[Federal Register Volume 67, Number 169 (Friday, August 30, 2002)]
[Proposed Rules]
[Pages 55767-55771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22259]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 010501108-2202-02, I.D. 040502B]


Endangered and Threatened Species; Final Determination on a 
Petition to Designate Critical Habitat for the Bering Sea Stock of 
Bowhead Whales

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

ACTION: Notice of determination.

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SUMMARY: NMFS received a petition on February 22, 2000, requesting that 
portions of the U.S. Beaufort and Chukchi Seas be designated as 
critical habitat for the Western Arctic stock (which is also referred 
to as the Bering-Chukchi-Beaufort stock, among other names) of bowhead 
whales, Balaena mysticetus, under the Endangered Species Act (ESA). 
Under the ESA, the designation of critical habitat for species listed 
prior to 1978 is discretionary. NMFS is not proposing designation of 
critical habitat for this population of bowhead whales for the 
following reasons: (1) the decline and reason for listing the species 
was overexploitation by commercial whaling, and habitat issues were not 
a factor in the decline; (2) there is no indication that habitat 
degradation is having any negative impact on the increasing population 
in the present; (3) the population is abundant and increasing; and (4) 
existing laws and practices adequately protect the species and its 
habitat.

ADDRESSES: Requests for copies of this determination should be 
addressed to the 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, Alaska, (907) 271-5006; Michael Payne, Alaska Regional 
Office, NMFS, Juneau, AK, (907) 586-7236, or Thomas Eagle, Office of 
Protected Resources, NMFS, Silver Spring, MD, (301) 713-2322, ext. 105.

SUPPLEMENTARY INFORMATION:

Background

    Listing Under the ESA: Bowhead whales were listed as endangered 
under the Endangered Species Conservation Act, the predecessor to the 
ESA, on June 2, 1970 (35 FR 8495; codified at 50 CFR 17.11). The 
species was then listed as endangered under the ESA in 1973. The 
principal cause of the decline of bowhead whales, which prompted its 
listing, was commercial whaling. Factors related to habitat have not 
been identified as a factor in the decline of the species. Critical 
habitat has not been designated previously for bowhead whales.
    Status and Distribution: Five stocks of bowhead whales occur in 
Arctic and subarctic waters of the northern hemisphere. The Western 
Arctic stock of bowhead whales is the largest of these stocks, and 
occurs in the Bering, Chukchi, and Beaufort Seas. This stock was 
reduced by commercial whaling in the late 19th and early 20th centuries 
from an estimated original population size of 10,400-23,000 whales to 
only several thousand whales by 1910. The best available population 
estimate for this stock is 8,200 animals and is based upon a survey in 
1996. The annual rate of population increase is estimated to be 3.2 
percent. A comprehensive survey of the Western Arctic stock of bowhead 
whales was conducted in the spring of 2001 near Barrow, AK. While the 
analyses from this survey are not yet completed, preliminary 
information indicates that their abundance has continued to increase.
    Bowhead whales are seasonal residents in the Chukchi and Beaufort 
Seas. The summer habitat for this stock occurs primarily in Canadian 
waters off the McKenzie River Delta. They migrate from west to east in 
spring, and return in fall. Most of the stock is believed to winter in 
the central and western Bering Sea along the ice front and in irregular 
areas of open water within the ice called polynyas.
    Mating is believed to take place in late winter and spring, perhaps 
continuing through the spring migration. Each year calving occurs as 
early as March and as late as August; however, most calving occurs from 
April through early June during the period of migration.
    Bowhead whales feed almost exclusively on zooplankton. Bowhead 
whales feed in summer in the Canadian Beaufort Sea and the Amundsen 
Gulf area. Foraging also occurs during the fall migration throughout 
the Alaskan Beaufort Sea. Feeding locations may vary between years. The 
majority of whales harvested during fall at Barrow, AK, have food in 
their stomachs. In September 1998 bowhead whales were observed feeding 
along the Alaskan coastline near and east of Kaktovik. Most bowhead 
whales harvested at Kaktovik have food in their stomachs. Studies in 
the eastern Beaufort Sea indicate that whales also forage over the 
inner continental shelf. Local knowledge has also shown that the waters 
around the barrier islands along the Beaufort Sea coast are an 
important foraging area for bowhead whales. Several sources of man-
induced activities impact, or may impact, bowhead whale populations. 
Bowhead whales are harvested by Alaskan Natives in the Beaufort, 
Bering, and Chukchi Seas. Annual subsistence take levels averaged 37 
whales per year from 1990-2000. In addition to the subsistence harvest, 
other human activities may contribute to the total mortality. 
Commercial fishing occurs in the Bering Sea and elsewhere throughout 
the range of this stock. Interactions between bowhead whales and 
fishing gear is not thought to be common, however, bowhead whales with 
ropes caught in their baleen or

