[Federal Register Volume 67, Number 34 (Wednesday, February 20, 2002)]
[Proposed Rules]
[Pages 7660-7665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4087]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 020124019-2019-01, I.D. 030601D]


Endangered and Threatened Species; Determination on a Petition to 
Revise Critical Habitat for Northern Right Whales in the Pacific

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

ACTION: Response to petition; final determination.

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SUMMARY: On October 13, 2000, NMFS received a petition dated October 4, 
2000, requesting that NMFS revise the present critical habitat 
designation for the northern right whale under the Endangered Species 
Act (ESA) by designating a new area within the eastern Bering Sea as 
critical habitat for right whales in the North Pacific. NMFS has 
determined that the petition is not warranted at this time. NMFS 
recognizes that the revision of critical habitat may be prudent, but 
finds that the extent of critical habitat cannot be determined at this 
time because the essential biological requirements of the population in 
the North Pacific Ocean are not sufficiently understood. NMFS will 
continue to analyze issues raised by the petition following the 
completion of planned 2002 right whale surveys and research.

ADDRESSES: Comments and requests for copies of this determination 
should be addressed to the Division Chief, Marine Mammal Division, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Bradley Smith, Alaska Regional Office, 
NMFS, Anchorage, AK, (907) 271-5006; Michael Payne, Alaska Regional 
Office, NMFS, Juneau, AK, (907) 586-7236; or Caroline Good, Marine 
Mammal Division, Office of Protected Resources, NMFS, Silver Spring, 
MD, (301) 713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Right whales in the North Pacific are one of three populations of 
endangered right whales worldwide. The other populations occur in the 
North Atlantic and the Southern Hemisphere. The southern right whale is 
recognized as a separate species but the North Atlantic and North 
Pacific stocks have heretofore been described as a single species. 
Recent genetic studies, however, provide conclusive evidence supporting 
separate species status for these populations, one in the North 
Atlantic and another in the North Pacific. The International Whaling 
Commission's (IWC) Scientific Committee formally recognized a three 
species classification for right whales at its 2000 meeting in 
Adelaide, Australia. NMFS has reviewed and concurs with the taxonomic 
changes suggested by the IWC and is working to have the right whale 
populations listed as distinct species under the Endangered Species 
Act.

Status of the North Pacific Right Whale

    Exploitation: Right whales in the North Pacific historically 
occurred across the Pacific Ocean north of 35 degrees North latitude, 
with concentrations in the Gulf of Alaska, eastern Aleutian Islands, 
southcentral Bering Sea, Sea of Okhotsk, and the Sea of Japan. They 
were heavily exploited by commercial whaling in the western North 
Pacific in the 18th and 19th centuries from the Sea of Japan into the 
Okhotsk Sea, and along the east side of the Kamchatka peninsula. 
Considerable offshore hunting also occurred eastward of the Kurile 
Islands as far as 170 degrees East longitude. Right whales were 
harvested in the eastern North Pacific from the southeastern Bering Sea 
to, and throughout, the Gulf of Alaska in the 19th and 20th centuries. 
In the mid 1900s illegal whaling by the Soviets is believed to have 
decimated the remaining population of right whales in the eastern North 
Pacific (Doroshenko 2000). Practically all right whaling in the 
northern hemisphere occurred during summer months.
    Abundance and Trends: Data are insufficient to estimate the pre-
exploitation size of this population of right whales. However, based 
upon catch levels, right whale abundance likely exceeded 10,000 animals 
in the North Pacific. This stock was severely depleted due to 
commercial and illegal whaling and remains so today. No reliable 
population estimate presently exists for this stock. Rice (1974) stated 
that only a few hundred individuals remained in the North Pacific stock 
and that for all practical purposes this stock was extinct because no 
sightings of a cow with a calf have been confirmed since 1900. This 
number has remained in the literature as the maximum number estimated 
for this stock although fewer than several hundred are believed to 
remain in the eastern North Pacific. Ferrero et al. (2000) indicated 
that only 14 individual animals were photographed from 1998 though 2000 
with 2 re-sightings. This paucity of sightings and re-sightings, 
despite considerable survey effort, suggests that the population is 
indeed very small, perhaps in the tens of animals.
    Recent Sightings: Prior to 1996 right whale sightings were so rare 
in the eastern North Pacific that single sightings have resulted in 
scientific publications (e.g. Carretta et al. 1994; Rowlett et al. 
1994). The paucity of sightings of right whales in the eastern North 
Pacific was apparent despite high levels of survey effort in the 
region, notably from Japanese sighting surveys (Miyashita et al. 1995). 
Recent summer sightings of right whales in the eastern Bering Sea 
(Goddard and Rugh 1998; Tynan 1998, 1999; Tynan et al. 2001; Moore et 
al. 2000; LeDuc et al. 2001) represent the first reliable observations

