77694 Federal Register / Vol. 71, No. 248 / Wednesday, December 27, 2006 / Proposed Rules 

Dated: December 20, 2006. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E6–22161 Filed 12–26–06; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 061212327–6327–01; I.D. 

120706A] 

RIN 0648–XB57 

Endangered And Threatened Species; 

Proposed Endangered Status for North 

Pacific Right Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, NMFS, have completed a 

status review of the northern right 

whale under the Endangered Species 

Act (ESA). We initiated this review in 

response to a petition submitted by the 

Center for Biological Diversity, dated 

August 16, 2005, to list the North Pacific 

right whale as a separate endangered 

species. Based on the findings from the 

status review and consideration of the 

factors affecting this species, we have 

concluded that right whales in the 

northern hemisphere exist as two 

species: the North Pacific right whale 

(Eubalaena japonica) and the North 

Atlantic right whale (E. glacialis). We 

have also determined that each of these 

species is in danger of extinction 

throughout its range. To reflect this 

taxonomic revision, we are designating 

each separately as an endangered 

species. This rule proposes to list the 

North Pacific right whale as an 

endangered species; a proposed rule to 

list the North Atlantic right whale 

isissued separately. We also intend to 

designate critical habitat for the North 

Pacific right whale. A proposed rule for 

designation of critical habitat will 

follow this action. We are soliciting 

public comment on this proposed listing 

determination. 

DATES: Comments on this proposed rule 

must be received by close of business on 

February 26, 2007. Requests for public 

hearings must be made in writing by 

February 12, 2007. 

ADDRESSES: Send comments to Kaja 

Brix, Assistant Regional Administrator, 

Protected Resources Division, Alaska 

Region, NMFS, Attn: Ellen Walsh. 

Comments may be submitted by: 

• E-mail: ESA-NRW-status@noaa.gov. 

Include in the subject line the following 

document identifier: North Pacific Right 

Whale PR. E-mail comments, with or 

without attachments, are limited to 5 

megabytes. 

• Webform at the Federal 

eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions at that site for submitting 

comments. 

• Mail: P. O Box 21668, Juneau, AK 

99802 

• Hand delivery to the Federal 

Building : 709 W. 9th Street, Juneau, 

Alaska. 

• Fax: (907) 586–7012. 

The proposed rule and other materials 

relating to this proposal can be found on 

the NMFS Alaska Region website http:// 

www.fakr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith, NMFS, 222 West 7th Avenue, 

Anchorage, Alaska 99517, telephone 

(907) 271–5006, fax (907) 271–3030; 

Kaja Brix, NMFS,(907)586–7235, fax 

(907) 586–7012; or Marta Nammack, 

(301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Petition 

On August 16, 2005, we received a 

petition from the Center for Biological 

Diversity (CBD) to list the North Pacific 

right whale as a separate endangered 

species under the ESA. A copy of the 

petition may be viewed at our Alaska 

Region website (see ADDRESSES). CBD 

requested that we list the North Pacific 

right whale as a new endangered species 

based, in part, on recent scientific 

information that establishes a new 

taxonomic classification for right whale 

species. On January 26, 2006, we issued 

our finding that the petition presented 

substantial information indicating that 

the petitioned action may be warranted 

(71 FR 4344), and we requested 

information regarding the taxonomy and 

status of the North Pacific right whale, 

its habitat, biology, movements and 

distribution, threats to the species, or 

other pertinent information. This 

proposed rule summarizes the 

information gathered and the analyses 

conducted in a status review of right 

whales in the North Pacific Ocean and 

in the North Atlantic Ocean and 

constitutes our 12-month determination 

on CBD’s petition. 

Status Review 

The review of the status of right 

whales in the North Atlantic and North 

Pacific Oceans describes the population 

structure and examines the extent to 

which phylogenetic uniqueness exists 

between right whales found in the North 

Atlantic and North Pacific. The review 

also examines the biological status and 

threats to the right whales and their 

habitat. 

Biology of Right Whales in the North 

Pacific Ocean 

Right whales are large baleen whales 

that grow to lengths and weights 

exceeding 18 meters and 100 tons (90.7 

metric tons), respectively. They are filter 

feeders whose prey consists exclusively 

of zooplankton. Right whales attain 

sexual maturity at an average age of 8–

10 years, and females produce a single 

calf at intervals of 3–5 years (Kraus et 

al., 2001). Their life expectancy is 

unclear, but is known to reach 70 years 

in some cases (Hamilton et al., 1998; 

Kenney, 2002). 

Right whales are generally migratory, 

with at least a portion of the population 

movingbetween summer feeding 

grounds in temperate or high latitudes 

and winter calving areas in warmer 

waters (Kraus et al., 1986; Clapham et 

al., 2004). In the North Pacific, 

individuals have been observed feeding 

in the Gulf of Alaska, the Bering Sea, 

and the Sea of Okhotsk. Although a 

general northward movement is evident 

in spring and summer, it is unclear 

whether the entire population 

undertakes a predictable seasonal 

migration, and the location of calving 

grounds remains completely unknown 

(Scarff, 1986; Scarff, 1991; Brownell et 

al., 2001; Clapham et al.,2004; Shelden 

et al., 2005). 

Historically, right whales occurred 

across the entire North Pacific Ocean 

from the western coast of North America 

to the Russian Far East (Scarff, 1986; 

Brownell et al., 2001, Clapham et al., 

2004, Shelden et al., 2005). Sightings in 

the 20th century were from as far south 

as central Baja California, Mexico, and 

the Yellow Sea, and as far north as the 

Bering Sea and the Okhotsk Sea 

(Goddard and Rugh, 1998; Brownell et 

al., 2001). Right whales are frequently 

found in coastal or shelf waters. Such 

sightings, however, may be partially a 

function of survey effort, and thus may 

not reflect current or historical 

distribution. Sighting records also 

indicate that right whales occur far 

offshore, and movements over abyssal 

depths are known (Scarff, 1986; Mate et 

al. 1997). Clapham et al. (2004) plotted 

20th century records together with data 

summarized from 19th century whaling 

catches. These plots show that right 

whales had an extensive offshore 

distribution in the 19th century, and 

were common in areas where few or no 


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right whales occur today. Sightings 

diminished and occurred further south 

in autumn, and very few animals were 

recorded anywhere in winter. Whalers 

never reported winter calving areas in 

the North Pacific, and calving locations 

remain unknown (Scarff, 1986; Clapham 

et al., 2004). Overall, these analyses 

confirmed that the size and range of the 

right whale population is now 

considerably diminished in the North 

Pacific relative to the situation during 

the peak period of whaling for this 

species in the 19th century. 

Little is known regarding the 

migratory behavior of right whales in 

the North Pacific. Historical sighting 

and catch records provide the only 

information on possible migration 

patterns for North Pacific right whales 

(Omura, 1958; Omura et al., 1969; 

Scarff, 1986). During summer, whales 

were found in the Gulf of Alaska, along 

both coasts of the Kamchatka Peninsula, 

the Kuril Islands, the Aleutian Islands, 

the southeastern Bering Sea, and in the 

Okhotsk Sea. Fall and spring 

distribution was the most widely 

dispersed, with whales occurring in 

mid-ocean waters and extending from 

the Sea of Japan to the eastern Bering 

Sea. In winter, right whales were found 

in the Ryukyu Islands (south of Kyushu, 

Japan), the Bonin Islands, the Yellow 

Sea, and the Sea of Japan. The current 

distribution patterns and migration 

routes of these whales are not known. 

