economic 

impact, impact to national security, and 

any other relevant impact of specifying 

any particular area as critical habitat.’’

The Secretary has the discretion to 

exclude an area from designation if he 

determines the benefits of exclusion 

(that is, avoiding the impact that would 

result from designation) outweigh the 

benefits of designation based upon best 

scientific and commercial data. The 

Secretary may not exclude an area from 

designation if exclusion will result in 

the extinction of the species. Because 

the authority to exclude is discretionary, 

exclusion is not required for any area. 

Section 4(b)(2) of the ESA calls for 

balancing the benefits of designation 

against the economic, national security, 

and other benefits of exclusion, and our 

considerations under section 4(b)(2) 

were described in the proposed rule and 

in a supporting report (NMFS, 2006c). 

We considered the conservation benefits 

to the species of designating areas, the 

economic benefits of excluding each of 

the three areas, and the national security 

benefits of excluding 18 particular 

military sites owned or controlled by 

the DOD. 

Benefits of Designation 

The primary benefit of designation is 

that section 7 of the ESA requires all 

Federal agencies to ensure their actions 

are not likely to destroy or adversely 

modify the designated habitat. This is in 

addition to the requirement that all 

Federal agencies ensure their actions are 

not likely to jeopardize the species′ 

continued existence. Another benefit of 

designation is that it provides notice of 

areas and features important to species 

conservation, and information about the 

types of activities that may reduce the 

conservation value of the habitat, which 

can be effective for education and 

outreach. Critical habitat designation 

may also trigger protection under state 

or local regulations. 

In addition to the direct benefits of 

critical habitat designation to the killer 

whales, there may be ancillary benefits. 

These other benefits may be economic 

in nature, or they may be expressed 

through beneficial changes in the 

ecological functioning of Puget Sound. 

For example, Puget Sound supports an 

active whale watching industry, and so 

an increase in the killer whale 

population could increase the economic 

value of that activity. Another example 

could be the increased viability of Puget 

Sound salmon populations if their 

harvest is reduced to assure a larger 

prey supply for killer whales. Yet 

another example could be reduced 

levels of pollution in Puget Sound. 

At this time we lack information that 

would allow us either to quantify or 

monetize the benefits of designation for 

the whales, and have determined the 

qualitative conservation benefits of 

designating each of the three particular 

areas identified as critical habitat for 

Southern Residents. We assessed the 

benefit of designating the three areas 

based on: the physical or biological 

features of each area, the Southern 

Residents′ use of each area (including 

how frequently they are present), the 

Federal activities in each area that might 

trigger an ESA section 7 consultation, 

the likelihood that we would seek a 

modification of those activities, the 

strength of the connection between 

those activities and habitat 

modification, and educational effects of 

designation. These considerations for 

each area are summarized in tables in 

the 4(b)(2) report (NMFS, 2006c) and the 

proposed rule (71 FR 34571; June 15, 

2006). 

The benefit of designation also 

depends on the inherent conservation 

value of the area. The habitat areas for 

these killer whales are unique and 

irreplaceable. It is difficult to separate 

the value of any one of the areas: each 

of the three areas supports a distinct 

aspect of the whales′ life history, and 

the conservation function of each area 

complements the conservation function 

of the others. Therefore, designation of 

each particular area benefits the 

conservation function of the other areas. 

For all of the reasons discussed, we 

consider the benefit of designation of 

each area to be high. 

Economic Impacts (Economic Benefits 

of Exclusion) 

An economic report describes in 

detail the actions we assumed may be 

affected, the potential range of changes 

we might seek in those actions, and the 

estimate of economic impacts that might 

result from such changes. For salmon 

fishing, we considered it too speculative 

to predict any particular level of 

reduction, and so considered the total 

value of salmon fishing in Puget Sound. 

If any reduction in fishing were to be 

required as a result of critical habitat 

designation, it would be some portion of 

that total. We considered it too 

speculative at this time to postulate 

likely consultations on water quality 

management actions, and what changes 

we might seek in those actions. 

