35062 Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 224 and 226 

[Docket No. 120815341–8396–02] 

RIN 0648–BC45 

Endangered and Threatened Wildlife 

and Plants: Final Rulemaking To 

Designate Critical Habitat for the Main 

Hawaiian Islands Insular False Killer 

Whale Distinct Population Segment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, NMFS, issue a final rule 

to designate critical habitat for the Main 

Hawaiian Islands (MHI) insular false 

killer whale (IFKW) (Pseudorca 

crassidens) distinct population segment 

(DPS) by designating waters from the 

45-meter (m) depth contour to the 3,200- 

m depth contour around the main 

Hawaiian Islands from Niihau east to 

Hawaii, pursuant to section 4 of the 

Endangered Species Act (ESA). We have 

excluded 14 areas (one area, with two 

sites, for the Bureau of Ocean Energy 

Management (BOEM) and 13 areas 

requested by the Navy) from the critical 

habitat designation because we have 

determined that the benefits of 

exclusion outweigh the benefits of 

inclusion, and exclusion will not result 

in extinction of the species. 

Additionally, the Ewa Training 

Minefield and the Naval Defensive Sea 

Area are precluded from designation 

under section 4(a)(3) ofthe ESA because 

they are managed under the Joint Base 

Pearl Harbor-Hickam Integrated Natural 

Resource Management Plan that we find 

provides a benefit to the MHI IFKW. 

DATES: This rule becomes effective 

August 23, 2018. 

ADDRESSES: The final rule, maps, and 

other supporting documents (Economic 

Report, ESA Section 4(b)(2) Report, and 

Biological Report) can be found on the 

NMFS Pacific Island Region’s website at 

http://www.fpir.noaa.gov/PRD/prd_

mhi_false_killer_whale.html#critical_

habitat. 

FOR FURTHER INFORMATION CONTACT: 

Susan Pultz, NMFS, Pacific Islands 

Region, Chief, Conservation Planning 

and Rulemaking Branch, (808) 725– 

5150; or Lisa Manning, NMFS, Office of 

Protected Resources (301) 427–8466. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 28, 2012, the listing of 

the MHI IFKW (Pseudorca crassidens) 

DPS as endangered throughout its range 

under the ESA became effective. The 

listing cited the population’s high 

extinction risk and insufficient 

conservation efforts in place to reduce 

that risk (77 FR 70915; November 28, 

2012). With approximately 150 

individuals, small population size and 

incidental take (hooking or 

entanglements) in commercial and 

recreational fisheries are the highest 

threats to this DPS. However, other 

medium-level threats such as 

environmental contaminants, 

competition with fisheries for food, 

effects from climate change, and 

acoustic disturbance may also play a 

role in impeding recovery (NMFS 2016). 

Under section 4 of the ESA, critical 

habitat shall be specified to the 

maximum extent prudent and 

determinable at the time a species is 

listed as threatened or endangered (16 

U.S.C. 1533(b)(6)(C)). In the final listing 

rule, we stated that critical habitat was 

not determinable at the time of the 

listing, because sufficient information 

was not currently available on the 

geographical area occupied by the 

species, the physical and biological 

features essential to conservation, and 

the impacts of the designation (77 FR 

70915; November 28, 2012). Under 

section 4 of the ESA, if critical habitat 

is not determinable at the time of listing, 

a final critical habitat designation must 

be published 1 year after listing (16 

U.S.C. 1533(b)(6)(C)(ii)). The Natural 

Resources Defense Council filed a 

complaint in July 2016 with the U.S. 

District Court for the District of 

Columbia seeking an order to compel 

NMFS to designate critical habitat for 

the MHI IFKW DPS, and a courtapproved settlement agreement was 

filed on January 24, 2017 (Natural 

Resources Defense Council, Inc. v. 

Penny Pritzker, National Marine 

Fisheries Services, 1:16–cv–1442 

(D.D.C.)). The settlement agreement 

stipulated that NMFS will submit the 

final rule to the Office of the Federal 

Register by July 1, 2018. 

Based on the recommendations 

provided in the Draft Biological Report, 

the initial Regulatory Flexibility 

Analysis (RFA) and ESA section 4(b)(2) 

analysis (which considers exclusions to 

critical habitat based on economic, 

national security and other relevant 

impacts), we published a proposed rule 

on November 3, 2017 (82 FR 51186) to 

designate waters from the 45-m depth 

contour to the 3,200-m depth contour 

around the main Hawaiian Islands from 

Niihau east to Hawaii, with some 

exceptions, as MHI IFKW critical 

habitat. In accordance with the 

definition of critical habitat under the 

ESA, this area contained physical or 

biological features essential to 

conservation of the species and which 

may require special management 

considerations or protections. The 

proposed rule included background 

information on MHI IFKW biology and 

habitat use, which is not included here 

but the reader may access by referring 

to the proposed rule (82 FR 51186; 

November 3, 2017). 

In the proposed rule, we described the 

physical or biological features essential 

to the conservation of MHI IFKWs as (1) 

island-associated marine habitat for 

MHI IFKWs; (2) prey species of 

sufficient quantity, quality, and 

availability to support individual 

growth, reproduction, and development, 

as well as overall population growth; (3) 

waters free of pollutants of a type and 

amount harmful to MHI IFKWs, and (4) 

habitat free of anthropogenic noise that 

would significantly impair the value of 

the habitat for false killer whale use or 

occupancy. We requested public 

comments through January 2, 2018. For 

a complete description of our proposed 

action, including the natural history of 

the MHI IKFW, we refer the reader to 

the proposed rule (82 FR 51186; 

November 3, 2017). 

Statutory and Regulatory Background 

for Critical Habitat 

The ESA defines critical habitat under 

section 3(5)(A) 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 (1) essential to the 

conservation of the species and (2) 

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. (16 

U.S.C. 1532(5)(A)). Conservation is 

defined in section 3(3) of the ESA as: To 

use, and the use of, all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary (16 U.S.C. 

1532(3)). Section 3(5)(C) of the ESA 

provides that except in those 

circumstances determined by the 

Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. 


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Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules and Regulations 35063 

Section 4(a)(3)(B) prohibits 

designating as critical habitat any lands 

or other geographical areas owned or 

controlled by the Department of Defense 

(DOD) or designated for its use, that are 

subject to an Integrated Natural 

Resources Management Plan (INRMP) 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary 

determines in writing that such plan 

provides a benefit to the species, and its 

habitat, for which critical habitat is 

proposed for designation. 

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

to designate critical habitat for 

threatened and endangered species on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat. This 

section also grants the Secretary of 

Commerce (Secretary) discretion to 

exclude any area from critical habitat 

upon determining that the benefits of 

such exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat. However, the Secretary 

may not exclude areas if this will result 

in the extinction of the species. Our 

regulations provide that critical habitat 

shall not be designated within foreign 

countries or in other areas outside U.S. 

jurisdiction (50 CFR 424.12(g)). Once 

critical habitat is designated, section 

7(a)(2) of the ESA requires Federal 

agencies to ensure that actions they 

fund, authorize, or carry out are not 

likely to destroy or adversely modify 

that habitat (16 U.S.C. 1536(a)(2)). This 

requirement is in addition to the section 

7(a)(2) requirement that Federal 

agencies ensure their actions are not 

likely to jeopardize the continued 

existence of ESA-listed species. 

Specifying the geographic location of 

critical habitat also facilitates 

implementation of section 7(a)(1) of the 

ESA by identifying areas where Federal 

agencies can focus their conservation 

programs and use their authorities to 

further the purposes of the ESA. Critical 

habitat requirements do not apply to 

citizens engaged in actions on private 

land that do not involve a Federal 

agency. However, designating critical 

habitat can help focus the efforts of 

other conservation partners (e.g., State 

and local governments, individuals, and 

nongovernmental organizations). 

Summary of Changes From the 

Proposed Rule 

After considering public comments 

received and the best scientific 

information available, we have made the 

following changes: (1) We have 

combined the four proposed features 

into a single essential feature with four 

characteristics that describe how islandassociated marine habitat is essential to 

MHI IFKWs; and (2) we have excluded 

under section 4(b)(2) the Kaulakahi 

Channel portion of Warning area 186, 

the area north of Molokai, the reduced 

Alenuihaha Channel, the Hawaii Area 

Tracking System, and the Kahoolawe 

Training Minefield due to national 

security impacts. 

Single Essential Feature 

In the proposed rule we identified 

four features that are essential to MHI 

IFKWs: Island-associated habitat, prey, 

water quality, and sound. We received 

public comments that questioned the 

clarity of some of these features, and 

whether certain features were 

sufficiently described to meet the 

definition of critical habitat. For 

example, one comment criticized the 

feature, island-associated marine habitat 

for MHI IFKWs, because it lacks 

objective parameters that warrant 

special management considerations or 

protections. The commenter requested 

more clarity on or removal of this 

feature. 

After review of this comment and 

other comments, we recognize the 

interdependence of movement and 

space, prey, sound, and water quality 

characteristics in identifying islandassociated habitat that is essential to the 

conservation of the species because 

these habitat characteristics collectively 

support important life history functions, 

such as foraging and reproduction, 

which are essential for this population’s 

conservation. Indeed, MHI IFKWs are an 

island-associated population of false 

killer whales with their range restricted 

to the shelf and slope habitat around the 

MHI, unlike pelagic false killer whales 

found more in open oceans. Because 

these habitat characteristics are 

important components to the ecology of 

these whales, we have reorganized the 

essential features in the proposed rule 

into a single feature, island-associated 

marine habitat for MHI IFKWs, with 

four characteristics that support this 

feature. The four characteristics include 

(1) adequate space for movement and 

use within shelf and slope habitat; (2) 

prey species of sufficient quantity, 

quality, and availability to support 

individual growth, reproduction, and 

development, as well as overall 

population growth; (3) waters free of 

pollutants of a type and amount harmful 

to MHI IFKWs; and (4) sound levels that 

will not significantly impair false killer 

whales’ use or occupancy (see the 

Physical and Biological Features section 

below for full descriptions). 

The first characteristic, adequate 

space for movement and use within 

shelf and slope habitat, is used to 

describe, in part, the ‘‘island-associated 

marine habitat’’ feature in the proposed 

rule. We have highlighted this as a 

characteristic of the island-associated 

habitat for this final rule in response to 

comments that requested clarity on the 

special management considerations for 

this feature. Under the description of 

this feature, we note the importance of 

supporting these whales’ ability to move 

to, from, and around areas of 

concentrated (high) use and provide 

details about how activities, such as 

large-scale construction or noise, may 

act as barriers to movement for these 

whales within their restricted range. 

Characteristics 2 and 3, prey and 

water quality, have not materially 

changed from the proposed rule; 

however, we do provide more 

information in our description in the 

Physical and Biological Features 

Essential for Conservation section of 

this final rule and in the Biological 

Report about factors that influence these 

characteristics. For example, we have 

used information provided in the 

Biological Report under diet to provide 

additional detail about the specific 

types of prey species that these whales 

are known to eat (NMFS 2017b). 

Additionally, we have provided more 

information about factors that threaten 

prey and water quality in these 

descriptions. 

In the proposed rule we solicited 

comments on the feature ‘‘habitat free of 

anthropogenic noise that would 

significantly impair the value of the 

habitat for MHI IFKW use or 

occupancy.’’ We received multiple 

comments that suggested removing this 

feature for the following reasons: The 

effects of noise on IFKWs are already 

considered under the jeopardy standard 

analysis; the absence of noise is not a 

feature of the habitat, there is not 

sufficient scientific justification for the 

feature, and the management of this 

feature is not clearly described. 

As odontocetes, these whales rely on 

their ability to receive and interpret 

sound within their environment in 

order to forage, travel, and communicate 

with one another. Accordingly, islandassociated habitat must be capable of 

supporting MHI IFKWs’ ability to do so. 

While noise has the potential to affect 

individual whales in a manner that may 

have biological significance (i.e., to 

result in a ‘‘take’’ by harassment, injury, 

or otherwise), scientific information also 

indicates that the introduction of a 

permanent or chronic noise source can 

degrade the value of habitat by 

interfering with the sound-reliant 


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animal’s ability to gain benefits from 

that habitat, impeding reproduction, 

foraging, or communication (i.e., 

altering the conservation value of the 

habitat). This reliance on sound, 

combined with the whales’ adaptation 

to a restricted range, make sound an 

important characteristic of islandassociated habitat. Thus, it is 

appropriate to consider how chronic 

and persistent noise sources may alter 

the value of that habitat and manage for 

it. 

To clarify how sound as a 

characteristic of habitat supports these 

whales and should be managed for this 

designation, we have revised the 

language of this characteristic to ‘‘sound 

levels that would not significantly 

impair MHI IFKW’s use or occupancy.’’ 

For this characteristic we describe the 

importance of sound in this 

populations’ ecology and describe how 

noise sources may alter the value of 

their habitat. After considering public 

comments, we recognize that the mere 

presence of noise in the environment— 

even noise that might result in 

harassment—does not necessarily result 

in adverse modification of critical 

habitat. Rather, chronic exposure to 

noise as well as persistent noise may 

impede the population’s ability to use 

the habitat for foraging, navigating, and 

communicating, and may deter MHI 

IFKWs from using the habitat entirely 

(see also our response to Comment 6 

and the Physical and Biological 

Features Essential for Conservation 

section of this rule). 

Additional National Security Exclusions 

In the proposed rule we noted that we 

would be considering six additional 

requests submitted by the Navy, which 

were subsets of a larger area that the 

Navy initially requested for exclusion, 

but which NMFS determined should not 

be excluded under 4(b)(2). We reviewed 

these six areas along with four 

additional areas requested by the Navy 

consistent with the criteria reviewed for 

all other areas considered for national 

security exclusion for this rule. 

For the Kaulakahi Channel Portion of 

W–186, the area north of Molokai, a 

reduced portion of the Alenuihaha 

Channel, the Hawaii Area Tracking 

System, and the Kahoolawe Training 

Minefield (NMFS 2018b), we find that 

the benefits of exclusion for national 

security outweigh the benefit of 

designating MHI IFKW critical habitat. 

On June 22, 2017, the Navy requested 

exclusion of each of these areas as a 

subset of a larger ‘‘Entire Area.’’ The 

Navy also identified the area north of 

Molokai for exclusion as a subset of the 

‘‘four islands region,’’ and the 

Alenuihaha Channel as a portion of the 

‘‘waters surrounding the Island of 

Hawaii’’ exclusion request. NMFS 

initially proposed not to exclude these 

areas as included in the larger units 

(DON 2017a, as referenced in NMFS 

2017b). We have now reevaluated these 

geographically limited portions of the 

initial request in response to 

information submitted by the Navy on 

October 10, 2017, along with the Navy’s 

supplemental information limiting the 

geographic scope of their request to 

exclude Alenuihaha Channel. Although 

the June 22, 2017 request provided a full 

description of the defense activities in 

all of these areas, the Navy’s 

supplemental submissions helped 

improve our understanding of the 

geographic scope of the particular 

impacts to national security. For 

example, the Navy clarified that the 

Channel Portion of the W–186 area is 

used to support military activities 

occurring on the Pacific Missile Range 

Facility (PMRF) Offshore Areas and that 

the area north of Molokai provides 

unique bathymetry that supports the 

Submarine Command Course (DON 

2017b, DON 2018). Supplemental 

information also identified the unique 

training capabilities provided by the 

bathymetry of the Hawaii Area Tracking 

System and the instrumentation found 

within the Kahoolawe Training 

Minefield, which support military 

readiness. Additionally, with respect to 

the Alenuihaha Channel, our exclusion 

decision is limited to the deeper areas 

of the Channel that support Undersea 

Warfare training exercises; these waters 

include approximately 2,609 square 

kilometers (km2) (1,007 square miles 

(mi2)) of the 4,381 km2 (1691 mi2) area 

identified in the proposed rule. In light 

of our improved understanding of the 

defense activities conducted and the 

reduced size of the requested 

exclusions, we now conclude that the 

benefits of exclusion outweigh the 

benefits of designating critical habitat, 

and that granting these exclusions will 

not result in extinction of the species. 

The Kaulakahi Channel Portion of W– 

186 area overlapped with approximately 

1,631 km2 (630 mi2) or approximately 3 

percent of the area that was proposed 

for designation, the area north of 

Molokai overlapped with approximately 

596 km2 (230 mi2) or approximately one 

percent of the area that was proposed 

for designation, and the Alenuihaha 

Channel overlapped with approximately 

2,609 km2 (866 mi2) or approximately 5 

percent of the area that was proposed 

for designation. The Hawaii Area 

Tracking System overlaps with about 96 

km2 (37mi2) or about 0.2 percent of the 

area that was proposed for designation, 

and the Kahoolawe Training Minefield 

overlaps with about 12 km2 (5 mi2) or 

about 0.02 percent of the area that was 

proposed for designation. These overlap 

a small area of low-use and lower 

traveled MHI IFKW habitat. 

For the other three areas identified in 

the Navy’s October 10, 2017 request, as 

well as two additional areas identified 

by the Navy on February 8, 2018, we 

find that the benefits of designating 

critical habitat for MHI IFKWs outweigh 

the benefits of excluding these areas. 

The National Security Impacts section 

of this rule provides a detailed summary 

of our weighing process for all areas, 

and the full analysis can be found in the 

ESA Section 4(b)(2) Report (NMFS 

2018b). 

Thus, given these changes, in total we 

have excluded 14 areas (one area, with 

two sites, for BOEM and 13 areas 

requested by the Navy from the critical 

habitat designation because we have 

determined that the benefits of 

exclusion outweigh the benefits of 

inclusion, and exclusion will not result 

in extinction of the species. The 

excluded areas are: (1) The BOEM Call 

Area offshore of the Island of Oahu 

(which includes two sites, one off Kaena 

point and one off the south shore); (2) 

the Navy Pacific Missile Range Facility’s 

Offshore ranges (including the Shallow 

Water Training Range (SWTR), the 

Barking Sands Tactical Underwater 

Range (BARSTUR), and the Barking 

Sands Underwater Range Extension 

(BSURE; west of Kauai)); (3) the Navy 

Kingfisher Range (northeast of Niihau); 

(4) Warning Area 188 (west of Kauai); 

(5) Kaula Island and Warning Area 187 

(surrounding Kaula Island); (6) the Navy 

Fleet Operational Readiness Accuracy 

Check Site (FORACS) (west of Oahu); 

(7) the Navy Shipboard Electronic 

Systems Evaluation Facility (SESEF) 

(west of Oahu); (8) Warning Areas 196 

and 191 (south of Oahu); (9) Warning 

Areas 193 and 194 (south of Oahu); (10) 

the Kaulakahi Channel portion of 

Warning area 186 (the channel between 

Niihau and Kauai and extending east); 

(11) the area north of Molokai; (12) the 

Alenuihaha Channel, (13) the Hawaii 

Area Tracking System, and (14) the 

Kahoolawe Training Minefield. In 

addition, the Ewa Training Minefield 

and the Naval Defensive Sea Area are 

precluded from designation under 

section 4(a)(3) of the ESA because they 

are managed under the Joint Base Pearl 

Harbor-Hickam Integrated Natural 

Resource Management Plan that we find 

provides a benefit to the MHI IFKW. 


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Summary of Comments and Response 

We requested comments on the 

proposed rule to designate critical 

habitat for the MHI IFKW and 

associated supporting reports as 

described above. We received 26 

individual submissions in response to 

that request. We have considered all 

public comments, and provide 

responses to all significant issues raised 

by commenters that are relevant to the 

proposed designation of MHI IFKW 

critical habitat. We have not responded 

to comments or concerns outside the 

scope of this rulemaking, including 

comments disagreeing with the listing of 

this DPS as endangered, or 

recommendations regarding broad ESA 

policy issues. 

Special Management Considerations or 

Protections 

Comment 1: We received comments 

suggesting that major threats to this DPS 

were not adequately addressed in the 

proposed designation including threats 

associated with longline factory fishing 

boats, water pollution, and noise 

pollution. Some commenters noted that 

the proposal did not mention the threat 

posed by biannual Rim of the Pacific 

(RIMPAC) exercises conducted by the 

Department of Defense. One commenter 

suggested that RIMPAC exercises should 

not be allowed to occur in the proposed 

critical habitat. 

Response: The Special Management 

Considerations or Protection section of 

the Draft and Final Biological Reports 

(NMFS 2017a, 2018a) provides 

information about the types of activities 

that raise significant habitat-based 

threats, and the special management 

considerations or protections that may 

be necessary to manage or protect the 

feature and its characteristics, essential 

to the conservation of MHI IFKWs. 

Water pollution, noise pollution, and 

reductions in prey or habitat were 

among the threats discussed. This 

section of the reports also identifies 

seven categories of activities with a 

Federal nexus (i.e., a project that is 

authorized, funded, or carried out by a 

Federal agency) that may have the 

potential to contribute to these habitat 

threats and that are subject to the ESA 

section 7 consultation process. 

Specifically, we discussed fisheries, 

activities that contribute to water 

pollution, and military activities, and 

how these activities may impact 

available prey resources, water quality, 

or sound levels in the marine 

environment. 

We note that federally managed 

longline fisheries (including the deepset and shallow-set fisheries) are 

currently not considered a ‘‘major’’ 

threat to this DPS or their habitat. As 

noted in the MHI IFKW Recovery 

Outline (NMFS 2016a), which 

categorizes the significance of threats to 

this DPS from low to high, the threat of 

incidental take (e.g., entanglements or 

hookings) in federally-managed longline 

fisheries is considered low because 

about 95 percent of the DPS’ range is 

within the Main Hawaiian Islands 

Longline Fishing Prohibited Area that 

surrounds the MHI (NMFS 2016a; See 

50 CFR 229.37(d)). Further, we note that 

fishery interactions, such as 

entanglements and hooking, are 

considered a threat to the individual 

animals themselves and not the habitat. 

Such threats are properly analyzed 

under the jeopardy analysis conducted 

during the section 7 consultation 

process. 

We note that reductions in prey are 

described as a medium threat, with 

several fisheries potentially contributing 

to this risk. In the Draft Biological 

Report we reviewed the sustainability of 

stocks that are targeted by the federally 

managed longline fisheries and that are 

known IFKW prey species. Current 

information, although incomplete, 

suggests that these stocks are 

sustainably managed and that additional 

management is not necessary to 

conserve prey species (NMFS 2018). 

However, we also note in the Draft and 

Final Biological Report that, as new 

information becomes available regarding 

MHI IFKW dietary needs or the 

sustainability of overlapping fish stocks, 

additional management measures may 

be taken in the future to ensure that 

MHI IFKW critical habitat is not 

adversely modified. 

With regard to water pollution, we 

have included water quality as a 

characteristic of MHI IFKW critical 

habitat because pollutants in marine 

waters of the island-associated habitat 

affect the quality of prey for this DPS 

and can create environments in which 

these whales are at higher risk of 

disease. The Draft and Final Biological 

Reports discuss water quality threats to 

MHI IFKW habitat under the Activities 

that Contribute to Water Pollution 

section, and discuss activities that may 

reduce water or prey quality by 

increasing persistent organic pollutants 

(POP) or other chemicals of emerging 

concern, heavy metals, pathogens, or 

naturally occurring toxins in Hawaii’s 

surrounding waters (NMFS 2017a, 

2018a). Although we have not identified 

additional management measures 

beyond the existing protections already 

granted from other regulations (e.g., the 

Clean Water Act), we note that special 

management considerations may be 

necessary in the future, and that a 

project’s specific details, such as 

discharge location, chemical or 

biological composition, frequency, 

duration, and concentration, will help 

determine necessary conservation 

measures. 

