9682 Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules 

(b) Replacement Standards guide 

agencies to consider an effective 

replacement strategy for Government 

personal property items. For example, 

an agency may designate a type of item 

to be replaced every three years, based 

upon the expected trends of reliability, 

maintenance costs, and usefulness as 

the item ages. However, actual 

replacement decisions should also 

consider the condition of the item. 

(c) Agencies should consider 

voluntary consensus standards, industry 

standards, and Federal best-practices in 

developing Use and Replacement 

Standards. Factors to consider when 

choosing standards to use are outlined 

in OMB Circular A–119, ‘‘Federal 

Participation in the Development and 

Use of Voluntary Consensus Standards 

and in Conformity Assessment 

Activities.’’ Voluntary consensus 

standards must be used in lieu of 

Government-unique standards unless 

such use would be inconsistent with 

applicable law or regulation, or be 

otherwise impractical. 

[FR Doc. 2015–03484 Filed 2–23–15; 8:45 am] 

BILLING CODE 6820–14–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 140407321–5096–02] 

RIN 0648–XD233 

Listing Endangered or Threatened 

Species; 12-Month Finding on a 

Petition To Revise the Critical Habitat 

Designation for the Southern Resident 

Killer Whale Distinct Population 

Segment 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of 12-month finding. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), announce a 

12-month finding on a petition from the 

Center for Biological Diversity to revise 

the critical habitat designation for the 

Southern Resident killer whale (Orcinus 

orca) Distinct Population Segment (DPS) 

under the Endangered Species Act 

(ESA). In November 2006 we issued a 

final rule designating approximately 

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

inland waters of Washington State as 

critical habitat for the Southern 

Resident killer whale DPS. The January 

2014 petition requests we revise this 

critical habitat to include Pacific Ocean 

marine waters along the West Coast of 

the United States that constitute 

essential foraging and wintering areas 

for Southern Resident killer whales. 

Additionally, the petition requests that 

we adopt as a primary constituent 

element (PCE), for both currently 

designated critical habitat and the 

proposed revised critical habitat, 

protective in-water sound levels. The 

ESA defines a process for responding to 

petitions to revise critical habitat. We 

have reviewed the public comments and 

best available information on Southern 

Resident killer whale habitat use and as 

the next step in the response to the 

petition process defined in the ESA, this 

12-month determination describes how 

we intend to proceed with the requested 

revision. 

DATES: The finding announced in this 

document was made on February 24, 

2015. 

ADDRESSES: Copies of the petition, 90- 

day finding, and the list of references 

are available online at: http://

www.westcoast.fisheries.noaa.gov/

protected_species/marine_mammals/

killer_whale/esa_status.html 

Requests for copies of this 

determination should be addressed to: 

NMFS, West Coast Region, Protected 

Resources Division, 7600 Sand Point 

Way NE., Seattle, WA 98115. 

Attention—Lynne Barre, Seattle Branch 

Chief. 

FOR FURTHER INFORMATION CONTACT: 

Lynne Barre, NMFS West Coast Region, 

(206) 526–4745; or Dwayne Meadows, 

NMFS Office of Protected Resources, 

(301) 427–8403. 

SUPPLEMENTARY INFORMATION: 

Background 

On January 21, 2014, we received a 

petition from the Center for Biological 

Diversity requesting revisions to the 

critical habitat designation for the 

Southern Resident killer whale DPS. 

That requested revision sets in motion 

a process for agency response defined in 

the ESA and explained below. 

The ESA defines critical habitat under 

section 3(5)(A) as: ‘‘(i) the specific areas 

within the geographical area currently 

occupied by the species, at the time it 

is listed . . . on which are found those 

physical or biological features (I) 

essential to the conservation of the 

species and (II) which may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by the species at the time it is listed 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species.’’ 

Joint NMFS-Fish and Wildlife Service 

(FWS) regulations for designating 

critical habitat at 50 CFR 424.12(b) state 

that the agencies ‘‘shall consider those 

physical and biological features that are 

essential to the conservation of a given 

species and that may require special 

management considerations or 

protection (hereafter also referred to as 

‘Essential Features’ or ‘Primary 

Constituent Elements’/PCEs’).’’ Pursuant 

to these regulations, such features 

include, but are not limited to space for 

individual and population growth, and 

normal behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

rearing of offspring; and habitats that are 

protected from disturbance or are 

representative of the historic 

geographical and ecological distribution 

of a species. When considering the 

designation of critical habitat, we focus 

on the principal biological or physical 

constituent elements, known as primary 

constituent elements (PCEs). PCEs may 

include, but are not limited to: nesting 

grounds, feeding sites, water quality, 

tide, and geological formation. Our 

implementing regulations (50 CFR 

424.02) define ‘‘special management 

considerations or protection’’ as any 

method or procedure useful in 

protecting physical and biological 

features of the environment for the 

conservation of the species. 

