[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Proposed Rules]
[Pages 66332-66346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21861]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 051018271-5271-01; I.D. 101405C]
RIN 0648-AT84
Endangered and Threatened Species; Revision of Critical Habitat
for the Northern Right Whale in the Pacific Ocean
AGENCY: National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: National Marine Fisheries Service (NMFS) proposes to revise
the current critical habitat for the northern right whale (Eubalaena
glacialis) by designating additional areas within the North Pacific
Ocean. Two specific areas proposed for designation, one in the Gulf of
Alaska and another in the Bering Sea, comprise approximately 95,200
square kilometers (36,750 square miles) of marine habitat. Based upon
the impacts analysis prepared for this action, NMFS has concluded that
the benefits of exclusion of any area from the proposed critical
habitat designation do not outweigh the benefits of inclusion.
Consequently, no exclusions are proposed.
NMFS must consider the broad effects of this designation
(revision). NMFS solicits 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. NMFS 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 January 3, 2006. Requests for public hearings must be made
in writing by December 19, 2005.
ADDRESSES: Send comments to Kaja Brix, Assistant Regional
Administrator, Protected Resources Division, Alaska Region, NMFS, Attn:
Lori Durall. Comments may be submitted by:
E-mail: [email protected]. Include in the subject
line the following document identifier: Right Whale Critical Habitat
PR. E-mail comments, with or without attachments, are limited to 5
megabytes.
Webform at the Federal eRulemaking Portal:
www.regulations.gov. Follow the instructions at that site for
submitting comments.
Mail: P. O Box 21668, Juneau, AK 99802
Hand delivery to the Federal Building : 709 W. 9\th\
Street, Juneau, Alaska.
Fax: (907) 586-7012
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 Endangered Species Act of 1973, as
amended, [16 U.S.C. 1531] (ESA) 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 (FWS) and the National
Marine Fisheries Service (NMFS) share responsibility for administering
the ESA. Endangered or threatened species under the authority of NMFS
are found in 50 CFR 222.102 and 224.101, and include the northern right
whale.
Background
The northern right whale is a member of the family Balaenidae. It
is found in the Pacific and Atlantic Oceans and is closely related to
the right whales that inhabit the Southern Hemisphere. Right whales are
large baleen whales which grow to lengths and weights exceeding 18
meters and 100 tons, respectively. They are filter feeders whose prey
consists exclusively of zooplankton (notably copepods; see below).
Right whales attain sexual maturity at an average age of 8 to 10 years,
and females produce a single calf at intervals of 3 to 5 years (Kraus
et al., 2001). Their life expectancy is unclear, but they are known to
reach 70 years in some cases (Hamilton et al., 1998; Kenney, 2002).
[[Page 66333]]
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 Gulf of Alaska, 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 Gulf of
Alaska (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 19\th\ 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 former USSR signed this agreement, both nations were
theoretically free to continue right whaling until 1949, when the newly
created International Whaling Commission endorsed this ban. Following
this, a total of 23 northern right whales in the North Pacific were
legally killed by Japan and the former 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). In the eastern
North Pacific, 372 right whales were killed by the Soviets between 1963
and 1967; of these, 251 were taken in the Gulf of Alaska south of
Kodiak, and 121 in the southeastern Bering Sea. 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 in both the Pacific
and Atlantic Oceans, northern right whales today are among the most
endangered of all whales worldwide. Northern 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 under the Marine Mammal Protection Act of 1972. NMFS issued a
Recovery Plan for the northern right whale in 1991, covering animals in
both the North Atlantic and North Pacific (NMFS, 1991). Brownell et al.
(2001) noted that there was no evidence for exchange between the
western and eastern Pacific, and that the two populations had different
recovery histories; consequently, they argued that these stocks should
be treated as separate for the purpose of management, a division which
has been duly recognized by NMFS in Stock Assessment Reports (Angliss
and Lodge, 2004).
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 Gulf of
Alaska), but sightings are rare; most biologists believe the current
population is unlikely to exceed 100 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 or otherwise) have
detected small numbers of right whales in the southeastern Bering Sea,
including an aggregation estimated at 24 animals in the summer of 2004.
Photo-identification and genetic data have identified 17 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 Gulf of Alaska, including a sighting
in August 2005. However, the overall number of right whales in the
North Pacific 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). NMFS 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. At this time North Atlantic and North Pacific right
whales are thus both officially considered to be ``northern right
whales'' (Eubalaena glacialis) under the ESA.