[[Page 7661]]

of associated groups in the eastern Bering Sea since the 1960s.
    Several right whales have been seen each year from NMFS survey 
platforms since 1996 (NMFS 2000; LeDuc et al. 2001). A group of 3-4 
right whales was seen on July 30, 1996, in western Bristol Bay, AK 
(Goddard and Rugh 1998). This group may have included a juvenile 
animal. In July 1997, a group of 4-5 individuals was encountered in 
Bristol Bay, followed by a second sighting of 4-5 whales the following 
morning in approximately the same location and considered to be the 
same whales (Tynan 1999). Five, six and 13 whales respectively were 
again found in the same general region of the southeastern Bering Sea 
in July 1998, July 1999, and July 2000 (LeDuc et al. 2001). Genetic 
samples taken from 6 whales in 1997 (3 individuals) and 1999 (4 
individuals with one re-capature) indicated they were all males (LeDuc 
et al. 2001). Of all whales photographed, three each from 1998 and 
1999, and seven from 2000 were adequate for individual identification. 
Among these, the only resightings were a single whale seen in all three 
years (LeDuc et al. 2001) and one whale seen in 1998 and 1999. 
Additionally, two right whales were observed during a vessel-based 
survey in the central Bering Sea in July 1999. Eight right whales were 
seen in July 2000; six were previously unobserved individuals, one was 
a re-sight and one could not be reliably identified.
    Seasonal Movements and Habitat Use: Historical whaling records 
provide the only information on possible migration patterns and habitat 
for North Pacific right whales. During the summer whales were found in 
the Gulf of Alaska, along both coasts of the Kamchatka Peninsula, the 
Kuril Islands, the Aleutian Islands, the southeastern Bering Sea, and 
in the Okhotsk Sea. The whales were the most widely dispersed in fall 
and spring with whales occurring in mid-ocean waters and extending from 
the Sea of Japan to the eastern Bering Sea. In winter, right whales 
were found in the Ryukyu Islands (south of Kyushu, Japan), the Bonin 
Islands, the Yellow Sea, and the Sea of Japan. Current distribution 
patterns and migration routes of these whales are not known. Historical 
concentrations of sightings in the Bering Sea together with the recent 
sightings indicate that this region remains an important summer habitat 
for eastern North Pacific right whales (Tynan et al. 2001). Little is 
known, however, regarding the current migration patterns of the eastern 
North Pacific population.
    Breeding and Calving: The location of calving grounds for this 
stock is unknown. Breeding and calving of North Pacific right whales 
were assumed to have occurred during winter, outside Alaskan waters. 
Recent observations of courtship behavior do not necessarily indicate 
this area is used for breeding.
    Prey: Right whales in the North Pacific probably feed almost 
exclusively on calanoid copepods, a type of zooplankton. High 
concentrations of copepods have been recorded in zooplankton samples 
collected in 1997 and 1999 near right whales in the North Pacific. 
Based on historical information, foraging observations, and current 
information on the foraging distribution of North Atlantic right 
whales, it is likely that the area where right whales have been 
observed in the eastern Bering Sea is used for foraging.
    Distribution of Feeding Observations Relative to Recent 
Oceanographic Changes in the Eastern Bering Sea: The Bering Sea has 
undergone large changes in recent years, attributed in part to climatic 
change which has resulted in a general warming pattern since the mid 
1970s. Unusual blooms of zooplankton have been noted here. Copepod 
concentrations in the middle shelf domain of the eastern Bering Sea in 
1997 were the highest recorded since the early 1980s (Napp and Hunt 
2001). A sustained phytoplankton bloom occurred in the southeastern 
Bering Sea (Napp and Hunt 2001) in 1997. Both of these features 
persisted at least through 2000. This increased concentration of 
zooplankton may have attracted feeding right whales to this area. 
However, the petitioner notes that the presence of these whales in 
subsequent years, when phytoplankton blooms were not evident, suggests 
these waters provide productive foraging habitat under varying oceanic 
conditions. Tynan et al. (2001) suggested that right whales in the 
Bering Sea may have shifted their foraging ground (from the shelf break 
and deeper waters) in response to the increased densities of prey in 
the middle shelf.