With regard to military activities, the 

Draft Biological Report indicated that a 

wide variety of activities were covered 

by this category including training, 

construction, and research activities 

undertaken by the Department of 

Defense. We have revised the Final 

Biological Report to clarify that RIMPAC 

exercises are included among the 

military training exercises considered 

under this category. The report notes 

that many of the military exercises in 

the Hawaii Range Complex are subject 

to a five-year MMPA authorization for 

the incidental take of marine mammals, 

which is subject to the consultation 

requirements of the ESA. These fiveyear reviews include the consideration 

of exercises that are undertaken during 

biannual RIMPAC events. 

With regard to the comment that we 

should not allow RIMPAC to occur in 

critical habitat, we note that a critical 

habitat designation does not restrict 

activities from occurring in critical 

habitat; it is only during the section 7 

consultation process that effects on 

critical habitat are determined and 

additional conservation and 

management measures are considered, 

as appropriate. 

Comment 2: BOEM commented that 

the characterization of offshore energy 

projects as a threat to the physical and 

biological features of critical habitat is 

not supported by information in the rule 

or supporting documents, and that 

NMFS was inconsistent in describing 

the relative risk of activities that are 

identified as possibly threatening 

habitat features compared with other 

activities. BOEM’s comment noted that, 

despite threats from specific energyrelated development being described as 

either uncertain or already managed 

under existing regulatory protections, 

the Biological Report suggests that 

special management considerations 

would include changes in siting of 

energy projects based on the boundaries 

of proposed critical habitat. BOEM 

noted that this contrasts with NMFS’ 

discussion of and recommendations for 

the management of fisheries, in which 

additional management considerations 

are not suggested for federally managed 

commercial fisheries, despite the threat 

of reduced prey availability being 

described as a moderate risk for the 

listing of this DPS. BOEM recommended 

that we ‘‘remove energy activities from 

[our] list of activities that may threaten 


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the physical and biological features of 

critical habitat based on [low risk and 

uncertain] conclusions made in [our] 

Draft Biological Report and focus 

instead on management considerations 

for other activities that are consistent 

with habitat requirements for IFKWs.’’ 

Response: We conclude that that 

offshore energy projects should remain 

on the list of activities that may affect 

the physical and biological feature of 

MHI IFKW critical habitat because there 

is sufficient information available to 

suggest that these projects have the 

potential to affect MHI IFKW critical 

habitat. Offshore energy includes a 

broad suite of different projects (e.g., 

wind, wave, and ocean thermal) that 

may involve constructing or placing 

structures in the marine environment, as 

well as operating and maintaining these 

structures. As cited in the Draft and 

Final Biological Reports, the 

Department of Energy acknowledges 

that there are common elements among 

these projects that pose a risk of adverse 

environmental effects including, but not 

limited to, noise during construction 

and operation; alteration of substrates; 

sediment transportation and deposition; 

generation of electromagnetic fields 

(EMF); toxicity of paints, lubricants, and 

antifouling coatings; and interference 

with animal movements (Cada 2009). 

This list of environmental effects 

indicates that these projects present risk 

to MHI IFKW prey, water quality, sound 

levels, and adequate space for 

movement and use. 

As acknowledged in the Draft 

Biological Report (NMFS 2017a), 

current information suggests that risks 

associated with certain threats may be 

minimal (e.g., EMF) or sufficiently 

managed under existing regulatory 

regimes (e.g., water quality). However, 

the fact that habitat characteristics may 

directly or indirectly benefit from 

existing regulatory regimes is not 

determinative of whether energy 

development activities have the 

potential to adversely affect the feature 

and characteristics essential to MHI 

IFKWs, such that the feature may 

require special management or 

protection. Further, other risks related 

to noise and adequate space for 

movement and use remain relatively 

unclear because noise sources vary (in 

levels and frequency) among device 

types, and effects to habitat use as a 

result of structures in the water may 

vary locally (Bergstrom et al. 2014, 

Teilmann and Carstensen 2012, 

Scheidat et al. 2011). For example, 

Teilmann and Carstensen (2012) report 

a decline in harbor porpoise habitat use 

followed by evidence of slow recovery 

since a large scale offshore wind farm 

was installed in the Baltic, while 

Scheidat et al. (2011) report increased 

habitat use by harbor porpoises in a 

wind farm in the Dutch North Sea. 

Accordingly, project-specific details 

would be required to analyze the 

relative risk that any particular type of 

energy development project may have 

on MHI IFKW critical habitat. Due to the 

uncertainties associated with the size 

and scope of these projects and their 

impact on MHI IFKWs and their habitat, 

we expect that monitoring will be 

recommended for many first generation 

projects in Hawaiian waters. 

As noted by the Department of 

Energy, project location can play a large 

role in minimizing the environmental 

impacts of any particular project (DOE 

2009). While we do find that impacts to 

critical habitat from offshore energy 

activities may occur, we do not expect 

that these project siting considerations 

will be raised as late as the formal 

section 7 consultation process. Based on 

BOEM’s objective to work with 

regulatory agencies early in the 

planning process and to choose 

locations that will minimize 

environmental impacts (Gilman et al. 

2016), we expect that site locations that 

minimize potential effects to MHI 

IFKWs and their habitat will be made 

early in the planning process. We have 

made revisions to the Final Biological 

Report and Economic Report to help 

clarify that change in location of 

projects is not an expected modification 

to be made during section 7 

consultation; rather, regulatory agencies 

are likely to consider the sensitivity of 

the habitat early in the planning process 

and to select sites that will minimize 

any potential environmental effects, 

which is likely to minimize impacts to 

both MHI IFKWs and their critical 

habitat. 

With regard to the perceived 

inconsistency between modifications for 

fishery and energy development 

activities, we note that our anticipated 

modifications to minimize effects to 

MHI IFKW critical habitat vary among 

activities based on the available 

information. We recognize that fisheries 

have the potential to adversely affect 

MHI IFKW prey stocks and have 

included this activity in the list of 

activities that may affect MHI IFKW 

critical habitat. However, as noted in the 

Draft and Final Biological Reports, 

commercial fisheries are already 

regulated under catch limits and area 

restrictions that help ensure 

sustainability of fish stocks, and there is 

no current information suggesting that 

fishery catch rates are adversely 

affecting the availability of prey for 

IFKWs (NMFS 2017a and 2018a). 

Nevertheless, we anticipate that through 

the consultation process, NMFS will 

recommend project-specific 

modifications that will help reduce 

impacts to critical habitat, whether that 

activity involves commercial fisheries, 

energy development, or some other 

Federal action. 

Essential Features 

Comment 3: The Hawaii Longline 

Association (HLA) provided comments 

noting several reasons why the ‘‘prey’’ 

feature may not be appropriately 

identified as a biological feature 

essential to the conservation of the MHI 

IFKW and why the proposed feature 

should not be used to determine future 

fisheries management. These comments 

stated that prey is not a limiting factor 

for this DPS, and noted that the 

Biological Report’s conclusion, which 

anticipated no additional management 

for the longline fisheries, suggests that 

there are no special management 

measures required for this feature. HLA 

noted that without the need for special 

management measures, this feature does 

not meet the definition of features that 

can be used to delineate critical habitat 

under the ESA. HLA also noted that 

there is insufficient detail describing the 

prey feature (e.g., standards identifying 

the quantity, quality, or availability of 

prey that is necessary to support MHI 

IFKW conservation) for NMFS to 

regulate the fisheries in the future, and 

noted that any revised management 

measures premised upon impacts to the 

prey feature would require a revision to 

the designation and an updated 

economic analysis to consider the 

impacts to and any potential exclusions 

for commercial fisheries. 

Response: As noted in the Summary 

of Changes from the Proposed Rule 

section, we have restructured the feature 

essential to the conservation of MHI 

IFKWs to clarify that prey is one of four 

characteristics that support the feature, 

island-associated marine habitat for 

MHI IFKWs. These characteristics, in 

combination, support the unique 

ecology of MHI IFKWs, and each 

characteristic may require special 

management considerations or 

protection to support the overall health 

and recovery of this population. 

The ESA defines critical habitat, in 

relevant part, as the specific areas 

within the geographical area occupied 

by the species at the time it is listed on 

which are found those physical and 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection, 16 U.S.C. 

1532(5)(A)(i). 


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Merriam-Webster defines a limiting 

factor as the environmental factor that is 

of predominant importance in 

restricting the size of a population. The 

ESA does not require that a feature be 

limiting, but only that it be essential to 

conservation and that it may require 

special management. It is rare that a 

single factor limits a species’ 

conservation; instead, most listed 

species face multiple threats of varying 

magnitudes, and the combination of 

these threats can hinder recovery. As 

noted in the species’ status review and 

recovery outline (Oleson et al. 2010 and 

NMFS 2016a), reductions in prey size 

and biomass as well as environmental 

contaminants (received through prey) 

are medium threats for this DPS (Oleson 

et al. 2010, and NMFS 2016a), 

indicating that prey is an element in 

supporting recovery of MHI IFKWs. 

Accordingly, the availability of prey is 

an important characteristic that 

supports the successful growth and 

health of individuals throughout all lifestages. Further, the successful 

management of this characteristic, 

which does have competition from 

fisheries that catch MHI IFKW prey 

within island-associated marine habitat 

for MHI IFKWs, will ultimately support 

recovery of the population. 

The phrase ‘‘may require’’ indicates 

that critical habitat includes features 

that may now, or at some point in the 

future, be in need of special 

management or protection. Similar to 

our analyses in the proposed rule, we 

determined that this characteristic of the 

essential feature may require special 

management considerations or 

protections due to competition from 

fisheries that catch MHI IFKW prey. 

Certain laws and regulatory regimes 

already directly or indirectly protect, to 

differing degrees and for various 

purposes, the prey characteristic of the 

essential feature. However, in 

determining whether essential features 

may require special management 

considerations or protection, we do not 

base our decision on whether 

management is currently in place, or 

whether that management is adequate, 

but simply that it may require 

management. That is, we cannot read 

the statute to require that additional 

special management be required before 

we designate critical habitat (See Center 

for Biological Diversity v. Norton, 240 

F.Supp.2d 1090 (D. Ariz. 2003)). That a 

feature essential to conservation may be 

under an existing management program 

is not determinative of whether it meets 

the definition of critical habitat. 

We recognize that there is uncertainty 

associated with the relative importance 

of particular prey items in the diet; 

however, the diet of these whales and 

their energetic requirements are 

sufficiently described in the Draft and 

Final Biological Reports (NMFS 2017a 

and 2018a). Specifically, MHI IFKWs 

are known to primarily forage on large 

pelagic fish, including yellowfin tuna, 

albacore tuna, skipjack tuna, broadbill 

swordfish, mahi-mahi, wahoo, and 

lustrous pomfret (for the full list of 

dietary items see Table 2 of the Final 

Biological Report; NMFS 2018a), and 

the energetic requirements for the 

population is estimated to be 

approximately 2.6 to 3.5 million pounds 

of fish annually (see the Diet section of 

the Final Biological Report, NMFS 

2017a). As noted in the Fisheries section 

of the Final Biological Report several 

fisheries target or catch MHI IFKW prey 

species. At least nine MHI IFKW prey 

species (from Table 2) are taken by the 

Federally managed longline fisheries 

(see Table 3 of the Final Biological 

Report) and several other species are 

incidentally caught by the state and 

Federal bottomfish fisheries. This 

overlap in targeted species of fish 

indicates there may be competition 

between fisheries and MHI IFKWs. Our 

designation and associated economic 

analysis are based upon the best 

available scientific information 

available at the time of designation. At 

this time, the prey characteristic of the 

essential feature meets the definition of 

critical habitat, in that it is essential to 

the conservation of the species and may 

require special management 

considerations or protection. 

Comment 4: The Western Pacific 

Regional Fishery Management Council 

(the Council) submitted comments 

noting that they agree with our 

assessment of prey competition between 

MHI IFKWs and federally managed 

fisheries and our conclusion that 

additional management is not necessary 

for these activities. However, the 

Council disagreed with statements that 

future revised management measures 

could be necessary for Federal fisheries, 

noting that this was unlikely in the 

foreseeable future given the diverse prey 

base of MHI IFKWs and given existing 

protections already in place to manage 

healthy levels of pelagic fish stocks. 

Response: As noted in our response to 

comment 3, we recognize that current 

information indicates that MHI IFKWs 

prey on a number of species (see Table 

2 of the Final Biological Report; NMFS 

2018a) and that their diet is diversified; 

however, as noted in the Biological 

Report, there is little known about 

specific diet composition, prey 

preferences, or potential differences 

among the diets of MHI IFKWs of 

different age, size, sex, or even social 

cluster. However, we do have 

information that false killer whales 

prefer pelagic prey species (e.g., 

broadbill swordfish, skipjack tuna, 

albacore tuna, yellowfin tuna, blue 

marlin, and bigeye tuna) targeted by 

commercial fisheries. While we do not 

expect modifications to fishery 

management at present, we cannot 

assume that Federal regulations that are 

designed to maintain sustainable 

fisheries will be adequate by themselves 

to address the prey needs of a 

recovering IFKW DPS. Accordingly, we 

refrain from speculating as to the need 

for additional management of this 

characteristic as more information 

becomes available in the future. 

Comment 5: BOEM commented that 

there are no special management 

considerations or protective measures 

that can reasonably be attributed to the 

‘‘Island-associated marine habitat for 

MHI IKFWs’’ feature, without which the 

feature has little or no utility within the 

context of ESA consultations. BOEM 

recommended removing the feature to 

minimize confusion and avoid 

unnecessary analyses. 

Response: As noted in the Summary 

of Changes from the Proposed Rule 

section, we have restructured the feature 

essential to the conservation of MHI 

IFKWs. The feature, island-associated 

marine habitat for MHI IFKWs, now 

consists of four component 

characteristics that, in combination, 

help describe the feature of habitat that 

is essential to MHI IFKWs. As noted 

above, we previously attempted to 

describe the significance of allowing for 

movement to, from, and within this 

habitat as part of the description of the 

proposed ‘‘island-associated marine 

habitat’’ feature. In the restructured 

version of the essential feature for this 

critical habitat designation, we have 

specifically described ‘‘adequate space 

for movement and use within shelf and 

slope habitat’’ as a characteristic of this 

feature. To clarify the special 

management considerations or 

protections, each characteristic includes 

a discussion of factors that may threaten 

or pose a risk to that characteristic. With 

regard to adequate space for movement 

and use within shelf and slope habitat, 

we specify that human activities that 

interfere with whale movement through 

the habitat by acting as a barrier may 

adversely affect this characteristic. We 

also provide examples of activities that 

may act as barriers to movement, such 

as large marine structures or sustained 

acoustic disturbance, and describe 

factors that may intensify these habitat 

effects, many of which can be 

minimized or mitigated. 


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Comment 6: We received several 

comments (from HLA, State of Hawaii’s 

Division of Aquatic Resources (DAR), 

BOEM and the Navy) recommending 

that NMFS remove the ‘‘habitat free of 

anthropogenic noise’’ feature. The DAR 

noted that noise is related to an activity 

and is not a feature of the habitat, and 

that anthropogenic noise should be 

considered for its potential negative 

impacts to IFKWs, but it should not be 

an essential feature of the habitat. 

BOEM recommended removing the 

feature from the designation because (1) 

the proposed feature is not an existing 

physical or biological habitat feature, (2) 

effects of anthropogenic sound are 

evaluated through the ESA section 7 

analysis as a direct effect to the DPS, 

and (3) there is insufficient information 

available to predict with confidence if, 

how, and where noise-related activities 

may require additional management as 

an element of habitat for the DPS. HLA 

noted that it is not appropriate or lawful 

for NMFS to include the absence of an 

element (sound) as an essential feature. 

HLA noted that the absence of certain 

levels of sound is not a tangible physical 

or biological feature that can be found 

in a specific area, and that the presence 

of sound should be evaluated under the 

‘‘jeopardy’’ prong of a section 7 

consultation because any determination 

by NMFS that sound may adversely 

affect the IFKW would be predicated on 

the finding that the sound affects the 

animals, not the animal’s habitat. 

Further, HLA noted that many of NMFS’ 

past critical habitat designations for 

other species that are susceptible to 

adverse effects associated with in-water 

sound do not include sound as a feature, 

and that we should not change our 

existing policy by identifying it as a 

feature for this species. The Navy 

submitted comments expressing 

concerns that the proposed rule did not 

include examples of what activities or 

impacts might adversely affect or 

adversely modify the proposed sound 

feature and requested that NMFS 

remove the feature until such time that 

the science becomes more mature. 

Response: As noted in our response 

above and the Summary of Changes 

from the Proposed Rule section, based 

on this and other comments, we have 

restructured the feature essential to the 

conservation of MHI IFKWs. In the final 

rule, the several features described as 

independent features in the proposed 

rule now appear as characteristics that 

exist in combination under a single 

essential feature, island-associated 

marine habitat for MHI IFKWs. We agree 

with the commenters that the 

description ‘‘free of anthropogenic 

noise’’ does not provide a clear standard 

for determining how this habitat 

characteristic supports MHI IFKW 

conservation within island-associated 

habitat. However, we still find that 

sound levels are an important attribute 

of the island-associated habitat that is 

essential to MHI IFKWs’ conservation. 

As odontocetes, these whales rely on 

their ability to receive and interpret 

sound within their environment in 

order to forage, travel, and communicate 

with one another. Accordingly, islandassociated habitat must be capable of 

supporting MHI IFKWs’ ability to do so. 

While it is clear that noise introduced 

into the environment has the potential 

to affect individual whales in a manner 

that may have biological significance 

(i.e., to result in a take by harassment or 

injury), scientific information also 

indicates that the introduction of a 

permanent, chronic, or persistent noise 

source can degrade the habitat of such 

sound-reliant species by adversely 

altering the animal’s ability to use the 

habitat for foraging, navigating, or 

reproduction (i.e., altering the 

conservation value of the habitat). This 

reliance on sound, combined with the 

fact that these whales are adapted to a 

restricted range, make sound levels an 

important characteristic of islandassociated habitat. Thus, it is 

appropriate to consider how permanent, 

chronic, or persistent noise sources may 

alter the value of that habitat and 

manage for it. 

With regard to the comment that this 

characteristic has not been expressed as 

a feature of the habitat, we considered 

rephrasing this characteristic to describe 

how ambient sound levels support MHI 

IFKW’s capacity to forage, navigate, and 

communicate. However, we find that 

this articulation would not provide 

sufficient guidance to the regulated 

community about human activities that 

may degrade listening conditions for 

MHI IFKWs within island-associated 

marine habitat. To clarify how sound as 

a characteristic of habitat supports these 

whales and how human activities may 

adversely affect this characteristic we 

have revised the language describing 

this characteristic from ‘‘Habitat free of 

anthropogenic noise that would 

significantly impair the value of the 

habitat for false killer whales’ use or 

occupancy’’ to ‘‘sound levels that would 

not significantly impair MHI IFKW’s use 

or occupancy.’’ We believe that this 

formulation appropriately identifies that 

these whales rely on sound levels 

within their environment, and that 

noise that alters sound levels such that 

it interferes with these whales’ use or 

occupancy may result in adverse effects 

to MHI IFKW critical habitat. 

In this rule (see the Physical and 

Biological Features Essential for 

Conservation section) and the Final 

Biological Report (NMFS 2018a) we 

describe the importance of sound in this 

populations’ ecology and how chronic 

noise sources may alter the value of 

their habitat. We recognize that the mere 

presence of noise, or even noise which 

might cause harassment of the species, 

does not necessarily result in adverse 

modification. Rather, we emphasize that 

chronic, or persistent noise sources are 

of concern and should be evaluated to 

consider the degree to which the noise 

may impede the population’s ability to 

use the habitat for foraging, navigating, 

and communicating, or whether the 

noise source may deter MHI IFKWs 

from using the habitat entirely. 

Our designation must be based on the 

best available scientific information at 

the time of designation and this 

includes considerable information on 

the species’ reliance on sound in the 

environment and the effects of sound on 

their ability to communicate, forage and 

travel. Although we may not be able to 

predict exactly what noise-related 

activities may result in adverse 

modification of critical habitat or the 

management measures that will be taken 

in the future, we conclude that sound is 

an important characteristic of this 

species’ habitat that may need special 

management considerations. 

While previous critical habitat 

designations may not always have 

directly identified sound levels as a 

characteristic of critical habitat, we have 

considered how anthropogenic noise 

affects habitat use for species that are 

susceptible to the adverse effects 

associated with in-water sound for 

example, by creating barriers to passage 

or movement of Southern Resident 

killer whales (71 FR 69054; November 

29, 2006) and Atlantic sturgeon (82 FR 

39160, August 17, 2017). Although we 

ultimately did not include sound as an 

essential feature for the Southern 

Resident killer whale, our designation of 

critical habitat for Cook Inlet beluga 

whales does include the essential 

feature of the absence of in-water noise 

at levels resulting in the abandonment 

of habitat by Cook Inlet whales’’ (76 FR 

20180; April 11, 2011). 

As discussed in the Final Biological 

Report, how human activities that 

introduce noise in the environment 

might change the animals’ use of habitat 

and determining the biological 

significance of that change can be 

complex and involve consideration of 

site specific variables, including: The 

characteristics of the introduced sound 

(frequency content, duration, and 

intensity); the physical characteristics of 


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the habitat; the baseline soundscape; 

and the animal’s use of that habitat. For 

the MHI IFKW designation, we include 

‘‘sound levels’’ as a characteristic of the 

essential feature, because it notifies 

Federal agencies of the significance of 

sound levels in supporting MHI IFKWs’ 

habitat use. Additionally, it allows these 

agencies to use the best available 

information to consider whether their 

activities may result in adverse effects to 

MHI IFKW habitat. 

Areas Included in the Designation 

Comment 7: We received several 

comments in support of the size and 

protections associated with the 

proposed designation. These comments 

generally acknowledged the importance 

of protecting habitat for this DPS. A 

number of these comments noted that 

the designation may provide ancillary 

habitat protections, thereby benefiting 

other species, biological resources, or 

cultural resources in Hawaiian waters. 

Response: We agree that critical 

habitat designations are important in 

supporting thoughtful planning for the 

conservation of a species and, as noted 

in the Draft and Final Economic 

Reports, these designations can provide 

ancillary habitat protections to other 

species and resources that overlap with 

those areas (Cardno 2017 and 2018). 

Comment 8: We received several 

additional comments about the overall 

size of this designation and the area 

included. Comments from BOEM and 

DAR suggested that the size of the 

designation was too large and both 

agencies recommended that NMFS 

focus the designation on high-use areas 

for IFKWs. Specifically, BOEM noted 

that the proposed designation includes 

the entire area used by this DPS, yet the 

proposed rule suggests that ‘‘high-use’’ 

and ‘‘low-use’’ areas within the 

designation may be used to identify 

special management considerations for 

siting offshore energy facilities. BOEM 

noted that the proposed rule considers 

access to high-use areas to be important, 

but does not describe how access may 

be affected by human activities in an 

open ocean environment. BOEM 

recommended focusing on ‘‘high-use 

areas to provide better definition for 

special management considerations 

and/or protections of habitat.’’ 

DAR referred to the large area of the 

proposed designation at 19,184 mi2 and 

noted that the proposal seemed overly 

large for 151 animals, providing an 

average of 127 mi2 per animal. DAR 

indicated that the non-uniform habitat 

use patterns of this DPS suggests that all 

waters within the 45–3,200 m depth 

range are not equally important and that 

designating all of these waters is not 

logical. DAR recommended that NMFS 

focus on the areas that seem to be 

important (i.e., high-use areas) as the 

basis for critical habitat designation. 

