51186 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 224 and 226 

[Docket No. 120815341–7866–01] 

RIN 0648–BC45 

Endangered and Threatened Wildlife 

and Plants: Proposed 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: Proposed rule; request for 

comments. 

SUMMARY: We, NMFS, propose to 

designate critical habitat for the Main 

Hawaiian Islands insular false killer 

whale (Pseudorca crassidens) distinct 

population segment by designating 

waters from the 45-meter (m) depth 

contour to the 3200-m depth contour 

around the main Hawaiian Islands from 

Niihau east to Hawaii, pursuant to 

section 4 of the Endangered Species Act 

(ESA). Based on considerations of 

economic and national security impacts, 

we propose to exclude the following 

areas from designation because the 

benefits of exclusion outweigh the 

benefits of inclusion and exclusion will 

not result in extinction of the species: 

The Bureau of Ocean Energy 

Management’s Call Area offshore of the 

Island of Oahu, the Pacific Missile 

Range Facilities Offshore ranges 

(including the Shallow Water Training 

Range, the Barking Sands Tactical 

Underwater Range, and the Barking 

Sands Underwater Range Extension), 

the Kingfisher Range, Warning Area 

188, Kaula and Warning Area 187, Fleet 

Operational Readiness Accuracy Check 

Site Range, the Shipboard Electronic 

Systems Evaluation Facility, Warning 

Areas 196 and 191, and Warning Areas 

193 and 194. 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 Main Hawaiian Islands 

insular false killer whale. We are 

soliciting comments on all aspects of the 

proposal, including information on the 

economic, national security, and other 

relevant impacts. We will consider 

additional information received prior to 

making a final designation. 

DATES: Comments must be received no 

later than 5 p.m. on January 2, 2018. 

A public hearing will be held on 

December 7, 2017 at the Manoa Grand 

Ballroom, Japanese Cultural Center, 

2454 South Beretania Street, Honolulu, 

HI 96826. Doors open at 6:00 p.m., and 

a presentation and hearing will begin at 

6:30 p.m. Parking is available and will 

be validated. 

ADDRESSES: You may submit comments, 

information, or data on this document, 

identified by NOAA–NMFS–2017–0093, 

and on the supplemental documents by 

either of the following methods: 

Electronic Submission: Submit all 

electronic comments via the Federal 

eRulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2017- 

0093, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Mail: Submit written comments to 

Susan Pultz, Chief, Conservation 

Planning and Rulemaking Branch, 

Protected Resources Division, National 

Marine Fisheries Service, Pacific Islands 

Regional Office, 1845 Wasp Blvd., Bldg. 

176, Honolulu, HI 96818, Attn: MHI 

IFKW Critical Habitat Proposed Rule. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. We will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 

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: In 

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

ESA (16 U.S.C. 1533(b)(2)) and our 

implementing regulations (50 CFR 

424.12), this proposed rule is based on 

the best scientific information available 

concerning the range, biology, habitat 

and threats to the habitat of this distinct 

population segment (DPS). We have 

reviewed the information (e.g., provided 

in peer-reviewed literature, and 

technical documents) and have used it 

to identify the physical and biological 

features essential to the conservation of 

this DPS. Background documents on the 

biology and the economic impacts of the 

designation, and documents explaining 

the critical habitat designation process 

can be downloaded from http://

www.fpir.noaa.gov/PRD/prd_mhi_false_

killer_whale.html#fwk_esa_listing, or 

requested by phone or email from the 

NMFS staff in Honolulu (area code 808) 

listed under FOR FURTHER INFORMATION

CONTACT. 

Background 

On December 28, 2012, the main 

Hawaiian Islands (MHI) insular false 

killer whale (IFKW) (Pseudorca 

crassidens) DPS was listed as 

endangered throughout its range under 

the ESA (77 FR 70915; November 28, 

2012). 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 

stipulates that NMFS will submit the 

proposed rule to the Office of the 

Federal Register by October 31, 2017, 

and the final rule by July 1, 2018. This 

proposed rule describes the proposed 

critical habitat designation, including 

supporting information on MHI IFKW 

biology, distribution, and habitat use, 

and the methods used to develop the 

proposed designation. 

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 (I) essential to the 


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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.’’ (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. 

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. Although not 

expressly stated in section 4(b)(2), our 

regulations provide that critical habitat 

shall not be designated within foreign 

countries or in other areas outside of 

U.S. jurisdiction (50 CFR 424.12 (g)). 

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 if 

he determines ‘‘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.’’ 

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 additional 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). 

This proposed rule describes 

information on the biology of this DPS, 

the methods used to develop the 

proposed designation, and our proposal 

to designate critical habitat for the MHI 

IFKW. 

MHI IFKW Biology and Habitat Use 

The false killer whale is a large social 

odontocete (toothed whales) in the 

family Delphinidae. These whales are 

slender-bodied with black or dark gray 

coloration, although lighter areas may 

occur ventrally between the flippers or 

on the sides of the head. A prominent, 

falcate dorsal fin is located at about the 

midpoint of the back, and the tip can be 

pointed or rounded. The head lacks a 

distinct beak, and the melon tapers 

gradually from the area of the blowhole 

to a rounded tip. In males, the melon 

extends slightly further forward than in 

females. The pectoral fins have a unique 

shape among the cetaceans, with a 

distinct central hump creating an Sshaped leading edge (Oleson et al., 

2010). The maximum size reported for 

a male is 610 centimeters (cm) 

(Leatherwood and Reeves 1983) and 506 

cm for females (Perrin and Reilly 1984). 

False killer whales are long-lived, 

mature slowly, and reproduce 

infrequently (Baird 2009, Oleson et al., 

2010). Maximum estimated age is 

reported at 63 years for females and 58 

years for males (Kasuya 1986, Odell and 

McClune 1999). Females may live 10–15 

years beyond their reproductively active 

years, based on estimates of senescence 

of around 45 years old (Ferreira 2008). 

This post-reproductive period is seen in 

other social odontocetes, such as shortfinned pilot whales and killer whales, 

and may play a role in allowing these 

animals to pass knowledge important to 

survival from one generation to the next 

(McAuliffe and Whitehead 2005, Oleson 

et al., 2010, Nichols et al. 2016, 

Photopoulou et al., 2017). 

Like other odontocetes, false killer 

whales have highly complex acoustic 

sensory systems through which they 

produce, receive, and interpret sounds 

to support navigation, communication, 

and foraging (Au 2000, Olsen et al., 

2010). Similar to bats—these animals 

use echolocation (or biosonar) to locate 

objects within their environment by 

producing sounds, and then receiving 

and interpreting the returning echoes. 

These animals also vocalize to 

communicate with one another, and 

passively listen to natural and biological 

acoustic cues from the ocean and other 

animals to understand their 

environment (Au 2000). 

There are three categories of 

vocalizations that most odontocetes 

make, that support their ability to 

interpret the surrounding environment 

and to communicate with each other— 

echolocation clicks, burst-pulsed 

vocalizations, and whistles (Au 2000) 

(See the Vocalization, Hearing, and 

Underwater Sound section of the Draft 

Biological Report for generalized 

vocalization ranges for odontocetes, 

NMFS 2017a). Echolocation clicks (or 

click trains) and burst-pulsed sounds 

are sometimes described as a single 

category termed pulsed sounds/pulse 

trains (Murray et al., 1998). 