In the North Pacific, whaling for right 

whales began in the Gulf of Alaska 

(known to whalers as the ‘‘Northwest 

Ground’’) in 1835 (Webb, 1988). Right 

whales were extensively hunted in the 

western North Pacific in the latter half 

of the 19th century, and by 1900 were 

scarce throughout their range. Right 

whales were protected worldwide in 

1935 through a League ofNations 

agreement. However, because neither 

Japan nor the USSR signed this 

agreement, both nations asserted 

authority to continue hunting right 

whales until 1949 when the newlycreated International Whaling 

Commission endorsed the ban. Despite 

this ban, a total of 23 right whales were 

legally killed in the North Pacific by 

Japan and the USSR under Article VIII 

of theInternational Convention for the 

Regulation of Whaling (1946), which 

permits the taking of whales for 

scientific research purposes. However, it 

is now known that the USSR illegally 

caught many right whales in the North 

Pacific (Doroshenko, 2000; Brownell et 

al., 2001). In the eastern North Pacific, 

372 right whales were killed by the 

Soviets between 1963 and 1967; of 

these, 251 were taken in the Gulf of 

Alaska south of Kodiak, and 121 in the 

southeastern Bering Sea. These takes 

devastated a population that, while 

undoubtedly small, may have been 

undergoing a slow recovery (Brownell et 

al., 2001). 

As a result of this historic and recent 

hunting, right whales today are among 

the most endangered of all whales 

worldwide. In the western North Pacific 

(the Sea of Okhotsk and adjacent areas), 

current abundance is unknown but is 

probably in the low to mid-hundreds 

(Brownell et al., 2001). There is no 

estimate of abundance for the eastern 

North Pacific (Bering Sea, Aleutian 

Islands, and Gulf of Alaska), but 

sightings are rare. Most biologists 

believe the current population is 

unlikely to exceed a hundred 

individuals, and is probably much 

smaller. Prior to the illegal Soviet 

catches of the 1960s, on average, 25 

whales were observed each year in the 

eastern North Pacific (Brownell et al., 

2001); in contrast, the total number of 

records in the 35 years from 1965 to 

1999 was only 82, or an average of 2.3 

whales per annum. 

The current population size of right 

whales in the North Pacific is likely 

fewer than 1,000 animals. Exploitation 

by commercial whaling reduced the 

North Pacific right whales nearly to the 

point of extinction by the beginning of 

the 20th century. There are insufficient 

data to estimate the pre-exploitation size 

of this or any other species of right 

whale. Based upon catch levels, it is 

reasonable to assume there were in 

excess of 10,000 animals in the North 

Pacific. Based upon the number of 

animals taken illegally by Soviets 

during the 1960s, there were at least 372 

right whales alive at that time. That 

estimate would not include right whales 

found in the western North Pacific. 

There are no reliable estimates of 

current abundance or trends for this 

species. Rice (1974) indicated only a 

few individuals remained in the eastern 

North Pacific management unit (i.e., 

within U.S. waters), and that the 

population was essentially extinct. 

Despite high levels of survey effort in 

the region, most notably from Japanese 

sighting surveys (Miyashita and Kato, 

1998), right whale sightings in the 

eastern North Pacific have been rare and 

geographically scattered (Perry et al., 

1999). 

Recent sightings of right whales in the 

eastern Bering Sea during the summer 

(Goddard and Rugh, 1998; Tynan, 1998, 

1999; Moore et al., 2000; LeDuc et al., 

2001; Tynan et al., 2001; Wade et al., 

2006) represent the first reliable 

observations of aggregations of right 

whales in the eastern North Pacific 

since the 1960s. Although a few calves 

have recently been documented in the 

eastern North Pacific (Goddard and 

Rugh, 1998; LeDuc, 2004; Wade et al., 

2006), these were the first such sightings 

in over a century (Brownell et al., 2001). 

These recent sightings, the first of which 

occurred in 1996, and other surveys 

(directed specifically at right whales or 

otherwise) have detected small numbers 

of right whales in the southeastern 

Bering Sea, including an aggregation 

estimated at 24 animals in the summer 

of 2004. Photo-identification and 

genetic data have identified 17 

individuals from the Bering Sea, and the 

high inter-annual resighting rate further 

reinforces the idea that this population 

is small. Right whales have also been 

sighted in the northern Gulf of Alaska, 

including sightings in 2005 and 2006. 

However, the overall number of right 

whales using habitats in the North 

Pacific other than the Bering Sea is not 

known. 

Prior to the onset of commercial 

whaling in 1835, right whales were 

widely distributed across the North 

Pacific (Scarff, 1986; Clapham et al., 

2004; Shelden et al., 2005). However, no 

reason exists to suspect that the right 

whales that remain alive today inhabit 

a substantially different range than right 

whales alive during the time of the 

Soviet catches; indeed, given the 

longevity of this species, it is likely that 

some of the individuals who survived 

that whaling episode remain extant. 

Both the southeastern Bering Sea and 

the western Gulf of Alaska (shelf and 

slope waters south of Kodiak) have been 

the focus of many sightings (as well as 

the illegal Soviet catches) in recent 

decades. In general, the majority of 

northern right whale sightings 

(historically and in recent times) in the 

Northeast Pacific have occurred from 

about 40°N to 60°N latitude (lat.). There 

are historical records from north of 

60°N. lat., but these are rare and are 

likely to have been misidentified 

bowhead whales. Right whales have on 

rare occasions been recorded off 

California and Mexico, as well as off 

Hawaii. However, as noted by Brownell 

et al. (2001), there is no evidence that 

either Hawaii or the west coast of North 

America from Washington State to Baja 

California were ever important habitats 

for right whales. Given the amount of 

whaling effort as well as the human 

population density in these regions, it is 

highly unlikely that substantial 

concentrations of right whales would 

have passed unnoticed. Furthermore, no 

archaeological evidence exists from the 

U.S. west coast suggesting that right 

whales were the target of local native 

hunts. Consequently, the few records 


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from this region areconsidered to 

represent vagrants. We have determined 

the range of the North Pacific right 

whale extends over a broad area of the North Pacific Ocean as depicted in 

Figure 1. 

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Listing Determinations Under the ESA 

The ESA defines an endangered 

species as one that is in danger of 

extinction throughout all or a significant 

portion of its range, and a threatened 

species as one that is likely to 

becomeendangered in the foreseeable 

future throughout all or a significant 

portion of its range (sections 3(6) and 

3(20), respectively). The statute requires 

us to determine whether any species is 

endangered or threatened because of 

any one of the following five factors: (1) 

the present or threatened destruction, 

modification or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) theinadequacy of existing 

regulatory mechanisms; or (5) other 

natural or manmade factors affecting its 

continued existence (section 4(a)(1)(A)- 

(E)). We are to make this determination 

based solely on the best available 

scientific information after conducting a 

review of the status of the species and 

taking into account any efforts being 

made by states or foreign governments 

to protect the species. The focus of our 

evaluation of the ESA section 4(a)(1) 

factors is to evaluate whether and to 

what extent a given factor represents a 

threat to the future survival of the 

species. The focus of our consideration 

of protective efforts is to evaluate 

whether and to what extent they address 

the identified threats and so ameliorate 

a species’ risk of extinction. The steps 

we follow in implementing this 

statutory scheme are to: (1) delineate the 

species under consideration; (2)review 

the status of the species; (3) consider the 

ESA section 4 (a)(1) factors to identify 

threats facing the species; (4) assess 

whether certain protective efforts 

mitigate these threats; and (5) predict 

the species’ future persistence. 