Comments received from the Marine 

Mammal Commission (MMC) also noted 

the large size of this designation and the 

potential difficulty in managing acute 

threats to IFKWs over a broad 

designation. However, the MMC also 

noted that, for the time being, the size 

of this designation was appropriate 

because information necessary to refine 

this designation is not yet available for 

this DPS. The MMC noted that the 

proposal meets the statutory 

requirements and went on to 

recommend that NMFS continue to 

undertake and support research needed 

to refine the designation in the future to 

further support recovery needs for this 

DPS. 

Response: We find that the area 

designated as critical habitat is 

appropriate and representative of the 

ecological needs of this large marine 

predator. Moreover, it is based on the 

best available information, and does not 

include the entire range of the DPS. The 

area that is being designated includes 

approximately 26.5 percent of this 

DPS’s range. The boundaries take into 

consideration the population’s 

preference for deeper waters just 

offshore (45 m) and align with habitat 

use on the leeward and windward sides 

of the islands, while also allowing for 

travel around and among the islands 

through the selection of the offshore 

depth boundary at 3,200 m. While much 

information has been gained about 

habitat use for this DPS, there is still 

more to be learned about how habitat 

use differs among social clusters and 

over time as seasonal or long-term 

oceanographic changes influence prey. 

As noted in this comment, the proposed 

rule and the Biological Report (Baird et 

al. 2012) applied a density analysis to 

MHI IFKW satellite tracking information 

to identify high-density areas (also 

referred to as high-use areas) of the 

DPS’s range; these portions of the range 

likely represent particularly important 

feeding areas for the animals 

represented in the data (Baird et al. 

2012). We note however, that the known 

high-use areas are not necessarily 

representative of all clusters, as very few 

animals from some clusters have been 

tagged to date. Based on the incomplete 

information available, we cannot 

conclude that the documented high-use 

areas represent all feeding areas or 

sources of prey essential for the 

conservation of this DPS. 

Rather, current information suggests 

that these whales travel great distances 

throughout the MHI (Baird et al. 2012), 

and their prey species are also known to 

be broadly ranging, widely migratory 

species that are patchily distributed 

throughout the whales’ range (Oleson et 

al. 2010). Additionally, these whales are 

observed feeding throughout the lowdensity areas of their range (Baird et al. 

2012). Although the data indicates that 

the whales concentrate efforts in certain 

areas where foraging success is high, 

additional information indicates MHI 

IFKWs continue to forage for prey 

located throughout their range; 

therefore, other areas of the waters 

surrounding the MHI meet the 

definition of critical habitat. 

We have not identified the high-use 

areas of the range as an independent 

feature of MHI IFKW critical habitat, but 

rather as a strong indicator of the 

presence of characteristics of the 

essential feature. We also use the 

information about known concentrated 

habitat use to evaluate the conservation 

value of areas, as noted in the ESA 

Section 4(b)(2) Report (NMFS 2018b). 

Because of the concentrated use of this 

habitat, we infer the conservation value 

for high-use areas to be higher than lowuse areas of the range. In other words, 

we considered that these high-use areas 

of the designation may offer more 

benefits to IFKWs and that the loss or 

degradation of these areas may result in 

a greater impact to the DPS as a whole. 

In our response to Comment 5, we note 

that we revised our Biological Report to 

clarify that we expect siting decisions 

for renewable energy projects to occur 

early in the planning stage rather than 

at the consultation stage. Nonetheless, 

we do expect planners to take into 

consideration IFKW use of a particular 

area and to minimize any potential 

impacts to these whales and their 

habitat. Thus, while the effects of 

certain technologies are largely 

uncertain, planning groups may choose 

to avoid placing projects in high 

conservation value areas if alternative 

locations exist in low-use areas. 

Comment 9: We received comments 

specific to the boundaries that were 

selected for the proposed designation. 

Two comments suggested that NMFS 

reconsider the inner boundary of the 

designation. In particular, the National 

Park Service recommended that the 

inner boundary of the designation be 

moved to 30 m in depth to incorporate 

additional areas where this DPS has 

been documented (in accordance with 

Baird et al. 2010) and to include a buffer 

zone. Alternatively, DAR suggested that 

NMFS use IFKW satellite tagging data to 

select a boundary for the designation. 

DAR noted that this data seems to 

support a critical habitat designation 


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that is in closer proximity to the islands, 

especially near Molokai and Hawaii. 

The Council requested that NMFS 

provide further clarification on the basis 

for selecting the outer boundary of 3,200 

m in depth. The Council noted that the 

depth appears to have been selected to 

allow the designation to be drawn in a 

continuous range around the MHI and 

that the designation may include areas 

that may not be essential to the 

conservation of the MHI IFKWs. The 

Council recommended that an 

alternative delineation be made based 

on different depth ranges around each 

island and the channels to account 

separately for habitat characteristics 

around each island and areas used 

among islands for movement. 

Response: In response to these 

comments we re-analyzed the data used 

to select the boundaries for this 

designation as well as new satellite 

information received from Cascadia 

Research Collective to determine if 

different boundaries may be 

appropriate. We also reviewed the data 

by island to consider whether 

alternative patterns exist at different 

depths or distances from shore. 

Review of this information revealed 

that 2.5–3.8 percent of satellite-tag 

locations were shallower than 45 m 

across the islands (the higher percent 

includes points located on land, which 

likely fall into shallow locations due to 

the associated error with these satellitetag locations). When we mapped 

shallow satellite-tag locations across the 

islands, we did not observe clear spatial 

patterns around each island, but saw 

that shallower use varied somewhat 

between islands. Similar to the 

proposed rule, we then reviewed depth 

frequency histograms of satellite-tag 

locations, but considered these locations 

specific to each island as requested by 

the above comments. These histograms 

varied slightly from island to island, but 

we noted that when high-use areas are 

located near islands, the depth 

frequency histogram for that island is 

skewed toward deeper depths, 

indicating these data may be limited in 

describing meaningful patterns around 

the entire island. In addition to 

considering depth around each island, 

we reviewed distance from shore and 

found similarly disparate patterns 

ranging from 500 m offshore to over 

1,200 m. Looking across the islands as 

a whole, less than four percent of the 

satellite-tag locations are found at 

depths shallower than 45 m, and this 

remains a depth at which the frequency 

of satellite-tag locations increases and 

remains more consistent. 

Throughout this review we 

considered whether prescribing a 

different depth or distance from shore 

for each island would provide more 

clarity about MHI IFKW habitat use or 

management of their habitat around 

each island; however, prescribing 

island-specific boundaries would not 

better match how these animals use 

Hawaiian waters. Given the DPS’s nonuniform treatment of habitat around 

each island, splitting these data by 

island may not partition the habitat in 

manner that is ecologically meaningful. 

With regard to the outer boundary, we 

selected the outer depth boundary to 

incorporate those areas of islandassociated habitat where MHI false 

killer whales are known to spend a 

larger proportion of their time (see highuse discussion in Movement and 

Habitat Use in the Biological Report), 

and to include island-associated habitat 

that allows for movement between 

islands and around each island. As 

noted above, these whales move great 

distances throughout the MHI, moving 

back and forth between areas off 

multiple islands. The 3,200 m depth 

boundary best aligns with the span of 

habitat used on the leeward and 

windward sides of the islands, allowing 

for ample space for these whales to 

move among areas of concentrated or 

high-use, including habitat across the 

core portions of the range. 

We have not revised the boundaries at 

this time because the commenters 

requested revisions are not supported by 

the data, although some aspects of our 

analysis indicate that further 

consideration may be warranted as 

additional information becomes 

available. The current delineation of 45– 

3,200 m is appropriate because it 

includes a depth just offshore where 

MHI IFKWs are more likely to be found 

and an outer boundary that aligns with 

habitat use on the leeward and 

windward sides of the islands, while 

allowing for travel around and between 

the islands. 

Comment 10: DAR provided 

comments on the vertical extent of this 

designation, noting that NMFS should 

limit the designation to those depths 

that are utilized by the DPS and their 

prey. DAR noted that 1,272 m is the 

maximum dive depth recorded for this 

DPS, and recommended that, similar to 

the monk seal critical habitat 

designation which focuses on the 

habitat 10-m from the bottom where 

monk seals forage, the IFKW 

designation focus on the upper 1,500 m 

of the water column which is the 

portion of the habitat being used by the 

IFKWs. 

Response: We considered the 

recommendation to limit this 

designation to the depth of 1,500 m; 

however, given the limited data 

available and other management 

considerations associated with water 

quality and sound, we have not limited 

the designation to a specific depth. For 

the Hawaiian monk seal we limited the 

critical habitat designation to 10 m from 

the bottom to help clarify where 

Hawaiian monk seal foraging areas, an 

essential feature of the designation, exist 

and to help clarify where protections 

should apply (80 FR 50926; August 21, 

2015). While we recognize that MHI 

IFKWs and their prey may limit their 

habitat use to specific depths, 

information about these patterns is still 

relatively limited. Further, sound levels 

and water quality, which also support 

the feature essential to the conservation 

of MHI IFKWs, may be at risk at a wider 

range of depths. 

Comment 11: One commenter noted 

that a study by Baird et al. (2011) found 

an island-associated population of false 

killer whales in the 

Papahanaumokuakea Marine National 

Monument and suggested that this area 

be added to the critical habitat of the 

MHI IFKW DPS, because the area is free 

of anthropogenic noises, and the listed 

species has been found in this region. 

The commenter went on to note that an 

expansion of critical habitat into this 

region may also shield the DPS from 

climate change impacts and prepare for 

range shifts in the DPS or in their prey 

as a result of climate change. 

Response: We have not included areas 

of the Papahanaumokuakea Marine 

National Monument in this designation 

of critical habitat because we find that 

this area is unoccupied habitat outside 

the range of the DPS and is not essential 

to its conservation. To be clear, the MHI 

IFKW is one of three false killer whale 

populations found in Hawaiian waters: 

The MHI IFKW, Northwestern Hawaiian 

Islands FKW, and pelagic FKW. Only 

the MHI IFKW is listed under the ESA. 

Although the range of the MHI IFKW 

overlaps with that of the Northwestern 

Hawaiian Islands and pelagic 

populations, the MHI IFKW range does 

not extend into the 

Papahanaumokuakea Marine National 

Monument. While we can consider 

designation of critical habitat outside 

the geographic range of a listed species, 

given the unique ecology of the MHI 

IFKW, their reliance on the shelf and 

slope habitat of the MHI, and the fact 

that another population of false killer 

whales occupies the waters of the 

NWHI, we find no information to 

suggest that waters in the NWHI are 

essential to conservation. Further, 

climate change predictions do not 

provide information that would allow 

us to conclude that the NWHI will 


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provide habitat that is essential to 

conserving MHI IFKWs. 

Areas Ineligible for Designation 

Comment 12: We received several 

comments that disagreed with or 

questioned our determination that the 

Joint Base Pearl Harbor Hickam (JBPHH) 

INRMP provides a benefit to MHI 

IFKWs. Comments received from the 

MMC, Natural Resources Defense 

Council (NRDC), the Center for 

Biological Diversity (CBD), and a 

researcher with the Cascadia Research 

Collective noted that MHI IFKW habitatuse information suggests that the 

overlapping areas (the Ewa Training 

Minefield and National Defensive Sea 

Area) provide important corridors for 

MHI IFKWs and that NMFS should 

consider this information in meeting its 

ESA section 4(a)(3) requirements. These 

comments also noted that the INRMP 

was approved prior to the listing of the 

MHI IFKW, and therefore does not take 

into account the unique conservation 

needs of this DPS. Comments from the 

MMC noted that JBPHH conservation 

measures mentioned in the proposed 

rule do not provide a direct, 

quantifiable, or obviously substantial 

benefit to MHI IFKWs. The MMC 

recommended that NMFS withdraw its 

proposed determination and subsequent 

preclusion of areas managed under the 

JBPHH, but if retained, that the INRMP 

be updated to include activities that 

benefit IFKWs more directly. In a joint 

comment, NRDC and CBD also noted 

that there is not a direct link between 

the JBPHH conservation measures and 

direct benefits to the MHI IFKW or their 

prey. NRDC and CBD noted that many 

of these measures are merely proposed 

and not yet officially included in the 

JBPHH INRMP, which is due to be 

drafted in 2018. NRDC and CBD 

similarly recommended that NMFS reevaluate its consideration of whether 

the INRMP provides a benefit to MHI 

IFKWs and that NMFS not preclude 

these areas from the critical habitat 

designation due to the high 

conservation value of these areas for 

MHI IFKWs. 

Response: In response to these 

comments we reviewed our 

determination regarding the JBPHH 

INRMP; we also contacted the Navy for 

additional information about the ongoing implementation and the plans for 

revision of this INRMP. As noted in the 

ESA Section 4(b)(2) Report (NMFS 

2018b), regulations at 50 CFR 424.12(h) 

provide that the Secretary will not 

designate as critical habitat DOD lands 

that are subject to an INRMP if the 

Secretary determines in writing that 

such plan provides a conservation 

benefit to the species for which critical 

habitat is being designated. In 

determining whether such a benefit is 

provided, NMFS considers (1) the extent 

of the area and features present; (2) the 

type and frequency of use of the area by 

the species; (3) the relevant elements of 

the INRMP in terms of management 

objectives, activities covered, and best 

management practices, and the certainty 

that the relevant elements will be 

implemented; and (4) the degree to 

which the relevant elements of the 

INRMP will protect the habitat from the 

types of effects that would be addressed 

through a destruction-or-adversemodification analysis. Importantly, 

NMFS can find that an INRMP provides 

a benefit to a species where, as here, the 

species is not directly addressed in the 

INRMP. In these cases, we consider 

adaptive conservation management for 

the feature essential to the conservation 

of the species (i.e., its habitat features) 

or the species itself either directly or 

indirectly. We also consider whether 

adaptive conservation management 

measures are effective and reasonably 

certain to be implemented. 

The JBPHH INRMP overlaps with the 

areas under consideration for critical 

habitat in two areas, the Naval 

Defensive Sea Area and the Ewa 

Training Minefield, which include 

approximately 27 km2 (∼10 mi2) of area 

or approximately 0.5 percent of the 

areas under consideration for critical 

habitat. Based on our review of relevant 

data, including supplemental satellitetracking information from Cascadia 

Research Collective (3 new animals), we 

consider these areas to be low-use (lowdensity) areas for MHI IFKWs, and note 

that they travel through these areas at 

moderate levels (see Figure 4 of the ESA 

Section 4(b)(2) Report). We therefore 

consider these areas to be of low to 

moderate conservation value to MHI 

IFKWs in comparison to other areas of 

the designation. 

During development of the proposed 

rule the Navy highlighted a number of 

JBPHH management efforts that benefit 

MHI IFKW habitat. After reevaluation, 

we still find that the JBPHH INRMP 

provides a number of conservation 

measures that benefit MHI IFKWs and 

their habitat, including those that 

address water quality and fishery prey 

base (see the Application of ESA Section 

4(a)(3)(B)(i)(Military Lands) section of 

this rule). Specifically, measures taken 

to improve water quality, including 

restoration projects and pollution 

prevention plans, directly improve or 

maintain the water quality characteristic 

of MHI IFKW critical habitat. Actions 

taken to remove feral animals, as well as 

restrictions on free roaming cats in 

residential areas, also help to maintain 

water quality and lower the risk of 

infectious agents being introduced into 

MHI IFKW habitat. The Navy’s 

participation as an active member of the 

Toxoplasmosis and At-Large Cat 

Technical Working Group helps address 

issues that JBPHH faces on base and 

encourages a broader response to a 

conservation issue that threatens much 

of Hawaii’s wildlife, including MHI 

IFKWs. Finally, the Navy has issued 

fishing restrictions adjacent to and 

within areas that overlap the potential 

designation, and conducts creel surveys 

that provide information about fisheries 

in unrestricted areas of Pearl Harbor. 

These measures provide protections for 

and information about the marine 

ecosystem and food web that supports 

MHI IFKW prey species. 

We find that some of these protections 

(e.g., stormwater and pollution 

measures or watershed enhancement 

activities) address effects that would 

otherwise be addressed through an 

adverse modification analysis (provided 

they are not already addressed through 

baseline protections). Other 

conservation measures (e.g., controlling 

cats to prevent the spread of 

toxoplasmosis and fishery restrictions) 

address effects to MHI IFKW habitat that 

otherwise may not be subject to a 

section 7 consultation. In these 

instances, the Navy’s INRMP provides 

protections aligned with 7(a)(1) of the 

ESA, which instructs Federal agencies 

to aid in the conservation of listed 

species. 

As part of an adaptive management 

approach for this INRMP, NMFS staff 

participates in JBPHH INRMP annual 

reviews to provide recommendations 

about plan implementation and 

effectiveness and to receive information 

about upcoming plan amendments. 

These reviews help ensure that the plan 

provides an effective mechanism for 

addressing MHI IFKW conservation 

within areas managed under the JBPHH 

INRMP. Specifically, the reviews 

provide a reliable method for feedback, 

regular assurances that the abovedescribed conservation measures are 

being implemented, and a procedure for 

assessing and modifying measures to 

ensure conservation effectiveness. 

Although not essential to our 

determination that the JBPHH INRMP 

provides a benefit to the MHI IFKW, we 

also take into consideration additional 

future measures that the Navy plans to 

include in updates to the INRMP by 

December 2018. These expected 

additional measures include (1) specific 

information about MHI IFKWs, (2) 

where MHI IFKWs may be found in 

areas managed by the installation, (3) 


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new projects associated with watershed 

enhancement, and (4) mandatory 

mitigation measures already used by the 

Pacific Fleet to minimize impacts to 

MHI IFKWs as they use these areas. 

Procedural mitigation measures are 

mandatory activity-specific measures 

taken to avoid or reduce the potential 

impacts on biological resources from 

stressors, including those that may 

cause acoustic or physical disturbance 

to marine mammals during Navy 

training and testing. These procedural 

measures are required in the Navy’s 

Protective Measures Assessment 

Protocol consistent with letters of 

authorization for training activities 

issued under the MMPA and supporting 

ESA analyses. Procedural mitigation 

measures are adaptively managed as 

new information becomes available 

about effective mitigation techniques 

and are identified in the current HawaiiSouthern California Training and 

Testing Final Environmental Impact 

Statement. Examples of measures 

include training personnel to spot and 

identify marine mammals (lookouts), 

reporting requirements for trained 

lookouts, and halt or maneuvering 

requirements when marine mammals 

are spotted within identified mitigation 

zones of Navy activities (DON 2013 and 

2017c). Although not restricted to the 

JBPHH areas, these mandatory 

mitigation measures help ensure that 

the Navy will avoid or reduce the 

impacts from acoustic stressors on MHI 

IKFWs as the INRMP is updated by 

December 2018. 

After careful review, we are satisfied 

that the Navy’s 2011 JBPHH INRMP 

provides a benefit to the MHI IFKW in 

this relatively small (0.5 percent of 

habitat that overlaps with areas that 

meet the definition of MHI IFKW 

critical habitat) area having lowmoderate conservation value to MHI 

IFKWs. We are satisfied that the Navy’s 

documented history of consistent plan 

implementation and their commitment 

to adaptive management through the 

implementation of mandatory 

mitigation measures will ensure that 

MHI IFKWs receive benefits under the 

JBPHH INRMP, particularly with respect 

to improving watershed health in the 

Pearl Harbor area, which will benefit 

prey and water quality characteristics. 

Further, we expect that the Navy will 

continue to strengthen its INRMP 

through scheduled updates to be 

completed by December 2018. 

Comments on the Economic Impacts 

Comment 13: We received comments 

from BOEM indicating that the 

proposed rule did not describe the full 

range of the economic effects because 

the analysis was limited to a discussion 

of incremental administrative costs and 

did not describe, quantitatively or 

qualitatively, the cost factors associated 

with changes in site selection should 

the proposed critical habitat be 

interpreted to require such changes. 

BOEM noted that even small changes to 

siting decisions can equate to large 

costs, and that during initial planning 

these decisions can impact the viability 

of developing reliable and cost-effective 

renewable energy resources. 

Additionally, BOEM noted that ‘‘the 

economic report does not appear to 

reconcile the estimated increases in 

administrative costs between sectors 

[comparing energy and fisheries] when 

compared with its conclusions for the 

management needs that are used to 

justify incremental increases in 

administrative costs.’’ 

Response: As noted in our response to 

Comment 2, we expect that BOEM will 

make site location decisions that 

minimize potential effects to MHI 

IFKWs and their habitat early in the 

planning process (Gilman et al. 2016). 

We also note that current potential site 

locations are predominantly found in 

low-use habitat areas. Accordingly, we 

have revised the Biological Report to 

clarify that site relocation is not an 

anticipated modification identified 

during section 7 consultation for this 

designation. With regard to the 

comment about estimated increases in 

administrative costs between sectors, 

Chapter 4 of the Economic Report 

(Cardno 2018) points out that the 

administrative costs for each activity are 

estimated using the number of 

consultations for that activity over the 

last 10 years (from NMFS section 7 

database) as well as any information 

gathered about likely future projects that 

may require consultation. These 

administrative costs take into 

consideration whether technical 

assistance, informal, formal, or 

programmatic consultation is expected 

and do not include incremental costs 

associated with any recommended 

project modifications to minimize the 

impacts to critical habitat (see Table 4– 

1; Cardno 2018). The administrative cost 

differences between fishery activities 

and energy activities are therefore based 

on the number and type of consultations 

expected over the next ten years and do 

not include any incremental 

modification costs associated with 

consultation. Fishery activities regularly 

undergo consultation around Hawaii, 

and the consultation history indicated 

that this category of activity underwent 

7 formal, 17 informal and 2 technical 

assistances over the 10-year period. 

Thus, the administrative costs for 

fishery activities were estimated 

assuming a similar pattern of 

consultation. Renewable energy 

development activities do not have the 

robust history of consultation in Hawaii 

that fishery activities have. As such, we 

estimated the administrative costs for 

these activities based on information 

provided about three anticipated 

projects within the next 10 years (the 

time frame of the analysis), which are 

assumed to require formal consultation. 

BOEM and Hawaii State Energy staff 

indicated that there was uncertainty 

regarding whether the projects would be 

implemented in the next ten years. As 

such, the administrative cost estimates 

for energy activities were estimated in a 

range from a low of 0 to a high of 16,000 

dollars, to reflect alternatives in which 

none of the projects occur (0 dollar 

estimate) and all three projects occur 

and require consultation in the next 10 

years (16,000 dollar estimate). 

Comment 14: DAR provided 

comments suggesting that Federal 

agencies may not be the only ones 

impacted by a broad designation and 

noted that an overly broad critical 

habitat designation wouldn’t necessarily 

identify important habitats that are 

essential for the conservation of the 

species and could unintentionally and 

unnecessarily, increase management 

costs. This comment referred to costs 

and delays to projects associated with 

the management of Essential Fish 

Habitat (EFH) and suggested that a 

broad critical habitat designation could 

result in similar costs and delays. 

Response: As noted in our response to 

Comment 8, we conclude that this 

designation is representative of the 

ecological needs of this endangered 

population and is based on the best 

available information. We do not agree 

that designation is overly broad, as it is 

based on habitat characteristics that 

support important biological needs, and 

includes less than thirty percent of the 

IFKW’s occupied range. Moreover, as 

noted in the Economic Report (Cardno 

2018), the economic impacts of this 

designation are low because the 

designation does not include many 

nearshore areas, including developed 

shoreline, harbors and inlets, where a 

majority of Hawaii’s marine section 7 

consultations occur, and because 

existing regulatory measures provide 

some baseline protections for habitat 

characteristics, such as water quality 

and prey. As such, we anticipate that 

the costs of this designation will be 

largely attributed to federally-managed 

fisheries, Department of Defense 

activities, and marine-related 

construction and energy development, 


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and we do not anticipate that the 

additional consultation on effects to 

critical habitat will result in significant, 

additional project delays or costs. 

