[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Rules and Regulations]
[Pages 38277-38297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6014]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 051018271-6157-02; 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, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a 
final rule to revise the current critical habitat for the northern 
right whale (Eubalaena glacialis) by designating additional areas 
within the North Pacific Ocean. Two specific areas are designated, one 
in the Gulf of Alaska and another in the Bering Sea, comprising a total 
of approximately 95,200 square kilometers (36,750 square miles) of 
marine habitat. As described in the impacts analysis prepared for this 
action, we considered the economic impacts, impacts to national 
security, and other relevant impacts and concluded that the benefits of 
exclusion of any area from the critical habitat designation do not 
outweigh the benefits of inclusion. As a result, we did not exclude any 
areas from the designation. We solicited information and comments from 
the public in a proposed rule. This final rule is being issued to meet 
the deadline established in a remand order of the United States 
District Court for the Northern District of California.

DATES: This rule becomes effective August 7, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection by appointment during normal business hours at 
the National Marine Fisheries Service, Protected Resources Division, 
Alaska Region,709 W. 9\th\ Street, Juneau, AK. The final rule, maps, 
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, or Marta 
Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION: The Endangered Species Act of 1973, as 
amended [16 U.S.C. 1531, et seq.] (ESA), grants authority to and 
imposes requirements upon Federal agencies regarding endangered or 
threatened species of fish, wildlife, or plants, and habitats of such 
species that have been designated as critical. The U.S. Fish and 
Wildlife Service (FWS) and the NMFS share responsibility for 
administering the ESA. Endangered and threatened species under the 
jurisdiction of NMFS are found in 50 CFR 224.101 and 223.102, and 
include the endangered northern right whale.

Background and Previous Federal Actions

    The northern right whale is a member of the family Balaenidae and 
is closely related to the right whales that inhabit the Southern 
Hemisphere. Right whales are large baleen whales that grow to lengths 
and weights exceeding 18 meters and 100 tons, respectively. They are 
filter feeders whose prey consists exclusively of zooplankton. Right 
whales attain sexual maturity at an average age of 8-10 years, and 
females produce a single calf at intervals of 3-5 years (Kraus et al., 
2001). Their life expectancy is unclear, but is known to reach 70 years 
in some cases (Hamilton et al., 1998; Kenney, 2002).
    Right whales are generally migratory, with at least a portion of 
the population moving between summer feeding grounds in temperate or 
high latitudes and winter calving areas in warmer waters (Kraus et al., 
1986; Clapham et al., 2004). In the North Pacific, individuals have 
been observed feeding in the Gulf of Alaska, the Bering Sea and the Sea 
of Okhotsk. Although a general northward movement is evident in spring 
and summer, it is unclear whether the entire population undertakes a 
predictable seasonal migration, and the location of calving grounds 
remains completely unknown (Scarff, 1986; Scarff, 1991; Brownell et 
al., 2001; Clapham et al., 2004; Shelden et al., 2005). Further details 
of occurrence and distribution are provided below.
    In the North Pacific, whaling for right whales began in the Gulf of 
Alaska (known to whalers as the ``Northwest Ground'') in 1835 (Webb, 
1988). Right whales were extensively hunted in the western North 
Pacific in the latter half of the 19\th\ century, and by 1900 were 
scarce throughout their range. Right whales were protected worldwide in 
1935 through a League of Nations agreement. However, because neither 
Japan nor the USSR signed this agreement, both nations asserted 
authority to continue hunting right whales until 1949 when the newly-
created International Whaling Commission (IWC) endorsed this ban. 
Despite this ban, a total of 23 North Pacific right whales were legally 
killed by Japan and the USSR under Article VIII of the International 
Convention for the Regulation of Whaling (1946), which permits the 
taking of whales for scientific research purposes. However, it is now 
known that the USSR illegally caught many right whales in the North 
Pacific (Doroshenko, 2000; Brownell et al., 2001). In the eastern North 
Pacific, 372 right whales were killed by the Soviets between 1963 and 
1967; of these, 251 were taken in the Gulf of Alaska south of Kodiak, 
and 121 in the southeastern Bering Sea (SEBS). These takes devastated a 
population that, while undoubtedly small, may have been undergoing a 
slow recovery (Brownell et al., 2001).
    As a result of this historic and recent hunting, right whales today 
are among the most endangered of all whales worldwide. Right whales 
were listed in 1970 following passage of the Endangered Species 
Conservation Act (ESCA) of 1969, and automatically granted endangered 
status when the ESCA was repealed and replaced by the ESA. Right whales 
are also protected under the Marine Mammal Protection Act of 1972. We 
issued a Recovery Plan for the northern right whale in 1991, which 
covered both the North Atlantic and North Pacific (NMFS, 1991). Some 
researchers consider the North Pacific right whale to exist in discrete 
eastern and western populations. Brownell et al. (2001) noted that 
there was no evidence for exchange between the western and eastern 
Pacific, and that the two populations had different recovery histories; 
consequently, they argued that these stocks should be treated as 
separate for the purpose of management, a division which we have 
acknowledged in Stock Assessment Reports (Angliss and Lodge, 2004).
    In the western North Pacific (the Sea of Okhotsk and adjacent 
areas), current abundance is unknown but is probably in the low to mid-
hundreds (Brownell et

[[Page 38278]]

al., 2001). There is no estimate of abundance for the eastern North 
Pacific (Bering Sea, Aleutian Islands and Gulf of Alaska), but 
sightings are rare. Most biologists believe the current population is 
unlikely to exceed a hundred individuals, and is probably much smaller. 
Prior to the illegal Soviet catches of the 1960s, on average, 25 whales 
were observed each year in the eastern North Pacific (Brownell et al., 
2001); in contrast, the total number of records in the 35 years from 
1965 to 1999 was only 82, or an average of 2.3 whales per annum.
    Since 1996, NMFS and other surveys (directed specifically at right 
whales or otherwise) have detected small numbers of right whales in the 
SEBS, including an aggregation estimated at 24 animals in the summer of 
2004. Photo-identification and genetic data have identified 17 
individuals from the Bering Sea, and the high inter-annual resighting 
rate further reinforces the idea that this population is small. Right 
whales have also been sighted in the northern Gulf of Alaska, including 
a sighting in August 2005. However, the overall number of northern 
right whales using habitats in the North Pacific other than the Bering 
Sea is not known.
    The taxonomic status of right whales worldwide has recently been 
revised in light of genetic analysis (see Rosenbaum et al., 2000; 
Gaines et al., 2005). Applying a phylogenetic species concept to 
molecular data separates right whales into three distinct species: 
Eubalaena glacialis (North Atlantic), E. japonica (North Pacific), and 
E. australis (Southern Hemisphere). We recognized this distinction for 
the purpose of management in a final rule published on April 10, 2003 
(68 FR 17560), but subsequently determined that the issuance of this 
rule did not comply with the requirements of the ESA, and thus 
rescinded it (70 FR 1830; January 11, 2005). At this time, right whales 
in the North Atlantic and North Pacific are both officially considered 
to be ``northern right whales'' (Eubalaena glacialis) under the ESA; 
however, right whales in the North Pacific often are referred to as E. 
japonica, given the wide acceptance of this taxon in both the 
scientific literature and elsewhere (e.g., by the IWC).

Critical Habitat Designation History

    Three areas in the North Atlantic Ocean were designated as critical 
habitat for northern right whales in 1994: the Great South Channel, 
Cape Cod Bay, and waters of the Southeastern United States off Florida 
and Georgia. In rejecting a petition to revise designated critical 
habitat, we outlined steps we would take to propose any revisions to 
that designated critical habitat that might be supported by new 
information and analysis (68 FR 51758; August 28, 2003).
    We issued a proposed rule on November 2, 2005 (70 FR 66332), to 
revise current critical habitat for the northern right whale in the 
North Pacific Ocean.

Previous Federal Action and Related Litigation

    In October 2000, we were petitioned by the Center for Biological 
Diversity to revise the critical habitat for the northern right whale 
by designating an additional area in the North Pacific Ocean. In 
February 2002, we announced our decision that we could not designate 
critical habitat at that time because the essential biological and 
habitat requirements of the population were not sufficiently 
understood. However, in June 2005, a Federal court found this reasoning 
invalid and remanded the matter to us for further action (Center for 
Biological Diversity v. Evans, Civ. No. 04-4496, N.D. Cal. June 14, 
2005). In compliance with that order, we are revising the current 
critical habitat for this species by designating areas within the Gulf 
of Alaska and Bering Sea as critical habitat under the ESA.

Summary of Comments and Responses

    We requested comments on the proposed rule to revise critical 
habitat for the northern right whale (70 FR 66332; November 2, 2005). 
To facilitate public participation, the proposed rule was also made 
available on our regional website. Comments were accepted via standard 
mail, e-mail, and fax. Additionally, a public hearing on this action 
was held March 2, 2006, in Anchorage, Alaska. The public comment period 
for the proposed rule was reopened between February 10 and March 9, 
2006, so that additional comments submitted at or in response to the 
hearing were considered in the promulgation of the final rule.
    We have considered all public comments, and we address them in the 
following summary. For readers' convenience we have assigned comments 
to major issue categories, and, where possible, have combined similar 
comments into single comments and responses.