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

to designate and make revisions to 

critical habitat for listed species based 

on 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. The Secretary of 

Commerce may exclude any particular 

area from critical habitat if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless she determines 

that the failure to designate such area as 

critical habitat will result in the 

extinction of the species concerned. 

NMFS and FWS have recently 

published proposed rules to implement 

changes to the regulations for 

designating critical habitat. The 

proposed amendments would make 

minor edits to the scope and purpose, 

add and remove some definitions (e.g., 

geographic area and essential features), 

and clarify the criteria for designating 

critical habitat (79 FR 27066; May 12, 

2014). We will incorporate any relevant 

final regulations and guidance into our 

process for revising critical habitat. 


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The ESA provides that NMFS may, 

from time-to-time, revise critical habitat 

as appropriate (section 4(a)(3)(B)). In 

accordance with section 4(b)(3)(D)(i) of 

the ESA, to the maximum extent 

practicable, within 90 days of receipt of 

a petition to revise critical habitat, the 

Secretary of Commerce is required to 

make a finding as to whether that 

petition presents substantial scientific 

or commercial information indicating 

that the petitioned action may be 

warranted, and to promptly publish 

such finding in the Federal Register. On 

April 25, 2014 (79 FR 22933), we 

published our 90-day finding that the 

petition, viewed in the context of the 

information readily available in our 

files, presented substantial information 

indicating that revising critical habitat 

may be warranted and initiated a review 

of the current critical habitat 

designation. To ensure a comprehensive 

review of the current critical habitat 

designation and new information that is 

now available, we solicited scientific 

and commercial information regarding 

the petitioned action. 

When we find that a petition presents 

substantial information indicating that a 

revision may be warranted, we are 

required to determine how we intend to 

proceed with the requested revision 

within 12 months after receiving the 

petition, and promptly publish notice of 

our intention in the Federal Register. 

The statute says nothing more about 

options or considerations regarding the 

12-month determination or timelines 

associated with issuance of a proposed 

rule, (see section 4(b)(3)(D)(ii)). This 

notice reviews the current critical 

habitat designation, the petition for 

revision, summarizes comments on the 

90-day finding, and describes how we 

intend to proceed with the requested 

revisions to critical habitat for the 

Southern Resident killer whale DPS. 

Current Critical Habitat Designation 

Following the ESA listing of the 

Southern Resident killer whale DPS (70 

FR 69903; November 18, 2005), we 

finalized a designation of critical habitat 

in 2006 (71 FR 69054; November 29, 

2006). We summarized available 

information on natural history, habitat 

use, and habitat features in a Biological 

Report accompanying the designation 

(NMFS, 2006). Based on the natural 

history of the Southern Resident killer 

whales and their habitat needs, the 

physical or biological features necessary 

for conservation were identified as: (1) 

Water quality to support growth and 

development; (2) prey species of 

sufficient quantity, quality and 

availability to support individual 

growth, reproduction and development, 

as well as overall population growth; 

and (3) passage conditions to allow for 

migration, resting, and foraging. 

The final critical habitat designation 

identified three specific areas, within 

the area occupied, which contained the 

essential features listed above. The three 

specific areas designated as critical 

habitat were (1) the Summer Core Area 

in Haro Strait and waters around the 

San Juan Islands; (2) Puget Sound; and 

(3) the Strait of Juan de Fuca, which in 

total comprise approximately 2,560 

square miles (6,630 sq km) of marine 

habitat. We determined that the 

economic benefits of exclusion of any of 

the areas did not outweigh the benefits 

of designation, and we therefore did not 

exclude any areas based on economic 

impacts. We considered the impacts to 

national security, and concluded the 

benefits of exclusion of 18 military sites, 

comprising approximately 112 square 

miles (291 sq km), outweighed the 

benefits of inclusion, because of 

national security impacts, and therefore, 

the sites were not included in the 

designation. The critical habitat 

designation included waters deeper 

than 20 feet (6.1 m) relative to the 

extreme high water tidal datum. 

