61690 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

* * * * * 

Dated: August 12, 2010. 

Jane Lyder, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2010–25026 Filed 10–5–10; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 100924467–0467–02] 

RIN 0648–XZ26 

Endangered and Threatened Wildlife 

and Designating Critical Habitat for the 

Endangered North Atlantic Right 

Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of 90-day petition 

finding, and notice of 12-month 

determination. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), announce our 

90-day finding and 12-month 

determination on how to proceed with 

a petition to revise critical habitat for 

the North Atlantic right whale 

(Eubalaena glacialis) pursuant to the 

Endangered Species Act of 1973, as 

amended (ESA). The petition seeks to 

revise the existing critical habitat 

designation by expanding the areas 

designated as critical feeding and 

calving habitat areas for the North 

Atlantic right whale. Additionally, the 

petition seeks to include a migratory 

corridor as part of the critical habitat 

designation for the North Atlantic right 

whale. Our 90-day finding is that the 

petition, in conjunction with the 

information readily available in our 

files, presents substantial scientific 

information indicating that the 

requested revision may be warranted. 

Our 12-month determination on how to 

proceed with the petition is that we 

intend to continue our ongoing 

rulemaking process with the expectation 

that a proposed critical habitat rule for 

the North Atlantic right whale will be 

submitted to the Federal Register for 

publication in the second half of 2011. 

DATES: The finding announced in this 

document was made on October 6, 2010. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.nero.noaa.gov/nero/regs/ 

com.html. Supporting documentation 

used to prepare this finding is available 

for public inspection by appointment 

during normal business hours at the 

NMFS Northeast Regional Office, 55 

Great Republic Drive, Gloucester, MA 

01930, by telephone at 978–281–9328; 

or by facsimile at 978–281–9394. 

FOR FURTHER INFORMATION CONTACT: 

Mary Colligan, Assistant Regional 

Administrator for Protected Resources, 

NMFS, Northeast Regional Office; by 

mail (see ADDRESSES): by telephone at 

978–281–9328; or facsimile at 978–281– 

9394; or Marta Nammack, NMFS, HQ, at 

301–713–1401. 

SUPPLEMENTARY INFORMATION: On 

October 1, 2009, we received a petition 

from the Center for Biological Diversity 

(CBD), Defenders of Wildlife, Humane 

Society of the United States, Ocean 

Conservancy, and the Whale and 

Dolphin Conservation Society (the 

Petitioners) to revise the designated 

critical habitat of the North Atlantic 

right whale (CBD et al., 2009). On 

October 27, 2009, we sent a letter to the 

petitioners acknowledging receipt of the 

petition. 

Background 

Critical habitat is defined under 

section 3(5)(A) of the ESA as: ‘‘(i)The 

specific areas within the geographical 

area occupied by the species, at the time 

it is listed in accordance with the Act, 

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 (III) 

specific areas outside the geographical 

areas occupied by the species at the 

time it is listed, upon a determination 

that such areas are essential to the 

conservation of the species.’’ 

Section 4(b)(2) of the ESA requires us 

to designate and make revisions to 

critical habitat for listed species on the 

basis of 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 may 

exclude any particular area from critical 

habitat if he determines that the benefits 

of such exclusion outweigh the benefits 

of specifying such area as part of the 

critical habitat, unless he determines 

that the failure to designate such areas 

as critical habitat will result in the 

extinction of the species concerned. The 

ESA provides that NMFS may revise 

critical habitat from time-to-time as 

appropriate (section 4(a)(3)(A)(ii)). 