Size of Proposed Critical Habitat is Too Large

    Comment 1: 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.
    Response: The proposed boundaries reasonably represent the area in 
which sightings of feeding right whales have occurred and which are 
most likely to describe current concentrations of zooplankton prey 
(i.e., primary constituent elements, or PCEs). We have closely followed 
the provisions of the ESA and Federal regulations by premising this 
designation on the current existence of the PCEs within the geographic 
area occupied by the species at the time of listing. The area described 
by the proposed critical habitat boundary encompasses a high percentage 
of all sightings since the right whale was listed as endangered under 
the ESA in 1973 (182 of 184). As discussed in more detail below in 
response to Comment 9, we consider these more recent records to be 
reliable indicators of current feeding distribution, and, therefore, of 
the presence of the PCEs. Given the very limited survey effort, we 
believe that the sightings used to delineate the critical habitat are 
significant, and that there is no reasonable basis upon which to revise 
the proposed boundary to exclude sightings near the southern and 
western boundaries.
    Comment 2: The area designated as critical habitat is arbitrary 
because there is no obvious correlation between zooplankton abundance 
and the distribution of the northern right whale.
    Response: For the reasons described in the section on Critical 
Habitat Identification and Designation below, we have concluded that 
consistent sightings of right whales - even of single individuals and 
pairs - in a specific area during spring and summer over a long period 
of time is sufficient information that the area is a feeding area 
containing suitable concentrations of zooplankton.

Proposed Critical Habitat is Too Small

    Comment 3: 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.
    Response: Section 3(5)(A)(i) of the ESA requires us to identify 
specific areas within the geographical area occupied by the species 
that contain physical or biological features that may require special 
management considerations or protection. Section 3(5)(A)(ii) requires 
that specific areas outside the geographical area occupied by the 
species only fall within the

[[Page 38279]]

definition of critical habitat if the Secretary determines that the 
area is essential for conservation. Our regulations further provide 
that we will designate unoccupied areas ``only when a designation 
limited to [the species'] present range would be inadequate to ensure 
the conservation of the species (50 CFR 424.12(e)).'' The ESA requires 
the Secretary to designate critical habitat at the time of listing. If 
critical habitat is not then determinable, the Secretary may extend the 
period by 1 year, ``but not later than the close of such additional 
year the Secretary must publish a final regulation, based on such data 
as may be available at that time, designating, to the maximum extent 
prudent, such habitat.''
    We found no information that would support designation of critical 
habitat in unoccupied areas. While historic data include sightings and 
other records of northern right whales outside of the geographic area 
occupied by the species at the time it was listed, we do not have 
information allowing us to determine that the specific areas within the 
geographical area occupied by the species are inadequate for 
conservation, such that unoccupied areas are essential for 
conservation.
    Comment 4: 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.
    Response: Our ability to identify critical habitat as defined in 
the ESA is limited by the level of information available to describe 
the biology and ecology of the northern right whale in the North 
Pacific Ocean. We have identified two specific feeding areas within 
which are found biological features essential to the conservation of 
the species and which may require special management considerations or 
protection. We may revise this designation in the future as additional 
information regarding the habitat and biological and ecological needs 
of the right whale becomes available. For example, the designation may 
be revised to encompass additional areas in which zooplankton 
concentrations are found to occur or the physical or biological 
features that comprise suitable calving grounds when the locations of 
those grounds become known.
    Comment 5: 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 the PCEs are likely 
to occur elsewhere in densities equivalent to those occurring in the 
designated critical habitats.
    Response: The ESA defines critical habitat, in part, as those areas 
occupied by the species at the time of listing on which the identified 
PCEs are found. Although the current sighting data may be biased by 
effort, they are the best available data that can be used as a proxy 
for PCEs to determine whether PCEs are found on the designated areas. 
We have insufficient basis to conclude that the PCEs are found in other 
areas for which we do not have sighting data that can be used as a 
proxy for the presence of PCEs.
    Comment 6: The precautionary principle requires NMFS to designate 
other areas with similar habitat conditions as critical habitat.
    Response: As explained above in response to Comment 2, we have used 
recent sighting records of feeding right whales as a proxy for the 
location of PCEs necessary to describe critical habitat. The ESA does 
not permit designation of ``similar'' areas unless the PCEs are found 
in these areas. We do not have information indicating that the PCEs are 
found on areas other than those designated.
    Comment 7: The designation should include State of Alaska waters 
because these waters and the proposed critical habitat areas have 
nearly identical ecological characteristics.
    Response: We have used recent sighting records of feeding right 
whales as a proxy for the location of PCEs necessary to describe 
critical habitat. All relevant sightings occurred outside of the 
territorial sea of the State of Alaska, and we were, therefore, unable 
to conclude that the PCEs are found in State of Alaska waters. 
Therefore, these waters do not meet the definition of critical habitat 
and cannot be designated as such even though they may have physical 
features similar to the features found in the designated areas.
    Comment 8: Our 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.
    Response: We have few data describing the migratory movements of 
northern right whales in the North Pacific Ocean. While it is likely 
right whales move through major ocean passes, we cannot determine at 
this time which passes right whales use. We will continue to collect 
information on the right whale's habitat use to identify migration 
corridors and determine whether PCEs are found within these areas.
    Comment 9: NMFS should review data from the past century and 
designate critical habitat for areas where right whale concentrations 
overlay known areas of prey abundance.
    Response: We considered the utility of historic data in identifying 
and designating critical habitat. Many records of the commercial 
whalers are general in nature, and do not provide specific locations, 
information on the numbers of whales present at the time of the 
sighting or harvest, nor descriptions of their behavior (e.g., whether 
the sightings indicated feeding behavior). Therefore, we concluded that 
the more recent sightings data from the time of listing represented the 
best evidence of the current presence of the PCEs in specific feeding 
areas.
    Comment 10: Critical habitat should be designated to include those 
physical features which promote fronts, upwelling, and dynamic 
advection of nutrient-rich waters that promote prey productivity.
    Response: Research on northern right whales has found these animals 
are able to locate prey in certain densities needed to meet their 
metabolic needs. Recent research indicates that right whales are 
feeding specialists that require exceptionally high densities of prey 
(Baumgartner and Mate, 2003; Baumgartner, et al., 2003). The physical 
and biological parameters necessary to produce these ``lenses'' of 
highly concentrated zooplankton in the North Pacific are not 
understood. While the commenter identifies features that provide for 
the production of zooplankton and may act as forcing mechanisms for the 
concentration of these zooplankton, we currently lack information on 
whether those features actually concentrate the prey into aggregations 
sufficiently dense to encourage and sustain feeding by right whales. 
Lacking such information, we rely on the presence of zooplankton, as 
evidenced by feeding right whales, to identify critical habitat as 
required by the ESA.

Primary Constituent Elements

    Comment 11: Feeding areas should be identified as a PCE for the 
northern right whale.
    Response: NMFS regulations at 50 CFR 424.12(b) state that, ``[i]n 
determining what areas are critical habitat, the Secretary shall 
consider those physical and biological features that are essential to 
the conservation of a given species and that may require special 
management considerations or protection. Such requirements include, but 
are not limited to the following: food, water, air, light, minerals, or 
other

[[Page 38280]]

physiological or ecological requirements.'' The regulations also state 
that, ``[p]rimary constituent elements may include, but are not limited 
to, the following: roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quantity or quality, 
host species or plant pollinator, geologic formation, vegetation type, 
tide, and specific soil types.'' We relied on the presence of feeding 
right whales to identify indirectly the specific areas within which the 
PCEs are currently found. We believe that this approach identifies 
feeding areas to the best of our ability within the constraints imposed 
by available data.
    Comment 12: PCEs are defined too narrowly in the proposed rule. By 
defining PCEs as only the zooplankton, NMFS has created a situation in 
which oil and gas exploration activity, fishing or fishery related 
activities, and processing waste discharge activities would not result 
in the adverse modification of the critical habitat.
    Response: We have reviewed the available science and life 
requisites of the northern right whale, and have identified the PCEs 
described in this rule. Adverse modification of the critical habitat 
would result from Federal agency actions that impair the function of 
the PCEs to the extent the PCEs would not provide for the conservation 
needs of the right whales. For example, our analysis concludes that 
Outer Continental Shelf (OCS) oil and gas exploration and production 
has the potential to adversely affect the PCEs through impaired water 
quality, to the extent that the PCEs would not serve their conservation 
function, resulting in adverse modification of the critical habitat.
    As more research is completed and we learn more of the biological 
and ecological requirements of right whales in the North Pacific, we 
may identify additional PCEs and propose additional revisions of the 
critical habitat.
    Comment 13: NMFS should follow the example of the Steller's eider 
and spectacled eider by identifying PCEs to include all marine waters 
of appropriate depths, along with the underlying marine benthic 
community.
    Response: PCEs will vary depending on the biology, life history, 
and behavior of the species. Right whales frequent a variety of marine 
habitats and do not appear constrained by water depth, temperature or 
salinity. We believe that in identifying the PCEs for right whales as 
species of zooplankton in areas where they concentrate in sufficient 
densities to encourage and sustain feeding, we have adhered to the ESA 
definition and have developed a critical habitat designation that will 
protect the habitat features essential to right whale conservation.