Review of ‘‘Species’’ Delineation 

Since 1974, NMFS has maintained the 

right whale listing as originally listed by 

the United States Fish and Wildlife 

Service (USFWS) under the Endangered 

Species Conservation Act of 1969, the 

precursor to the Endangered Species Act 

of 1973 (16 U.S.C. 1531 et seq.; the 

ESA)(35 FR 18319, December 2, 1970)—

Eubalaena spp., i.e., all the species 

within the genus Eubalaena. The 

USFWS maintains the official lists of 

threatened and endangered species and 

isrequired to add species to the official 

lists when NMFS or USFWS determines 

species under itsjurisdiction should be 

listed. The USFWS has changed the 

nomenclature for right whales 

severaltimes over the years in various 

iterations of the list of threatened and 

endangered wildlife. NMFS also 

changed the nomenclature for a period 

of time after one of the USFWS changes, 

butlater reverted back to the original 

Eubalaena spp. listing. The changes may 

have been made as a reflection of the 

discussion in the scientific literature 

over the appropriate taxonomic status of 

right whales. At no point did the 

USFWS ever propose delisting any of 

the species that were included in the 

original listing of Eubalaena spp. 

Regardless of the changes to the list, 

NMFS maintains that right whale 

species were listed as Eubalaena spp., 

which reflects the predominant view 

that existed in 1974: that right whale 

species are distinct from bowhead 

whales (Balaena mysticetus), they 

belong in the genus Eubalaena, and the 

genus Eubalaena contains at least 

twospecies: E. glacialis in the northern 

hemisphere and E. australis in the 

southern hemisphere. 

Recent investigations of right whale 

genetics confirm the distinction 

between E. glacialis and E. australis at 

the species level and suggest that the 

North Pacific form of E. glacialis should 

be recognized as a separate species and 

named E. japonica, distinct from the 

other two species. NMFS is proposing to 

adopt this view and, in a separate 

rulemaking, to modify its listing to add 

E. japonica to the current listing 

Eubalaenaspp. (which includes E. 

glacialis and E. australis). 

Taxonomy of Right Whales 

All whales belong to the mammalian 

order Cetacea, which is divided into two 

suborders: Odontoceti (toothed whales) 

and Mysticeti (baleen whales). The 

Mysticeti are further dividedinto four 

families: the Eschrichtidae, a monotypic 

family (i.e., containing only one 

species), the gray whale; Neobalaenidae, 

another monotypic family containing 

only the pygmy right whale;Balaenidae, 

which contains two genera: 

Balaena(bowhead whales) and 

Eubalaena (right whales); and 

Balaenopteridae, which contains all of 

the other baleen whales. 

Balaena is the genus name for the 

bowhead whale (Balaena mysticetus), 

recognized byLinnaeus in 1758. 

Eubalaena is the genus name for right 

whales, first proposed by Gray in 1864. 

The first right whale to be named was 

what we today call the North Atlantic 

right whale or Nord-Kaper (Balaena 

glacialis, Muller, 1776), from North 

Cape, Norway. The second right whale 

to be named was what we today call the 

North Pacific right whale (Balaena 

japonica, Lacepede,1818), from Japan. 

And the third right whale to be named 

was what we today call the Southern 

right whale (Balaena australis, 

Desmoulins, 1822), from Algoa Bay, 

Cape of Good Hope, South Africa. In the 

1970s when all baleen whales were 

being considered for listing as 

endangered under the Endangered 

Species Conservation Act of 1969, 

authors disagreed on the taxonomic 

status of right whales. One view was 

that they belonged in the genus Balaena 

along with bowhead whales and that the 

genus contains two species: Baleana 

mysticetus and Baleana glacialis (Rice, 

1977). The subspecific composition of 

B. glacialis was unclear. The other view 

was that right whales were distinct from 

bowhead whales at the genus level and 

that right whales should be identified as 

Eubalaena (Schevill, 1986). This later 

view is currently the prevailing view, 

and it is the view embraced by USFWS 

and NMFS. 

There were also two views about the 

species composition of Eubalaena. One 

view was that there was only one 

species Eubalaena glacialis containing 

several subspecies (E. glacialis glacialis 

(North Atlantic), E. glacialis sieboldii 

(North Pacific), and E. glacialis australis 

(Southern oceans)) (Tomilin, 1957). 

Hershkovitz (1966) also describes these 

three subspecies,except that he refers to 

North Pacific right whales as E. glacialis 

japonica. The other view was that 

Eubalaena comprised two species E. 

glacialis and E. australis (Omura, 1958; 

Omura et al.,1969). This is the view 

represented by the designation of 

Eubalaena spp. in the original listing by 

USFWS in 1970 and by NMFS in its first 

listing in 1974. Generally accepted 

taxonomic nomenclature recognized the 

term ‘‘spp.’’ as an abbreviation for 

multiple species within a genus. 

The two-species view is summarized 

by Perry et al.’s (1999) summary of 

morphological (Muller, 1954) and 

genetic data (Schaeff et al., 1991), both 

of which recognized distinct species in 

the northern and southern hemispheres. 

Cummings (1985) used E. australis for 

all right whales below the equator 

(southern right whales). The 

International Whaling Commission also 

recognizes the presence of two distinct 

species, E. glacialis and E. australis, in 

the schedule appended to the 

Convention in which species under 

purview of the Commission are listed. 

Conclusion 

Although the listing of right whales 

has changed from the original 

nomenclature of Eubalaena spp., there 

is no indication in the record that 

USFWS ever intended to delist any of 

the species contained in the original 

listing of the entire genus. Since the 


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original 1970 listing wasdescribed as 

‘‘Eubalaena spp.’’, the logical 

interpretation is that at least two species 

of right whalewere listed, the northern 

right whale (E. glacialis) and the 

southern right whale (E. australis), since 

‘‘spp.’’ refers to more than one species, 

not ‘‘subspecies.’’ Even if three separate 

species had been recognized in 1970, 

southern right whale (E. australis) 

would have been one of them. 

Eachplausible scenario results in the 

right whale in the Southern Hemisphere 

being recognized as a separate species. 

Since NMFS has maintained its listing 

as ‘‘Right whales, Eubalaena spp.’’, and 

USFWS has never proposed delisting 

any of the species included in the 

original listing, we conclude that both E. 

glacialis and E. australis were listed in 

1970, carried forward to the list created 

pursuant to the ESA, and determined to 

be endangered in our listing in 1974. 

Right Whale Species Currently Being 

Considered for Listing 

Genetic data now provide 

unequivocal support to distinguish 

three right whale lineages as separate 

phylogenetic species: (1) the North 

Atlantic right whale (Eubalaena 

glacialis), ranging in the North Atlantic 

Ocean; (2) the North Pacific right whale 

(Eubalaena japonica), ranging in the 

North Pacific Ocean, and (3) the 

southern right whale (Eubalaena 

australis), historically ranging 

throughout the southern hemisphere’s 

Oceans (Rosenbaum et al., 2000). Based 

on evidence from recent genetic studies 

(Gaines et al., 2005), we conclude that 

the current taxonomic classification of 

right whales in the northern hemisphere 

should be revised consistent with the 

generally accepted analyses by 

Rosenbaum et al. (2000). We have 

determined that listing right whales in 

the North Atlantic and the North Pacific 

as two separate species is warranted in 

light of the compelling evidence 

provided by recent scientific studies on 

right whale taxonomy and classification. 

