Proposed Rule2022-14838
Listing Endangered or Threatened Species; 90-Day Finding on a Petition To Revise the Critical Habitat Designation for the North Pacific Right Whale
Primary source
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Published
July 12, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
We, NMFS, announce a 90-day finding on a petition to revise the critical habitat designation for the North Pacific right whale (Eubalaena japonica) under the Endangered Species Act (ESA). In April 2008, we issued a final rule designating approximately 3,050 square kilometers (~1,175 square miles) and approximately 91,850 square kilometers (~35,460 square miles) of critical habitat for North Pacific right whales in the Gulf of Alaska and the Southeast Bering Sea, respectively. The petition requests we revise this critical habitat. We find that the petition presents substantial scientific information indicating the petitioned action may be warranted. We are hereby initiating a review of the currently designated critical habitat to determine whether revision is warranted. To ensure a comprehensive review, we are soliciting scientific and commercial information pertaining to this action.
Full Text
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<title>Federal Register, Volume 87 Issue 132 (Tuesday, July 12, 2022)</title>
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[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Proposed Rules]
[Pages 41271-41273]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-14838]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 226
[Docket No. 220706-0150]
RTID 0648-XR123
Listing Endangered or Threatened Species; 90-Day Finding on a
Petition To Revise the Critical Habitat Designation for the North
Pacific Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: 90-day petition finding; request for information
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to revise
the critical habitat designation for the North Pacific right whale
(Eubalaena japonica) under the Endangered Species Act (ESA). In April
2008, we issued a final rule designating approximately 3,050 square
kilometers (~1,175 square miles) and approximately 91,850 square
kilometers (~35,460 square miles) of critical habitat for North Pacific
right whales in the Gulf of Alaska and the Southeast Bering Sea,
respectively. The petition requests we revise this critical habitat.
We find that the petition presents substantial scientific
information indicating the petitioned action may be warranted. We are
hereby initiating a review of the currently designated critical habitat
to determine whether revision is warranted. To ensure a comprehensive
review, we are soliciting scientific and commercial information
pertaining to this action.
DATES: Scientific and commercial information pertinent to the
petitioned action must be received by September 12, 2022.
ADDRESSES: You may submit comments, information, or data on this
document identified by docket number NOAA-NMFS-2022-0050, by one of the
following methods:
<bullet> Federal e-Rulemaking Portal: Go to <a href="http://www.regulations.gov">www.regulations.gov</a>. In
the Search box, enter the above docket number for this notice. Then,
click on the Search icon. On the resulting web page, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
<bullet> Mail: Submit written information to Jon Kurland, Regional
Administrator for Alaska Region NMFS, Attn: Records Office. Mail
comments to P.O. Box 21668, Juneau, AK 99802-1668.
Instructions: NMFS may not consider comments or other information
if sent by any other method, to any other address or individual, or
received after the comment period ends. All comments and information
received are a part of the public record and NMFS will post the
comments for public viewing on <a href="http://www.regulations.gov">www.regulations.gov</a> without change. All
personal identifying information (e.g., name, address, etc.),
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender is publicly accessible. NMFS will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous).
Electronic copies of the petition prepared for this action are
available from <a href="http://www.regulations.gov">http://www.regulations.gov</a> or from the NMFS website (see
<a href="https://www.fisheries.noaa.gov/species/north-pacific-right-whale#conservation-management">https://www.fisheries.noaa.gov/species/north-pacific-right-whale#conservation-management</a>).
FOR FURTHER INFORMATION CONTACT: Jenna Malek, NMFS Alaska Region,
<a href="/cdn-cgi/l/email-protection#761c13181817581b171a131d361819171758111900"><span class="__cf_email__" data-cfemail="7d171813131c53101c1118163d13121c1c531a120b">[email protected]</span></a>, (907) 271-1332.
