[Federal Register Volume 68, Number 167 (Thursday, August 28, 2003)]
[Proposed Rules]
[Pages 51758-51763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22039]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 021108270-3204-02; 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: Response to petition; final determination.

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SUMMARY: On July 11, 2002, NMFS received a petition dated July 7, 2002, 
requesting that NMFS revise the present critical habitat designation 
for the western North Atlantic right whale, Eubalaena glacialis, (right 
whales) under the Endangered Species Act (ESA) by combining and 
expanding the current Cape Cod Bay and Great South Channel critical 
habitats in the Northeast and by expanding the current critical habitat 
in the Southeast. NMFS has determined that the requested revision, as 
specified by the petitioner, is not warranted at this time. However, 
NMFS will continue to analyze the physical and biological habitat 
features essential to the conservation of right whales.

ADDRESSES: Comments and requests for copies of this determination 
should be addressed to Assistant Regional Administrator for Protected 
Resources, Protected Resources Division, NMFS, One Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Brian Hopper, Northeast Region, 
telephone (978) 281-9328 x6509, fax (978) 281-9394; Barb Zoodsma, 
Southeast Region, telephone 904-321-2806, fax (904) 321-1579; or Kristy 
Long, telephone (301) 713-1401, fax (301) 713-0376.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Several background documents on right whales and the critical 
habitat designation process can be downloaded from the NOAA Fisheries 
Web Site at http://www.nmfs.noaa.gov/.

Background

    Right whales in the North Atlantic are one of three populations of 
endangered right whales worldwide. The other populations occur in the 
North Pacific and the Southern Hemisphere. The southern right whale is 
recognized as a separate species and, until recently, the North 
Atlantic and North Pacific stocks were defined as a single species. 
However, recent genetic studies provided evidence that supported 
separating species status for these two populations, one in the North 
Atlantic and another in the North Pacific. On April 10, 2003, NMFS 
published a final rule (68 FR 17560) concerning the nomenclature and 
taxonomy of right whales, which formally acknowledges these scientific 
findings by changing the species name of the northern right whale as 
follows: the North Atlantic right whale, Eubalaena glacialis, and the 
North Pacific right whale, Eubalaena japonica. These technical changes 
did not affect the listing status of these species under the ESA (all 
three remain ``endangered'').

Status of North Atlantic Right Whale

    The North Atlantic right whale is one of the world's most 
critically endangered species of large whale (Clapham et al. 1999). 
Despite nearly three-quarters of a century of international legal 
protection, the right whale has not shown any recovery towards its pre-
exploitation numbers. Recent studies on the current population trend in 
right whales suggest that, if the population decline is not reversed, 
the species is likely to become extinct in less than 200 years (Caswell 
et al. 1999). More than 800 years of uncontrolled and intense hunting 
is the primary reason that the right whale population has declined to 
such a precarious level. Today, ship strikes and entanglements in 
fishing gear are the primary, human-related causes of serious injury 
and mortality to right whales that impede the species' recovery.
    Exploitation: North Atlantic right whales were the first target of 
commercial whaling and, consequently, the first large whale species to 
be hunted to near extinction by such efforts. Several characteristics 
specifically attributable to the right whale made it a highly desirable 
resource, such as its large yield of commercially valuable products 
(e.g., oil and baleen), its slow swimming speed, its distinction of 
floating when dead, and its generally coastal distribution. These 
factors also contributed to the whale's common name, which is said to 
have originated from the English whalers who designated this species of 
whale as the ``right'' (i.e., correct) whale to hunt.
    The commercial harvest of right whales began with Basque whalers 
taking substantial numbers of them as early as the 1500s in the Strait 
of Belle Isle region (Aguilar, 1986). As the stocks in the eastern 
North Atlantic became depleted, hunting effort shifted to the western 
North Atlantic, off the Labrador and New England coasts. This intense 
period of early whaling may have resulted in a significant reduction in 
the stock of right whales by the time colonists in the Plymouth area 
began hunting for right whales in the 1600s (Reeves and Mitchell, 
1987). A modest but persistent whaling effort along the coast of the 
eastern United States lasted three centuries, and the records include 
one report of 29 whales killed in Cape Cod Bay in a single day during 
January 1700. The right whales' vulnerability to over-exploitation was 
noticed as early as the 19\th\ century. For example, in 1851, Herman 
Melville wrote that, although still numerous at that time, the right 
whale could vanish from the earth under the hunting pressure then being 
applied to the species. However, Melville's prophetic observation went 
largely ignored for over 80 years, and the traditional high-seas Yankee 
whale fishery made way for a modern, industrial, and efficient whaling 
fleet. Finally, in 1935, the species had declined to such low levels 
that the League of Nations was able to get most whaling nations to 
agree to stop hunting right whales.
    Abundance and Trends: An estimate of the pre-exploitation 
population size of right whales is not available. However, based on 
historical catch levels, right whale abundance probably exceeded 10,000 
animals. The historic range of North Atlantic right whales extended 
from as far south as Florida and northwestern Africa to as far north as 
Labrador, southern Greenland, Iceland, and Norway (Kenney, 2002). 
Commercial whaling severely depleted the population to the point where 
right whales are no longer abundant in portions of their historical 
range (e.g., the Strait of Belle Isle, Newfoundland, the coastal waters 
of Long Island, New York, and Delaware Bay). Therefore, the present 
range of North Atlantic right whales, from Florida to Nova Scotia, is