Although we were only able to quantify 

the baseline for any economic impacts 

for potential modifications to fishing, 

this does not imply that harvest is the 

most important activity affecting the 


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abundance of the salmon PCE. As noted 

previously, salmon abundance is 

affected by a host of activities, which 

would be considered in ESA section 7 

consultations. In the ESA section 4(b)(2) 

report we acknowledge that there are 

additional costs for programs associated 

with salmon conservation and and 

habitat restoration aside from costs 

associated with any harvest reduction, 

although we could not attribute these 

costs to the designation of critical 

habitat for southern resident killer 

whales. In addition, if fisheries were 

impacted, any potential reductions in 

harvest would be evaluated to ensure 

that they were consistent with the ESA, 

treaty fishing rights, treaty trust 

obligations, and relevant court cases. 

Balancing the Benefits and Economic 

Impacts of Designation 

Section 4(b)(2) of the ESA requires 

that we balance the benefit of critical 

habitat designation against the 

economic benefit of exclusion for each 

particular area. The benefit to the 

species of designation depends upon the 

inherent conservation value of the area, 

the seriousness of the threats to that 

conservation value, and the extent to 

which an ESA section 7 consultation or 

the educational aspects of designation 

will address those threats. If a threat 

bears a closer relationship to the adverse 

modification prohibition of section 7, 

we can begin to understand and give 

weight to the incremental benefit of 

designation beyond the protection 

provided by listing and the jeopardy 

prohibition. We have identified the 

threats that face each area and the 

likelihood that the adverse modification 

prohibition will enhance our ability to 

address those threats. 

We listed the whales as endangered, 

citing, among other reasons, ‘‘the 

ongoing and potentially changing nature 

of pervasive threats, in particular, 

disturbance from vessels, the 

persistence of legacy toxins and the 

addition of new ones into the whales’

environment, and the potential limits on 

prey availability (primarily salmon) 

given uncertain future ocean 

conditions.’’ As described above, 

designation of critical habitat will 

enhance our ability to address some of 

these threats, either through an ESA 

section 7 consultation or through 

ongoing public outreach and education. 

Because some of these threats bear a 

stronger relationship to adverse 

modification than to jeopardy, we also 

believe there is an incremental benefit 

of designation beyond the protection 

afforded by the jeopardy prohibition. 

As stated above, the benefit of 

designation also depends on the 

inherent conservation value of the area. 

The habitat areas for these killer whales 

are unique and irreplaceable. It is 

difficult to separate the value of any one 

of the areas: each of the three areas 

supports a distinct aspect of the whales′ 

life history, and the conservation 

function of each area complements the 

conservation function of the others. 

Therefore, designation of each particular 

area benefits the conservation function 

of the other areas. For all of the reasons 

discussed above, we consider the 

benefit of designation of each area to be 

high. 

The benefit of exclusion of an area 

depends on some of the same factors - 

the likelihood of an ESA section 7 

consultation and the extent to which an 

activity is likely to change as a result of 

that consultation. As with the benefit of 

designation side of the equation, if a 

threat bears a closer relationship to the 

adverse modification prohibition of 

section 7, we can begin to understand 

and give weight to the incremental cost 

of designation (benefit of exclusion) 

beyond the cost associated with listing 

and the jeopardy prohibition. In 

balancing the potential costs of 

designation, we also considered the 

nature of the threats and the relevance 

of section 7′s adverse modification 

prohibition to each threat. Because 

adverse modification and jeopardy bear 

an equally strong relationship to fishing, 

and because some changes in fishing are 

likely as a result of consultation, we 

gave these costs of designation moderate 

weight. We recognize that adverse 

modification bears the strongest 

relationship to water quality 

management, but we presently lack 

sufficient data to estimate an economic 

impact. We also recognize that we have 

not monetized (quantified) the costs that 

may be associated with the education 

benefit of designation with respect to 

vessel traffic. 