SUPPLEMENTARY INFORMATION:
Background
On March 10, 2022, we received a petition from the Center for
Biological Diversity and Save the North Pacific Right Whale requesting
revision to the critical habitat designation for the North Pacific
right whale. Currently, North Pacific right whale critical habitat
consists of two areas of approximately 3,050 square kilometers (~1,175
square miles) and approximately 91,850 square kilometers (~35,460
square miles) in the Gulf of Alaska and the Southeast Bering Sea,
respectively (73 FR 19000, April 8, 2008). The petition requests we
revise this critical habitat to connect the two existing critical
habitat areas by extending the Southeast Bering Sea boundary west and
south to the Fox Islands, through Unimak Pass to the edge of the
continental slope, and east to the Gulf of Alaska critical habitat area
off the coast of Kodiak Island.
The Endangered Species Act (ESA) of 1973, as amended (16 U.S.C.
1531 et seq.) defines critical habitat as: (i) The specific areas
within the geographical area currently occupied by the species, at the
time it is listed . . . on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed . . . upon a determination by the
Secretary that such areas are essential for the conservation of the
species (16 U.S.C. 1532(5)(A)). Joint NMFS-Fish and Wildlife Service
(FWS) regulations for designating critical habitat at 50 CFR
424.12(b)(1)(ii) state that the agencies will identify physical and
biological features essential to the conservation of the species at an
appropriate level of specificity using the best available scientific
data. A physical and biological feature may be a single habitat
characteristic or a more complex combination of characteristics, may
include characteristics that support ephemeral or dynamic habitat
conditions, and may also be expressed in terms relating to principles
of conservation biology, such as patch size, distribution distances,
and connectivity (50 CFR 424.02). ``Special management considerations
or protection'' means any method or procedure useful in protecting
physical and biological features essential to the conservation of the
species (50 CFR 424.02).
Section 4(b)(2) of the ESA requires us to designate, and make
revisions to, critical habitat for listed species based on the best
scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
The Secretary of Commerce may exclude any particular area from critical
habitat if she determines that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless she determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.
Section 4(b)(3)(D)(i) of the ESA requires, to the maximum extent
practicable, that within 90 days of receipt of a petition to revise a
critical habitat designation, the Secretary of Commerce make a finding
on whether
[[Page 41272]]
that petition presents substantial scientific information indicating
that the petitioned revision may be warranted, and to promptly publish
such finding in the Federal Register (16 U.S.C. 1533(b)(3)(D)(i)).
The ESA implementing regulations issued jointly by NMFS and FWS (50
CFR 424.14(i)(1)(i)) state that ``substantial scientific or commercial
information'' refers to credible scientific information that would lead
a reasonable person conducting an impartial scientific review to
conclude that the revision proposed in the petition may be warranted.
In evaluating whether substantial scientific information is provided in
a petition to revise critical habitat, the Secretary must consider
whether the petition contains: (1) a description and map(s) of the
areas that the current designation does not include that should be
included, or includes that should no longer be included, and a
description of the benefits of designating or not designating these
specific areas of critical habitat; (2) a description of physical or
biological features essential for the conservation of the species and
whether they may require special management considerations or
protections; (3) information indicating that the specific areas
petitioned to be added to critical habitat contain one or more of the
physical or biological features that are essential to the conservation
of the species and may require special management considerations or
protection; or (4) information indicating that areas designated as
critical habitat do not contain the physical and biological features
essential to the conservation of the species involved or do not require
special management considerations or protection (50 CFR 424.14(e)(1-
4)).
At the 90-day stage, we evaluate the petitioner's request based
upon the information in the petition, including its references and the
information readily available in our files. We do not conduct
additional research, and we do not solicit information from parties
outside the agency to help us evaluate the petition. We will accept the
petitioner's sources and characterizations of the information
presented, if they appear to be based on accepted scientific
principles, unless we have specific information in our files that
indicates the petition's information is incorrect, unreliable,
obsolete, or otherwise irrelevant to the requested action. Information
that is susceptible to more than one interpretation or that is
contradicted by other available information will not be dismissed at
the 90-day finding stage, so long as it is reliable and a reasonable
person would conclude that it supports the petitioner's assertions. If
we find that a petition presents substantial information indicating
that the revision may be warranted (a ``positive 90-day finding''),
within 12 months after receiving the petition, we are required to
determine how we intend to proceed with the requested critical habitat
revision and promptly publish notice of such intention in the Federal
Register (16 U.S.C. 1533(b)(3)(D)(ii)). Because the finding at the 12-
month stage is based on a more thorough review of the available
information, as compared to the narrow scope at the 90-day stage, a
``positive 90-day finding'' does not prejudge the outcome of our
review.