We note that the consultation process 

for critical habitat under the ESA and 

EFH under the Magnuson-Stevens Act 

have different requirements and work 

under different timeframes. We have no 

basis to conclude that the costs 

associated with conserving existing EFH 

are related to costs associated with this 

critical habitat designation. 

Comments on 4(b)(2) Exclusions 

Comment 15: The MMC provided 

comments on the 4(b)(2) weighing 

process for national security exclusions, 

expressing concerns that, without a 

quantitative analysis of benefits to 

security or conservation, decisions to 

designate or exclude an area from the 

designation based on qualitatively 

balancing IFKW use with potential 

regulatory compliance burden appear to 

be somewhat arbitrary. The MMC, 

provided examples: ‘‘Waters Enroute to 

PMRF,’’ Kingfisher Range, and Kaula 

and Warning Area 187, in which NMFS 

chose not to exclude the first area and 

to exclude the second and third areas, 

using essentially the same reasoning of 

having low MHI IFKW use and a minor 

impact to the Navy’s consultation. The 

MMC recommended that NMFS 

reconsider its benefit analysis, and 

investigate methods to draw 

equivalence, ideally quantitative, 

between conservation benefits inferred 

from IFKW usage and benefits of relief 

from potential regulatory compliance 

impacts. 

Response: We have not identified a 

quantitative method to compare the 

benefits of excluding particular areas for 

national security to the benefits of 

designation of critical habitat for MHI 

IFKWs. A qualitative approach allows 

us to better evaluate the different factors 

that weigh in the balancing test. We 

note that even where we have 

quantitative information, that 

information is incomplete and may 

require qualitative assessment. For 

example, in our comparison of benefits 

of exclusion versus benefits of 

designation, we consider MHI IFKW 

habitat use in areas where satellite 

tracking information may be 

underrepresented (e.g., areas known to 

be used by cluster 2 and 4 animals). 

With regard to the ‘‘Waters Enroute to 

PMRF,’’ Kingfisher Range, and Kaula 

and Warning Area 187 examples, we 

disagree that our weighing process was 

inconsistent in the proposed rule, and 

we note that key differences in our 

analyses outlined in the ESA Section 

4(b)(2) Report turned on differences 

associated with the size of the requests, 

the control that DOD has over each area, 

and the likelihood that other Federal 

activities may require consultation and 

may occur in each area. For example, 

both the Kingfisher and Kaula areas are 

relatively small in size, and DOD 

control and use of these areas are likely 

to preclude other Federal activities that 

would otherwise undergo consultation, 

thus presenting a lower benefit of 

designating critical habitat in these 

areas. In contrast, ‘‘Waters Enroute to 

PMRF’’ includes a larger area in which 

the Air Force’s activities and use are not 

likely to preclude other Federal 

activities that would otherwise undergo 

consultation. However, based on this 

comment, and the question raised about 

inconsistencies in our decision making 

process, we have revised tables in our 

ESA Section 4(b)(2) Report to articulate 

more clearly the differences in our 

determinations for this weighing 

process. 

As noted above, we have reassessed 

our evaluation of the waters south and 

east of PMRF (the Kaulakahi Channel 

portion of Warning area 186) after 

considering supplemental information 

furnished by the Navy in October of 

2017, and for the reasons discussed 

above, we concluded that the benefits of 

excluding this area outweigh the 

benefits of designation. While the 

Kaulakahi Channel portion of Warning 

area 186 overlaps in part with the 

‘‘Waters Enroute to PMRF,’’ these two 

areas were assessed independently 

based on differences in the geographic 

scopes of the requests made by the Air 

Force and Navy, as well as differences 

in the activities occurring in these areas 

(DOAF 2017, DON 2017b, DON 2018). 

Although our independent weighing of 

the Air Force’s request for the ‘‘Waters 

Enroute to PMRF’’ area did not change, 

we note that a portion of this area is 

now excluded from critical habitat 

because it overlaps with the Kaulakahi 

Channel portion of Warning area 186, 

where the benefits of exclusion (for 

Navy activities) were found to outweigh 

the benefits of designation. 

Comment 16: Cascadia Research 

Collective’s Researcher Robin Baird, 

Ph.D., provided additional information 

about MHI IFKW habitat use for 13 of 

the areas analyzed in our 4(b)(2) 

national security exclusion process as 

well as the six additional areas we 

identified in the proposed rule but for 

which we did not include a proposed 

exclusion determination. This 

information included analyses of a 

larger sample size of satellite tag data 

from that reported in the Draft 

Biological Report (i.e., 3 additional 

individuals’ data was included with the 

27 already considered in the Draft 

Biological Report). Using this satellitetag information and the boundaries of 

the areas under consideration for 

exclusion, Baird calculated the total 

area requested for exclusion (in km2), 

percent of the total range, percent of 

total time spent in an area, days spent 

in area (per 100 km2), and the number 

of visits (per 100 km2). Baird noted that 

these analyses show that a number of 

areas that are proposed for exclusion are 

relatively high-use areas or appear to be 

important as transit areas. Baird noted 

that NMFS should reconsider the 

exclusion of areas such as FORACS and 

SESEF based on these calculations. 

Baird also noted that the NDSA and Ewa 

Training Minefield, which were 

determined ineligible under 4(a)(3), also 

lie within the same important transit 

corridor off Oahu, and that NMFS 

should reconsider this decision in terms 

of the costs of not including these two 

areas in critical habitat. Comments 

received from NRDC also requested that 

we reconsider the exclusion of 

FORACS, SESEF, and Kingfisher in light 

of these areas being high transit areas. 

With regard to the six additional areas 

under consideration for exclusion, Baird 

noted that only one area, the Kaulakahi 

Channel Portion of W–186, represents 

an area that is likely not particularly 

important to the population. The other 

five areas, however, represent areas 

where MHI IFKWs spend a 

disproportionate amount of time. NRDC 

and the CBD also commented that the 

NMFS should not exclude the area 

south of Oahu, the Kaiwi Channel, or 

the Alenuihaha Channel due to the 

importance of areas to MHI IFKWs. 

Response: We have reanalyzed the 

areas under consideration for exclusion 

using the Navy’s initial June 2017 

request, as supplemented by its October 

2017 input and Baird’s updated satellite 

tracking information. As noted in the 

Draft ESA Section 4(b)(2) Report (NMFS 

2017b), for the proposed rule we relied 

on density analysis of satellite-tracking 

data to provide information about MHI 

IFKW habitat use, and the conservation 

value for high-use areas was inferred to 

be higher than low-use areas of the 

range. For particular areas of the range, 

we also used additional information 

(e.g., observational data of MHI IFKWs 

from boat surveys in portions of the 

MHI) that may supplement our current 

understanding of MHI IFKW habitat use 

patterns, because current information 

provides a limited representation for 

social clusters 2 and 4. 

To consider the conservation value of 

a particular area relative to other areas 

of the potential designation, we overlaid 

tracking information from Cascadia 


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Research Collective across the whole 

area under consideration for designation 

using the grid squares from the highdensity areas analysis (from Baird et al. 

2012). We calculated the number of 

times tagged animals passed through 

each grid square and used the standard 

deviation from these calculations to 

display travel areas from high to low 

across the range, similar to the highdensity areas. We incorporated 

information relevant to travel within 

these areas into our considerations with 

regard to the benefits of designation, 

along with information that may 

supplement our knowledge of particular 

areas with regard to MHI IFKWs (see 

ESA Section 4(b)(2) Report for 

additional detail; NMFS 2018b). 

Looking at the maps of MHI IFKW 

high-density and travel information, 

FORACS includes areas that fall within 

low-use areas and moderate to low 

transit areas, and SESEF and Kingfisher 

generally fall within low-use areas and 

low transit areas. After taking into 

consideration DOD’s use of the area 

(including the types of activities that 

occur here and the uniqueness of that 

activity), the likelihood of changes to 

the consultation, the level of protection 

already provided by management and 

the likelihood of non-DOD actions 

occurring in these areas, we confirm our 

initial finding that the benefits of 

excluding these areas for national 

security still outweigh the benefits of 

designation. While we recognize that 

travel to, from, and around habitat areas 

is important for these whales, we find 

that existing management protections 

provide adequate levels of protections 

for these sites and that Navy control and 

use of these areas is likely to deter other 

non-DOD actions that may otherwise 

require consultation in these particular 

areas. As such we have excluded these 

areas from the final designation. 

With regard to the six additional areas 

under consideration for exclusion, we 

reviewed each area consistent with the 

review of all other areas considered for 

national security exclusions for this 

rule. We agree with commenters that 

three of these areas (the area north and 

east of Oahu, the Kaiwi Channel, and 

the area south of Oahu) represent highuse or high to moderate travel areas for 

MHI IFKWs. However, the Kaulakahi 

Channel Portion of W–186, and the area 

north of Molokai fall within mostly lowuse and low travel areas of the 

designation. Additionally, as noted in 

the Summary of Changes from the 

Proposed Rule section above, the 

Alenuihaha Channel request was 

reduced in geographic scope to only 

include those deeper areas of the 

Channel that support Undersea Warfare 

training, which only overlaps with lowuse and low-travel areas. 

For the Kaulakahi Channel Portion of 

W–186, the area north of Molokai, and 

the reduced Alenuihaha Channel area 

(NMFS 2018b), we found that the 

benefits of exclusion for national 

security outweigh the benefits of 

designating MHI IFKW critical habitat. 

We note that on June 22, 2017, the Navy 

requested exclusion of these areas as a 

subset of the larger ‘‘Entire Area’’ and, 

in the case of the area north of Molokai, 

as a subset of the ‘‘four islands region.’’ 

NMFS initially proposed not to exclude 

these two larger units. Although the 

June 22, 2017, request provided a full 

description of the defense activities in 

these areas (DON 2017a as referenced in 

NMFS 2017b), the Navy’s supplemental 

submission in October 2017 helped 

improve our understanding of the 

geographic scope of the particular 

impacts to national security in the 

Kaulakahi Channel Portion of W–186 

and the area north of Molokai (see 

Figure 2 of the proposed rule (82 FR 

51186; November 03, 2017) and NMFS 

2018b). Additionally, the Navy provided 

supplemental information regarding 

training activities in the Alenuihaha 

Channel, and clarified that its request 

for exclusion included only the deeper 

areas of the Channel that support 

Undersea Warfare training exercises. We 

also note that all three of these areas 

represent largely low-use and lowtransit habitat and were identified as 

significant for Navy use and activities. 

Given our improved understanding of 

the defense activities conducted and the 

reduced size of the exclusions, we 

conclude that the benefits of exclusion 

outweigh the benefits of designating 

critical habitat, and that exclusions will 

not result in extinction of the species. 

With respect to the remaining three 

sites (the area north and east of Oahu, 

the Kaiwi Channel, and the area south 

of Oahu), we found that the benefits of 

designation outweighed the benefits of 

exclusion, largely because these areas 

represent high-use or high to moderate 

transit areas for MHI IFKWs and other 

non-DOD activities that may require 

consultation may occur in these areas. 

With regard to the comment on the 

Naval Defensive Sea Area and the Ewa 

Training Minefield, we refer to our 

response to Comment 12 regarding our 

decision to find that the JBPHH INRMP 

provides a benefit to MHI IFKWs. 

Comment 17: We received comments 

from the MMC requesting that NMFS 

provide an opportunity for the public to 

comment on the inclusion or exclusion 

of any of the six areas that were still 

under consideration for national 

security exclusion for the Navy. 

Similarly, NRDC and CBD noted that the 

public should have the opportunity to 

comment on the exclusion of any of 

these areas, given the large size and 

overlap with significant proportion of 

the proposed critical habitat 

designation. 

Response: As explained above, we 

have exercised our discretion to exclude 

three of the six sites requested, the 

Kaulakahi Channel Portion of W–186, 

the area north of Molokai, and the 

reduced Alenuihaha Channel area 

(NMFS 2018b), because we find that the 

benefits of exclusion for national 

security outweigh the benefit of 

designating MHI IFKW critical habitat. 

As indicated above, on June 22, 2017, 

the Navy requested exclusion of these 

areas as a subset of a larger ‘‘Entire 

Area’’. The Navy also requested 

exclusion of the area north of Molokai 

as a subset of the larger ‘‘four islands 

region’’. In the proposed rule, we 

determined that these areas did not 

warrant exclusion as part of the larger 

units. While the Navy’s June 22, 2017, 

request provided a full description of 

the defense activities conducted in these 

areas, the Navy’s supplemental 

submission in October 2017 helped us 

reassess our initial decision in the 

context of a more spatially limited area. 

Additionally, the Navy clarified that it 

was only seeking exclusion of the 

deeper areas of the Alenuihaha Channel 

that support Undersea Warfare training 

exercises. Because in the proposed rule 

we identified both the national security 

importance of the areas as well as the 

Navy’s supplemental request limiting 

the geographic scope of the requested 

exclusions, we are satisfied that the 

public was afforded a sufficient 

opportunity to comment on the 

proposed exclusions. 

Comment 18: We received several 

comments on the proposed exclusion 

related to the BOEM Call Area, found 

northwest and south of Oahu. 

The Navy submitted comments noting 

that, while the Navy supports the 

exclusion of areas suitable for renewable 

energy development, portions of the 

currently identified areas (BOEM Call 

Areas) are not suitable for renewable 

energy development, due to national 

security concerns. The Navy asserted 

that it is committed to bringing 

renewable energy to Oahu and has 

identified alternative locations which 

the Navy deems suitable. In support of 

identifying areas for renewable energy 

development, the Navy completed an 

assessment of areas (see http://

greenfleet.dodlive.mil/rsc/departmentof-the-navy-hawaii-offshore-windcompatibility/) around Oahu, noting 

where commercial wind energy projects 


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are not compatible with military 

activities and identifying only small 

sections of the two sites (i.e., two 

sections of the Call Area) that are 

compatible (DON 2016). 

Response: We understand that the 

Navy and BOEM continue to discuss 

areas that are suitable for military 

activities as well as offshore energy 

production and that, through these 

consultations, the most suitable sites 

will be selected for wind-energy 

development. However, in determining 

the economic costs of this designation, 

we rely on the best available 

information to identify where economic 

costs are likely to occur. The two sites 

noticed as the BOEM Call Area (81 FR 

41335; June 24, 2016) remain significant 

in meeting Hawaii’s renewable energy 

goals as these sites have been identified 

as areas where wind resources, water 

depth, and proximity to shore are 

favorable for wind-energy development. 

Given that the boundaries of these two 

sites have not been revised and that the 

sites are noted as significant for energy 

development, we have weighed the 

benefit of excluding the BOEM Call 

Area based on the economic impacts 

that may result from this designation. 

After determining that economic 

benefits of exclusion outweigh the 

benefits of designation, we have 

excluded the BOEM Call Area from this 

critical habitat designation (see the 

Economic Impacts of Designation 

section). 

Comment 19: Several other comments 

(received from the MMC; NRDC and 

CBD (in a joint letter); and the Humane 

Society of the United States, the 

Humane Society Legislative Fund, and 

Whale and Dolphin Conservation (in a 

joint letter)) expressed disagreement 

with NMFS’ weighing of the benefits of 

exclusion versus the benefits of 

designation for the BOEM Call Area and 

recommended that NMFS not exclude 

the sites from critical habitat. Among 

these, several comments noted that the 

benefits of exclusion do not appear to 

outweigh the benefits of designation, 

particularly because these areas 

represent rather large sections of habitat, 

which additional satellite tracking 

information suggests is important to 

MHI IFKWs for travel. Comments noted 

the scientific uncertainty about the 

effects of renewable energy and largescale in-water projects on MHI IFKWs 

and their habitat and noted that these 

factors should favor providing 

additional protections for the habitat of 

an endangered DPS with a restricted 

range. 

In recommending that NMFS not 

exclude this area, the MMC noted that 

NMFS should only consider exclusion 

in instances in which the exclusion 

would not result in the extinction of the 

DPS and noted that, due to the 

precarious status of IFKWs, the apparent 

importance of its entire range to its 

continued existence, and NMFS’ 

inability to identify which factor or 

factors caused the population to decline 

in the past and may continue to threaten 

its persistence, the exclusion of any of 

the areas proposed as critical habitat 

from the final designation could 

contribute to the population’s eventual 

extirpation. 

Response: As noted in our response 

above, we have excluded the BOEM Call 

Area (both of the sites northwest and 

south of Oahu) from this designation 

(see the Economic Impacts of 

Designation section) Generally, these 

areas include low-use and lower transit 

areas for MHI IFKWs, although small 

areas of overlap occur with moderate 

transit areas along the northeast tip and 

eastern edge of the south Oahu area. As 

noted in the ESA Section 4(b)(2) Report, 

NMFS is satisfied that there are 

sufficient pathways within critical 

habitat to allow for unimpeded transit 

for MHI IFKWs and that the small 

overlap in this area will not 

significantly impede MHI IFKW 

movement to other areas of critical 

habitat, due to the relatively small size 

of this overall exclusion (NMFS 2018b). 

Although large in-water construction 

projects are an activity of concern for 

this DPS, consultations required to 

ensure that activities are not likely to 

jeopardize the MHI IFKWs are expected 

to achieve substantially the same 

conservation benefits of designating this 

area as critical habitat for this DPS. 

Moreover, Federal activities in this area 

for wind energy development are not 

expected to result in destruction or 

adverse modification of MHI IFKW 

critical habitat. 

Given the significance of this offshore 

area in supporting renewable energy 

goals for the State of Hawaii and the 

goals of Executive Order 13795, the low 

administrative costs of this designation, 

the existing baseline protections, and 

the low-use by MHI IKFWs, we find that 

the benefits of exclusion of this area 

outweigh the benefits of designation. 

Based on our best scientific judgment 

and acknowledging the relatively small 

size of the area (approximately 0.2 

percent of the overall designation), and 

other safeguards that are in place (e.g., 

protections already afforded MHI IFKWs 

under its ESA listing, or regulatory 

efforts that provide ancillary protections 

to water quality and prey 

characteristics, such as the Clean Water 

Act as amended by the Oil Pollution 

Act, or the Magnuson-Stevens Fishery 

Conservation and Management Act), we 

find that exclusion of this area will not 

result in the extinction of the species. 

Furthermore, we conclude that none 

of the exclusions will result in 

extirpation of the species. As previously 

noted, this population and its habitat 

benefit throughout its range from other 

protections under the ESA as well as 

other statutes and their regulations. In 

addition, the exclusions outlined in this 

rule are limited in scope and include 

habitat that is of lower conservation 

value for this population. Thus, this 

designation provides protections 

throughout the core portions of the MHI 

IFKWs’ range and in areas of high 

conservation value. 

Comment 20: One comment expressed 

concerns that the BOEM Call Area 

identified for exclusion could be subject 

to changes after the public’s ability to 

comment and noted that it was not clear 

if the public will have an opportunity to 

see and comment on any changes that 

could adversely affect protection of the 

area critical to the survival of this DPS. 

Response: As noted in our responses 

above, we are excluding the BOEM Call 

Area that was noticed in our proposed 

rule and, as a result, revisions have not 

been made to the boundaries. While we 

recognize that ongoing negotiations 

between the Navy and BOEM and 

additional public participation may 

result in future Call Area boundary 

changes, we base our decision on the 

best information currently available and 

do not speculate on revisions that may 

occur in the future. The basis for our 

excluding this area for economic 

impacts has not changed from the 

proposed rule (see the Economic 

Impacts of Designation section). 

Comment 21: One comment noted 

that designation of critical habitat in 

these areas will benefit BOEM, the State 

of Hawaii, and prospective offshore 

wind developers by raising awareness 

that the endangered MHI IFKW may be 

regularly transiting through the site and 

allowing these groups to appropriately 

evaluate the risks of any prospective 

development. 

Response: We agree with the 

commenter’s assertion that the 

designation of critical habitat will raise 

awareness and provide public education 

benefits regarding habitat use of MHI 

IFKWs (Cardno 2018), and will allow 

prospective developers to evaluate the 

risks of developing in particular areas of 

this designation. However, as more fully 

described above, we also found that for 

the BOEM Call Area, the benefits of 

exclusion outweigh the benefits of 

designation and that exclusion of this 

mostly low-use area of habitat will not 

result in extinction of this DPS. 


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Comment 22: We received comments 

that expressed concern as well as 

confusion about the areas being 

proposed for exclusion and the 

protections associated with critical 

habitat. One commenter expressed 

concern that a fractured critical habitat 

designation, due to exclusions, would 

not provide benefits to MHI IFKWs. 

Another commenter disagreed with the 

exemption of military agencies from this 

rule and noted that the military should 

be required to obtain permission to 

conduct projects within critical habitat. 

A third commenter noted that loud 

anthropogenic noise created from 

military activities are in violation of the 

Marine Mammal Protection Act because 

it can cause damage to the whales’ 

echolocation system. This commenter 

suggested that NMFS take into 

consideration a study by Nachtigall and 

Supin (2013) on the effects of the louder 

sounds on false killer whale 

echolocation systems. 

Response: The 4(b)(2) exclusion 

process allows us to consider the 

benefits of designating critical habitat 

compared with the benefit of excluding 

particular areas due to economics, 

national security, or other relevant 

impacts, as long as the exclusion of that 

area will not result in extinction of the 

species. Although we have excluded 

certain areas from designation, ESA 

protections still apply to MHI IFKWs 

wherever the species is found 

(including the excluded areas) due to 

their listing, and all Federal agencies 

(including military agencies) that 

authorize, fund, or carry out activities in 

these areas will still be subject to 

section 7 consultation to ensure that 

their activities are not likely to 

jeopardize the continued existence of 

the species. It is through this 

consultation process that the effects of 

sound, as well as other effects of the 

action on individuals and the 

population are considered. Further, 

there are often other regulatory 

protections for marine habitat that will 

support to some degree the 

characteristics and feature of MHI 

IFKWs critical habitat (e.g., the Clean 

Water Act and the Magnuson-Stevens 

Fishery Conservation and Management 

Act). Based on these underlying 

protections and the designation of 

critical habitat, which still includes 

large contiguous portions of high and 

low-use habitat, we conclude that MHI 

IFKWs will benefit from this 

designation. See the Benefits of the 

Designation section and the Economic 

Report (Cardno 2018) for further detail 

regarding direct and ancillary benefits of 

designation. 

With regard to the comments about 

requiring permission and minimizing 

the impacts of sound, we also refer back 

to our response to Comment 1, which 

explains that military activities already 

undergo consultation to minimize the 

impacts of their activities and ensure 

they are not likely to jeopardize the 

species. Specifically, military readiness 

activities in the Hawaii Range Complex 

are subject to a 5-year MMPA incidental 

take authorization for marine mammals, 

which is subject to ESA consultation. 

These review and consultation efforts 

under the ESA and MMPA help to 

identify management or mitigation that 

may be necessary to minimize adverse 

impacts to MHI IFKWs, and such 

analyses include reviews of the best 

scientific information available, 

including works such as Nachtigall and 

Supin (2013), to help identify mitigation 

measures. MHI IFKW critical habitat 

will establish an additional 

consideration to the existing ESA 

section 7 consultation process in 

designated areas. 

Comments on the Biological Report 

Comment 23: We received comments 

referring to figures used in the 

Biological Report. One comment noted 

that the report illustrates the boundaries 

of the critical habitat but fails to 

indicate that areas would be excluded. 

This comment recommended that 

NMFS avoid public confusion about the 

actual designation by including maps 

that depicted the full designation, 

including all exclusions, in this report. 

