[Federal Register Volume 71, Number 28 (Friday, February 10, 2006)]
[Proposed Rules]
[Pages 6999-7001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1887]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[I.D. 101405C]
RIN 0648-AT84


Endangered and Threatened Species; Revision of Critical Habitat 
for the Northern Right Whale in the Pacific Ocean

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

ACTION: Proposed rule, reopening of public comment period.

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SUMMARY: On November 2, 2005, NMFS published a proposed rule to revise 
current critical habitat (CH) under the Endangered Species Act of 1973 
(ESA) for the northern right whale (Eubalaena glacialis) by designating 
areas within the North Pacific Ocean. Two areas are proposed for 
designation: an area in the southeast Bering Sea and a second area in 
the Gulf of Alaska south of Kodiak Island. In response to a request, a 
public hearing on this proposed rule will be held on March 2, 2006, in 
Anchorage, AK.

DATES: The hearing will be held in Anchorage, AK on Thursday, March 2, 
2006, from 3 p.m. to 5 p.m. The public comment period on the proposed 
rule (70 FR 66332) will reopen on February 10, 2006 so that additional 
comments submitted at, or in response to the hearing may be considered 
in the promulgation of the final rule. Any additional comments on this 
proposed rule must be received on or before March 9, 2006.

ADDRESSES: The hearing will be in room 154 of the U.S. Federal Office 
Building, 222 W. 7th Avenue, Anchorage, AK. Send comments to Kaja Brix, 
Assistant Regional Administrator, Protected Resources Division, AK 
Region, NMFS, Attn: Ellen Walsh. Comments may be submitted by:
     E-mail: [email protected]. Include in the subject 
line the following document identifier: Right Whale Critical Habitat 
PR. E-mail comments, with or without attachments, are limited to 5 
megabytes.
     Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for 
submitting comments.
     Mail: P. O Box 21668, Juneau, AK 99802
     Hand delivery to the Federal Building : 709 W. 9th Street, 
Juneau, AK .
     Fax: (907) 586-7012
    The proposed rule, maps, stock assessments, and other materials 
relating to this proposal can be found on the NMFS Alaska Region 
website http://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Brad Smith, (907) 271-3023, e-mail: 
[email protected] or Marta Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION: Regulations governing petitions to revise 
critical habitat under the ESA provide that a public hearing shall be 
held if any person so requests within 45 days of publication of a 
proposed regulation (50 CFR 424.16(c)(3)). Notice of such hearing is to 
be published in the Federal Register no later than 15 days prior to the 
hearing.

Comments and Responses

    The November 2 proposed rule concerning designation of critical 
habitat established a comment period ending on January 3, 2006. Twenty-
one comments were received on the proposed rule. These comments are 
summarized below. Responses to these and to comments received during 
the public hearing will appear in the final rule on this action.

Size of Proposed Critical Habitat is Too Large

    Comment: The southern and western boundaries of the proposed 
critical habitat in the Bering Sea are based on very few right whale 
sightings. Eliminating these areas would reduce the extent of the 
critical habitat from 27,700 to 24,000 square miles but retain 
approximately 99 percent of all sightings.
    Comment: The area designated as CH is arbitrary because there is no 
obvious correlation between copepod abundance and the distribution of 
the northern right whale.

Proposed Critical Habitat is Too Small

    Comment: The proposed designations fail to address unoccupied right 
whale habitat. Additional areas outside of the known range of the 
northern right whale at the time of ESA listing should be included in 
this designation.
    Comment: The extent of the areas proposed for designation as 
critical habitat in the North Pacific Ocean would not be sufficient to 
provide for the recovery of the northern right whale.
    Comment: The proposed designation is negatively biased in that it 
is based on sighting effort which is not consistent over the range of 
the northern right whale. Therefore, the designation should be expanded 
to compensate for this bias. Both right whales and their Primary 
Constituent Elements (PCE's) are likely to occur elsewhere in densities 
equivalent to those occurring in the designated critical habitats.
    Comment: The proposed designation should be expanded to recognize 
the probability of increased importance of adjacent areas, and to be 
consistent with similar efforts to designate CH for the northern right 
whale in the North Atlantic Ocean.
    Comment: The precautionary principle requires NMFS to designate 
other areas with similar habitat conditions as CH.
    Comment: The designation should include State of Alaska waters 
because they have nearly identical features to the proposed CH areas.
    Comment: NMFS should consider designation of adjacent areas to 
preserve diversity and act as buffer areas.
    Comment: NMFS should include in its designation historical right 
whale habitat which was essential to their conservation.
    Comment: NMFS data demonstrate right whales are found through 
Unimak Pass and eastward to Kodiak Island. These waters also contain 
important features or serve important biological needs and should be 
added to the areas proposed for designation.