Current Critical Habitat Designation
Prior to the mid-2000s, right whales in the North Pacific and North
Atlantic were considered the same species. Critical habitat for right
whales was initially designated in 1994 for the North Atlantic
population (59 FR 28793, June 3, 1994, and revised in 2006 to include
habitat for the North Pacific population (71 FR 38277, July 6, 2006).
Genetic analyses conducted in the early 2000s indicated that the North
Atlantic and North Pacific populations were two distinct species of
right whales (Rosenbaum et al. 2000, Gaines et al. 2005, Kaliszewska et
al. 2005), leading to their separate listing under the ESA in 2008 (73
FR 12024, March 6, 2008). Following this listing, the two critical
habitat areas originally designated in 2006 for the North Pacific
population were finalized as critical habitat for North Pacific right
whales (73 FR 19000, April 8, 2008). In the Gulf of Alaska, critical
habitat was identified as a polygon delineated by a series of lines
connecting the following coordinates in order: 57[deg]03' N/153[deg]00'
W, 57[deg]18' N/151[deg]30' W, 57[deg]00' N/151[deg]30' W, 56[deg]45'
N/153[deg]00' W, and returning to 57[deg]03' N/153[deg]00' W. In the
Bering Sea, critical habitat was also identified by a polygon,
delineated by a series of straight lines connecting the following
coordinates in order: 58[deg]00' N/168[deg]00' W, 58[deg]00' N/
163[deg]00' W, 56[deg]30' N/161[deg]45' W, 55[deg]00' N/166[deg]00' W,
56[deg]00' N/168[deg]00' W and returning to 58[deg]00' N/168[deg]00' W.
The designation of critical habitat for North Pacific right whales
uses the term primary constituent element (PCE). The critical habitat
implementing regulations in 50 CFR 424 were revised in 2016 (81 FR
7414; February 11, 2016), and as part of these revisions the term
``PCE'' was removed and replaced with ``physical or biological
features'' (PBFs). The shift in terminology was intended to simplify
and clarify the designation process, and did not change the approach
used by NMFS in determining what areas qualify as critical habitat
under the ESA. Thus, this change in terminology will not alter our
review and analysis of North Pacific right whale critical habitat.
At the time of designation, there were significant gaps in the
knowledge of North Pacific right whale biology and ecology; little was
known about the PBFs that might be essential for their conservation.
However, several species of large copepods and other zooplankton are
known to constitute the primary prey of North Pacific right whales,
based on examination of harvested whales and limited plankton tows
conducted near feeding whales. As such, PBFs identified were the
copepods Calanus marshallae, Neocalanus cristatus, and N. plumchrus,
and the euphausiid Thysanoessa raschii, in areas where right whales are
known or thought to feed (73 FR 19000, April 8, 2008). In addition to
the occurrence of large zooplankton, NMFS concluded that it is likely
that certain physical forcing mechanisms are present in these areas,
which act to concentrate the identified prey species in densities which
allow for efficient foraging by right whales (73 FR 19000, April 8,
2008).
Analysis of Petition
The petition lists recent sources of information on North Pacific
right whale presence and habitat use in and around currently designated
critical habitat in the Gulf of Alaska and the Southeast Bering Sea.
The Center for Biological Diversity and Save the North Pacific Right
Whale propose that the critical habitat be revised to connect the two
existing critical habitat areas by extending the Bering Sea area
boundary west and south to the Fox Islands, through Unimak Pass to the
edge of the continental slope, and east to the Kodiak Island critical
habitat area. The petitioners state that this revision encompasses ``a
key migratory point'' and provides ``connectivity between two essential
foraging grounds'' (Center for Biological Diversity and Save the North
Pacific Right Whale, 2022, p. ii).