We conclude that the economic 

benefits of excluding each particular 

area do not outweigh the conservation 

benefits of designating each particular 

area as critical habitat, given the 

endangered status of the whales, the 

uniqueness of the habitat, the fact that 

threats to habitat were a primary 

concern leading to our endangered 

finding, and the fact that designation 

will enhance the ability of an ESA 

section 7 consultation to protect the 

habitat. 

Impacts on National Security 

Prior to listing Southern Resident 

killer whales under the ESA, we 

contacted the DOD by letter and 

identified 18 military sites, previously 

addressed during salmon and steelhead 

habitat designations, that potentially 

overlapped with areas under 

consideration for Southern Resident 

killer whale critical habitat: (1) Naval 

Undersea Warfare Center, Keyport; (2) 

Naval Ordnance Center, Port Hadlock 

(Indian Island); (3) Naval Fuel Depot, 

Manchester; (4) Naval Air Station, 

Whidbey Island; (5) Naval Station 

Everett; (6) Naval Hospital Bremerton; 

(7) Fort Lewis (Army); (8) Pier 23 

(Army); (9) Puget Sound Naval Ship 

Yard; (10) Strait of Juan de Fuca naval 

air-to-surface weapon range, restricted 

area; (11) Strait of Juan de Fuca and 

Whidbey Island naval restricted areas; 

(12) Admiralty Inlet naval restricted 

area; (13) Port Gardner Naval Base 

restricted area; (14) Port Orchard 

Passage naval restricted area; (15) 

Sinclair Inlet naval restricted area; (16) 

Carr Inlet naval restricted area; (17) Port 

Townsend/Indian Island/Walan Point 

naval restricted area; and (18) Crescent 

Harbor Explosive Ordnance Units 

Training Area. 

These 18 military sites overlap with 

areas we found to meet the definition of 

critical habitat for the Southern 

Resident killer whale DPS. These 18 

sites include shore-based facilities, 

nearshore areas around structures such 

as docks and piers, and offshore areas in 

Puget Sound where the Navy has 

security restrictions, and they cover 

approximately 112 square miles (291 sq 

km) out of the total 2,687 square miles 

(6,959 sq km) under consideration as 

critical habitat for Southern Residents. 

The total area considered was 

recalculated for the final rule and was 

updated from 2,676 square miles (6,931 

sq km) in the proposed rule, to 2,687 

square miles (6,959 sq km) for the final 

rule. The shore-based sites cover 81 

miles (130 km) of shoreline out of the 

total 2,081 miles (3,349 km) of shoreline 

considered for critical habitat 

designation. 

The DOD confirmed that the 18 sites 

are owned or controlled by the DOD, 

identified the types of military activities 

that take place in the areas, and 

provided an assessment as to whether 

designation of critical habitat would 

affect military readiness. The Army and 

Navy concluded that critical habitat 

designation at any of these sites would 

likely impact national security by 

diminishing military readiness. The 

DOD requested that we consider 

conducting an ESA section 4(b)(2) 

analysis to determine whether all of the 

sites could be excluded from 

designation because the benefits of 

exclusion outweigh the benefits of 

designation. The possible impacts to 

national security include: preventing, 

restricting, or delaying training or 


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testing exercises or access to sites; 

restricting or delaying activities 

associated with vessel/facility 

maintenance and ordnance loading; and 

delaying response times for ship 

deployments and overall operations. 

Balancing the Benefits of Designation 

with National Security Impacts 

The benefit of excluding these 

particular areas is that the DOD would 

only be required to comply with the 

jeopardy prohibition of ESA section 

7(a)(2) and not the adverse modification 

prohibition. The DOD maintains that the 

additional commitment of resources in 

completing an adverse modification 

analysis, and any change in its activities 

to avoid adverse modification of critical 

habitat, would likely reduce its 

readiness capability. Given that the 

DOD is currently actively engaged in 

training, maintaining, and deploying 

forces in the current war effort, this 

reduction in readiness could reduce the 

ability of the military to ensure national 

security. 

