Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61089 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

proposes to remove an erroneously 

approved State rule from the SIP, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

This proposed rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. This proposed 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Sulfur oxides, 

Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: October 19, 2007. 

Russell L. Wright, Jr., 

Acting Regional Administrator, Region 4. 

[FR Doc. E7–21245 Filed 10–26–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 070717354–7361–01] 

RIN 0648–AV73 

Endangered and Threatened Species; 

Designation of Critical Habitat for the 

North Pacific Right Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comment. 

SUMMARY: We, NMFS, completed a 

status review of the northern right 

whale and have determined that the 

right whale in the North Pacific Ocean 

is a separate and distinct species from 

the right whales in the North Atlantic 

Ocean and southern hemisphere. We 

also find the species to be described in 

the North Pacific Ocean, the North 

Pacific right whale (Eubalaena 

japonica), is in danger of extinction 

throughout its range. We have proposed 

to list this species as endangered 

pursuant to the Endangered Species Act 

of 1973 (ESA). Here we propose to 

designate critical habitat for this 

species. Two specific areas are proposed 

for designation: one in the Gulf of 

Alaska (GOA) and another in the Bering 

Sea. Our most recent mapping 

calculation indicates this area comprises 

a total of approximately 36,800 square 

miles (95,325 square kilometers) of 

marine habitat. We solicited comments 

from the public on all aspects of the 

proposal, including information on the 

economic, national security, and other 

relevant impacts of the proposed 

designation. We may revise this 

proposal and solicit additional 

comments prior to final designation to 

address new information received 

during the comment period. 

DATES: Comments on this proposed rule 

must be received by close of business on 

December 28, 2007. Requests for public 

hearings must be made in writing by 

December 13, 2007. 

ADDRESSES: You may submit comments, 

identified by 0648–AV73, by any one of 

the following methods: 

• Electronic submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at that site for submitting 

comments. 

• Mail: Kaja Brix, Assistant Regional 

Administrator, Protected Resources 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian, P. O Box 21668, Juneau, 

AK 99802 

• Hand delivery to the Federal 

Building : 709 W. 9th Street, Juneau, 

Alaska . 

• Fax: (907) 586–7012, Attn: Ellen 

Sebastian. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments. Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

PDF file formats only. 

The proposed rule, maps, stock 

assessments, and other materials 

relating to this proposal can be found on 

the NMFS Alaska Region website http:// 

www.fakr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith, (907) 271–3023, or Marta 

Nammack, (301) 713–1401. 

SUPPLEMENTARY INFORMATION: The ESA, 

as amended [16 U.S.C. 1531 et seq.], 

grants authority to and imposes 

requirements upon Federal agencies 

regarding endangered or threatened 

species of fish, wildlife, or plants, and 

habitats of such species that have been 

designated as critical. The U.S. Fish and 

Wildlife Service and NMFS share 

responsibility for administering the 

ESA. Endangered or threatened species 

under the authority of NMFS are found 

in 50 CFR parts 223 and 224. 

Background 

The North Pacific right whale (E. 

japonica) is a member of the family 

Balaenidae and is closely related to the 

right whales that inhabit the North 

Atlantic and the Southern Hemisphere. 

Right whales are large baleen whales 

that grow to lengths and weights 

exceeding 18 meters and 100 tons, 

respectively. They are filter feeders 

whose prey consists exclusively of 

zooplankton (notably copepods and 

euphausiids; see below). Right whales 

attain sexual maturity at an average age 

of 8–10 years, and females produce a 

single calf at intervals of 3–5 years 

(Kraus et al., 2001). Their life 

expectancy is unclear, but is known to 

reach 70 years in some cases (Hamilton 

et al., 1998; Kenney, 2002). 

Right whales are generally migratory, 

with at least a portion of the population 

moving between summer feeding 

grounds in temperate or high latitudes 

and winter calving areas in warmer 

waters (Kraus et al., 1986; Clapham et 

al., 2004). In the North Pacific, the 

feeding range is known to include the 

GOA, the Aleutian Islands, the Bering 

Sea, and the Sea of Okhotsk. Although 

a general northward movement is 

evident in spring and summer, it is 

unclear whether the entire population 

undertakes a predictable seasonal 

migration, and the location of calving 

grounds remains completely unknown 

(Scarff, 1986; Scarff, 1991; Brownell et 

al., 2001; Clapham et al., 2004; Shelden 

et al,. 2005). Further details of 

occurrence and distribution are 

provided below. 

In the North Pacific, whaling for right 

whales began in the GOA (known to 

whalers as the ‘‘Northwest Ground’’) in 

1835 (Webb, 1988). Right whales were 

extensively hunted in the western North 

Pacific in the latter half of the 19th 

century, and by 1900 were scarce 

throughout their range. Right whales 

were protected worldwide in 1935 

through a League of Nations agreement. 

However, because neither Japan nor the 

USSR signed this agreement, both 

nations were theoretically free to 

continue right whaling until 1949, when 


rfrederick on PROD1PC67 with PROPOSALS
61090 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

the newly-created International Whaling 

Commission (IWC) endorsed this ban. 

Following this, a total of 23 North 

Pacific right whales were legally killed 

by Japan and the USSR under Article 

VIII of the International Convention for 

the Regulation of Whaling (1946), which 

permits the taking of whales for 

scientific research purposes. However, it 

is now known that the USSR illegally 

caught many right whales in the North 

Pacific (Doroshenko, 2000; Brownell et 

al., 2001; Ivashchenko, 2007). In the 

eastern North Pacific, 372 right whales 

were killed by the Soviets between 1963 

and 1967; of these, 251 were taken in 

the GOA south of Kodiak, and 121 in 

the Southeastern Bering Sea (SEBS). 

These takes devastated a population 

that, while undoubtedly small, may 

have been undergoing a slow recovery 

(Brownell et al., 2001). 

As a result of this historic and recent 

hunting, the North Pacific right whale 

today is among the most endangered of 

all whales worldwide. Right whales 

were listed in 1970 following passage of 

the Endangered Species Conservation 

Act (ESCA) of 1969, and automatically 

granted endangered status when the 

ESCA was repealed and replaced by the 

ESA. Right whales were also protected 

in U.S. waters under the Marine 

Mammal Protection Act of 1972. NMFS 

issued a Recovery Plan for the northern 

right whale in 1991 which covered both 

the North Atlantic and North Pacific 

(NMFS, 1991). 

We have assumed the existence of a 

single species of right whales in the 

North Pacific (Hill et al.,1997). 

However, some authors (e.g., Klumov, 

1962; Brownell et al., 2001) have 

discussed the possibility that North 

Pacific right whales exist in discrete 

eastern and western North Pacific 

populations. In particular, Brownell et 

al. (2001) pointed to the different catch 

and recovery histories of the eastern and 

western management units as support 

for such a division. During the 1983 

IWC right whale workshop (IWC, 1986), 

the Scientific Committee recommended 

distinguishing two North Pacific 

management units, but stated no 

conclusion can be reached concerning 

the identity of biological populations. 

At this writing, sub-division of this 

species remains equivocal, and we 

consider all North Pacific right whales 

to belong to the single species, E. 

japonica. 