Oceanographic data indicate that Unimak Pass is a very biologically
productive area with high concentrations of phyto- and zooplankton due
to the mixing of waters from the North Pacific and Bering Canyon along
the Bering Sea shelf. This productivity attracts a large diversity of
fish and marine birds and mammals, including North Pacific right
whales, as evidenced by acoustic and visual detections. Based on
acoustic moorings
[[Page 41273]]
deployed in the center of Unimak Pass annually from 2009 to 2015,
various types of North Pacific right whale vocalizations were detected
on 37 of 1,778 days and vocalizations were detected across all years
and seasons (Wright et al. 2018). These acoustic detections suggest
that North Pacific right whales utilize Unimak Pass throughout the year
and that this may be important habitat for the species.
North Pacific right whales have also been visually observed in and
around Unimak Pass as recently as February 2022. Commercial fisherman
reported sighting at least two right whales just outside of the pass in
February, providing the first visual confirmation of the species in the
area during that time of year.
In the Barnabas Trough and Albatross Bank area of the Gulf of
Alaska, there have been increased sightings and detections of North
Pacific right whales in and around currently designated critical
habitat. Though historic data indicate that individuals were harvested
commercially in the Gulf, there has been limited evidence of their
presence since the 1960s. Similar to Unimak Pass, there is high
biological productivity near Barnabas Trough and Albatross Bank, due to
the tidal mixing that results in nutrient rich waters throughout the
summer months. The North Pacific right whale sightings and detections
that have occurred in this area have corresponded with high densities
of North Pacific right whale primary prey, the essential feature of the
designated critical habitat, and fecal samples that indicate recent
feeding (Wade et al. 2011).
In 2015, Ferguson et al. identified a biologically important area
(BIA) for North Pacific right whale feeding that encompasses and
extends beyond the designated critical habitat in the Gulf of Alaska.
The BIA is based on opportunistic sighting data, acoustics recordings,
and historical whaling data (Ferguson et al. 2015). In August 2021, two
pairs of North Pacific right whales were sighted by NOAA Fisheries
scientists: one pair was feeding at the edge of critical habitat in
Barnabas Trough, and the other pair was in the vicinity of the
southeast edge of the feeding BIA. The identification of the BIA based
on a diversity of data, recent visual sightings, and acoustic
detections suggest that North Pacific right whale utilization of areas
in the Gulf of Alaska may extend past the currently designated critical
habitat.
Petition Finding
Based on the information presented and referenced in the petition,
as well as all other information readily available in our files, and
pursuant to the criteria specific in 50 CFR 424.14(c) and (e), we find
the recent information presented by the petitioners on the distribution
and behavior of North Pacific right whales in the Gulf of Alaska and
the Southeast Bering Sea to constitute substantial information
indicating that revision of critical habitat may be warranted.
Information Solicited
To ensure that our review of North Pacific right whale critical
habitat is complete and based on the best available scientific and
commercial information, we are soliciting relevant information from the
public, governmental agencies, tribes, the scientific community,
industry, environmental entities, and any other interested parties
concerning: (1) The essential habitat needs and use of the whales; (2)
the areas of the Gulf of Alaska and the Southeastern Bering Sea
proposed in the petition for inclusion as critical habitat; (3) the
physical and biological features that are essential to the conservation
of North Pacific right whales and that may require species management
considerations or protection; (4) information regarding potential
benefits or impacts of designating any particular areas, including
information on the types of Federal actions that may affect the area's
physical and biological features; and (5) current or planned activities
in the areas the petition requests to be added as critical habitat and
costs of potential modifications of those activities due to critical
habitat designation.
We request that all data and information be accompanied by
supporting documentation such as maps, bibliographic references, or
reprints of pertinent publications. Comments and materials received
will be available for public inspection, by appointment, during normal
business hours at the above address (see ADDRESSES).
References Cited
The complete citations for the references used in this document can
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER
INFORMATION CONTACT).
Dated: July 7, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2022-14838 Filed 7-11-22; 8:45 am]
BILLING CODE 3510-22-P
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