65940 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

the Klamath-Siskiyou Mountains, and 

continuing east through the Southern 

Cascades (excluding the Sacramento 

Valley). This geographic area includes 

the following counties for new 

information: Coos, Curry, Douglas, 

Josephine, Jackson, Klamath, and Lane 

Counties in southern Oregon; and Butte, 

Del Norte, Humboldt, Lake, Mendocino, 

Plumas, Shasta Siskiyou, Tehama, and 

Trinity Counties in northern California. 

We will consider information from all 

interested parties. We are particularly 

interested in information concerning: 

(1) The historical and current status, 

range, distribution, and population size 

of this DPS, including information on 

denning sites. This includes information 

regarding population trend studies or 

occurrence data specific to this DPS, 

information regarding areas that have 

been surveyed compared to areas that 

have not been surveyed, and all positive 

and negative survey results to help us 

assess distribution and population 

trends. 

(2) The biological or ecological 

requirements for fishers, as well as 

information on population connectivity 

between occurrences of fishers across 

the NCSO DPS range. 

(3) Anticoagulant and neurotoxicant 

rodenticides, and other toxicants, 

including law enforcement information 

and trend data. 

(4) The threat of wildfire, including 

studies or information pertaining to 

current and future trends in wildfire 

frequency and severity, as well as 

information pertaining to the response 

of fishers to post-fire landscapes in the 

NCSO DPS of fisher. 

(5) Changes in low- to mid-elevation 

forests within the range of the NCSO 

DPS of fisher, including scope and 

extent of vegetation management on 

Federal and non-Federal lands. 

(6) The projected and reasonably 

likely impacts of climate change on the 

NCSO DPS of fisher and its habitat, 

including impacts to reproductive 

habitat. 

(7) Any effects associated with 

population size and isolation relevant to 

the NCSO DPS of fisher (e.g., low 

reproductive capacity, inbreeding 

depression, demographic and 

environmental stochasticity), and 

information on genetic diversity on the 

fisher. 

(8) Any conservation efforts designed 

to benefit fishers and their habitat 

within the NCSO DPS that have been 

planned or implemented after 2019, 

including both current, ongoing, or 

planned activities and possible effects of 

these activities on the species or its 

habitat. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

You may submit information by one 

of the methods listed in ADDRESSES. We 

request that you send information only 

by the methods described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Information and materials we receive 

will be available for public inspection 

on https://www.regulations.gov at 

Docket No. FWS–R1–ES–2023–0123. 

Authors 

The primary authors of this document 

are the staff members of the Fish and 

Wildlife Service’s Species Assessment 

Team. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2023–20826 Filed 9–25–23; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 230914–0218; RTID 0648– 

XR122] 

Listing Endangered or Threatened 

Species; 12-Month 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: Notice of 12-month petition 

finding. 

SUMMARY: We, NMFS, announce a 12- 

month determination on a petition to 

revise the critical habitat designation for 

the North Pacific right whale 

(Eubalaena japonica) under the 

Endangered Species Act (ESA). Based 

on our review of the best available 

information on North Pacific right 

whale habitat use, we intend to revise 

the critical habitat. This finding 

describes how we intend to proceed, 

particularly regarding analysis and 

review of the relevant data and 

information that have become available 

since North Pacific right whale critical 

habitat was designated in 2008. 

DATES: The finding announced in this 

document was made on September 26, 

2023. 

ADDRESSES: Copies of the petition, 90- 

day finding, and list of references for 

this 12-month finding are available 

online at: https://www.regulations.gov 

or from the NMFS website (see https:// 

www.fisheries.noaa.gov/action/criticalhabitat-north-pacific-right-whales). 

FOR FURTHER INFORMATION CONTACT: 

Jenna Malek, NMFS Alaska Region, 

jenna.malek@noaa.gov or (907) 271– 

1332. 