In the western North Pacific (the Sea 

of Okhotsk and adjacent areas), current 

abundance is unknown but is probably 

in the low to mid-hundreds (Brownell et 

al., 2001). There is no estimate of 

abundance for the eastern North Pacific 

(Bering Sea, Aleutian Islands, and 

GOA), but sightings are rare; most 

biologists believe the current population 

is unlikely to exceed a hundred 

individuals, and is probably much 

smaller. Prior to the illegal Soviet 

catches of the 1960s, an average of 25 

whales was observed each year in the 

eastern North Pacific (Brownell et al., 

2001); in contrast, the total number of 

records in the 35 years from 1965 to 

1999 was only 82, or 2.3 whales per 

annum. 

Since 1996, NMFS and other surveys 

(directed specifically at right whales or 

otherwise) have detected small numbers 

of right whales in the SEBS, including 

an aggregation estimated at 24 animals 

in the summer of 2004. Photoidentification and genetic data have 

identified 35 individuals from the 

Bering Sea, and the high inter-annual 

resighting rate further reinforces the 

idea that this population is small. Right 

whales have also been sighted in the 

northern GOA, including a sighting in 

August 2005 and September 2006, both 

of which occurred in the same area 

south of Kodiak Island. However, the 

overall number of North Pacific right 

whales using habitats other than the 

Bering Sea is not known. 

The taxonomic status of right whales 

worldwide has recently been revised in 

light of genetic analysis (see Rosenbaum 

et al., 2000; Gaines et al., 2005). 

Applying a phylogenetic species 

concept to molecular data separates 

right whales into three distinct species: 

Eubalaena glacialis (North Atlantic), E. 

japonica (North Pacific) and E. australis 

(Southern Hemisphere). We formally 

recognized this distinction for the 

purpose of management in a final rule 

published on April 10, 2003 (68 FR 

17560), but subsequently determined 

that the issuance of this rule did not 

comply with the requirements of the 

ESA, and thus rescinded it (70 FR 1830, 

January 11, 2005) prior to beginning the 

process anew. We published a proposed 

rule on December 27, 2006 (71 FR 

77694), to list the North Pacific right 

whale, E. japonica, separately as an 

endangered species. 

Critical Habitat 

Section 3 of the ESA defines critical 

habitat (CH) as ‘‘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 essential 

to the conservation of the species and 

which may require special management 

considerations or protection; and 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed that are determined by the 

Secretary to be essential for the 

conservation of the species.’’ Section 3 

of the ESA (16 U.S.C. 1532(3)) also 

defines the terms ‘‘conserve,’’

‘‘conserving,’’ and ‘‘conservation’’ to 

mean ‘‘to use, and the use of, all 

methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to this chapter are no longer 

necessary.’’

Section 4 of the ESA requires that 

before designating CH, the Secretary 

consider economic impacts, impacts on 

national security, and other relevant 

impacts of specifying any particular area 

as CH. The Secretary may exclude any 

area from CH if the benefits of exclusion 

outweigh the benefits of inclusion, 

unless excluding an area from CH will 

result in the extinction of the species 

concerned. Once CH is designated, 

section 7(a)(2) of the ESA requires that 

each Federal agency shall, in 

consultation with and with the 

assistance of NMFS, ensure that any 

action authorized, funded, or carried out 

by such agency is not likely to result in 

the destruction or adverse modification 

of CH. 

CH for the Northern Right Whale 

On July 6, 2006, we published a Final 

Rule (71 FR 38277) to revise the CH for 

the northern right whale by designating 

areas within the North Pacific Ocean as 

CH under the ESA. Two specific areas 

were designated, one in the GOA and 

another in the Bering Sea. These are the 

same areas being proposed here for the 

North Pacific right whale. In our 2006 

Final Rule (71 FR 38277; July 6, 2006) 

we stated the critical habitat comprised 

approximately 36,750 square miles 

(95,200 sq km) of marine habitat. 

However, our most recent mapping 

calculation indicates that the area is 

approximately 95,325 square miles 

(36,800 square miles) of marine habitat. 

A description of, and the basis for, the 

proposed designation follow. 

Geographical Area Occupied by the 

Species 

The ESA defines CH (in part) as areas 

within the geographical area occupied 

by the species at the time it was listed 

under the ESA. Because this 

geographical area has not been 

previously described for the North 

Pacific right whale, it is necessary to 

establish this range when proposing to 

designate CH. 

Prior to the onset of commercial 

whaling in 1835, right whales were 

widely distributed across the North 

Pacific (Scarff, 1986; Clapham et al., 

2004; Shelden et al., 2005). By 1973, the 

North Pacific right whale had been 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61091 

severely reduced by commercial 

whaling. Sighting data from this 

remnant population are too sparse to 

identify the range of these animals in 

1973. However, no reason exists to 

suspect that the right whales that 

remain alive today inhabit a 

substantially different range than right 

whales alive during the time of the 

Soviet catches; indeed, given the 

longevity of this species, it is likely that 

some of the individuals who survived 

that whaling episode remain extant 

now. Consequently, recent habitat use is 

unlikely to be different from that at or 

before the time of listing. 

Both the SEBS and the western GOA 

(shelf and slope waters south of Kodiak) 

have been the focus of many sightings 

(as well as the illegal Soviet catches) in 

recent decades. In general, the majority 

of North Pacific right whale sightings 

(historically and in recent times) have 

occurred from about 40° N to 60° N 

latitude (lat.). There are historical 

records from north of 60° N lat., but 

these are rare and are likely to have 

been misidentified bowhead whales. 

North Pacific right whales have on rare 

occasions been recorded off California 

and Mexico, as well as off Hawaii. 

However, as noted by Brownell et al. 

(2001), there is no evidence that either 

Hawaii or the west coast of North 

America from Washington State to Baja 

California were ever important habitats 

for right whales. Given the amount of 

whaling effort as well as the human 

population density in these regions, it is 

highly unlikely that substantial 

concentrations of right whales would 

have passed unnoticed. Furthermore, no 

archaeological evidence exists from the 

U.S. west coast suggesting that right 

whales were the target of local native 

hunts. Consequently, the few records 

from this region are considered to 

represent vagrants. The geographical 

area occupied by the North Pacific right 

whale at the time of ESA listing extends 

over a broad area of the North Pacific 

Ocean, between 120° E and 123° W 

longitude and 40° N and 60° N latitude, 

as depicted in Figure 1. 

BILLING CODE 3510–22–S 


rfrederick on PROD1PC67 with PROPOSALS
61092 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

BILLING CODE 3510–22–C 


rfrederick on PROD1PC67 with PROPOSALSER29OC07.000</GPH>
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61093 

Unoccupied Areas 

ESA section 3(5)(A)(ii) further defines 

CH to include ‘‘specific areas outside 

the geographical area occupied’’ if the 

areas are determined by the Secretary to 

be ‘‘essential for the conservation of the 

species.’’ 50 CFR 424.12(e) specifies that 

NMFS ‘‘shall designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species.’’

We are not proposing to designate any 

areas not occupied at the time of listing 

because any such areas are presently 

unknown (if they exist), and the value 

of any such habitat in conserving this 

species cannot be determined. Future 

revisions to the CH of the North Pacific 

right whale may consider new 

information which might lead to 

designation of areas outside the 

occupied area of these whales. 