Research

    Comment 14: More research is needed to describe PCEs for the 
northern right whale.
    Response: Our Alaska Region, the National Marine Mammal Laboratory, 
and other NOAA components are now involved in research on the northern 
right whale in the North Pacific Ocean. We understand that there is a 
need to better identify and describe the habitat for these whales along 
with their basic biology, and we will continue to conduct and advocate 
research in this area.
    Comment 15: NMFS should increase efforts to place radio tags on 
right whales.
    Response: Our scientists, in collaboration with scientists from the 
Greenland Institute of Natural Resources, have recently published the 
results from the first successful tagging of a North Pacific right 
whale in the Bering Sea (Wade et al., 2006 in Biology Letters). A 
satellite-monitored radio tag attached to one of two whales tagged in 
the Bering Sea functioned for 40 days and helped lead to the discovery 
of at least two calves and the largest group of right whales observed 
in this region since the 1960s. Although we have no immediate plans to 
tag additional right whales in 2006, we agree that such work is a high 
priority and should continue.
    Comment 16: NMFS should dedicate more effort to study vessel 
interaction and collision avoidance by right whales.
    Response: A photographic record is being gathered as new right 
whale sightings are recorded from dedicated research efforts in the 
Bering Sea and Gulf of Alaska. A review of these photographs is planned 
to look for evidence of entanglement and ship strikes. We have no 
reports of fishing gear interaction with right whales within U.S. 
waters in the North Pacific, although there is one record suggestive of 
a fishing gear interaction with a right whale in the eastern North 
Pacific within waters outside U.S. jurisdiction. Collisions with ships 
have been a major source of mortality of right whales in the North 
Atlantic Ocean. However, we have found no record of any collisions in 
the North Pacific Ocean. Nevertheless, the fishing industry, through 
the Marine Conservation Alliance, has recently taken action to increase 
awareness of this issue among commercial fishing vessels operating in 
Alaska, and has distributed literature and informational posters. The 
commercial fishing industry is extending this outreach to the shipping 
industry and to Russian fisheries.

Prohibitions and Activities in Critical Habitat

    Comment 17: Critical habitat must be protected from more than just 
activities that may affect zooplankton. Protection is also needed from 
the effects of ship strikes, fishing gear interaction, changes in sea 
temperatures and environmental conditions caused by humans.
    Response: The commenter suggests that we may designate critical 
habitat solely to prevent ships strikes and fishing gear interactions 
(i.e., ``take'') of individual right whales. We conclude that, at the 
current time, vessel and gear interactions do not affect the whales' 
habitat, but rather are take issues which are prohibited by section 9 
of the ESA and are properly addressed in jeopardy analyses in section 7 
consultations on Federal actions or in incidental take permit 
applications evaluated pursuant to section 10 of the ESA. As noted 
above in the response to comment 16, we have no record of a ship 
striking a right whale in the North Pacific Ocean and no record of 
fishing gear interaction in waters of the North Pacific Ocean under 
U.S. jurisdiction, despite the presence of NMFS-certified fishery 
observers aboard crab and groundfish fishing vessels operating in these 
waters. The likelihood of such interactions must be evaluated by 
Federal agencies in section 7 consultations. Moreover, section 9 of the 
ESA already prohibits such take.
    We have designated this critical habitat based upon the presence of 
zooplankton aggregated in sufficient concentrations to encourage and 
sustain right whale feeding. At this time we do not have sufficient 
knowledge of the biology and habitat requirements of right whales in 
the North Pacific Ocean to identify PCEs related to water temperatures 
or other environmental conditions.
    Comment 18: 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 critical habitat.
    Response: Federal agencies authorizing, funding or carrying out 
actions that may affect designated critical habitat must consult with 
us pursuant to section 7 of the ESA. Federal agencies must insure that 
the actions they authorize, fund or carry out are not likely to destroy 
or adversely modify critical habitat or jeopardize the

[[Page 38281]]

continued existence of the northern right whale.
    Comment 19: Specific, focused reference to the oil and gas industry 
as representing a threat to the proposed right whale critical habitat 
should be removed from the rule.
    Response: Oil and gas activities are discussed in this final rule 
because of the potential for impacts to critical habitat from these 
activities. However, although we recognize there is a potential for 
impacts, the amount of future anticipated OCS oil and gas related 
activities in the proposed right whale critical habitat and the 
regulatory requirements imposed by Minerals Management Service (MMS) on 
OCS operators to minimize the potential for adverse impacts suggest 
that right whale critical habitat would not be adversely modified. 
Further, any potential risks of adverse modification from specific oil 
and gas activities will be analyzed and addressed in the context of a 
section 7 consultation where Federal agencies are required to ensure 
that the actions they authorize, fund or carry out are not likely to 
destroy or adversely modify critical habitat or jeopardize the 
continued existence of the northern right whale. We have had extensive 
ESA Section 7 consultations with the MMS regarding oil and gas leasing 
action on the Alaska OCS, none of which has resulted in a determination 
that OCS oil and gas activities were likely to jeopardize the continued 
existence of any listed species or destroy or adversely modify critical 
habitat. In addition, we found in the impacts analysis prepared for the 
proposed rule that oil and gas exploration, development, and commercial 
production represent a relatively low risk to critical habitat for the 
right whale.
    Comment 20: Designation of critical habitat 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.
    Response: The ESA requires the Secretary to designate critical 
habitat to the maximum extent prudent and determinable. As a result of 
the designation, section 7 of the ESA requires each Federal agency to 
insure that any action it authorizes, funds or carries out is not 
likely to destroy or adversely modify the critical habitat. The citizen 
suit provision of the ESA authorizes any person to commence a civil 
suit to enjoin any other person, including a Federal agency, from 
violating any provision of the ESA, including section 7. We have no 
control over litigation commenced by other persons pursuant to the 
citizen suit provision and cannot evaluate the commenter's assertions 
because they are speculative. However, we note that economic activities 
that do not impact the conservation value of the critical habitat for 
the right whale are unlikely to be affected significantly by the 
citizen suit provision.
    Comment 21: Designation of critical habitat will lead to regulatory 
creep and increased costs through added consultations and mitigation 
measures imposed by the Federal Government.
    Response: As noted in the response to comment 20, the designation 
requires each Federal agency to insure that any action it authorizes, 
funds or carries out is not likely to destroy of adversely modify 
critical habitat. Each Federal agency proposing an action that may 
affect critical habitat must consult with us. The designation of 
critical habitat is likely to result in additional consultation costs, 
although these additional costs are difficult to quantify. The 
designation of critical habitat may, in some circumstances, result in 
additional mitigation for Federal actions that affect the critical 
habitat. All of these additional costs are identified to the extent 
practicable in the impacts analyses prepared for the proposed and final 
rule and would be borne largely by the Federal agencies involved in or 
affected by the consultations.

Economic Considerations

    Comment 22: NMFS has correctly characterized both the economic 
significance of commercial fishing to the region, States, and the 
nation, and the effective absence of the possibility that commercial 
fishing can destroy or adversely modify the proposed critical habitat 
for northern right whales in the Eastern Bering Sea (EBS) and Gulf of 
Alaska (GOA).
    Response: Comment noted.
    Comment 23: 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 
critical habitat in the EBS makes sense and would reduce the 
possibility of any even hypothetical future impacts on fishing 
activity.
    Response: We find no compelling reason to alter the boundaries of 
the critical habitat on the basis of, and as described in, this 
comment. The boundaries are based upon the best available information 
regarding the location of zooplankton in sufficient concentrations to 
encourage and sustain feeding by northern right whales. Concerns about 
``the possibility of any even hypothetical future impacts on fishing 
activity'' are purely speculative. Thus, we see no reason to change our 
conclusion that the benefits of excluding this area from the 
designation do not outweigh the benefits of including the area.
    Comment 24: In addition to the recommended exclusions of areas in 
the south and west of the proposed critical habitat 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.
    Response: For the same reasons cited in the response to comment 23 
immediately above, we find no basis for changing our conclusion that 
the benefits of excluding the area do not outweigh the benefits of 
including it in the designation.
    Comment 25: A substantial portion (especially the southern and 
eastern sections) of the critical habitat proposed to be designated in 
the EBS coincides with 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.
    Response: This comment presumably refers to the ``Aleutian Basin 
Area,'' which is a different area far to the west (south of Navarin 
Basin and north of Bowers Basin) and is not associated with the 
proposed critical habitat area. The comment should instead refer to the 
North Aleutian Basin, which overlaps part of the proposed right whale 
critical habitat.
    However, the supporting materials accompanying this and other 
comments pertaining to petroleum development in the EBS suggest that 
the risks and uncertainty associated with oil and gas development in 
OCS areas that overlap the critical habitat do not justify exclusion of 
the area under section 4(b)(2) of the ESA. Based upon the best 
available information, it appears that the probability of oil or gas 
production within (or immediately adjacent to) the right whale critical 
habitat is uncertain within the 10-year timeframe of our assessment. 
MMS reports that there are no commercial production facilities in 
operation, currently under development, or 'permitted' for future 
development within these critical habitat areas. Neither has oil and 
gas