[[Page 51759]]

considerably reduced from its historic extent.
    The best estimate of present abundance is about 300 animals. In 
1998, the right whale population size was estimated to be 291 
individuals (Kraus et al., 2001) based on a census of individual whales 
identified using photo-identification techniques. It is assumed that 
the census of identified and presumed living whales represents a 
minimum population size estimate. However, the true population size in 
1998 may have been higher if: (1) there were animals not photographed 
and identified; and/or (2) some animals presumed to be dead, actually, 
were not.
    The population growth rate reported for the period 1986-1992 by 
Knowlton et al. (1994) was 2.5 percent (CV=0.12), which suggested that 
the species was showing signs of a slow recovery. However, more recent 
work by Caswell et al. (1999) has suggested that crude survival 
probability declined from about 0.99 in the early 1980s to about 0.94 
in the late 1990s. The decline in survival probability is statistically 
significant. Additional work conducted in 1999 concluded that survival 
had indeed declined during the 1990s (Best et al., 2001). Although 
heterogeneity of capture could negatively bias survival estimates, 
subsequent review of this study concluded that this factor could not 
account for all of the observed decline, which appeared to be 
particularly marked in adult females.
    Seasonal Movement and Habitat: Right whales migrate annually 
between high-latitude feeding grounds and low-latitude calving and 
breeding grounds. In general, most of the whales spend the spring and 
early summer off the coast of New England, then, in the latter part of 
the summer and fall, move to the waters off southern Canada. Some 
whales may remain in these northern waters throughout the winter, but 
the majority leave. Therefore, the exact location of a large segment of 
the population is unknown during the winter. A small fraction of the 
population, consisting almost entirely of pregnant females and 
juveniles, migrates south in the winter to the only known calving 
ground for the species - the coastal waters of Georgia and northeast 
Florida.
    Breeding and Calving: The precise location of a breeding ground for 
right whales has not been identified. However, as North Atlantic right 
whales have been observed engaging in breeding-like behavior throughout 
much of their range, the concept of a specific breeding ground may not 
be relevant for this species.
    The only known current calving ground in the western North Atlantic 
is in the coastal waters of the southeastern United States, especially 
the shallow waters from Savannah, Georgia, south to Cape Canaveral, 
Florida. It has been speculated that other coastal areas, such as 
Delaware Bay and Cape Cod Bay, may have been calving grounds before the 
population was decimated by whaling (Kenney, 2002).
    Prey: Right whales feed exclusively on zooplankton, especially on 
large calanoid copepods (mostly of the genera Calanus and 
Pseudocalanus). At times, they also feed on juvenile euphausiids (also 
known as krill), smaller copepods, pteropods (tiny planktonic snails), 
or the planktonic larval stages of barnacles and other crustaceans 
(Kenney, 2002).
    The waters along the New England coast are a primary feeding 
habitat for the right whale. Research suggests that right whales must 
locate and exploit extremely dense patches of zooplankton to feed 
efficiently (Mayo and Marx, 1990). These dense zooplankton patches are 
known to occur in the spring, summer, and fall right whale habitats 
from Cape Cod Bay to the Bay of Fundy.