SUPPLEMENTARY INFORMATION: 

Background 

In April 2008, we issued a final rule 

designating approximately 95,325 

square kilometers (36,800 square miles) 

of critical habitat for North Pacific right 

whales in the Gulf of Alaska and the 

Southeast Bering Sea (73 FR 19000, 

April 8, 2008). On March 10, 2022, 

NMFS 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. The requested revision triggers a 

process for agency response as outlined 

in the ESA (16 U.S.C. 1531 et seq.) and 

explained below. 

The ESA defines critical habitat 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 

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 of Commerce (Secretary) 

that such areas are essential for the 

conservation of the species (16 U.S.C. 

1532(5)(A)). Joint NMFS–U.S. Fish and 

Wildlife Service 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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65941 

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 

methods or procedures useful in 

protecting physical or biological 

features essential to the conservation of 

the species (50 CFR 424.02). 

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

Secretary, through NMFS, 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. We 

may exclude any particular area from 

critical habitat if we determine that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless we 

determine, 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(a)(3)(A)(ii) of the ESA 

provides that NMFS may, from time-totime, revise critical habitat as 

appropriate. 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, NMFS make a 

finding on whether that petition 

presents substantial scientific 

information indicating that the 

petitioned revision may be warranted, 

and to promptly publish such finding in 

the Federal Register. On July 12, 2022 

(87 FR 41271), NMFS published a 90- 

day finding that the petition, viewed in 

the context of the information readily 

available in our files, presented 

substantial information indicating that 

revising North Pacific right whale 

critical habitat may be warranted and 

initiated a review of the current critical 

habitat designation. To ensure that our 

review of critical habitat is 

comprehensive and based on the best 

available scientific and commercial 

information, we requested scientific and 

commercial information concerning the 

petitioned action. 

Within 12 months of receiving a 

petition that presents substantial 

information indicating that a revision of 

critical habitat may be warranted, NMFS 

is required to determine how we intend 

to proceed with the requested revision 

and promptly publish notice of our 

intention in the Federal Register (16 

U.S.C. 1533(b)(3)(D)(ii)). The statute 

does not further specify any options or 

requirements regarding this 

determination, nor does it establish a 

timeline for issuance of any proposed 

rule to revise critical habitat in response 

to a petition. This notice describes the 

currently designated critical habitat and 

the petition for revision, summarizes 

comments on the 90-day finding, and 

describes how we intend to proceed 

with the requested revisions to critical 

habitat for the North Pacific right whale. 

Current Critical Habitat Designation 

Right whales in the North Pacific and 

North Atlantic were considered the 

same species, known as Northern right 

whales, until the late-2000s. North 

Pacific and North Atlantic right whales 

were listed as two unique species under 

the ESA in 2008 (73 FR 12024, March 

6, 2008) based on genetic analysis 

conducted in the early-mid 2000s 

(Rosenbaum et al. 2000, Gaines et al. 

2005, Kaliszewska et al. 2005). The 

critical habitat that had been originally 

designated for the North Pacific 

population in 2006 was finalized for the 

newly distinguished species in 2008 (73 

FR 19000, April 8, 2008). The final 

critical habitat designation identified 

two areas within the area known to be 

occupied by the whales and which 

contained essential features. The first 

area consists of approximately 3,050 

square kilometers (1,175 square miles) 

south of Kodiak Island. The second area 

is approximately 91,850 square 

kilometers (35,460 square miles) in the 

southeastern Bering Sea, just north of 

the Alaska Peninsula and the eastern 

Aleutian Islands. 

The critical habitat designation for 

North Pacific right whales uses the term 

primary constituent element (PCE) (50 

CFR 226.215; 73 FR 19000, April 8, 

2008). In 2016, as part of revisions to 

critical habitat implementing 

regulations in 50 CFR 424, the term 

‘‘PCE’’ was removed and the regulations 

maintained the statutory term, ‘‘physical 

or biological features’’ (PBFs) (81 FR 

7414, February 11, 2016). The shift in 

terminology did not change the 

approach used by NMFS in determining 

what areas qualify as critical habitat 

under the ESA. While little was known 

about the PBFs that might be essential 

for North Pacific right whale 

conservation at the time critical habitat 

was designated, based on known natural 

history of the whale and its habitat 

needs, the PBFs necessary for 

conservation were identified as 

concentrations of the copepod species 

Calanus marshallae, Neocalanus 

cristatus, and N. plumchrus, and the 

euphausiid species Thysanoessa raschii, 

in areas where right whales are known 

or thought to feed. In addition to the 

occurrence of large zooplankton, NMFS 

concluded that it is likely that certain 

physical forcing mechanisms are 

present in these areas and act to 

concentrate the identified prey species 

in densities that allow for efficient 

foraging by right whales (73 FR 19000, 

April 8, 2008). 