[[Page 38282]]

exploration taken place in most of the EBS OCS region.
    MMS has revealed that, while the industry desires to include the 
North Aleutian Basin OCS Planning Area in the 2007-2012 Lease Sale 
program, this is only possible through the rescission of a Presidential 
withdrawal of this (and adjacent) area(s) that is in effect until July 
2012. Even if the withdrawal were rescinded in time to include the 
North Aleutian Basin in the upcoming lease sale offering, MMS projects 
that this specific area would likely not be ut up for lease sales until 
2010 and again in 2012, and then only if the area were to be included 
in MMS lease sale planning. Even in the most optimistic scenario 
envisioned by MMS analysts, substantial development (and certainly 
commercial production) would involve many years, perhaps even decades, 
of planning, design, review, consultation, and approval. Consequently, 
the prospects for oil and gas exploration and development in this area 
are uncertain at this time. Therefore, we cannot conclude that the 
benefits of excluding this area for oil and gas purposes exceed the 
benefits of inclusion.
    Comment 26: The communities 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 
critical habitat in the EBS could increase the cost of, significantly 
delay, or even prevent such economic development, while contributing 
nothing to the conservation and recovery of the right whale population.
    Response: As we have noted elsewhere in this final rule, the 
designation requires each Federal agency to insure that any action it 
authorizes, funds or carries out is not likely to destroy of adversely 
modify the critical habitat. In furtherance of that requirement, each 
Federal agency proposing action that may affect the critical habitat 
must consult with us on the effects of the action on the critical 
habitat. The ESA imposes these requirements to avoid the likelihood of 
destruction or adverse modification of the habitat that is critical to 
the conservation of the species. Federal agency actions that do not 
affect the conservation value of the critical habitat for right whales 
are unlikely to be appreciably affected by this designation. The impact 
analysis accompanying this rule analyzes the economic impacts of the 
designation and discusses the numerous uncertainties associated with 
oil and gas development in the critical habitat area. As a result of 
that analysis, we concluded that the economic impacts do not outweigh 
the benefits of designating critical habitat and that exclusion of any 
areas from the critical habitat designation pursuant to section 4(b)(2) 
of the ESA was not justified.
    Comment 27: 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.
    Response: As noted above in the response to comment 16, we have no 
record of a ship striking a right whale in the North Pacific Ocean and 
no record of fishing gear interaction in waters of the North Pacific 
Ocean under U.S. jurisdiction. Collisions with ships and entanglements 
in fishing gear have resulted in right whale mortalities in the North 
Atlantic Ocean. The likelihood of such interactions in the critical 
habitat areas designated in the North Pacific will be evaluated by 
Federal agencies in section 7 consultations. Moreover, section 9 of the 
ESA already prohibits take resulting from ship strike and fishing gear 
entanglements.
    Comment 28: The area of the EBS encompassed by the proposed 
critical habitat boundaries contains 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 critical habitat for the right whale would affect 
fishery management actions that would be pursued if the incidental take 
of a right whale were to occur in commercial fisheries.
    Response: The impacts analyses prepared for this designation 
evaluate the likely impacts of critical habitat designation on 
commercial fisheries. These analyses conclude that designation will 
impose minimal increased consultation costs on us, and that we do not 
expect any fishing or fishing related activity (e.g., at sea 
processing, transiting) would be restricted or otherwise altered as a 
result of the designation. If an injurious or lethal incidental take of 
a right whale were to occur in the commercial fisheries, right whale 
avoidance measures may be required in commercial fisheries to avoid 
future interactions. These measures would be required to prevent take 
of the endangered right whale and would not be attributable to the 
designation of critical habitat.
    Comment 29: The Executive OCS Deferral through 2012 requires that 
the North Aleutian Basin be excluded from the 5-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.
    Response: Comment noted.
    Comment 30: 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 critical habitat area 
(approximately 8 percent of the proposed designation of critical 
habitat in the EBS). At risk, therefore, is about 20 percent of the 
estimated $19 billion in Federal revenues, an estimated 5,000 
construction jobs, and sufficient supplies of natural gas necessary to 
justify construction and operation of an liquefied natural gas facility 
in the area.
    Response: The above resource estimates are based on outdated 
information and should instead state that, ``MMS estimates resources of 
8.6 trillion cubic feet of natural gas and 750 million barrels of oil 
in the North Aleutian Basin (mean estimates).''
    As reported in MMS documents submitted as public comment on the 
proposed critical habitat designation, leases issued in the 1998 North 
Aleutian Basin lease sale (Sale 92) were subsequently bought back, and, 
therefore, a systematic drilling program has not been conducted in the 
area. Therefore, the size of the estimated reserves remains 
unconfirmed. Given the uncertainty surrounding the existence of 
commercial quantities of gas and oil in this area, it is impossible to 
fully quantify the value of petroleum reserves in the area. The 
subsequent extrapolation that 5,000 jobs will be lost and a liquified 
natural gas pipeline and plant will be at risk is based only on this 
uncertainty regarding the amount of exploitable natural gas and oil and 
speculation regarding exploration and development. MMS data suggest 
that even the most optimistic scenario envisioned for this area's 
development would involve many years, perhaps decades, before these 
potentialities could be realized and only then if the

[[Page 38283]]

moratorium on OCS activities in the area is lifted. As noted in the 
response to comment 25 and in the economic analysis supporting this 
final rule, we conclude that the benefits of excluding any particular 
area from the designation do not outweigh the benefits of inclusion 
based on the speculative nature of these impacts.
    Comment 31: Given the critical status of this species and the 
requirements of sections 4 and 9 of the ESA, the need for protection of 
right whales and designation of critical habitat outweighs any 
potential economic impacts of introducing such protection. It is also 
important to consider the economic benefit of the survival of this 
species.
    Response: For the reasons described here and in the impacts 
analysis prepared for the designation, we determined that the benefits 
of excluding any particular area from the designation do not outweigh 
the benefits of inclusion.
    Comment 32: NMFS has created, by its own admission, critical 
habitat that will not be adversely modified by oil or gas exploration 
activity.
    Response: We have designated critical habitat pursuant to the ESA, 
which defines occupied critical habitat as areas that contain those 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection. We have consulted extensively with the MMS regarding oil 
and gas leasing action on the Alaskan OCS, and we concur that none of 
these consultations has resulted in a determination that OCS oil and 
gas activities were likely to jeopardize the continued existence of any 
listed species or destroy or adversely modify critical habitat. In 
addition, we found in the impacts analysis prepared for the proposed 
rule that oil and gas exploration, development, and commercial 
production represent a relatively low risk to critical habitat for the 
right whale. Although we recognize there is a potential for impacts, 
the amount of future anticipated OCS oil and gas related activities in 
the proposed right whale critical habitat and the regulatory 
requirements imposed by MMS on OCS operators to minimize the potential 
for adverse impacts suggest that right whale critical habitat would not 
be destroyed or adversely modified. Further, any potential risks of 
adverse modification from specific oil and gas activities will be 
analyzed and addressed in the context of an ESA section 7 consultation 
where Federal agencies must insure that the actions they authorize, 
fund or carry out are not likely to destroy or adversely modify 
critical habitat or jeopardize the continued existence of the northern 
right whale.
    Comment 33: 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.
    Response: According to MMS documentation, the St. George Basin 
Planning Area is not part of the 2012 deferral order and could be 
considered for leasing by MMS in the proposed 2007 to 2012 OCS 5-year 
OCS Leasing (although it is currently not included in the proposed 
plan). The comment regarding the North Aleutian Basin Planning Area is 
noted.
    Comment 34: 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, pre-lease oil and gas exploration reveals 
commercial quantities of petroleum, market conditions remain favorable, 
and commercial discoveries are of a scale to support liquified natural 
gas 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.
    Response: MMS documentation notes that the ``one non-exploratory 
well drilled in 1983'' refers to the COST well that provides 
information on stratigraphy, which informs the evaluation of resource 
potential and planning of an exploration effort.
    Otherwise, as noted in response to an earlier comment, the 
conclusions referenced in this comment are predicated upon a number of 
hypothetical actions and outcomes and a fundamental assumption of the 
value of petroleum resources in the area. The probability of occurrence 
of each of these actions is uncertain at this time, as is the value of 
petroleum resources in the area.
    Comment 35: A basic cost/benefit analysis conducted by the MMS 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.
    Response: We reviewed the submitted economic analysis discussed in 
detail above in response to similar comments on the potential value of 
oil and gas reserves in the subject area. The MMS report points out the 
series of assumptions based on available data and modeling that must be 
made about fundamental aspects of the area's petroleum potential to 
draw any conclusions about the value of petroleum resources in the area 
and economic impacts of opening lease sales in this area. MMS did not 
ask us to exclude any particular area within the critical habitat area 
under section 4(b)(2) of the ESA, and we find no compelling evidence 
that justifies an exclusion. Indeed, at present, these areas are 
explicitly withdrawn from OCS lease sale by Presidential order.