Status of North Atlantic Right Whales Under the Endangered Species Act

    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). 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 developing, implementing, and monitoring a recovery 
program for this species.
    NMFS published a Final Recovery Plan for the Northern Right Whale 
(Recovery Plan) in 1991, and a draft, revised Recovery Plan in 2001. 
Habitat related objectives were identified in the 1991 Recovery Plan, 
as well as in the 2001 draft revision. One of these objectives was to 
characterize known habitats of special importance to the species, 
identify other habitats essential to the conservation of the species, 
and protect these areas as necessary. Additional objectives of the 
Recovery Plan concerning habitat include the collection of new data and 
analysis of available data to assess the need for expanding or 
modifying the existing critical habitat boundaries.
    NMFS was petitioned by the Right Whale Recovery Team to designate 
critical habitat for right whales on May 18, 1990. A notice was 
published in the Federal Register on July 12, 1990 (55 FR 28670), 
requesting information and comments on the petition. The proposed 
critical habitat designation 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). Areas included in the initial critical 
habitat designation were identified primarily on the basis of use by 
right whales. The designation recognized and discussed important 
characteristics of these habitats that relate to aspects of right whale 
biology, 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.

Petition To Revise Existing Right Whale Critical Habitat

    On July 11, 2002, NMFS received a petition dated July 9, 2002, from 
The Ocean Conservancy requesting that NMFS revise the current critical 
habitat designation for North Atlantic right whales by expanding its 
boundaries in both the Northeast and Southeast U.S. The petitioner 
requests that NMFS expand the existing Southeast critical habitat 
designation to the following coordinates: 31[deg] 30' N to 29[deg] 40' 
N from the shoreline out to thirty nautical miles; 29[deg] 40' N to 
28[deg] 00'N from the shoreline out to ten nautical miles. The 
petitioned area would add approximately 2,700 nm2 (5,003.6 km2) to the 
current critical habitat coverage. The petitioner also requests 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.
    The petitioner states 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. According to the petitioner, the additional critical habitat 
contains several features essential to the conservation of the right 
whale in the western North Atlantic that may require specific 
protection or management considerations to ensure the survival and 
recovery of the species. The petitioner stated that the areas 
petitioned for expanded critical habitat experience high levels of 
human disturbance in the form of shipping

[[Page 51760]]

activities, fisheries, military activities, dredging operations, 
increased pollution, and general habitat disturbance. The essential 
features associated with the petitioned critical habitat according to 
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 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, maintaining 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.
    Section 4(b)(3)(D) of the ESA requires that NMFS, to the maximum 
extent practicable, within 90 days after receiving a petition to revise 
existing critical habitat, make a finding as to whether the petition 
presents substantial scientific information indicating 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 it 
intends to proceed with the requested revision and promptly publish 
notice of such intention in the Federal Register.
    On November 19, 2002 (67 FR 69708), NMFS published a notice finding 
that the subject petition contained substantial scientific information 
indicating that the requested revision of right whale critical habitat 
may be warranted and inviting interested persons to submit comments and 
information concerning revision. NMFS' finding was based on the 
agency's concurrence with petitioner's statement that extensive and 
expanded survey efforts in the southeast indicate that right whales 
occur farther offshore than previously known, and that the draft final 
recovery plan suggested that data should be analyzed to assess 
expanding or modifying the critical habitat boundaries.

Response to the Comments Received on the Petition

    NMFS received over 2,000 letters and postcards during the comment 
period. The comments are addressed in the following paragraphs.