[[Page 7000]]

    Comment: NMFS should include migratory corridors or transitional 
waters between high use habitats of the northern right whale in its CH 
designation. This should include the waters from Umnak Pass to Unimak 
Pass.
    Comment: NMFS should review data from the past century and 
designate CH for areas where right whale concentrations overlay known 
areas of prey abundance.
    Comment: Critical habitat should be designated to include those 
physical features which promote fronts, upwelling, and dynamic 
advection of nutrient-rich waters that promote zooplankton 
productivity.

Primary Constituent Elements

    Comment: Feeding areas should be identified as a Primary 
Constituent Element (PCE) for the northern right whale.
    Comment: PCE's are defined too narrowly in the proposed rule. Other 
elements are also critical to conservation of this species.
    Comment: By defining PCEs as only the zooplankton species, NMFS has 
created a situation where impaired water quality and other impacts 
would not result in adverse modification of the CH.
    Comment: NMFS should follow the example of the Steller's eider and 
spectacled eider by identifying PCE's to include all marine waters of 
appropriate depths, along with the underlying marine benthic community.
    Comment: PCE's should include ocean passes and channels used by 
right whales.

Research

    Comment: More research is needed to describe PCEs for the northern 
right whale.
    Comment: NMFS should increase efforts to place radio tags on right 
whales.
    Comment: Additional research is necessary to describe habitat use 
and preferences, migratory patterns, breeding and calving, and factors 
affecting the recovery of the northern right whale.
    Comment: NMFS should dedicate more effort to study vessel 
interaction and collision avoidance by right whales.

Prohibitions and Activities in Critical Habitat

    Comment: Critical habitat must be protected from more than just 
activities which may affect copepods. Protection is also needed from 
the effects of ship strikes, fishing gear interaction, changes in sea 
temperatures and environmental conditions caused by humans.
    Comment: Designation of CH should not include amendment of fishery 
management measures as there is no evidence of fisheries interaction, 
including ship strikes, with right whales in the North Pacific Ocean.
    Comment: Oil and gas development is incompatible with the ecology 
and economy of Bristol Bay and the Northeast Pacific Region. Major oil 
spills, related discharges, seismic activity, and ship strikes are all 
oil and gas-related actions which constitute adverse modification of 
CH.
    Comment: Specific, focused reference to the oil and gas industry as 
representing a threat to the proposed right whale CH should be removed 
from the proposed rule.
    Comment: Designation of CH will open the citizen suit provisions of 
the ESA and result in litigation and delays in projects. Economic 
activities that are not impacting right whale recovery will be 
negatively impacted.
    Comment: Designation of CH will lead to regulatory creep and 
increase costs through added consultations and mitigation measures 
imposed by the Federal Government.

Economic Considerations

    Comment: NMFS has correctly characterized both the economic 
significance of commercial fishing to the region, State, and Nation, 
and the effective absence of the possibility that commercial fishing 
can destroy or adversely modify the proposed CH for northern right 
whales in the Eastern Bering Sea (EBS) and Gulf of Alaska (GOA).
    Comment: While no adverse economic or operational impacts on 
commercial fisheries are associated with the proposed designation, a 
modification of the southern and western boundaries (reduction) of CH 
in the EBS makes sense and would reduce the possibility of any even 
hypothetical future impacts on fishing activity.
    Comment: In addition to the recommended exclusions of areas in the 
south and west of the proposed CH for northern right whales in the EBS 
to accommodate commercial fishing, the northern boundary should be 
moved south (reduced) from the proposed 58[deg]00' N. to 57[deg]30' N., 
owing to the presence of economically significant commercial fishing 
activity (bottom trawling) traditionally conducted there.
    Comment: A substantial portion (especially the southern and eastern 
sections) of the proposed designation of CH in the EBS coincides with 
Outer Continental Shelf (OCS) Leasing Areas projected to have high to 
moderate natural gas production potential, and moderate oil production 
potential. The economic and development benefits of these areas (in 
particular, the Aleutian Basin Area) justify their exclusion under 
provisions of the ESA.
    Comment: The communities that are located in remote western Alaska, 
adjacent to the proposed designation, chronically suffer from 
inadequate economic development and opportunity. The entire region 
would benefit from economic diversification, such as that which would 
accompany oil and gas exploration and development. The proposed 
designation of CH in the EBS could increase cost, significantly delay, 
or even prevent such economic development, while contributing nothing 
to the conservation and recovery of the right whale population.
    Comment: Inferences about the risk of fishing gear entanglements 
and/or vessel strikes of right whales in the North Pacific, based upon 
such experiences in the North Atlantic, are inappropriate and 
unsupported by evidence or data. The nature and magnitude of fishing 
and other economic activity within the two marine environments are 
fundamentally different and not comparable.
    Comment: The area of the EBS encompassed by the proposed CH 
boundaries contain the vast majority of groundfish, crab, and halibut 
resources harvested by commercial fisheries in this region. They have a 
combined direct economic gross value of well over $1 billion dollars, 
annually, and are vital to fishermen, processors, and fishery-dependent 
communities in Alaska. NMFS should explain how, or if, designation of 
CH for the right whale would affect fishery management actions that 
would be pursued if the incidental take of a right whale would occur in 
commercial fisheries.
    Comment: The Executive OCS Deferral through 2012 requires that the 
North Aleutian Basin be excluded from the Five-Year OCS leasing 
program. This remains a sound decision and any analysis of the proposed 
designation must recognize that restrictions on petroleum development 
in the proposed areas impose no new economic costs to society.
    Comment: MMS estimates reserves of 7 trillion cubic feet of natural 
gas and 230 million barrels of oil in the North Aleutian Basin. 
Approximately 20 percent of the high prospective geologic basin lies 
within the southeast corner of the proposed CH area (approximately 8 
percent of the proposed designation of CH in the EBS). At risk, 
therefore, is about 20 percent of the estimated $19 billion in Federal 
revenues, an