Other Comments

    Comment 36: NMFS should designate critical habitat as marine 
sanctuaries because this would protect other marine assets such as 
corals.
    Response: The National Marine Sanctuary Program is administered by 
the National Oceanic and Atmospheric Administration's National Ocean 
Service. Designation of areas as marine sanctuaries is beyond the scope 
of this action to designate critical habitat pursuant to the ESA.
    Comment 37: NMFS should recognize the voluntary conservation 
efforts of the fishing industry towards public awareness and avoidance 
of vessel strikes.
    Response: We have recognized and appreciate the efforts of the 
fishing industry to educate fishery participants to recognize right 
whales and use avoidance techniques to mitigate certain possible 
effects of fishing on this endangered species.
    Comment 38: The Federal Register notice should include data on the 
seasonal occurrence of right whales in the proposed critical habitat 
areas, present an analysis of vessel and fishing gear interaction based 
on photographic evidence, and discuss the effects of

[[Page 38284]]

climate change and variable ice patterns on zooplankton.
    Response: The seasonal occurrence of right whales in the critical 
habitat areas is described here as generally during spring and summer. 
Specific months are identified for certain sighting data. Acoustic data 
provide some additional insight to the seasonal occurrence; acoustic 
recording packages deployed in the SEBS recorded right whale calls from 
May through November (Munger et al., 2000). This action is to designate 
critical habitat in the North Pacific for the right whale; analysis of 
vessel and gear interaction are take issues which are properly 
addressed in ESA section 7 consultations on Federal actions authorizing 
fisheries or in incidental take permit applications evaluated pursuant 
to section 10 of the ESA, and therefore are not included with this 
final rule. We have no reliable information regarding the effects of 
climate change and variable ice patterns on zooplankton production, 
distribution, and concentration in the North Pacific.
    Comment 39: The Alaska OCS 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.
    Response: We have consulted extensively with the MMS regarding oil 
and gas leasing actions on the Alaskan OCS, and we concur that none of 
these has been determined likely to jeopardize the continued existence 
of any listed species or destroy or adversely modify critical habitat 
designated for another listed marine mammal species, the Steller sea 
lion. In addition, we found in the impacts analysis prepared for the 
proposed rule that oil and gas exploration, development, and commercial 
production represent a relatively low risk to critical habitat for the 
right whale. Although we recognize there is a potential for impacts 
that could result in destruction or adverse modification of critical 
habitat, the amount of future anticipated OCS oil and gas related 
activities in the proposed right whale critical habitat and the 
regulatory requirements imposed by MMS on OCS operators to minimize the 
potential for adverse impacts suggest that right whale critical habitat 
would not be destroyed or adversely modified. Further, any potential 
risks of destruction or adverse modification from specific oil and gas 
activities will be analyzed and addressed in the context of an ESA 
section 7 consultation where Federal agencies must insure that the 
actions they authorize, fund or carry out are not likely to destroy or 
adversely modify critical habitat or jeopardize the continued existence 
of the northern right whale.
    Comment 40: There is no evidence that commercial trawling in the 
North Pacific or EBS results in any adverse impacts on the benthic 
environment, and certainly none that could adversely impact the PCEs 
identified under the proposed designation of critical habitat in these 
areas.
    Response: Comment noted. We have considered the potential impact of 
commercial fishing, including trawling, on the described PCEs. Although 
we conclude that these activities may affect the PCEs, we find it 
unlikely that these activities would result in destruction or adverse 
modification of critical habitat. We concur that bottom trawling does 
not likely have the potential to destroy or adversely modify right 
whale critical habitat by impacting the identified PCEs. We take no 
position on the commenter's assertion that there is no evidence that 
commercial trawling in the North Pacific or EBS results in any adverse 
impacts on the benthic environment, because the benthic effects of 
trawling are not the subject of the current critical habitat 
designation action.

Critical Habitat Identification and Designation

Geographical Area Occupied by the Species at the Time of Listing

    The ESA defines critical habitat (in part) as areas within the 
geographical area occupied by the species at the time it was listed 
under the ESA. Because this geographical area has not been previously 
described for the northern right whale in the Pacific Ocean, it is 
necessary to establish this range when designating critical habitat. 
The northern right whale was listed as endangered in 1973. Prior to the 
onset of commercial whaling in 1835, right whales were widely 
distributed across the North Pacific (Scarff, 1986; Clapham et al., 
2004; Shelden et al., 2005). By 1973, the northern right whale in the 
Pacific Ocean had been severely reduced by commercial whaling. Sighting 
data from this remnant population are too sparse to identify the range 
of these animals in 1973. However, no reason exists to suspect that the 
right whales that remain alive today inhabit a substantially different 
range than right whales alive during the time of the Soviet catches; 
indeed, given the longevity of this species, it is likely that some of 
the individuals who survived that whaling episode remain extant. Both 
the SEBS and the western GOA (shelf and slope waters south of Kodiak) 
have been the focus of many sightings (as well as the illegal Soviet 
catches) in recent decades. In general, the majority of northern right 
whale sightings (historically and in recent times) in the Northeast 
Pacific have occurred from about 40Sec.  N to 60Sec.  N latitude. There 
are historical records from north of 60Sec.  N latitude, but these are 
rare and are likely to have been misidentified bowhead whales. Right 
whales have on rare occasions been recorded off California and Mexico, 
as well as off Hawaii. However, as noted by Brownell et al. (2001), 
there is no evidence that either Hawaii or the west coast of North 
America from Washington State to Baja California were ever important 
habitats for right whales. Given the amount of whaling effort as well 
as the human population density in these regions, it is highly unlikely 
that substantial concentrations of right whales would have passed 
unnoticed. Furthermore, no archaeological evidence exists from the U.S. 
west coast suggesting that right whales were the target of local native 
hunts. Consequently, the few records from this region are considered to 
represent vagrants. The geographical area occupied by the northern 
right whale at the time it was listed under the ESA extends over a 
broad area of the North Pacific Ocean as depicted in Figure 1.

[[Page 38285]]

[GRAPHIC] [TIFF OMITTED] TR06JY06.006


[[Page 38286]]



Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
``specific areas outside the geographical area occupied'' if the areas 
are determined by the Secretary of Commerce (Secretary) to be 
``essential for the conservation of the species.'' 50 CFR 424.12(e) 
specifies that NMFS ``shall designate as critical habitat areas outside 
the geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' We are not designating any areas not 
occupied at the time of listing because it is not known whether any 
unoccupied areas are essential to the conservation of the species. 
Future revisions to the critical habitat of the northern right whale 
may consider new information which might lead to designation of areas 
outside the area occupied by these whales.

Physical or Biological Features Essential to the Conservation of the 
Species (Primary Constituent Elements)

    In determining what areas are critical habitat, 50 CFR 424.12(b) 
requires that NMFS consider those physical or biological features that 
are essential to the conservation of a given species and that may 
require special management considerations or protection, including 
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. The regulations further 
direct NMFS to ``focus on the principal biological or physical 
constituent elements . . . that are essential to the conservation of 
the species,'' and specify that the ``[k]nown primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify PCEs as including, but not limited to: ``roost 
sites, nesting grounds, spawning sites, feeding sites, seasonal wetland 
or dryland, water quality or quantity, host species or plant 
pollinator, geological formation, vegetation type, tide, and specific 
soil types.'' An area must contain one or more PCEs to be eligible for 
designation as critical habitat; an area lacking a PCE may not be 
designated in the hope it will acquire one or more PCEs in the future.
    Our scientists considered PCEs for the northern right whale in the 
Pacific Ocean during a workshop held during July 2005. Unfortunately, 
many data gaps exist in our knowledge of the ecology and biology of 
these whales, and very little is known about the PCEs that might be 
necessary for their conservation. The life-requisites of these whales 
for such factors as temperatures, depths, and substrates are unknown, 
or may be highly variable. One certainty is the metabolic necessity of 
prey species to support feeding by right whales. Examination of 
harvested whales in the North Pacific and limited plankton tows near 
feeding right whales in recent years show that several species of large 
copepods and other zooplankton constitute the primary prey of the 
northern right whale in the North Pacific Ocean.
    The PCEs for the northern right whale in the North Pacific Ocean 
are species of large copepods and other zooplankton in areas where they 
concentrate in densities sufficient to support and encourage feeding. 
Specifically, these are: Calanus marshallae, Neocalanus cristatus, N. 
plumchris. and Thysanoessa raschii, a euphausiid whose very large size, 
high lipid content and occurrence in the region likely makes it a 
preferred prey item for right whales (J. Napp, pers. comm.). Although 
the proposed rule referred to each of these species of zooplankton as a 
``copepod,'' the final rule correctly identifies T. raschii as a 
euphausiid. A description of the critical habitat areas below 
establishes the presence of these PCEs within those areas. In addition 
to the physical presence of these PCEs within the critical habitat, it 
is likely that certain physical forcing mechanisms are present that act 
to concentrate these prey in densities that allow for efficient 
foraging by right whales. Evidence indicates that there may in fact be 
critical or triggering densities below which right whale feeding does 
not occur. The PCEs essential for the conservation of the northern 
right whale in the North Pacific and these physical forcing or 
concentrating mechanisms contribute to the habitat value of the areas 
to be designated.