Critical Habitat Designation History
Section 3 of the ESA defines critical habitat (CH) as ``(i) 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 (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.'' 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, NMFS must
consider economic impacts, impacts on national security and other
relevant impacts of specifying any particular area as CH, and 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.
Three areas in the North Atlantic Ocean were designated as CH for
northern right whales in 1994; the Great South Channel, Cape Cod Bay,
and waters of the Southeastern United States off Florida and Georgia.
NMFS is currently analyzing the physical and biological features
essential to the conservation of the northern right whale in the
Atlantic Ocean, and has outlined steps it will take to propose any
revisions to that designated CH that might be supported by new
information and analysis (68 FR 51758; August 28, 2003).
[[Page 66334]]
Previous Federal Action and Related Litigation
In October 2000, NMFS was petitioned by the Center for Biological
Diversity to revise the CH for the northern right whale by designating
an additional area in the North Pacific Ocean. In February 2002, NMFS
announced its decision that CH could not be designated in the North
Pacific at that time because the essential biological requirements of
the population were not sufficiently understood. However, in June 2005,
a Federal judge found this reasoning invalid and ordered the agency to
take action with respect to designating CH for the northern right whale
in the North Pacific Ocean no later than October 28, 2005 (Center for
Biological Diversity v. Evans, Civ. No. 04-04496, N.D. Cal. June 14,
2005). In compliance with that order, NMFS is proposing to revise the
current CH for this species by designating areas within the Gulf of
Alaska and Bering Sea as CH under the ESA. The range of the northern
right whale extends to waters of the western North Pacific. These
waters are outside the United States, and because CH is not to be
designated within foreign countries or outside of U.S. jurisdiction [50
CFR 424.12(h)], NMFS has not considered designation of CH for that
region.
Critical Habitat
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 northern right whale in the Pacific Ocean, it is necessary to
establish this range when proposing to designate CH. The northern right
whale was listed as endangered in 1973. 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 northern right whale in the Pacific Ocean had been
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.
Both the southeastern Bering Sea and the western Gulf of Alaska
(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 northern right whale sightings (historically
and in recent times) in the Northeast Pacific have occurred from about
40[deg] N to 60[deg] N latitude (lat.). There are historical records
from north of 60[deg] N lat., but these are rare and are likely to have
been misidentified bowhead whales. 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 northern right whale at the time it
was listed under the ESA extends over a broad area of the North Pacific
Ocean as depicted in Figure 1.
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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 of Commerce (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.'' NMFS is 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 northern 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 (Primary Constituent Elements)
In determining what areas are CH, 50 CFR 424.12(b) requires that
NMFS consider those physical or biological features that are essential
to the conservation of a given species and that may require special
management considerations or protection, 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 ``[K]nown
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 the northern right whale in the
Pacific Ocean 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 which might be
necessary for their conservation. The life-requisites of these whales
for such factors as temperatures, depths, and 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 that several species of large
copepods and other zooplankton constitute the primary prey of the
northern right whale in the North Pacific Ocean.
The PCEs for the northern right whale in the North Pacific Ocean
are large copepods in areas where right whales are known or believed to
feed. Specifically, these are: Calanus marshallae, Neocalanus
cristatus, N. plumchris. and Thysano[euml]ssa raschii, a copepod 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 areas (below) establishes the presence
of these PCEs within those areas proposed as CH. 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. The
PCEs, essential for the conservation of the northern right whale in the
North Pacific 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.'' NMFS considered
whether the copepods and other zooplankton in feeding areas, which have
been identified as the PCEs for the northern right whale in the North
Pacific Ocean, may require special management considerations or
protection.
Copepods can be affected by physical and chemical alterations
within the water column both by natural processes such as global
climate change or the Pacific Decadal Oscillation, as well as by
pollution from various potential sources, including oil spills and
discharges resulting from oil and gas drilling and production. The
outer continental shelf (OCS) oil and gas exploration and development
permits or authorizations already are routinely conditioned with
operational restraints, mitigative measures, or technological changes
to protect the marine environment from these impacts. While such
management measures and protections are not necessarily designed to
protect copepods or zooplankton in right whale feeding areas per se,
they could be useful in protecting these PCEs for the conservation of
northern right whales in the North Pacific Ocean.
NMFS specifically requests comment on the extent to which the
designated PCEs may require special management considerations or
protection.
Proposed Critical Habitat
The current abundance of northern right whales in the North Pacific
Ocean 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 Southeastern Bering Sea
since 1996 is somewhat extraordinary in that it may represent a
substantial portion of the remaining population. These areas of
concentration where right whales feed are characterized as containing
the copepod PCEs described above. NMFS considers these feeding areas,
supporting a significant assemblage of the remaining right whales in
the North Pacific, to be critical in terms of right whale conservation.