At the time of the designation, we 

noted that there were few data on 

Southern Resident killer whale 

distribution and habitat use of the 

coastal and offshore areas in the Pacific 

Ocean. Although we recognized that the 

whales occupy these waters for a 

portion of the year and considered them 

part of the geographical area occupied 

by the species, we declined to designate 

these areas as critical habitat because 

the data informing whale distribution, 

behavior and habitat use were 

insufficient to define ‘‘specific areas’’ 

(see Coastal and Offshore Areas section; 

71 FR 69054; November 29, 2006). 

Petition To Revise Critical Habitat 

On January 21, 2014, we received a 

petition from the Center for Biological 

Diversity requesting revision to the 

critical habitat designation for the 

Southern Resident killer whale DPS. 

The petition lists recent sources of 

information on the whales’ habitat use 

along the West Coast of the U.S., 

particularly from NMFS’ Northwest 

Fisheries Science Center (NWFSC) 

programs, such as satellite tagging 

conducted in 2012 and 2013. The 

petition also reviews natural history and 

threats to the whales. The Center for 

Biological Diversity proposes that the 

critical habitat designation be revised 

and expanded to include the addition of 

the Pacific Ocean region between Cape 

Flattery, WA, and Point Reyes, CA, 

extending approximately 47 miles (76 

km) offshore. The petition identifies that 

each of the three PCEs identified in the 

2006 critical habitat designation (see 

Current Critical Habitat Designation 

Section above) are also essential features 

in the whales’ Pacific Ocean habitat. In 

addition, the petition asks us to adopt 

a fourth PCE for both existing and 

proposed critical habitat areas providing 

for in-water sound levels that: ‘‘(1) do 

not exceed thresholds that inhibit 

communication or foraging activities, (2) 

do not result in temporary or permanent 

hearing loss to whales, and (3) do not 

result in abandonment of critical habitat 

areas.’’ 

The standard for determination of 

whether a petition includes substantial 

information is whether the amount of 

information presented provides a basis 

for us to find that it would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted. Based on the information 

presented and referenced in the 

petition, as well as all other information 

readily available in our files, we found 

that the recent information on the 

whales’ movements through their 

offshore habitat and discussion of sound 

as a feature of habitat met this standard 

and published a 90-day finding 

accepting the petition and requesting 

information to inform a review of the 

current critical habitat designation (79 

FR 22933; April 25, 2014). 

Summary of Public Comments 

In the 90-day finding we solicited 

new information from the public, 

governmental agencies, tribes, the 

scientific community, industry, 

environmental entities, and any other 

interested parties concerning (1) the 

essential habitat needs and use of the 

whales, (2) the West Coast area 

proposed for inclusion, (3) the physical 

and biological features essential to the 

conservation of Southern Residents and 

that may require special management 

considerations or protection, (4) 

information regarding potential benefits 

or impacts of designating any particular 

area, including information on the types 

of Federal actions that may affect the 

area’s physical and biological features, 

and (5) current or planned activities in 

the areas proposed as critical habitat 

and costs of potential modifications to 

those activities due to critical habitat 

designation. We requested that all data 

and information be accompanied by 

supporting documentation such as 

maps, bibliographic references, or 

reprints of pertinent publications. 

The public comment period on the 

90-day finding closed on June 24, 2014, 

and all of the comments received can be 

viewed at www.regulations.gov by 


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searching for FDMS docket number 

‘‘NOAA–NMFS–2014–0041’’. We 

received 275 comments from a variety of 

individuals and organizations including 

researchers, concerned citizens, private, 

government and nonprofit 

organizations. The majority of 

comments (over 250) were brief 

expressions of support for expanding 

the Southern Resident killer whale’s 

critical habitat to offshore and coastal 

areas; two commenters were opposed to 

the petition’s proposed revision of 

critical habitat. In addition, many 

commenters noted sound was important 

to killer whales and six specifically 

supported including sound as a PCE for 

critical habitat. There were fifteen 

commenters that provided substantive 

information or comments. Thirteen of 

these commenters supported the 

petitioned action, and many referenced 

the data presented in the petition, 

which largely comes from recent 

NWFSC studies conducted from 2006– 

2013. Some commenters offered 

additional information, including data 

on ocean and Puget Sound fisheries, 

salmon populations along the 

Washington coast, and whale sightings 

in inland waters and off the 

Washington, Oregon, and California 

coasts. Below we provide a summary of 

the substantive comments and 

information so the public is aware of the 

information submitted. Where 

appropriate, we have combined similar 

comments. We will take into account 

the comments and information provided 

in our consideration of a revision to 

critical habitat. 

