Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 41271 

the Office (whether by signing, filing, 

submitting, or later advocating) of this 

form, whether by a practitioner or nonpractitioner, constitutes a certification 

under § 11.18(b) of this chapter that the 

existing text and any certification 

statements on this form have not been 

altered. 

* * * * * 

Katherine K. Vidal, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2022–14668 Filed 7–11–22; 8:45 am] 

BILLING CODE 3510–16–P 

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: 

• 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. 

• 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/northpacific-right-whale#conservationmanagement). 

FOR FURTHER INFORMATION CONTACT: 

Jenna Malek, NMFS Alaska Region, 

jenna.malek@noaa.gov, (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 


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41272 Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 

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°03′ N/153°00′ W, 57°18′ N/ 

151°30′ W, 57°00′ N/151°30′ W, 56°45′ 

N/153°00′ W, and returning to 57°03′ N/ 

153°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°00′ N/168°00′ W, 58°00′ N/ 

163°00′ W, 56°30′ N/161°45′ W, 55°00′ 

N/166°00′ W, 56°00′ N/168°00′ W and 

returning to 58°00′ N/168°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 


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Federal Register / Vol. 87, No. 132 / Tuesday, July 12, 2022 / Proposed Rules 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 


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