Comments in Support of Revising Critical Habitat

    Comment 1: Hundreds of people sent form letters and post cards 
expressing support for the proposed expansion of right whale critical 
habitat, based on the belief that it will more accurately reflect the 
distribution and range of the species and provide a mechanism to 
achieve greater protection. Another commenter suggested that NMFS 
designate the entire known range of North Atlantic right whales as 
critical habitat.
    Response: Recent NMFS surveys have documented the consistent use of 
areas outside of the currently designated critical habitats by right 
whales (Zoodsma et al., 1999; Merrick et al., 2001). However, more 
analyses of the sightings data and their environmental correlates are 
necessary to define and designate these areas as critical habitat. 
Furthermore, the ESA requires that the process for designating critical 
habitat must focus on the identification of specific habitat features 
(i.e., primary constituent elements) essential to right whale 
conservation that may require special management considerations or 
protection, rather than only on known distribution. If the physical and 
biological features essential to the conservation of right whales are 
identified and determined to be distributed outside of current critical 
habitat boundaries, NMFS will evaluate the addition of areas containing 
these features to the designated critical habitat, in accordance with 
the requirements set forth in sections 3(5)(A) and 4(b)(2) of the ESA.
    Comment 2: Two commenters recommended that NMFS review the 
available data and, based on that review, expand the current critical 
habitat as warranted. In addition, these commenters recommended that 
NMFS contract or prepare a report similar to the one prepared for the 
Marine Mammal Commission in 1991, which assesses right whale sighting 
data and human activities in and around the three existing right whale 
critical habitat areas. Such a report could be used to identify and 
evaluate the most appropriate critical habitat boundaries.
    Response: NMFS agrees that the available data should be reviewed 
and, based on that review, NMFS could proceed to revise critical 
habitat. NMFS intends to proceed with the analyses necessary to 
evaluate the necessity of revising critical habitat based on the need 
to protect the habitat features essential to the conservation of right 
whales. Finally, NMFS will consider the recommendation to solicit a 
contractor to prepare a report that assesses right whale sighting data 
and human activities in and around the three existing right whale 
critical habitat areas.
    Comment 3: In addition to supporting the proposed expansion of 
critical habitat, several commenters suggested that NMFS include other 
areas shown to be regularly frequented by right whales that are outside 
of the petitioned area. For example, these commenters specifically 
suggested including Jeffreys Ledge, Platts Bank, Fippennies Ledge, and 
Cashes Ledge because of their seasonal use as feeding habitat. 
Furthermore, these commenters suggested that the Seasonal Area 
Management (SAM) areas northeast of the Great South Channel should 
receive equal consideration as critical habitat.
    Response: See response to Comment 1.
    Comment 4: With respect to the petitioned revision in the 
Southeast, one commenter expressed support for the need to expand 
critical habitat beyond the current boundaries because recent surveys 
have shown regular and significant numbers of right whales in these 
waters.
    Response: See response to Comment 1.

Comments Opposed To Revising Critical Habitat

    Comment 5: Several commenters expressed support for federal efforts 
to protect and recover right whales, including the concept of expanding 
critical habitat based on the availability of new data, but did not 
support the petitioned revision because the

[[Page 51761]]