Geographical Area Occupied by the 

Species 

Comment 1: Several commenters 

noted that the data from satellite 

tracking and tagging, visual sightings, 

acoustic recorders, and strandings all 

provide evidence that the Southern 

Resident killer whales regularly use the 

coasts of Washington, Oregon, and 

California during part of the year. One 

commenter suggested that more research 

be conducted to help decide if the 

proposed southern boundary be 

extended even farther south. Several 

commenters provided evidence that 

suggests the whales are spending less 

time in inland waters, specifically in 

spring months, and have likely 

increased their use of offshore waters. 

They noted the coast is important to the 

whales, which makes the need of an 

expanded protected area essential. 

Comment 2: Two commenters urged 

that we should reconsider the protection 

of the Hood Canal and include it in the 

revised critical habitat designation and 

one suggested expanding critical habitat 

into shallower waters. These 

commenters stressed the historical 

importance of Hood Canal to the whales 

and noted that it was used on a regular 

basis until the early 1980s. The last 

confirmed use of Hood Canal by the 

Southern Residents occurred in 1995, 

which one commenter noted was less 

than 4 years prior to the formal listing 

process. Based on the extensive use of 

Hood Canal by transient killer whales, 

they noted Hood Canal possesses the 

physical and biological features 

necessary to support the whales. Due to 

its proximity to the core use area in the 

San Juan Islands, prey resources in 

Hood Canal could be used, and Hood 

Canal would provide a safe refuge in the 

event of an oil spill. In addition to 

expanding inland critical habitat to 

include Hood Canal, one commenter 

suggested expanding critical habitat to 

shallower water for the pursuit of prey, 

socializing, grooming, and playing. The 

commenter argued that including the 

whale’s active space in critical habitat 

(or the space around an individual that 

is perceived visually or auditorily) is 

more appropriate than creating an 

arbitrary border at 20 feet (6.1m) of 

water. 

Military Exclusions 

Comment 3: One commenter noted 

that NMFS should only exclude a subset 

of the military exclusion requests or 

completely revoke all of the exclusions. 

This comment was based on the large 

size and Southern Resident killer whale 

use of some military areas and 

suggestions that military activities could 

be moved to reduce overall area or 

mitigation for military areas could be 

considered elsewhere. 

Sound as an Essential Feature of 

Critical Habitat 

Comment 4: Many commenters 

expressed concern that underwater 

noise can affect Southern Resident killer 

whales in numerous ways, including 

disrupting communication, reducing the 

distance of detecting prey or other 

whales, masking echolocation, 

temporarily or permanently impairing 

hearing, causing strandings or mortality, 

causing other stress-related harm, and 

leading to habitat abandonment. Several 

of these commenters were concerned 

that ambient underwater noise levels are 

rapidly increasing in the whales’ 

habitat. For example, one commenter 

was concerned that a proposed 

expansion of naval structures in the 

Puget Sound will add more noise to the 

current levels that may cause behavioral 

disturbance. Another commenter was 

concerned about an increase in Navy 

training and testing activities in the 

Pacific Ocean that could put the killer 

whales in more danger. One commenter 

was concerned that the issuance of 

incidental take permits does not occur 

for all noise sources (e.g., there is no 

regulation of shipping noise, 

recreational vessel and commercial 

whale watch vessel traffic noise or noise 

from fisheries). Another commenter 

argued that noise pollution is hurting 

the gene pool by unintentionally 

selecting against acute hearing, which 

they argue is likely to reduce the fitness 

of individuals in the population. 

These commenters urged us to 

identify a sound-based PCE and identify 

sound levels that do not (1) exceed 

thresholds that inhibit communication 

or foraging activities, (2) result in 

temporary or permanent hearing loss to 

the whales, or (3) result in the 

abandonment of critical habitat areas. 

One commenter added that the soundbased PCE should be established so as 

not to cause chronic stress, including 

stress that is potentially sufficient to 

impair reproduction, or increase 

morbidity or the risk of mortality. They 

suggested that we evaluate whether a 

numeric standard for the sound PCE 

may be appropriate to determine when 

adverse modification of critical habitat 

occurs. However, if numerical standards 

are not supported by available data, they 

suggested we adopt proxies from other 

species. Lastly, several commenters 

noted that the Canadian government has 

identified acoustic degradation as one of 

the main threats to killer whales and the 

acoustic quality of the Southern and 

Northern Resident killer whales’ critical 

habitat in Canada is legally protected by 

the Critical Habitat Protection Order 

(see http://www.registrelepsararegistry.gc.ca/document/default_

e.cfm?documentID=1756.) 