Functionally, echolocation clicks 

support orientation and navigation 

within the whale’s environment, while 

burst-pulsed sounds and frequency 

modulated whistles are social signals 

(Au 2000). False killer whales produce 

sounds that meet all three categories 

and sometimes produce sounds that are 

intermediate or between categories 

(Murray et al., 1998). In addition to their 

dynamic vocalization capabilities, these 

whales can actively change their hearing 

sensitivity to optimize their ability to 

hear returning echoes or other sounds 

within their environment (Nachtigall 

and Supin 2008). Captive studies 

demonstrate false killer whales are able 

to perceive and distinguish harmonic 

combinations of sounds. This ability 

may facilitate communication and 

coordination among false killer whales 

as they travel (Yuen et al., 2007). 

Because vocalizations are a primary 

means of navigation, communication, 

and foraging, it is important that false 

killer whales are able to detect, 

interpret, and utilize acoustic cues 

within their surrounding environment. 

The soundscape—referring to ‘‘all of 

the sound present in a particular 

location and time, considered as a 

whole’’—varies spatially and temporally 

across habitats as the physical and 

biological attributes of habitats shift and 

the physical, biological, and 

anthropogenic factors that contribute to 

noise within that habitat change 

(Pijanowski et al., 2011a, Pijanowski et 

al., 2011b, Hatch et al., 2016). For 


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example, water depth, salinity, and 

seabed type affect how well sound 

propagates in a habitat, so the 

soundscape will vary as those attributes 

change. Additionally, the soundscape 

differs by the sources that contribute to 

noise within the environment; these 

sources may be from physical, 

biological, or anthropogenic noise. 

Physical sources of noise (such as rain, 

wind, or waves) and biological sources 

of noise (made by the biological 

community within that habitat) may 

vary over time as weather patterns 

change or behavioral activity varies. For 

example, summer storm activity or 

breeding activity may alter the 

soundscape at different points of the 

year. Human activities that contribute to 

noise within habitats can vary widely in 

frequency content, duration, and 

intensity; consequently, anthropogenic 

sound sources may have varied effects 

on a habitat, depending on how that 

sound is propagated in the environment 

and what animals use that habitat 

(Hatch et al., 2016). Considering how 

human activities may change the 

soundscape and determining the 

biological significance of that change 

can be complex as it includes the 

consideration of many variables, such as 

the characteristics of human noise 

sources (e.g., frequency content, 

duration, and intensity); the ability of 

the animal of concern to produce sound, 

receive sound, and adapt to other 

sounds within their environment; the 

physical characteristics of the habitat; 

the baseline soundscape; and how the 

animal uses that habitat (Shannon et al., 

2015, Hatch et al., 2016, Erbe et al., 

2016). Noise with certain characteristics 

may cause animals to avoid or abandon 

important habitat, or can mask—or 

interfere with the detection, recognition, 

or discrimination of—important 

acoustic cues within that habitat 

(Gedamke et al., 2016). In these cases, 

the duration of the offending or masking 

noise will determine whether the effects 

or degradation to the habitat may be 

temporary or chronic and whether such 

alterations to the soundscape may alter 

the conservation value of that habitat. 

Ultimately, noise with certain 

characteristics (i.e., characteristics that 

can mask acoustic cues or deter MHI 

IFKWs) can negatively affect MHI 

IFKWs’ ability to detect, interpret, and 

utilize acoustic cues within that habitat. 

Additional information about 

vocalization and hearing specific to 

false killer whales can be found in the 

Draft Biological Report (NMFS 2017a). 

Under the Marine Mammal Protection 

Act (MMPA), we recognize and manage 

three populations of false killer whales 

in Hawaii: the MHI Insular (i.e., IFKW), 

the Northwestern Hawaiian Islands, and 

the pelagic populations (Carretta et al., 

2016). The MHI IFKW is the only 

population of false killer whale 

protected under the ESA, because this 

population was found to meet the DPS 

Policy (61 FR 4722; February 7, 1996) 

criteria and was listed as endangered 

based on the DPS’ high extinction risk 

and the insufficient conservation efforts 

in place to reduce that risk (77 FR 

70915; November 28, 2012). Hereafter, 

we use ‘‘this DPS’’ synonymous with 

the MHI IFKW to refer to this 

endangered population. 

Genetically distinct from the two 

other populations of false killer whales 

that overlap their range in Hawaii 

(Martien et al., 2014), MHI IFKWs are 

set apart from these and other false 

killer whales because they do not 

exhibit the pelagic and wide-ranging 

behaviors more commonly characteristic 

of false killer whales as a species. 

Instead, individuals of this DPS exhibit 

island-associated habitat use patterns, 

restricting their movements to the 

waters surrounding the main Hawaiian 

Islands (Oleson et al., 2010; Baird et al., 

2012). With such a restricted range, this 

DPS relies entirely on the submerged 

habitats of the MHI for foraging, 

socializing, and reproducing. These 

behavior patterns may reflect in large 

part the unique habitat that the MHI 

offers in the middle of the Pacific basin. 

Specifically, the Hawaiian Islands are 

part of the Hawaiian-Emperor Seamount 

Chain; these submerged mountains 

disrupt and influence basin-wide 

oceanographic and atmospheric 

processes, and this disruption and 

influence, in turn, influence the 

productivity in the surrounding waters 

(Oleson et al., 2010, Martien et al., 2014, 

Gove et al., 2016). Referred to as the 

‘‘Island Mass Effect,’’ islands (land 

surrounded by water) and atolls (a ringshaped reef, or grouping of small islands 

surrounding a lagoon) can create a selffueling cycle where the geomorphic 

type (atoll vs. island), bathymetric 

slope, reef area, and local human 

impacts (e.g., human-derived nutrient 

input) influence the phytoplankton 

biomass and the trophic-structure of the 

entire surrounding marine ecosystem 

(Doty and Oguri 1956, Gove et al., 2016). 

As a result, in the center of the North 

Pacific Ocean the Hawaiian Islands 

create biological hotspots (Gove et al., 

2016), concentrating prey resources in 

and around different parts of the 

submerged island habitats. MHI IFKW 

behavioral patterns indicate that these 

whales are employing a foraging strategy 

that focuses on the pelagic portions of 

the submerged habitats of the MHI. 

Population Status and Trends 

The 2015 Stock Assessment Report 

(SAR) provides the best estimate of 

population size for the MHI IFKW as 

151 animals (CV=0.20) (Carretta et al., 

2016). This estimate relies on an open 

population model from 2006–2009 

identified in the Status Review for the 

MHI insular stock and was reported as 

being a possible overestimate because it 

does not account for known missed 

matches of individuals within the 

photographic catalog (Oleson et al., 

2010). The minimum population 

estimate for the MHI IFKW is reported 

as 92 false killer whales, which is the 

number of distinctive individuals 

identified in photo identification 

studies from 2011–2014 by Baird et al. 

(2015) (Carretta et al., 2016). A complete 

history of MHI IFKW status and trends 

is unknown; however, the Status 

Review and the 2015 SAR provide an 

overview of information that suggests 

that this DPS has experienced a 

historical decline (Oleson et al., 2010, 

Carretta et al., 2016). 

Group Dynamics and Social Networks 

As social odontocetes, false killer 

whales rely on group dynamics to 

support daily activities, including 

foraging; group structures also support 

these animals as they nurture young, 

socialize, and avoid predators. Studies 

in Hawaii indicate that MHI IFKWs are 

most commonly observed in groups (or 

subgroups) of about 10 to 20 animals; 

however, these groupings may actually 

be part of a larger aggregation of 

multiple subgroups that are dispersed 

over a wider area (Baird et al., 2008, 

Reeves et al., 2009, Baird et al., 2010, 

Oleson et al., 2010). Baird et al. (2008) 

describes these larger groups (of many 

subgroups) as temporary, larger, loose 

associations of subgroups generally 

moving in a consistent direction and at 

a similar speed. These aggregations of 

subgroups may allow these whales to 

effectively search a large area for prey 

and converge when one sub-group 

locates a prey source (Baird 2009). Yuen 

et al. (2007) notes that this species’ 

capacity to distinguish and produce 

different combinations of sounds may 

play an important role in facilitating 

coordinated movements of subgroups 

and maintaining associations over wide 

areas. 