[[Page 55768]]

around their peduncle, and with scarring caused by rope entanglement, 
have been reported from the animals taken in the subsistence harvests. 
The North Slope Borough has also documented three confirmed ship strike 
injuries among 236 bowhead whales taken in the subsistence hunts.
    Noise in the marine environment is also increasing with increased 
industrialization of the Alaskan Arctic, and may effect these whales to 
an unknown degree. However, there is insufficient evidence at this time 
to indicate any cumulative or long-term affect on bowhead whales as a 
result of anthropogenic noises in their Arctic environment. Further 
NMFS is unaware of any evidence that habitat alteration has had any 
impact on the recovery of this stock.
    The Petition: On February 22, 2000, the Center for Biological 
Diversity and the Marine Biodiversity Protection Center petitioned NMFS 
to designate critical habitat for the Western Arctic stock of bowhead 
whales. The petition requested that the designation include waters of 
the Chukchi Sea east of 158 degrees W. Long. and the Beaufort Sea 
between Point Barrow, AK, and the Canadian border, from mean high tide 
to approximately 170km offshore.
    Critical habitat is defined in the ESA (16 U.S.C. 1532(5)) as the 
specific areas on which are found the physical or biological features 
(1) essential to the conservation of the species and (2) which may 
require special management considerations or protection. The 1978 
amendments to the ESA established the current criteria for designating 
critical habitat, which provide, ``Critical habitat may be established 
for those species now listed as threatened or endangered species for 
which no critical habitat has heretofore been established...'' (16 
U.S.C. 1532(5)(B)). Therefore, designating critical habitat for species 
listed prior to 1978 is a discretionary action for NMFS.
    Under the Administrative Procedure Act, 5 U.S.C. 553(e) provides, 
``Each agency shall give an interested person the right to petition for 
the issuance, amendment or repeal of a rule.'' NMFS regulations in 50 
CFR 424.14(d) address petitions to designate critical habitat: ``Upon 
receiving a petition to designate critical habitat... the Secretary 
shall promptly conduct a review in accordance with the Administrative 
Procedure Act (5 U.S.C. 553) and applicable Departmental regulations 
and take appropriate action.'' NMFS found that the petition contained 
substantial scientific information indicating that the petitioned 
action may be warranted and published a notice requesting comments on 
May 22, 2001 (66 FR 28141).