We assessed the benefit of designating 

these areas of overlap based on: the 

physical or biological features of each 

area, the Southern Residents’ use of 

each area (including how frequently 

they are present), the Federal activities 

in each area that might trigger an ESA 

section 7 consultation, the likelihood 

that we would seek a modification of 

those activities, and the strength of the 

connection between those activities and 

habitat modification. The benefit of 

designation is that the section 7 

requirement regarding adverse 

modification would focus our section 7 

consultations on essential physical and 

biological features of the whales’

habitat, particularly where the Federal 

activity has a more direct impact on 

habitat features and a less direct impact 

on individual killer whales. 

We considered the overlap of killer 

whale habitat within the boundaries of 

military sites; the conservation value of 

that habitat; and the types of Federal 

activities in those areas that would 

likely undergo ESA section 7 

consultation. We also considered the 

high priority placed on national 

security, the potential for critical habitat 

designation to have some impact on 

military readiness, and the fact that, 

collectively, these areas represent 

relatively small percentages of the total 

habitat and none of them are located in 

Area 1, the core summer area. Based on 

our consideration of these factors, we 

conclude that the national security 

benefits of exclusion outweigh the 

conservation benefits of designation for 

each of the 18 sites, and we are not 

designating these DOD sites as critical 

habitat. 

ESA Section 4(b)(2) Conclusions 

We conclude that the economic 

benefits of excluding each particular 

area do not outweigh the conservation 

benefits of designating each particular 

area as critical habitat, given the 

endangered status of the whales, the 

uniqueness of the habitat, the fact that 

threats to habitat were a primary 

concern leading to our endangered 

finding, and the fact that designation 

will enhance the ability of an ESA 

section 7 consultation to protect the 

habitat. 

We considered the overlap of killer 

whale habitat within the boundaries of 

military sites; the conservation value of 

that habitat; and the types of Federal 

activities in those areas that would 

likely undergo ESA section 7 

consultation. We also considered the 

high priority placed on national 

security, the potential for critical habitat 

designation to have some impact on 

military readiness, and the fact that, 

collectively, these areas represent 

relatively small percentages of the total 

habitat and none of them are located in 

Area 1, the core summer area. Based on 

our consideration of these factors, we 

conclude that the national security 

benefits of exclusion outweigh the 

conservation benefits of designation for 

each of the 18 sites, and we are not 

designating these DOD sites as critical 

habitat. 

We did not identify other relevant 

impacts of designation beyond 

economic impacts and impacts on 

national security. 

Critical Habitat Designation 

We are designating approximately 

2,560 square miles (6,630 km) of marine 

habitat within the area occupied by 

Southern Resident killer whales in 

Washington. The proposed areas are 

occupied and contain physical or 

biological features that are essential to 

the conservation of the species and may 

require special management 

considerations or protection. Some of 

these areas overlap with military sites, 

which are not designated as critical 

habitat because they were determined to 

have national security impacts that 

outweigh the benefit of designation and 

were therefore excluded under ESA 

section 4(b)(2). We determined that the 

economic benefits of exclusion of any of 

the areas do not outweigh the benefits 

of designation, and we are therefore not 

excluding any areas based on economic 

impacts. Section 4(b)(2) does not allow 

the agency to exclude areas if exclusion 

will result in extinction of the species. 

We are excluding only a small 

percentage of the whales′ habitat 

because of impacts to national security. 

Given this small percentage, we 

conclude that the exclusion of these 

areas will not result in extinction of the 

Southern Resident killer whale DPS. No 

unoccupied areas are currently 

designated as critical habitat. 