In accordance with the applicable 

statutory definitions and requirements, 

the North Atlantic right whale (E. 

glacialis) and the North Pacific right 

whale (E. japonica) are being considered 

for listing as separate species under the 

ESA. 

Refining the taxonomy of these 

endangered cetaceans is critical to the 

recovery planning and conservation of 

these species. The separate listings of 

these two species in the northern 

hemisphere will allow for consistent 

scientific practice and management 

policies in recovering these species. 

Status of the Three Right Whale Species 

The determination that right whales 

in the North Atlantic and North Pacific 

Oceans are two separate species requires 

us to consider these species separately 

for the purposes of listingunder the 

ESA. We will consider the status of the 

North Pacific right whale (E. japonica) 

in this proposed rule and that of the 

North Atlantic right whale (E. glacialis) 

in a separate proposed rule in today’s 

issue of the Federal Register. At the 

final rule stage, we will address both 

species in the same rule so that any 

changes become effective together. The 

southern right whale, E. australis, will 

remain listed as endangered, though we 

intend to conduct a 5-year review of its 

status in the near future. In the 

following discussion of the status of the 

North Pacific right whale, E. japonica, 

we provide the rationale for today’s 

proposal to list this species as a separate 

endangered species. The other proposed 

rule in today’s issue of the Federal 

Register provides the rationale for this 

proposal to list the North Atlantic right 

whale, E. glacialis, as a separate 

endangered species. We also identify 

the southern right whale, E. australis 

(one of two species that was listed in 

1970 and is still listed) in the regulatory 

language as a separate endangered 

species and remove Eubalaena spp. 

from the list. 

Status of the North Pacific Right Whale 

(Eubalaena japonica) 

Abundance and Trends 

The basic life history parameters and 

census data, including population 

abundance, growth rate, age structure, 

breeding ages, and distribution, remain 

undetermined for North Pacificright 

whale. To date, the largest number of 

North Pacific right whale individuals 

identified in the eastern Bering Sea is 23 

(based on genetic sampling), while 

abundance in the western NorthPacific 

appears to number fewer than 1,000 

individuals (with a minimum estimate 

near 400). Abundance estimates and 

other vital rate indices in both the 

eastern and western North Pacificare not 

well established. Where such estimates 

exist, they have very wide confidence 

limits. 

Life History Characteristics 

Although there are no data for the 

North Pacific, studies of other right 

whale populations suggest calving 

intervals of 3–6 years, lifespans of up to 

70 years, and growth rates that are likely 

dependent on feeding success (Reynolds 

et al., 2002; Kenney, 2002). Long-lived 

organisms have limited abilities to 

respond to chronic increases in juvenile 

mortality and even lesser abilities to 

respond to increased mortality through 

commercial harvest of juveniles and 

adults (Congdon et al., 1993). Life 

history characteristics such as low 

reproductive rates, delayed sexual 

maturity, and reliance on high juvenile 

survivorship make long-lived species 

such as whales particularly vulnerable 

to overexploitation. This likely explains 

the paucity of sightings in the North 

Pacific following the illegal kills by 

Soviet whalers in the 1960s. The effects 

of past commercial and illegal harvests 

persist. These removals remain an 

obstacle to the recovery of the North 

Pacific right whale, despite the 

cessation of such whaling. 

Distorted Age, Size or Structure of the 

Population, and Reduced Reproductive 

Success 

To date, photogrammetric data in the 

Bering Sea have been collected 

primarily for adult animals (LeDuc et 

al., 2001). Of the 12 whales for which 

lengths were determined (range: 14.7- 

17.6m), none were smaller than the 

smallest length estimate for sexually 

mature right whales (13–16m: Kenney, 

2002). Length measurements for two 

whales observed off California suggestat 

least one of these whales was not yet 

sexually mature (12.6m: Carretta et al., 

1994). The presence of two calves 

during the 2004 season in the Bering 

Sea (Wade et al., 2006) is encouraging. 

However, to date, there is no evidence 

of reproductive success (i.e., young 

reared to independence) in the eastern 

North Pacific. No data are available for 

the western North Pacific. 

Genetic Diversity 

The Allee effect has been defined as 

the impact of reduced social 

interactions and loss of mating 

opportunities in a small population. 

Marine mammal populations with an 

effective population size of a few dozen 

individuals are usually sufficiently large 

to avoid most of the deleterious 

consequences of inbreeding (Lande, 

1991). Theoretically, during a rapid 

decline in population size, nearly all 

(i.e., >95 percent) of the diversity in a 

population is maintained in an effective 

population of 10 individuals, and more 

than 99 percent of the diversity in a 

population is maintained in an effective 

population of 50 individuals (Ralls et 

al., 1983). However, it has been 

suggested that if the number of 

reproductive animals is fewer than 50, 

the potential for impacts associated with 

inbreeding depression increases 

substantially (IUCN, 2003). In 2002, the 

ratio of right whale females to males 

biopsied in the Bering Sea was 1:9. In 


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2004, biopsy results indicated a ratio of 

7:16. Excluding the two male calves 

from the sample and assumingall other 

whales were adults, a 1:2 ratio of 

females to males can be estimated, with 

a possible effective abundance of 21. 

Although there is some evidence of 

mating success among NorthPacific 

right whales, the extent of reproductive 

success has not been quantified. 

Habitat Specificity or Site Fidelity 

Other large whale populations such as 

humpback whales (Megaptera 

novaeangliae) appear to use common 

breeding grounds with a ‘‘maternally 

directed site-fidelity to specific feeding 

grounds’’ (Baker et al., 1990, 1994; Palsb 

ll et al., 1995, 1997; Larsen et al., 1996). 

Genetic sampling revealed similar 

patterns in western North Atlantic right 

whales (E. glacialis), indicating this 

population probably occupies a single 

breeding area but segregates into 

distinct,maternally-linked 

subpopulations during migration to 

isolated nursery areas (Schaeff et al., 

1993). There is some suggestion of site 

fidelity among right whales found in the 

Bering Sea. Ofthe whales observed 

between 1997 and 2004, at least five 

were photographed and five were 

biopsied over multiple years. It is 

possible that similar site fidelity is 

occurring in the westernNorth Pacific. It 

is not known where these animals 

overwinter, nor if they share a common 

wintering area. This is a critical gap in 

understanding dynamics of right whales 

in the NorthPacific Ocean. 