Response to Comments

    NMFS received comments from the following organizations during the 
90 day comment period: British Petroleum Exploration-Alaska, the Alaska 
Eskimo Whaling Commission (AEWC), the Inupiat Community of the Arctic 
Slope, LGL Ltd. Environmental Research Associated, the Alaska Oil and 
Gas Association, Phillips Petroleum-Alaska, Incorporated, the Minerals 
Management Service (MMS), and the Center for Biological Diversity. NMFS 
also received comments on the petition from several individuals. 
Following is a summary of the comments received and NMFS` response.
    Comment 1: Several commenters suggested that the petitioned action 
is not warranted for the following reasons: The U.S. Beaufort Sea is no 
more important to the bowhead whale than other areas throughout its 
range; the Bering/Chukchi stock of bowhead whales is large and 
increasing in number; loss of habitat is neither contributing to any 
decline in the bowhead whale population nor limiting their recovery; 
and existing regulations and management agreements provide adequate 
protection for this habitat.
    Other comments emphasized the growing abundance of the stock, the 
lack of impact to the whales or their habitat from development, and the 
significant array of existing laws and regulations which already 
protect the bowhead whale and its habitat. They also said that any 
benefits to the bowhead by designation of critical habitat would be 
outweighed by economic costs.
    Response: Few data exist describing the distribution and behavior 
of bowhead whales outside the Beaufort Sea. It is known that bowhead 
whales migrate each fall into Bering Sea waters of the U.S. and off the 
Kamchatka Peninsula. They are presumed to winter in the Bering Sea near 
the ice edge and within polynyas around St. Lawrence Island. The 
foraging habitat of bowhead whales appears to be highly dynamic, 
following changes in species composition of prey and oceanography. 
Feeding is known to be the principal activity of bowhead whales in the 
Canadian Beaufort Sea off the McKenzie River Delta, and bowheads 
continue to feed during their fall migration into the U.S. Beaufort, as 
well as during the spring migration. Inupiat Eskimos have regularly 
reported whale feeding behavior in the U.S. Beaufort Sea. The relative 
importance of foraging habitat within the U.S. Bering Sea to the 
bowhead whale is difficult to assess. Stable-isotope research has 
indicated that the Bering Sea provides a substantial portion of the 
annual food requirements for these animals. Feeding behavior has been 
observed also among bowhead whales seen off the Siberian coast in late 
fall.
    Breeding locations and periods are not precisely known, but are 
most likely to occur within the Bering Sea in winter or during spring 
migrations into the Chukchi and Beaufort Seas. Calving is likely to 
occur in the months of April, May, and June. This period also coincides 
with the spring migration.
    The loss or degradation of habitat does not appear to be limiting 
the population growth of bowhead whales at this time. The Beaufort Sea 
contains large tracts of valuable mineral resources, particularly oil 
and gas deposits and, as a result, it has been extensively explored for 
the presence of oil and gas during the past few decades. Both the State 
of Alaska and the U.S. Department of the Interior are conducting lease 
sales in the Beaufort Sea. The Northstar Project began production in 
2000 and is the first offshore oil production facility in the Beaufort 
Sea. A second major offshore production facility, Liberty, will be 
developed in 2003. Oil and gas exploration activities (seismic surveys 
and drilling) also occur in the Beaufort Sea.
    The National Outer Continental Shelf leasing program of the MMS 
will occur in only two areas during the 5-year planning period 2003-
2007, the Gulf of Mexico and Alaska (including the U.S. Beaufort Sea). 
The occurrence of the bowhead whale and the intensive exploratory and 
developmental activities of the oil and gas industry that occur in the 
habitat of the whale has generated significant amounts of attention for 
many years at every governmental level. Noise in the marine environment 
is a major habitat issue with respect to offshore development and 
bowhead whales, and certain noise sources have been shown to cause 
behavioral changes in individual whales. Current trends in this 
industry have been to further minimize or eliminate the introduction of 
any pollutants into the Beaufort Sea. Protective measures such as spill 
contingency plans and prevention measures, wastewater treatment, shore-
based disposal of garbage and drill cuttings, and re-injection of 
drilling muds and production waters have been implemented to protect 
the environment.
    There has been an increase in the underwater noise levels in the 
Beaufort