Required Determinations 

Regulatory Planning and Review 

This final rule has been determined to 

be significant for purposes of Executive 

Order (E.O.) 12866. A final economic 

report and ESA section 4(b)(2) report 

document our consideration of 

alternatives to rulemaking as required 

by this Executive Order. We have 

analyzed the economic effects of various 

management scenarios. These are 

described in the economic report 

supporting this rulemaking, available at 

http://www.nwr.noaa.gov/. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA)(5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). We have prepared a final 

regulatory flexibility analysis (FRFA), 

which is part of the Economic Analysis 

(NMFS, 2006b). The FRFA incorporates 

the Initial Regulatory Flexibility 

Analysis (IRFA), which was part of the 

draft economic analysis that 

accompanied the proposed rule to 

designate critical habitat. The FRFA also 

incorporates comments received on the 

IRFA and on the economic impacts of 

the rule generally. Responses to 

comments are provided above in the 

preamble to the rule, and any necessary 

corresponding changes were made to 

the FRFA. The analysis is summarized 

below. 

A statement of the need for and 

objectives of this final rule is provided 

earlier in the preamble and is not 

repeated here. This final rule will not 

impose any recordkeeping or reporting 

requirements. 

At the present time, insufficient 

information exists regarding the cost 

structure and operational procedures 

and strategies in the sectors that may be 

directly impacted by the critical habitat 

designation. Further, significant 


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uncertainty exists regarding the 

activities that may trigger an ESA 

section 7 consultation or how those 

activities may be modified as a result of 

consultation. Bearing in mind these 

limitations, we considered which of the 

potential economic impacts we 

analyzed might affect small entities. 

These estimates should not be 

considered exact estimates of the 

impacts of critical habitat to individual 

businesses. There are 344 entities 

engaged in fishing activities in the 

region, 332 of which are considered 

′′small entities.′′ 

Although ESA section 7 consultations 

may also occur on water quality 

management activities, at this time it is 

too speculative to estimate the type and 

number of activities and the potential 

modifications that could result from a 

consultation. 

The RFA, as amended by SBREFA, 

requires us to consider alternatives to 

the proposed regulation that will reduce 

the impacts to small entities. We 

considered and rejected the alternative 

of not designating critical habitat for 

Southern Resident killer whales because 

such an approach does not meet the 

legal requirements of the ESA. We also 

considered alternatives in which each of 

the three critical habitat areas is 

excluded under section 4(b)(2) of the 

ESA. Each of these alternatives may 

have minimized impacts on small 

businesses by reducing consultation 

costs and potential project 

modifications necessitated pursuant to 

section 7(a)(2) of the ESA once an area 

is designated as critical habitat. As 

described earlier in this rulemaking, the 

magnitude of these impacts is difficult 

to predict. However, because we did not 

find that the economic benefits of 

exclusion outweigh the benefits of 

designation for any of the three specific 

areas, we did not have discretion to 

exclude any these areas pursuant to the 

ESA. We therefore rejected each of these 

alternatives as inconsistent with the 

ESA. 

E.O. 13211 

On May 18, 2001, the President issued 

an Executive Order on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking any 

action that promulgates or is expected to 

lead to the promulgation of a final rule 

or regulation that (1) is a significant 

regulatory action under E.O. 12866 and 

(2) is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy and find 

the designation of critical habitat will 

not have impacts that exceed the 

thresholds identified above (NMFS, 

2006b). 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: 

(a) This final rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon state, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5) (7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to state, local, and 

tribal governments under entitlement 

authority, ‘‘if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the state, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ The 

designation of critical habitat does not 

impose a legally binding duty on nonFederal government entities or private 

parties. Under the ESA, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities which receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above to state 

governments. 

(b) Due to the prohibition against take 

of this species both within and outside 

of the designated areas, we do not 

anticipate that this final rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630, the 

final rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

The designation of critical habitat 

affects only Federal agency actions. 

Private lands do not exist within the 

proposed critical habitat and therefore 

would not be affected by this action. 