In the final critical habitat 

designation, NMFS determined that the 

economic benefits of excluding any 

particular areas within the overall area 

designated as critical habitat did not 

outweigh the benefits of designation, 

and therefore did not exclude any areas 

based on economic impacts. The final 

critical habitat designation considered 

the impacts to national security and did 

not find any national security interests 

or other relevant impacts that warranted 

the exclusion of any particular areas. 

Petition To Revise Critical Habitat 

On March 10, 2022, NMFS 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. 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 northern Gulf of 

Alaska and the southeast Bering Sea. 

The petitioners proposed 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). 

The standard for determining whether 

a petition includes substantial 

information is whether the information 

is credible scientific or commercial 

information in support of the petition’s 

claims such that a reasonable person 

conducting an impartial scientific 

review would conclude that the action 

proposed in the petition may be 

warranted (50 CFR 424.14(i)(1)(i)). 

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 

specified in 50 CFR 424.14(c) and (e), 

NMFS found that the petitioners had 


lotter on DSK11XQN23PROD with PROPOSALS1
65942 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

met this standard. NMFS therefore 

published a 90-day finding stating the 

petitioned action may be warranted and 

requesting information to inform our 

review of the current critical habitat 

designation (87 FR 41271, July 12, 

2022). 

Summary of Public Comments 

The public comment period 

announced in the 90-day finding closed 

on September 12, 2022, and all of the 

comments received can be viewed at 

https://www.regulations.gov by 

searching for docket number ‘‘NOAA– 

NMFS–2022–0050.’’ NMFS received 11 

comments from a variety of individuals 

and organizations, including 

researchers, concerned citizens, state 

and federal agencies, and nonprofit 

organizations. Of these, eight supported 

a revision of North Pacific right whale 

critical habitat. Three of the comments 

expressed concerns about the lack of 

data supporting the requested revision 

and the need to consider the economic 

impacts of such an action. Some 

commenters offered additional 

information, including information on 

recently funded projects on North 

Pacific right whales, sightings of North 

Pacific right whales since 1979, and 

reports describing organizational 

sustainability policies aimed at 

protecting marine mammals. The 

information included in the comments 

was taken into consideration during our 

review of the petitioned action and will 

be utilized in the process outlined in the 

‘‘How We Intend to Proceed’’ section of 

this document. A summary of the 

substantive comments and information 

submitted is below. Where appropriate, 

we have combined similar comments. 

Quantity and Quality of Currently 

Available Information 

Comment 1: One commenter 

expressed that the petition overstates 

the quantity and quality of the 

information that is available with 

respect to the essential habitat needs of 

North Pacific right whales. Though 

additional research conducted since the 

original designation of critical habitat in 

2008 suggests certain areas within the 

petitioned revision may be important for 

North Pacific right whales (e.g., Unimak 

Pass), the commenter stated that the 

data collected are still quite limited for 

making many of the assertions in the 

petition. For example, the commenter 

referred to the lack of data supporting 

connecting the currently designated 

critical habitat areas in the Bering Sea 

and Gulf of Alaska. The commenter 

urged that any revisions NMFS makes to 

critical habitat be based on the best 

available, albeit limited, data. 

Restrictions to Marine Shipping and 

Commercial Fishing, and Potential 

Economic Impacts 

Comment 2: Several commenters 

cautioned that any revision to critical 

habitat for North Pacific right whales 

needs to balance potential economic 

impacts with benefits to the species. 