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Sea as a result of activities such as shipping, ice-breaking, dredging, 
construction, drilling, and geophysical exploration (seismic). 
Monitoring studies in the nearshore Beaufort Sea during 1996-1998 
demonstrated that nearly all bowhead whales avoid an area within 20 km 
of an active seismic source and avoidance or deflection by bowhead 
whales may begin at distances up to 35 km from the noise source. 
Although NMFS is aware that increases in the levels of noise may 
potentially have an adverse impact on bowhead whales, NMFS is unaware 
of any evidence that noise has altered the habitat to the point that it 
has had any significant impact on the recovery of this population.
    Comment 2: One of the commenters stated that an assessment of 
economic impacts should be incorporated into our response to the 
petition.
    Response: The ESA requires that, when designating an area as 
critical habitat, the Secretary of Commerce shall consider the probable 
economic and other impacts of the designation upon proposed or ongoing 
activities and may exclude areas from the designation based on the 
analysis. Because NMFS is not proposing to designate critical habitat, 
NMFS is not required to conduct an analysis of the economic impacts.
    Comment 3: One of the commenters stated that a National 
Environmental Policy Act (NEPA) document (e.g. an Environmental 
Assessment or an Environmental Impact Statement) is necessary to 
document and assess those impacts not otherwise accounted for in the 
ESA process of designating critical habitat.
    Response: NMFS is not proposing to designate critical habitat at 
this time; therefore, NMFS will not be preparing a NEPA document.
    Comment 4: Another commenter also stated that the designation of 
the Beaufort Sea as critical habitat for bowhead whales is not 
warranted because courts have found that NMFS is not required to 
designate critical habitat for species listed under the ESA prior to 
1978, and that NMFS should avoid unnecessary or duplicative 
regulations. The commenter noted that this population of bowhead whales 
is increasing in numbers despite subsistence harvest removals, and 
there is no evidence that efforts to conserve the population has been 
affected by a loss or degradation of habitat.
    Response: NMFS agrees with the commenter's statement that he number 
of bowhead whales is increasing. The current population abundance 
estimate for this population of bowhead whales is estimated at 8,200 
individuals and it is increasing at a rate of 3.2 percent per year. 
There is no indication that degradation of habitat is having any 
negative impact on the current population. In addition, as provided in 
response to comment 1, the loss or degradation of habitat does not 
appear to be limiting the population growth of bowhead whales at this 
time. NMFS recognizes that the ESA gives the Service discretion in 
designating critical habitat for species listed prior to the 1978 
amendments and has taken into consideration this factor, as well as the 
others mentioned by the commenter, in making its determination on this 
petition.
    Comment 5: Several commenters supported the designation of critical 
habitat for the Western Arctic population of bowhead whales. They noted 
that bowhead whales may be present in the U.S. Beaufort Sea for up to 4 
months during any given year, that calving occurs in these waters 
during the spring and open water seasons, and that the Beaufort Sea is 
known to whalers as an important bowhead whale feeding area during both 
spring and fall migrations. The commenters stated that these features 
of the area are essential to the conservation of the bowhead whale. 
They also stated that the Beaufort Sea is becoming increasingly 
developed, largely for oil and gas extraction and these actions have 
resulted in documented behavioral effects to bowhead whales. They 
anticipate future adverse effects due to the continued development and 
the possibility of oil spills. They further stated that the spring and 
fall migratory corridors, and waters landward, represent the minimum 
extent of critical habitat, and recommended that NMFS also consider a 
similar designation for the spring lead system of the Chukchi Sea. 
Finally, the commenters stated that NMFS must prepare a recovery plan 
for the bowhead whale.
    Another commenter specifically mentioned the potential for impact 
from oil spills and nois e on these whales, and the potential adverse 
consequences to the Inupiat Eskimo culture. They requested that NMFS 
honor tribal sovereignty by respecting their request to prohibit oil 
and gas development in the Beaufort Sea.
    Response: NMFS is aware that bowheads use portions of the Beaufort 
Sea for calving, migration, and feeding, recognizes that these areas 
are important for bowhead whales, and understands that these areas are 
being used for energy exploration and development. However, NMFS 
maintains that these areas are protected adequately by existing laws 
and regulations and do not need additional special management 
consideration or protection under the ESA.
    NMFS reviewed the need for a recovery plan for the bowhead whale, 
and determined (Memorandum dated June 16, 1998) that a recovery plan 
was unnecessary due largely to the status of the stock and an agreement 
between NOAA and the AEWC to manage subsistence harvest of the 
population. This agreement and the IWC's Whaling Convention and 
Aboriginal Harvest Plan cover harvest management, research and 
enforcement.
    NMFS recognizes its responsibilities to consult on a government to 
government basis with the affected tribal entities of the North Slope 
in this matter and the importance of local knowledge in our discussions 
with tribal entities. Much of the applied research associated with oil 
and gas activities is based on science developed through coordinated 
study planning, which supplements the scientific method with 
traditional knowledge and observations of the Inupiat Eskimos. Research 
plans and reports are often subject to peer review, and Native 
participation is normally sought when conducting this research.
    Comment 6: One commenter challenged the Petitioner's statements as 
to the scope and adequacy of scientific research on the Western Arctic 
population of bowhead whales. The commenter stated that much is known 
about these whales, and that research has been directed to those 
activities with the greatest potential to impact the population. The 
commenter also stated that any assessment of this issue should consider 
that these bowhead whales encounter human interaction in other areas of 
their range; that members of the population spend most of their time 
outside of the U.S. Beaufort Sea, and that while feeding, sexual 
activity, and rearing occur in these waters, the U.S. Beaufort Sea is 
not the part of the bowhead's range in which these activities are most 
common.
    Response: NMFS agrees that much is now known regarding this 
population of bowhead whales, particularly in the U.S. Beaufort Sea. 
NMFS considered the factors identified by the commenter in making its 
determination on this petition.
    Comment 7: Another commenter stated that the Western Arctic 
population of bowhead whales has grown for many years, and may, in 
fact, now be considered recovered. They recommended that NMFS delay its 
determination on this petition until the final reports from the 2001 
whale