Section 4(b)(3)(D)(i) of the ESA 

requires that, to the maximum extent 

practicable, within 90 days after 

receiving a petition to revise critical 

habitat, the Secretary make a finding as 

to whether a petition presents 

substantial scientific information 

indicating that the revision may be 

warranted. Our implementing 

regulations (50 CFR 424.14) define 

‘‘substantial information’’ as the ‘‘amount 

of information that would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted.’’ Our regulations provide 

further that, in making a 90-day finding 

on a petition to revise critical habitat, 

we shall consider whether a petition 

includes substantial information 

indicating that: (i) Areas contain 

physical and biological features 

essential to, and that may require 

special management to provide for the 

conservation of the species; or (ii) areas 

designated as critical habitat do not 

contain resources essential to, or do not 

require special management to provide 

for, the conservation of the species. In 

determining whether substantial 

information exists, we take into account 

several factors, including information 

submitted with, and referenced in, the 

petition and all other information 

readily available in our files. To the 

maximum extent practicable, this 

finding is to be made within 90 days of 

the receipt of the petition, and the 

finding is to be published promptly in 

the Federal Register. If we find that a 

petition presents substantial 

information indicating that the revision 

may be warranted, within 12 months 

after receiving the petition, we are 

required to determine how we intend to 

proceed with the requested revision and 

promptly publish notice of such 

intention in the Federal Register. The 

statute says nothing more about options 

or considerations regarding the 

Secretary’s 12-month determination, nor 

does it prescribe any procedures or 

timelines for acting on petitions beyond 

the 12-month finding. See ESA Section 

4(b)(3)(D)(ii). 

Listing and Designated Critical Habitat 

History 

In 1970, right whales, Eubalaena spp. 

were listed as endangered (35 FR 18319; 

December 2, 1970). We consider this 

listing to have included two species of 

right whales, the northern right whale 

(Eubalaena glacialis) and the southern 

right whale (Eubalaena australis) (71 FR 

at 77706; December 27, 2006). Until the 

listing was changed in 2008, we 

considered the northern right whale 

species (Eubalaena glacialis) to consist 

of two populations—one occurring in 

the North Atlantic Ocean and the other 

in the North Pacific Ocean. In 1994, we 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 61691 

designated critical habitat for the 

northern right whale in the North 

Atlantic Ocean (59 FR 28805; June 3, 

1994). This critical habitat designation 

includes portions of Cape Cod Bay and 

Stellwagen Bank, the Great South 

Channel (each off the coast of 

Massachusetts), and waters adjacent to 

the coasts of Georgia and the east coast 

of Florida. These areas were determined 

to provide critical feeding, nursery, and 

calving habitat for the North Atlantic 

population of northern right whales. 

In 2006, we published a 

comprehensive status review report for 

the northern right whale, which 

concluded recent genetic data provided 

unequivocal support to distinguish 

three right whale lineages as separate 

phylogenetic species (Rosenbaum et al., 

2000): (1) The North Atlantic right 

whale (Eubalaena glacialis) ranging in 

the North Atlantic Ocean; (2) the North 

Pacific right whale (Eubalaena japonica) 

ranging in the North Pacific Ocean; and 

(3) the southern right whale (Eubalaena 

australis), historically ranging 

throughout the oceans of the southern 

hemisphere. Based on these findings, 

we published proposed and final 

determinations listing right whales in 

the North Atlantic and North Pacific as 

separate endangered species under the 

ESA (71 FR 77704, December 27, 2006; 

73 FR 12024, March 6, 2008). As stated 

previously, these individual species 

were previously encompassed in the 

broader listing of northern right whales, 

and the 1994 designation of critical 

habitat for the northern right whale 

analyzed and included only areas in the 

North Atlantic Ocean. The population 

analyzed in the critical habitat 

designation was right whales in the 

North Atlantic Ocean. Since the 

biological basis and analysis for the 

1994 critical habitat designation was 

based on the North Atlantic population 

of right whales, we believe that analysis 

and designation applies to the North 

Atlantic right whales as they were 

subsequently listed as a separate species 

in 2008. We, therefore, consider the 

1994 designation legally valid and 

applicable until it is revised when the 

ongoing analysis is completed through 

rulemaking. 

Analysis of Petition and 90-Day Finding 

As discussed above, petitioners seek 

to include expanded areas off the coast 

of New England and the Southeast 

United States, as well as new areas 

within the mid-Atlantic region, as 

critical habitat for the North Atlantic 

right whale. The petition contains 

information on the natural history, 

status, and threats to the North Atlantic 

right whale. 