Summary of Factors Affecting the North 

Pacific Right Whale 

Section 4(a)(1) of the ESA and the 

listing regulations (50 CFR part 424) set 

forth procedures for listing species. We 

must determine, through the regulatory 

process, if a species isendangered or 

threatened because of any one or a 

combination of the following factors: (1) 

the present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (3) disease 

orpredation; (4) the inadequacy of 

existing regulatory mechanisms; and (5) 

other natural or manmade factors 

affecting its continued existence. A 

discussion of these considerations 

follows: 

The Present or Threatened Destruction, 

Modification, or Curtailment of Habitat 

or Range 

One potential source of habitat 

degradation for baleen whales is spilled 

oil. Data on the effects of oil pollution 

on cetaceans are inconclusive (Geraci, 

1990; Loughlin, 1994). However, general 

concerns with regard to oil pollution, 

some of which are direct impacts on the 

whales rather than habitat impacts, are 

ingestion of contaminated prey, 

potential irritation of skin and eyes, 

inhalation of toxic fumes, and 

abandonment of polluted feeding 

habitat (Geraci and St. Aubin, 1980; 

Geraci, 1990). Although there is 

currently no oil exploration or 

production underway in known right 

whale habitat in offshore areas of the 

Bering Sea or Gulf of Alaska, and 

limited activity elsewhere in the 

species’ range, the possibility remains 

that there will be lease sales in these 

areas in the future. Furthermore, large 

amounts of oil are transported by ship 

alongthe western North American coast 

through areas that have been used by 

right whales in the past, and where they 

have been occasionally seen recently 

(Brownell et al., 2001). 

The Minerals Management Service 

(MMS) has proposed an Outer 

Continental Shelf (OCS) leasing for 

conducting lease sales for the North 

Aleutian Basin (in the southeast Bering 

Sea) in 2010 and 2012. This planning 

area is presently under a moratorium 

from OCS leasing by Presidential 

Executive Order. It is unknown whether 

the moratorium may be lifted or to what 

extent these activities may disturb or 

otherwise affect right whales. In 

addition to oil and gas exploration and 

development, undersea exploration and 

development of mineral deposits may 

affect the habitat of the North Pacific 

right whale. Development of oil fields 

off the Sakhalin Islands is also occurring 

within habitat of the western North 

Pacific population of the North Pacific 

right whale. The effect on habitat of 

shipping or oil and gas development is 

unclear. 

Right whale life history characteristics 

make them very slow to adapt to rapid 

changes in their habitat (Reynolds et 

al.., 2002). They are also feeding 

specialists that require exceptionally 

high densities of their prey 

(Baumgartner and Mate, 2003; 

Baumgartner et al., 2003). Zooplankton 

abundance and density in the Bering 

Sea has been shown to be highly 

variable, affected by climate, weather, 

and ocean processes and in particular 

ice extent (Napp and Hunt, 2001; Baier 

and Napp, 2003). The largest 

concentrations of copepods occurred in 

years with the greatest southern extent 

of sea ice (Baier and Napp, 2003). It is 

possible that changes in ice extent, 

density, and persistence may alter the 

dynamics of the Bering Sea shelf 

zooplankton community and in turn 

affect the foraging behavior and success 

of right whales. No data are available for 

the western North Pacific. 

Chemical contaminants are an 

additional potential source of habitat 

degradation for right whales. The direct 

impact of chemical contaminants on 

right whales is uncertain. O’Shea 

andBrownell (1994) conclude that there 

is currently no evidence for significant 

contaminant-related problems in baleen 

whales. Although additional research is 

needed, existing data on mysticetes 

indicate that the lower trophic levels at 

which these animals feed should result 

in smaller contaminant burdens than 

would be expected in many 

odontocetes, which typically show 

burdens that differ from those of baleen 

whales by an order of magnitude 

(O’Shea and Brownell, 1994). However, 

the manner in which pollutants 

negatively impact animals is complex 

and difficult to study, particularly in 

taxa (such as large whales) for which 

many of the key variables and pathways 

are unknown (Aguilar, 1987; O’Shea 

and Brownell, 1994). The transgenerational accumulation of 

contaminants (Colborn and Smolen, 

1996) is perhaps a more likely source for 

concern, but this remains unstudied in 

right whales or any other cetacean. 

Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

North Pacific right whales were 

heavily exploited by commercial 

whalers during the 19th and 20th 

centuries. The IWC estimates 15,451 

right whales were taken in the North 

Pacificbetween 1840 and 1909 

(Brownell et al., 1986). There were 741 

recorded catches of right whales in the 

North Pacific in the 20th century (411 

in the eastern unit and 330 in the 

western unit)(Brownell et al., 2001). 

According to Estes (1979) and Congdon 

et al. (1993), long-lived organisms have 

limited abilities to respond to chronic 

increases in juvenile mortality and 

evenless ability to respond to increased 

mortality through commercial hunting 

of juveniles and adults. Life history 

characteristics such as low reproductive 

rates, delayed sexual maturity, and 

reliance on high juvenile survivorship 

make long-lived species such as whales 

particularly vulnerable to 

overexploitation. Commercial whaling 

very likely reduced the genetic 

variability of the North Pacific right 

whale. The small, remnant populations 

that survived commercial whaling likely 

lost genetic variability because of 

genetic drift and inbreeding, further 

confounding conservation and recovery 

efforts. 


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Currently, the IWC has assigned 

‘‘Protected Stock’’ status to all stocks of 

right whales (IWC, 1995). The catch 

quota for these whales is therefore set at 

zero for all signatory nations at the IWC. 

The Soviet Union killed right whales 

illegally for commercial purposes in the 

OkhotskSea/Kuril Islands (reported as 

‘‘hundreds’’ by Yablokov (1994), 

although this is known to include 

bowhead whales). Furthermore, the 

Soviets killed 372 right whales in the 

eastern North Pacific(notably in the 

Bering Sea and Gulf of Alaska) in the 

1960s (Doroshenko, 2000). These 

catches presumably occurred primarily 

during summer. 

Right whales were historically hunted 

by native peoples along the Northwest 

Pacific coast and in the Aleutian 

Islands, although the level of such take 

was probably insignificant. We haveno 

information on aboriginal harvests for 

the western North Pacific. However, 

given the current status of this species, 

the North Pacific right whale could not 

tolerate even a very low level of 

commercial or aboriginal hunt. While 

no hunting currently occurs on North 

Pacific right whales, the impact from 

historical commercial harvest persists 

and likely presents a threat to the 

recovery of the species throughout all of 

its range. These removals are the 

primary causative factor for thedecline 

of the North Pacific right whale, and the 

North Pacific right whale is in danger of 

extinction throughout its range because 

of historical and more recent whaling. 

There are no known recreational or 

educational uses of North Pacific right 

whales. However, if a right whale were 

to be seen in a highly accessible area, 

such as near the coast ofCalifornia, there 

could be a large response from whale 

watching operations trying to observe 

the whale. 

Scientific studies of right whales may 

involve close approaches to the animals 

for the purpose of photographs, genetic 

sampling, or tagging. These activities are 

controlled by permitsin both U.S. and 

Canadian waters, and potential negative 

impact on the animals is considered in 

the permitting process. While the 

potential for disturbance or harassment 

exists for scientificresearch, the overall 

impact from this activity on North 

Pacific right whales is likely minimal, 

and the information gained in this 

research may play a critical role in 

helping manage and recover the species. 

Disease or Predation 

Disease and predation are not 

believed to be factors causing the North 

Pacific right whale to be in danger of 

extinction. Very little is known about 

disease in, or predation on, NorthPacific 

right whales. There have been no 

recorded epizootics in baleen whales. 

Reeves et al. (2001) presented the results 

of a workshop on right whale 

reproduction, which considered 

fivepossible factors including disease as 

explanations for the decline in North 

Atlantic right whales. The information 

reviewed and summarized, along with 

associated caveats at this 

NMFSworkshop, are likely applicable to 

other balaenids (Reeves et al., 2001). 