[[Page 55770]]

census and the bowhead whale feeding study are completed. The commenter 
further stated that a recovered stock obviates any need to designate 
critical habitat necessary for their recovery and conservation. They 
note that Incidental Harassment Authorizations (IHAs) issued under the 
MMPA by NMFS have indicated that offshore oil and gas activities could 
result in behavioral changes to whales that would result in no more 
than a negligible impact to the whales. The commenter further stated 
that the IHA process has proven effective in protecting these whales 
from human-related activities in the petitioned area. Finally, the 
commenter stated that NMFS must comply with Executive Order 13211 
entitled ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' by preparing a statement of 
energy effects which describes any actions which may have any adverse 
effects on energy supply.
    Response: NMFS agrees that the Western Arctic population of bowhead 
whales is increasing. The total visual count of 3,295 bowhead whales 
during the 2001 survey is encouraging, and provides some additional 
support that the stock may be recovering. Peer review of the results of 
the 2001 survey has not been completed; therefore, those results are 
still preliminary.
    The bowhead whale receives protection under both the ESA and the 
MMPA. Both acts prohibit the unauthorized taking of a bowhead whale. 
The IHA process is an effective tool in protecting the bowhead whale 
and, particularly, in mitigating the effects of human-induced noise in 
the marine environment on the whales. Authorizations of small-take 
under the MMPA (usually in the form of an IHA) are routinely applied to 
any oil and gas activities in the Beaufort Sea which may adversely 
affect bowhead whales or their habitat. The required conditions and 
monitoring attached to these authorizations focus on anthropogenic 
noise and are designed to minimize behavioral disruption to bowhead 
whales.
    Because NMFS is not proposing to designate critical habitat, 
compliance with Executive Order 13211 is not required.
    Comment 8: This comment focused on a recent court decision (Sierra 
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)) 
as further support for the need to designate critical habitat for 
bowhead whales. The court found that the definition of ``destruction or 
adverse modification'' under 50 CFR 402.02 related to consultation 
under ESA section 7 is invalid. Therefore, the court found that a 
decision not to designate critical habitat, which relied on the invalid 
definition, was in error. The commenter stated that the results of the 
on-going bowhead whale feeding study, while desirable, are not 
necessary in any determination of critical habitat. They reminded NMFS 
that oil activities can cause behavioral effects to bowhead whales, and 
that continued exploration and drilling off the coast of Alaska will 
exacerbate climate change (i.e., global warming). They noted the 
failure of industry to demonstrate their capability to recover spilled 
oil, and pointed to the precautionary principle in guiding any 
determination on whether to designate critical habitat.
    Response: NMFS agrees that the results of the feeding study are not 
essential to a determination of this issue and recognizes the potential 
adverse effects of offshore development to bowhead whales. However, 
NMFS maintains that the combination of existing protections are 
adequate to protect this stock and its habitat and that the petitioned 
action is not necessary given existing management measures.
    NMFS recognizes the benefits of applying a precautionary approach 
when faced with uncertainties. However, the information available 
concerning the biology of the bowhead whale and the effects of oil 
exploration development on these animals, allow NMFS to develop a 
reasoned and informed approach to manage and conserve this population. 
Many factors have the potential to adversely affect these whales; 
however, this population has shown continued growth even with annual 
subsistence removals and increased industrial activity within their 
range. NMFS is satisfied that the management measures currently in 
place control the potential effects of these activities and others.
    Comment 9: Several other commenters supported the designation of 
critical habitat only if it can be certain not to impact subsistence 
hunting practices or harvest quotas.
    Response: NMFS appreciates the comment and recognizes that this 
would be an issue of concern to a number of constituents. However, 
given the reasons provided earlier in this notice NMFS is not proposing 
to designate critical habitat. Therefore, concerns about possibly 
restricting subsistence hunting practices or harvest quotas do not 
apply.