One commenter supports the petition, 

but cautioned that the establishment of 

in-water sound levels based on results 

from the work primarily from one 

researcher (Williams et al., 2009; 2013; 

2014), which they still considered to be 

a work-in-progress and, based on 

another population of killer whales, 

could result in a disproportionate and 

distractive regulatory action against the 

boat-based whale watch industry. 

Another commenter asked us to reject 

the petition and believes revising 

critical habitat to include the coastal 

waters of Washington, Oregon, and 

California and/or adopting a sound PCE 

would compromise military readiness 

and national security by substantially 

limiting training, testing, and 

construction activities. Furthermore, the 

commenter stated the PCE criteria 

described in the petition are too vague 

for a complete assessment of potential 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules 9685 

impacts to Navy activities, and they 

requested we clarify the details on the 

sound PCE (e.g., the frequency of 

sounds of concern, the duration and 

type of sounds and sound producing 

activity that would likely create an 

adverse effect, the sound level 

threshold, timing, the certainty to which 

an animal would need to be present to 

trigger restrictions, and implementation 

and enforcement techniques), in order 

to adequately assess the impacts to 

national security. 

Another commenter asked us to reject 

the petition and argued that sound is 

not a tangible feature contemplated by 

the ESA, but rather is an element that 

can be introduced into the aquatic 

environment that has the potential to 

have a direct effect on a species. They 

also argued the effects to a species from 

an action should be addressed in the 

section 7 jeopardy analysis, whereas the 

adverse modification analysis needs to 

address the potential impacts of the 

action on the habitat. With the 

exception of Cook Inlet beluga whales 

designated critical habitat that includes 

in-water noise below levels resulting in 

the abandonment of critical habitat 

areas (50 CFR 226.220), they note that 

designating sound as a PCE would be a 

departure from NMFS’ prior practice of 

not including sound, even for species 

that can be affected by in-water sound 

(i.e., right whales). Lastly, they claim 

there is no factual basis to designate 

sound as a PCE and the petition does 

not narrowly define designated critical 

habitat. For example, they argue that no 

information in the petition shows where 

the specific areas containing the 

elements of the noise PCE are found, 

and the biological needs of the whales 

are not well known enough to determine 

specific marine areas with sound levels 

essential to their conservation. 

Essential Features and Special 

Management Considerations 

Comment 5: Several commenters 

argued that Southern Resident killer 

whales are susceptible to threats outside 

their current protected habitat and the 

proposed area for critical habitat is in 

need of protection. The commenters 

noted that the whales feed on salmon, 

breed, and calve while in coastal waters. 

They highlighted that current Southern 

Resident killer whale critical habitat 

only protects summer and fall Chinook 

salmon stocks. One commenter stressed 

that the winter and spring runs of 

Chinook salmon along the outer coast 

represent a major food source for the 

whales and that these runs should also 

be protected. Because the whales appear 

to be spending less time in inland 

waters, specifically in spring months, 

commenters noted that the whales have 

likely increased their reliance on coastal 

salmon. Several of the commenters also 

highlighted that the whales are likely 

giving birth in these coastal waters in 

the autumn/winter months and may 

require more food for lactating mothers. 

Another commenter argued that the 

declining coast-wide availability of 

Chinook salmon reinforces the need to 

include this area as designated critical 

habitat to ensure the survival of the 

salmon on which the Southern 

Residents depend. In general, these 

commenters supported expanding 

critical habitat to encompass the whale’s 

year-round range, which includes 

coastal waters of Washington, Oregon, 

and California, to ensure the 

conservation of all current foraging 

grounds and that expanding critical 

habitat will support sufficient prey to 

help the whales recover. 

In addition to the concern over prey 

availability, several commenters were 

concerned that the Southern Residents 

have acquired high levels of pollutants 

linked to California that may affect 

reproduction and the population 

decline. They also highlighted that 

because the whales occupy a highly 

industrialized area, foraging near 

outflow of large rivers that carry 

pollutants can directly affect the whale’s 

health and prey. Additionally, they 

strongly urged us to ensure that the use 

and disposal of chemicals do not 

conflict with the whale’s habitat. 