Status of North Pacific Right Whales Under the Endangered Species 
Act

    Right whales in U.S. waters were listed as endangered under the 
Endangered Species Conservation Act, the precursor to the ESA, on June 
2, 1970 (35 FR 8495; codified at 50 CFR Section 17.11). The species was 
subsequently listed as endangered under the ESA in 1973, and as 
depleted under the Marine Mammal Protection Act in the same year. NMFS 
has the lead responsibility for the recovery program for this species.
    NMFS published a Final Recovery Plan for Northern Right Whales 
(Recovery Plan) in 1991. The 1991 Recovery Plan recommended that a 
separate plan be prepared for the North Pacific stock ``when population 
numbers are available'' and further stated that the plan should 
identify habitats essential or important to survival and recovery. A 
draft Recovery Plan for the North Pacific population of right whales 
(NMFS, unpublished) is being prepared and much of the scientific 
information in this Federal Register notice comes from information in 
the draft Recovery Plan.
    NMFS designated critical habitat for northern right whales on June 
3, 1994 (59 FR 28793; codified at 50 CFR 226.203). NMFS designated 3 
areas in the North Atlantic Ocean off the eastern United States: two 
feeding and nursery areas in waters off the northeastern United States, 
and a winter calving and nursery area in waters off the southeastern 
United States. Not enough information was available to consider 
critical habitat designation for any other stock of northern right 
whale including that in the North Pacific at the time of the 1994 
designation. The western North Atlantic population was considered the 
population that stood to benefit most from recovery actions (NMFS 
1991).

Response to the Comments Received on the Petition

    Section 4(b)(3)(D)(i) of the ESA requires that NMFS, to the maximum 
extent practicable after receiving a petition to revise existing 
critical habitat, make a finding as to whether the petition presents 
substantial scientific or commercial information to demonstrate that 
the petitioned action may be warranted and publish the finding in the 
Federal Register. If the finding is that substantial scientific 
information is presented, NMFS is required, within 12 months of the 
date the petition was received, to make a determination on how to 
proceed with the requested revision and promptly publish notice of such 
intention in the Federal Register.
    On June 1, 2001 (66 FR 29773), NMFS published a notice finding the 
subject petition contained substantial scientific information 
indicating that revision of critical habitat for the right whale may be 
warranted and inviting interested persons to submit comments and 
information concerning revision. NMFS received over 1,000 letters on 
the petition during the comment period. The comments are addressed in 
the following paragraphs.