Federalism 

In accordance with E.O. 13132, this 

final rule does not have significant 

federalism effects. A federalism 

assessment is not required. In keeping 

with Department of Commerce policies, 

we have requested information from, 

and will continue to coordinate this 

critical habitat designation with, 

appropriate state resource agencies in 

Washington. The designation may have 

some benefit to state and local resource 

agencies in that the areas essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary for the survival of the 

Southern Resident killer whales are 

specifically identified. While making 

this definition and identification does 

not alter where and what federally 

sponsored activities may occur, it may 

assist local governments in long-range 

planning (rather than waiting for caseby-case ESA section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with E.O. 12988, the 

Department of Commerce has 

determined that this final rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Executive Order. We 


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69068 Federal Register / Vol. 71, No. 229 / Wednesday, November 29, 2006 / Rules and Regulations 

are designating critical habitat in 

accordance with the provisions of the 

ESA. This final rule uses standard 

property descriptions and identifies the 

PCEs within the designated areas to 

assist the public in understanding the 

habitat needs of Southern Resident 

killer whales. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This final rule does not contain new 

or revised information collection for 

which OMB approval is required under 

the Paperwork Reduction Act. This final 

rule will not impose recordkeeping or 

reporting requirements on state or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act of 

1969 (NEPA) 

NMFS has determined that an 

environmental analysis as provided for 

under NEPA for critical habitat 

designations made pursuant to the ESA 

is not required. See Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995), 

cert. denied, 116 S.Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

The long-standing and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. E.O. 13175 (Consultation and 

Coordination with Indian Tribal 

Governments) outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. 

None of the designated critical habitat 

occurs on tribal lands. However, critical 

habitat does overlap with Usual and 

Accustomed hunting and fishing 

grounds. The designation of critical 

habitat for Southern Resident killer 

whales has the potential to affect tribal 

trust resources, particularly in relation 

to salmon, an important tribal resource 

and PCE for the whales. Should it be 

necessary to reduce Puget Sound 

fisheries, a reduction in tribal fisheries 

would only occur consistent with the 

principles established in the Secretarial 

Order, ‘‘American Indian Tribal Rights, 

Federal-Tribal Trust Responsibilities, 

and the Endangered Species Act.’’ We 

will continue to consult with affected 

tribes regarding designated critical 

habitat. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

website at http://www.nwr.noaa.gov/ 

and is available upon request from the 

NMFS office in Seattle, Washington (see 

ADDRESSES). 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: November 21, 2006. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set out in the 

preamble, part 226, title 50 of the Code 

of Federal Regulations is amended to 

read as follows: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 2. Add § 226.206, to read as follows: 

§ 226.206 Critical habitat for the Southern 

Resident killer whale (Orcinus orca). 

Critical habitat is designated for the 

Southern Resident killer whale as 

described in this section. The textual 

descriptions of critical habitat in this 

section are the definitive source for 

determining the critical habitat 

boundaries. The overview map is 

provided for general guidance purposes 

only, and not as a definitive source for 

determining critical habitat boundaries. 

(a) Critical Habitat Boundaries. 

Critical habitat includes three specific 

marine areas of Puget Sound, 

Washington, within the following 

counties: Clallam, Jefferson, King, 

Kitsap, Island, Mason, Pierce, San Juan, 

Skagit, Snohomish, Thurston, and 

Whatcom. Critical habitat includes all 

waters relative to a contiguous shoreline 

delimited by the line at a depth of 20 

feet (6.1 m) relative to extreme high 

water in each of the following areas: 

(1) Summer Core Area: All U.S. 

marine waters in Whatcom and San 

Juan counties; and all marine waters in 

Skagit County west and north of the 

Deception Pass Bridge (Highway 20) 

(48°24′ 25′′ N./122°38′35′′ W.). 

(2) Puget Sound Area: All marine 

waters in Island County east and south 

of the Deception Pass Bridge (Highway 

20) (48°24′ 25′′ N./122°38′35′′ W.), and 

east of a line connecting the Point 

Wilson Lighthouse (48°8′39′′ N./ 

122°45′12′′ W.) and a point on Whidbey 

Island located at 48°12′30′′ N./ 

122°44′26′′ W.; all marine waters in 

Skagit County east of the Deception Pass 

Bridge (Highway 20) (48°24′ 25′′ N./ 

122°38′35′′ W.); all marine waters of 

Jefferson County east of a line 

connecting the Point Wilson Lighthouse 

(48°8′39′′ N./122°45′12′′ W.) and a point 

on Whidbey Island located at latitude 

48°12′30′′ N./122°44′26′′ W., and north 

of the Hood Canal Bridge (Highway 104) 

(47°51′36′′ N./122°37′23′′ W.); all marine 

waters in eastern Kitsap County east of 

the Hood Canal Bridge (Highway 104) 

(47°51′36′′ N./122°37′23′′ W.); all marine 

waters (excluding Hood Canal) in 

Mason County; and all marine waters in 

King, Pierce, Snohomish, and Thurston 

counties. 

