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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 226
          - [Docket No. 010501108-1108-01; I.D. 040401A]

# AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

# ACTION:

Notice of receipt of petition and petition finding.

# SUMMARY:

                        The National Marine Fisheries Service (NMFS) announces the receipt of a petition to designate critical habitat for the Western Arctic stock of bowhead whales,                         *Balaena mysticetus*, under the Endangered Species Act of 1973 (ESA), as amended.  NMFS has determined that the petition presents substantial scientific information indicating that this action may be warranted, and is soliciting public comment and information on the petition.                    

# DATES:

NMFS is soliciting public comment on the action through August 20, 2001.

# ADDRESSES:

Written comments concerning this petition should be submitted to Donna Wieting, Chief, Marine Mammal Division, Office of Protected Resources, Silver Spring, MD, 20910.  Comments will not be accepted if submitted via e-mail or internet.

# FOR FURTHER INFORMATION CONTACT:

Mr. Brad Smith, NMFS, Alaska Regional Office, 222 West 7th Avenue, Anchorage, Alaska 99517, telephone (907) 271-5006 or fax (907) 271-3030, or Mr. Michael Payne, NMFS, Alaska Regional Office, P.O. Box 21668, Juneau, Alaska 99802, telephone (907) 586-7235 or fax (907) 586-7012.

# SUPPLEMENTARY INFORMATION:

## Background

On February 22, 2000, the Center for Biological Diversity, Berkeley, CA, and the Marine Biodiversity Protection Center, Canyon, CA, petitioned NMFS to designate critical habitat for the Western Arctic stock of bowhead whales. The area petitioned for critical habitat includes the Beaufort Sea off Alaska’s North Slope between Point Barrow and the Canadian border, from mean high tide to approximately 170 kilometers offshore.  The petition was accepted under 5 U.S.C 553 (e).

The bowhead whale was listed as endangered on June 2, 1970, prior to the addition of critical habitat requirements in the ESA, on November 10, 1978.  NMFS must evaluate petitions to designate critical habitat for pre-1978 listed species pursuant to 5 U.S.C. 553 (e) under the Administrative Procedure Act (APA).  5 U.S.C.  553 (e) provides that “each agency shall give an interested person the right to petition for the issuance, amendment or repeal of a rule”.

                    NMFS initially responded to the petition on December 14, 2000, with a letter that, at that time, deferred determination on whether the subject action may be warranted pending completion of several on-going studies or scheduled research efforts.  NMFS has now determined that the petition presents substantial information                           ( print page 28142)                        indicating that the designation may be warranted.  A copy of the petition is available upon request (see                     **ADDRESSES**                    ).                

                    NMFS will conduct a review to determine if the petitioned action to designate critical habitat is warranted.  The determination will be made on the best available scientific data and the economic impacts of any such designation.  A notice of finding will be published in the                     **Federal Register**                     and, if the action is warranted, a regulation to implement the action will be proposed.                

Bowhead whale stocks were severely depleted by commercial whaling in previous centuries.  Estimates of historic bowhead abundance vary but today the Western Arctic stock is estimated at approximately 8000 whales.  Many individuals in this population migrate annually from wintering grounds in the Bering Sea north into the Beaufort Sea where the whales spend the summer.  It is this summering area that the petitioners recommend for critical habitat designation.

Bowhead whales encounter potential threats from several human activities in the area including subsistence harvest, fishery interactions and industrial development.  A subsistence harvest of bowhead whales continues today with Alaska and Canada Natives taking an average of 49 whales (including those struck and lost) each year between 1994 and 1996.  The subsistence harvest is considered sustainable and the population of the Western Arctic stock has increased in recent years.  No records of a bowhead whale mortality related to fishery interaction exist but the whales are known to occasionally become entangled in fishing gear.

The petitioners assert that action is needed to halt the degradation of bowhead habitat in the Beaufort sea.  The petitioners cite the future proliferation of oil and gas development and associated industrial activity as the main threat to the bowheads’ habitat.  Further, they cite increases in noise, vessel traffic, seismic exploration, drilling and construction as having the potential to elevate threats to bowhead whales in the region.  The petitioners assert that such activity also brings a greater risk of pollution from oil spills, waste (toxic and non-toxic) and noise proliferation.

NMFS intends to hold public meetings on this petition and will inform the petitioners and public as to their location and time in a following notice.  NMFS will also keep the petitioners and public informed as to the progress of the review.  At this time NMFS is soliciting information and comments concerning the petition to ensure that the review is complete and is based on the best available information.  We request that the information and comments be accompanied by (1) supporting documentation such as maps, biological references or reprints of pertinent publications and (2) the name, address and associations, institution, or business that the person represents.

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

Dated: May 17, 2001.

William T. Hogarth,

Acting Administrator for Fisheries, National Marine Fisheries Service.

[FR Doc. 01-12876 Filed 5-21-01; 8:45 am]

BILLING CODE  3510-22-S