This DPS demonstrates social 

structure; observations from field 

studies indicate that uniquely identified 

individuals associate and regularly 

interact with at least one or more 

common individuals (Baird 2009, Baird 


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et al., 2010). Evidence from photoidentification and tracking studies 

suggests that somewhat stable bonds 

exist among individuals, lasting over 

periods of years (Baird et al., 2008, 

Baird et al., 2010). Further, genetic 

analyses of this DPS also suggest that 

both males and females exhibit 

philopatry to natal social clusters 

(meaning these animals stay within 

their natal groups), and that mating 

occurs both within and between social 

clusters (Martien et al., 2011). 

Social network analyses once divided 

the DPS into three broad social clusters 

based on these connections (Baird et al., 

2012). However, increased information 

from field studies indicates more 

complexity in these social connections, 

and a fourth social cluster has been 

identified (Robin Baird, pers. 

communication October 2016 and June 

2017). Older analyses (before 2017) may 

only identify Clusters 1, 2, and 3; 

however, newer analyses will introduce 

information about Cluster 4. 

Range 

MHI IFKWs are found in the waters 

surrounding each of the main Hawaiian 

Islands (Niihau east to Hawaii). At the 

time of the ESA listing (2012) the range 

of the MHI IFKW DPS was described 

consistent with the range identified in 

the 2012 SAR under the MMPA as 

nearshore of the main Hawaiian Islands 

out to 140 kilometers (km) 

(approximately 75 nautical miles) (77 

FR 70915; November 28, 2012; Carretta 

et al., 2013). New satellite-tracking data 

has since proved the range to be more 

restricted than that of the 2012 SAR 

description, especially on the windward 

sides of the islands (Bradford et al., 

2015). NMFS revised the MHI IFKW’s 

range in the 2015 SAR, under the 

MMPA (Carretta et al., 2016), in 

accordance with a review and 

reevaluation of satellite tracking data by 

Bradford et al. (2015). 

Overall, tracking information from 31 

MHI IFKWs (23 from Cluster 1, and 8 

from Cluster 3) suggests that the DPS 

has a much smaller range than 

previously thought, and that the use of 

habitat is not uniform around the 

islands (Bradford et al., 2015). 

Specifically, MHI IFKWs show less 

offshore movement on the windward 

sides of the islands (maximum distance 

from shore of 51.4 km) than on the 

leeward sides of the islands (maximum 

distance from shore of 115 km). 

Acknowledging that the available 

tracking information has a seasonal bias 

(88.6 percent collected from August 

through January) and that data were 

lacking from Clusters 2 and 3, Bradford 

et al. (2015) set goals to refine the range 

in a manner that would reflect known 

differences in habitat use and allow for 

uncertainty in spatial and seasonal 

habitat use. The MHI IFKW’s range was 

derived from a minimum convex 

polygon of a 72-km radius (∼39 nautical 

miles) extending around the Main 

Hawaiian Islands, with the offshore 

extent of the radii connected on the 

leeward sides of Hawaii Island and 

Niihau to encompass the offshore 

movements within that region (see 

Figure 1). Since this analysis, a single 

individual from Cluster 2 and several 

more individuals from Cluster 3 were 

tagged; tracking locations received from 

these animals are contained within the 

revised boundary established by the 

2015 SAR (Carretta et al., 2016; Baird, 

pers. communication November 7, 

2016). 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

Movement and Habitat Use 

As noted earlier, MHI IFKWs 

constitute an island-associated 

population of false killer whales that 

restrict their movement and foraging to 

waters surrounding the main Hawaiian 

Islands (Baird et al., 2008, Baird et al., 

2012). Within these waters, generally, 

this DPS is found in deeper areas just 

offshore, rather than the shallow 

nearshore habitats used by islandassociated spinner or bottlenose 

dolphins (Baird et al., 2010). Within 

these deeper waters, MHI IFKWs 

circumnavigate the islands and quickly 

move throughout their range (Baird et 

al., 2008, Baird et al., 2012). For 

example, one individual moved from 

Hawaii to Maui to Lanai to Oahu to 

Molokai, covering a minimum distance 

of 449 km over a 96-hour period (Baird 

et al., 2010, Oleson et al., 2010). Overall 

tracking information demonstrates that 

individuals generally spent equal 

amounts of time on both leeward and 

windward sides of the islands; however, 

these animals exhibit greater offshore 

movements on the leeward sides of the 

islands, with reported distances as far as 

122 km from shore (Baird et al., 2012). 

Baird et al. (2012) applied density 

analyses to tracking data to help 

distinguish significant MHI IFKW 

habitat areas and explored 

environmental characteristics that may 

define those areas. High-use areas for 

this DPS were described as the north 

side of the island of Hawaii (both east 

and west sides), a broad area extending 

from north of Maui to northwest of 

Molokai, and a small area to the 

southwest of Lanai. Habitat use 

appeared to vary based on social cluster. 

For example, the area off the north end 

of Hawaii was a high-use area only for 

individuals from Cluster 1, whereas the 

north side of Molokai was primarily 

high-use for Cluster 3 animals (Baird et 

al., 2012). Updates to this analysis, 

using newly available tracking 

information, indicate that high-use areas 

may extend further towards Oahu and 

into the channel between Molokai and 

Oahu (see the Draft Biological Report for 

a map of these areas and the updated 

information provided by Cascadia 

Research Collective). Due to the small 

and resident nature of this DPS, these 

high-use areas meet the definition of 

‘‘biologically important areas’’ as 

established by NOAA’s CetMap 

program, and are used to highlight areas 

that can assist resource managers with 

planning, analyses, and decisions 

regarding how to reduce adverse 

impacts to cetaceans resulting from 

human activities (Baird et al., 2015, 

Gedamke et al., 2016). 

Baird et al. (2012) compared physical 

and oceanographic characteristics of 

IFKW high-use and low-use areas of the 

range. Generally, they found that MHI 

IFKW high-use areas were on average 

shallower, closer to shore, and had 

gentler slopes compared to other areas 

of this DPS’ range. Additionally, these 

areas had higher average surface 

chlorophyll-a concentrations (compared 

to low-use areas), which may be 

indicative of higher productivity. Baird 

et al. (2012) suggested that high-use 

areas may indicate habitats where 


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IFKWs have increased foraging success 

and may be particularly important to the 

conservation of this DPS. Still, the data 

set was limited, and more high-use areas 

may be identified as information is 

gained from all social clusters and for 

all months of the year. 

Recent information suggests that 

estimated maximum dive depths once 

reported at 500 m (Cummings and Fish 

1971) and later reported in excess of 

600–700 m (Olsen et al., 2010, 

Minamikawa et al., 2013) may be 

underestimates for this species. This 

new information from tagged MHI 

IFKWs indicates that these animals are 

capable of diving deeper than reported 

earlier. Data received from depthtransmitting LIMPET (Low Impact 

Minimally Percutaneous Electronic 

Transmitter) satellite tags on four MHI 

IFKWs (3 from Cluster 3, and 1 from 

Cluster 1) demonstrate a maximum dive 

depth of 1,272 m, with maximum dive 

durations reported as 13.85 minutes 

(Baird, pers communication, March 

2017). Looking at information from all 

four animals, average maximum dive 

depths were similar during the day and 

night (912 m and 1,019 m respectively). 