For the reasons given below, NMFS has based designation of CH on these
areas, rather than where right whales have appeared sporadically or in
transit. NMFS has been able to substantiate the assumption that these
areas are right whale feeding areas by 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, as depicted in Figure 2: an area of the southeastern
Bering Sea and an area south of Kodiak Island in the Gulf of Alaska.
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[[Page 66338]]
Shelden et al. (2005) reviewed prey and habitat characteristics of
northern right whales in the North Pacific. 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 the small North Pacific population on their feeding grounds in the
Southeastern Bering Sea (SEBS) and Gulf of Alaska (GOA). Right whales
are known to feed on copepod patches of very high density, and these
patches may typically be small and unpredictably 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 copepods
(as measured by broad-scale oceanographic sampling) and the
distribution of right whales (M. Baumgartner, in prep.) In light of
this, NMFS 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. 2003, 2003b). In the North
Atlantic, an analysis of sighting data by NMFS indicated that a density
of 4 or more right whales per 100 nm\2\ was a reliable indicator of a
persistent feeding aggregation (Clapham and Pace 2001), and this has
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 persistent 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 patches and thus to identify the areas proposed herein for
designation as CH. NMFS has used sighting records since the time of
listing to make this determination because these records are more
recent and are taken to be a more reliable indicator of current
distribution than historical sightings, especially given that most of
the latter relate to animals that were removed from the population by
whaling.
Southeastern Bering Sea
NMFS proposes to designate CH in the Bering Sea (Figure 2) to be
described as an area delineated by a series of straight lines
connecting the following coordinates in the order listed:58[deg]00' N/
168[deg]00' W; 58[deg]00' N/163[deg]00' W; 56[deg]30' N/161[deg]45' W;
55[deg]00' N/166[deg]00' W; 56[deg]00' N/168[deg]00' W and returning to
58[deg]00' N/168[deg]00' W. The area described by these boundaries lies
completely within the waters of the United States and its Exclusive
Economic Zone, outside of waters of the State of Alaska. State waters
extend seaward for 3 nautical miles; very few sightings occurred within
this area. Right whale encounters occurring after ESA-listing in 1973
totaled 182 within this area, out of 184 encounters north of the
Aleutian Islands during this time period.
Gulf of Alaska
NMFS proposes to designate CH in the Gulf of Alaska (Figure 2), to
be described as an area delineated by a series of straight lines
connecting the following coordinates in the order listed: 57[deg]03' N/
153[deg]00' W, 57 [deg]18' N/151 [deg]30' W, 57 [deg]00' N/ 151[deg]
30' W, 56[deg]45' N/153[deg]00' W, and returning to 57[deg]03' N/
153[deg]00' W. The area described by these boundaries lies completely
within the waters of the United States and its Exclusive Economic Zone.
Right whale encounters occurring after ESA-listing in 1973 totaled 5
within this area, out of 14 encounters in the Gulf of Alaska during
this time period.
Existence of the 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 up-canyon flow, bring
nutrients to the surface, thereby supporting enhanced productivity and
elevated biomass of phytoplankton, zooplankton, and fish. Northern
right whales in the western North Pacific 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 or
not 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 between the Pribilof Islands and the Aleutian
Islands (around 170[deg] 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 19\th\ and 20\th\ 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 Neocalanus cristatus (Calanus
cristatus: Omura et al., 1969). Although oceanic species such as
Neocalanus 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 use these resources by
targeting regions
[[Page 66339]]
where the bottom mixed layer forces the zooplankton into shallower,
discrete layers (e.g. Baumgartner et al., 2003a).
Southeastern Bering Sea (SEBS) 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 up-canyon 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 result 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. Calanus 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 (up to densities greater
than 500 mg/m-3) of euphausiids (Thysano[euml]ssa 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, Pseudocalanus 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, 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 Gulf
of Alaska and are patchily distributed across a wide variety of water
depths. Three large herbivorous species comprise more than 70 percent
of the biomass: N. cristatus, N. plumchrus, and Eucalanus bungii
(Cooney 1986, 1987). In northern GOA shelf waters, the late winter and
spring zooplankton is dominated by calanoid copepods (Neocalanus spp.),
with a production peak in May; this is a cycle that appears resistant
to environmental variability associated with El Ni[ntilde]o/Southern
Oscillation (ENSO) (Coyle and Pinchuk, 2003). In oceanic waters
(50[deg] N lat., 145[deg] 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 (Calanus 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 Gulf of Alaska. Both areas are
influenced by large eddies, submarine canyons, or frontal zones that
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.).