Multiple comments addressed the 

implications in the petition that a 

revision to critical habitat for North 

Pacific right whales would allow NMFS 

to implement regulatory measures and 

protections that could affect commercial 

shipping and fishing activities, leading 

to economic impacts. Commenters 

stated that many communities in rural 

Alaska rely upon arrival of goods 

through commercial shipping and that 

changes to shipping regulations, such as 

reduced speeds through major 

transportation corridors (e.g., Unimak 

Pass), would cause financial and 

logistical difficulties in maintaining 

timely and efficient services to Alaskan 

ports and residents, while having little 

benefit for North Pacific right whales. 

Commenters pointed out that fishing 

is an economic driver for many coastal 

Alaskan communities. One commenter 

described how the designation of 

critical habitat for Steller sea lions (58 

FR 45269, August 27, 1993), and 

resulting fisheries closures, severely 

impacted commercial fisheries and the 

economies of communities that rely on 

this industry. The commenter expressed 

concern about similar impacts occurring 

as the result of a revision to North 

Pacific right whale critical habitat. It 

was also pointed out that there are 

multiple commercial fisheries of high 

value in the petitioned area that could 

suffer from substantial economic loss 

should closures or restrictions occur as 

a result of changes to critical habitat. 

Scope of Regulatory Requirements 

Comment 3: One commenter pointed 

out that the petition cites 50 CFR 

424.12(d) as support for adding all of 

the habitat between the two currently 

designated areas into a revision of 

critical habitat, but noted that these 

areas are over 350 mi (563 km) apart and 

therefore do not fit the regulatory 

criteria of being ‘‘in proximity to one 

another.’’ 

The same commenter also referenced 

NMFS’ criteria for designating critical 

habitat under 50 CFR 424.12, asserting 

that the petitioned revision to North 

Pacific right whale critical habitat 

would be different from other NMFS 

designations due to its very large size. 

Additionally, the commenter stated that 

the petition provides no evidence that 

the essential PBFs of North Pacific right 

whale critical habitat are present in 

large portions of the petition’s proposed 

area, and that NMFS must adhere to the 

requirements of the ESA by 

demonstrating that these features are 

present in any areas included in a 

critical habitat revision. 

Adequacy of Existing Regulatory 

Mechanisms 

Comment 4: Multiple commenters 

stated that the current regulatory 

mechanisms in place are inadequate to 

mitigate death and serious injury of 

North Pacific right whales from threats 

such as vessel strikes and entanglement 

in fishing gear, which are known to be 

the two biggest anthropogenic threats to 

North Atlantic right whales. Revision of 

critical habitat for North Pacific right 

whales could allow NMFS to require 

reasonable and prudent measures for 

avoiding threats from vessel strikes, 

entanglement in fishing gear, oil and 

chemical spills, and exploratory 

activities associated with the oil and gas 

industry. 

Comment 5: One commenter 

conducted their own analysis of vessel 

traffic in the petition’s proposed area 

and currently designated critical habitat. 

That comment contained a figure 

showing Unimak Pass as a bottleneck 

for vessel traffic, which could overlap 

with whales migrating through this area. 

Though the commenter acknowledged 

that NMFS could implement 

conservation measures and protections 

such as restricting ship speeds, they also 

acknowledged there would be 

challenges to enacting regulations and 

that proper analysis (i.e., economic, 

national security impacts) must be 

conducted and notice given to 

potentially affected parties. 

New Information on North Pacific Right 

Whale Habitat and Habitat Use 

New information on habitat use has 

become available since critical habitat 

was designated for North Pacific right 

whales in 2008. NMFS has been 

collecting passive acoustic data in the 

Bering Sea, as well as in parts of the 

northern Gulf of Alaska, that has 

advanced the scientific understanding 

of North Pacific right whale habitat use, 

including in currently designated 

critical habitat. Sightings have been 

reported through dedicated research 

surveys (2007–2010), opportunistic 

research cruises, and opportunistic 

reports from fishers and local 

community members. While there have 

been sightings of North Pacific right 

whales in the currently designated 

critical habitat areas since 2008, 

numerous sightings have occurred 

outside of the critical habitat in both the 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 65943 

Gulf of Alaska and the Bering Sea. For 

example, between 2010 and 2020, there 

were three sightings in the Gulf of 

Alaska in Shelikof Strait and along the 

Alaska Peninsula (J. Crance, NOAA 

Alaska Fisheries Science Center, 

personal communication, April 2023), 

as well as a sighting of two right whales 

feeding just north of Unimak Pass in 

February 2022 (NMFS 2022). 

