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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [Docket No. 0104011088-1108-01; I.D. 030601D ]

# AGENCY:

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

# ACTION:

Notice of 90-day petition finding.

# SUMMARY:

                        The National Marine Fisheries Service (NMFS) announces the receipt of a petition to revise critical habitat for northern right whales,                         *Eubalaena glacialis*                         and NMFS’ finding that the petition presents substantial scientific information indicating that this action may be warranted.                    

# DATES:

NMFS is accepting comments on the petition through August 30, 2001.

# ADDRESSES:

Data, information, or comments concerning this petition should be submitted to Donna Wieting, Chief, Marine Mammal Division, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD, 20910.  Comments will not be accepted if submitted via e-mail or Internet.  The petition finding, supporting data, and comments are available for public inspection at the same address.

# FOR FURTHER INFORMATION CONTACT:

Mr. Brad Smith, NMFS, 222 West 7th Avenue, Anchorage, Alaska, 99517; telephone (907) 271-5006; fax (907) 271-3030 or Mr. Michael Payne, NMFS; telephone (907) 586-7235; fax (907) 586-7012.

# SUPPLEMENTARY INFORMATION:

## Background

On October 13, 2000, NMFS received a petition dated October 4, 2000, from the Center for Biological Diversity, P.O. Box 40090, Berkeley, CA, 94704-4090.  The petitioner requests that NMFS amend the present critical habitat designation for northern right whales by designating an area within the southeastern Bering Sea as critical habitat. 

                    Section 4(b)(3)(D) of the ESA, as amended (16 U.S.C. 1533(b)(3)(D)(i)), requires that NMFS make a finding on whether a petition to revise a designation of critical habitat presents substantial scientific information to demonstrate that the petitioned action may be warranted.  To the maximum extent practicable, this finding is to be made within 90 days of the receipt of the petition, and the finding is to be published promptly in the                     **Federal Register**                    .  If the finding is that substantial scientific information is presented, NMFS is required to promptly begin a status review of the species.  Within 12 months of the date the petition is received, NMFS must make a determination on whether the petitioned action is warranted and must promptly publish this determination in the                     **Federal Register**                    .                 

                    This petition, based in part, on recent sightings of the North Pacific stock of this species in the southeastern Bering Sea, states that the vast majority of threats to these animals occur in this                           ( print page 29774)                        area and that feeding and courtship behavior have been observed in the area.                 

                    There are three distinct populations of right whales  inhabiting the North Pacific, North Atlantic and the Southern Hemisphere.  Both the North Atlantic and North Pacific stocks have previously been described as a single species,                     *Eubalaena glacialis*                     (the northern right whale).  Recent genetic studies provide evidence supporting species status for both North Atlantic and North Pacific right whales.  NMFS will be conducting a review to determine whether the North Pacific stock should be reclassified as                     *Eubalaena japonica*.                 

The North Pacific stock is estimated to have once numbered at least 11,000 animals.  These whales were heavily exploited by commercial whaling, and remain severely depleted.  No reliable population estimate presently exists for this stock, although it is likely fewer than 500. 

The North Pacific stock has historically occurred across the North Pacific, north of 35° N, with concentrations in the Gulf of Alaska, eastern Aleutian Islands, south-central Bering Sea, Sea of Okhotsk, and the Sea of Japan.  Sightings of these whales have been rare and sporadic in recent times, although a small number of whales have been seen in the south-central Bering Sea each July since 1996.  This petition is based largely on these repeated sightings, during which right whales were observed feeding and engaging in courtship behavior. 

Critical habitat has been designated for northern right whales in the Atlantic Ocean, consisting of three areas off the northeastern and southeastern United States.  The 1991 recovery plan for northern right whales recommended that a separate recovery plan be prepared for the North Pacific stock “when population numbers are available,” and that the plan identify habitats essential or important to survival and recovery.  No such plan exists today, and critical habitat has not been identified for the North Pacific stock. 

The area recommended by the petitioner for designation has been recognized as a region of the Bering Sea in which right whales have traditionally occurred.  Based on commercial whaling information, summering grounds for right whales in the Bering Sea were principally located in a triangular area of the southeastern Bering Sea between Atka, St. Matthew, and Nunivak Island, lying largely within, and to the south of, the recommended critical habitat.  The Bering Sea shelf is apparently still used as summer feeding areas for some right whales, as observed in 1997, when researchers collected plankton samples near feeding right whales in the southeastern Bering Sea, suggesting that these whales have shifted both their foraging ground, (from the shelf break and deeper waters) and their prey species. 

In recent years, the Bering Sea has experienced large changes, attributed in part to climatic change which has resulted in a general warming pattern since the mid-1970s.  Unusual blooms of phytoplankton have been noted here, and, in 1997, a large bloom occurred in the southeastern Bering Sea, which was associated with concentrations of feeding right whales.  The petitioner, however, notes that the presence of these whales in subsequent years, when blooms were not evident, suggests that these waters provide productive foraging habitat under normal oceanic conditions as well. 

The location of calving grounds for this stock is unknown.  Breeding and calving of North Pacific right whales were assumed to have occurred during winter outside Alaskan waters.  The recent observations of courtship behavior do not necessarily indicate that this area is used for breeding. 

## Response to Petition

NMFS has reviewed the petition, the literature cited in the petition, and other literature and available information.  On the basis of that information, NMFS finds that the petition presents substantial scientific information indicating that the requested action may be warranted.  NMFS’s finding is based in part on our concurrence with petitioner’s statement that recent sightings of this stock have occurred in the area, that this region of the Bering Sea experiences intensive use by commercial shipment and fishing vessels, and that the 1991 recovery plan for northern right whales recommended that this stock be protected through “vigorous application of existing laws.”

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

Dated: May 25, 2001.

John Oliver,

Acting Deputy Assistant for Fisheries, National Marine Fisheries Service.

[FR Doc. 01-13831 Filed 5-31-01; 8:45 am]

BILLING CODE  3510-22-S