The data demonstrate that these animals 

are diving greater than 50 m about twice 

as often during the day (0.72 dives/ 

hour) than at night (0.35 dives/hour) 

(Baird pers communication, March 

2017). In summary, limited data (from 

four individuals tagged in 2010 during 

the months of October and December) 

still indicate that a majority of foraging 

activity happens during the day, but 

that some nighttime activity also 

includes foraging. 

Diet 

Literature on false killer whales 

indicates the species eats primarily fish 

and squid (Oleson et al., 2010, OrtegaOrtiz et al., 2014, Clarke 1996). This 

DPS’ restricted range surrounding the 

Hawaiian Islands is a unique ecological 

setting for false killer whales. 

Accordingly, the foraging strategies and 

prey preferences of this DPS likely differ 

somewhat from that of their pelagic 

counterparts (Oleson et al., 2010). Still, 

studies examining the diet of this DPS 

suggest that pelagic fish and squid 

remain primary prey targets. Table 2 of 

the Draft Biological Report provides a 

list of prey species identified from field 

observations and stomach content 

analyses, as well as potential prey 

species determined from depredation 

data of the longline fisheries; this list 

includes large pelagic game fish, 

including dolphinfish (mahi-mahi), 

wahoo, several species of tuna, and 

marlin (NMFS 2017a). 

Little is known about diet 

composition, prey preferences, or 

potential differences between the diets 

of MHI IFKWs of different age, size, sex, 

or even social cluster, and different 

methodologies create different biases 

about common prey items. From field 

studies, Baird et al. (2008) reports 

dolphinfish (mahi-mahi) as the most 

commonly observed prey, among other 

pelagic species reported. However, 

observations are limited to those 

foraging events where MHI IFKWs are 

found at or near the water’s surface. In 

comparison, stomach content analysis 

from five MHI IFKWs that stranded off 

the Island of Hawaii (from 2010–2016) 

indicates that squid may play an 

important role in the diet along with 

other pelagic fish species (West 2016). 

Notably, data from stomach content 

analyses are from 5 whales identified as 

part of social Cluster 3, and it is 

unknown if this information may reflect 

differences in foraging preferences or 

strategy between social clusters, or if the 

relative health of these individuals may 

have influenced prey consumption just 

prior to death. Tracking information and 

observational data demonstrate that 

social clusters may preferentially use 

some areas of the range over others. For 

example, Cluster 2 individuals are seen 

more often than expected off the Island 

of Hawaii, and differences were noted 

between the preferences of Clusters 1 

and 3 for certain high-use areas (Baird 

et al., 2012). However, without 

additional data, it is difficult to know if 

these differences in habitat use may also 

reflect subtle differences in prey 

preference. 

The Status Review determined the 

energy requirements for the IFKW DPS 

based on a model developed by Noren 

(2011) for killer whales (Oleson et al., 

2010). Using the best population 

estimate of 151 animals from the recent 

SAR, this DPS consumes approximately 

2.6 to 3.5 million pounds (1.2 to 1.6 

million kilograms) of fish annually, 

depending on the whale population age 

structure used (see Oleson et al., 2010 

for calculation method) (Brad Hanson, 

NMFS Northwest Fisheries Science 

Center (NWFSC), pers. communication 

2017). 

As noted above, the Hawaiian Islands 

create biological hotspots that aggregate 

species at all trophic levels, including 

pelagic fish and squid (Gove et al., 2016, 

Bower et al., 1999, Itano and Holland 

2000). In the same way that false killer 

whales exploit the resources of these 

islands, some large pelagic fish and 

squid also demonstrate islandassociated patterns utilizing island 

resources and phenomena to support 

foraging or breeding activities (Bower et 

al., 1999, Itano and Holland 2000, Seki 

et al., 2002). Examples include: Several 

species of squid that show increased 

spawning near the MHI to take 

advantage of higher productivity regions 

(Bower et al., 1999); yellowfin tuna in 

Hawaii that appear to exhibit an islandassociated, inshore-spawning run, 

peaking in the June-August period 

(Itano and Holland 2000); and eddies 

created by the influence of the islands 

that are known to concentrate prey 

resources of larger game fish (Seki et al., 

2002). Understanding the geographic 

extent and temporal aspects of overlap 

with prey species that demonstrate 

these island-associated patterns may 

provide further insight into factors that 

influence the diet of this DPS. Most of 

the species identified in Table 2 of the 

Draft Biological Report (NFMS 2017a) 

are species that are pelagic in nature, 

but that are found year-round in 

Hawaii’s waters. Distribution of these 

large pelagic fish varies with seasonal 

changes in ocean temperature (Oleson et 

al., 2010). Scrawled filefish and the 

threadfin jack are commonly associated 

with reef systems but are also found in 

the coastal open water areas 

surrounding Hawaii (Oleson et al., 

2010). Without further information 

about prey preferences, it is difficult to 

determine where prey resources of 

higher value exist for this DPS. 

However, foraging activities likely occur 

throughout the range, as this species 

takes advantage of patchily distributed 

prey resources. 

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 proposed critical habitat 

designation. In accordance with section 

4(b)(2) of the ESA and our 

implementing regulations at 50 CFR part 

424, this proposed 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 NMFS 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 


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recommendations are described in 

detail in the Draft Biological Report 

(NFMS 2017a). Beyond the description 

of the areas, the critical habitat 

designation process includes two 

additional steps: (4) Identify whether 

any area may be precluded from 

designation because the area is subject 

to an Integrated Natural Resources 

Management Plan (INRMP) that we have 

determined provides a benefit to the 

DPS, and (5) 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 consideration processes are 

described further in the Draft ESA 

Section 4(b)(2) report (NMFS 2017b), 

and economic impacts of this 

designation are described in detail in 

the draft Economic Report (Cardno 

2017). 

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. The 

features may also be 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, the CHRT identified 

specific biological and physical features 

essential for the conservation of the 

Hawaiian IFKW DPS, to include the 

following: 

(1) Island-associated marine habitat 

for MHI insular false killer whales. 

MHI IFKWs are an island-associated 

population of false killer whales that 

relies entirely on the productive 

submerged habitats of the main 

Hawaiian Islands to support all of their 

life-history stages. Adapted to an islandassociated foraging strategy and ecology, 

these whales are generally found in 

deeper waters just offshore, moving 

primarily throughout and among the 

shelf and slope habitat on both the 

windward and leeward sides of all the 

islands. These areas offer a wide range 

of depths for IFKWs to travel, forage, 

and move freely around and between 

the main Hawaiian Islands. 

(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 as 

well as squid. Within waters 

surrounding the main Hawaiian Islands, 

habitat conditions that support the 

successful growth, recruitment, and 

nutritional quality of prey are necessary 

to support the individual growth, 

reproduction, and development of MHI 

IFKWs. 

(3) Waters free of pollutants of a type 

and amount harmful to MHI insular 

false killer whales. 

Water quality plays an important role 

as a feature that supports the MHI 

IFKW’s ability to forage and reproduce 

free from disease and impairment. 

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. Environmental exposure to these 

toxins may adversely affect their health 

or ability to reproduce. 

(4) Habitat free of anthropogenic 

noise that would significantly impair the 

value of the habitat for false killer 

whales’ use or occupancy. 

False killer whales rely on their 

ability to produce and receive sound 

within their environment to navigate, 

communicate, and detect predators and 

prey. Anthropogenic noise of a certain 

level, intensity, and duration can alter 

these whales’ ability to detect, interpret, 

and utilize acoustic cues that support 

important life history functions, or can 

result in long-term habitat avoidance or 

abandonment. Long-term changes to 

habitat use or occupancy can reduce the 

benefits that the animals receive from 

that environment (e.g., opportunities to 

forage or reproduce), thereby reducing 

the value that habitat provides for 

conservation. Habitats that support 

conservation of MHI insular false killer 

whales allow these whales to employ 

sound within their environment to 

support important life history functions. 