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 period of time can be used with high confidence as an
indicator of the presence of the PCEs in a feeding area. NMFS has used
sighting records since the time of listing to make this determination
because these records are more recent and are taken to be 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 post-listing right whale sightings
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.)
and over 23 sightings in 2004. Single right whales as well as pairs and
aggregations up to five animals were sighted during this period, and
all sightings were within 100 nm\2\ of one another. Based on
consideration of these factors, NMFS concludes 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
proposes this area as critical habitat for the northern right whale in
the North Pacific Ocean.
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, Wynne and Mellinger, 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
[[Page 66340]]
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,
NMFS proposes 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 northern right whale in the North Pacific Ocean.
Activities Which May be Affected by This Revision
Section 4(b)(8) of the ESA requires that NMFS describe briefly and
evaluate, in any proposed or final regulation to revise critical
habitat, those activities that may destroy or 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, Federal
fisheries management, pollutant discharges authorized by the
Environmental Protection Agency, 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 northern right whales in the North Pacific 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 ESA 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 and commercial data available and
after taking into consideration the economic impact, impacts to
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. NMFS 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 timeframe of NMFS' 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.
However, during the preparation of this proposed rule we became
aware that 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
announced support for this activity. NMFS lacks specific information
regarding this potential exploration and development activity and was
unable to gather information in the time available to prepare this
proposed rule. Therefore, NMFS specifically requests 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. Prior to the issuance of any final rule, NMFS will attempt to
gather information on this topic. Any information NMFS acquires 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 NMFS expects 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 northern right whales, 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. NMFS did not find any specific areas in which the costs
exceed benefits for activities that may affect CH, and has therefore
not proposed the exclusion of any areas from designation.
This action is anticipated to result in consultations on seafood
processing waste discharges with EPA; Department of Defense (DoD)
authorized military ``underway training'' activities; and USCG oil
spill response plan approval, 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, NMFS believes that the benefits of
exclusion are outweighed by the benefits of inclusion.
The NMFS analysis (available on the NMFS Alaska Region website
http://www.fakr.noaa.gov/ ) did not find any specific areas which merit
exclusion in consideration of economic impacts, nor have we determined
that National security interests or other relevant impacts warrant the
exclusion of any specific areas from this proposed designation. NMFS
solicits comments on these benefits and costs as well as our
determinations.
Public Comments Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning this proposed rule to revise CH for the
northern right whales in the North Pacific. This proposed action would
amend the current regulations by adding CH in the North Pacific Ocean
to the CH already designated along the Atlantic seaboard (Great South
Channel, Cape Cod Bay, and the Southeastern United States). This
proposed rule is responsive to the June 14, 2005, Northern District of
California order and concerns only CH designation in the North Pacific
Ocean. Comments or suggestions from the public, other concerned
governments and agencies, the scientific community,
[[Page 66341]]
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
northern right whale habitat in the North Pacific Ocean;
(2) Information as to the identification of physical or biological
features which may be essential to the conservation of the northern
right whale in the North Pacific Ocean;
(3) Information on whether the copepods in feeding areas identified
by NMFS as PCEs, or any other physical or biological features that may
be essential to the conservation of the northern right whale in the
North Pacific Ocean, may require special management considerations or
protection;
(4) Information regarding the benefits of excluding any portions of
the proposed CH, including the regulatory burden 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 designations; and
(9) Whether specific unoccupied areas not presently proposed for
designation may be essential to the conservation of the northern right
whale in the North Pacific Ocean.
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/.
NMFS will consider all comments and information received during the
comment period on this proposed rule for 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 revise CH. Requests for public
hearing must be made in writing (see ADDRESSES) by December 19, 2005.
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. NMFS
encourages 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 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 (NMFS, 2005). This approach is in accord with OMB's
guidance on regulatory analysis (OMB Circular A-4, Regulatory Analysis,
September 17, 2003).
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).
NMFS has prepared an initial regulatory flexibility analysis (IRFA) and
this document is available upon request (see ADDRESSES). This IRFA
evaluates the potential effects of 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 northern 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 conclusions 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,
U.S. Coast Guard (USCG), DoD, Minerals Management Service (MMS), and
NMFS. Activities or actions with a nexus to these Federal agencies that
are expected to require consultation include: EPA permitting of seafood
processing waste discharges at-sea; USCG 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 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 NMFS may reasonably expect to consult an estimated 27
times on CH-related 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 ``pre-consultation'' 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
right whale
[[Page 66342]]
in the Pacific, 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''
northern right whale CH. This one class of activity is Outer
Continental Shelf (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 northern 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). A total of 10 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 activity on the part of the lease holders in this or the other
four referenced areas to seek authorization to undertake additional
exploratory activity or develop production facilities. MMS reports no
planned or scheduled OCS lease sales for these areas, at least through
2007 (the latest projected date MMS has published on its web site).