Determination on the Petition

    The biological and natural history information presented in the 
petition is largely factual and represents an adequate review of 
existing data. The petition bases its recommendations for critical 
habitat designation on the following points: The petitioned area 
contains physical and biological features essential to the conservation 
of the bowhead whale because these animals migrate, calve, feed, and 
possibly breed in these waters; and the petitioned area may require 
special management considerations in view of various threats including 
oil and gas development, pollution, and vessel activity.
    In evaluating the petition, NMFS first considered the requirements 
of the ESA. In this case, designating critical habitat for bowhead 
whales is discretionary because the species was listed under the ESA 
prior to 1978. Consequently, NMFS considered the petition under 
provisions of the APA (5 U.S.C. 553(e)), which provide, among other 
things, that agencies must give interested persons the right to 
petition for the issuance of a rule.
    NMFS recognizes that this area is used by bowhead whales. However, 
these areas, especially the U.S. Beaufort Sea, do not require special 
management considerations or protection through the designation of 
critical habitat. This area is currently managed through a combination 
of the ESA, the Marine Mammal Protection Act and the Fish and Wildlife 
Coordination Act (FWCA). In addition to managing the incidental taking 
of bowhead whales, the MMPA includes provisions that can be used to 
protect the habitat of certain marine mammals, including bowhead whales 
(e.g., 16 U.S.C. 1382(e)).
    Federal activities in the petitioned region generally concern 
offshore oil and gas exploration and development. Under the ESA and the 
FWCA, NMFS consults with the Minerals Management Service, the Army 
Corps of Engineers (Corps), and the Environmental Protection Agency 
(EPA) regarding the effects of such development on the Outer 
Continental Shelf (OCS) or other waters through intensive consultation 
processes. NMFS reviews actions permitted by the Corps and EPA and 
regularly conditions associated permits through its consultative role 
under the FWCA.
    Formal ESA consultation has occurred for every offshore development 
project on the OCS. NMFS completed a comprehensive ESA Section 7 
consultation in 2000 on the effects of the offshore oil and gas leasing 
and exploration on the bowhead whale. The resulting biological opinion 
concluded that those actions were not likely to jeopardize the 
continued existence of the bowhead whale. Although NMFS