NMFS has coordinated with 

numerous federal agencies on this 

essential feature. As a result, NMFS is 

seeking additional relevant information 

to assist us in evaluating whether it is 

appropriate to include ‘‘habitat free of 

anthropogenic noise that would 

significantly impair the value of the 

habitat for false killer whales’ use or 

occupancy’’ as a feature essential to the 

conservation of MHI IFKWs in the final 

rule and, if so, what scientific data are 

available that would assist action 

agencies and NMFS in determining 

noise levels that result in adverse 

modification or destruction, such as by 

inhibiting communication or foraging 

activities, or causing the abandonment 

of critical habitat areas (see Public 

Comments Solicited). If we determine 

that a noise essential feature is not 

appropriate, we will update the 

economic analysis and any other 

relevant documents accordingly. 

Geographical Area Occupied by the 

Species 

One of the first steps in the critical 

habitat revision process was to define 

the geographical area occupied by the 

species at the time of listing and to 

identify specific areas, within this 

geographically occupied 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 

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, because this 

range includes all locations tagged 

animals have visited in Hawaii’s 

surrounding waters and accommodates 

for uncertainty in the data (see Range 

above). Therefore, the area occupied by 

the DPS is the current range shown in 

Figure 1 and identified in the 2015 SAR, 

which includes 188,262 km2 (72,688 

mi2) of marine habitat surrounding the 

MHI (Carretta et al., 2016). 

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 


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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 features for the 

MHI IFKW DPS; this area ranges from 

the 45-m depth contour to the 3200-m 

depth contour in waters that surround 

the main Hawaiian Islands from Niihau 

east to the Island of Hawaii (see the 

draft Biological Report for additional 

detail). As noted above, MHI IFKWs are 

generally found in deeper areas just 

offshore, rather than shallow nearshore 

areas (Baird et al., 2010). MHI IFKW 

locations were used to identify a 

nearshore depth at which habitat use by 

MHI IFKWs may be more consistent. 

Specifically, at depths less than 45 m 

MHI IFKW locations are infrequent (less 

than 2 percent of locations are captured 

at these depths), and there does not 

appear to be a spatial pattern associated 

with these shallower depth locations 

(i.e., locations were not clumped in 

specific areas). The frequency of MHI 

IFKW locations increases at depths 

greater than 45 m and appears 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 

would include the essential features for 

MHI IFKWs based on these patterns in 

the IFKW data. 

An outer boundary of the 3200-m 

depth contour was selected to 

incorporate those areas of islandassociated habitat where MHI IFKWs are 

known to spend a larger proportion of 

their time, and to include islandassociated habitat that allows for 

movement between and around each 

island. This full range of depths—from 

the 45-m to the 3200-m depth 

contours—incorporates a majority of the 

tracking locations of MHI IFKW and 

includes those island-associated 

habitats and features essential to the 

MHI IFKWS DPS. This area under 

consideration for critical habitat 

includes 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 

features essential to conservation such 

that special management considerations 

or protection may be required, 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 

(Oleson et al., 2010, NMFS 2016). Major 

categories of activities include: (1) Inwater 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 activities. All of these 

activities may have an effect on one or 

more of the essential features 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 draft Biological 

Report (NMFS 2017a) and draft 

Economic Analysis Report (Cardno 

2017) 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 activities may have 

impacts on one or more of the essential 

features. 

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: 

(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. 

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 the 

potential critical habitat areas and 

available INRMPs for those facilities. 

The U.S. Navy stated that areas subject 

to the Joint Base Pearl Harbor Hickam 

(JBPHH) INRMP overlap with the areas 

under consideration for MHI IFKW 

critical habitat; no other INRMPs were 

identified as overlapping with the 

potential designation. The JBPHH 

INRMP provided by the Navy was 

signed in 2012. The Naval Defensive Sea 

Area (NDSA) and the Ewa Training 

Minefield are subject to the JBPHH 

INRMP and overlap approximately 23 

km2 (∼9 mi2) and 4 km2 (∼1.5 mi2), 

respectively, with the areas under 

consideration for MHI IFKW critical 

habitat. Satellite-tracking information 

indicates that these areas are low-use or 

(low-density) areas for MHI IFKWs 

(Baird et al., 2012). This INRMP was 

drafted prior to the ESA listing of the 

MHI IFKW and it currently does not 

incorporate conservation measures that 

are specific to MHI IFKWs. This plan is 

compliant through the end of 2017 and 

the Navy will review and update the 

JBPHH INRMP starting in 2018, which 

will include additional information 

about how on-going conservation 


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measures at JBPHH support MHI IFKWs 

and their habitat. 

In the response to NMFS’ request for 

information about this INRMP, the Navy 

outlined several elements of the 2012 

INRMP and ongoing conservation 

measures that may benefit the MHI 

IFKW and their habitat, including: 

Fishing restrictions adjacent to and 

within areas that overlap the potential 

designation; creel surveys that provide 

information about fisheries in 

unrestricted areas of Pearl Harbor; 

restrictions on free roaming cats and 

dogs in residential areas; feral animal 

removal; 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); 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); a Stormwater Management 

Plan and a Stormwater Pollution 

Control Plan associated with their 

National Pollutant Discharge 

Elimination System (NPDES); and 

coastal wetland habitat restoration 

projects. 

Although the JBPHH INRMP does not 

specifically address the MHI IFKW, we 

agree that several of the above measures 

support the protection of the IFKW and 

the physical and biological features 

identified for this designation. 

Specifically, the Navy’s efforts 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; 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 or an adverse 

modification analysis because the 

activities that create these stressors are 

not funded, carried out, or authorized 

by a Federal agency. 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. 

After consideration of the above 

factors, we have determined that the 

Navy’s JBPHH INRMP provides a benefit 

to the MHI IFKW and its habitat. In 

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

the Ewa Training Minefield, and the 

Naval Defense Sea Area, both found 

south of Oahu, are not eligible for 

designation of MHI IFKW critical 

habitat. 

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 

proposed designation, the Secretary has 

applied statutory discretion to exclude 

10 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 much 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 

based on impacts on national security 

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. 

We request information on other 

relevant impacts that should be 

considered (see ‘‘Public Comments 

Solicited’’). For each particular area we 

identified the impacts of designation 

(i.e., the costs of designation). 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 to identify areas 

where the benefits of exclusion 

outweigh the benefits of designation. 

These steps and the resulting list of 

areas proposed for exclusion 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 jeopardy 

requirement. When the same 

modification would be required due to 

impacts to both the species and critical 

habitat, the impact of the designation is 

considered co-extensive 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 IFKWs 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 


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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 and 

jeopardy provision. 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 and the benefits 

of exclusion based on the impacts of the 

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 the benefits 

of exclusion, and how those benefits 

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 Draft 

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

2017b)). 

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 

not likely to jeopardize the continued 

existence of the species. Section 7(a)(1) 

of the ESA also requires all Federal 

agencies to use their authorities in 

furtherance of the purposes of the ESA 

by carrying out programs for the 

conservation of endangered and 

threatened species. Another benefit of 

critical habitat designation is that it 

provides specific notice of the features 

essential to the conservation of the MHI 

IFKW DPS and where those features 

occur. 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 those essential features. 

Accordingly, identification of these 

features may improve discussions with 

action agencies regarding relevant 

habitat considerations of proposed 

projects. 

In addition to the protections 

described above, Chapter 12 of the draft 

Economic Report (Cardno 2017) 

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 2017). 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 2017). More information about 

these types of values may be found in 

Chapter 12 of the draft Economic Report 

(Cardno 2017). 