A comment also requested that we reexamine more recent data when 

reviewing habitat use by this DPS. This 

comment noted that a figure from Baird 

et al. (2015) shows areas of higher 

habitat use that are not reflected in 

Figure 4 of the Biological Report. 

Response: The Biological Report is 

completed prior to analyses pursuant to 

4(b)(2) and 4(a)(3) of the ESA, and 

provides information from the critical 

habitat review team about features and 

areas that meet the ESA definition of 

critical habitat as a first step in the 

determination process. Only after these 

areas are identified can we determine 

which areas warrant consideration 

under 4(a)(3) or 4(b)(2) of the ESA. That 

said, we understand the commenter’s 

concerns regarding how maps in this 

report may mistakenly be taken for the 

final designation. To clarify this point, 

we have revised the captions to these 

maps (in the Biological Report) 

indicating that this is not the final 

designation and point the reader to the 

final rule. With regard to the request to 

use the most recent information, we 

note that our information has been 

updated to include satellite tracking 

information as of the beginning of 

January 2018, and we used this updated 

information to supplement other data 

upon which we based our exclusions 

under 4(b)(2) (NMFS 2018b). However, 

we also wish to clarify that the 

information used in Baird et al. (2015) 

relies on one standard deviation from 

the mean to identify biologically import 

areas, whereas we have relied on the 

methods used in Baird et al. (2012) 

using two standard deviations from the 

mean to indicate areas of high use. 

Other Comments 

Comment 24: We received 

recommendations from DAR that NMFS 

hold public hearings on the Kauai, 

Maui, and Hawaii Islands, in addition to 

the one hearing that was held on Oahu. 

With IFKW high-use areas off Hawaii, 

Northern Molokai, and around the 

Maui-Nui complex, DAR noted that 

potential impacts of the proposed 

designation could be greater for those 

islands, and that these people should 

have the opportunity to be heard in the 

process. 

Response: The public comment 

period was open for 60 days and, and 

consistent with 50 CFR 424.16(c), NMFS 

gave notice of and held one public 

hearing on the proposed action on the 

island of Oahu. The 60-day comment 

period provided ample time and 

opportunity for the public to provide 

comments electronically or by mail. It 

should be noted that comments 

submitted electronically or by mail have 

the same weight as comments made in 

public hearings. We held the public 

hearing in Honolulu, not only because 

this location is centralized for a majority 

of the state’s population, but also 

because our Economic Report indicated 

that a majority of the Federal action 

agencies, regulated entities, and 

individual applicants affected by this 

designation are located on Oahu. In 

contrast to DAR’s statement of concern, 

we did not find that impacts were likely 

to be greatest along MHI IFKWs’ highuse areas, because these areas do not 

coincide with areas of high-use for 

Federal activities, such as offshore 

development. Aside from this comment, 

we received no requests for public 

hearings in other areas of the State and 

found no additional information to 

suggest that impacts would be higher 

near MHI IFKWs’ high-use areas. 

Comment 25: Comments from the 

Council stated that critical habitat 

designations for marine species provide 

little conservation benefit for the species 

unless habitat-related factors are known 

to be inhibiting recovery, and that 

NMFS did not identify anthropogenic 


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activities that are likely to negatively 

affect the habitat’s essential features. 

Accordingly, the Council suggested that, 

similar to NMFS’ finding for the 

exclusion of renewable energy areas, 

section 7 analysis associated with the 

listing of the MHI IFKW DPS should 

provide substantially the same 

conservation benefits for most Federal 

activities, including fisheries. 

Response: As noted in the Special 

Management Considerations or 

Protections section of this rule and the 

Biological Report, MHI IFKWs do face 

habitat-related threats (NMFS 2018a). 

As such, we identified anthropogenic 

activities that are likely to negatively 

affect the habitat’s essential features. 

Further, as noted in our response to 

Comment 3 above, multiple threats 

often act as obstacles to recovery, 

requiring that a suite of measures be 

taken to ensure that imperiled species 

are able to increase in number and 

eventually thrive. Critical habitat 

designations provide important details 

about habitat characteristics and the 

conservation value of habitat, which, in 

turn, serve as valuable planning tools 

for ensuring that Federal planning and 

development do not limit recovery for 

the species. While we found that the 

section 7 analysis associated with listing 

would provide substantially the same 

conservation benefits within the BOEM 

Call Area, we caution that this finding 

was site-specific and activity-specific 

and may not be true across all areas of 

the designation or from activity to 

activity. 

Critical Habitat Identification 

In the following sections, we describe 

the relevant definitions and 

requirements in the ESA and our 

implementing regulations, and the key 

information and criteria used to prepare 

this critical habitat designation. In 

accordance with section 4(b)(2) of the 

ESA and our implementing regulations 

at 50 CFR part 424, this final rule is 

based on the best scientific data 

available. 

To assist with identifying potential 

MHI IFKW critical habitat areas, we 

convened a critical habitat review team 

(CHRT) consisting of five agency staff 

with experience working on issues 

related to MHI IFKWs and Hawaii’s 

pelagic ecosystem. The CHRT used the 

best available scientific data and its best 

professional judgment to (1) determine 

the geographical area occupied by the 

DPS at the time of listing, (2) identify 

the physical and biological features 

essential to the conservation of the 

species, and (3) identify specific areas 

within the occupied area containing 

those essential physical and biological 

features. The CHRT’s evaluation and 

recommendations are described in 

detail in the Biological Report (NMFS 

2018a). Beyond the description of the 

areas, the critical habitat designation 

process includes two additional steps 

(although these are not conducted by 

the CHRT): (1) Identify whether any area 

may be precluded from designation 

because the area is subject to an INRMP 

that we have determined provides a 

benefit to the DPS, and (2) consider the 

economic, national security, or any 

other impacts of designating critical 

habitat and determine whether to 

exercise our discretion to exclude any 

particular areas. These considerations 

are described further in the Final ESA 

Section 4(b)(2) Report (NMFS 2018b), 

and economic impacts of this 

designation are described in detail in 

the Final Economic Report (Cardno 

2018). 

Physical and Biological Features 

Essential for Conservation 

The ESA does not specifically define 

physical or biological features; however, 

court decisions and joint NMFS– 

USFWS regulations at 50 CFR 424.02 

(81 FR 7413; February 11, 2016) provide 

guidance on how physical or biological 

features are expressed. 

Physical and biological features 

support the life-history needs of the 

species including, but not limited to, 

water characteristics, soil type, 

geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic, or a more 

complex combination of habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. Features 

may constitute combinations of habitat 

characteristics, and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

needed to support the life history of the 

species. 

Based on the best available scientific 

information and in response to public 

comments, the CHRT identified the 

specific biological and physical feature 

essential for the conservation of the 

Hawaiian IFKW DPS, as the following: 

Island-associated marine habitat for 

MHI insular false killer whales. 

MHI IFKWs are island-associated 

whales that rely entirely on the 

productive submerged habitat of the 

main Hawaiian Islands to support all of 

their life-history stages. The following 

characteristics of this habitat support 

insular false killer whales’ ability to 

travel, forage, communicate, and move 

freely around and among between the 

main Hawaiian Islands: 

(1) Adequate space for movement and 

use within shelf and slope habitat—As 

large marine predators, MHI IFKWs are 

highly mobile, employing a foraging 

strategy that includes circumnavigating 

the islands and moving throughout their 

range. Generally found in deeper waters 

just offshore of the MHI, these whales 

move primarily throughout and among 

the shelf and slope habitat on both the 

windward and leeward sides of all the 

islands. This generally includes depths 

ranging from 45 m to 3,200 m. Available 

data indicates that habitat use is not 

uniform in waters that surround the 

islands, and may be concentrated in 

certain areas (often described as highuse or high-density areas) that are likely 

to provide greater foraging success than 

other areas, and that high-use areas may 

be specific to certain social clusters. 

Human activities can interfere with 

movement of the whales and adversely 

affect their ability to travel to and move 

throughout areas of high-use. In 

particular, large marine structures or 

long-term acoustic disturbance may 

present obstacles to whale movement. 

These obstacles could cause the whales 

to swim further to reach high-use areas, 

expending additional energy and 

displacing these whales into waters 

farther from shore. In severe cases, such 

obstacles may cause the whales to 

abandon areas of concentrated use. 

(2) Prey species of sufficient quantity, 

quality, and availability to support 

individual growth, reproduction, and 

development, as well as overall 

population growth. 

MHI IFKWs are top predators that 

feed on a variety of large pelagic fish 

and squid. Prey preference and relative 

importance is still difficult to determine 

for this population; however, commonly 

described prey species from 

observations include large game fish 

such as mahi mahi, wahoo, yellowfin 

tuna, albacore tuna, skipjack tuna, 

broadbill swordfish and threadfin jack. 

In addition, analyses from recent 

strandings of insular false killer whales 

suggest that some species of squid may 

play a role in the IFKW diet. 

Sustained decreases in prey quantity 

and availability in island-associated 

waters can decrease foraging success of 

these whales and eventually lead to 

reduced individual growth, 

reproduction, and development. 

Additionally, factors that reduce prey 

size and introduce or increase 

contaminant or toxin levels reduce the 

quality of prey for these whales. 

Decreased prey size reduces the 

energetic value gained, while 


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contaminants and toxins introduced 

through prey consumption may put 

these whales’ individual health or 

reproduction at risk. 

(3) Waters free of pollutants of a type 

and amount harmful to MHI insular 

false killer whales. 

Pollutants that reach Hawaii’s marine 

waters through point source and 

nonpoint source pollution have the 

potential to degrade the water quality or 

prey quality and increase the health 

risks to MHI IFKWs. As a long-lived, top 

marine predator, water quality plays an 

important role in supporting the MHI 

IFKWs’ ability to forage and reproduce 

free from disease and impairment. 

Environmental contaminants, such as 

organochlorines, heavy metals, and 

other chemicals that persist and accrue 

in waters surrounding the MHI, 

accumulate in prey species and 

subsequently in MHI IFKWs. 

Biomagnification of some pollutants can 

adversely affect health in these top 

marine predators, causing immune 

suppression, decreased reproduction, or 

other impairments. Water pollution and 

changes in water temperatures may also 

increase pathogens, naturally occurring 

toxins, or parasites in surrounding 

waters. MHI insular false killer whales’ 

may be exposed to these infectious or 

harmful agents (such as bacteria, 

viruses, toxins, or parasites) either 

through their prey or directly through 

ingestion of contaminated waters. 

Exposure to water pollutants are known 

to adversely affect the health and 

reproduction of cetaceans, including 

false killer whales. 

(4) Sound levels that would not 

significantly impair false killer whales’ 

use or occupancy. 

For the purposes of this final rule, 

noises that would significantly impair 

use or occupancy are those that inhibit 

MHI IFKW’s ability to receive and 

interpret sound for the purposes of 

navigation, communication, and 

detection of predators and prey. Such 

noises are likely to be long-lasting, 

continuous, and/or persistent in the 

marine environment and, either alone or 

added to other ambient noises, 

significantly raise local sound levels 

over a significant portion of an area. 

False killer whales rely on their 

ability to produce and receive sound 

within their environment to navigate, 

communicate, and detect predators and 

prey. With a foraging strategy that is 

adapted to the shelf and slope habitat of 

the MHI, these large marine predators 

travel in subgroups that are dispersed 

from each other but converge when prey 

resources are found. Accordingly, these 

animals rely on their ability to receive 

and interpret acoustic cues to find prey 

at a distance and convey information 

about available prey resources to other 

dispersed subgroups of IFKWs. Habitats 

that contribute to the conservation of 

MHI IFKWs allow these whales to 

employ underwater sound in ways that 

support important life history functions, 

such as foraging and communicating. 

A large body of scientific information 

on the effects of anthropogenic noise on 

the behavior and distribution of toothed 

whales, including false killer whales, 

demonstrates that the presence of 

anthropogenic noise can adversely affect 

the value of marine habitat to MHI 

IFKWs (Shannon et al. 2015, Erbe et al. 

2016, Gedamke et al. 2016, Hatch et al. 

2016). Of particular concern are those 

noises that are chronic or persistent and 

cause cumulative interference such that 

the animals’ ability to receive benefits 

(e.g., opportunities to forage or 

reproduce) from these habitats is 

sufficiently inhibited. 

How human activities that introduce 

noise in the environment might change 

the animals’ use of habitat and the 

determination of the biological 

significance of that change can be 

complex and involve consideration of 

site specific variables, including: The 

characteristics of the introduced sound 

(frequency content, duration, and 

intensity); the physical characteristics of 

the habitat; the baseline soundscape; 

and the animal’s use of that habitat. 

NMFS will continue to use the best 

scientific information available to 

analyze chronic or persistent noise 

sources and determine whether they 

degrade listening conditions within 

habitat for the IFKW, including but not 

limited to, the Technical Guidance for 

Assessing the Effects of Anthropogenic 

Sound on Marine Mammal Hearing, (81 

FR 51693; August 04, 2016; NMFS 

2016b, or replacement publications). 

Geographical Area Occupied by the 

Species 

The first steps in the critical habitat 

revision process is to define the 

geographical area occupied by the 

species at the time of listing, and to 

identify specific areas within this 

geographical area that contain at least 

one of the essential features that may 

require special management 

considerations or protection. As noted 

earlier, the best available information 

indicates that the range of this DPS is 

smaller than the range identified at the 

time of listing (77 FR 70915, November 

28, 2012; Bradford et al., 2015). After 

reviewing available information, the 

CHRT noted, and we agree, that the 

range proposed by Bradford et al. (2015) 

and recognized in the 2015 NMFS Stock 

Assessment Report provides the best 

available information to describe the 

areas occupied by this DPS. This is 

because this range includes all locations 

that tagged animals have visited in 

Hawaii’s surrounding waters and 

accommodates for uncertainty in the 

data. Therefore, the area occupied by 

the DPS is the current range as 

identified in the 2015 SAR, which 

includes 188,262 km2 (72,688 mi2) of 

marine habitat surrounding the MHI 

(Carretta et al., 2016). 

Areas Under Consideration for Critical 

Habitat 

To be eligible for designation as 

critical habitat under the ESA’s 

definition of occupied areas, each 

specific area must contain at least one 

essential feature that may require 

special management considerations or 

protection. To meet this standard, the 

CHRT concluded that false killer whale 

tracking data would provide the best 

available information to identify habitat 

use patterns by these whales and to 

recognize where the physical and 

biological features essential to their 

conservation exist. Cascadia Research 

Collective provided access to MHI IFKW 

tracking data for the purposes of 

identifying critical habitat for this DPS. 

Due to the unique ecology of this islandassociated population, habitat use is 

largely driven by depth. Thus, the 

features essential to the species’ 

conservation are found in those depths 

that allow the whales to travel 

throughout a majority of their range 

seeking food and opportunities to 

socialize and reproduce. 

One area has been identified as 

including the essential feature for the 

MHI IFKW DPS. This area ranges from 

the 45-m depth contour to the 3,200-m 

depth contour in waters that surround 

the MHIs from Niihau east to the Island 

of Hawaii (see the Biological Report for 

additional detail; NMFS 2018a). MHI 

IFKWs are generally found in deeper 

areas just offshore (Baird et al., 2010). 

For the proposed rule, MHI IFKW 

tracking locations were used to identify 

a nearshore depth at which habitat use 

by MHI IFKWs is fairly consistent. 

Specifically, MHI IFKW locations were 

found to be infrequent at depths less 

than 45 m (less than 2 percent of 

locations are captured at these depths), 

and a spatial pattern was not evident in 

shallower depth locations (i.e., locations 

were not clumped in specific areas 

around the MHI). Because the frequency 

of MHI IFKW locations increased at 

depths greater than 45 m and appeared 

to demonstrate more consistent use of 

marine habitat beyond this depth, the 

45-m depth contour was selected to 

delineate the inshore extent of areas that 


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would include the proposed essential 

features for MHI IFKWs. An outer 

boundary of the 3,200-m depth contour 

was selected to incorporate those areas 

of island-associated habitat where MHI 

IFKWs are known to spend a larger 

proportion of their time, and to include 

island-associated habitat that allows for 

movement between and around each 

island. 

In response to some public comments 

that suggested we choose different 

boundaries for this designation (see 

Comment 9 and response), we reanalyzed the data used to select the 

boundaries for this designation, and also 

analyzed new satellite information 

received from Cascadia Research 

Collective. 

Review of this information revealed 

that 2.5–3.8 percent of satellite-tag 

location data were shallower than 45 m 

across the islands (the higher percentage 

includes points located on land, which 

likely fall into shallow locations due to 

the error associated with these points). 

When shallow points were mapped 

across the islands (using GIS), clear 

spatial patterns were not evident across 

all islands; for some islands shallower 

use was seen around a good portion of 

the island (e.g., Oahu), while for other 

islands use seemed to vary along 

different portions of the coastline. In 

addition to considering depth around 

each island, we reviewed distance from 

shore and found disparate patterns 

ranging from 500 m offshore to over 

1,200 m offshore. Looking across the 

islands as a whole, 45 m remained a 

depth at which frequency of satellite-tag 

location data increased and remained 

more consistent. 

Throughout this review we 

considered whether prescribing a 

different depth or distance from shore 

for each island would provide more 

clarity about MHI IFKW habitat use or 

for management of their habitat around 

each island; however, it was not clear 

that prescribing island-specific 

boundaries would better match how 

these animals use Hawaiian waters. 

Given the population’s non-uniform 

treatment of habitat around each island, 

splitting these points by island may not 

partition the habitat in manner that is 

ecologically meaningful. 

As noted above, these whales move 

great distances throughout the MHI, 

moving back and forth between areas off 

multiple islands. NMFS found that the 

3,200 m depth boundary best aligns 

with the span of habitat used on the 

leeward and windward sides of the 

islands, allowed for ample space for 

these whales to move among areas of 

concentrated or high-use, and included 

habitat across the core portions of the 

range. 

At this time we find that the current 

delineation of 45–3,200 m allows for 

travel around and among the islands 

and incorporates our objectives of 

selecting an inner boundary and outer 

boundary where MHI IFKWs are most 

likely to be found. The full range of 

depths—from the 45-m to the 3,200-m 

depth contours—incorporates 

approximately 90 percent of the tracking 

locations of MHI IFKW and includes the 

feature and characteristics essential to 

the conservation of the MHI IFKWS 

DPS. The area that was under 

consideration for critical habitat 

included 56,821 km2 (21,933 mi2) or 30 

percent of the MHI IFKW DPS’ range. 

Need for Special Management 

Considerations or Protection 

Joint NMFS and USFWS regulations 

at 50 CFR 424.02 define special 

management considerations or 

protection to mean methods or 

procedures useful in protecting physical 

and biological features essential to the 

conservation of listed species. 

Several activities were identified that 

may threaten the physical and biological 

feature essential to conservation such 

that special management considerations 

or protection may be required. This is 

based on information from the MHI 

IFKW Recovery Outline, Status Review 

for this DPS, and discussions from the 

Main Hawaiian Islands Insular False 

Killer Whale Recovery Planning 

Workshop (NMFS 2016a, Oleson et al., 

2010, NMFS 2016c). Major categories of 

activities include (1) in-water 

construction (including dredging); (2) 

energy development (including 

renewable energy projects); (3) activities 

that affect water quality; (4) 

aquaculture/mariculture; (5) fisheries; 

(6) environmental restoration and 

response activities (including responses 

to oil spills and vessel groundings, and 

marine debris clean-up activities); and 

(7) some military readiness activities. 

All of these activities may have an effect 

on one or more characteristics of the 

essential feature by altering the 

quantity, quality or availability of the 

features that support MHI IFKW critical 

habitat. This is not an exhaustive or 

complete list of potential effects; rather 

it is a description of the primary 

concerns and potential effects that we 

are aware of at this time and that should 

be considered in accordance with 

section 7 of the ESA when Federal 

agencies authorize, fund, or carry out 

these activities. The Biological Report 

(NMFS 2018a) and Economic Analysis 

Report (Cardno 2018) provide a more 

detailed description of the potential 

effects of each category of activities and 

threats on the essential features. For 

example, activities such as in-water 

construction, energy projects, 

aquaculture projects, and some military 

readiness activities may have impacts 

on one or more characteristics of the 

essential feature. 

Unoccupied Critical Habitat Areas 

Section 3(5)(A)(ii) of the ESA 

authorizes the designation of specific 

areas outside the geographical area 

occupied at the time the species is 

listed, if the Secretary determines ‘‘that 

such areas are essential for the 

conservation of the species.’’ There is 

insufficient evidence at this time to 

indicate that areas outside the present 

range are essential for the conservation 

of this DPS; therefore, no unoccupied 

areas were identified for designation. 

Application of ESA Section 4(a)(3)(B)(i) 

(Military Lands) 

Section 4(a)(3)(B) of the ESA prohibits 

designating as critical habitat any lands 

or other geographical areas owned or 

controlled by DOD, or designated for its 

use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary 

determines in writing that such a plan 

provides a benefit to the species for 

which critical habitat is proposed for 

designation. 

Regulations at 50 CFR 424.12(h) 

provide that in determining whether an 

applicable benefit is provided by a 

‘‘compliant or operational’’ plan, we 

will consider the following: 

(1) The extent of the area and features 

present; 

(2) the type and frequency of use of 

the area by the species; 

(3) the relevant elements of the 

INRMP in terms of management 

objectives, activities covered, and best 

management practices, and the certainty 

that the relevant elements will be 

implemented; and 

(4) the degree to which the relevant 

elements of the INRMP will protect the 

habitat from the types of effects that 

would be addressed through a 

destruction-or-adverse-modification 

analysis. 

NMFS can find that an INRMP 

provides a benefit to a species where, as 

here, the species is not directly 

addressed in the INRMP. In these cases, 

we consider adaptive conservation 

management for the features essential to 

the conservation of the species (i.e., its 

habitat features) or the species itself 

either directly or indirectly. We also 

consider whether adaptive conservation 

management measures are effective and 

reasonably certain to be implemented. 


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The JBPHH INRMP overlaps with the 

areas under consideration for critical 

habitat in two areas, the Naval 

Defensive Sea Area and the Ewa 

Training Minefield, which include 

approximately 27 km2 (∼10 mi2) of area 

or approximately 0.5 percent of the 

areas under consideration for critical 

habitat. Based on our review of relevant 

data, including supplemental satellitetracking information from Cascadia 

Research Collective (3 new animals), we 

consider these areas to be low-use (lowdensity) areas for MHI IFKWs, and note 

that they travel through these areas at 

moderate levels (see Figure 4 of the ESA 

Section 4(b)(2) Report). We therefore 

consider these areas to be of low to 

moderate conservation value to MHI 

IFKWs in comparison to other areas 

meeting the definition of MHI IFKW 

critical habitat. 

In May 2017, we requested 

information from the DOD to assist in 

our analysis. Specifically, we asked for 

a list of facilities that occur within 

potential critical habitat areas and 

available INRMPs for those facilities. 

The U.S. Navy stated that areas subject 

to the JBPHH INRMP overlap with the 

areas under consideration for MHI 

IFKW critical habitat; no other INRMPs 

were identified as overlapping with the 

potential designation. This INRMP was 

drafted prior to the ESA listing of the 

MHI IFKW and did not incorporate 

conservation measures that are specific 

to MHI IFKWs. The plan was compliant 

through the end of 2017; and although 

its five-year review as to operation and 

effect is late, the INRMP remains funded 

and effective. The Navy continues to 

implement and report on conservation 

measures outlined in the JBPHH INRMP 

and is currently reviewing and updating 

the INRMP with a goal of finishing in 

December 2018. 