Physical or Biological Features Essential 

to the Conservation of the Species 

In determining what areas are CH, 50 

CFR 424.12(b) requires that we 

‘‘consider those physical or biological 

features that are essential to the 

conservation of a given species 

including space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing of offspring; and habitats 

that are protected from disturbance or 

are representative of the historical 

geographical and ecological distribution 

of a species.’’ The regulations further 

direct us to ‘‘focus on the principal 

biological or physical constituent 

elements . . . that are essential to the 

conservation of the species,’’ and 

specify that the ‘‘known primary 

constituent elements shall be listed with 

the critical habitat description.’’ The 

regulations identify primary constituent 

elements (PCE) as including, but not 

limited to: ‘‘roost sites, nesting grounds, 

spawning sites, feeding sites, seasonal 

wetland or dryland, water quality or 

quantity, host species or plant 

pollinator, geological formation, 

vegetation type, tide, and specific soil 

types.’’ An area must contain one or 

more PCEs to be eligible for designation 

as CH; an area lacking a PCE may not 

be designated in the hope it will acquire 

one or more PCEs in the future. 

NMFS scientists considered PCEs for 

right whales in the North Pacific during 

a workshop held during July 2005. 

Unfortunately, many data gaps exist in 

our knowledge of the ecology and 

biology of these whales, and very little 

is known about the PCEs that might be 

necessary for their conservation. The 

life-requisites for such factors as 

temperatures, depths, substrates, are 

unknown, or may be highly variable. 

One certainty is the metabolic necessity 

of prey species to support feeding by 

right whales. Examination of harvested 

whales in the North Pacific and limited 

plankton tows near feeding right whales 

in recent years show these whales feed 

on several species of zooplankton. We 

have determined these are described by 

several species of large copepods and 

other zooplankton which constitute the 

primary prey of the North Pacific right 

whale. The PCEs for the North Pacific 

right whale are species of large 

zooplankton in areas where right whale 

are known or believed to feed. In 

particular, these are: the copepods 

Calanus marshallae, Neocalanus 

cristatus, and N. plumchrus. and a 

euphausiid, Thysanoessa raschii, whose 

very large size, high lipid content, and 

occurrence in the region likely makes it 

a preferred prey item for right whales (J. 

Napp, pers. comm.). A description of 

the proposed CH (below) establishes the 

presence of these PCEs within those 

areas. In addition to the physical 

presence of these PCEs within the 

proposed CH, it is likely that certain 

physical forcing mechanisms are 

present which act to concentrate these 

prey in densities which allow for 

efficient foraging by right whales. There 

may in fact be critical or triggering 

densities below which right whale 

feeding does not occur. Such densities 

are not presently described for the right 

whales in the North Pacific, but have 

been documented in the Atlantic. 

Accordingly, the proposed CH 

encompasses areas in which the 

physical and biological oceanography 

combines to promote high productivity 

and aggregation of large copepods into 

patches of sufficient density for right 

whales. The PCEs, essential for the 

conservation of the North Pacific right 

whale, and these physical forcing or 

concentrating mechanisms, contribute 

to the habitat value of the areas 

proposed for designation. 

Special Management Considerations or 

Protection 

An occupied area may be designated 

as CH if it contains physical and 

biological features that ‘‘may require 

special management considerations or 

protection.’’ 50 CFR 424.02(j) defines 

‘‘special management considerations or 

protection’’ to mean ‘‘any methods or 

procedures useful in protecting physical 

and biological features of the 

environment for the conservation of 

listed species.’’ We considered whether 

the copepods and other zooplankton 

which have been identified as the PCEs 

for the North Pacific right whale may 

require special management 

considerations or protection. The 

proposed CH areas support extensive 

and multi-species commercial fisheries 

for pollock, flatfish, cod, various crabs, 

and other resources (but not salmon, as 

salmon fisheries in Alaska are restricted 

to State waters, except in the case of 

trolling which is permitted in Federal 

waters but only immediately adjacent to 

the Southeast Alaska coastline; these 

areas are not included in the proposed 

CH areas). We believe the identified 

PCEs would not be harmed by these 

Federally managed fisheries. However, 

plankton communities and species are 

vulnerable to physical and chemical 

alterations within the water column due 

to both natural processes, such as global 

climate change or the Pacific Decadal 

Oscillation, as well as pollution from 

various potential sources, including oil 

spills, discharges from oil and gas 

drilling and production, and fish 

processing waste discharges. Because of 

the vulnerabilities to pollution sources, 

these PCEs may require special 

management or protection through such 

measures as conditioning Federal 

permits or authorizations through 

special operational restraints, mitigative 

measures, or technological changes. The 

2005 wreck of the M/V Selendang Ayu 

near Unalaska caused the release of 

approximately 321,000 gallons 

(1,215,117 litres) of fuel oil and 15,000 

gallons (56,781 litres) of diesel into the 

Bering Sea. That incident has 

precipitated recommendations for 

regulations which would improve 

navigational safety in the area for the 

protection of the marine environment. 

While such protections are not targeted 

towards copepods or zooplankton per 

se, they would act to conserve these 

PCEs. 

We request comment on the extent to 

which the designated PCEs may require 

special management considerations or 

protection. The contributions of these 

management measures are also relevant 

to the exclusion analysis under section 

4(b)(2) of the ESA, and will be 

considered further in a later section of 

this notice. 

Proposed Critical Habitat 

The current abundance of North 

Pacific right whales is considered to be 

very low in relation to historical 

numbers or their carrying capacity (not 

determined). The existence of a 

persistent concentration of right whales 

found within the SEBS since 1996 is 

somewhat extraordinary in that it may 


rfrederick on PROD1PC67 with PROPOSALS
61094 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

represent a significant portion of the 

remaining population. These areas of 

concentration where right whales feed 

are characterized by certain physical 

and biological features which include 

nutrients, physical oceanographic 

processes, certain species of 

zooplankton, and long photoperiod due 

to the high latitude. We consider these 

feeding areas, supporting a significant 

assemblage of the remaining North 

Pacific right whales, to be critical in 

terms of their conservation value. We 

have based our proposed designation of 

CH on these areas, rather than where 

right whales have appeared singly, in 

low numbers, or in transit. We have 

been able to substantiate this 

assumption with observations of feeding 

behavior, direct sampling of plankton 

near feeding right whales, or records of 

stomach contents of dead whales. These 

assumptions underlie the proposed CH 

areas shown in Figure 2 and described 

below. Two areas are proposed: an area 

of the SEBS and an area south of Kodiak 

Island in the GOA. 

Shelden et al. (2005) reviewed prey 

and habitat characteristics of North 

Pacific right whales. They noted that 

habitat selection is often associated with 

features that influence abundance and 

availability of a predator’s prey. Right 

whales in the North Pacific are known 

to prey upon a variety of zooplankton 

species. Availability of these 

zooplankton greatly influences the 

distribution of right whales on their 

feeding grounds in the SEBS and GOA. 

Right whales require zooplankton 

patches of very high density, and 

zooplankton are typically small and 

distributed over space and time (Mayo 

and Marx, 1990). Typical zooplankton 

sampling is too broad-scale in nature to 

detect patches of these densities, and 

directed studies employing fine-scale 

sampling cued by the presence of 

feeding right whales are the only means 

of doing this (Mayo and Marx, 1990). 

Accordingly, there may be no obvious 

correlation between the abundance and 

distribution of prey copepods and 

euphausiids (as measured by broadscale oceanographic sampling) and the 

distribution of right whales (M. 