Special Management Considerations or Protection

    An occupied area may be designated as critical habitat if it 
contains physical and biological features that are essential to 
conservation and that ``may require special management considerations 
or protection.'' 50 CFR 424.02(j) defines ``special management 
considerations or protection'' to mean ``any methods or procedures 
useful in protecting physical and biological features of the 
environment for the conservation of listed species.'' We considered 
whether the zooplankton in areas where they concentrate in densities 
sufficient to support and encourage feeding, which have been identified 
as the PCEs for the northern right whale in the North Pacific Ocean, 
may require special management considerations or protection.
    Zooplankton can be affected by physical and chemical alterations 
within the water column both by natural processes such as global 
climate change or the Pacific Decadal Oscillation, as well as by 
pollution from various potential sources, including oil spills and 
discharges resulting from oil and gas drilling and production. The OCS 
oil and gas exploration and development permits or authorizations 
already are routinely conditioned with operational restraints, 
mitigative measures, or technological changes to protect the marine 
environment from these impacts. While such management measures and 
protections are not necessarily designed to protect these zooplankton 
in right whale feeding areas per se, they could be useful in protecting 
these PCEs for the conservation of northern right whales in the North 
Pacific Ocean. Therefore, we find that these PCEs may require special 
management considerations or protection.

Critical Habitat

    The current abundance of northern right whales in the North Pacific 
Ocean is considered to be very low in relation to historical numbers or 
their habitat's carrying capacity, which is not determined. The 
existence of a persistent concentration of right whales found within 
the SEBS since 1996 is somewhat extraordinary in that it may represent 
a substantial portion of the remaining population. These areas of 
concentration where right whales feed are characterized as containing 
the PCEs described above. We consider these feeding areas, supporting a 
significant assemblage of the remaining right whales in the North 
Pacific, to be essential for right whale conservation. For the reasons 
given below, we have based designation of critical habitat on these 
areas, rather than where right whales have appeared sporadically or in 
transit. We have been able to substantiate the assumption that these 
areas are right whale feeding areas by observations of feeding 
behavior, direct sampling of plankton near feeding right whales, or 
records of stomach contents of dead whales. These assumptions underlie 
the critical habitat areas shown in Figure 2 and described below. Two 
areas are designated, as depicted in

[[Page 38287]]

Figure 2: an area of the SEBS and an area south of Kodiak Island in the 
GOA.
[GRAPHIC] [TIFF OMITTED] TR06JY06.007


[[Page 38288]]


    Shelden et al. (2005) reviewed prey and habitat characteristics of 
northern right whales in the North Pacific. They noted that habitat 
selection is often associated with features that influence abundance 
and availability of the whales' prey. Right whales in the North Pacific 
are known to prey upon a variety of zooplankton species. Availability 
of these zooplankton greatly influences the distribution of the small 
North Pacific population on their feeding grounds in the SEBS and GOA. 
Right whales are known to feed on zooplankton patches of very high 
density, and these patches may typically be small and unpredictably 
distributed over space and time (Mayo and Marx, 1990).
    Typical zooplankton sampling is too broad-scale in nature to detect 
patches of these densities, and directed studies employing fine-scale 
sampling cued by the presence of feeding right whales are the only 
means of doing this (Mayo and Marx, 1990). Accordingly, there may be no 
obvious correlation between the abundance and distribution of 
zooplankton (as measured by broad-scale oceanographic sampling) and the 
distribution of right whales (M. Baumgartner, in prep.) In light of 
this, we must rely upon the whales themselves to indicate the location 
of important feeding areas in the North Pacific.
    Aggregations of right whales in high latitudes can be used with 
high confidence as an indicator of the presence of suitable 
concentrations of prey, and thus of feeding behavior by the whales. 
Right whales feed daily during spring and summer, and studies in the 
North Atlantic have consistently found an association between 
concentrations of whales and feeding behavior, with dense zooplankton 
patches recorded by oceanographic sampling around such groups of whales 
(Mayo and Marx, 1990; Baumgartner et al., 2003, 2003b). In the North 
Atlantic, an analysis of sighting data by NMFS indicated that a density 
of 4 or more right whales per 100 nm\2\ was a reliable indicator of a 
persistent feeding aggregation (Clapham and Pace, 2001), and this has 
been used for Dynamic Area Management fisheries closures to reduce the 
risk of right whales becoming entangled in fishing gear in North 
Atlantic fisheries. While this metric is a reliable indicator of the 
presence of persistent feeding aggregations in the North Atlantic, it 
is not necessarily the only metric suitable for application in the 
North Pacific; the much smaller population of right whales in the 
eastern North Pacific Ocean typically results in sightings of single 
animals or pairs. Unlike with larger groups, such small numbers 
sometimes indicate transient passage through an area and thus cannot be 
unequivocally linked with feeding behavior. However, while sporadic 
sightings of right whales in such small numbers generally would not be 
considered a reliable indication of a feeding area, consistent 
sightings of right whales - even of single individuals and pairs - in a 
specific area in spring and summer over a long period of time is 
sufficient indication that the area is a feeding area containing 
suitable concentrations of zooplankton.
    Therefore, in the absence of data that describe the densities, as 
well as presence, of the PCEs themselves, the distribution of right 
whales is used here as a proxy for the existence of suitably dense 
zooplankton patches and thus to identify the areas designated as 
critical habitat. We have used sighting records since the time of 
listing to make this determination because these records are more 
recent and are taken to be a more reliable indicator of current 
distribution than historical sightings, especially given that most of 
the latter relate to animals that were removed from the population by 
whaling.

Southeastern Bering Sea

    We designate critical habitat in the Bering Sea (Figure 2), 
described as an area delineated by a series of straight lines 
connecting the following coordinates in the order listed: 58[deg]00' N/
168[deg]00' W; 58[deg]00' N/163[deg]00' W; 56[deg]30' N/161[deg]45' W; 
55[deg]00' N/166[deg]00' W; 56[deg]00' N/168[deg]00' W and returning to 
58[deg]00' N/168[deg]00' W. The area described by these boundaries lies 
completely within the waters of the United States and its Exclusive 
Economic Zone, outside of waters of the State of Alaska. State waters 
extend seaward for 3 nautical miles; very few sightings occurred within 
this area. Right whale encounters occurring after ESA-listing in 1973 
totaled 182 within this area, out of 184 encounters north of the 
Aleutian Islands during this time period.

Gulf of Alaska

    We designate critical habitat in the GOA (Figure 2), described as 
an area delineated by a series of straight lines connecting the 
following coordinates in the order listed: 57[deg]03' N/153[deg]00' W, 
57[deg]18' N/151[deg]30' W, 57[deg]00' N/151[deg]30' W, 56[deg]45' N/
153[deg]00' W, and returning to 57[deg]03' N/153[deg]00' W. The area 
described by these boundaries lies completely within the waters of the 
United States and its Exclusive Economic Zone. Right whale encounters 
occurring after ESA-listing in 1973 totaled 5 within this area, out of 
14 encounters in the GOA during this time period.

Existence of the PCEs Within the Critical Habitat Southeastern Bering 
Sea Slope Waters

    The Bering Sea slope is a very productive zone, sometimes referred 
to as the 'Greenbelt,' where annual primary production can exceed that 
on the adjacent shelf and basin by 60 percent and 270 percent, 
respectively (Springer et al., 1996). Physical processes at the shelf 
edge, such as intensive tidal mixing, eddies and up-canyon flow, bring 
nutrients to the surface, thereby supporting enhanced productivity and 
elevated biomass of phytoplankton, zooplankton, and fish. Northern 
right whales in the western North Pacific have been observed in 
association with oceanic frontal zones that produce eddies southeast of 
Hokkaido Island, Japan, and southeast of Cape Patience (Mys Terpeniya), 
Sakhalin Island, in the Okhotsk Sea (Omura et al., 1969). Whether or 
not the Bering Slope Current, or eddies shed from it, support 
production or entrain right whale prey is unknown.
    From August to October in 1955 and 1956, Soviet scientists observed 
aggregations of Calanus between the Pribilof Islands and the Aleutian 
Islands (around 170Sec.  W long.) that were identified as C. 
finmarchicus, though, as mentioned above, were probably C. marshallae 
(Klumov, 1963). Flint et al. (2002) also report high concentrations of 
C. marshallae at frontal zones near the Pribilof Islands, with 
especially high biomass noted for the subthermohaline layer. This 
oceanographic front effectively separates slope and outer shelf 
Neocalanus spp. from the inshore middle shelf community of C. 
marshallae (Vidal and Smith, 1986). Right whales were found on both 
sides of this frontal zone (that coincides with the shelf break at 170 
m) during both the 19\th\ and 20\th\ centuries. This is similar to the 
habitat described by Baumgartner et al. (2003a) for right whales 
feeding in the North Atlantic. Six right whales that were caught under 
scientific permit in late July-early August 1962-63 in Bering Sea slope 
waters had exclusively consumed N. cristatus (C. cristatus: Omura et 
al., 1969). Although oceanic species such as Neocalanus usually enter 
diapause and migrate to depths greater than 200 m by late summer in the 
slope waters of the Bering Sea (Vidal and Smith, 1986), right whales 
may still be able to use these resources by targeting regions where the 
bottom mixed layer forces the zooplankton into shallower, discrete 
layers (e.g. Baumgartner et al., 2003a).