(3) Strait of Juan de Fuca Area: All 

U.S. marine waters in Clallam County 

east of a line connecting Cape Flattery, 

Washington (48°23′10′′ N./124°43′32′′ 

W.), Tatoosh Island, Washington 

(48°23′30′′ N./124°44′12′′ W.), and 

Bonilla Point, British Columbia 

(48°35′30′′ N./124°43′00′′ W.); all marine 

waters in Jefferson and Island counties 

west of the Deception Pass Bridge 

(Highway 20) (48°24′ 25′′ N./122°38′35′′ 

W.), and west of a line connecting the 

Point Wilson Lighthouse (48°8′39′′ N./ 

122°45′12′′ W.) and a point on Whidbey 

Island located at 48°12′30′′ N./ 

122°44′26′′ W. 

(b) An overview map of final critical 

habitat for the Southern Resident killer 

whale follows. 

BILLING CODE 3510–22–S 


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BILLING CODE 3510–22–C 


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(c) Primary Constituent Elements. The 

primary constituent elements essential 

for conservation of the Southern 

Resident killer whale are: 

(1) Water quality to support growth 

and development; 

(2) Prey species of sufficient quantity, 

quality, and availability to support 

individual growth, reproduction, and 

development, as well as overall 

population growth; and (3) Passage 

conditions to allow for migration, 

resting, and foraging. 

(d) Sites owned or controlled by the 

Department of Defense. Critical habitat 

does not include the following areas 

owned or controlled by the Department 

of Defense, or designated for its use, in 

the State of Washington, including 

shoreline, nearshore areas around 

structures such as docks and piers, and 

marine areas: 

(1) Naval Undersea Warfare Center, 

Keyport; 

(2) Naval Ordnance Center, Port 

Hadlock (Indian Island); 

(3) Naval Fuel Depot, Manchester; 

(4) Naval Air Station, Whidbey Island; 

(5) Naval Station, Everett; 

(6) Naval Hospital Bremerton; 

(7) Fort Lewis (Army); 

(8) Pier 23 (Army); 

(9) Puget Sound Naval Ship Yard; 

(10) Strait of Juan de Fuca naval airto-surface weapon range, restricted area; 

(11) Strait of Juan de Fuca and 

Whidbey Island naval restricted areas; 

(12) Admiralty Inlet naval restricted 

area; 

(13) Port Gardner Naval Base 

restricted area; 

(14) Port Orchard Passage naval 

restricted area; 

(15) Sinclair Inlet naval restricted 

area; 

(16) Carr Inlet naval restricted area; 

(17) Port Townsend/Indian Island/ 

Walan Point naval restricted area; and 

(18) Crescent Harbor Explosive 

Ordnance Units Training Area. 

[FR Doc. 06–9453 Filed 11–28–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 060808213–6300–02; I.D. 

073106C] 

RIN 0648–AU56 

Magnuson-Stevens Act Provisions; 

Fisheries of the Northeastern United 

States; Northeast Multispecies 

Fishery; 2006 Georges Bank Cod Fixed 

Gear Sector Operations Plan and 

Agreement and Allocation of Georges 

Bank Cod Total Allowable Catch 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS announces partial 

approval of an Operations Plan and 

Sector Contract titled ‘‘GB Cod Fixed 

Gear Sector Operations Plan and 

Agreement’’ (together referred to as the 

Sector Operations Plan), and the 

associated allocation of Georges Bank 

(GB) cod, consistent with regulations 

implementing Amendment 13, as 

modified by Framework Adjustment 

(FW) 42 to the Northeast (NE) 

Multispecies Fishery Management Plan 

(FMP) for fishing year (FY) 2006. The 

intent of this action is to allow regulated 

harvest of NE multispecies by the GB 

Cod Fixed Gear Sector (Fixed Gear 

Sector), consistent with the objectives of 

the FMP. 