[[Page 7662]]

    Comment 1: NMFS received many letters from the public stating that 
the petitioned area meets the definition of critical habitat because 
the area is used annually by right whales as an important feeding and 
courtship area.
    Response: Recent NMFS surveys have documented right whales in a 
relatively small area of the southeastern Bering Sea within the area 
petitioned as critical habitat (LeDuc et al. 2001). Feeding behavior 
and possible courtship behavior have been observed. While repeated 
sightings of right whales during NMFS surveys have occurred within the 
southeastern Bering Sea, NMFS does not find that these observations 
allow for any extrapolation into the broader area recommended by the 
petitioner. Rather, the discreteness of the area where right whales 
have been observed suggests that the entire region is not a 
biologically homogeneous habitat and, therefore, an assumption cannot 
be made that right whales would occur throughout a larger area.
    The Bering Sea has undergone profound ecological changes over the 
past decades. These changes have likely resulted in subsequent changes 
in species composition and distribution among the zooplankton which 
comprise the primary prey of right whales. Plankton blooms in the 
eastern Bering Sea have been observed since 1996 and may be the 
principle reason that right whales have concentrated in this area in 
recent years. Therefore, the current sighting aggregations may be the 
result of conditions that have been present for only a few years. Data 
are very limited on this subject, but the current sighting distribution 
data do not support the assertion that the entire area proposed by the 
petitioner as critical habitat contains the physical and biological 
features essential to the conservation of right whales.
    Comment 2: Many commenters indicated that a revision to critical 
habitat is appropriate because critical habitat would protect right 
whales from major sources of mortality such as ship strikes and 
entanglement in fishing gear.
    Response: Mortality due to ship strikes and fishing gear 
entanglement are the two known human-related causes of mortality in the 
North Atlantic right whale population and are believed to be slowing 
the recovery of North Atlantic right whales. The commenters, however, 
assumed that human activities which affect right whales off the eastern 
United States are the same as those currently affecting right whales in 
the eastern Bering Sea. The petitioners made similar assumptions.
    The distribution of right whales off the eastern United States is 
congruent with several major shipping ports including the ports of 
Boston, New York and Jacksonville, among others. Furthermore the areas 
designated as critical habitat all have major shipping channels running 
through them.
    The likelihood of a vessel striking a right whale in these areas 
sometime throughout the year, or throughout the lifetime of a whale, is 
extremely high and this is reflected in the mortality data from recent 
years. The whales are exposed to a high level of vessel traffic because 
major shipping channels overlap with calving and foraging grounds.
    Conditions in the eastern Bering Sea differ from the East Coast. 
There are no major ports and no dredged shipping lanes in the area. The 
major shipping channel runs from Unimak Pass westward below the 
Pribilof Islands. This is south of the petitioned area and the area 
where right whales have been sighted in recent years. However, the lack 
of shipping lanes within the petitioned area does not mean that the 
whales are free from the risk of ship strike in the surrounding area. 
Right whales may cross through the Unimak pass shipping lane as they 
migrate in and out of the Bering Sea. No incident of a ship striking a 
whale in the eastern Bering Sea has been recorded. The only vessels 
that routinely operate within the petitioned area are fishing vessels 
which have no history of striking right whales in the Pacific Ocean.
    Many commenters and the petitioner also made similar comments with 
regard to the likelihood of entanglement in the eastern Bering Sea. 
Again, most right whales in the North Atlantic have scarring from 
having been entangled in or come into contact with gillnets or lobster 
gear. The sighting data in the eastern Bering Sea do not indicate that 
these whales have similar scarring patterns. No gillnets are used 
within the petitioned area since they are prohibited by law beyond 
State waters in Alaska. The principal fisheries in the eastern Bering 
Sea are the pelagic trawl and crab fisheries. Many of the larger 
fishing vessels in the eastern Bering Sea are required to have 
observers, and these observers have never reported an entanglement of a 
right whale in fishing gear in the eastern Bering Sea. The petitioners 
refer to an entangled right whale off Kamchatka, Russia; however, NMFS 
has no information on the circumstances or the gear type that was 
involved in that entanglement.
    Comment 3: Several commenters called for the development of a 
recovery plan for this species.
    Response: NMFS is currently preparing a Recovery Plan for the North 
Pacific right whale. That plan will present the current status of the 
species, and provide guidelines for management and research actions 
necessary to conserve and recover the North Pacific right whale. A 
draft plan is expected to be available for public comment in 2002.
    Comment 4: Several commenters urged NMFS to evaluate and possibly 
revise the current designated critical habitat for the North Atlantic 
right whale.
    Response: NMFS appreciates the comment to review the current 
critical habitat designation for the right whale in the North Atlantic. 
Regulations at 50 CFR 424.12(g) provide for revisions to existing 
critical habitat designations as new data become available. This 
recommendation, however, falls outside of the scope of the petitioned 
action under consideration at this time. NMFS may consider this request 
following review of existing information under a separate action but it 
will not be considered as part of this action.
    Comment 5: One commenter stated that if additional sightings of 
right whales are made outside the proposed critical habitat, the 
boundaries should be altered accordingly.
    Response: NMFS cannot concur that any future sightings of right 
whales would automatically require further revision of the proposed 
critical habitat. This is inconsistent with the ESA, as critical 
habitat must meet the definition within that act, as well as being 
prudent and determinable. The presence of an animal in a given area 
does not necessarily support designation or revision. NMFS will, 
however, review any future sightings in light of the ESA criteria to 
determine if a revision or designation of critical habitat is 
warranted.
    Comment 6: Two commenters stated that recent sightings of right 
whales in the southeastern Bering Sea allow for the delineation of an 
area essential to the species which was not known at the time the 1991 
Right Whale Recovery Plan was written.
    Response: NMFS agrees that designation of critical habitat may be a 
necessary component of any effort to conserve and recover this species. 
The ESA contains language that directs NMFS to identify and designate 
critical habitat, and to revise that designation when necessary. 
However, NMFS does not believe that a revision of critical habitat is 
possible at this time based upon existing information identified in the 
petition.