In the response to NMFS’ request for 

information about this INRMP, the Navy 

outlined several elements of the 2011 

INRMP’s implemented and ongoing 

conservation measures that may benefit 

the MHI IFKW and their habitat (with 

the characteristic of the essential 

element that is addressed): Fishing 

restrictions adjacent to and within areas 

that overlap the potential designation 

(prey), creel surveys that provide 

information about fisheries in 

unrestricted areas of Pearl Harbor (prey), 

restrictions on free roaming cats and 

dogs in residential areas (water free of 

pollutants), feral animal removal (water 

free of pollutants), participation in the 

Toxoplasmosis and At-large Cat 

Technical Working Group (which 

focuses on providing technical 

information to support policy decisions 

to address the effects of toxoplasmosis 

on protected wildlife and provides 

education and outreach materials on the 

impacts that free-roaming cats have on 

Hawaii’s environment; waters free of 

pollutants), efforts taken to prevent and 

reduce the spread of biotoxins and 

contaminants from Navy lands 

(including best management practices, 

monitoring for contamination, 

restoration of sediments, and spill 

prevention; waters free of pollutants), a 

Stormwater Management Plan and a 

Stormwater Pollution Control Plan 

associated with their National Pollutant 

Discharge Elimination System (waters 

free of pollutants), and coastal wetland 

habitat restoration projects (waters free 

of pollutants) (DON 2017a). Although 

the 2011 JBPHH INRMP does not 

specifically address the MHI IFKW, 

several of the above measures support 

the protection of the IFKW and the 

physical and biological feature 

identified for this designation. 

Specifically, the Navy’s efforts that 

focused on preventing the spread of 

toxoplasmosis, biotoxins, and other 

contaminants to the marine 

environment provide protections for 

MHI IFKW water quality and address 

threats to this feature characteristic; 

these threats are identified in our Draft 

Biological Report (NMFS 2017a). 

Further, efforts to support coastal 

wetland habitat restoration provide 

protections for MHI IFKW water quality 

and provide ancillary benefits to MHI 

IFKW prey, which also rely on these 

marine ecosystems. Additionally, 

fishery restrictions in the NDSA and 

Ewa Training Minefield provide 

protections to MHI IFKW prey within 

the limited overlap areas. Some of the 

protections associated with the 

management of stormwater and 

pollution address effects that would 

otherwise be addressed through an 

adverse modification analysis. Other 

protections associated with the spread 

of toxoplasmosis to the marine 

environment or that enhance prey, 

address effects to MHI IFKW habitat that 

otherwise may not be subject to a 

section 7 consultation. In these 

instances, the Navy’s INRMP provides 

protections aligned with 7(a)(1) of the 

ESA, which instructs Federal agencies 

to aid in the conservation of listed 

species. 

As part of an adaptive management 

approach for this INRMP, NMFS staff 

participates in JBPHH INRMP annual 

reviews to provide recommendations 

about plan implementation and 

effectiveness and to receive information 

about upcoming plan amendments. 

These reviews help ensure that the plan 

provides an effective mechanism for 

addressing MHI IFKW conservation 

within areas managed under the JBPHH 

INRMP. Specifically, the reviews 

provide a reliable method for feedback, 

regular assurances that the abovedescribed conservation measures are 

being implemented, and a procedure for 

assessing and modifying measures to 

ensure conservation effectiveness. 

Although not essential to our 

determination that the JBPHH INRMP 

provides a benefit to the MHI IFKW, we 

also take into consideration additional 

future measures that the Navy plans to 

include in updates to the INRMP by 

December 2018. These expected 

additional measures include (1) specific 

information about MHI IFKWs, (2) 

where MHI IFKWs may be found in 

areas managed by the installation, (3) 

new projects associated with watershed 

enhancement, and (4) mandatory 

mitigation measures already used by the 

Pacific Fleet to minimize impacts to 

MHI IFKWs as they use these areas. 

Procedural mitigation measures are 

mandatory activity-specific measures 

taken to avoid or reduce the potential 

impacts on biological resources from 

stressors, including those that may 

cause acoustic or physical disturbance 

to marine mammals during Navy 

training and testing. These procedural 

measures are required in the Navy’s 

Protective Measures Assessment 

Protocol consistent with letters of 

authorization for training activities 

issued under the MMPA and supporting 

ESA analyses. Procedural mitigation 

measures are adaptively managed as 

new information becomes available 

about effective mitigation techniques, 

and are identified in the current HawaiiSouthern California Training and 

Testing Final Environmental Impact 

Statement. Examples of measures 

include training personnel to spot and 

identify marine mammals (lookouts), 

reporting requirements for trained 

lookouts, and halt or maneuvering 

requirements when marine mammals 

are spotted within identified mitigation 

zones of Navy activities (DON 2017c). 

Although not restricted to the JBPHH 

areas, these mandatory mitigation 

measures help ensure that the Navy will 

avoid or reduce the impacts from 

acoustic stressors on MHI IKFWs. These 

measures will be reflected in the INRMP 

by December 2018. Additionally, the 

Navy’s continued efforts towards 

understanding the baseline conditions 

of Pearl Harbor (and associated 

watersheds) and improving water 

quality in this area will also support the 

prey and water free of pollutants 

characteristics of MHI IFKW habitat. 

After consideration of the above 

factors, we determined that the Navy’s 


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JBPHH INRMP provides a benefit to the 

MHI IFKW and its habitat. In 

accordance with 4(a)(3)(B)(i) of the ESA, 

areas managed under this INRMP are 

not eligible for the designation of MHI 

IFKW critical habitat. Therefore, the 

Ewa Training Minefield and the Naval 

Defense Sea Area, both found south of 

Oahu, are not eligible for designation. 

Application of ESA Section 4(b)(2) 

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

Secretary to consider the economic, 

national security, and any other relevant 

impacts of designating any particular 

area as critical habitat. Any particular 

area may be excluded from critical 

habitat if the Secretary determines that 

the benefits of excluding the area 

outweigh the benefits of designating the 

area. The Secretary may not exclude a 

particular 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 areas. In this 

designation, the Secretary has applied 

statutory discretion to exclude 14 (1 

area, with two sites, for economic 

exclusion and 13 areas for national 

security exclusion) occupied areas from 

critical habitat where the benefits of 

exclusion outweigh the benefits of 

designation for the reasons set forth 

below. 

In preparation for the ESA section 

4(b)(2) analysis, we identified the 

‘‘particular areas’’ to be analyzed. The 

‘‘particular areas’’ considered for 

exclusion are defined based on the 

impacts that were identified. We 

considered economic impacts and 

weighed the economic benefits of 

exclusion against the conservation 

benefits of designation for two 

particular areas where economic 

impacts were identified as being 

potentially higher than the costs of 

administrative efforts and where 

impacts were geographically 

concentrated. We also considered 

exclusions based on impacts on national 

security. Delineating particular areas 

with respect to consideration of national 

security impacts was based on land 

ownership or control (e.g., land 

controlled by the DOD within which 

national security impacts may exist) or 

on areas identified by DOD as 

supporting particular military activities. 

For each particular area we identified 

the impacts of designation (i.e., the 

economic costs of designation or 

impacts to national security). These 

impacts of designation are equivalent to 

the benefits of exclusion. We also 

consider the benefits achieved from 

designation or the conservation benefits 

that may result from a critical habitat 

designation in that area. We then weigh 

the benefits of designation against the 

benefits of exclusion. Where the benefits 

of exclusion outweigh the benefits of 

designation, the area is excluded from 

critical habitat as long as we determine 

that such exclusion would not result in 

extinction of the DPS. These steps and 

the resulting list of areas excluded from 

designation are described in detail in 

the sections below. 

Impacts of Designation 

The primary impact of a critical 

habitat designation stems from the 

requirement under section 7(a)(2) of the 

ESA that Federal agencies ensure that 

their actions are not likely to result in 

the destruction or adverse modification 

of critical habitat. Determining this 

impact is complicated by the fact that 

section 7(a)(2) contains the overlapping 

requirement that Federal agencies must 

also ensure their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

the designation is the extent to which 

Federal agencies modify their actions to 

ensure their actions are not likely to 

destroy or adversely modify the critical 

habitat of the species, beyond any 

modifications they would make because 

of the listing and the subsequent 

requirement to avoid jeopardy. When 

the same modification would be 

required due to impacts to both the 

species and critical habitat, the impact 

of the designation is considered coextensive with the ESA listing of the 

species (i.e., attributable to both the 

listing of the species and the 

designation of critical habitat). 

Additional impacts of designation 

include state and local protections that 

may be triggered as a result of the 

designation, and the benefits from 

educating the public about the 

importance of each area for species 

conservation. Thus, the impacts of the 

designation include conservation 

impacts for MHI IFKW and its habitat, 

economic impacts, impacts on national 

security and other relevant impacts that 

may result from the designation and the 

application of ESA section 7(a)(2). 

In determining the impacts of 

designation, we focused on the 

incremental change in Federal agency 

actions as a result of critical habitat 

designation and the adverse 

modification provision, beyond the 

changes predicted to occur as a result of 

listing and the jeopardy provision. 

Following a line of recent court 

decisions (including Arizona Cattle 

Growers Association v. Salazar, 606 F. 

3d 1160 (9th Cir. 2010), cert. denied, 

562 U.S. 1216 (2011) (Arizona Cattle 

Growers); and Home Builders 

Association of Northern California et 

al., v. U.S. Fish and Wildlife Service, 

616 F.3d 983 (9th Cir. 2010), cert. 

denied, 562 U.S. 1217 (2011) (Home 

Builders)), economic impacts that occur 

regardless of the critical habitat 

designation are treated as part of the 

regulatory baseline and are not factored 

into the analysis of the effects of the 

critical habitat designation. In other 

words, we focus on the potential 

incremental impacts beyond the impacts 

that would result from the listing of the 

species and consultation under the 

jeopardy clause. In some instances, 

potential impacts from the critical 

habitat designation could not be 

distinguished from protections that may 

already occur under the baseline (i.e., 

protections already afforded MHI IFKWs 

under its listing or under other federal, 

state, and local regulations). For 

example, the project modifications 

needed to prevent destruction or 

adverse modification of critical habitat 

may be similar to the project 

modifications necessary to prevent 

jeopardy to the species in an area. The 

extent to which these modifications 

differ may be project specific, and the 

incremental changes or impacts to the 

project may be difficult to tease apart 

without further project specificity. 

Once we determined the impacts of 

the designation, we then determined the 

benefits of designation. The benefits of 

designation include the conservation 

impacts for MHI IFKWs and their 

habitat that result from the critical 

habitat designation and the application 

of ESA section 7(a)(2). The benefits of 

exclusion include avoidance of the 

economic, national security, and other 

relevant impacts (e.g., impacts on 

conservation plans) of the designation if 

a particular area were to be excluded 

from the critical habitat designation. 

The following sections describe how we 

determined the benefits of designation, 

and how the impacts of designation 

were considered, as required under 

section 4(b)(2) of the ESA, to identify 

particular areas that may be eligible for 

exclusion from the designation. We also 

summarize the results of our weighing 

process and determinations of the areas 

that may be eligible for exclusion (for 

additional information see the ESA 

Section 4(b)(2) Report (NMFS 2018b)). 

Benefits of Designation 

The primary benefit of designation is 

the protection afforded under section 

7(a)(2) of the ESA, requiring all Federal 

agencies to ensure their actions are not 

likely to destroy or adversely modify 

designated critical habitat. This is in 

addition to the requirement that all 

Federal agencies ensure their actions are 


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not likely to jeopardize the continued 

existence of the species. Another benefit 

of critical habitat designation is that it 

provides specific notice of the feature 

essential to the conservation of the MHI 

IFKW DPS and where that feature 

occurs. This information will focus 

future consultations and other 

conservation efforts on the key habitat 

attributes that support conservation of 

this DPS. There may also be enhanced 

awareness by Federal agencies and the 

general public of activities that might 

affect that essential feature. 

Accordingly, identification of that 

feature may improve discussions with 

action agencies regarding relevant 

habitat considerations of proposed 

projects. 

In addition to the protections 

described above, Chapter 12 of the Final 

Economic Report (Cardno 2018) 

discusses other forms of indirect 

benefits that may be attributed to the 

designation including, but not limited 

to, use benefits and non-use or passive 

use benefits (Cardno 2018). Use benefits 

include positive changes that 

protections associated with the 

designation may provide for resource 

users, such as increased fishery 

resources, sustained or enhanced 

aesthetic appeal in ocean areas, or 

sustained wildlife-viewing 

opportunities. Non-use or passive 

benefits include those independent of 

resource use, where conservation of 

MHI IFKW habitat aligns with beliefs or 

values held by particular entities (e.g., 

existence, bequest, and cultural values) 

(Cardno 2018). More information about 

these types of values may be found in 

Chapter 12 of the Final Economic 

Report (Cardno 2018). 

Most of these benefits are not directly 

comparable to the costs of designation 

for purposes of conducting the section 

4(b)(2) analysis described below. 

Ideally, benefits and costs should be 

compared on equal terms; however, 

there is insufficient information 

regarding the extent of the benefits and 

the associated values to monetize all of 

these benefits. We have not identified 

any available data to monetize the 

benefits of designation (e.g., estimates of 

the monetary value of the essential 

feature within areas designated as 

critical habitat, or of the monetary value 

of education and outreach benefits). 

Further, section 4(b)(2) also requires 

that we consider and weigh impacts 

other than economic impacts that may 

be intangible and do not lend 

themselves to quantification in 

monetary terms, such as the benefits to 

national security of excluding areas 

from critical habitat. Given the lack of 

information that would allow us either 

to quantify or monetize the benefits of 

the designation for MHI IFKWs 

discussed above, we determined that 

conservation benefits should be 

considered from a qualitative 

standpoint. In determining the benefits 

of designation, we considered a number 

of factors. We took into account MHI 

IFKW use of the habitat, the existing 

baseline protections that may protect 

that habitat regardless of designation, 

and how the essential feature may be 

affected by activities that occur in these 

areas if critical habitat were not 

designated. These factors combined 

provided an understanding of the 

importance of protecting the habitat for 

the overall conservation of the DPS. 

Generally, we relied on density 

analysis of satellite-tracking data as well 

as an analysis of travel throughout the 

areas to provide information about MHI 

IFKW habitat use (Figure 4 of the Final 

ESA Section 4(b)(2) Report; NMFS 

2018b). The descriptions of MHI IFKW 

habitat use provided in the sections 

below describe habitat in terms of high 

and low-use areas using the density 

analysis described in Baird et al. (2012) 

and describe how these areas may be 

used for travel or transit. Cascadia 

Research Collective supplied satellitetracking information to support NMFS’ 

determination of this critical habitat 

designation for the proposed and final 

rule. For the proposed rule, density 

analysis of data received included 

information from 27 tagged individuals 

(18 from Cluster 1, 1 from Cluster 2, 7 

from Cluster 3, and 1 from Cluster 4) (R. 

Baird, Cascadia Research Collective, 

pers. comm., June 2017). For the final 

rule, data from a total of 30 tagged 

individuals (2 additional animals from 

cluster 1 and 1 additional animal from 

cluster 4) was used to inform the 

analyses (R. Baird, Cascadia Research 

Collective, pers. Comm, January 2018). 

High-use areas denote areas where 

satellite-tracking information indicates 

more frequent use by MHI IFKWs. High 

to moderate travel areas provide further 

understanding about how these whales 

travel through specific areas. The 

conservation value for high-use and 

high-traveled areas is inferred to be 

higher than low-use and low-traveled 

areas of the range; however, all areas 

contain the essential feature and meet 

the definition of critical habitat for this 

DPS. As noted in the Biological Report 

(NMFS 2018a), there is limited 

representation among social clusters in 

the tracking data and information. 

Accordingly, the available satellitetracking information may not be fully 

representative of MHI IFKW habitat use. 

While describing MHI IFKW use for the 

exclusion of some particular areas, we 

provide additional information (e.g., 

observation data from boat surveys) that 

supplemented our understanding of 

MHI IFKW habitat use patterns. In these 

instances, we describe how this 

information may enhance our 

understanding of the conservation value 

of the area. 

Generally, we describe high-use areas 

as indicating areas of higher 

conservation value where greater 

foraging and/or reproductive 

opportunities are believed to exist. 

Additionally, high to moderate travel 

areas indicate areas of concentrated 

travel. However, particularly within a 

restricted range, low-use and lowtraveled areas continue to offer the 

essential feature and may provide 

unique opportunities for foraging as 

oceanic conditions vary seasonally or 

temporally. 

Economic Impacts of Designation 

Economic costs of the designation 

accrue primarily through 

implementation of section 7 of the ESA 

in consultations with Federal agencies 

to ensure their proposed actions are not 

likely to destroy or adversely modify 

critical habitat. The Economic Report 

(Cardno 2018) considered the Federal 

activities that may be subject to a 

section 7 consultation and the range of 

potential changes that may be required 

for each of these activities under the 

adverse modification provision. To the 

extent possible, the analysis focused on 

changes beyond those impacts that may 

result from the listing of the species or 

that are established within the 

environmental baseline. However, the 

report acknowledges that some existing 

protections to prevent jeopardy to MHI 

IFKWs are likely to overlap with those 

protections that may be put in place to 

prevent adverse modification (Cardno 

2018). The project modification impacts 

represent the benefits of excluding each 

particular area (that is, the impacts that 

would be avoided if an area were 

excluded from the designation). 

The Final Economic Report (Cardno 

2018) estimates the impacts based on 

activities that are considered reasonably 

foreseeable, which include activities 

that are currently authorized, permitted, 

or funded by a Federal agency, or for 

which proposed plans are currently 

available to the public. These activities 

align with those identified under the 

Special Management Considerations or 

Protections section (above). Projections 

were calculated for the next 10-year 

period. The analysis relied largely upon 

NMFS’ records of section 7 

consultations to estimate the average 

number of projects that are likely to 

occur within the particular areas (i.e., 


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projections were based on past numbers 

of consultations) and determine the 

level of consultation (formal, informal) 

that would be necessary based on the 

described activity. Where appropriate, 

the analysis also included projections 

for actions that are likely to occur 

within the particular areas that were 

identified by action agencies (Cardno 

2018). 

The Final Economic Report (Cardno 

2018) identifies the total estimated 

present value of the quantified 

incremental impacts of this designation 

to be between approximately 196,000 to 

213,000 dollars over the next 10 years; 

on an annualized undiscounted basis, 

the impacts are equivalent to 19,600 to 

21,300 dollars per year. Applying 

discounted rates recommended in the 

Office of Management and Budget 

Circular A–4, the Final Economic 

Report estimates these incremental 

impacts of designation to be between 

170,000 to 185,000 using a 3 percent 

discount rate and 143,000 to 156,000 

using a 7 percent discount rate (Cardno 

2018). These impacts include only 

incremental administrative efforts to 

consider critical habitat in section 7 

consultations for the section 7 activities 

identified under the Need for Special 

Management Considerations or 

Protections section of this rule. 

However, private energy developers 

may also bear some of the 

administrative costs of consultation for 

large energy projects; the Final 

Economic Report estimates these costs 

are between 0 and 300 dollars annually 

undiscounted and are expected to 

involve three consultation projects over 

the next 10 years (Cardno 2018). Across 

the MHI, economic impacts are 

expected to be small and largely 

associated with the administrative costs 

borne by Federal agencies, but may 

include low administrative costs to nonFederal entities as well. 

Both the Final Biological Report and 

the Final Economic Report recognize 

that some of the future impacts of the 

designation are difficult to predict 

(NMFS 2018a, Cardno 2018). Although 

considered unlikely, NMFS cannot rule 

out future modifications for federally 

managed fisheries and activities that 

contribute to water quality (NMFS 

2018a). For federally managed fisheries, 

modifications were not predicted as a 

result of the critical habitat designation 

based on current management of the 

fisheries. However, we noted that future 

revised management measures could 

result as more information is gained 

about MHI IFKW foraging ecology, or as 

we gain a better understanding of the 

relative importance of certain prey 

species to the health and recovery of a 

larger MHI IFKW population. Similarly, 

modifications to water quality standards 

were not predicted as a result of this 

designation; however, future 

modifications were not ruled out 

because future management measures 

may be necessary as more information is 

gained about how pollutants affect MHI 

IFKW critical habitat. The Final 

Economic Report discusses this 

qualitatively, but does not provide 

quantified costs associated with any 

uncertain future modifications (Cardno 

2018). 

Economic impacts from the 

designation are largely attributed to the 

administrative costs of consultations. 

Generally, the quantified economic 

impacts for this designation are 

relatively low because in Hawaii most 

projects that would require section 7 

consultation occur onshore or nearshore 

and would not overlap with the 

designation. Projects with a Federal 

nexus (i.e., authorized, funded, or 

carried out by a Federal agency) that 

occur in deeper waters are already 

subject to consultation under section 7 

to ensure that activities are not likely to 

jeopardize the continued existence of 

MHI IFKWs, and throughout the specific 

area, activities of concern are already 

subject to multiple environmental laws, 

regulations, and permits that afford the 

essential features a high level of 

baseline protection. Despite these 

protections, significant uncertainty 

remains regarding the true extent of the 

impacts that some activities like fishing 

and activities affecting water quality 

may have on the essential features, and 

economic impacts of the designation 

may not be fully realized. Because the 

economic impacts of these activities are 

largely speculative, we lack sufficient 

information with which to balance them 

against the benefits of designation. 

BOEM provided comments on our 

proposed rule indicating their 

appreciation for the BOEM Call Area 

exclusion. In addition, the Navy 

submitted comments on the proposed 

rule noting that, while they support the 

exclusion of areas suitable for renewable 

energy development, portions of the 

currently identified BOEM Call Areas 

are not suitable for renewable energy 

development due to national security 

concerns. In support of identifying areas 

for renewable energy development, the 

Navy completed an assessment of areas 

(see http://greenfleet.dodlive.mil/rsc/ 

department-of-the-navy-hawaiioffshore-wind-compatibility/) around 

Oahu, noting wind farm areas that are 

not compatible with military activities 

and identifying only small sections of 

the two sites that are compatible (DON 

2016). However, the Call Area 

boundaries have not been revised as a 

result of the Navy’s assessment. 

In determining the economic costs of 

this designation, we rely on the best 

available information to identify where 

economic costs are likely to occur. The 

two sites noticed as the BOEM Call Area 

remain significant in meeting Hawaii’s 

renewable energy goals as these sites 

have been identified as areas where 

wind resources, water depth, and 

proximity to shore are favorable for 

wind-energy development (81 FR 41335; 

June 24, 2016). Given that the 

boundaries of these two sites have not 

been revised and that the sites are noted 

as significant for energy development, 

our exclusion analysis is based on the 

areas of the current BOEM Call Area (as 

published in 81 FR 41335; June 24, 

2016). 

The estimated economic impacts in 

the BOEM Call Area are expected to 

occur as a result of three potential 

commercial wind-energy projects 

offshore of the island of Oahu (to be 

located off Kaena point and off the 

south shore) (81 FR 41335; June 24, 

2016). 

The BOEM Call Area sites identified 

for exclusion overlapped with 

approximately 1,961 km2 (757 mi2), or 

approximately 3.5 percent of the areas 

that were under consideration for 

designation. Density analysis of 

satellite-tracking information indicates 

that these sites are not high-use areas for 

MHI IFKWs; rather they include low-use 

and mostly lower traveled area for MHI 

IFKWs, with some small overlap into a 

moderately traveled area. As noted 

above, the baseline protections are 

strong, and energy projects are likely to 

undergo formal section 7 consultation to 

ensure that the activities are not likely 

to jeopardize MHI IFKWs or other 

protected species (Cardno 2018). 