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 (e.g., apples to 

apples); 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 features 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 essential features 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 to 

provide information about MHI IFKW 

habitat use. Cascadia Research 

Collective supplied these data (using the 

methods previously outlined in Baird et 

al., 2012) to support NMFS’ critical 

habitat designation. The data included 

information from 27 tagged individuals 

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

from Cluster 3, and 1 from Cluster 4) 

(Baird pers. communication June 2017). 

For maps of these areas see the Draft 

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

2017b). High-use areas denote areas 

where satellite-tracking information 

indicates MHI IFKWs spend more time. 

Due to the increased time spent in these 

areas, we inferred that these high-use 

areas have a higher conservation value 

than low-use areas of the range. As 

noted in the draft Biological Report 

(NMFS 2017a), there is limited 

representation among social clusters in 

the tracking data, and information 

received does not span the full calendar 

year. Therefore, this data set may not be 

fully representative of MHI IFKWs’ 

habitat use. Where available, we 

included additional information that 

may supplement our understanding of 

MHI IFKW habitat use patterns (e.g., 


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patterns of MHI IFKW habitat use from 

observational studies). Generally, we 

describe high-use areas as indicating 

areas of higher conservation value 

where greater foraging and/or 

reproductive opportunities are believed 

to exist. However, all areas support the 

essential features and meet the 

definition of critical habitat for this 

DPS. Within a restricted range, low-use 

areas continue to offer essential features 

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 draft Economic 

Report (Cardno 2017) 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. Where 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 2017). 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 draft Economic Report (Cardno 

2017) 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 

Need for Special Management 

Considerations and Protection section 

(above). Projections were evaluated for 

the next 10-year period. The analysis 

relied upon NMFS’ records of section 7 

consultations to estimate the average 

number of projects that were likely to 

occur within the specific area (i.e., 

projections were also based on past 

numbers of consultations) and to 

determine the level of consultation 

(formal, informal) that would be 

necessary based on the described 

activity. 

The draft Economic Report (Cardno 

2017) 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. These impacts 

include only additional administrative 

efforts to consider critical habitat in 

section 7 consultations for the section 7 

activities identified under the Need for 

Special Management Considerations or 

Protection section of this rule. However, 

private energy developers may also bear 

some of the administrative costs of 

consultation for large energy projects; 

annually these costs are estimated 

between 0 and 300 dollars undiscounted 

and are expected to involve three 

consultation projects over the next 10 

years. 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 non-federal 

entities as well. 

Both the draft Biological Report and 

the draft Economic Report recognize 

that some of the future impacts of the 

designation are difficult to predict 

(NMFS 2017a, Cardno 2017). Although 

considered unlikely, NMFS cannot rule 

out future modifications for federally 

managed fisheries and activities that 

contribute to water quality (NMFS 

2017a). For federally managed fisheries, 

modifications were not predicted 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 draft 

Economic Report discusses this 

qualitatively, but does not provide 

quantified costs associated with any 

uncertain future modifications (Cardno 

2017). 

In summary, 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., funded, authorized, 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 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. 

The draft Economic Report (Cardno 

2017) found that costs attributed with 

this designation are largely 

administrative in nature and that a 

majority of those costs are borne by 

Federal agencies, with only a small cost 

of consultation (approximately 0 to 

3,000 dollars over the next 10 years) 

borne by non-Federal entities. These 

impacts are expected to occur as a result 

of three potential offshore wind-energy 

projects in the Bureau of Ocean Energy 

Management’s Call Area offshore the 

island of Oahu (which includes two 

sites, one off Kaena point and one off 

the south shore) (81 FR 41335; June 24, 

2016). The area overlaps with 

approximately 1,961 km2 (757 mi2), or 

approximately 3.5 percent of the areas 

under consideration for designation. 

Density analysis of satellite-tracking 

information indicates that these sites are 

not high-use areas for MHI IFKWs. 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, along 

with other protected species (Cardno 

2017). 

Although economic costs of this 

designation are considered low, NMFS 

also considers the potential intangible 

costs of designation in light of Executive 

Order 13795, Implementing an AmericaFirst 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 foster energy security. In 


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particular, both Hawaii’s State Energy 

Office and the Bureau of Ocean Energy 

Management 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 significant (Cardno 2017). 

Because Oahu has the greatest energy 

needs among the Main Hawaiian Islands 

and has limited areas available for this 

type of development, and receiving 

energy via interconnection between 

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 

2017). 

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 

the same 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 habitat 

features. Additionally, Federal activities 

that may result in destruction or adverse 

modification are not expected in these 

areas if developed for wind energy 

projects. 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, 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. 

Based on our best scientific judgment, 

and acknowledging the relatively small 

size of this area (approximately 3.5 

percent of the overall designation), and 

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. 

Our exclusion analysis is based on the 

current BOEM Call Area as published in 

81 FR 41335 (June 24, 2016). However, 

NMFS is aware that the Navy has 

conducted an offshore wind energy 

mission compatibility assessment of the 

waters surrounding Oahu to support 

BOEM and the State of Hawaii in 

identifying areas that will support wind 

energy development and be compatible 

with the Navy mission requirements. At 

this time, NMFS cannot reliably predict 

what Call Area boundary revisions may 

be made as a result of this assessment 

or continuing consultations between the 

Navy and BOEM. Accordingly, while 

our proposed designation is based on 

the current Call Area, NMFS will 

reevaluate this 4(b)(2) analysis prior to 

publishing a final designation, taking 

into account any planned boundary 

changes in the Call Area. 

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. 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. Although we considered 

the request for exclusion of all areas 

proposed for critical habitat (see Table 

1), 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 Pacific Missile 

Range Facility (PMRF). As the PMRF 

offshore ranges were also highlighted as 

important to Navy activities, we 

included considerations associated with 

the Air Force’s 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 

separately considered the waters leading 

to the range for exclusion because 

activities differ from those planned for 

the PMRF ranges and DOD does not 

exert control over these areas. Although 

not specifically requested for exclusion, 

the Navy highlighted the Puuloa 

Underwater Detonation Range in the 

materials they provided; this area was 

not considered for exclusion because it 

does not overlap with the areas under 

consideration for critical habitat. We 

considered a total of 13 sites for 

exclusion, and we propose 8 of those 

sites for exclusion; the results of the 

impacts vs. benefits for the 13 sites 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, tests, 

training, and other essential military 

activities. The possible impacts to 

national security summarized by both 

groups included restraints and 

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 would not be required to 

consult with NMFS under section 7 of 

the ESA regarding DOD 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 including: MHI 

IFKW use of the habitat, 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 may not be directly 

comparable to the benefits of exclusion 

for purposes of conducting the section 


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4(b)(2) analysis, because neither may be 

fully quantified. The Draft ESA Section 

4(b)(2) Report (NMFS 2017b) provides 

our qualitative comparison of the 

national security impacts to the 

conservation benefits in order to 

determine which is greater. If we found 

that national security impacts outweigh 

conservation benefits, the site is 

excluded from the proposed critical 

habitat. If conservation benefits 

outweigh national security impacts, the 

site is not excluded from the proposed 

critical habitat. The decision to exclude 

any sites from a designation of critical 

habitat is always at the discretion of 

NMFS. Table 1 (below) 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 

proposed? 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 major modifications to consultation are outweighed by benefits of protecting the entire area, which includes both high and low-use MHI IFKW habitat, from future 

DOD and non-DOD Federal actions. 

(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 MHI 

IFKW habitat. This area is unique for DOD and provides 

specific opportunities important for DOD training and testing. 

The impacts from delays and possible major modifications to 

consultation outweigh benefits of protecting low-use habitat 

where future non-DOD Federal actions are considered unlikely. 