Improving water quality in the whales’ 

coastal winter range requires special 

management and protection, which they 

argue is provided by designating the 

area as critical habitat. 

Nineteen commenters mentioned the 

general threats to Southern Resident 

killer whales from ships, and several of 

those commenters argued that special 

management is needed in offshore 

waters to address the threats from 

increasing ship traffic within the coastal 

range of the whales because traffic likely 

impacts killer whale foraging habits. In 

addition, they note an increase in port 

size or vessel traffic could also have a 

significant risk because it will increase 

the risk of collision. They urge us to 

revise critical habitat to ensure that 

decisions regarding the expansion of 

fossil fuel transportation and other 

maritime activities do not impact the 

killer whale’s coastal range. Several 

commenters highlighted that the 

increase in development of alternative 

energy sources may also pose a possible 

passage risk to the killer whales, thereby 

requiring special management and 

oversight. Lastly, one commenter was 

concerned that migration of prey species 

due to ocean acidification and climate 

change could impose additional 

challenges for the whales. 

12-Month Determination on Revision of 

Critical Habitat 

Since critical habitat for Southern 

Resident killer whales was designated 

in 2006, new information on habitat use 

has become available. As described in 

the critical habitat designation in 2006, 

we have been directly engaged in 

research activities to fill data gaps about 

coastal habitat use. Collecting 

information to better understand coastal 

distribution was also identified as a top 

priority in developing the Research Plan 

and Recovery Plan for Southern 

Resident killer whales (NMFS, 2008). In 

2011, NMFS completed a 5-year review 

of the status Southern Resident DPS 

under the ESA (NMFS, 2011). In the 5- 

year review, one of the 

recommendations for future actions was 

to increase knowledge of coastal 

distribution, habitat use and prey 

consumption to inform critical habitat 

determination. As identified in the 

petition and the public comments, the 

NWFSC and our partners have 

employed several techniques to collect 

information on coastal distribution and 

behavior, some of which include landbased sightings, passive acoustic 

monitoring, coastal research cruises, 

and satellite tag studies. In 2014, we 

released a 10-year report on research 

and conservation for Southern Resident 

killer whales, which summarized some 

of the major findings of this ongoing 

research on coastal habitat use and 

listed almost a dozen papers and reports 

that have become available since 2006. 

The report and a full list of publications 

are available on our Web page at: 

http://www.nwfsc.noaa.gov/news/

features/killer_whale_report/index.cfm. 

Additional information since the 2006 

critical habitat designation regarding 

effects of anthropogenic sound on 

marine mammals was also provided in 

the petition. The petition references 

new information on killer whale 

responses to vessel noise (Erbe et al., 

2012; Holt, 2008; Holt et al. 2009, 

Williams et al., 2009, Williams et al., 

2014), as well as a review of the acoustic 

quality of habitats for whale 

populations, including killer whales 

(Williams et al., 2013). Many of these 

publications are also listed in the recent 

10-year report along with several other 

articles and reports from NWFSC 

projects and partnerships investigating 

vessel interactions and noise effects. 

How We Intend To Proceed 

Based on the new information above, 

we intend to proceed with the 

petitioned action to revise critical 


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habitat for Southern Resident killer 

whales. Below we identify the steps we 

will take to ensure that we use the best 

available scientific and commercial data 

to inform any revision and meet the 

statutory requirements for designating 

or revising critical habitat. 

Step 1: Complete Data Collection and 

Analysis 

While data from new studies are 

available in our files and have begun to 

address data gaps identified in the 2006 

critical habitat designation, considerable 

data collection and analysis needs to be 

conducted to refine our understanding 

of the whales’ habitat use and needs. 

Additional time will increase sample 

sizes and provide the opportunity to 

conduct robust analyses. While we have 

been actively working on gathering and 

analyzing data on coastal habitat use, 

these data and analyses are not yet 

sufficiently developed to inform and 

propose revisions to critical habitat as 

requested in the petition. Additional 

data and analyses will contribute to 

identification of biological and physical 

features—as well as areas in the Pacific 

Ocean that contain these features—to 

inform the identification of specific 

areas. In the petition, the Center for 

Biological Diversity recognized that we 

are continuing to gather and analyze 

data describing the Southern Residents’ 

use of coastal and offshore waters and 

requested we refine the proposed 

revisions, as necessary, to include 

additional inhabited zones or to focus 

specifically on areas of concentrated 

use. 