The only four known cases of mass 

mortalities of baleen whales involved 

humpback whales (Megaptera 

novaeangliae) in the Northeast United 

States in 1987–1988, 2003, 2005, and 

2006. Geraci et al. (1989) provide strong 

evidence that, in the former case, these 

deaths resulted from consumption of 

mackerel whose livers contained high 

levels of saxitoxin, a naturally occurring 

red-tide toxin originating with 

dinoflagellate (Alexandrium spp). It has 

been suggested that red tide phenomena 

are related to increased freshwater 

runoff from coastal development, 

leading some observers to suggest that 

such events may become more common 

among marine mammals as coastal 

development increases. There is 

currently no evidence linking red tide 

toxins to deaths or chronic health 

problems in North Pacific right whales. 

It is not known whether right whales 

suffer from stress-induced bacterial 

infections similar to those observed in 

captive cetaceans (Buck et al., 1987). 

Studies of bowhead whaleskilled in the 

Alaskan native hunt have provided 

information on bacterial, mycotic, and 

viral infections, but not on the level to 

which they contribute to mortality and 

morbidity (Philo et al.,1993). Skin 

lesions, found on all the hunted 

bowhead whales, were not malignant or 

contagious. However, potentially 

pathogenic microorganisms inhabit 

these lesions and may contribute 

toepidermal necrosis and the spread of 

disease (Shotts et al., 1990). Exposure of 

these roughened areas of skin to 

environmental contaminants, such as 

petroleum products, could have 

significant effects (Albert, 1981; Shotts 

et al., 1990); however, Bratton et 

al.(1993) concluded that such 

encounters were not likely to be 

hazardous. The occurrence of skin 

lesions on North Atlantic right whales 

has been documented in recent years 

(Marx et al., 1999; Pettis et al., 2004). 

The origins and significance of these 

lesions are unknown, and further 

research is required to determine 

whether they represent a topical or 

systemic health problem for the affected 

animals.The system developed by Pettis 

et al. (2004) to assess health and body 

condition of North Atlantic right whales 

is currently being applied to 

photographs of North Pacific right 

whales. 

Predation of right whales by killer 

whales and large shark species is likely 

to occur, but the level is not 

documented, and no attacks have been 

observed. North Atlantic right 

whalesbearing scars from killer whale, 

Orcinus orca, attacks have been 

photographed (Kraus, 1990), but the 

number of whales killed by this 

predator is unknown (Perry et al., 1999). 

More recently, Mehta (2004) concluded 

that scars recorded on the flukes and 

bodies of North Atlantic right whales 

are more consistent with harassment by 

some smaller cetacean, possibly pilot 

whales, Globicephala spp., and do not 

originate from killer whales. 

Of 195 bowhead whales examined 

during the Alaskan subsistence hunt 

(1976–92), 8 had been wounded by 

killer whales (George et al., 1994). Seven 

of the eight bowhead whales were 

greater than 13 m in length, suggesting 

either that scars are accumulated over 

time, or young animals do not survive 

a killer whale attack. Hunters on St. 

Lawrence Island reported two small (<9 

m) bowhead whales found dead as a 

result of killer whale attacks (George et 

al., 1994). Bowhead whales are 

pagophilic (‘‘ice-loving’’), unlike right 

whales, and ice-covered waters 

mayprovide some protection from killer 

whale attacks. The frequency of attacks 

is unknown, and killer whale 

distribution in the North Pacific has not 

been well documented (George et al., 

1994). 

The Inadequacy of Existing Regulatory 

Mechanisms 

Right whales are protected under both 

U.S. and Canadian law, and 

internationally by the IWC. At present, 

there is no information to indicate that 

existing regulatory mechanisms 

areinadequate, resulting in activities 

having adverse effects on North Pacific 

right whales. If additional studies reveal 

that significant impacts are occurring, it 

may be necessary to enhanceexisting 

laws or promulgate new regulations to 

reduce or eliminate these threats. 

Other Natural or Manmade Factors 

Affecting its Continued Existence 

Vessel Collisions–The role vessel 

interactions play in the mortality of 

North Pacific rightwhales is not known. 

In the North Atlantic, ship collisions 

and fishing gear entanglements are the 

most common direct known causes of 

mortality in North Atlantic right whales 

(Kraus, 1990;Knowlton and Kraus, 1998; 

Gillespie and Leaper, 2001), but little is 


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known of the nature or extent of this 

problem in the North Pacific, and no 

collisions have been recorded. The 

areawhere right whales have been seen 

in recent surveys is not in a major vessel 

traffic lane. However, the proximity of 

the other known right whale habitats to 

shipping lanes (e.g., UnimakPass) 

suggests that collisions with vessels may 

represent a threat to North Pacific right 

whales. Because of the rarity of right 

whales, the impact to the species from 

even low levels ofinteraction could be 

significant. 

Fisheries Interactions–The eastern 

Bering Sea supports extensive fisheries, 

and, therefore, fishery interactions with 

right whales are possible. Types of gear 

that most frequently entangle North 

Atlantic right whales include pots and 

gillnets. Gillnet fisheries in the eastern 

Bering Sea occur in nearshore waters 

(state waters) not associated and 

generally not overlapping with known 

North Pacific right whale distribution. 

Pot fisheries occur in offshore waters, 

thoughthey are often prosecuted during 

seasons when right whales are not 

known to be present (i.e., winter). 

Entanglements of North Pacific right 

whales in fishing gear appear to be 

uncommon; though this may be due to 

the very low numbers of whales 

influencing the probability of encounter. 

Perry et al. (1999) reported two fisheryrelated mortalities due to entanglement 

in fishing gear from Russian waters 

(Kornev, 1994; NMFS, 1991). On review 

of the original records in the Platforms 

of Opportunity Program database, one of 

the encounters was actually a sighting 

and not an entanglement. Therefore, 

only one case of entanglement is known 

from the western North Pacific 

(Brownell et al., 2001), though the 

occurrence of right whales near pot 

fisheries in the Bering Sea creates a 

potential for interactions and, as with 

vessel collisions, the direct impact from 

even low levels of interaction could be 

significant. 

Several cases of entanglements of 

bowhead whales have been recorded 

during the Alaska Native subsistence 

hunt (Philo et al., 1992). These reports 

included three bowheads killed in 

thehunt with scars attributed to rope 

entanglements, one bowhead found 

dead entangled in ropes similar to those 

used with fishing gear in the Bering Sea, 

and one bowhead with ropes on it 

thatwere attributed to rigging from a 

commercial offshore fishing pot, most 

likely a crab pot. There have been two 

other recent reports of bowheads with 

gear attached or marks that likely 

werefrom crab gear (J. C. George, North 

Slope Borough, Barrow, AK, pers. 

comm.). Aerial photographs in at least 

two cases have shown ropes trailing 

from the mouths of bowheads (NMFS, 

NMML, unpublished data). A similar 

review of photographs of North Pacific 

right whales is planned. 

Injuries and entanglements that are 

not initially lethal may result in a 

gradual weakening of entangled 

individuals, making them more 

vulnerable to some other direct cause of 

mortality(Kenney and Kraus, 1993). 

Entanglement-related stress may 

decrease an individual’s reproductive 

success or reduce its life span, which 

may in turn depress population growth. 