information provided by the petitioner is insufficient. Therefore, 
these commenters suggest that NMFS conduct further analysis and 
research on right whale distribution, including the identification of 
``high-risk'' areas. Specifically, these commenters recommend an 
analysis of all right whale sightings since 1994 using a Sightings-Per-
Unit-Effort analysis, which will provide scientists and managers with a 
more precise representation of spatial and temporal patterns of right 
whale habitat use.
    Response: NMFS agrees that further analysis of the available data 
is warranted to better understand what areas are most frequented by 
right whales so that we may better manage the threat of takes. In 
addition, more analyses of the sightings data and their environmental 
correlates are necessary to define and designate additional areas as 
critical habitat. NMFS notes, however, that any revision of critical 
habitat will reflect habitat features essential to conserving the North 
Atlantic right whale population.
    Comment 6: One commenter expressed concern that a revised and 
expanded critical habitat would unnecessarily restrict military 
training/operations in additional open ocean areas.
    Response: As Federal agencies, under section 7 of the ESA, the 
branches of the U.S. military are required to consult with NMFS (or 
U.S. Fish and Wildlife Service) to ensure that their actions are not 
likely to jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse modification 
of critical habitat. NMFS does not agree that it is a forgone 
conclusion that the revision of critical habitat will restrict military 
operations along the East Coast. A designation or revision of critical 
habitat assists Federal agencies in planning future actions, since the 
designation or revision identifies, in advance, those habitat features 
that will be given special consideration through section 7 
consultations. Therefore, potential conflicts between projects and 
endangered species can be identified early in the planning process.
    Comment 7: One commenter expressed opposition to the petitioned 
revision to critical habitat because he/she believes it is unnecessary 
and would only lead to more petitions to designate critical habitat 
until the entire Atlantic Ocean is critical habitat.
    Response: The public's right to petition NMFS to designate or 
revise critical habitat is expressly provided for in the ESA, and the 
agency can neither prohibit the exercise of this right nor ignore the 
petitions it receives with respect to such actions. In addition, the 
regulations at 50 CFR 424.12(g) provide NMFS with the authority to 
revise existing critical habitat when new data become available. As 
explained later on in this Notice, NMFS believes that the requested 
revision of critical habitat, as specified by the petitioner, is not 
warranted at this time. However, NMFS intends to proceed with the 
specified activities to determine whether a revision of critical 
habitat is warranted.
    Comment 8: One commenter expressed the belief that a revised 
critical habitat designation would not be an effective mechanism for 
reducing the levels of right whale mortalities. In light of the 
commenter's belief that there is no link between the extent of critical 
habitat boundaries and levels of anthropogenic mortality, this 
commenter suggests that NMFS take immediate action to require universal 
gear modifications as the most effective means for enhancing the 
protection of right whales.
    Response: The revision of critical habitat would likely not 
directly address the ``take'' issue to which this comment refers. The 
designation of critical habitat, in itself, does not necessarily lead 
to additional management measures. Under the ESA, the only direct 
impact of a critical habitat designation is through the provisions of 
section 7. Section 7 applies only to actions with Federal involvement 
(e.g., authorized, funded, conducted), and, through the consultation 
process, requires modifications to those projects that would result in 
the destruction or adverse modification of the primary constituent 
elements in designated critical habitat areas. Accordingly, NMFS would 
address the need for management measures for commercial fishing in 
critical habitat through the ESAs section 7 consultations on the 
fisheries regulated by NMFS and the Atlantic Large Whale Take Reduction 
Plan (ALWTRP). Indirectly, critical habitat designations also help 
focus Federal, state, and private conservation and management efforts 
in those areas. Recovery efforts may address special considerations 
needed in critical habitat, including conservation regulations to 
restrict private as well as Federal activities. Finally, it is 
important to note that the recommendation for special gear 
modifications designed to reduce serious injury to or mortality of 
right whales is more appropriate within the context of NMFS' Atlantic 
Large Whale Take Reduction Team (ALWTRT) than in the context of a 
petition to revise critical habitat.
    Comment 9: Three commenters expressed opposition to the proposed 
expansion of critical habitat because it would lead to further 
regulation of state fisheries while continuing to bypass the shipping 
industry. In addition, these commenters urged NMFS to implement rules 
that would specifically protect right whales from ship strikes.
    Response: First, the designation or revision of critical habitat 
does not, in itself, restrict non-Federal activities within the area or 
mandate any specific management or recovery action; as discussed above, 
a designation of critical habitat triggers an inter-agency consultation 
requirement designed to ensure that Federal activities avoid 
destruction or adverse modification of critical habitat. In addition, a 
critical habitat designation or revision contributes to the 
conservation of a species by identifying the physical and biological 
features within those areas that are essential to conservation of the 
species, thereby alerting both public and private entities to the 
importance of the area to the species. Second, the regulations found at 
50 CFR 224.103(c) are intended to protect right whales from ship 
strikes by prohibiting vessels from approaching within 500 yards (460 
m) of a right whale. Finally, NMFS is currently working toward 
developing and implementing a ship strike reduction strategy.
    Comment 10: One commenter expressed opposition to the petitioned 
expansion of critical habitat because he/she felt that the petitioners 
have not presented sufficient evidence that expanding critical habitat 
and implementing regulations to reduce vessel speeds within critical 
habitat will provide protection for right whales.
    Response: See response to comment 9.
    Comments on the Process for Revising Critical Habitat
    Comment 11: One commenter suggested that NMFS advise the relevant 
regulated communities (i.e., commercial fisheries and shipping) on the 
possible effects that the petition and any subsequent critical habitat 
designation may have on future management measures.
    Response: NMFS agrees that the relevant regulated communities 
should be informed about the petition to revise critical habitat, 
NMFS's responses to the petition, and how the agency intends to proceed 
with the requested revision. NMFS provided copies of the petition and 
90-day notice and finding to team members and interested parties at the 
recent meeting of the ALWTRT. A presentation was also given at the 
meeting on critical habitat in general and made specific reference to 
the

