[Federal Register Volume 87, Number 132 (Tuesday, July 12, 2022)]
[Proposed Rules]
[Pages 41271-41273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14838]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 226

[Docket No. 220706-0150]
RTID 0648-XR123


Listing Endangered or Threatened Species; 90-Day Finding on a 
Petition To Revise the Critical Habitat Designation for the North 
Pacific Right Whale

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: 90-day petition finding; request for information

-----------------------------------------------------------------------

SUMMARY: We, NMFS, announce a 90-day finding on a petition to revise 
the critical habitat designation for the North Pacific right whale 
(Eubalaena japonica) under the Endangered Species Act (ESA). In April 
2008, we issued a final rule designating approximately 3,050 square 
kilometers (~1,175 square miles) and approximately 91,850 square 
kilometers (~35,460 square miles) of critical habitat for North Pacific 
right whales in the Gulf of Alaska and the Southeast Bering Sea, 
respectively. The petition requests we revise this critical habitat.
    We find that the petition presents substantial scientific 
information indicating the petitioned action may be warranted. We are 
hereby initiating a review of the currently designated critical habitat 
to determine whether revision is warranted. To ensure a comprehensive 
review, we are soliciting scientific and commercial information 
pertaining to this action.

DATES: Scientific and commercial information pertinent to the 
petitioned action must be received by September 12, 2022.

ADDRESSES: You may submit comments, information, or data on this 
document identified by docket number NOAA-NMFS-2022-0050, by one of the 
following methods:
    <bullet> Federal e-Rulemaking Portal: Go to www.regulations.gov. In 
the Search box, enter the above docket number for this notice. Then, 
click on the Search icon. On the resulting web page, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Submit written information to Jon Kurland, Regional 
Administrator for Alaska Region NMFS, Attn: Records Office. Mail 
comments to P.O. Box 21668, Juneau, AK 99802-1668.
    Instructions: NMFS may not consider comments or other information 
if sent by any other method, to any other address or individual, or 
received after the comment period ends. All comments and information 
received are a part of the public record and NMFS will post the 
comments for public viewing on 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 is publicly accessible. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).
    Electronic copies of the petition prepared for this action are 
available from http://www.regulations.gov or from the NMFS website (see 
https://www.fisheries.noaa.gov/species/north-pacific-right-whale#conservation-management).

FOR FURTHER INFORMATION CONTACT: Jenna Malek, NMFS Alaska Region, 
<a href="/cdn-cgi/l/email-protection#761c13181817581b171a131d361819171758111900"><span class="__cf_email__" data-cfemail="7d171813131c53101c1118163d13121c1c531a120b">[email protected]</span></a>, (907) 271-1332.

SUPPLEMENTARY INFORMATION: 

Background

    On March 10, 2022, we received a petition from the Center for 
Biological Diversity and Save the North Pacific Right Whale requesting 
revision to the critical habitat designation for the North Pacific 
right whale. Currently, North Pacific right whale critical habitat 
consists of two areas of approximately 3,050 square kilometers (~1,175 
square miles) and approximately 91,850 square kilometers (~35,460 
square miles) in the Gulf of Alaska and the Southeast Bering Sea, 
respectively (73 FR 19000, April 8, 2008). The petition requests we 
revise this critical habitat to connect the two existing critical 
habitat areas by extending the Southeast Bering Sea boundary west and 
south to the Fox Islands, through Unimak Pass to the edge of the 
continental slope, and east to the Gulf of Alaska critical habitat area 
off the coast of Kodiak Island.
    The Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 
1531 et seq.) defines critical habitat as: (i) The specific areas 
within the geographical area currently occupied by the species, at the 
time it is listed . . . on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed . . . upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species (16 U.S.C. 1532(5)(A)). Joint NMFS-Fish and Wildlife Service 
(FWS) regulations for designating critical habitat at 50 CFR 
424.12(b)(1)(ii) state that the agencies will identify physical and 
biological features essential to the conservation of the species at an 
appropriate level of specificity using the best available scientific 
data. A physical and biological feature may be a single habitat 
characteristic or a more complex combination of characteristics, may 
include characteristics that support ephemeral or dynamic habitat 
conditions, and may also be expressed in terms relating to principles 
of conservation biology, such as patch size, distribution distances, 
and connectivity (50 CFR 424.02). ``Special management considerations 
or protection'' means any method or procedure useful in protecting 
physical and biological features essential to the conservation of the 
species (50 CFR 424.02).
    Section 4(b)(2) of the ESA requires us to designate, and make 
revisions to, critical habitat for listed species based on the best 
scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Secretary of Commerce may exclude any particular area from critical 
habitat if she determines that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless she determines, based on the best scientific and commercial data 
available, that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned.
    Section 4(b)(3)(D)(i) of the ESA requires, to the maximum extent 
practicable, that within 90 days of receipt of a petition to revise a 
critical habitat designation, the Secretary of Commerce make a finding 
on whether