[[Page 7663]]

    Comment 7: Several commenters encouraged NMFS to conduct more 
research, increase funding for this effort, and work toward defining 
the extent of habitat used by this species.
    Response: NMFS agrees that continued research is necessary to fully 
describe the biology of this species and to identify important and 
critical habitats. NMFS anticipates that the recent survey effort will 
continue at similar levels, and that the scope of future investigation 
may include tagging studies, genetic analyses, photo-identification, 
long-term acoustic recordings through the use of autonomous bottom-
founded hydrophones, and distributional surveys in the Bering Sea 
outside of the area surveyed during recent efforts.
    Comment 8: One commenter urged NMFS to develop regulations for 
protecting right whales in the North Pacific.
    Response: NMFS can consider rule-making independent of a critical 
habitat designation should such a regulation be required or deemed 
necessary. However, there is no need for a regulation at this time 
because there are no activities known to have an adverse effect on 
right whales in this area.
    Comment 9: One commenter stated that the criteria for critical 
habitat have not been met and that designation is not warranted. The 
commenter argued that the paucity of sightings and the level of 
information presently available to describe the biological needs of 
this species confound any assessment of the petitioned area's 
importance to the conservation of the right whale.
    Response: NMFS agrees that the level of knowledge regarding the 
biology and habitat needs of the North Pacific right whale are not 
sufficiently understood to determine whether the physical and 
biological factors that are essential to the conservation of this 
species are found throughout the petitioned area. Recent sightings in 
the southeastern Bering Sea have involved only a relatively small 
number of whales; however, these individuals may comprise a significant 
percentage of the remaining population (which may number only in the 
tens of animals). The presence of these animals within a relatively 
small region of the Bering Sea over several years strongly suggests 
that an area considerably smaller than the petitioned area may contain 
physical features which result in prey aggregations in densities 
sufficient to be considered essential for the conservation of the North 
Pacific right whale. However, the extent and persistence of such prey 
aggregations are unknown at this time. NMFS recognizes that further 
research is needed to refine the habitat value of the sightings area 
and the larger continental shelf province.
    Comment 10: One commenter disputed the petition's arguments 
regarding the presence or significance of threats due to ship strikes, 
entanglement, and habitat degradation.
    Response: In addition to collisions with vessels and entanglements, 
the petition states that dredging, disturbance due to oil and gas 
development, and industrial noise also pose threats to right whales in 
this area. (Potential threats posed by shipping and fishing activities 
are addressed in the response to comment 2.) No dredging occurs in this 
area and outer continental shelf lease sale activity (for oil and gas 
development) has not occurred and will not be considered again during 
the 5-year period from 2002 through 2007. Finally, NMFS completed a 
comprehensive consultation under section 7 of the ESA in November 2000 
on the effects of the groundfish fisheries in the Gulf of Alaska and 
the Bering Sea on species listed under the ESA (NMFS 2001). Neither 
cumulative nor action-specific threats were identified in that opinion 
that would adversely affect the likelihood of survival or recovery for 
any of the large whale species occurring in this area.
    Therefore, NMFS is in general agreement with the commenter's 
conclusions that the potential threats identified in the petition do 
not occur presently within the petitioned area at levels that require 
special management or protective measures. If necessary, protective 
measures could be enacted through formal or informal consultation under 
section 7 of the ESA or through regulation independent of critical 
habitat designation. However, as understanding of North Pacific right 
whales increases (and if human activity in the area changes) special 
management considerations may be necessary to protect areas essential 
to the whale's survival.
    Comment 11: One commenter also presented several recommendations 
for future research on the biology of the North Pacific right whale and 
the habitat value of the Bering Sea.
    Response: NMFS appreciates the recommendations for continued 
research and for outreach programs to alert fishermen to the 
significance of right whales in the Bering Sea. Several of these 
measures have already been incorporated into our research efforts, and 
others may be considered as the North Pacific Right Whale Recovery Plan 
is finalized.