Additionally, acoustic monitoring with 

sonobuoys (expendable sonar buoys) 

indicated that right whales were present 

outside the boundaries of critical habitat 

near Kodiak Island in the Gulf of Alaska 

in 2021, and off St. Lawrence Island in 

the northern Bering Sea in 2018 (Wright 

et al. 2019). These sightings and 

acoustic detections suggest that North 

Pacific right whales are utilizing habitat 

outside of the currently designated 

critical habitat areas. Given that the 

2008 designation relied on right whale 

sightings as a proxy for the presence of 

the essential features for determining 

the critical habitat boundaries (73 FR 

19000, April 8, 2008), the areas where 

North Pacific right whales have been 

sighted or detected in the last 15 years 

are likely candidates for critical habitat 

designation, and will be considered 

further in conjunction with other 

available scientific information. 

The North Pacific has undergone 

substantial oceanographic shifts since 

2008, including marine heatwaves in 

2013–2016, 2017–2018, and 2019–2021, 

that have affected the distribution and 

abundance of zooplankton, multiple 

species of which are the essential 

feature NMFS identified for the existing 

North Pacific right whale critical 

habitat. There has also been a trend 

toward decreasing sea ice extent in the 

Bering Sea, with 2018 having the lowest 

sea ice extent on record (Stabeno and 

Bell 2019). As discussed below, the 

extent of sea ice and resulting ocean 

temperature conditions are closely 

linked to the abundance and 

distribution of zooplankton species that 

North Pacific right whales rely on for 

prey. Using the best available 

information, all of these factors need to 

be considered, along with the potential 

impacts of a revised critical habitat 

designation, to assess any revision 

NMFS will propose for North Pacific 

right whale critical habitat. 

How We Intend To Proceed 

Given the acoustic detections and 

sightings supporting North Pacific right 

whales’ use of areas outside of the 

currently designated critical habitat and 

the recent shifts in the essential features 

of critical habitat (i.e., certain 

zooplankton species), we intend to 

revise critical habitat. We will proceed 

by analyzing the available acoustic 

detections, sightings, and relevant 

habitat data with the expectation of 

developing a proposed rule to revise 

critical habitat for North Pacific right 

whales. Below, we identify key steps we 

will take to help ensure that, in 

developing a proposed rule, we rely on 

the best scientific and commercial data 

available and meet the statutory 

requirements for designating or revising 

critical habitat. 

Step 1: Analyze Acoustic Data Collected 

in Areas Recommended by the 

Petitioners and Currently Designated as 

Critical Habitat 

NMFS has been using year-round 

passive acoustic moorings to collect 

data in the Bering Sea since 2007, and 

in the western Gulf of Alaska starting in 

2019. Acoustic data relevant to the 

revision that can be processed and 

summarized in a timely manner will be 

made available in a report. NMFS 

anticipates that this report will be one 

of the best sources of information to aid 

in the decision on how to revise critical 

habitat (Baumgartner et al. 2013, Wright 

et al. 2018, 2019). 

Step 2: Assess Spatial and Temporal 

Patterns of Prey Species (i.e., Copepods 

and Euphausiids) in Conjunction With 

Oceanographic Information 

The PBFs for currently designated 

North Pacific right whale critical habitat 

include prey species (i.e., copepods and 

euphausiids) in areas where right 

whales are known or believed to forage. 

In the original designation of critical 

habitat, evidence of right whales feeding 

for prolonged periods in a specific area 

in spring and summer was used as a 

proxy for the existence of densities of 

prey suitable for foraging whales. 