[[Page 41272]]

that petition presents substantial scientific information indicating 
that the petitioned revision may be warranted, and to promptly publish 
such finding in the Federal Register (16 U.S.C. 1533(b)(3)(D)(i)).
    The ESA implementing regulations issued jointly by NMFS and FWS (50 
CFR 424.14(i)(1)(i)) state that ``substantial scientific or commercial 
information'' refers to credible scientific information that would lead 
a reasonable person conducting an impartial scientific review to 
conclude that the revision proposed in the petition may be warranted. 
In evaluating whether substantial scientific information is provided in 
a petition to revise critical habitat, the Secretary must consider 
whether the petition contains: (1) a description and map(s) of the 
areas that the current designation does not include that should be 
included, or includes that should no longer be included, and a 
description of the benefits of designating or not designating these 
specific areas of critical habitat; (2) a description of physical or 
biological features essential for the conservation of the species and 
whether they may require special management considerations or 
protections; (3) information indicating that the specific areas 
petitioned to be added to critical habitat contain one or more of the 
physical or biological features that are essential to the conservation 
of the species and may require special management considerations or 
protection; or (4) information indicating that areas designated as 
critical habitat do not contain the physical and biological features 
essential to the conservation of the species involved or do not require 
special management considerations or protection (50 CFR 424.14(e)(1-
4)).
    At the 90-day stage, we evaluate the petitioner's request based 
upon the information in the petition, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us evaluate the petition. We will accept the 
petitioner's sources and characterizations of the information 
presented, if they appear to be based on accepted scientific 
principles, unless we have specific information in our files that 
indicates the petition's information is incorrect, unreliable, 
obsolete, or otherwise irrelevant to the requested action. Information 
that is susceptible to more than one interpretation or that is 
contradicted by other available information will not be dismissed at 
the 90-day finding stage, so long as it is reliable and a reasonable 
person would conclude that it supports the petitioner's assertions. If 
we find that a petition presents substantial information indicating 
that the revision may be warranted (a ``positive 90-day finding''), 
within 12 months after receiving the petition, we are required to 
determine how we intend to proceed with the requested critical habitat 
revision and promptly publish notice of such intention in the Federal 
Register (16 U.S.C. 1533(b)(3)(D)(ii)). Because the finding at the 12-
month stage is based on a more thorough review of the available 
information, as compared to the narrow scope at the 90-day stage, a 
``positive 90-day finding'' does not prejudge the outcome of our 
review.

Current Critical Habitat Designation

    Prior to the mid-2000s, right whales in the North Pacific and North 
Atlantic were considered the same species. Critical habitat for right 
whales was initially designated in 1994 for the North Atlantic 
population (59 FR 28793, June 3, 1994, and revised in 2006 to include 
habitat for the North Pacific population (71 FR 38277, July 6, 2006). 
Genetic analyses conducted in the early 2000s indicated that the North 
Atlantic and North Pacific populations were two distinct species of 
right whales (Rosenbaum et al. 2000, Gaines et al. 2005, Kaliszewska et 
al. 2005), leading to their separate listing under the ESA in 2008 (73 
FR 12024, March 6, 2008). Following this listing, the two critical 
habitat areas originally designated in 2006 for the North Pacific 
population were finalized as critical habitat for North Pacific right 
whales (73 FR 19000, April 8, 2008). In the Gulf of Alaska, critical 
habitat was identified as a polygon delineated by a series of lines 
connecting the following coordinates in order: 57[deg]03' N/153[deg]00' 
W, 57[deg]18' N/151[deg]30' W, 57[deg]00' N/151[deg]30' W, 56[deg]45' 
N/153[deg]00' W, and returning to 57[deg]03' N/153[deg]00' W. In the 
Bering Sea, critical habitat was also identified by a polygon, 
delineated by a series of straight lines connecting the following 
coordinates in order: 58[deg]00' N/168[deg]00' W, 58[deg]00' N/
163[deg]00' W, 56[deg]30' N/161[deg]45' W, 55[deg]00' N/166[deg]00' W, 
56[deg]00' N/168[deg]00' W and returning to 58[deg]00' N/168[deg]00' W.
    The designation of critical habitat for North Pacific right whales 
uses the term primary constituent element (PCE). The critical habitat 
implementing regulations in 50 CFR 424 were revised in 2016 (81 FR 
7414; February 11, 2016), and as part of these revisions the term 
``PCE'' was removed and replaced with ``physical or biological 
features'' (PBFs). The shift in terminology was intended to simplify 
and clarify the designation process, and did not change the approach 
used by NMFS in determining what areas qualify as critical habitat 
under the ESA. Thus, this change in terminology will not alter our 
review and analysis of North Pacific right whale critical habitat.
    At the time of designation, there were significant gaps in the 
knowledge of North Pacific right whale biology and ecology; little was 
known about the PBFs that might be essential for their conservation. 
However, several species of large copepods and other zooplankton are 
known to constitute the primary prey of North Pacific right whales, 
based on examination of harvested whales and limited plankton tows 
conducted near feeding whales. As such, PBFs identified were the 
copepods Calanus marshallae, Neocalanus cristatus, and N. plumchrus, 
and the euphausiid Thysanoessa raschii, in areas where right whales are 
known or thought to feed (73 FR 19000, April 8, 2008). In addition to 
the occurrence of large zooplankton, NMFS concluded that it is likely 
that certain physical forcing mechanisms are present in these areas, 
which act to concentrate the identified prey species in densities which 
allow for efficient foraging by right whales (73 FR 19000, April 8, 
2008).