Determination on the Petition

    The natural history information presented in the petition is 
largely factual and represents a thorough review of existing data. 
NMFS, however, disagrees with most of the conclusions and statements 
made by the petitioners based on that review.
    The petition largely bases its recommendations for critical habitat 
revision on the following points: (1) the Right Whale Recovery Plan 
calls for the protection of habitat essential to the survival and 
recovery of this stock; (2) revision would benefit the stock, as it 
would provide an added layer of protection against harm; and (3)the 
revision is prudent and determinable as defined under 50 CFR 424.12. 
Further, in the Executive Summary, the petitioners state that ``the 
[right whale] recovery team recommended that once areas essential to 
the conservation of Pacific right whales were identified, those areas 
should be designated as critical habitat and protected to the full 
extent of the law.''
    NMFS concurs with the first two of these statements, but disagrees 
that the revision is determinable at this time. Section 3(5)(A)(i) of 
the ESA defines critical habitat as specific areas (I) ``essential to 
the conservation of the species'' and (II) ``which may require special 
management considerations or protection''.
    With regard to section 3(5)(A)(i)(I) most of the information on the 
distribution and abundance of this species comes from historical 
whaling records and survey sightings since 1996. NMFS has a paucity of 
information upon which to determine whether the extent of the area 
petitioned contains ``physical or biological features essential to the 
conservation of the species.'' Based upon the repeated observations of 
right whales within a relatively small area of the southeastern Bering 
Sea, NMFS could perhaps conclude that physical features exist within 
this area that have resulted in biological features (concentrations of 
prey) that are essential to the successful foraging of the few right 
whales that have been sighted in recent years. No data exist, however, 
to indicate from the sighting distribution or known biology that these 
features (i.e., prey densities sufficient to lead to right whale 
aggregations) are found throughout the remainder of the area identified 
in the petition to designate critical habitat. In fact, the sighting 
distribution suggests that the essential features attracting right 
whales are not distributed throughout the petitioned area, and may be 
unique to