Baumgartner, in prep.) In light of this, 

we must rely upon the whales 

themselves to indicate the location of 

important feeding areas in the North 

Pacific. Aggregations of right whales in 

high latitudes can be used with high 

confidence as an indicator of the 

presence of suitable concentrations of 

prey, and thus of feeding behavior by 

the whales. Right whales feed daily 

during spring and summer, and studies 

in the North Atlantic have consistently 

found an association between 

concentrations of whales and feeding 

behavior, with dense copepod patches 

recorded by oceanographic sampling 

around such groups of whales (Mayo 

and Marx, 1990; Baumgartner et al., 

2003a, 2003b). In the North Atlantic, an 

analysis of sighting data by NMFS 

indicated that a density of four or more 

right whales per 100 nm2 was a reliable 

indicator of a persistent feeding 

aggregation (Clapham and Pace, 2001), 

and this had been used for Dynamic 

Area Management fisheries closures to 

reduce the risk of right whales becoming 

entangled in fishing gear. While this 

metric is a reliable indicator of the 

presence of feeding aggregations in the 

North Atlantic, it is not necessarily the 

only metric suitable for application in 

the North Pacific; the much smaller 

population of right whales in the eastern 

North Pacific Ocean typically results in 

sightings of single animals or pairs. 

Unlike with larger groups, such small 

numbers sometimes indicate transient 

passage through an area and thus cannot 

be unequivocally linked with feeding 

behavior. However, while sporadic 

sightings of right whales in such small 

numbers generally would not be 

considered a reliable indication of a 

feeding area, consistent sightings of 

right whales - even of single individuals 

and pairs - in a specific area in spring 

and summer over a long period of time 

is sufficient indication that the area is 

a feeding area containing suitable 

concentrations of copepods. 

Therefore, in the absence of data 

which describe the densities, as well as 

presence, of the PCEs themselves, the 

distribution of right whales is used here 

as a proxy for the existence of suitably 

dense copepod and euphausiid patches 

and thus to identify the areas proposed 

herein for designation as CH. Figure 2 

depicts the proposed critical habitats 

and the best available sightings data. 

BILLING CODE 3510–22–S 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61095 


rfrederick on PROD1PC67 with PROPOSALSER29OC07.001</GPH><FNP>
61096 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

Gulf of Alaska 

We propose to designate CH in the 

GOA (Figure 3), to be described as an 

area delineated by a series of straight 

lines connecting the following 

coordinates in the order listed: 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. 

The area described by these boundaries 

lies completely within the waters of the 

United States and its Exclusive 

Economic Zone (EEZ) and outside of 

waters of the State of Alaska. State 

waters extend seaward for 3 nautical 

miles from the shoreline; very few 

sightings occurred within state waters. 

The best available sightings data on 

right whales in this area totaled 5 out of 

14 encounters in the GOA. 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61097 


rfrederick on PROD1PC67 with PROPOSALSER29OC07.002</GPH>
61098 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

Southeastern Bering Sea 

We propose to designate CH in the 

Bering Sea (Figure 4); to be described as 

an area described by a series of straight 

lines connecting the following 

coordinates in the order listed: 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 area described 

by these boundaries lies completely 

within the waters of the United States 

and its EEZ and outside of waters of the 

State of Alaska. State waters extend 

seaward for 3 nautical miles from the 

shoreline. Because very few sightings 

occurred within 3 nautical miles of 

shore, State waters are not included in 

the proposed CH. The best available 

information on right whale encounters 

occurring totaled 182 within this area, 

out of 184 encounters north of the 

Aleutian Islands. 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61099 

BILLING CODE 3510–22–C 


rfrederick on PROD1PC67 with PROPOSALSER29OC07.003</GPH>
61100 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

Physical Processes and the Existence of 

PCEs Within the Proposed Critical 

Habitat 

Southeastern Bering Sea Slope Waters 

The Bering Sea slope is a very 

productive zone, sometimes referred to 

as the ’Greenbelt’, where annual 

primary production can exceed that on 

the adjacent shelf and basin by 60 

percent and 270 percent, respectively 

(Springer et al., 1996). Physical 

processes at the shelf edge, such as 

intensive tidal mixing, eddies, and upcanyon flow bring nutrients to the 

surface, thereby supporting enhanced 

productivity and elevated biomass of 

phytoplankton, zooplankton, and fish. 

Western North Pacific right whales have 

been observed in association with 

oceanic frontal zones that produce 

eddies southeast of Hokkaido Island, 

Japan, and southeast of Cape Patience 

(Mys Terpeniya), Sakhalin Island, in the 

Okhotsk Sea (Omura et al., 1969). 

Whether the Bering Slope Current, or 

eddies shed from it, support production 

or entrain right whale prey is unknown. 

From August to October in 1955 and 

1956, Soviet scientists observed 

aggregations of Calanus spp. between 

the Pribilof Islands and the Aleutian 

Islands (around 170° W long.) that were 

identified as C. finmarchicus, though, as 

mentioned above, were probably C. 

marshallae (Klumov, 1963). Flint et al. 

(2002) also report high concentrations of 

C. marshallae at frontal zones near the 

Pribilof Islands, with especially high 

biomass noted for the subthermohaline 

layer. This oceanographic front 

effectively separates slope and outer 

shelf Neocalanus spp. from the inshore 

middle shelf community of C. 

marshallae (Vidal and Smith, 1986). 

Right whales were found on both sides 

of this frontal zone (that coincides with 

the shelf break at 170 m) during both the 

19th and 20th centuries. This is similar 

to the habitat described by Baumgartner 

et al. (2003a) for right whales feeding in 

the North Atlantic. Six right whales that 

were caught under scientific permit in 

late July-early August 1962–63 in Bering 

Sea slope waters had exclusively 

consumed N. cristatus (C. cristatus: 

Omura et al., 1969). Although oceanic 

species such as Neocalanus spp. usually 

enter diapause and migrate to depths 

greater than 200 m by late summer in 

the slope waters of the Bering Sea (Vidal 

and Smith, 1986), right whales may still 

be able to utilize these resources by 

targeting regions where the bottom 

mixed layer forces the zooplankton into 

shallower, discrete layers (e.g. 

Baumgartner et al., 2003a). 

Southeastern Bering Sea Middle-Shelf 

Waters 

The SEBS shelf has been the focus of 

intense oceanographic study since the 

late 1970s (e.g. Schumacher et al., 1979; 

Coachman, 1986; Napp et al., 2000; 

Hunt et al., 2002a; Hunt et al., 2002b), 

largely due to the considerable 

commercial fishing effort in the area 

(National Research Council, 1996). 

Coachman (1986) described the now 

well-established hydrographic domains 

of the inner-, middle- and outer-shelf, 

separated by a front or transition zone 

at roughly the 50 m (inner front) and 

100 m (outer front) isobaths. During the 

1990s, research focused on these 

domains demonstrated dynamic 

advection of nutrient-rich Bering slope 

water onto the shelf in both winter and 

summer, via eddies, meanders, and upcanyon flow (Schumacher and Stabeno, 

1998; Stabeno and Hunt, 2002). These 

intrusions of nutrient-rich water, 

physical factors related to water column 

stratification, and long summer day 

length results in a very productive food 

web over the SEBS shelf (e.g. Livingston 

et al.,1999; Napp et al., 2002; Coyle and 

Pinchuk, 2002; Schumacher et al., 

2003). Specifically, copepod species 

upon which right whales feed (e.g., C. 

marshallae, Pseudocalanus spp., and 

Neocalanus spp.) are among the most 

abundant of the zooplankton sampled 

over the middle shelf (Cooney and 

Coyle, 1982; Smith and Vidal, 1986). 