Although economic costs of this 

designation in the BOEM Call Area are 

considered low, NMFS also considers 

the potential intangible costs of 

designation in light of Executive Order 

13795, Implementing an America-First 

Offshore Energy Strategy, which sets 

forth the nation’s policy for encouraging 

environmentally responsible energy 

exploration and production, including 

on the Outer Continental Shelf, to 

maintain the Nation’s position as a 

global energy leader and to foster energy 

security. In particular, both Hawaii’s 

State Energy Office and BOEM 

expressed concerns that the designation 

may discourage companies from 

investing in offshore energy projects in 

areas that are identified as critical 

habitat and noted that the costs of lost 

opportunities to meet Hawaii’s 

renewable energy goals could be 


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significant (Cardno 2018). Because Oahu 

has the greatest energy needs among the 

MHI and has limited areas available for 

this type of development, and receiving 

energy via interconnection among 

islands is technologically difficult, these 

wind projects off Oahu are considered 

necessary to meet the State of Hawaii’s 

renewable energy goals of 100 percent 

renewable energy by 2045 (Cardno 

2018). 

Given the significance of this offshore 

area in supporting renewable energy 

goals for the State of Hawaii and the 

goals of Executive Order 13795, the low 

administrative costs of this designation, 

the small size of these areas, and the 

low-use of this area by MHI IKFWs, we 

find that the benefits of exclusion of this 

identified area outweigh the benefits of 

designation. Although large in-water 

construction projects are an activity of 

concern for this DPS, we anticipate that 

consultations required to ensure that 

activities are not likely to jeopardize the 

MHI IFKWs will achieve substantially 

similar conservation benefits for this 

DPS. Specifically, we anticipate that 

conservation measures implemented as 

a result of consultation to address 

impacts to the species will also provide 

incidental protections to the habitat 

feature. Additionally, wind energy 

projects in these areas are not expected 

to result in destruction or adverse 

modification of critical habitat. Based 

on our best scientific judgment, and 

acknowledging the small size of this 

area (approximately 0.2 percent of the 

overall designation) and that other 

safeguards that are in place (e.g., 

protections already afforded MHI IFKWs 

under its listing and other regulatory 

mechanisms), we conclude that 

exclusion of this area will not result in 

the extinction of the species. 

National Security Impacts 

The national security benefits of 

exclusion are the national security 

impacts that would be avoided by 

excluding particular areas from the 

designation. In preparation for the 

proposed rule, we contacted 

representatives of DOD and the 

Department of Homeland Security to 

request information on potential 

national security impacts that may 

result from the designation of particular 

areas as critical habitat for the MHI 

IFKW DPS. In response to the request, 

the Navy and U.S. Coast Guard each 

submitted a request that all areas be 

excluded from critical habitat out of 

concerns associated with activities that 

introduce noise to the marine 

environment (NMFS 2017b). Although 

we considered the request for exclusion 

of all areas proposed for critical habitat, 

we also separately considered particular 

areas identified by the Navy because 

these areas support specific military 

activities. The Coast Guard did not 

provide specific explanations with 

regard to particular areas. The Air Force 

provided a request for exclusion that 

included the waters leading to and the 

offshore ranges of the PMRF (NMFS 

2017b). As the PMRF offshore ranges 

were also highlighted as important to 

Navy activities, we included the 

information provided by the Air Force 

regarding their request for exclusion for 

the PMRF ranges with the Navy’s 

information, due to the similarities 

between the activities and impacts 

identified for these areas (e.g., both 

requests in this area were associated 

with training and testing activities). 

We considered a total of 13 sites for 

exclusion, and we proposed 8 of those 

sites for exclusion in the proposed rule. 

Additionally, we notified the public in 

the proposed rule that we would be 

considering six additional requests 

submitted by the Navy (82 FR 51186; 

November 03, 2017), which were 

subsets of a larger area that the Navy 

initially requested for exclusion, but 

which NMFS determined should not be 

excluded under 4(b)(2). In addition to 

these six areas, the Navy requested the 

exclusion of two additional areas— 

north and south of Maui as well as the 

Hawaii Area Tracking System and the 

Kahoolawe Training Minefield (see the 

ESA Section 4(b)(2) Report, NMFS 

2018b); these four areas were also 

subsets of the Four Island Region 

request for exclusion that was not 

proposed for exclusion at the proposed 

rule stage. 

For the final designation, we 

reanalyzed the 13 areas already 

considered for exclusion using the 

updated satellite tracking information 

from the Cascadia Research Collective. 

Additionally, we separately reviewed 

each of the 10 areas requested by the 

Navy that were subsets of the larger 

areas requested for exclusion, consistent 

with the review criteria for the 13 

previous areas considered for national 

security exclusion. 

Our determinations for these 23 

requests are summarized in Table 1 

below. 

As in the analysis of economic 

impacts, we weighed the benefits of 

exclusion (i.e., the impacts to national 

security that would be avoided) against 

the benefits of designation. The Navy 

and Air Force provided information 

regarding the activities that take place in 

each area, and they assessed the 

potential for a critical habitat 

designation to adversely affect their 

ability to conduct operations, testing, 

training, and other essential military 

readiness activities. The possible 

impacts to national security 

summarized by both groups included 

potential restrictions or constraints on 

military operations, training, research 

and development, and preparedness 

vital for combat operations for around 

the world. 

The primary benefit of exclusion is 

that the DOD’s activities would 

continue under current regulatory 

regimes and the DOD would not be 

required to consult with NMFS under 

section 7 of the ESA regarding its 

actions that may affect critical habitat, 

and thus potential delays or costs 

associated with conservation measures 

for critical habitat would be avoided. 

For each particular area, national 

security impacts were weighed 

considering the intensity of use of the 

area by DOD and how activities in that 

area may affect the features essential to 

the conservation of MHI IFKWs. Where 

additional consultation requirements 

are likely due to critical habitat at a site, 

we considered how the consultation 

may change the DOD activities, and how 

unique the DOD activities are at the site. 

Benefits to the conservation of MHI 

IFKWs depend on whether designation 

of critical habitat at a site leads to 

additional conservation of the DPS 

above what is already provided by being 

listed as endangered under the ESA in 

the first place. We weighed the potential 

for additional conservation by 

considering several factors that provide 

an understanding of the importance of 

protecting the habitat for the overall 

conservation of the DPS: MHI IFKW use 

of the habitat (high vs. low use or travel 

by MHI IFKWs and/or observational 

data), the existing baseline protections 

that may protect that habitat regardless 

of designation, and the likelihood of 

other Federal (non-DOD) actions being 

proposed within the site that would be 

subject to section 7 consultation 

associated with critical habitat. 

Throughout the weighing process the 

overall size of the area considered for 

exclusion was considered, along with 

our overall understanding of importance 

of protecting that area for conservation 

purposes. 

As discussed in the Benefits of 

Designation section (above), the benefits 

of designation are not directly 

comparable to the benefits of exclusion 

for purposes of conducting the section 

4(b)(2) analysis because neither have 

been fully quantified. The ESA Section 

4(b)(2) Report (NMFS 2018b) provides 

our qualitative comparison of the 

national security impacts to the 

conservation benefits in order to 

determine which is greater. If we found 


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that national security impacts outweigh 

conservation benefits, we excluded the 

site from the critical habitat designation. 

If conservation benefits outweigh 

national security impacts, we did not 

exclude the site from the critical habitat 

designation. The decision to exclude 

any sites from a designation of critical 

habitat is always at the discretion of 

NMFS. Table 1 outlines the 

determinations made for each particular 

area identified and the factors that 

weighed significantly in that process. 

TABLE 1—SUMMARY OF THE ASSESSMENT OF PARTICULAR AREAS FOR EXCLUSION FOR THE DOD AND U.S. COAST

GUARD BASED ON IMPACTS ON NATIONAL SECURITY

DOD site, agency 

Size of particular area, 

approximate percent 

of the total area 

under consideration 

Exclusion 

warranted Significant weighing factors 

(1) Entire Area Under Consideration for Designation, Navy 

and Coast Guard.

56,821 km2 (21,933 mi2), 100 .. No .......... This area includes the entire designation and all benefits from 

MHI IFKW critical habitat would be lost. Impacts from delays 

and possible modifications to consultation are outweighed by 

benefits of protecting the habitat. 

(2) PMRF Offshore Areas, Navy 

and Air Force.

843 km2 (∼325 mi2), 1.5 ........... Yes ......... This area overlaps a relatively small area of low-use and lower 

traveled areas of MHI IFKW habitat where DOD maintains 

control of the area. This area is unique for DOD and provides specific opportunities for DOD training and testing. The 

impacts from delays and possible major modifications to consultation outweigh benefits of protecting low-use and lower 

traveled habitat where future non-DOD Federal actions are 

unlikely. 

(3) Waters Enroute to PMRF 

from the Port Allen Harbor, Air 

Force.

1,077 km2 (∼416 mi2), 2 ........... No .......... This area overlaps a relatively small area of low-use and lower 

traveled MHI IFKW habitat that is not owned or controlled by 

DOD and where non-DOD activities may occur. Impacts from 

section 7 consultations are expected to be minor. Thus, short 

delays for minor modifications to consultation are outweighed 

by benefits of protecting this habitat from future DOD and 

non-DOD Federal actions. Note: a portion of this area is now 

excluded from critical habitat because it overlaps with the 

Kaulakahi Channel portion of Warning area 186. 

(4) Kingfisher Range, Navy ....... 14 km2 (∼6 mi2), .02 ................. Yes ......... This area overlaps a small area of low-use and lower traveled 

MHI IFKW habitat where DOD maintains control of the area. 

This area is unique for DOD and provides specific opportunities for DOD training. Impacts from short delays from minor 

modifications to consultation outweigh benefits of protecting 

low-use and lower traveled habitat where future non-DOD 

Federal actions are unlikely. 

(5) Warning Area 188, Navy ...... 2,674 km2 (∼1,032 mi2), 5 ........ Yes ......... This area overlaps a medium area of low-use and lower traveled MHI IFKW habitat. DOD maintains control over a portion 

of the habitat, but does not control deeper waters. Impacts 

from delays and possible major modifications to consultation 

outweigh benefits of protecting low-use and lower traveled 

habitat where future non-DOD Federal actions are less likely. 

(6) Kaula and Warning Area W– 

187, Navy.

266 km2 (∼103 mi2), 0.5 ........... Yes ........ This area overlaps a small area of low-use and very low traveled MHI IFKW habitat where DOD maintains control of the 

area. This area is unique for DOD and provides specific opportunities for DOD training. Impacts from short delays by informal consultation outweigh benefits of protecting low-use 

and very low traveled habitat where future non-DOD Federal 

actions are unlikely. 

(7) W–189, HELO Quickdraw 

Box and Oahu Danger Zone, 

Navy.

2,886 km2 (∼1,114 mi2), 5 ........ No .......... This area overlaps a medium area of low-use and moderate to 

low traveled MHI IFKW habitat and a small high-use area for 

MHI IFKWs. The DOD does not maintain control over these 

waters and non-DOD activities are expected in portions of 

this area. Impacts from delays and possible modifications to 

consultation are outweighed by benefits of protecting both 

high and low-use and moderate to low traveled MHI IFKW 

habitat from future DOD and non-DOD Federal actions. 

(8) Fleet Operational Readiness 

Accuracy Check Site Range 

(FORACS), Navy.

74 km2 (∼29 mi2), 0.1 ............... Yes ........ This area overlaps a small area of low-use and moderate to 

low traveled MHI IFKW habitat where DOD maintains control 

of the area. This area is unique for DOD and provides specific opportunities for DOD testing to maintain equipment accuracy. Impacts from delays and possible modifications to 

consultation outweigh benefits of protecting low-use and 

moderate to low traveled habitat where future non-DOD Federal actions are unlikely. 


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TABLE 1—SUMMARY OF THE ASSESSMENT OF PARTICULAR AREAS FOR EXCLUSION FOR THE DOD AND U.S. COAST

GUARD BASED ON IMPACTS ON NATIONAL SECURITY—Continued 

DOD site, agency 

Size of particular area, 

approximate percent 

of the total area 

under consideration 

Exclusion 

warranted Significant weighing factors 

(9) Shipboard Electronic Systems Evaluation Facility 

Range (SESEF), Navy.

74 km2 (∼29 mi2), 0.1 ............... Yes ......... This area overlaps a small area of low-use and lower traveled 

MHI IFKW habitat where DOD maintains control of the area. 

This area is unique for DOD and provides specific opportunities for DOD testing to maintain equipment accuracy. Impacts from delays and possible modifications to consultation 

outweigh benefits of protecting low-use and lower traveled 

habitat where future non-DOD Federal actions are unlikely. 

(10) W–196 and 191, Navy ....... 728 km2 (∼281 mi2), 1 .............. Yes ......... This area overlaps a relatively small area of low-use and lower 

traveled MHI IFKW habitat that is not controlled by DOD but 

where non-DOD Federal actions are unlikely. Impacts from 

short delays and possible modifications to consultation outweigh benefits of protecting low-use and lower traveled habitat where future non-DOD Federal actions are unlikely. 

(11) W 193 and 194, Navy ........ 458 km2 (∼177 mi2), 1 .............. Yes ......... This area overlaps a relatively small area of low-use and lower 

traveled MHI IFKW habitat that is not controlled by DOD but 

where non-DOD Federal actions are unlikely. Impacts from 

short delays and possible modifications to consultation outweigh benefits of protecting low-use and lower traveled habitat where future non-DOD Federal actions are unlikely. 

(12) Four Islands Region (Maui, 

Lanai, Molokai Kahoolawe), 

Navy.

15,389 km2 (∼5,940 mi2), 27 .... No .......... This area includes a relatively large area of both high and lowuse and high and lower traveled MHI IKFW habitat that is not 

controlled by DOD. Impacts from delays and possible major 

modifications to consultation are outweighed by benefits of 

protecting the entire area, which includes both high and lowuse and high and lower traveled MHI IFKW habitat, from future DOD and non-DOD Federal actions. 

(13) Hawaii Island, Navy ........... 16,931 km2 (∼6,535 mi2); 30 .... No .......... This area includes a relatively large area of both high and lowuse and high and lower traveled MHI IKFW habitat that is not 

controlled by DOD. Impacts from delays and possible major 

modifications to consultation are outweighed by benefits of 

protecting the entire area, which includes both high and lowuse and high and lower traveled MHI IFKW habitat, from future DOD and non-DOD Federal actions. 

(14) Kaulakahi Channel Portion 

of W–186, Navy.

1,631 km2 (∼630 mi2), 3 ........... Yes ........ This area overlaps a small to medium area of low-use and 

lower traveled MHI IFKW habitat that is not controlled by 

DOD. This area is unique for DOD and provides specific opportunities for DOD training and testing. The impacts from 

delays and possible major modifications to consultation outweigh benefits of protecting low-use and lower traveled habitat where future non-DOD Federal actions are unlikely. 

(15) Area North and East of 

Oahu, Navy.

2,472 km2 (∼954 mi2), 4 ........... No .......... This area overlaps a medium area of both high-use and lowuse and high to low traveled MHI IFKW habitat. The DOD 

does not maintain control over these waters and non-DOD 

activities are expected in portions of this area. Impacts from 

delays and possible modifications to consultation are outweighed by benefits of protecting both high and low-use and 

high and low traveled MHI IFKW habitat, from future DOD 

and non-DOD Federal actions. 

(16) Area to the South of Oahu, 

Navy.

1,803 km2 (∼696 mi2), 3 ........... No .......... This area overlaps a medium area of low-use and moderate to 

low traveled MHI IFKW habitat. The DOD does not maintain 

control over these waters and non-DOD activities are expected in portions of this area. Impacts from delays and possible modifications to consultation are outweighed by benefits 

of protecting both low-use and moderate to low traveled MHI 

IFKW habitat, from future DOD and non-DOD Federal actions. 

(17) Kaiwi Channel, Navy .......... 2,355 km2 (∼909 mi2), 4 ........... No .......... This area includes a medium area with mostly high-use and 

high to low traveled MHI IKFW habitat that is not controlled 

by DOD. Impacts from delays and possible major modifications to consultation are outweighed by benefits of protecting 

the entire area, which includes both high and low-use and 

high to low traveled MHI IFKW habitat, from future DOD and 

non-DOD Federal actions. 


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TABLE 1—SUMMARY OF THE ASSESSMENT OF PARTICULAR AREAS FOR EXCLUSION FOR THE DOD AND U.S. COAST

GUARD BASED ON IMPACTS ON NATIONAL SECURITY—Continued 

DOD site, agency 

Size of particular area, 

approximate percent 

of the total area 

under consideration 

Exclusion 

warranted Significant weighing factors 

(18) Area North and Offshore of 

Molokai; Navy.

596 km2 (∼230 mi2), 1 .............. Yes ......... This area overlaps a relatively small area of potential critical 

habitat and includes mostly low-use and low-travel area for 

MHI IKFWs. This area also includes very small portions of 

high-use and moderate to low travelled MHI IFKW habitat on 

the southern boundary of the area. The DOD does not maintain control over these waters and non-DOD activities may 

occur in these areas. The impacts from delays and possible 

major modifications to consultation outweigh benefits of protecting mostly low-use and lower traveled habitat at the edge 

of the designation. 

(19) Alenuihaha Channel, Navy 2,609 km2 (∼1,007 mi2), 5 ........ Yes ........ This area overlaps a small to medium sized area of potential 

critical habitat and includes mostly low-use and low-travel 

area for MHI IKFWs. The DOD does not maintain control 

over these waters and non-DOD activities may occur in 

these areas. The impacts from delays and possible major 

modifications to consultation outweigh benefits of protecting 

mostly low-use and lower traveled habitat. 

(20) Area north of Maui, Navy ... 2,590 km2 (∼1,000 mi2), 5 ........ No .......... This area overlaps a medium area with high-use and high to 

low traveled MHI IFKW habitats. The DOD does not maintain 

control over these waters and non-DOD activities may occur 

in these areas. Impacts from delays and possible modifications to consultation are outweighed by benefits of protecting 

portions of high-use and high to low traveled MHI IFKW habitat, from future DOD and non-DOD Federal actions. 

(21) Area south of Maui, Navy .. 1,899 km2 (∼733 mi2), 3 ........... No .......... This area overlaps a small to medium area of low-use and 

lower traveled MHI IFKW habitat and is located between 

three high-use areas of the designation allowing for contiguous travel between those areas. The area is not controlled 

by DOD. This area is unique for DOD and provides specific 

opportunities for DOD training and testing. Impacts from 

delays and possible modifications to consultation are outweighed by benefits of protecting contiguous habitat between 

MHI IFKW high-use areas, from future DOD and non-DOD 

Federal actions. 

(22) Hawaii Area Tracking System.96 km2 (∼37 mi2), 0.2 ............... Yes ........ This area overlaps a small area of low-use and lower traveled 

MHI IFKW habitat where DOD maintains control of the area. 

This area is unique for DOD and provides specific opportunities for DOD training. The impacts from delays and possible 

major modifications to consultation outweigh benefits of protecting mostly low-use and lower traveled habitat. 

(23) Kahoolawe Training Minefield.12 km2 (∼5 mi2) 0.02 ................ Yes ......... This area overlaps a small area of low-use and lower traveled 

MHI IFKW habitat where DOD maintains control of the area. 

This area is unique for DOD and provides specific opportunities for DOD training. The impacts from delays and possible 

major modifications to consultation outweigh benefits of protecting mostly low-use and lower traveled habitat. 

Other Relevant Impacts of the 

Designation 

Finally, under ESA section 4(b)(2) we 

consider any other relevant impacts of 

critical habitat designation to inform our 

decision as to whether to exclude any 

areas. For example, we may consider 

potential adverse effects on existing 

management plans or conservation 

plans that benefit listed species, and we 

may consider potential adverse effects 

on tribal lands or trust resources. In 

preparing this designation, we have not 

identified any such management or 

conservation plans, tribal lands or 

resources, or anything else that would 

be adversely affected by the critical 

habitat designation. Accordingly, we do 

not exercise our discretionary authority 

to exclude any areas based on other 

relevant impacts. 

Critical Habitat Designation 

This rule designates approximately 

45,504 km2 (17,564 mi2) of marine 

habitat surrounding the main Hawaiian 

Islands within the geographical area 

presently occupied by the MHI IFKW. 

This critical habitat area contains 

physical or biological features essential 

to the conservation of the DPS that may 

require special management 

considerations or protection. We have 

not identified any unoccupied areas that 

are essential to conservation of the MHI 

IFKW DPS and are not proposing any 

such areas for designation as critical 

habitat. This rule proposes to exclude 

from the designation the following areas 

(one area, two sites, for the Bureau of 

Ocean Energy Management (BOEM) and 

13 exclusions requested by the Navy): 

(1) The BOEM Call Area offshore of the 

Island of Oahu (which includes two 

sites, one off Kaena point and one off 

the south shore), (2) the Navy Pacific 

Missile Range Facility’s Offshore ranges 

(including the Shallow Water Training 

Range (SWTR), the Barking Sands 

Tactical Underwater Range (BARSTUR), 

and the Barking Sands Underwater 


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Range Extension (BSURE; west of 

Kauai), (3) the Navy Kingfisher Range 

(northeast of Niihau), (4) Warning Area 

188 (west of Kauai), (5) Kaula Island and 

Warning Area 187 (surrounding Kaula 

Island), (6) the Navy Fleet Operational 

Readiness Accuracy Check Site 

(FORACS) (west of Oahu), (7) the Navy 

Shipboard Electronic Systems 

Evaluation Facility (SESEF) (west of 

Oahu), (8) Warning Areas 196 and 191 

(south of Oahu), (9) Warning Areas 193 

and 194 (south of Oahu), (10) the 

Kaulakahi Channel portion of Warning 

area 186 (the channel between Niihau 

and Kauai and extending east), (11) the 

area north of Molokai, (12) the 

Alenuihaha Channel, (13) Hawaii Area 

Tracking System, and (14) the 

Kahoolawe Training Minefield. Based 

on our best scientific knowledge and 

expertise, we conclude that the 

exclusion of these areas will not result 

in the extinction of the DPS, and will 

not impede the conservation of the DPS. 

In addition, the Ewa Training Minefield 

and the Naval Defensive Sea Area are 

precluded from designation under 

section 4(a)(3) of the ESA because they 

are managed under the JBPHH INRMP 

that we find provides a benefit to the 

Main Hawaiian Islands insular false 

killer whale. 

Effects of Critical Habitat Designations 

Section 7(a)(2) of the ESA requires 

Federal agencies, including NMFS, to 

ensure that any action authorized, 

funded, or carried out by the agency 

(agency action) is not likely to 

jeopardize the continued existence of 

any threatened or endangered species or 

destroy or adversely modify designated 

critical habitat. When a species is listed 

or critical habitat is designated, Federal 

agencies must consult with NMFS on 

any agency action to be conducted in an 

area where the species is present and 

that may affect the species or its critical 

habitat. During the consultation, NMFS 

evaluates the agency action to determine 

whether the action may adversely affect 

listed species or critical habitat and 

issues its finding in a biological 

opinion. If NMFS concludes in the 

biological opinion that the agency 

action would likely result in the 

destruction or adverse modification of 

critical habitat, NMFS would also 

recommend any reasonable and prudent 

alternatives to the action. Reasonable 

and prudent alternatives are defined in 

50 CFR 402.02 as alternative actions 

identified during formal consultation 

that can be implemented in a manner 

consistent with the intended purpose of 

the action, that are consistent with the 

scope of the Federal agency’s legal 

authority and jurisdiction, that are 

economically and technologically 

feasible, and that would avoid the 

destruction or adverse modification of 

critical habitat. 