Oceanographic conditions have 

shifted since the initial designation of 

critical habitat, with changes occurring 

in sea ice distribution and timing, 

impacting the availability of 

zooplankton species that make up the 

PBFs of North Pacific right whale 

habitat (e.g., Kimmel et al. 2018). As 

North Pacific right whales are 

dependent on certain zooplankton as 

prey, understanding how copepods, 

specifically C. marshallae, Neocalanus 

spp., and euphausiids (krill) have and 

are responding to environmental cues in 

the Bering Sea and northern Gulf of 

Alaska is central to assessing how to 

revise the critical habitat. We will 

utilize available data on spatial and 

temporal zooplankton trends in our 

analysis outlined in Step 4 below. 

Step 3: Analyze Sighting Data for 

Evidence of Feeding Behavior 

As described in the previous section, 

we used sightings of feeding North 

Pacific right whales as a proxy for 

suitable abundances of prey in the 2008 

critical habitat designation. There have 

been some subsequent sightings for 

which it can be confirmed by photo or 

video, or through visual confirmation of 

the reporting party, that North Pacific 

right whales were feeding. We will 

analyze available sighting reports to 

better understand where right whale 

feeding activity has been documented 

since critical habitat was designated. 

Step 4: Synthesize Available Acoustics 

Data, Trends in Zooplankton, and 

Sightings Data To Identify Areas That 

Meet the Definition of Critical Habitat 

Available acoustic data, relevant 

information on zooplankton and 

oceanographic features, and sighting 

records providing evidence of feeding 

will be evaluated by NMFS together 

with any other best available scientific 

data. This synthesis will help identify 

where zooplankton prey species and 

North Pacific right whale foraging are 

likely to occur and provide support for 

the revision of critical habitat, as well as 

any revisions to the PBFs that may be 

appropriate. These results will then be 

used to identify areas that meet the 

definition of critical habitat and will be 

included in the proposed rule described 

in Step 6. 

Step 5: Section 4(b)(2) Impacts Analysis 

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

to use the best scientific data available 

in designating critical habitat. It also 

requires that we consider the economic 

impact, impact on national security, and 

any other relevant impact of designating 

any particular area as critical habitat. 

Therefore, we will analyze and consider 

potential economic, national security, 

and any other relevant impacts prior to 

proposing any revisions to the 

designated critical habitat. This analysis 

will inform our decision whether to 

propose the exclusion of any areas that 

fit the definition of critical habitat. 

Step 6: Develop Proposed Rule for 

Public Comment 

Steps 1–5 will inform our 

determination of what areas qualify as 

critical habitat for North Pacific right 

whales and thus what revisions to 

propose to the currently designated 

areas. The underlying science will be 

subject to peer review according to the 

Office of Management and Budget 

Bulletin for Peer Review, implemented 

under the Information Quality Act (Pub. 

L. 106–554). We will publish a proposed 


lotter on DSK11XQN23PROD with PROPOSALS1
65944 Federal Register / Vol. 88, No. 185 / Tuesday, September 26, 2023 / Proposed Rules 

rule in the Federal Register and seek 

public comment on all aspects of the 

proposed revisions to North Pacific right 

whale critical habitat prior to issuing 

any final revision. 

References Cited 

The complete citations for the 

references used in this document are 

available (see ADDRESSES and FOR

FURTHER INFORMATION CONTACT). 

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

Dated: September 14, 2023. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. 2023–20794 Filed 9–25–23; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 230921–0230] 

RIN 0648–BM51 

Fisheries of the Northeastern United 

States; Framework Adjustments to 

Northeast Multispecies, Atlantic Sea 

Scallop, Monkfish, Northeast Skate 

Complex, and Atlantic Herring 

Fisheries; Southern New England 

Habitat Area of Particular Concern 

Designation 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: This action proposes to 

implement the New England Fishery 

Management Council’s Framework 

Adjustment that would identify a 

Habitat Area of Particular Concern 

offshore of Southern New England. This 

rule would adjust the following fishery 

management plans: Northeast 

Multispecies; Atlantic Sea Scallop; 

Monkfish; Northeast Skate Complex; 

and Atlantic Herring. The proposed 

Habitat Area of Particular Concern 

would be within and around wind lease 

areas in Southern New England, 

including Cox Ledge, to focus 

conservation recommendations on cod 

spawning habitats and complex benthic 

habitats that are known to serve 

important habitat functions to Councilmanaged fishery species. 