This suggests that the only private sector entities that potentially
could be directly and adversely impacted by the proposed designation
would be those entities that own the lease rights to develop oil and
gas production facilities in these areas. However, during the
preparation of this proposed rule NMFS became aware that 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 and
that the State of Alaska announced support for this activity. NMFS
lacks specific information regarding this potential exploration and
development activity and was unable to gather information in the time
available to prepare this proposed rule. Therefore, NMFS specifically
requests 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. Prior to the issuance of any final rule,
NMFS will attempt to gather information on this topic. Any information
NMFS acquires 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.
When MMS records were consulted as to the identity of the entities
holding leases to the wells in the St. George Basin, six businesses
were listed for the 10 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). 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).
Under the Regulatory Flexibility Act, the preferred alternative was
compared to the ``No Action'' (or status quo) alternative and an
alternative proposed by the petitioner, the Center for Biological
Diversity. NMFS rejected the ``No Action'' alternative because it did
not comply with the remand order in Center for Biological Diversity v.
Evans, Civ. No. 04-04496 (N.D. Cal. June 14, 2005) or satisfy the
agency's obligations under the ESA. NMFS rejected the petitioner's
alternative because the best scientific information available did not
support a finding that the physical or biological features essential
for conservation of the right whale in the North Pacific Ocean are
found throughout the area identified by the petitioner, and thus the
area did not meet the ESA definition of critical habitat.
Because NMFS' analysis did not identify costs to any small entities
attributable to the CH designation action, there is no identified
alternative that imposes lesser impacts on this group while achieving
the requirements of the ESA and the objectives of this action.
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 complete, by
November 17, 2001, an Integrated Natural Resource Management Plan
(INRMP). The recent 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.'' NMFS has determined no military lands
would be impacted by this proposed rule.
Executive Order (E.O.) 13211
On May 18, 2001, the President issued an Executive Order 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.
NMFS has considered the potential impacts of this action on the
supply, distribution, or use of energy and finds 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, NMFS makes 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
[[Page 66343]]
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; Aid to Families
with Dependent Children 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 non-Federal 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 northern right whale are specifically identified.
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 northern 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 proposed 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
NMFS has determined that an environmental analyses 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, 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.
NMFS has determined the proposed designation of CH for the northern
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 or affects tribal trust resources or
the exercise of tribal rights. The northen 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 27, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, 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 Sec. 226.203, paragraphs (a), (b), and (c) are redesignated
as paragraphs
[[Page 66344]]
(a)(1), (a)(2), and (a)(3), respectively; new paragraphs (a) heading
and (b) are added; and the section heading and the introductory text
are revised to read as follows:
Sec. 226.203 Critical habitat for northern right whale (Eubalaena
glacialis).
Critical habitat is designated in the North Atlantic Ocean, Bering
Sea, and the Gulf of Alaska for the northern right whale 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 Ocean.
* * * * *
(b) North Pacific Ocean--(1) Primary Constituent Elements. The
primary constituent elements essential for conservation of the northern
right whale are the copepods Calanus marshallae, Neocalanus cristatus,
N. plumchris, and Thysano[euml]ssa raschii in areas of the North
Pacific Ocean in which northern right whales are known or believed to
feed, as described in paragraphs (2) and (3).
(2) Bering Sea. An area described by a series of straight lines
connecting the following coordinates in the order listed:
58[deg]00' N/168[deg]00' W
58[deg]00' N/163[deg]00' W
56[deg]30' N/161[deg]45' W
55[deg]00' N/166[deg]00' W
56[deg]00' N/168[deg]00' W
58[deg]00' N/168[deg]00' W.
(3) Gulf of Alaska. An area described by a series of straight lines
connecting the following coordinates in the order listed:
57[deg]03' N/153[deg]00' W
57[deg]18' N/151[deg]30' W
57[deg]00' N/151[deg]30' W
56[deg]45' N/153[deg]00' W
57[deg]03' N/153[deg]00' W.
(4) Maps of critical habitat for the northern right whale in the
North Pacific Ocean follow:
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[FR Doc. 05-21861 Filed 10-28-05; 2:20 pm]
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