(3) Waters on-route 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 MHI 

IFKW habitat that is not owned or controlled by DOD. It is 

possible that non-DOD Federal actions could be proposed 

within the site that may affect the essential features. Impacts 

from DOD 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. 

(4) Kingfisher Range; Navy ....... 14 km2 (∼6 mi2); 0.03% .......... Yes .......... This area overlaps a small area of low-use MHI IFKW habitat. 

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 habitat where future non-DoD Federal actions are 

considered unlikely. 

(5) Warning Area 188; Navy ..... 2,674 km2 (∼1,032 mi2); 5% ... Yes .......... This area overlaps a medium area of low-use MHI IFKW habitat. DOD maintains control over portions of the nearshore 

area, and uses deeper waters for important training activities. Impacts from delays and possible major modifications 

to consultation outweigh benefits of protecting low-use habitat where future non-DoD Federal actions are considered 

unlikely. 

(6) Kaula and Warning Area W– 

187; Navy.

266 km2 (∼103 mi2); 0.5% ...... Yes .......... This area overlaps a small area of low-use MHI IFKW habitat. 

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

low-use habitat where future non-DoD Federal actions are 

considered unlikely. 

(7) Warning Area 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 MHI IFKW habitat and a small high-use area for MHI IFKWs. The DOD 

does not maintain full control over these waters. Impacts 

from delays and possible modifications to consultation are 

outweighed by benefits of protecting both high and low-use 

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 MHI IFKW habitat. 

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 habitat where future 

non-DoD Federal actions are considered unlikely. 

(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 MHI IFKW habitat. 

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 habitat where future 

non-DoD Federal actions are considered 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 

proposed? Significant weighing factors 

(10) Warning Areas 196 and 

191; Navy.

728 km2 (∼281 mi2); 1% ......... Yes .......... This area overlaps a relatively small area of low-use MHI 

IFKW habitat that is used by DOD. Impacts from short 

delays and possible modifications to consultation outweigh 

benefits of protecting low-use habitat where future non-DoD 

Federal actions are considered unlikely. 

(11) Warning Areas 193 and 

194; Navy.

458 km2 (∼177 mi2); 1% ......... Yes .......... This area overlaps a relatively small area of low-use MHI 

IFKW habitat that is used by DOD. Impacts from short 

delays and possible modifications to consultation outweigh 

benefits of protecting low-use habitat where future non-DoD 

Federal actions are considered 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 MHI IKFW habitat that is not owned or 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 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 MHI IKFW habitat that is not owned or fully 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 MHI 

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

In coordination with DOD, the Navy 

requested review of six additional areas 

for exclusion due to national security 

impacts (see Figure 2). These additional 

areas are subsets of a larger area that the 

Navy initially requested for exclusion 

(see Table I, Site 1), but which NMFS 

determined should not be excluded 

under 4(b)(2). These areas include (1) 

the Kaulakahi Channel portion of 

Warning area 186, as it abuts PMRF 

offshore areas; (2) the area to the north 

and east of Oahu including a small 

portion of Warning Area 189 and the 

Helo Quickdraw Box; (3) the area to the 

south of Oahu; (4) the Kaiwi Channel; 

(5) the area north and offshore of the 

Molokai-associated MHI IFKW high use 

area; and (6) the Alenuihaha Channel. In 

order to meet our publishing deadline 

for the proposed designation, NMFS 

will reconsider its decision as it pertains 

to these individual areas consistent with 

the weighing factors used in the draft 

4(b)(2) Report (NMFS 2017b), and 

provide exclusion determinations for 

these requests in the final rule. 

BILLING CODE 3510–22–P 


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BILLING CODE 3510–22–C 

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 proposed 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 proposed critical habitat 

designation. Accordingly, subject to 

further consideration based on public 

comment, we do not exercise our 

discretionary authority to exclude any 

areas based on other relevant impacts. 

Proposed Critical Habitat Designation 

This rule proposes to designate 

approximately 49,701 km2 (19,184 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: (1) The Bureau of Ocean Energy 

Management’s Call Area offshore of the 

Island of Oahu (which includes two 

sites, one off Kaena point and one off 

the south shore), (2) the Pacific Missile 

Range Facilities Offshore ranges 

(including the Shallow Water Training 

Range (SWTR), the Barking Sands 

Tactical Underwater Range (BARSTUR), 

and the Barking Sands Underwater 

Range Extension (BSURE), (3) the 

Kingfisher Range, (4) Warning Area 188, 

(5) Kaula and Warning Area 187, (6) the 

Fleet Operational Readiness Accuracy 

Check Site (FORACS) Range, (7) the 

Shipboard Electronic Systems 

Evaluation Facility (SESEF), (8) 

Warning Areas 196 and 191, and (9) 

Warning Areas 193 and 194. 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 Joint Base Pearl 

Harbor-Hickam Integrated Natural 

Resource Management Plan 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 


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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 where: (1) Critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered in the 

biological opinion. Consequently, some 

Federal agencies may request reinitiation of consultation 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 (FHA) or 

Federal Emergency Management Agency 

(FEMA) funding). ESA section 7 

consultation would not be required for 

Federal actions that do not affect listed 

species or critical habitat, and would 

not be required for actions on nonFederal and private lands that are not 

carried out, funded, or authorized by a 

Federal agency. 

Activities That May Be Affected 

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

maximum extent practicable, in any 

proposed 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: (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 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 involved in or 

receives benefits from a Federal project. 

These activities would need to be 

evaluated with respect to their potential 

to destroy or adversely modify 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 draft 

Economic Analysis Report (Cardno 

2017) 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). 

Public Comments Solicited 

We request that interested persons 

submit comments, information, and 

suggestions concerning this proposed 

rule during the comment period (see 

DATES). To ensure the final action 

resulting from this proposal will be as 

accurate and effective as possible, we 

solicit comments and suggestions from 

the public, other concerned 

governments and agencies, the scientific 

community, industry or any other 

interested party concerning this 

proposed rule. Specifically, public 

comments are sought concerning: (1) 

Whether it is appropriate to include 

‘‘habitat free of anthropogenic noise that 

would significantly impair the value of 

the habitat for false killer whales’ use or 

occupancy’’ as a feature essential to the 

conservation of MHI IFKWs in the final 

rule and, if so, what scientific data are 

available that would assist us in 

determining noise levels that result in 

adverse modification or destruction, 

such as by inhibiting communication or 

foraging activities, or causing the 

abandonment of critical habitat; (2) 

information regarding potential impacts 

of designating any particular area, 

including the types of Federal activities 

that may trigger an ESA section 7 

consultation and the possible 

modifications that may be required of 

those activities as a result of section 7 

consultation; (3) information regarding 

the benefits of excluding particular 

areas from the critical habitat 

designation; (4) current or planned 

activities in the areas proposed for 

designation and their possible impacts 

on proposed critical habitat; (5) 

additional information regarding the 

threats associated with global climate 

change and known impacts to MHI 

IFKW critical habitat and/or MHI IFKW 

essential features; and (6) any 

foreseeable economic, national security, 

tribal, or other relevant impacts 

resulting from the proposed 

designations. With regard to these 

described impacts, we request that the 

following information be provided to 

inform our ESA section 4(b)(2) analysis: 

(1) A map and description of the 

affected area (e.g., location, latitude and 

longitude coordinates to define the 

boundaries, and the extent into 

waterways); (2) a description of 

activities that may be affected within 

the area; (3) a description of past, 

ongoing, or future conservation 

measures conducted within the area that 

may protect MHI IFKW habitat; and (4) 

a point of contact. 