DATES: Effective November 22, 2006, 

through April 30, 2007. 

ADDRESSES: Copies of the Sector 

Operations Plan and the Environmental 

Assessment (EA) are available upon 

request from the NE Regional Office at 

the following mailing address: George 

H. Darcy, Assistant Regional 

Administrator for Sustainable Fisheries, 

NMFS, Northeast Regional Office, 1 

Blackburn Drive, Gloucester, MA 01930. 

These documents may also be requested 

by calling (978) 281–9315. 

FOR FURTHER INFORMATION CONTACT: 

Mark Grant, Fishery Management 

Specialist, phone (978) 281–9145, fax 

(978) 281–9135, e-mail 

Mark.Grant@NOAA.gov. 

SUPPLEMENTARY INFORMATION: The final 

rule implementing Amendment 13 to 

the FMP (69 FR 22906, April 27, 2004) 

specified a process for the formation of 

sectors within the NE multispecies 

fishery and the allocation of total 

allowable catch (TAC) or days-at-sea 

(DAS) for specific NE multispecies, 

implemented restrictions that apply to 

all sectors, and authorized the first 

sector of the FMP (the GB Cod Hook 

Gear Sector). The final rule 

implementing FW 42 (71 FR 62156, 

October 23, 2006) creates the Fixed Gear 

Sector, the second approved sector of 

the FMP. Creation of the Fixed Gear 

Sector authorizes the Regional 

Administrator to allocate a GB cod TAC 

to the Fixed Gear Sector and exempt 

members from FMP restrictions on an 

annual basis. 

In accordance with the regulations 

that specify the process of sector 

approval, and in anticipation of 

approval of the Fixed Gear Sector, the 

Fixed Gear Sector submitted an initial 

version of the Sector Operations Plan 

and EA to NMFS on February 1, 2006. 

A final version was submitted on 

September 18, 2006. According to these 

documents, the Fixed Gear Sector will 

be overseen by a Board of Directors and 

a Sector Manager. Consistent with 

Amendment 13, the cod TAC for the 

Fixed Gear Sector is based upon the 

number of participants and their 

historic landings of GB cod. In addition, 

participating vessels will be required to 

fish under their Amendment 13 DAS 

allocations to account for any incidental 

groundfish species that they may catch 

while fishing for GB cod. The GB cod 

TAC is a ‘‘hard’’ TAC, meaning that, 

once the TAC is reached, Fixed Gear 

Sector vessels may not fish under a 

DAS, possess or land GB cod or other 

regulated species managed under the 

FMP (regulated species), or use gear 

capable of catching groundfish (unless 

fishing under charter/party or 

recreational regulations) for the 

remainder of the fishing year. 

Each Fixed Gear Sector member will 

be required to fish with jigs, demersal 

longline, handgear or gillnets; remain in 

the Fixed Gear Sector for the entire 

fishing year; and be confined to fishing 

in the Sector Area, which is that portion 

of the GB cod stock area north of 39o 

00’ N. lat. and east of 71o 40’ W. long. 

Fixed Gear Sector members will be 

required to comply with all pertinent 

Federal fishing regulations, unless 

specifically exempted by a Letter of 

Authorization (LOA), and with the 

provisions of the approved Operations 

Plan. Fixed Gear Sector members will be 

exempted from the GB cod possession 

limits, the requirements of the GOM cod 

trip limit exemption program, and the 

GB Seasonal Closure Area (when fishing 

with hook gear). 

On August 22, 2006, a proposed rule 

was published in the Federal Register 

(71 FR 48903) that requested comments 

on the Operations Plan and EA. The 


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