Studies of scarring rates have been 

conducted in the North Atlantic to 

determine the frequency of right whale 

entanglements with fishing gear (Kraus, 

1990; Hamilton et al., 1998b). Studies of 

scarring rates among North Pacific right 

whales would be difficult due to the 

extreme rarity of this species, but may 

provide significant insight into the 

extent of this problem in the North 

Pacific Ocean. 

Noise–Noise pollution may also have 

an impact on critical behaviors of 

marine mammals (e.g., foraging, mating, 

nursing), although the effect is unclear. 

Richardson et al. (1995) provides a 

review of the impacts of noise on 

marine mammals. It is unclear whether 

activities, such as oil exploration and 

development and shipping, adversely 

affect critical behaviors such as 

reproductive success, population 

productivity, and feeding activity. Some 

observations suggest that marine 

mammals can habituate to high levels of 

sound (Geraci and St. Aubin, 1980). 

However, playback experiments on gray 

and bowhead whales indicate these 

whales actively avoid very loud sources 

of noise (Malme et al., 1983). 

While certain species of large whales 

have shown behavioral changes in 

response to anthropogenic noise in the 

marine environment, there have been 

few studies of the effects 

ofanthropogenic noise on right whales 

specifically. In right whales, the level of 

sensitivity to noise disturbance and 

vessel activity appears related to the 

behavior and activity in which they are 

engaged at the time (Watkins, 1986; 

Mayo, Watkins, and Kraus pers. comm., 

as cited in NMFS, 1991; Kraus and 

Mayo, unpubl. data as cited in NMFS, 

1991). In particular, feeding or courting 

right whales may be relatively 

unresponsive to loud sounds and, 

therefore, slow to react to approaching 

vessels or even oblivious to them. In 

general, the impact of noise from 

shipping or industrial activities on the 

communication, behavior, and 

distribution of right whales remains 

unknown. 

Conservation Efforts 

When considering the listing of a 

species, section 4 (b)(1)(A) of the ESA 

requires consideration of efforts by any 

State, foreign nation, or political 

subdivision of a State or foreignnation 

to protect such species. Such efforts 

would include measures by Native 

tribes and organizations, local 

governments, and private organizations. 

Also, Federal, tribal, state, andforeign 

recovery actions (16 U.S.C. 1533(f)), 

Federal consultation requirements (16 

U.S.C. 1536), and prohibitions on taking 

(16 U.S.C. 1538) constitute conservation 

measures. On March 28, 2003, we and 

USFWS (the Services) published the 

final policy for evaluating conservation 

efforts (PECE)(68 FR 15100). The PECE 

provides guidance on evaluating current 

protectiveefforts identified in 

conservation agreements, conservation 

plans, management plans, or similar 

documents (developed by Federal 

agencies, state and local governments, 

tribal governments, businesses, 

organizations, and individuals) that 

have not yet been implemented, or have 

been implemented but have not yet 

demonstrated effectiveness. The PECE 

establishes two basic criteria for 

evaluating current conservation efforts: 

(1) the certainty that the conservation 

efforts will be implemented, and (2) the 

certainty that the efforts will be 

effective. The PECE provides specific 

factors under these two basic criteria 

that direct the analysis of adequacy and 

efficacy ofexisting conservation efforts. 

North Pacific right whales benefit 

from protections afforded by the MMPA 

and the ESA (by virtue of their current 

inclusion as part of the endangered 

northern right whale). Also, theMarine 

Conservation Alliance, with support 

from NMFS, has developed an outreach 

program and informational brochures to 

be distributed throughout the 

commercial fishing industry to 

alertfishermen to the presence of right 

whales, and to take proactive measures 

to avoid interaction. This Alliance is 

also coordinating with commercial 

shipping interests to extend this 

network sothat it might reach the 

commercial cargo vessels that transit the 

North Pacific. The effectiveness of such 

voluntary measures has not been 

determined. 

The Canadian Department of Fisheries 

and Oceans has prepared a draft 

National Recovery Strategy for the North 

Pacific right whale (E. japonica) in 

Canadian waters in thePacific Ocean. At 

this time the document has not been 

finalized. 

Except for the IWC hunting ban noted 

above, we are not aware of any other 


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conservation efforts undertaken by 

foreign nations specifically to protect 

North Pacific right whales. We support 

the conservation efforts currently in 

effect; however, these efforts lack 

certainty of implementation and 

effectiveness. In developing our final 

listing determination, we will consider 

the best available information 

concerning these conservation efforts 

and any other protective efforts for 

which we have information. 

Proposed Listing Determination 

We have reviewed the status of the 

North Pacific right whale, considered 

the factors set forth in section 4 (a)(1) of 

the ESA, and taken into account any 

conservation efforts to protect the 

species. We conclude that the North 

Pacific right whale should be listed as 

an endangered species under the ESA 

because it is in danger of extinction 

throughout all of its range because of:(1) 

overutilization for commercial, 

recreational, scientific or educational 

purposes; and (2) other natural and 

manmade factors affecting its continued 

existence (see above for a description of 

these section 4 (a)(1) factors). This 

endangered determination is also 

supported by the fact that the factors 

confounding recovery have not been 

thoroughly identified and may continue 

to persist until more is known, and 

corrective actions can be taken. 

We also conclude that, at present, no 

protective or conservation measures are 

in place that substantially mitigate the 

factors affecting the future viability of 

this species. Based on the best available 

information, we propose to list the 

North Pacific right whale under the ESA 

as an endangered species. 

Prohibitions and Protective Measures 

Section 9 of the ESA prohibits certain 

activities that directly or indirectly 

affect endangered species. These 

prohibitions apply to all individuals, 

organizations, and agencies subject to 

U.S. jurisdiction. 

Sections 7(a)(2) and (4) of the ESA 

require Federal agencies to consult with 

us to ensure that activities they 

authorize, fund, or conduct are not 

likely to jeopardize the continued 

existence of a listed species or a species 

proposed for listing, or to destroy or 

adversely modify critical habitat or 

proposed critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with us. Examples of Federal actions 

that may affect the North Pacific right 

whale include oil and gas development, 

seismic exploration, emerging chemical 

contaminant practices, vessel 

operations, and fishery management 

practices. 

Sections 10(a)(1)(A) and (B) of the 

ESA authorize us to grant exceptions to 

the ESA’s Section 9 ’’take’’ prohibitions. 

Section 10(a)(1)(A) scientific research 

and enhancement permits may be 

issued to entities (Federal and nonfederal) for scientific purposes or to 

enhance the propagation or survival of 

a listed species. The type of activities 

potentially requiring a section 

10(a)(1)(A) research/enhancement 

permit include scientific research that 

targets North Pacific right whales. 

Under section 10(a)(1)(B), the Secretary 

may permit takings otherwise 

prohibited by section 9(a)(1)(B) if such 

taking is incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity. 

NMFS Policies on Endangered and 

Threatened Fish and Wildlife 

On July 1, 1994, we and FWS 

published a series of policies regarding 

listings under the ESA, including a 

policy for peer review of scientific data 

(59 FR 34270) and a policy to identify, 

to the maximum extent possible, those 

activities that would or would not 

constitute a violation of section 9 of the 

ESA (59 FR 34272). 

Role of Peer Review 

The intent of the peer review policy 

is to ensure that listings are based on the 

best scientific and commercial data 

available. Prior to a final listing, we will 

solicit the expert opinions of three 

qualified specialists, concurrent with 

the public comment period. 