[[Page 51762]]

petitioned revision. In addition, prior to the meeting, the ALWTRT was 
made aware of the petitioned action through an email distribution and 
by posting the relevant documents on the Web Site for the ALWTRP as 
well as on the NOAA Fisheries home page (see Electronic Access). NMFS 
provided similar notice to the shipping community through the Ship 
Strike Reduction e-mail distribution list and a presentation to the 
Southeast U.S. Right Whale Recovery Plan Implementation Team.
    Comment 12: One commenter expressed concern that neither the 
petition nor the Federal Register notice provided a substantive 
discussion of economic impacts. Furthermore, this commenter suggested 
that NMFS carefully analyze the data relied upon to designate critical 
habitat and apply designation criteria uniformly to avoid undue 
economic costs or economic dislocation to the shipping industry as the 
agency proceeds with ship strike mitigation measures. Finally, this 
commenter suggested that NMFS articulate to the public that management 
measures may not have the same or coincident boundaries as those of a 
revised critical habitat.
    Response: Both the ESA and the regulations for designating critical 
habitat found at 50 CFR 424.12 require NMFS to consider economic 
impacts, and any other relevant impact, of specifying any particular 
area as critical habitat. At this time, an analysis of economic impacts 
is not required, because NMFS has not yet proposed any areas for 
designation as part of an effort to revise right whale critical 
habitat. In other words, the agency has not defined the area in which 
an analysis of economic impacts may be applied. However, NMFS has 
determined that an economic analysis will be included among the steps 
the agency has identified for any future revision of critical habitat. 
NMFS agrees with the final point made by the commenter, and the public 
will be notified if the agency decides to implement management measures 
whether or not it revises critical habitat.

Determination on the Petition

    Critical habitat is defined in section 3(5)(A) of the ESA as the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. In addition, under section 3(5)(A) of the ESA, critical 
habitat may include 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.
    NMFS has decided not to designate critical habitat in accordance 
with the petitioned revision because the information presented in the 
petition does not adequately support the petitioned new boundaries for 
critical habitat. The revisions proposed by the petitioner are largely 
based on where whales have been found and general information on what 
the whales may be doing in those areas rather than on the specific 
nature and location of the physical or biological features of the 
habitat that are essential to the conservation of the species.
    For example, in discussing the value of ``space'' for individual 
and population growth and for normal behavior, the petitioner states 
that the requested revision will ``cover areas that consistently 
maintain large numbers of western North Atlantic right whales and the 
conditions they require for individual and population growth as well as 
normal behavior'' (Petition p. 21). However, the petitioner fails to 
identify or discuss with the necessary degree of detail what those 
conditions are that would be necessary for individual and population 
growth, and normal behavior, or how these features are essential to the 
conservation of right whales. Therefore, without establishing a nexus 
between the specific habitat feature and the requested revision, beyond 
the premise that the area is used by large numbers of right whales, the 
petition does not support the suggested changes to critical habitat 
boundaries.
    With regard to its discussion of ``food, water, air, light, 
minerals, or other nutritional or physiological requirements,'' the 
petition indicates that right whales require high densities of prey for 
effective feeding. However, the petition does not present information 
identifying what those densities are, what features of the habitat lead 
to the concentration of prey, or evidence that the expanded boundaries 
incorporate additional areas in which sufficiently high densities of 
prey are likely to exist.
    With regard to its discussion of ``cover or shelter,'' the petition 
indicates that the proposed additions to the northern and southern 
areas ``exhibit temperature, salinity, and bathymetric requirements 
needed to provide shelter for western North Atlantic right whales.'' 
However, the petition does not indicate specifically what those 
temperature, salinity, and bathymetric features are or provide evidence 
that the expanded boundaries incorporate additional areas in which 
those features are likely to exist.
    With regard to its discussion of ``sites for breeding, 
reproduction, and rearing of offspring,'' the petition indicates that 
new information suggests that female right whales and calves utilize 
the waters farther offshore of the Southeastern U.S. than initially 
documented. While NMFS agrees that new information does indicate 
females and calves use waters farther offshore than initially believed, 
the existence of right whales farther offshore is not, in and of 
itself, a physical and biological feature essential to the conservation 
of the species. The petition does not indicate what the physical and 
biological features are of these waters that make them appeal to female 
right whales and their calves. As a result, the petition does not 
provide sufficient support for the proposed expansion of the critical 
habitat area in the southeast U.S.
    With regard to its discussion of ``habitats that are protected from 
disturbance or are representative of the historical, geographical, and 
ecological distributions of species,'' the petition indicates that the 
areas petitioned for inclusion as critical habitat ``focus on the most 
vital portions of the historic range where current data indicate that 
large numbers of right whales aggregate for extended periods of time.'' 
However, the petition does not support the expanded boundaries by 
indicating what specific physical and biological features make those 
areas vital.
    Accordingly, based on the language found in section 3(5)(A)(i)(I) 
of the ESA that defines critical habitat, in part, as specific areas 
``on which are found those physical or biological features essential to 
the conservation of the species,'' and for the reasons previously 
discussed, NMFS believes that the petition does not provide sufficient 
information to support the requested revision. However, a review of 
scientific information suggests that physical and biological features 
essential to the conservation of right whales may include, but are not 
necessarily limited to, the occurrence of copepods and the features 
that concentrate them in the water off of the Northeast U.S., as well 
as sea surface temperature and possibly bathymetry in the waters off of 
the Southeast U.S. Further investigation and analysis needs to be 
performed regarding the specific nature of those features and/or 
others, whether they are essential to the conservation of right whales, 
and, if so, where they are located and whether they may require