There are several ongoing studies that 

will inform any revisions to critical 

habitat. The NWFSC and our partners 

are currently engaged in the following 

projects and we anticipate new data, 

analyses, reports and papers regarding 

coastal habitat use available over the 

next 2 years. Below are descriptions of 

several ongoing data analysis projects, 

plans for collecting additional data, and 

projects that bring together and analyze 

data from a number of sources. 

Sighting networks: For many years, 

NMFS, the Center for Whale Research, 

and other partners have solicited 

sightings of killer whales, including the 

Southern Residents, along the coast. 

Prior to 2003, data on the whales’ winter 

distribution and movement patterns 

were limited to a handful of sightings 

reported by a diverse group of ocean 

users. We will continue to solicit coastal 

sightings from the public and ocean 

users, and will also follow up on 

sighting information presented in the 

public comments on the 90-day finding. 

Although this work continues, in recent 

years we have used a variety of new 

technologies described below to 

supplement and expand the sighting 

network information. 

Acoustic recorders: The NWFSC has 

been deploying passive acoustic 

recorders in coastal waters to capture 

acoustic calls of marine mammals, and 

Southern Resident killer whales in 

particular, to better understand 

distribution and habitat use. Hanson et 

al. (2013) analyzed and reported results 

on coastal occurrence of Southern 

Residents using these recorders 

deployed in 2006 through 2011; 

however, there are additional years of 

data from 2012–2014 now available and 

undergoing analysis. In addition, this 

project will be expanded with new 

recorder deployments in 2015 to expand 

sample sizes with new data and a 

comprehensive analysis is expected in 

2016. 

Satellite tagging: Since 2012, the 

NWFSC has deployed satellite tags on 

five Southern Resident killer whales, 

including one extended deployment on 

K25 that lasted for 93 days. The 

information gathered from satellite 

tagging will address the data gap in 

winter distribution identified in the 

Recovery Plan, as well as provide 

further information on habitat use. This 

technique has been identified as an 

important approach for obtaining 

information on habitat use by an 

independent science panel that assessed 

the impact of salmon fisheries on 

Southern Resident killer whales 

(Hilborn et al., 2012). Analysis of the 

existing data is currently underway and 

the program will continue with 

additional tag deployments planned for 

2015–2016. 

Research cruises: NMFS’ NWFSC has 

located Southern Resident killer whales 

off the Washington and Oregon coasts 

on six of seven NOAA cruises to study 

the whales since 2004. In 2013, 

researchers used satellite tagging 

information to follow the whales along 

the coast for eight days, allowing nearly 

continuous investigations of behavior 

and habitat use. Scientists also collected 

numerous prey and fecal samples to 

learn more about winter diet as well as 

oceanographic data to improve our 

understanding of important features of 

the whales’ environment along the 

coast. The NWFSC has a research cruise 

planned for February 2015 and also 

plans to request ship time for a cruise 

in 2016. In addition to further analysis 

of existing cruise data, cruise reports 

and additional analysis from 2015 and 

2016 will be available in the next 2 

years. 

Prey mapping: The NWFSC and 

Southwest Fisheries Science Center 

(SWFSC) are working together to 

investigate salmon distributions along 

the West Coast. This project will 

analyze coded wire tag data and other 

available data sources to build prey 

maps of spring, summer and fall 

distribution of salmon. Results from this 

analysis are anticipated in summer of 

2015 and will inform consideration of 

prey as a potential essential feature of 

the whales’ coastal habitat. In addition, 

results from this study will inform other 

projects, such as the individual based 

bioenergetics model described below. 

Individual based model: The SWFSC, 

NWFSC and other partners are in the 

process of developing a spatiallyexplicit individual based model (IBM) 

to explore the effects of variation in the 

abundance and distribution of salmon 

stocks and other coastal fishes on the 

net energy gain of Southern Resident 

killer whales during the non-summer 

months. The initial purpose of the IBM 

is to integrate available data within a 

single analytical framework, and 

support development of a research 

strategy for identifying critical habitat 

for Southern Resident killer whales off 

the coasts of Washington, Oregon, and 

California. Ultimately, the IBM will be 

used to investigate whether and how 

modeling critical habitat and prey 

resource management could be effective 

at minimizing the risk of energy 

balances falling below critical 

thresholds. Phase I of the project will 

include a literature review and a model 

framework vetted by the project 

partners. Completion of this phase is 

anticipated in July 2015. Pending 

continued funding, a second phase of 

the project will include a second 

generation model to investigate one or 

more specific hypotheses on the 

relationship between habitat/prey 

attributes and whale vital rates, which 

would be available in 2016. 