Regulations at 50 CFR 402.16 require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances in which (1) critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered in the 

biological opinion. Consequently, some 

Federal agencies may request reinitiation of consultation or conference 

with NMFS on actions for which formal 

consultation has been completed, if 

those actions may affect designated 

critical habitat. Activities subject to the 

ESA section 7 consultation process 

include activities on Federal lands, as 

well as activities requiring a permit or 

other authorization from a Federal 

agency (e.g., a section 10(a)(1)(B) permit 

from NMFS), or some other Federal 

action, including funding (e.g., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding). ESA section 7 consultation 

would not be required for Federal 

actions that do not affect listed species 

or critical habitat, and would not be 

required for actions on non-Federal and 

private lands that are not carried out, 

funded, or authorized by a Federal 

agency. 

Activities That May Be Affected 

ESA section 4(b)(8) requires, to the 

maximum extent practicable, in any 

regulation to designate critical habitat, 

an evaluation and brief description of 

those activities (whether public or 

private) that may adversely modify such 

habitat or that may be affected by such 

designation. A wide variety of activities 

may affect MHI IFKW critical habitat 

and may be subject to the ESA section 

7 consultation processes when carried 

out, funded, or authorized by a Federal 

agency. The activities most likely to be 

affected by this critical habitat 

designation once finalized are the 

following: (1) In-water construction 

(including dredging); (2) energy 

development (including renewable 

energy projects); (3) activities that affect 

water quality; (4) aquaculture/ 

mariculture; (5) fisheries; (6) 

environmental restoration and response 

activities (including responses to oil 

spills and vessel groundings, and 

marine debris clean-up activities); and 

(7) some military readiness activities. 

Private entities may also be affected by 

this critical habitat designation if a 

Federal permit is required, Federal 

funding is received, or the entity is 

indirectly affected by delays or changes 

in a Federal project. These activities 

would need to be evaluated with respect 

to their potential to destroy or adversely 

modify critical habitat. Changes to the 

actions to minimize or avoid destruction 

or adverse modification of designated 

critical habitat may result in changes to 

some activities. Please see the Economic 

Analysis Report (Cardno 2018) for more 

details and examples of changes that 

may need to occur in order for activities 

to minimize or avoid destruction or 

adverse modification of designated 

critical habitat. Questions regarding 

whether specific activities would 

constitute destruction or adverse 

modification of critical habitat should 

be directed to NMFS (see ADDRESSES

and FOR FURTHER INFORMATION CONTACT). 

References Cited 

A complete list of all references cited 

in this rule can be found on our website 

at: http://www.fpir.noaa.gov/PRD/prd_

mhi_false_killer_whale.html#fwk_esa_

listing or at www.regulations.gov, and is 

available upon request from the NMFS 

office in Honolulu, Hawaii (see 

ADDRESSES). 

Classification 

Takings 

Under E.O. 12630, Federal agencies 

must consider the effects of their actions 

on constitutionally protected private 

property rights and avoid unnecessary 

takings of property. A taking of property 

includes actions that result in physical 

invasion or occupancy of private 

property that substantially affect its 

value or use. In accordance with E.O. 

12630, this rule does not have 

significant takings implications. The 

designation of critical habitat for the 

MHI IFKW DPS is fully described 

within the offshore marine environment 

and is not expected to affect the use or 

value of private property interests. 

Therefore, a takings implication 

assessment is not required. 

Executive Orders 12866 and 13771 

OMB has determined that this rule is 

significant for purposes of Executive 

Order 12866 review. Economic and 

Regulatory Impact Review Analyses and 

4(b)(2) analyses as set forth and 

referenced herein have been prepared to 

support the exclusion process under 

section 4(b)(2) of the ESA. To review 

these documents see ADDRESSES section 

above. 

We have estimated the costs for this 

rule. Economic impacts associated with 


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this rule stem from the ESA’s 

requirement that Federal agencies 

ensure any action authorized, funded, or 

carried out will not likely jeopardize the 

continued existence of any endangered 

or threatened species or result in the 

destruction or adverse modification of 

critical habitat. In practice, this requires 

Federal agencies to consult with NMFS 

whenever they propose an action that 

may affect a listed species or its 

designated critical habitat, and then to 

modify any action that could jeopardize 

the species or adversely affect critical 

habitat. Thus, there are two main 

categories of costs: Administrative costs 

associated with completing 

consultations, and project modification 

costs. Costs associated with the ESA’s 

requirement to avoid jeopardizing the 

continued existence of a listed species 

are not attributable to this rule, as that 

requirement exists in the absence of the 

critical habitat designation. 

The Economic Report (Cardno 2018) 

identifies the total estimated present 

value of the quantified impacts above 

current consultation effort to be between 

approximately 192,000 to 208,000 

dollars over the next 10 years; on an 

annualized undiscounted basis, the 

impacts are equivalent to 19,200 to 

20,800 dollars per year. Applying 

discounted rates recommended in the 

Office of Management and Budget 

Circular A–4, the Final Economic 

Report estimates these incremental 

impacts of designation to be between 

170,000 to 185,000 using a 3 percent 

discount rate and 143,000 to 156,000 

using a 7 percent discount rate (Cardno 

2018). These total impacts include the 

additional administrative efforts 

necessary to consider critical habitat in 

section 7 consultations. Across the MHI, 

economic impacts are expected to be 

small and largely associated with the 

administrative costs borne by Federal 

agencies. However, private energy 

developers may also bear the 

administrative costs of consultation for 

large energy projects. The Final 

Economic Report estimates these costs 

to be between 0 and 3,000 dollars over 

the next 10 years. While there are 

expected beneficial economic impacts of 

designating critical habitat, there are 

insufficient data available to monetize 

those impacts (see Benefits of 

Designation section). 

This rule is not expected to be subject 

to the requirements of E.O. 13771 

because this rule is expected to result in 

no more than de minimis costs. 

Executive Order 13132, Federalism 

The Executive Order on Federalism, 

Executive Order 13132, requires 

agencies to take into account any 

federalism impacts of regulations under 

development. It includes specific 

consultation directives for situations in 

which a regulation may preempt state 

law or impose substantial direct 

compliance costs on state and local 

governments (unless required by 

statute). Pursuant to E.O. 13132, we 

determined that this rule does not have 

significant federalism effects and that a 

federalism assessment is not required. 

We requested information from and 

coordinated development of this final 

critical habitat designation with 

appropriate Hawaii State resources 

agencies. The designation may have 

some benefit to state and local resource 

agencies in that the rule more clearly 

defines the physical and biological 

features essential to the conservation of 

the species and the areas on which 

those features are found. While this 

designation would not alter where and 

what non-Federally sponsored activities 

may occur, it may assist local 

governments in long-range planning. 

Where state and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) would be required. 

While non-Federal entities that receive 

Federal funding, assistance, or permits, 

or that 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 only on the Federal 

agency. 

Energy Supply, Distribution, and Use 

(Executive Order 13211) 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects when undertaking a 

‘‘significant energy action.’’ According 

to Executive Order 13211, ‘‘significant 

energy action’’ means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under Executive Order 12866 and 

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 

(see section 13.2 of the Economic 

Report; Cardno 2018). It is unlikely for 

the oil and gas industry to experience a 

‘‘significant adverse effect’’ due to this 

designation, as Hawaii does not produce 

petroleum or natural gas, and refineries 

are not expected to be affected by this 

designation. Offshore energy projects 

may affect the essential features of 

critical habitat for the MHI IFKW DPS. 

However, foreseeable impacts are 

limited to two areas off Oahu where 

prospective wind energy projects are 

under consideration (see Economic 

Impacts of Designation section). Impacts 

to the electricity industry would likely 

be limited to potential delays in project 

development, costs to monitor noise, 

and possibly additional administrative 

costs of consultation. The potential 

critical habitat area is not expected to 

affect the current electricity production 

levels in Hawaii. Further, it appears that 

the designation will have little or no 

effect on electrical energy production 

decisions (other than the location of the 

future project), subsequent electricity 

supply, or the cost of future energy 

production. The designation is unlikely 

to impact the industry by greater than 

the 1 billion kWh per year or 500 MW 

of capacity provided as guidance in the 

executive order. It is therefore unlikely 

for the electricity production industry to 

experience a significant adverse effect 

due to the MHI IFKW critical habitat 

designation. 

Regulatory Flexibility Act 

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 RFA 

describing the effects of the rule on 

small entities, i.e., small businesses, 

small organizations, and small 

government jurisdictions. A final 

regulatory flexibility analysis (FRFA) 

has been prepared, which is included as 

Chapter 13 to the Economic Report 

(Cardno 2018). This document is 

available upon request (see ADDRESSES), 

via our website at http://

www.fpir.noaa.gov/PRD/prd_mhi_false_

killer_whale.html#fwk_esa_listing or via 

the Federal eRulemaking website at 

www.regulations.gov. 

A statement of need for and objectives 

of this rule is provided earlier in the 

preamble and is not repeated here. This 

rule will not impose any recordkeeping 

or reporting requirements. NMFS 

received comments on the proposed 

rule and supplementary reports during 

the 60-day comment period; no 

comments were received on the initial 

regulatory flexibility analysis for this 

action. 

We identified the impacts to small 

businesses by considering the seven 

activities most likely impacted by the 

designation: (1) In-water construction 

(including dredging); (2) energy 

development (including renewable 

energy projects); (3) activities that affect 


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water quality; (4) aquaculture/ 

mariculture; (5) fisheries; (6) 

environmental restoration and response 

activities (including responses to oil 

spills and vessel groundings, and 

marine debris clean-up activities); and 

(7) some military activities. As 

discussed in the Economic Impacts of 

Designation section of this proposed 

rule and the Economic Report, the only 

entities identified as bearing economic 

impacts (above administrative costs) by 

the potential critical habitat designation 

are two developers of offshore wind 

energy projects; however, these entities 

exceed the criterion established by SBA 

for small businesses (Cardno 2018). 

Although considered unlikely (NMFS 

2018a), there remains a small, 

unquantifiable possibility that federallymanaged longline boats (i.e., deep-set or 

shallow-set fisheries) could be subject to 

additional conservation and 

management measures. At this time, 

however, NMFS has no information to 

suggest that additional measures are 

reasonably necessary to protect prey 

species. Chapter 13 of the Economic 

Report provides a description and 

estimate of the number of these entities 

that fit the criterion that could be 

impacted by the designation if future 

management measures were identified 

(Cardno 2018). Due to the inherent 

uncertainty involved in predicting 

possible economic impacts that could 

result from future consultations, we 

acknowledge that other unidentified 

impacts may occur. 

In accordance with the requirements 

of the RFA, this analysis considered 

alternatives to the critical habitat 

designation for the MHI IFKW that 

would achieve the goals of designating 

critical habitat without unduly 

burdening small entities. The alternative 

of not designating critical habitat for the 

MHI IFKW was considered and rejected 

because such an approach does not meet 

our statutory requirements under the 

ESA. We also considered and rejected 

the alternative of designating as critical 

habitat all areas that contain at least one 

identified essential feature (i.e., no areas 

excluded), because the alternative does 

not allow the agency to take into 

account circumstances in which the 

benefits of exclusion for economic, 

national security, and other relevant 

impacts outweigh the benefits of critical 

habitat designation. Finally, through the 

ESA 4(b)(2) consideration process, we 

identified and selected an alternative 

that may lessen the impacts of the 

overall designation for certain entities, 

including small entities. Under this 

alternative, we considered excluding 

particular areas within the designated 

specific area based on economic and 

national security impacts. This selected 

alternative may help to reduce the 

indirect impact to small businesses that 

are economically involved with military 

activities or other activities that undergo 

section 7 consultation in these areas. 

However, as the costs resulting from 

critical habitat designation are primarily 

administrative and are borne mostly by 

the Federal agencies involved in 

consultation, there is insufficient 

information to monetize the costs and 

benefits of these exclusions at this time. 

We did not consider other economic or 

relevant exclusions from critical habitat 

designation because our analyses 

identified only low-cost administrative 

impacts to Federal entities in other areas 

not proposed for exclusion. 

In summary, the primary benefit of 

this designation is to ensure that Federal 

agencies consult with NMFS whenever 

they carry out, fund, or authorize any 

action that may adversely affect MHI 

IFKW critical habitat. Costs associated 

with critical habitat are primarily 

administrative costs borne by the 

Federal agency taking the action. Our 

analysis did not identify any economic 

impacts to small businesses based on 

this designation and current information 

does not suggest that small businesses 

will be disproportionately affected by 

this designation (Cardno 2018). 

Although the analysis shows that we 

could have certified that there would 

not be significant economic impact on a 

substantial number of small entities, we 

are instead presenting this FRFA. 

During a formal section 7 consultation 

under the ESA, NMFS, the action 

agency, and the third party applying for 

Federal funding or permitting (if 

applicable) communicate in an effort to 

minimize potential adverse effects to the 

species and to the proposed critical 

habitat. Communication among these 

parties may occur via written letters, 

phone calls, in-person meetings, or any 

combination of these. The duration and 

complexity of these communications 

depend on a number of variables, 

including the type of consultation, the 

species, the activity of concern, and the 

potential effects to the species and 

designated critical habitat associated 

with the activity that has been 

proposed. The third-party costs 

associated with these consultations 

include the administrative costs, such as 

the costs of time spent in meetings, 

preparing letters, and the development 

of research, including biological studies 

and engineering reports. There are no 

small businesses directly regulated by 

this action and there are no additional 

costs to small businesses as a result of 

section 7 consultations to consider. 

Coastal Zone Management Act 

Under section 307(c)(1)(A) of the 

Coastal Zone Management Act (CZMA) 

(16 U.S.C. 1456(c)(1)(A)) and its 

implementing regulations, each Federal 

activity within or outside the coastal 

zone that has reasonably foreseeable 

effects on any land or water use or 

natural resource of the coastal zone 

shall be carried out in a manner which 

is consistent to the maximum extent 

practicable with the enforceable policies 

of approved state coastal management 

programs. We have determined that the 

designation of critical habitat for the 

MHI IFKW DPS is consistent to the 

maximum extent practicable with the 

enforceable policies of the approved 

Coastal Zone Management (CZM) 

Program of Hawaii. This determination 

was submitted to the Hawaii CZM 

Program for review. While the Hawaii 

CZM Program noted comments from 

Hawaii’s Department of Land and 

Natural Resources DAR expressing 

concerns about the expansiveness of the 

proposed designation, the Hawaii CZM 

Program concurred with our consistency 

determination in a letter they issued to 

NMFS on December 15, 2017. These 

concerns about the expansiveness of the 

designation were submitted by DAR and 

are addressed under our responses to 

Comments 8 and 10 above. 

Paperwork Reduction Act 

The purpose of the Paperwork 

Reduction Act is to minimize the 

paperwork burden for individuals, small 

businesses, educational and nonprofit 

institutions, and other persons resulting 

from the collection of information by or 

for the Federal government. This final 

rule does not contain any new or 

revised collection of information. This 

rule, does not impose recordkeeping or 

reporting requirements on state or local 

governments, individuals, businesses, or 

organizations. 

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 proposed 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.’’ 

The designation of critical habitat does 

not impose an enforceable duty on nonFederal government entities or private 

parties. The only regulatory effect of a 


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critical habitat designation is that 

Federal agencies must ensure that 

actions that they fund, authorize, or 

undertake are not likely to destroy or 

adversely modify critical habitat under 

ESA section 7. Non-Federal entities that 

receive funding, assistance, or permits 

from Federal agencies, or otherwise 

require approval or authorization from a 

Federal agency for an action, may be 

indirectly affected because they receive 

Federal assistance or participate in a 

voluntary Federal aid program; 

however, the Federal action agency has 

the obligation to avoid destruction or 

adverse modification of critical habitat. 

(B) This rule will not significantly or 

uniquely affect small governments. As 

such, a Small Government Agency Plan 

is not required. 

Consultation and Coordination With 

Indian Tribal Governments 

The longstanding 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 towards 

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. Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ outlines 

the responsibilities of the Federal 

government in matters affecting tribal 

interests. ‘‘Federally recognized tribe’’ 

means an Indian or Alaska Native tribe 

or community that is acknowledged as 

an Indian tribe under the federally 

Recognized Indian Tribe List Act of 

1994 (25 U.S.C. 479a). 

In the list published annually by the 

Secretary, there are no federally 

recognized tribes in the State of Hawaii 

(74 FR 40218; August 11, 2009). 

Although Native Hawaiian lands are not 

tribal lands for purposes of the 

requirements of the President’s 

Memorandum or the Department 

Manual, recent Department of Interior 

regulations (43 CFR 50) set forth a 

process for establishing formal 

government-to-government relationship 

with the Native Hawaiian Community. 

Moreover, we recognize that Native 

Hawaiian organizations have the 

potential to be affected by Federal 

regulations and as such, consideration 

of these impacts may be evaluated as 

other relevant impacts from the 

designation. 

We solicited comments regarding 

areas of overlap with the designation 

that may warrant exclusion from critical 

habitat for the MHI IFKW due to such 

impacts mentioned above, and/or 

information from affected Native 

Hawaiian organizations concerning 

other Native Hawaiian activities that 

may be affected in areas other than 

those specifically owned by the 

organization. We received no additional 

information regarding any potential 

impacts. 

In conclusion we find that this critical 

habitat designation does not have tribal 

implications, because the final critical 

habitat designation does not include any 

tribal lands and does not affect tribal 

trust resources or the exercise of tribal 

rights. 

Information Quality Act (IQA) 

Pursuant to the Information Quality 

Act (section 515 of Pub. L. 106–554), 

this information product has undergone 

a pre-dissemination review by NMFS. 

The signed Pre-dissemination Review 

and Documentation Form is on file with 

the NMFS Pacific Islands Regional 

Office (see FOR FURTHER INFORMATION

CONTACT). 

List of Subjects 

50 CFR Part 224 

Endangered and threatened species, 

Exports, Imports, Transportation. 

50 CFR Part 226 

Endangered and threatened species. 

Dated: July 16, 2018. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR part 224 and 226 are 

amended as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq. 

■ 2. In § 224.101, amend the table in 

paragraph (h) by revising the entry for 

‘‘Whale, false killer (Main Hawaiian 

Islands Insular DPS) under the ‘‘Marine 

Mammals’’ subheading to read as 

follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) * * * 

Species 1

Citation(s) for listing 

determination(s) 

Critical 

habitat ESA rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Whale, false killer (Main Hawaiian Islands Insular 

DPS).

Pseudorca crassidens ....... False killer whales found 

from nearshore of the 

main Hawaiian Islands 

out to 140 km (approximately 75 nautical miles) 

and that permanently reside within this geographic range.

77 FR 70915, Nov. 28, 

2012.

§ 226.226 NA. 

* * * * * * * 

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 

1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 


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* * * * * 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 3. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 4. Add § 226.226, to read as follows: 

§ 226.226 Critical habitat for the main 

Hawaiian Islands insular false killer whale 

(Pseudorca crassidens) Distinct 

Population Segment. 

Critical habitat is designated for main 

Hawaiian Islands insular false killer 

whale as described in this section. The 

maps, clarified by the textual 

descriptions in this section, are the 

definitive source for determining the 

critical habitat boundaries. 

(a) Critical habitat boundaries. 

Critical habitat is designated in the 

waters surrounding the main Hawaiian 

Islands from the 45-meter (m) depth 

contour out to the 3,200-m depth 

contour as depicted in the maps below. 

(b) Essential features. The essential 

feature for the conservation of the main 

Hawaiian Islands insular false killer 

whale is the following: Islandassociated marine habitat for main 

Hawaiian Islands insular false killer 

whales. Main Hawaiian Islands insular 

false killer whales are island-associated 

whales that rely entirely on the 

productive submerged habitat of the 

main Hawaiian Islands to support all of 

their life-history stages. The following 

characteristics of this habitat support 

insular false killer whales’ ability to 

travel, forage, communicate, and move 

freely around and among the waters 

surrounding the main Hawaiian Islands: 

(1) Adequate space for movement and 

use within shelf and slope habitat; 

(2) Prey species of sufficient quantity, 

quality, and availability to support 

individual growth, reproduction, and 

development, as well as overall 

population growth; 

(3) Waters free of pollutants of a type 

and amount harmful to main Hawaiian 

Islands insular false killer whales; and 

(4) Sound levels that would not 

significantly impair false killer whales’ 

use or occupancy. 

(c) Areas not included in critical 

habitat. Critical habitat does not include 

the following particular areas where 

they overlap with the areas described in 

paragraph (a) of this section: 

(1) Pursuant to Endangered Species 

Act (ESA) section 4(b)(2), the following 

areas have been excluded from the 

designation: The Bureau of Ocean 

Energy Management Call Area offshore 

of the Island of Oahu (which includes 

two sites, one off Kaena point and one 

off the south shore), the Navy Pacific 

Missile Range Facility’s Offshore ranges 

(including the Shallow Water Training 

Range (SWTR), the Barking Sands 

Tactical Underwater Range (BARSTUR), 

and the Barking Sands Underwater 

Range Extension (BSURE; west of 

Kauai), the Navy Kingfisher Range 

(northeast of Niihau), Warning Area 188 

(west of Kauai), Kaula Island and 

Warning Area 187 (surrounding Kaula 

Island), the Navy Fleet Operational 

Readiness Accuracy Check Site 

(FORACS) (west of Oahu), the Navy 

Shipboard Electronic Systems 

Evaluation Facility (SESEF) (west of 

Oahu), Warning Areas 196 and 191 

(south of Oahu), Warning Areas 193 and 

194 (south of Oahu), the Kaulakahi 

Channel portion of Warning area 186 

(the channel between Niihau and Kauai 

and extending east), the area north of 

Molokai (found offshore at the outer 

edge of the designation), the Alenuihaha 

Channel, the Hawaii Area Tracking 

System, and the Kahoolawe Training 

Minefield. 

(2) Pursuant to ESA section 4(a)(3)(B), 

all areas subject to the Joint Base Pearl 

Harbor-Hickam Integrated Natural 

Resource Management Pl69. 

(d) Maps of main Hawaiian Islands 

insular false killer whale critical habitat. 

BILLING CODE 3510–22–P 


sradovich on DSK3GMQ082PROD with RULES2ER24JY18.000</GPH>
Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules and Regulations 35093 


sradovich on DSK3GMQ082PROD with RULES2ER24JY18.001</GPH>

Final MHIIFKW Critical Habitat: around Niihau and Kauai 

~ National Security Exclusions 

Final MHIIFKW Critical Habitat 0 

N 

A 

40 Kilometers 
35094 Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules and Regulations 


sradovich on DSK3GMQ082PROD with RULES2ER24JY18.002</GPH>

z 

b 

b 

(') 

0 

..... 

N 

z 

b 

b 

0 

...... 

N 

z 

b 

Final MHI IFKW Critical Habitat: around Oahu 

Warning Areas 196 and 1 

~ ~ ~ National Security Exclusions 

j::i!ii:ii!Hii1l Economic Exclusions 

- Areas Not Eligible for Critical Habitat Designation 

Final MHI IFKW Critical Habitat o 20 

I I I I I I I I 

N 

A 
Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules and Regulations 35095 

[FR Doc. 2018–15500 Filed 7–23–18; 8:45 am] 

BILLING CODE 3510–22–C 


sradovich on DSK3GMQ082PROD with RULES2ER24JY18.003</GPH> ER24JY18.004</GPH>

z 

p 

p 

;;; 

~ National Security Exclusions 

Final MHIIFKW Critical Habitat 

Final MH I IFKW Critical Habitat around Hawaii 

0 

N 

A 

N 

A 

40 Kilometers