[[Page 7664]]

specific locations in the eastern Bering Sea.
    The most reasonable conclusion is that a much smaller area than 
that petitioned may contain physical and biological features that are 
essential to the conservation of the species, but information is 
insufficient to extrapolate that conclusion to the entire area 
petitioned. The lack of a more widespread distribution of these 
sightings within the petitioned area (or more specifically, the 
definite clustering of these whales at the same locations since 1996), 
indicates that the area of sightings is different with regard to 
successful foraging than the remainder of the area that was identified 
in the petition.
    Another pertinent issue is whether these physical and biological 
features are permanent or ephemeral. It is not known, based on the 
literature, whether the zooplankton densities present since 1996 
occurred in that location in previous years and, therefore, whether 
right whale aggregations likewise occurred. Given current population 
levels, right whales are challenging to detect under almost any 
circumstances. Nonetheless, right whales have been seen in this area 
since 1996, and the lack of sightings from any source (there have been 
numerous vessel surveys in this area since the 1970s that included 
seabird and marine mammal observers) prior to the mid-1990s would 
support a conclusion that the whales have recently moved into this 
area.
    If right whales have recently moved into this area, it is possible 
that the present conditions, which provide sufficient prey densities 
for foraging, are ephemeral. It would be neither prudent nor beneficial 
to the species to specify an area as critical habitat only to have the 
whales aggregate in other unprotected areas in the future. Thus, while 
the locations where essential features can be found are reasonably well 
known for the North Atlantic population, such locations and the 
fidelity of right whales to those locations have not been well 
established for North Pacific right whales.
    With regard to the requirements of section 3(5)(A)(i)(II), NMFS has 
reviewed all the activities that are present, or may be present, in the 
petitioned area in the foreseeable future and cannot conclude that the 
area may require special management considerations. Potential threats 
from fishing activity, shipping, and oil and gas development do not 
appear to present any immediate threat to right whales.
    Gillnets and lobster gear are the principal gear types implicated 
in entanglements on the eastern seaboard. Gillnets are not used to fish 
outside of State of Alaska waters, and are not fished during the period 
when whales are known to be present in the petitioned area. Therefore, 
they are unlikely to pose a threat in the petitioned area. Pot gear 
used in the Bering Sea crab fishery is different from the lobster pot 
gear that has entangled whales on the East coast. Lobster pots are 
connected using small-diameter, floating polypropylene line that has a 
track record of entangling right whales. Bering sea crab gear is 
different. The pots are much larger, requiring heavier line, and the 
gear generally does not contain the ``entangling'' features of lobster 
gear.
    Dredging is not an issue in the eastern Bering Sea. Vessel traffic 
is not a significant issue in the eastern Bering Sea or the petitioned 
area. Most large vessels move south of the Pribilof Islands. Finally, 
lease sales for oil and gas exploration are not scheduled for the 2002-
2007 period.
    NMFS has stated that the primary benefit of specifying critical 
habitat is notification to Federal agencies that a certain area is 
crucial to a listed species, allowing agencies to plan projects while 
considering the listed species and its needs. The principal activity in 
this petitioned region is a Federally-managed groundfish fishery. NMFS 
completed a comprehensive consultation under section 7 of the ESA in 
November 2000 on the effects of the groundfish fisheries in the Gulf of 
Alaska and the Bering Sea on species listed under the ESA. There were 
neither cumulative nor action-specific threats identified in that 
opinion that would adversely affect the likelihood of survival or 
recovery for any of the large whales in this area.
    Until such time that more information becomes available on the 
occurrence and distribution of this species, NMFS' conclusion is that 
no special management considerations apply to the entire area being 
petitioned for critical habitat designation at this time. However, NMFS 
does recognize that this situation can change. Potential critical 
habitat may not require special management measures now, but may 
require special management sometime in the future.
    The question then remains whether those features essential to the 
conservation of the species exist throughout the petitioned area and 
whether they are ``determinable''.
    Regulations at 50 CFR 424.12(a)(2) state that a designation of 
critical habitat is not determinable when one or both of the following 
situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    NMFS believes that all required analyses of impacts could be 
performed. However, NMFS lacks sufficient knowledge of the species' 
needs to identify critical habitat. Regulations at 50 CFR 424.12 
indicate that physical and biological features essential for the 
conservation of the species include feeding sites. The regulations 
further state that each critical habitat will be defined by specific 
limits using reference points and lines as found on standard maps of 
the area. Ephemeral reference points cannot be used in defining 
critical habitat.
    The area petitioned for critical habitat revision is recognized as 
a region of the Bering Sea where right whales occurred historically. 
Also, small, but significant, groups of right whales have been observed 
in a relatively small area of the southeastern Bering Sea since 1996, 
and feeding and possible courtship behaviors have been observed. 
However, the area of the sightings cannot be compared with the area 
petitioned for revision, or the remainder of the range of the North 
Pacific right whale, without more comprehensive survey data. Nor could 
an assessment that this area is essential to the species' conservation 
be supported.
    Given the available information, NMFS concludes that: (1) the 
information does not indicate that physical or biological features that 
are essential to the conservation of the species exist throughout the 
petitioned area; and (2) a much smaller area than the petitioned area 
may contain such essential features, but the geographic boundaries 
within which such essential features exist are presently 
indeterminable. Therefore, at this time NMFS cannot conclude that the 
petitioned area or any specific region within the petitioned area 
constitutes critical habitat. The scientific information necessary to 
make critical habitat ``determinable'' for the eastern Bering Sea stock 
of right whales is not currently available. Based on the best available 
information, NMFS has determined that the petitioned action is not 
warranted at this time.