Small, dense patches (to >500 mg/m– 3) of euphausiids (T. raschii, T. 

inermis), potential right whale prey, 

have also been reported for waters near 

the SEBS inner front (Coyle and 

Pinchuk, 2002). 

Zooplankton sampled near right 

whales seen in the SEBS in July 1997 

included C. marshallae, P. newmani, 

and Acartia longiremis (Tynan, 1998). C. 

marshallae was the dominant copepod 

found in these samples as well as 

samples collected near right whales in 

the same region in 1999 (Tynan et al., 

2001). C. marshallae is the only ‘‘large’’

calanoid species found over the SEBS 

middle shelf (Cooney and Coyle, 1982; 

Smith and Vidal, 1986). Concentrations 

of copepods were significantly higher in 

1994–98 than in 1980–81 by at least an 

order of magnitude (Napp et al., 2002), 

and Tynan et al., (2001) suggest that this 

increased production may explain the 

presence of right whales in middle shelf 

waters. However, at least three right 

whales were observed in 1985 in the 

same location as the middle shelf 

sightings reported in the late 1990s 

(Goddard and Rugh, 1998). 

Gulf of Alaska 

The central GOA is dominated by the 

Alaskan gyre, a cyclonic feature that is 

demarcated to the south by the eastward 

flowing North Pacific Current and to the 

north by the Alaska Stream and Alaska 

Coastal Current (ACC), which flow 

westward near the shelf break. The 

bottom topography of this region is 

rugged and includes seamounts, ridges, 

and submarine canyons along with the 

abyssal plain. Strong semi-diurnal tides 

and current flow generate numerous 

eddies and meanders (Okkonen et al., 

2001) that influence the distribution of 

zooplankton. 

Copepods are the dominant taxa of 

mesozooplankton found in the GOA and 

are patchily distributed across a wide 

variety of water depths. In northern 

GOA shelf waters, the late winter and 

spring zooplankton is dominated by 

calanoid copepods (Neocalanus spp.), 

with a production peak in May a cycle 

that appears resistant to environmental 

variability associated with El Nino 

Southern Oscillation (ENSO) (Coyle and 

Pinchuk, 2003). In oceanic waters (50° 

N lat., 145° W long.), N. plumchrus 

dominate (Miller and Nielsen, 1988; 

Miller and Clemons, 1988) and have 

demonstrated dramatic shifts in the 

timing of annual peak biomass from 

early May to late July (Mackas et al., 

1998). From late summer through 

autumn, N. plumchrus migrate to deep 

water ranging from 200 m to 2000 m 

depending on location within the GOA 

(Mackas et al., 1998). The three right 

whales caught under scientific permit 

on August 22, 1961, south of Kodiak 

Island had all consumed N. plumchrus 

(C. plumchrus: Omura et al., 1969), 

potentially by targeting areas where 

adult copepods remained above 200 m 

(e.g. Baumgartner et al., 2003a). 

The area proposed as CH within the 

SEBS presents several similarities to 

that proposed within the GOA. Both 

areas are influenced by large eddies, 

submarine canyons, or frontal zones 

which enhance nutrient exchange and 

act to concentrate prey. These areas lie 

adjacent to major ocean currents (the 

ACC and the Aleutian ocean passes) and 

are characterized by relatively low 

circulation and water movement (P. 

Stabeno, pers. com.). Both proposed CH 

areas contain the designated PCEs and 

support feeding by North Pacific right 

whales. 

Right Whale Sightings as a Proxy for 

Locating the PCEs 

As noted above, consistent sightings 

of right whales - even of single 

individuals and pairs - in a specific area 

in spring and summer over an extended 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61101 

period of time can be used with high 

confidence as an indicator of the 

presence of the PCEs in a feeding area. 

We have used recent sighting records to 

make this determination because these 

records are a more reliable indicator of 

current distribution of feeding whales 

than historical sightings, especially 

given that most of the latter relate to 

animals that were removed from the 

population by whaling and are thus no 

longer extant. Of the 184 recent right 

whale sitings reported north of the 

Aleutian Islands, 182 occurred within 

the specific area proposed as critical 

habitat in the Bering Sea. Since 1996, 

right whales have been consistently 

sighted in this area over a period of 

years during the spring and summer 

feeding seasons. For example, NMFS 

surveys alone recorded between two 

and four sightings in 1996 (Goddard and 

Rugh, 1998), 13 sightings in 2000 (Le 

Duc et al., 2004) and over 23 sightings 

in 2004. Single right whales as well as 

pairs and aggregations of up to five 

animals were sighted during this period, 

and all sightings were within 100 nm2 

of one another. Based on consideration 

of these factors, we conclude that the 

right whale sightings in the specific area 

in the Bering Sea described in Figure 2 

are a suitable proxy for the presence of 

the PCEs and therefore propose this area 

as critical habitat for the North Pacific 

right whale. Recent sightings of right 

whales are fewer in number in the GOA 

than in the Bering Sea. However, three 

individuals were sighted recently in the 

specific area proposed as critical habitat 

in the GOA. These sightings occurred at 

a time when right whales typically feed 

in the North Pacific Ocean. In July 1998, 

a single right whale exhibiting behavior 

consistent with feeding activity was 

observed among a group of about eight 

humpback whales (Waite et al., 2003). 

In August 2004, a NMFS researcher 

observed a single right whale among a 

group of humpbacks. In August 2005, a 

NMFS researcher reported yet another 

sighting of a right whale within 250 to 

500 meters of groups of humpback and 

fin whales. Acoustic monitoring of the 

area conducted in summer 2000 

recorded what appeared to be right 

whale calls in the area on September 6 

(Waite, Wynne and Mellinger, 2003). 

Compared to the Bering Sea sightings, 

the GOA right whale sightings do not 

provide as strong an indication of 

feeding right whales. However, 

individual right whales have been 

directly observed in 1998, 2004, and 

2005 and detected acoustically in 2000 

during the spring and summer feeding 

seasons in the specific area in the GOA 

described in Figure 2. It is also 

instructive that one of these animals 

was exhibiting feeding behavior at the 

time it was observed. Based on 

consideration of these factors, we 

propose that the right whale sightings in 

the specific area in the GOA described 

in Figure 2 are a reasonably reliable 

proxy for the presence of the PCEs and 

therefore proposes this area as critical 

habitat for the North Pacific right whale. 

Activities Which may be Affected by 

This Designation 

Section 4(b)(8) of the ESA requires 

that we evaluate briefly and describe, in 

any proposed or final regulation to 

designate critical habitat, those 

activities involving a Federal action that 

may adversely modify such habitat or 

that may be affected by such 

designation. A wide variety of activities 

may affect CH and, when carried out, 

funded, or authorized by a Federal 

agency, require that an ESA section 7 

consultation be conducted. Such 

activities include, but are not limited to, 

oil and gas leasing and development on 

the Outer Continental Shelf (OCS), 

Federal management of high seas 

fisheries in territorial waters and the 

EEZ of the United States, dredge and 

fill, mining, pollutant discharges, other 

activities authorized or conducted by 

the Army Corps of Engineers and the 

Environmental Protection Agency 

(EPA), and military training exercises 

and other functions of the U.S. armed 

forces. 