To support the requested revision, the 

petition provides summaries of several 

analyses conducted by NMFS as well as 

additional published and unpublished 

sighting survey data. The first is a 2008 

evaluation of foraging habitat and of 

potential overwintering habitat in the 

Gulf of Maine (Pace and Merrick, 2008). 

The second is a 2007 NOAA Technical 

Memorandum detailing the results of a 

habitat model that evaluated the 

correlation between selected habitat 

features and right whale sightings in the 

southeastern U.S. (Garrison, 2007). The 

petition also discusses the NMFS 

summary of sightings data from 1972 to 

2000 provided in the 2008 ship speed 

rule (73 FR 60173; October 10, 2008) 

and Environmental Impact Statement 

for that rule (2008). The petition also 

provides information from two separate 

analyses of North Atlantic right whale 

sightings data and migration (Firestone 

et al., 2008; Schick et al., 2009) to 

support the request for revising 

designated critical habitat to include a 

migratory corridor. 

Based on the above information and 

information readily available in our files 

related to an ongoing rulemaking effort 

for critical habitat for the North Atlantic 

right whale, and pursuant to criteria 

specified in 50 CFR 424.14(c), we find 

the petition presents substantial 

scientific information indicating that the 

requested revision may be warranted. 

12-Month Determination 

As indicated above, the ESA provides 

us with broad discretion respecting 

revision of designated critical habitat, 

allowing us to determine when revision 

is appropriate, and affording us wide 

latitude to determine how to respond to 

a petition to revise critical habitat 

designations. In this instance, we 

received the petition while conducting 

an ongoing analysis and evaluation of 

new information available since the 

1994 designation that indicates the 

designation should be revised. We are in 

the process of evaluating the nature and 

extent of physical or biological features 

that may be considered essential to the 

conservation of the North Atlantic right 

whale, and which may require special 

management consideration or 

protections, and identifying specific 

areas on which such features are found. 

We have also begun preparing the 

impacts analysis required under 4(b)(2) 

of the ESA, which will take into 

consideration the economic impact, 

impact on national security, and any 

other relevant impacts of designating 

any particular area as critical habitat. 

Our analysis will include an evaluation 

of the information provided in the 

petition. Therefore, it is our intention to 

proceed with the petition by completing 

our ongoing rulemaking. Based on an 

updated assessment of the time required 

for completing the rulemaking, we 

expect to submit a proposed rule to the 

Federal Register in the second half of 

2011. 

Petition 12-Month Determination 

Based on the information above, 

pursuant to the provisions of the ESA 

respecting revision of critical habitat 

and petitions for revision, we have 

determined it is timely and appropriate 

to revise the 1994 designation of critical 

habitat for northern right whales by 

continuing our ongoing rulemaking 

process for designating critical habitat 

for the North Atlantic right whale. 

When we complete our analysis, we will 

publish a proposed rule and will solicit 

public comments. Those comments will 

be considered in preparing a final 

determination. Until we are able to 

revise the critical habitat designation for 

the North Atlantic right whale, the 

currently designated critical habitat, as 

well as those areas that support North 

Atlantic right whales but are outside of 

the current critical habitat designation, 

will continue to be subject to 

conservation actions implemented 

under section 7(a)(1) of the ESA. Federal 

agency actions are subject to the 

regulatory protections afforded by 

section 7(a)(2), which requires Federal 

agencies to ensure that actions they 

fund, authorize, or carry out are not 

likely to jeopardize the continued 

existence of any listed species or result 

in destruction or adverse modification 

of critical habitat. 

References Cited 

A complete list of all references is 

available upon request from the 

Protected Resources Division of the 

NMFS Northeast Regional Office (see 

ADDRESSES). 

Authority: The authority for this action is 

the Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: October 1, 2010. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

[FR Doc. 2010–25214 Filed 10–5–10; 8:45 am] 

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