[[Page 38289]]

Southeastern Bering Sea Middle-Shelf Waters

    The SEBS shelf has been the focus of intense oceanographic study 
since the late 1970s (e.g. Schumacher et al., 1979; Coachman, 1986; 
Napp et al., 2000; Hunt et al., 2002a; Hunt et al., 2002b), largely due 
to the considerable commercial fishing effort in the area (National 
Research Council, 1996). Coachman (1986) described the now well-
established hydrographic domains of the inner-, middle- and outer-
shelf, separated by a front or transition zone at roughly the 50-m 
(inner front) and 100-m (outer front) isobaths. During the 1990s, 
research focused on these domains demonstrated dynamic advection of 
nutrient-rich Bering slope water onto the shelf in both winter and 
summer, via eddies, meanders and up-canyon flow (Schumacher and 
Stabeno, 1998; Stabeno and Hunt, 2002). These intrusions of nutrient-
rich water, physical factors related to water column stratification, 
and long summer day length result in a very productive food web over 
the SEBS shelf (e.g., Livingston et al.,1999; Napp et al., 2002; Coyle 
and Pinchuk, 2002; Schumacher et al., 2003). Specifically, copepod 
species upon which right whales feed (e.g. C. marshallae, Pseudocalanus 
spp. and Neocalanus spp.) are among the most abundant of the 
zooplankton sampled over the middle shelf (Cooney and Coyle, 1982; 
Smith and Vidal, 1986). Small, dense patches (up to densities greater 
than 500 mg/m-3) of euphausiids (T. raschii, T. inermis), potential 
right whale prey, have also been reported for waters near the SEBS 
inner front (Coyle and Pinchuk, 2002).
    Zooplankton sampled near right whales seen in the SEBS in July 1997 
included C. marshallae, P. newmani, and Acartia longiremis (Tynan, 
1998). C. marshallae was the dominant copepod found in these samples as 
well as samples collected near right whales in the same region in 1999 
(Tynan et al., 2001). C. marshallae is the only ``large'' calanoid 
species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith 
and Vidal, 1986). Concentrations of zooplankton were significantly 
higher in 1994-98 than in 1980-81 by at least an order of magnitude 
(Napp et al., 2002) and Tynan et al. (2001) suggest that this increased 
production may explain the presence of right whales in middle shelf 
waters. However, at least three right whales were observed in 1985 in 
the same location as the middle shelf sightings reported in the late 
1990s (Goddard and Rugh, 1998).

Gulf of Alaska

    The central GOA is dominated by the Alaskan gyre, a cyclonic 
feature that is demarcated to the south by the eastward flowing North 
Pacific Current and to the north by the Alaska Stream and Alaska 
Coastal Current, which flow westward near the shelf break. The bottom 
topography of this region is rugged and includes seamounts, ridges, and 
submarine canyons along with the abyssal plain. Strong semi-diurnal 
tides and current flow generate numerous eddies and meanders (Okkonen 
et al., 2001) that influence the distribution of zooplankton.
    Copepods are the dominant taxa of mesozooplankton found in the GOA 
and are patchily distributed across a wide variety of water depths. 
Three large herbivorous species comprise more than 70 percent of the 
biomass: N. cristatus, N. plumchrus, and Eucalanus bungii (Cooney 1986, 
1987). In northern GOA shelf waters, the late winter and spring 
zooplankton is dominated by calanoid copepods (Neocalanus spp.), with a 
production peak in May; this is a cycle that appears resistant to 
environmental variability associated with El Ni[ntilde]o/Southern 
Oscillation (ENSO) (Coyle and Pinchuk, 2003). In oceanic waters 
(50Sec.  N lat., 145Sec.  W long.), N. plumchrus dominate (Miller and 
Nielsen, 1988; Miller and Clemons, 1988) and have demonstrated dramatic 
shifts in the timing of annual peak biomass from early May to late July 
(Mackas et al., 1998). From late summer through autumn, N. plumchrus 
migrate to deep water ranging from 200 m to 2000 m depending on 
location within the GOA (Mackas et al., 1998). The three right whales 
caught under scientific permit on August 22, 1961, south of Kodiak 
Island had all consumed N. plumchrus (C. plumchrus: Omura et al., 
1969), potentially by targeting areas where adult copepods remained 
above 200 m (e.g. Baumgartner et al., 2003a).
    The area designated as critical habitat within the SEBS presents 
several similarities to that to be designated within the GOA. Both 
areas are influenced by large eddies, submarine canyons, or frontal 
zones that enhance nutrient exchange and act to concentrate prey. These 
areas lie adjacent to major ocean currents (the ACC and the Aleutian 
ocean passes) and are characterized by relatively low circulation and 
water movement (P. Stabeno, pers. com.).

Right Whale Sightings as a Proxy for Locating the PCEs

    As noted above, consistent sightings of right whales - even of 
single individuals and pairs - in a specific area in spring and summer 
over an extended period of time can be used with high confidence as an 
indicator of the presence of the PCEs in a feeding area. We have used 
sighting records since the time of listing to make this determination 
because these records are more recent and are taken to be a more 
reliable indicator of current distribution of feeding whales than 
historical sightings, especially given that most of the latter relate 
to animals that were removed from the population by whaling and are 
thus no longer extant. Of the 184 post-listing right whale sightings 
reported north of the Aleutian Islands, 182 occurred within the 
critical habitat in the Bering Sea. Since 1996, right whales have been 
consistently sighted in this area over a period of years during the 
spring and summer feeding seasons. For example, NMFS surveys alone 
recorded between two and four sightings in 1996 (Goddard and Rugh, 
1998), 13 sightings in 2000 (Le Duc, et al) and over 23 sightings in 
2004. Single right whales as well as pairs and aggregations up to five 
animals were sighted during this period, and all sightings were within 
100 nm\2\ of one another. Based on consideration of these factors, we 
conclude that the right whale sightings in the specific area in the 
Bering Sea described in Figure 2 are a suitable proxy for the presence 
of the PCEs, and, therefore, designate this area as critical habitat 
for the northern right whale in the North Pacific Ocean.
    Recent sightings of right whales are fewer in number in the GOA 
than in the Bering Sea. However, three individuals were sighted 
recently in the critical habitat in the GOA. These sightings occurred 
at a time when right whales typically feed in the North Pacific Ocean. 
In July 1998, a single right whale exhibiting behavior consistent with 
feeding activity was observed among a group of about eight humpback 
whales (Waite, Wynne and Mellinger, 2003). In August 2004, a NMFS 
researcher observed a single right whale among a group of humpbacks. In 
August 2005, a NMFS researcher reported yet another sighting of a right 
whale within 250 to 500 meters of groups of humpback and fin whales. 
Acoustic monitoring of the area conducted in summer 2000 recorded what 
appeared to be right whale calls in the area on September 6 (Waite, 
Wynne and Mellinger, 2003). Compared to the Bering Sea sightings, the 
GOA right whale sightings do not provide as strong an indication of 
feeding behavior. However, individual right whales have been directly 
observed in 1998, 2004, and 2005 and

[[Page 38290]]

detected acoustically in 2000 during the spring and summer feeding 
seasons in the specific area in the GOA described in Figure 2. It is 
also instructive that one of these animals was exhibiting feeding 
behavior at the time it was observed. Based on consideration of these 
factors, we conclude that the right whale sightings in the specific 
area in the GOA described in Figure 2 are a reasonably reliable proxy 
for the presence of the PCEs, and, therefore, designate this area as 
critical habitat for the northern right whale in the North Pacific 
Ocean.