[[Page 55771]]

does not treat the criteria for evaluating the destruction or adverse 
modification of designated critical habitat and jeopardy as the same, 
these ESA consultations in conjunction with protective measures under 
the MMPA and FWCA provide the means to protect the habitat of this 
population of bowhead whales.
    All actions, including non-Federal activities, which may kill, 
injure, or harm a bowhead whale are in violation of Federal law unless 
specifically authorized. NMFS routinely considers applications for 
authorizations under the MMPA for the incidental taking of bowhead 
whales by harassment, largely due to noise. The authorization process 
for these permits is comprehensive, involving close coordination with 
affected subsistence users and Native governments, preparation of 
scientific monitoring studies, and peer-review of results. Further, 
these authorizations require that an activity have no more than a 
negligible impact to the stock, and the activity cannot have an 
unmitigable adverse effect on the availability of the marine mammal to 
subsistence users. These standards provide further assurance that the 
activities do not have significant consequence to bowhead whales and 
their habitat.
    Existing laws and practices provide the means to adequately protect 
the habitat of the bowhead whale within the U.S. Beaufort Sea. They 
also provide a legal framework by which any future needs for such 
protection could be met.
    NMFS considered the known, anticipated or potential effects of 
development on bowhead whale habitat in the review of this petition. 
NMFS has no data to indicate that the physical alteration of the 
Chukchi or Beaufort Seas has affected the conservation of bowhead 
whales. In-water noise has increased with an increase in offshore 
development and vessel traffic. However, NMFS will continue to work 
with the permitting Federal agencies and with industry through the MMPA 
small-take authorization process to monitor the effect of noise on 
bowhead whales. This monitoring is intended to identify changes in 
whale behavior and distribution. As a result of the many informal and 
formal ESA section 7 consultations, as well as the other management 
measures and processes discussed, the provisions contained in 
authorizations of project activities during project planning have 
mitigated potential effects to the bowhead whales and their habitat.
    NMFS also has considered the status and health of the Western 
Arctic population of bowhead whales in making this determination. The 
Western Arctic population of bowhead whales appears to be recovering 
and has demonstrated that it is capable of recovering from the effects 
of commercial whaling. The current best estimate for the stock 
abundance is 8,200 animals with an estimated annual population growth 
rate of 3.2 percent. While this 1996 estimate is rather dated, recent, 
preliminary information from the 2001 survey indicates that the 
abundance has continued to increase. NMFS intends to initiate a formal 
ESA status review after peer review of the results of the 2001 survey.
    In making its determination on whether to designate critical 
habitat for bowhead whales, NMFS assessed the current status of the 
population, all of the factors known to affect the habitat of bowhead 
whales, and whether existing management measures are adequate to 
protect that habitat. Based on this assessment, NMFS is exercising its 
discretion not to propose designation of critical habitat for this 
population of bowhead whales for the following reasons: (1) the decline 
and reason for listing the species was overexploitation by commercial 
whaling, and habitat issues were not a factor in the decline; (2) there 
is no indication that habitat degradation is having any negative impact 
on the increasing population in the present; (3) the population is 
abundant and increasing; and (4) existing laws and practices adequately 
protect the species and its habitat.
    NMFS will continue to monitor this stock and protect the bowhead 
whale and its habitat under existing authorities and agency actions, as 
described in this notice. NMFS will continue to review the 
appropriateness of designating critical habitat during all subsequent 
reviews of the status of this species. These reviews will also consider 
whether there is a need for any additional management measures in order 
to conserve the Western Arctic stock of bowhead whales.

    Authority: 16 U.S.C. 1513, et seq.

    Dated: August 26, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-22259 Filed 8-29-02; 8:45 am]
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