Step 2: Identify Areas Meeting the 

Definition of Critical Habitat 

Pursuant to ESA section 3(5)(A), we 

must determine ‘‘the geographical area 

occupied by the species at the time of 

listing.’’ Next we identify physical or 

biological features essential to the 

conservation of the species. Agency 

regulations at 50 CFR 424.12(b) interpret 

the statutory phrase ‘‘physical or 

biological features essential to the 

conservation of the species.’’ The 

regulations state that these features 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing of offspring; and habitats 

that are protected from disturbance or 


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Federal Register / Vol. 80, No. 36 / Tuesday, February 24, 2015 / Proposed Rules 9687 

are representative of the historical 

geographical and ecological distribution 

of a species. After determining the 

geographical area occupied by the 

Southern Residents, and the physical 

and biological features essential to their 

conservation, we would next identify 

the specific areas within the 

geographical area occupied by the 

species that contain the essential 

features. Specific areas meet the 

definition of critical habitat if they 

contain physical or biological features 

that ‘‘may require special management 

considerations or protection.’’ Joint 

NMFS and USFWS regulations at 50 

CFR 424.02(j) define ‘‘special 

management considerations or 

protection’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ 

For the 2006 designation we reviewed 

the natural history, habitat use and 

habitat features in a Biological Report to 

assist with identifying areas that meet 

the definition of critical habitat. We will 

consider the previous designation and 

new information that has become 

available to evaluate areas eligible for 

critical habitat designation. An 

additional part of this evaluation is 

considering military areas that are 

precluded from designation because 

they are subject to Integrated Natural 

Resource Management Plans under the 

Sikes Act and provide benefits to the 

listed species. 

Step 3: Section 4(b)(2) Analysis 

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

to use the best available data in 

designating critical habitat. It also 

requires that before we designate any 

particular area, we must consider the 

economic impact, impact on national 

security, and any other relevant impact. 

To determine the impact of designation, 

we can examine what the state of things 

would be with and without a critical 

habitat designation. For the 2006 

designation we conducted an Economic 

Analysis to identify economic impacts 

and also coordinated with the 

Department of Defence to evaluate 

impacts of designation on national 

security. 

Under section 4(b)(2) we also identify 

the conservation benefits to the species 

of designating particular areas. The 

principal benefit of designating critical 

habitat is that ESA section 7 requires 

every Federal agency to ensure that any 

action it authorizes, funds, or carries out 

is not likely to result in the destruction 

or adverse modification of designated 

critical habitat. This complements the 

section 7 provision that Federal 

agencies ensure their actions are not 

likely to jeopardize the continued 

existence of a listed species. Another 

possible benefit is that the designation 

of critical habitat can serve to educate 

the public regarding the potential 

conservation value of an area. 

The next step in the 4(b)(2) analysis 

is to balance the benefits of designation 

against the benefits of exclusion and 

recommend any exclusions, if 

appropriate. We must also determine 

whether any exclusion will result in 

extinction of the species. For the 2006 

designation we completed a 4(b)(2) 

report that considered the benefits of 

designation and benefits of exclusions 

and we did exclude military areas based 

on national security impacts. 

Step 4: Develop Proposed Rule for 

Public Comment 

Steps 1–3 will inform any proposal 

for revision of critical habitat. The 

underlying science of the decision 

would be required to undergo peer 

review according to the Office of 

Management and Budget Bulletin for 

Peer Review, implemented under the 

Information Quality Act (Public Law 

106–554). Any proposed rule we 

develop will be published in the 

Federal Register and we will seek 

public comment. To allow for sufficient 

time to incorporate anticipated research 

results and new analysis and to conduct 

economic and 4(b)(2) analyses, we 

anticipate developing a proposed rule 

for publication in the Federal Register 

in 2017. 

References Cited 

The complete citations for the 

references used in this document can be 

obtained by contacting NMFS (See 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT) or on our Web 

page at: http://

www.westcoast.fisheries.noaa.gov/

protected_species/marine_mammals/

killer_whale/esa_status.html 

Authority: 16 U.S.C. 1531 et seq. 

Dated: February 11, 2015. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2015–03378 Filed 2–23–15; 8:45 am] 

BILLING CODE 3510–22–P 


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