How Does NMFS Intend to Proceed?

    Section 4(b)(3)(D)(ii) of the ESA requires that NMFS, within 12 
months of the date the petition was received, make a determination on 
how to proceed with the requested revision and

[[Page 7665]]

promptly publish notification of such intention in the Federal 
Register. NMFS made that determination in a previous paragraph of this 
notice, however, the agency will continue to analyze the issues raised 
in the petition in the following manner.
    NMFS will continue with planned research activities during 2002 and 
evaluate any new information to better define the boundaries of an area 
that may be considered critical. In addition, NMFS will, through the 
ESA section 7 consultation process, continue to evaluate whether the 
area may require special management considerations.
    To further define an area that might be essential to this 
population NMFS intends to:
    (1) Conduct an extensive vessel-based survey in the eastern Bering 
Sea during July-August 2002 using experienced observers trained in the 
use of ``Big Eye'' (5X) binoculars. Additionally, passive acoustic 
techniques (moored-buoys) will be used to detect whales. If right 
whales continue to be sighted in the relatively limited area identified 
by prior sightings then the boundaries of what might be considered 
essential will be revisited. It is probable that the summer foraging 
season will be the only season for which NMFS can obtain further 
information on this population during the next 12 month period.
    (2) If feasible, attempt to satellite-tag North Pacific right 
whales to determine movement patterns and distribution, at least during 
late summer and fall. NMFS anticipates that the whales are not going to 
remain in one spot as the foraging season ends and fall-winter 
movements occur. However, whether the population remains in the 
petitioned area or moves south off the shelf is not known.
    (3) Re-examine all genetic information to determine whether the 
eastern Bering Sea stock and Sea of Okhotsk stock of North Pacific 
right whales can be differentiated genetically. However, it should be 
re-emphasized that these stocks are currently considered one species 
under the ESA and treated as such. There are so few samples available 
for such an analysis that it is doubtful that NMFS will be able to 
determine any further similarities or dissimilarities between the two 
stocks even if they exist.
    (4) Conduct an economic analysis (as required by the ESA) on any 
critical habitat area that may be proposed by NMFS.
    (5) Continue to examine historical and newly acquired data to 
determine whether any area, not just the petitioned area, should be 
proposed as critical habitat for North Pacific right whales.
    All references are available upon request (See FOR FURTHER 
INFORMATION CONTACT).

    Authority: 16 U.S.C. 1531, et seq.

    Dated: February 13, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-4087 Filed 2-19-02; 8:45 am]
BILLING CODE 3510-22-S