DATES: Comments must be received by 

October 26, 2023. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2023–0101, by the following 

method: 

Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov, and enter 

‘‘NOAA–NMFS–2023–0101’’ in the 

Search box. Click the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

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 part of the public record 

and will generally be posted for public 

viewing on https://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. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). If you are unable to 

submit your comment through https://

www.regulations.gov, contact Sabrina 

Pereira (see FOR FURTHER INFORMATION

CONTACT). 

Copies of the Southern New England 

Habitat Area of Particular Concern 

Framework and other supporting 

documents for this action are available 

upon request from Dr. Catherine 

O’Keefe, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Mill 2, Newburyport, 

MA 01950. The supporting documents 

are also accessible via the internet at: 

https://

d23h0vhsm26o6d.cloudfront.net/ 

220822-SNE-HAPC-Framework.pdf. 

FOR FURTHER INFORMATION CONTACT: 

Sabrina Pereira, Marine Habitat 

Resource Specialist, email: 

Sabrina.Pereira@noaa.gov; phone: (978) 

675–2178. 

SUPPLEMENTARY INFORMATION: 

Background 

This action proposes the 

identification of a Habitat Area of 

Particular Concern (HAPC) in and 

around offshore wind lease areas in 

Southern New England (SNE), including 

Cox Ledge. The New England Fishery 

Management Council (Council) 

recommended the HAPC designation 

due to concerns about the potential 

adverse impact on essential fish habitat 

(EFH) from the development of offshore 

wind energy projects. The proposed 

designation would focus on important 

cod spawning grounds and areas of 

complex habitat that are known to serve 

important habitat functions to federally 

managed species within and adjacent to 

offshore wind development areas. 

Complex benthic habitat provides 

shelter for certain species during their 

early life history, refuge from predators, 

and feeding opportunities. 

HAPCs highlight specific types or 

areas of habitat within EFH that may be 

particularly vulnerable to human 

impacts. HAPC designations should be 

based on one or more of the following 

criteria: (1) The importance of the 

ecological function provided by the 

habitat, including both the historical 

and current ecological function; (2) the 

extent to which the habitat is sensitive 

to human-induced environmental 

degradation; (3) whether, and to what 

extent, development activities are, or 

will be, stressing the habitat type; and 

(4) the rarity of the habitat type (50 CFR 

600.815(a)(8)). As detailed below, if 

adopted, the HAPC designated by this 

action is based on all four of these 

attributes. 

An area’s status as an HAPC should 

lead to special attention regarding 

potential adverse effects on habitats 

within areas of particular concern from 

various activities (e.g., fishing, offshore 

wind energy). An HAPC designation 

does not provide any specific habitat 

management measures, such as 

restrictions on gear types, harvest levels, 

fishing locations, offshore wind survey 

and construction activities, or other 

activities with adverse effects on habitat 

in the area. 

Proposed Habitat Area of Concern 

Designation 

This action proposes the Council’s 

preferred alternative for the Southern 

New England HAPC designation, which 

would identify as an HAPC certain 

habitats in the area overlapping offshore 

wind lease sites in southern New 

England. The spatial extent of the HAPC 

is based on the footprint of the lease 

areas, buffered by approximately 10 km 

on all sides, combined with the 

footprint of the Cox Ledge spawning 

ground, which is based on recent 

evidence of cod spawning activity. 

Maps for the proposed HAPC 

designation are provided in the 

Council’s document (see ADDRESSES). 

The HAPC area would be designated 

EFH for the following species that 

occupy complex habitats within the 

footprint: Atlantic cod egg, larvae, 

juveniles, and adults; Atlantic herring 

eggs; Atlantic sea scallop eggs, 

juveniles, and adults; little skate 

juveniles and adults; monkfish juveniles 

and adults; ocean pout eggs, juveniles, 

and adults; red hake juveniles and 


lotter on DSK11XQN23PROD with PROPOSALS1