This proposed designation of CH will 

provide these agencies, private entities, 

and the public with clear notification of 

proposed CH for North Pacific right 

whales and the boundaries of the 

habitat. This proposed designation will 

also assist these agencies and others in 

evaluating the potential effects of their 

activities on CH and in determining if 

section 7 consultation with NMFS is 

needed. 

Exclusion Process 

Section 4 (b)(2) of the ESA states that 

CH shall be designated on the basis of 

the best scientific data available and 

after taking into consideration its 

economic impact, the impact on 

national security, and any other relevant 

impact. Any area may be excluded from 

CH if the benefits of exclusion are found 

to outweigh those of inclusion, unless 

such exclusion would result in the 

extinction of the species. We will apply 

the statutory provisions of the ESA, 

including those in section 3 that define 

‘‘critical habitat’’ and ‘‘conservation’’ to 

determine whether a proposed action 

might result in the destruction or 

adverse modification of CH. Based upon 

the best available information, it 

appears that the probability of oil or gas 

exploration activities within (or 

immediately adjacent to) proposed right 

whale critical habitat is very low, 

certainly within the 10–year time frame 

of our assessment. Likewise, there are 

no commercial production facilities in 

operation, currently under 

development, nor ’permitted’ for future 

development, within these critical 

habitat areas. Unless contrary 

information emerges suggesting 

exploration and development are 

imminent, there is little expectation that 

Federal actions in the oil and gas sector 

will have the potential to ‘‘destroy or 

adversely modify’’ critical habitat as 

proposed under this action, within the 

analytical time horizon. 

The oil and gas industry has 

expressed current interest in exploring 

and developing oil and gas resources in 

the North Aleutian Basin OCS Planning 

Area. We also understand that the State 

of Alaska has announced support for 

this activity. However, we lack specific 

information regarding this potential 

exploration and development activity 

and have been unable to gather 

information on these activities. 

Therefore, we specifically request 

comment on the type of exploration and 

development activities under 

consideration and the likelihood for 

such activities to occur, a description of 

the areas in the North Aleutian Basin 

that may be affected by any such 

activities, the extent to which the 

activities may affect the proposed 

critical habitat, and any other issues that 

may be relevant to the analysis of 

impacts and the exclusion process 

under section 4(b)(2) of the ESA. Any 

information we acquire and public 

comments received on these issues will 

be considered in analyzing the impacts 

of the designation of critical habitat and 

in the section 4(b)(2) exclusion process. 

While we expect to consult annually 

on fishery related proposed actions that 

‘‘may affect’’ the proposed CH, none of 

these consultations would be expected 

to result in a finding of ‘‘adverse 

modification,’’ and thus none would be 

expected to result in imposition of costs 

on commercial fishery participants. 

Because fisheries do not target or affect 

the PCEs for the North Pacific right 

whale, it then follows that no fishing or 

related activity (e.g., at-sea processing, 

transiting) would be expected to be 

restricted or otherwise altered as a result 

of critical habitat designation in the two 

areas being proposed. We did not find 

any specific areas in which the costs 

exceed benefits for activities that may 

affect CH, and we have therefore not 

proposed the exclusion of any areas 

from designation. 


rfrederick on PROD1PC67 with PROPOSALS
61102 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

This action is anticipated to result in 

consultations with EPA on seafood 

processing waste discharges; with the 

Department of Defense (DoD) on 

military ‘‘underway training’’ activities 

it authorizes; and with the U.S. Coast 

Guard (USCG) and Minerals 

Management Service (MMS) on 

approvals of oil spill response plans, 

among others. It is unlikely that these 

activities will result in an ‘‘adverse 

modification’’ finding, and, thus, no 

mandatory modifications would be 

imposed. It must follow then that no 

‘‘costs’’ are imposed as a result of 

designation beyond the small costs 

attributable to inter-agency 

(occasionally intra-agency) consultation. 

As explained in the impacts analysis 

prepared for this action, some larger 

benefit accrues to society as a result of 

designation, including the educational 

value derived from identification and 

designation of the critical habitat areas 

within which the PCEs are found. Thus 

we believe that the benefits of exclusion 

are outweighed by the benefits of 

inclusion. Our analysis (available on the 

NMFS Alaska Region website http:// 

www.fakr.noaa.gov/ ) did not find any 

specific areas which merit such 

exclusion in consideration of 

economics, nor have we determined that 

national security interests or other 

relevant impact warrant the exclusion of 

any specific areas from this proposed 

designation. We solicit comments on 

these benefits and costs as well as our 

determinations. 

Public Comments Solicited 

We request interested persons to 

submit comments, information, and 

suggestions concerning this proposed 

rule to designate CH for the North 

Pacific right whale. Comments or 

suggestions from the public, other 

concerned governments and agencies, 

the scientific community, industry, or 

any other interested party concerning 

this proposed rule are solicited. 

Comments particularly are sought 

concerning: 

(1) Maps and specific information 

describing the amount, distribution, and 

use type (e.g., feeding, calving, 

migration) of the North Pacific right 

whale; 

(2) Information as to the identification 

of physical or biological features which 

may be essential to the conservation of 

the North Pacific right whale; 

(3) Information on whether the 

copepods and euphausiids in feeding 

areas identified by NMFS as PCEs, or 

any other physical or biological features 

that may be essential to the conservation 

of the North Pacific right whale, may 

require special management 

considerations or protection; 

(4) Information regarding the benefits 

of excluding any portions of the 

proposed CH, including the regulatory 

burden that designation may impose; 

(5) Information regarding the benefits 

of designating particular areas as CH; 

(6) Current or planned activities in the 

areas proposed for designation, and 

their possible impacts on proposed CH; 

(7) Any information regarding 

potential oil and gas exploration and 

development activities in the North 

Aleutian Basin OCS Planning Area, 

including information on the type of 

exploration and development activities 

under consideration and the likelihood 

for such activities to occur, a 

description of the areas in the North 

Aleutian Basin that may be affected by 

any such activities, the extent to which 

the activities may affect the proposed 

critical habitat, and any other issues that 

may be relevant to the analysis of 

impacts and the exclusion process 

under section 4(b)(2) of the ESA; 

(8) Any foreseeable economic or other 

potential impacts resulting from the 

proposed designation; and 

(9) Whether specific unoccupied areas 

not presently proposed for designation 

may be essential to the conservation of 

the North Pacific right whale. 

You may submit your comments and 

materials concerning this proposal by 

any one of several methods (see 

ADDRESSES). The proposed rule, maps, 

fact sheets, and other materials relating 

to this proposal can be found on the 

NMFS Alaska Region website at http:// 

www.fakr.noaa.gov/. We will consider 

all comments and information received 

during the comment period on this 

proposed rule in preparing the final 

rule. Accordingly, the final decision 

may differ from this proposal. 

Public Hearings 

50 CFR 424.16(c)(3) requires the 

Secretary to promptly hold at least one 

public hearing if any person requests 

one within 45 days of publication of a 

proposed regulation to designate CH. 

Requests for public hearing must be 

made in writing (see ADDRESSES) by 

December 13, 2007. Such hearings 

provide the opportunity for interested 

individuals and parties to give 

comments, exchange information and 

opinions, and engage in a constructive 

dialogue concerning this proposed rule. 

We encourage the public’s involvement 

in such ESA matters. 