[[Page 7001]]

estimated 5,000 construction jobs, and sufficient supplies of natural 
gas, necessary to justify construction and operation of an liquified 
natural gas (LNG) facility in the area.
    Comment: Given the critical status of this species and the 
requirements put forth in sections 4 and 9 of the ESA, the need for 
protection of right whales and designation of CH outweighs any 
potential economic impacts of introducing such protection. It is also 
important to consider the economic benefit of the survival of this 
species.
    Comment: NMFS has created, by its own admission, CH that will not 
be adversely modified by oil or gas exploration activity.
    Comment: Currently, neither the North Aleutian Basin nor the St. 
George Basin Planning areas are available for lease, owing to the 2012 
deferral order. Many steps must occur before a field in either of these 
areas could reach production and none of these steps are certain to 
occur.
    Comment: The proposed EBS designation incorporates about one third 
of the (oil and gas) high-potential part of North Aleutian Basin and 
most of the area of potential in St. George Basin. No exploration 
drilling has taken place in the North Aleutian Basin (one non-
exploratory well was drilled in 1983). Economic studies show that the 
marginal prices for the North Aleutian Basin are well below current 
market prices, illustrating economically producible resources could 
exist at much lower than current prices, improving the area's 
feasibility as a potential energy source. If this area becomes 
available for leasing, if pre-lease oil and gas exploration reveals 
commercial quantities of petroleum, if market conditions remain 
favorable, if commercial discoveries are of a scale to support LNG 
exports, then the direct revenues to federal, state, and local 
governments could approach $15 billion over a 30-year life cycle. 
Indirect benefits and economic multiplier effects to the Alaska economy 
are also likely to be several billions of dollars.
    Comment: A basic cost/benefit analysis is submitted for petroleum 
activities in the North Aleutian Planning Area to demonstrate the 
economic potential and revenues that may be associated with commercial 
development. The overall conclusion is economic benefits would accrue 
to Federal, state, and local governments, as well as the Alaska 
economy, if a leasing program in the North Aleutian planning area 
results in commercial development of gas and oil on the scale 
envisioned by the MMS modeling scenario.

Other Comments

    Comment: NMFS should designate CH as Marine Sanctuaries because 
this would protect other marine assets such as corals.
    Comment: NMFS should recognize the voluntary conservation efforts 
of the fishing industry towards public awareness and avoidance of 
vessel strikes.
    Comment: The Federal Register notice should include data on the 
seasonal occurrence of right whales in the proposed CH areas, present 
an analysis of vessel and fishing gear interaction based on 
photographic evidence, and discuss the effects of climate change and 
variable ice patterns on copepods.
    Comment: The Alaska Outer Continental Shelf oil and gas leasing 
program has existed for 30 years, during which time the MMS has 
demonstrated that industry activities can be carried out in a manner 
that does not jeopardize the continued existence of threatened or 
endangered species, or adversely affect designated critical habitat.
    Comment: There is no evidence that commercial trawling in the North 
Pacific or Eastern Bering Sea results in any adverse impacts on the 
benthic environment, and certainly none that could adversely impact the 
PCEs identified under the proposed designation of CH in these areas.

Special Accommodations

    This hearing is physically accessible to people with disabilities. 
Requests for sign language interpretation or other auxiliary aids 
should be directed to Brad Smith (see FOR FURTHER INFORMATION CONTACT) 
at least 10 business days in advance of the hearing.

    Dated: February 6, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-1887 Filed 2-9-06; 8:45 am]
BILLING CODE 3510-22-S