Analysis of Petition

    The petition lists recent sources of information on North Pacific 
right whale presence and habitat use in and around currently designated 
critical habitat in the Gulf of Alaska and the Southeast Bering Sea. 
The Center for Biological Diversity and Save the North Pacific Right 
Whale propose that the critical habitat be revised to connect the two 
existing critical habitat areas by extending the Bering Sea area 
boundary west and south to the Fox Islands, through Unimak Pass to the 
edge of the continental slope, and east to the Kodiak Island critical 
habitat area. The petitioners state that this revision encompasses ``a 
key migratory point'' and provides ``connectivity between two essential 
foraging grounds'' (Center for Biological Diversity and Save the North 
Pacific Right Whale, 2022, p. ii).
    Oceanographic data indicate that Unimak Pass is a very biologically 
productive area with high concentrations of phyto- and zooplankton due 
to the mixing of waters from the North Pacific and Bering Canyon along 
the Bering Sea shelf. This productivity attracts a large diversity of 
fish and marine birds and mammals, including North Pacific right 
whales, as evidenced by acoustic and visual detections. Based on 
acoustic moorings

[[Page 41273]]

deployed in the center of Unimak Pass annually from 2009 to 2015, 
various types of North Pacific right whale vocalizations were detected 
on 37 of 1,778 days and vocalizations were detected across all years 
and seasons (Wright et al. 2018). These acoustic detections suggest 
that North Pacific right whales utilize Unimak Pass throughout the year 
and that this may be important habitat for the species.
    North Pacific right whales have also been visually observed in and 
around Unimak Pass as recently as February 2022. Commercial fisherman 
reported sighting at least two right whales just outside of the pass in 
February, providing the first visual confirmation of the species in the 
area during that time of year.
    In the Barnabas Trough and Albatross Bank area of the Gulf of 
Alaska, there have been increased sightings and detections of North 
Pacific right whales in and around currently designated critical 
habitat. Though historic data indicate that individuals were harvested 
commercially in the Gulf, there has been limited evidence of their 
presence since the 1960s. Similar to Unimak Pass, there is high 
biological productivity near Barnabas Trough and Albatross Bank, due to 
the tidal mixing that results in nutrient rich waters throughout the 
summer months. The North Pacific right whale sightings and detections 
that have occurred in this area have corresponded with high densities 
of North Pacific right whale primary prey, the essential feature of the 
designated critical habitat, and fecal samples that indicate recent 
feeding (Wade et al. 2011).
    In 2015, Ferguson et al. identified a biologically important area 
(BIA) for North Pacific right whale feeding that encompasses and 
extends beyond the designated critical habitat in the Gulf of Alaska. 
The BIA is based on opportunistic sighting data, acoustics recordings, 
and historical whaling data (Ferguson et al. 2015). In August 2021, two 
pairs of North Pacific right whales were sighted by NOAA Fisheries 
scientists: one pair was feeding at the edge of critical habitat in 
Barnabas Trough, and the other pair was in the vicinity of the 
southeast edge of the feeding BIA. The identification of the BIA based 
on a diversity of data, recent visual sightings, and acoustic 
detections suggest that North Pacific right whale utilization of areas 
in the Gulf of Alaska may extend past the currently designated critical 
habitat.

Petition Finding

    Based on the information presented and referenced in the petition, 
as well as all other information readily available in our files, and 
pursuant to the criteria specific in 50 CFR 424.14(c) and (e), we find 
the recent information presented by the petitioners on the distribution 
and behavior of North Pacific right whales in the Gulf of Alaska and 
the Southeast Bering Sea to constitute substantial information 
indicating that revision of critical habitat may be warranted.

Information Solicited

    To ensure that our review of North Pacific right whale critical 
habitat is complete and based on the best available scientific and 
commercial information, we are soliciting relevant information from the 
public, governmental agencies, tribes, the scientific community, 
industry, environmental entities, and any other interested parties 
concerning: (1) The essential habitat needs and use of the whales; (2) 
the areas of the Gulf of Alaska and the Southeastern Bering Sea 
proposed in the petition for inclusion as critical habitat; (3) the 
physical and biological features that are essential to the conservation 
of North Pacific right whales and that may require species management 
considerations or protection; (4) information regarding potential 
benefits or impacts of designating any particular areas, including 
information on the types of Federal actions that may affect the area's 
physical and biological features; and (5) current or planned activities 
in the areas the petition requests to be added as critical habitat and 
costs of potential modifications of those activities due to critical 
habitat designation.
    We request that all data and information be accompanied by 
supporting documentation such as maps, bibliographic references, or 
reprints of pertinent publications. Comments and materials received 
will be available for public inspection, by appointment, during normal 
business hours at the above address (see ADDRESSES).

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT).

    Dated: July 7, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2022-14838 Filed 7-11-22; 8:45 am]
BILLING CODE 3510-22-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>