Independent specialists will be selected 

from the academic and scientific 

community, Federal and state agencies, 

and the private sector. 

Identification of Those Activities That 

Would Constitute a Violation of Section 

9 of the ESA 

The intent of this policy is to increase 

public awareness of the effect of our 

ESA listing on proposed and ongoing 

activities within the species’ range. We 

will identify, to the extent known at the 

time of the final rule, specific activities 

that will be considered likely to result 

in violation of section 9, as well as 

activities that will not be considered 

likely to result in violation. Activities 

that we believe could result in violation 

of section 9 prohibitions against ‘‘take’’

of the North Atlantic right whale 

include, but are not limited to, the 

following: (1) Operating vessels in a 

manner that results in ship strikes or 

disrupts foraging, resting, or care for 

young; (2) fishing practices that can 

result in entanglement when lines, nets, 

or other gear are placed in the water 

column; (4) discharging or dumping 

toxic chemicals or other pollutants into 

areas used by North Pacific right 

whales; (5) scientific research activities; 

(6) Land/water use or fishing practices 

that result in reduced availability of 

prey species during periods when North 

Pacific right whales are present. 

We believe, based on the best 

available information, the following 

actions will not result in a violation of 

Section 9: (1) federally funded or 

approved projects for which ESA 

section 7 consultation has been 

completed, and that are conducted in 

accordance with any terms and 

conditions we provide in an incidental 

take statement accompanying a 

biological opinion; and (2) takes of 

North Pacific right whales that have 

been authorized by NMFS pursuant to 

section 10 of the ESA. 

These lists are not exhaustive. They 

are intended to provide some examples 

of the types of activities that we might 

or might not consider as constituting a 

take of North Pacific right whales. 

Critical Habitat 

Section 4(a)(3)(A) of the ESA requires 

that, to the maximum extent prudent 

and determinable, critical habitat be 

designated concurrently with the final 

listing of a species under the ESA. 

Critical habitat has previously been 

designated for the Northern right whale 

in the North Pacific Ocean (71 FR 

38277; July 6, 2006). The designation of 

the North Pacific right whale as a new 

species under the ESA necessitates the 

designation of critical habitat, replacing 

that previously designated. We intend to 

propose designation of critical habitat 

for the North Pacific right whale in a 

separate rulemaking. 

Public Comments 

To ensure that final action resulting 

from this proposed rule will be as 

accurate and effective as possible and be 

based upon the best available scientific 

and commercial information, we solicit 

comment from the public, other 

governmental agencies, the scientific 

community, industry, and any other 

interested parties. 50 CFR 424.16(c)(3) 

requires the Secretary of Commerce to 

promptly hold at least one public 

hearing if any person requests one 

within 45 days of publication of a 

proposed regulation to list a species 

under the ESA. Requests for public 

hearing must be made in writing (see 

DATES and ADDRESSES). Such hearings 

provide the opportunity for interested 

individuals and parties to give 

comments, exchange information and 

opinions, and engage in a 


sroberts on PROD1PC70 with PROPOSALS
77704 Federal Register / Vol. 71, No. 248 / Wednesday, December 27, 2006 / Proposed Rules 

constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in such ESA 

matters. 

Classification 

National Environmental Policy Act 

The 1982 amendments to the ESA, in 

section 4(b)(1)(A), restrict the 

information that may be considered 

when assessing species for listing to the 

best scientific and commercial data 

available. Based on this limitation of 

criteria for a listing decision and the 

opinion in Pacific Legal Foundation v. 

Andrus, 675 F 2d 825 (6th Cir.1981), we 

have concluded that ESA listing actions 

are not subject to the environmental 

assessment requirements of the National 

Environmental Policy Act. (see also 

NOAA Administrative Order 216–6.) 

Executive Order (E.O.) 12866, 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analysis 

requirements of the Regulatory 

Flexibility Act are not applicable to the 

listing process. In addition, this rule is 

exempt from review under E. O. 12866. 

This proposed rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations where a regulation will 

preempt state law, or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

statute). Neither of these circumstances 

is applicable to this proposed listing 

determination. In keeping with the 

intent of the Administration and 

Congress to provide continuing and 

meaningful dialogue on issues of mutual 

State and Federal interest, this proposed 

rule will be given to the relevant state 

agencies in each state in which the 

North Pacific right whale is believed to 

occur, who will be invited to comment. 

Government-to-Government 

Relationship With Tribes E.O. 13175 

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 toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. E. O. 13175 - Consultation and 

Coordination with Indian Tribal 

Governments- outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. 

We have determined the proposed 

listing of the North Pacific right whale 

would not have tribal implications, nor 

affect any tribal governments or issues. 

The North Pacific right whale is not 

hunted by Alaskan Natives for 

traditional use or subsistence purposes. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the NMFS (see ADDRESSES). 

List of Subjects in 50 CFR Part 224 

Administrative practice and 

procedure, Endangered and threatened 

species, Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Dated: December 20, 2006. 

Samuel D. Rauch III., 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend 50 CFR 

part 224 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. Revise § 224.101(b) to read as 

follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(b) Marine mammals. Blue whale 

(Balaenoptera musculus); Bowhead 

whale (Balaena mysticetus); Caribbean 

monk seal (Monachus tropicalis); 

Chinese river dolphin (Lipotes 

vexillifer); Cochito (Phocoena sinus); 

Fin or finback whale (Balaenoptera 

physalus); Hawaiian monk seal 

(Monachus schauinslandi); Humpback 

whale (Megaptera novaeangliae); Indus 

River dolphin (Platanista minor); 

Mediterranean monk seal (Monachus 

monachus); North Pacific right whale 

(Eubalaena japonica); Saimaa seal 

(Phoca hispida saimensis); Sei whale 

(Balaenoptera borealis); Sperm whale 

(Physeter catodon); Western North 

Pacific (Korean) gray whale 

(Eschrichtius robustus); Steller sea lion, 

western population, (Eumetopias 

jubatus), which consists of Stellar sea 

lions from breeding colonies located 

west of 144° W. longitude. 

* * * * * 

[FR Doc. 06–9908 Filed 12–26–06; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 061212328–6328–01; I.D. 

120706B] 

RIN 0648–XB58 

Endangered And Threatened Species; 

Proposed Endangered Status for North 

Atlantic Right Whales 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, NMFS, have completed a 

comprehensive status review of right 

whales in the northern hemisphere 

under the Endangered Species Act 

(ESA). Based on the findings from the 

status review, we have concluded these 

right whales exist as two species, the 

North Atlantic right whale (Eubalaena 

glacialis) and the North Pacific right 

whale (E. japonicus). We have also 

determined that each of these species is 

in danger of extinction throughout its 

range. To reflect this taxonomic 

revision, we are issuing two proposed 

rules to designate each separately as an 

endangered species. This proposed rule 

is to list the North Atlantic right whale; 

a proposed rule to list the North Pacific 

right whale is issued separately. We are 

soliciting public comment on this 

proposed listing determination. 

DATES: Comments on this proposed rule 

must be received by close of business on 

February 26, 2007. Requests for public 

hearings must be made in writing by 

February 12, 2007. 

ADDRESSES: Send comments to Mark 

Minton on the North Atlantic right 

whale. Comments may be submitted by: 

• E-mail: 

NARW.ProposedRule@noaa.gov. 

Include in the subject line the following 


sroberts on PROD1PC70 with PROPOSALS