[[Page 51763]]

special management considerations or protection.

How Does NMFS Intend To Proceed?

    Section 4(b)(3)(D)(ii) of the ESA requires that NMFS, within 12 
months of the date a petition is received, make a determination on how 
it intends to proceed with the requested revision and promptly publish 
notification of such intention in the Federal Register. NMFS made its 
determination in the previous section of this notice that the requested 
revision, as specified by the petitioner, is not warranted at this 
time. However, NMFS intends to continue with planned research 
activities during 2003 and evaluate new information to determine 
whether physical and biological features essential to the conservation 
of the species exist that may warrant a revision of critical habitat. 
To further investigate those physical or biological features essential 
to the conservation of the North Atlantic right whale, and to propose 
any revisions to designated critical habitat that might be supported by 
new information and analysis, NMFS would have to complete at least the 
following steps:
    (1) In the waters off of the Southeast U.S., continue analysis of 
right whale distribution data in relation to bathymetry and sea surface 
temperature derived from Advanced Very High Resolution Radiometer 
(AVHRR) imagery;
    (2) In the waters off of the Northeast U.S., continue its own 
efforts, as well as collaborate with others working in the Gulf of 
Maine Ecosystem, to characterize the spatial and temporal distribution 
of zooplankton;
    (3) Examine the available scientific information to assess whether 
other physical or biological features of the environment are essential 
to the conservation of the species;
    (4) Identify those ``specific areas within the geographical area 
occupied by the species, at the time it is listed..., on which are 
found'' one or more of the physical or biological features determined 
to be essential for conservation;
    (5) Evaluate the current or future special management 
considerations or protections relevant to the habitat features 
determined to be essential for conservation;
    (6) Evaluate the economic and other relevant impacts of including 
any particular area in the designation of critical habitat, weigh these 
benefits and negative impacts, and determine whether exclusion of any 
area would lead to the extinction of the North Atlantic right whale; 
and
    (7) Identify specific areas outside the geographical areas occupied 
by the North Atlantic right whale at the time it was listed, that are 
essential to the conservation of the species, and evaluate the impacts 
of designating any of these areas as critical habitat.
    While NMFS intends to investigate further the nature and location 
of physical and biological features essential to the conservation of 
right whales and will evaluate new information to determine whether a 
proposed rule to revise critical habitat is appropriate, this notice 
should not be misinterpreted as a commitment to take any particular 
action because any such commitment would be premature at this time. If 
a revision of critical habitat is warranted in the future, NMFS will 
provide notice to the public as required by the ESA.
    All references are available upon request (see FOR FURTHER 
INFORMATION CONTACT).

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

    Dated: August 22, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 03-22039 Filed 8-27-03; 8:45 am]
BILLING CODE 3510-22-S