We encourage comments on this 

proposal. You may submit your 

comments and materials by any one of 

several methods (see ADDRESSES). The 

proposed rule, maps, references and 

other materials relating to this proposal 

can be found on our Web site at http:// 

www.fpir.noaa.gov/PRD/prd_mhi_false_

killer_whale.html#fwk_esa_listing and 

on the Federal eRulemaking Portal at 

http://www.regulations.gov, or can be 

made available upon request. We will 

consider all comments and information 

received during the comment period for 

this proposed rule in preparing the final 

rule. 

Please be aware that all comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.) 

submitted voluntarily by the sender will 

be publicly accessible. Do not submit 

confidential business information or 

otherwise sensitive or protected 

information. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
51202 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 

References Cited 

A complete list of all references cited 

in this proposed rule can be found on 

our Web site 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 proposed 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 

proposed 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 

proposed rule. Economic impacts 

associated with 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 draft Economic Report (Cardno 

2017) 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. 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. These costs are 

estimated 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 proposed rule is not expected to 

be subject to the requirements of E.O. 

13771 because this proposed 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 proposed rule does 

not have significant federalism effects 

and that a federalism assessment is not 

required. However, in keeping with 

Department of Commerce policies and 

consistent with ESA regulations at 50 

CFR 242.16(c)(1)(ii), we will request 

information for this proposed rule from 

the state of Hawaii’s Department of 

Land and Natural Resources. The 

proposed designation may have some 

benefit to state and local resource 

agencies in that the proposed 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. 

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 draft Economic 

Report; Cardno 2017). In summary, 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 

impacted 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 impact 

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 

Regulatory Flexibility Analysis 

describing the effects of the rule on 

small entities, i.e., small businesses, 

small organizations, and small 

government jurisdictions. An initial 

regulatory flexibility analysis (IRFA) has 

been prepared, which is included as 

Chapter 13 to the draft Economic Report 

(Cardno 2017). This document is 

available upon request (see ADDRESSES), 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
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via our Web site at http://

www.fpir.noaa.gov/PRD/prd_mhi_false_

killer_whale.html#fwk_esa_listing or via 

the Federal eRulemaking Web site at 

www.regulations.gov. 

A statement of need for and objectives 

of this proposed rule is provided earlier 

in the preamble and is not repeated 

here. This proposed rule will not 

impose any recordkeeping or reporting 

requirements. 

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 

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 draft 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 2017). Although considered 

unlikely (NMFS 2017a), there remains a 

small, unquantifiable possibility that 

Federally-managed 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 draft 

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 2017). 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, and we invite 

public comment on those impacts. 

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 where 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 

also 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 take, 

fund, or authorize any action that might 

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 has not 

identified 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 2017). We 

solicit additional information regarding 

the impacts to small businesses that 

may result from this proposed 

designation, and we will consider any 

additional information received in 

developing our final determination to 

designate or exclude areas from critical 

habitat designation for the MHI IFKW. 

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 between 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 this 

proposed 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 Program of 

Hawaii. This determination has been 

submitted to the Hawaii Coastal Zone 

Management Program for review. 

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 

proposed rule does not contain any new 

or revised collection of information. 

This rule, if adopted, would 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: 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
51204 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 

(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 

critical habitat designation is that 

Federal agencies must ensure that their 

actions 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 impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program; 

however, the Unfunded Mandates 

Reform Act would not apply; nor would 

critical habitat shift the costs of the large 

entitlement programs listed above to 

state governments. 

(B) Due to the prohibition against take 

of the MHI IFKW both within and 

outside of the designated areas, we do 

not anticipate that this proposed rule 

will 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 impacted by Federal 

regulations and as such, consideration 

of these impacts may be evaluated as 

other relevant impacts from the 

designation. At this time, we are not 

aware of anticipated impacts resultant 

from the designation; however, we seek 

comments regarding areas of overlap 

that may warrant exclusion from critical 

habitat designation. We also seek 

information from affected Native 

Hawaiian organizations concerning 

other Native Hawaiian activities that 

may be affected. 

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: October 31, 2017. 

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 

proposed to be 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 adding a new citation 

under the critical habitat column, for 

the ‘‘Whale, false killer (Main Hawaiian 

Islands Insular DPS) under the ‘‘Marine 

Mammals’’ sub heading, to read as 

follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) The endangered species under the 

jurisdiction of the Secretary of 

Commerce are: 

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). 


jstallworth on DSKBBY8HB2PROD with PROPOSALS
Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 51205 

* * * * * 

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-m depth contour out 

to the 3,200-m depth contour as 

depicted in the maps below. 

(b) Essential Features. The essential 

features for the conservation of the main 

Hawaiian Islands insular false killer 

whale are: 

(1) Island-associated marine habitat 

for main Hawaiian Islands insular false 

killer whales. 

(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. 

(4) Habitat free of anthropogenic noise 

that would significantly impair the 

value of the habitat for 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 ESA section 4(b)(2) the 

following areas have been excluded 

from the designation: The Bureau of 

Ocean Energy Management’s Call Area 

offshore of the Island of Oahu (which 

includes two sites, one off of Kaena 

point and one off the south shore—see 

BOEM Lease Areas in maps); the Pacific 

Missile Range Facilities Offshore ranges 

(including the Shallow Water Training 

Range, the Barking Sands Tactical 

Underwater Range, and the Barking 

Sands Underwater Range Extension); 

the Kingfisher Range; Warning Area 

188; Kaula and Warning Area 187; Fleet 

Operational Readiness Accuracy Check 

Site Range; the Shipboard Electronic 

Systems Evaluation Facility; Warning 

Areas 196 and 191; and Warning Areas 

193 and 194. 

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

all areas subject to the Joint Base Pearl 

Harbor-Hickam Integrated Natural 

Resource Management Plan. 

(d) Maps of main Hawaiian Islands 

insular false killer whale critical habitat. 

BILLING CODE 3510–22–P 


jstallworth on DSKBBY8HB2PROD with PROPOSALSEP03NO17.002</GPH>
51206 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 


jstallworth on DSKBBY8HB2PROD with PROPOSALSEP03NO17.003</GPH>

z 

b 

1;J 

z 

b 

f" 

;;:; 

Proposed MHI IFKW Critical Habitat: around Niihau and Kauai 

c=J Proposed MHI IFKW Critical Habitat 

~ Areas Proposed for National Security Exclusion 

160"30'W 160"0'W 159"30'W 159"0'W 
Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 51207 


jstallworth on DSKBBY8HB2PROD with PROPOSALSEP03NO17.004</GPH>

z 

b 

C'l 

0 

N 

z 

b 

C'l 

~ 

z 

b 

~ 

Proposed MHI IFKW Critical Habitat: around Oahu 

VVarningAreas 196 and 191 

D Proposed MHIIFKW Critical Habitat 

1:: :: :: J BOEM Areas Proposed for Exclusion 

Areas Proposed for National Security Exclusion 

~ Areas Not Eligible for Critical Habitat Designation 0 10 20 Kilometers 

I I I I I I I I I 

N 

A ~------~----------------~r-----------------~----------------~ 1sr3ow 
51208 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 


jstallworth on DSKBBY8HB2PROD with PROPOSALSEP03NO17.005</GPH>

Proposed MHI IFKWCritical Habitat: around Maui, Molokai, Lanai, and Kahoolawe 

0 10 20 Ki lometers 

II II II II I 

N 

A 

z 

p 

0< 

c=J Proposed MHI IFKW Critical Habitat 

157"30'W 157"0'W 156"30'W 156"0'W 
Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Proposed Rules 51209 

[FR Doc. 2017–23978 Filed 11–2–17; 8:45 am] 

BILLING CODE 3510–22–C 


jstallworth on DSKBBY8HB2PROD with PROPOSALSEP03NO17.006</GPH>