Classification 

Regulatory Planning and Review 

This proposed rule has been 

determined to be significant for 

purposes of Executive Order (E.O.) 

12866. As part of our exclusion process 

under section 4(b)(2) of the ESA, the 

economic benefits and costs of the 

proposed critical habitat designations 

are described in our draft economic 

report. Data are not available to express 

all costs and benefits of CH designation 

in monetary terms. Indeed, many costs 

and benefits accrue outside of 

traditional markets and, therefore, are 

not typically associated with a 

‘‘monetary’’ measure (e.g., subsistence 

activities). In such cases, an effort has 

been made to ‘‘quantify’’ benefits and 

costs in measurable units. Finally, some 

benefits and costs cannot be either 

monetized, nor quantified, yet are 

important to a full evaluation and 

understanding of a proposed action. In 

these instances, benefits and costs have 

been fully characterized in ‘‘qualitative’’

terms. Application of a benefit/cost 

framework is fully consistent with E.O. 

12866. 

In July 2006, NMFS revised the 

existing critical habitat for northern 

right whales to include critical habitat 

in the eastern North Pacific (71 FR 

38227, July 6, 2006). Subsequently, it 

was determined that the North Atlantic 

and North Pacific populations of 

northern right whale are, in fact, distinct 

species. This rule, therefore, proposes as 

critical habitat for the North Pacific 

right whale (currently proposed for 

listing 71 FR 77694, December 27, 2006) 

the same critical habitat that was 

finalized in 2006. The proposal would 

not have any additional effect because 

the habitat proposed for designation is 

the same that was designated in the 

previous rule. The analysis provided 

largely mirrors the analysis provided in 

the previous rulemaking, updated as 

necessary to account for new 

information, and does not result in any 

substantive changes to the analytical 

conclusions. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). We have prepared an 

initial regulatory flexibility analysis 

(IRFA), and this document is available 

upon request (see ADDRESSES). This 

IRFA evaluates the potential effects of 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61103 

the proposed CH designation on 

federally regulated small entities. The 

reasons for the action, a statement of the 

objectives of the action, and the legal 

basis for the proposed rule, are 

discussed earlier in the preamble. A 

summary of the analysis follows. 

The small entities that may be directly 

regulated by this action are those that 

seek formal approval (e.g., a permit) 

from, or are otherwise authorized by, a 

Federal agency to undertake an action or 

activity that ‘‘may affect’’ CH for the 

North Pacific right whale. Submission of 

such a request for a Federal agency’s 

approval, from a small entity, would 

require that agency (i.e., the ’action 

agency’) to consult with NMFS (i.e., the 

’consulting agency’). 

Consultations vary, from simple to 

complex, depending on the specific 

facts of each action or activity for which 

application is made. Attributable costs 

are directly proportionate to complexity. 

In the majority of instances projected to 

take place under the proposed CH 

designation, these costs are expected to 

accrue solely to the Federal agencies 

that are party to the consultation. In 

only the most complex of ‘‘formal 

consultations’’ might it be expected that 

a private sector applicant could 

potentially incur costs directly 

attributable to the consultation process 

itself. Furthermore, if destruction or 

adverse modification of CH is found at 

the conclusion of formal consultation, 

the applicant must implement 

modifications to avoid such effects. 

These modifications could result in 

adverse economic impacts. 

An examination of the Federal 

agencies with management, 

enforcement, or other regulatory 

authority over activities or actions 

within, or immediately adjacent to, the 

proposed CH area, resulted in the 

following list. Potential action agencies 

may include: the EPA, USCG, DoD, 

MMS, and NMFS. Activities or actions 

with a nexus to these Federal agencies 

which are expected to require 

consultation include: EPA permitting of 

seafood processing waste discharges atsea; USCG and MMS oil spill response 

plan approval, as well as emergency oil 

spill response; DoD authorization of 

military training activities in the Bering 

Sea and Aleutian Islands (BSAI) and 

GOA; MMS leasing activity, oil and gas 

exploration and production permitting, 

and NMFS fishery management actions 

in the BSAI and GOA. 

A 10–year ‘‘post-CH designation’’

analytical horizon was adopted, during 

which time we may reasonably expect 

to consult an estimated 27 times on CHrelated actions with one or more of the 

action agencies identified above. The 

majority of the consultations are 

expected to be ‘‘informal,’’ projected to 

represent approximately 52 percent of 

the total. The more complex and costly 

‘‘formal’’ consultations are projected to 

account for, perhaps, 37 percent; while 

the simplest and least costly ‘‘preconsultations’’ are expected 11 percent 

of the time. These figures reflect the best 

estimates information and experience 

can presently provide. 

On the basis of the underlying 

biological, oceanographic, and 

ecological science used to identify the 

PCEs that define CH for the North 

Pacific right whale, as well as the 

foregoing assumptions, empirical data, 

historical information, and accumulated 

experience regarding human activity in 

the BSAI and GOA, it is believed that 

only one federally authorized activity 

(among all those identified in the 

analyses and referenced above) has the 

potential to ‘‘destroy or adversely 

modify’’ right whale CH, albeit believed 

to be a relatively small potential. This 

one class of activity is OCS oil and gas 

exploration and production. 

As previously indicated, MMS has 

authority over OCS oil and gas 

permitting. An examination of 

published information from the MMS 

Alaska Region reveals that three MMS 

OCS planning areas overlap some 

portion of the proposed right whale CH 

areas. Further, MMS sources indicate 

that in only one of these has there been 

any exploratory well drilling (i.e., St. 

George Basin). Ten exploratory wells 

were permitted, all of which were 

completed in 1984 and 1985 (with no 

subsequent associated exploration 

activity). It appears that there has been 

no recent OCS oil and gas activity in 

and adjacent to the areas being proposed 

for critical habitat designation. MMS 

reports no planned or scheduled OCS 

lease sales for these areas through 2007 

(the end of the current 5–year LeaseSale planning cycle). However, both 

seismic acquisition and leasing took 

place in the adjacent North Aleutian 

Basin Planning Area through Sale 92 

held in 1988. Leases were held until 

1995, when a ‘‘buy-back’’ settlement 

was reached between leaseholders and 

the Federal government. There are no 

current OCS lease holdings in the St. 

George Basin or North Aleutian Basin 

Planning Areas. In January 2007, the 

President modified the Presidential 

withdrawal for the North Aleutian 

Basin, allowing the Secretary of the 

Interior to offer this OCS planning area 

for leasing during the next 5–year OCS 

leasing program (2007–2012). The 2007–

2012 program now includes a lease sale 

in the North Aleutian Basin to be held 

in 2011. MMS may also offer a sale in 

the North Aleutian Basin which would 

be confined to a small portion of the 

planning area previously offered during 

lease sale 92 in 1988. 

When MMS records were consulted as 

to the identity of the entities that 

previously held lease rights to the wells 

in the St. George Basin, six businesses 

were listed for the ten permitted 

exploratory wells. These include: 

SHELL Western E&P Inc. (2 wells); 

ARCO Alaska Inc. (3 wells); EXXON 

Corp. (2 wells); Mobile Oil Corp. (1 

well) (now merged with EXXON); GULF 

Oil Corp. (1 well); and CHEVRON USA 

Inc. (1 well). MMS records also indicate 

that the following nine companies 

submitted bids, jointly or individually, 

on blocks in the North Aleutian Basin 

under lease sale 92 held in 1988: 

Chevron, Unocal, Conoco, Murphy, 

Odeco, Amoco, Shell, Mobil, and 

Pennzoil. These data were last updated, 

according to the MMS website, March 

17, 2005. It would appear that none of 

these entities could reasonably be 

characterized as ‘‘small’’ for RFA 

purposes. All are widely recognized 

multi-national corporations and employ 

more than ‘‘500 full-time, part-time, 

temporary, or any other category of 

employees, in all of their affiliated 

operations worldwide’’ (the criterion 

specified by SBA for assessing entity 

size for this sector). 

