[Federal Register Volume 67, Number 223 (Tuesday, November 19, 2002)]
[Proposed Rules]
[Pages 69708-69710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29360]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 021108270-2270-01; I.D. 102802C]
RIN 0648-AQ53


Endangered and Threatened Species; Finding for a Petition To 
Revise Critical Habitat for Northern Right Whales

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

ACTION: Notice of 90-day finding.

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SUMMARY: NMFS announces the receipt of a petition to revise critical 
habitat for the endangered western North Atlantic right whales, 
Eubalaena glacialis, (right whales). NMFS finds that the petition 
presents substantial scientific information indicating that this action 
may be warranted and is soliciting public comment and information on 
the petition. NMFS will determine how to proceed with the petitioned 
action within 12 months after receiving the petition.

DATES: Comments on this action must be postmarked or transmitted by 
facsimile by January 21, 2003. Comments transmitted via e-mail or the 
Internet will not be accepted.

ADDRESSES: Comments concerning this action may be submitted to Mary 
Colligan, Assistant Regional Administrator for Protected Resources, 
Protected Resources Division, NMFS, One Blackburn Drive, Gloucester, MA 
01930.

FOR FURTHER INFORMATION CONTACT: Mary Colligan, Northeast Region, 
telephone 978-281-9116, fax 978-281-9394; Kathy Wang, Southeast Region, 
telephone 727-570-5312, fax 727-570-

[[Page 69709]]

5517; or Patricia Lawson, telephone 301-713-2322, fax 301-713-0376.

SUPPLEMENTARY INFORMATION:

Background

    On July 11, 2002, NMFS received a petition dated July 9, 2002, from 
The Ocean Conservancy requesting that NMFS revise and expand the 
current critical habitat designation for right whales. The petitioner 
requested that NMFS expand the existing Southeast critical habitat 
designation to the following coordinates: 31[deg] 30' N to 29 40' N 
from the shoreline out to 30 nautical miles (55.6 km2); 29[deg] 4'' N 
to 28 [deg]00' N from the shoreline out to 10 nautical miles (18.5 
km\2\). The petitioned area would add approximately 2,700 nm\2\ 
(5,003.6 km\2\) to the current critical habitat coverage. The 
petitioner also requested that NMFS expand and combine both the 
existing Northeast critical habitat designations (Cape Cod Bay and 
Great South Channel) into one critical habitat area bounded by the 
following coordinates: 41[deg] 41.2'N/69[deg] 58.2' W; 41[deg] 00.0' N/
69[deg] 05.0' W; 41[deg] 00.0' N/68[deg] 13.0' W; 42[deg] 12.0' N/
68[deg] 13.0' W; 42[deg] 12.0' N/70[deg] 30.0' W; 41[deg] 46.8' N/
70[deg] 30.0' W; and on the southwest corner by the shoreline of Cape 
Cod, MA.
    Section 4(b)(3)(D) of the Endangered Species Act (ESA), as amended 
(16 U.S.C. 1533(b)(3)(D)), requires that NMFS make a finding on whether 
a petition to revise a designation of critical habitat presents 
substantial scientific information to demonstrate that the petitioned 
action may be warranted. NMFS' ESA implementing regulations at 50 CFR 
424.14 define ``substantial information'' as the amount of information 
that would lead a reasonable person to believe that the measure 
proposed in the petition may be warranted. In making this finding, NMFS 
must consider the information that is presented by the petitioner and 
any new unassessed information on habitat that was added to NMFS' file 
regarding the species after critical habitat was designated but before 
NMFS received the petition to revise it. To the maximum extent 
practicable, this finding is to be made within 90 days of the petition, 
and the finding is to be published promptly in the Federal Register. 
Within 12 months after receiving a petition that NMFS has found to 
present substantial information indicating that the revision may be 
warranted, NMFS must determine how it intends to proceed with the 
requested revision and promptly publish notice of such intention in the 
Federal Register.
    Critical habitat is defined in section 3(5)(A) of the ESA as (i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the ESA, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. Conservation is defined in section 3 of the ESA as ``... 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 [the ESA] are no longer necessary.''
    In determining what areas are critical habitat, NMFS must consider 
the physical and biological features that are essential to the 
conservation of the species and that may require special management 
considerations. Physical and biological features essential to the 
conservation of the species include, but are not limited to, 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.
    Special management considerations or protections mean any methods 
or procedures useful in protecting the physical and biological features 
of the environment for the conservation of the listed species (50 CFR 
424.02(j)).
    Section 4(b)(2) of the ESA requires NMFS to take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. NMFS may exclude areas from 
critical habitat designation when the benefits of exclusion outweigh 
the benefits of including the areas within critical habitat, provided 
the exclusion will not result in extinction of the species.
    The right whale was 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 17.11). NMFS was petitioned by the Right 
Whale Recovery Team to designate critical habitat for right whales on 
May 18, 1990. A document was published in the Federal Register on July 
12, 1990 (55 FR 28670), requesting information and comments on the 
petition. The proposed rule was published on May 19, 1993 (58 FR 
29186), and the final rule was published on June 3, 1994, (59 FR 28793; 
codified at 50 CFR 226.203). The designation identified habitat with 
features essential to the conservation of the species, such as 
foraging, calving, and nursing. Specifically, this designation includes 
portions of Cape Cod Bay and Stellwagen Bank, the Great South Channel 
(each off the coast of Massachusetts), and waters adjacent to the 
coasts of Georgia and the east coast of Florida.
    In general, the petitioner stated that since the 1994 designation 
of right whale critical habitat, knowledge regarding distribution and 
mortality of the North Atlantic right whale has increased 
substantially, indicating that critical habitat boundaries need to be 
revised and expanded to provide proper protection for right whales.
    Specifically, the petitioner stated that 10 years of new data 
regarding right whale distribution and causes of mortality along the 
east coast of the United States show that the current critical habitat 
designation is not sufficient to protect right whales from further 
anthropogenic mortality. The petitioner stated that the proposed 
critical habitat expansion contains several features essential to the 
conservation of the right whale in the western North Atlantic and 
proposed that these features require specific protection or management 
considerations to ensure the survival and recovery of the species. The 
petitioner stated that the areas proposed for expanded critical habitat 
experience high levels of human disturbance in the form of shipping 
activities, fisheries, military activities, dredging operations, 
increased pollution, and general habitat disturbance. The essential 
features associated with the proposed critical habitat cited by the 
petitioner include the following: 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 distributions of species.
    The petitioner acknowledged that some areas in the northeastern 
U.S. have already received special management attention in the form of 
fishing regulations, but maintains that essential right whale habitat 
along the eastern seaboard lacks protection from ship strikes. In 
addition, the petitioner noted that when several habitats, each 
satisfying the requirements for

[[Page 69710]]

designation as critical habitat, are located in proximity to one 
another, an inclusive area may be designated as critical habitat. The 
petitioner stated that the continued high mortality of North Atlantic 
right whales from ship strikes indicates the immediate need for 
management actions to reduce ship strikes and maintains that accurately 
designated critical habitat boundaries will facilitate the management 
process. In addition, the petitioner stated that since the time 
critical habitat was originally designated in the southeastern U.S., 
extensive and expansive survey efforts have shown that right whales 
occur further offshore than originally known. The petitioner contended 
that the importance of this area as the only known calving ground for 
right whales warrants the revision of critical habitat to protect the 
animals within this region.

Petition Finding

    NMFS has reviewed the petition and other available information. On 
the basis of that information, NMFS finds that the petition presents 
substantial scientific information indicating that the requested action 
may be warranted. Within 1 year of the receipt of the petition, NMFS 
will determine how it intends to proceed with the requested revision 
and promptly publish notice of such intention in the Federal Register.

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

    Dated: November 13, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 02-29360 Filed 11-18-02; 8:45 am]
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