The preferred alternative was 

compared to the mandatory ’No Action’

(or status quo) alternative. In addition, 

a third alternative was analyzed and its 

expected benefits and costs contrasted 

with the status quo and preferred 

alternatives. That alternative was based 

upon the proposed areas of the Bering 

Sea identified in an October 2000 

petition that requested critical habitat be 

designated for the northern right whale 

within the North Pacific Ocean. 

Because there appear to be no 

identifiable economic costs to any small 

entities attributable to the CH 

designation action, there cannot be an 

alternative to the proposed action that 

imposes lesser impacts, while achieving 

the purpose of the ESA and the 

objectives of this action, than are 

reflected in the preferred alternative. 

The action does not impose new 

recordkeeping or reporting requirements 

on small entities. The analysis did not 

reveal any Federal rules that duplicate, 

overlap or conflict with the proposed 

action. 

Military Lands 

The Sikes Act of 1997 (Sikes Act) (16 

U.S.C. 670a) required each military 

installation that includes land and water 

suitable for the conservation and 

management of natural resources to 


rfrederick on PROD1PC67 with PROPOSALS
61104 Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 

complete, by November 17, 2001, an 

Integrated Natural Resource 

Management Plan. The National Defense 

Authorization Act for Fiscal Year 2004 

(Public Law No. 108–136) amended the 

ESA to limit areas eligible for 

designation as critical habitat. 

Specifically, section 4(a)(3)(B)(i) of the 

ESA (16 U.S.C. 1533(a)(3)(B)(i)) now 

provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ We 

have determined no military lands 

would be impacted by this proposed 

rule. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O.) on regulations 

that significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking any 

action that promulgates or is expected to 

lead to the promulgation of a final rule 

or regulation that (1) is a significant 

regulatory action under E.O. 12866 and 

(2) is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

We have considered the potential 

impacts of this action on the supply, 

distribution, or use of energy, and we 

find the designation of critical habitat 

will not have impacts that exceed the 

thresholds identified above. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: 

(a) This proposed rule will not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, tribal governments, or the 

private sector and includes both 

‘‘Federal intergovernmental mandates’’

and ‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5) (7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’ The designation of CH does 

not impose a legally binding duty on 

non-Federal government entities or 

private parties. Under the ESA, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify CH under 

section 7. While non-Federal entities 

who receive Federal funding, assistance, 

permits or otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of CH, the legally 

binding duty to avoid destruction or 

adverse modification of CH rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

CH shift the costs of the large 

entitlement programs listed above to 

State governments. 

(b) Due to the prohibition against take 

of this species both within and outside 

of the designated areas, we do not 

anticipate that this proposed rule will 

significantly or uniquely affect small 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630, the 

proposed rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

The designation of CH affects only 

Federal agency actions. Private lands do 

not exist within the proposed CH and 

therefore would not be affected by this 

action. 

Federalism 

In accordance with E.O. 13132, this 

proposed rule does not have significant 

federalism effects. A federalism 

assessment is not required. In keeping 

with Department of Commerce policies, 

we request information from, and will 

coordinate development of, this 

proposed CH designation with 

appropriate State resource agencies in 

Alaska. The proposed designation may 

have some benefit to State and local 

resource agencies in that the areas 

essential to the conservation of the 

species are more clearly defined, and 

the PCEs of the habitat necessary to the 

survival of the North Pacific right whale 

are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist local governments in 

long-range planning (rather than waiting 

for case-by-case section 7 consultations 

to occur). 

Civil Justice Reform 

In accordance with E.O. 12988, the 

Department of the Commerce has 

determined that this proposed rule does 

not unduly burden the judicial system 

and meets the requirements of sections 

3(a) and 3(b)(2) of the E.O. We are 

proposing to designate CH in 

accordance with the provisions of the 

ESA. This proposed rule uses standard 

property descriptions and identifies the 

PCEs within the designated areas to 

assist the public in understanding the 

habitat needs of the North Pacific right 

whale. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This proposed rule does not contain 

new or revised information collection 

for which OMB approval is required 

under the Paperwork Reduction Act. 

This rule will not impose recordkeeping 

or reporting requirements on State or 

local governments, individuals, 

businesses, or organizations. An agency 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act 

We have determined that an 

environmental analysis as provided for 

under the National Environmental 

Policy Act of 1969 for CH designations 

made pursuant to the ESA is not 

required. See Douglas County v. Babbitt, 


rfrederick on PROD1PC67 with PROPOSALS
Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules 61105 

48 F.3d 1495 (9th Cir. 1995), cert. 

denied, 116 S.Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and agreements, 

which differentiate tribal governments 

from the other entities that deal with, or 

are affected by, the Federal Government. 

This relationship has given rise to a 

special Federal trust responsibility 

involving the legal responsibilities and 

obligations of the United States toward 

Indian Tribes and the application of 

fiduciary standards of due care with 

respect to Indian lands, tribal trust 

resources, and the exercise of tribal 

rights. E.O. 13175 – Consultation and 

Coordination with Indian Tribal 

Governments- outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. 

We have determined the proposed 

designation of CH for the North Pacific 

right whale in the North Pacific Ocean 

would not have tribal implications, nor 

affect any tribal governments or issues. 

None of the proposed CH occurs on 

tribal lands, affects tribal trust 

resources, or the exercise of tribal rights. 

The North Pacific right whale is not 

hunted by Alaskan Natives for 

traditional use or subsistence purposes. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

website at http://www.fakr.noaa.gov/ 

and is available upon request from the 

NMFS office in Juneau, Alaska (see 

ADDRESSES) 

List of Subjects in 50 CFR Part 226 

Endangered and threatened species. 

Dated: October 23, 2007. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend part 

226, title 50 of the Code of Regulations 

as set forth below: 

PART 226—DESIGNATED CRITICAL 

HABITAT 

1. The authority citation of part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533 

2. In § 226.203, the section heading 

and the introductory text are revised; 

and the headings for paragraphs (a) and 

(b) are revised to read as follows: 

§ 226.203 Critical habitat for right whales. 

Critical habitat is designated for right 

whales in the North Atlantic and North 

Pacific Oceans as described in 

paragraphs (a) and (b) of this section. 

The textual descriptions of critical 

habitat are the definitive source for 

determining the critical habitat 

boundaries. General location maps are 

provided for critical habitat in the North 

Pacific Ocean for general guidance 

purposes only, and not as a definitive 

source for determining critical habitat 

boundaries. 

(a) North Atlantic right whale 

(Eubalaena glacialis)—* * * 

* * * * * 

(b) North Pacific right whale 

(Eubalaena japonica)—* * * 

* * * * * 

[FR Doc. 07–5367 Filed 10–26–07; 8:45 am] 

BILLING CODE 3510–22–S 


rfrederick on PROD1PC67 with PROPOSALS