Exclusions from Designation

    Section 4 (b)(2) of the ESA states that critical habitat shall be 
designated on the basis of the best scientific and commercial data 
available and after taking into consideration the economic impact, 
impacts to national security, and any other relevant impact. Any area 
may be excluded from critical habitat if the benefits of exclusion are 
found to outweigh those of inclusion, unless such exclusion would 
result in the extinction of the species. We are to apply the statutory 
provisions of the ESA, including those in section 3 that define 
``critical habitat'' and ``conservation,'' to determine whether a 
proposed action might result in the destruction or adverse modification 
of critical habitat.
    Based upon the best available information, it appears that the 
probability of oil or gas production within (or immediately adjacent 
to) the right whale critical habitat is uncertain within the 10-year 
timeframe of our assessment. MMS reports that there are no commercial 
production facilities in operation, currently under development, or 
'permitted' for future development within these critical habitat areas. 
Neither has oil and gas exploration taken place in most of the EBS OCS 
region.
    During the preparation of this final rule, we became aware that the 
oil and gas industry has expressed renewed interest in exploring for 
and developing petroleum resources in the EBS, with most interest being 
expressed in the North Aleutian Basin OCS Planning Area. This OCS area 
resides in the southeast corner of the proposed critical habitat, and, 
according to MMS estimates, represents approximately 8 percent of the 
total critical habitat area being proposed for designation in the EBS. 
MMS also reports that the State of Alaska has announced support for oil 
and gas development in this region, although local groups are divided 
on the issue. The Governor of Alaska stated that ``[he] hope[s] that 
public and industry input will provide the secretary and the state with 
adequate information to decide whether or not to ask the President to 
lift the current withdrawal and allow a sale during the 2007 - 2012 
program.'' Through communication between NMFS and MMS, and the MMS 
comments submitted in response to publication of the proposed rule to 
revise critical habitat, we have a substantially fuller understanding 
of the potential effects of critical habitat designation on the MMS OCS 
program. MMS has revealed that, while the industry desires to include 
the North Aleutian Basin OCS Planning Area in the 2007-2012 Lease Sale 
program, this is only possible through the rescission of a Presidential 
withdrawal of this (and adjacent) area(s) that is in effect until July 
2012. Even if the withdrawal were rescinded in time to include the 
North Aleutian Basin in the upcoming lease sale offering, MMS projects 
that this specific area would likely not be put up for lease sales 
until 2010 and again in 2012, and then only if the area were to be 
included in MMS lease sale planning. Even in the most optimistic 
scenario envisioned by MMS analysts, substantial development (and 
certainly commercial production) would involve many years, perhaps even 
decades, of planning, design, review, consultation, and approval. 
Consequently, the prospects for oil and gas exploration and development 
in this area are uncertain at this time. Moreover, even if the 
withdrawal were lifted and the area opened for exploration and 
development, monetary benefits accruing from oil and gas production in 
this area over the 10-year analytical horizon we used to evaluate the 
economic and socioeconomic impacts of the critical habitat revision are 
uncertain. Therefore, we cannot conclude that the benefits of excluding 
this area for oil and gas purposes exceed the benefits of inclusion.
    While we expect to consult on fishery-related proposed actions that 
``may affect'' critical habitat, none of these consultations would be 
expected to result in a finding of ``adverse modification,'' and thus 
none would be expected to result in imposition of costs on commercial 
fishery participants. Because fisheries do not target or affect the 
PCEs for northern right whales, it follows that no fishing or related 
activity (e.g., at-sea processing, transiting) would be expected to be 
restricted or otherwise altered as a result of critical habitat 
designation in the two areas being designated. We did not find any 
specific areas in which the costs exceed benefits for fishing 
activities that may affect critical habitat, and, therefore, we have 
not excluded any areas from designation. We point out, however, that if 
an injurious or lethal incidental take of a right whale were to occur 
in the commercial fisheries, right whale avoidance measures may be 
required in commercial fisheries to avoid future interactions. These 
measures, however, would be required to prevent take of the endangered 
right whale and would not be attributable solely to the designation of 
critical habitat.
    This action is anticipated to result in consultations on seafood 
processing waste discharges with the Environmental Protection Agency 
(EPA); Department of Defense (DoD) authorized military ``underway 
training'' activities; and U.S. Coast Guard (USCG) oil spill response 
plan approval, among others. It is unlikely that these activities will 
result in an ``adverse modification'' finding and, thus, no mandatory 
modifications would be imposed. It must follow then that no ``costs'' 
are imposed as a result of designation beyond the small costs 
attributable to inter-agency (occasionally intra-agency) consultation. 
As explained in the impacts analysis prepared for this action, some 
larger benefit accrues to society as a result of designation, including 
the educational value derived from identification and designation of 
the critical habitat areas within which the PCEs are found. Thus, we 
believe that the benefits of exclusion are outweighed by the benefits 
of inclusion of the designated areas.
    Our analysis (available on the NMFS Alaska Region website http://www.fakr.noaa.gov/) did not find any specific areas that merit 
exclusion in consideration of economic impacts, nor have we determined 
that national security interests or other relevant impacts warrant the 
exclusion of any specific areas from this designation.

Effects of Critical Habitat Designation

    Section 4(b)(8) of the ESA requires that we evaluate briefly and 
describe, in any revision of designated critical habitat, those 
activities involving a Federal action that may adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect critical habitat and, when carried out, funded, 
or authorized by a Federal agency, require that an ESA section 7 
consultation be conducted. Such activities include, but are not limited 
to, oil and gas leasing and development on the OCS, Federal management 
of high seas fisheries in territorial waters and the Exclusive Economic 
Zone of the United States, dredge and fill, mining,

[[Page 38291]]

pollutant discharges, other activities authorized or conducted by the 
Army Corps of Engineers and the EPA, and military training exercises 
and other functions of the U.S. armed forces.
    This designation of critical habitat will provide these agencies, 
private entities, and the public with clear notification of the 
existence of critical habitat for northern right whales and the 
boundaries of the habitat. This designation will also assist these 
agencies and others in evaluating the potential effects of their 
activities on critical habitat and in determining if ESA section 7 
consultation with us is needed.

Required Determinations

Regulatory Planning and Review

    This rule has been determined to be significant for purposes of 
Executive Order (E.O.) 12866. As part of our exclusion process under 
section 4(b)(2) of the ESA, the economic benefits and costs of the 
critical habitat designations are described in our draft economic 
report (NMFS, 2005). This approach is in accord with OMB's guidance on 
regulatory analysis (OMB Circular A-4, Regulatory Analysis, September 
17, 2003).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
We have prepared an initial regulatory flexibility analysis (IRFA) for 
the proposed rule and a final regulatory flexibility analysis (FRFA) 
for this final rule incorporating the IFRA and comments received on the 
economic impacts of the rule. These documents are available upon 
request (see ADDRESSES). These Regulatory Flexibility Act analyses 
evaluate the potential effects of the critical habitat designation on 
federally regulated small entities. The reasons for the action, a 
statement of the objectives of the action, and the legal basis for the 
rule are discussed earlier in the preamble. A summary of the analyses 
follows.
    The small entities that may be directly regulated by this action 
are those that seek formal approval (e.g., a permit) from, or are 
otherwise authorized or funded by, a Federal agency to undertake an 
action or activity that ``may affect'' critical habitat for the 
northern right whale. Submission of such a request for a Federal 
agency's approval or funding, from a small entity, would require that 
agency (i.e., the ``action agency'') to consult with NMFS (i.e., the 
``consulting agency'').
    Consultations vary, from simple to complex, depending on the 
specific facts of each action or activity for which application is 
made. Attributable costs are directly proportionate to complexity. In 
the majority of instances projected to take place under the critical 
habitat designation, these costs are expected to accrue solely to the 
Federal agencies that are party to the consultation. In only the most 
complex of formal consultations might it be expected that a private 
sector applicant could potentially incur costs directly attributable to 
the consultation process itself. Furthermore, if destruction or adverse 
modification of critical habitat is found at the conclusion of formal 
consultation, the applicant must implement modifications to avoid such 
effects. These modifications could result in adverse economic impacts.
    An examination of the Federal agencies with management, 
enforcement, or other regulatory authority over activities or actions 
within, or immediately adjacent to, the critical habitat area, resulted 
in the following list. Potential action agencies may include: the EPA, 
USCG, DoD, MMS, and NMFS. Activities or actions with a nexus to these 
Federal agencies that are expected to require consultation include: EPA 
permitting of seafood processing waste discharges at-sea; USCG oil 
spill response plan approval, as well as emergency oil spill response; 
DoD authorization of military training activities in the Bering Sea and 
Aleutian Islands (BSAI) and GOA; MMS oil and gas exploration and 
production permitting; and NMFS fishery management actions in the BSAI 
and GOA.
    A 10-year post-designation analytical horizon was adopted, during 
which time we may reasonably expect to consult an estimated 27 times on 
critical habitat-related actions with one or more of the action 
agencies identified above. The majority of the consultations are 
expected to be informal, projected to represent approximately 52 
percent of the total. The more complex and costly formal consultations 
are projected to account for, perhaps, 37 percent; while the simplest 
and least costly pre-consultation are expected 11 percent of the time. 
These figures reflect the best estimates information and experience can 
presently provide.
    On the basis of the underlying biological, oceanographic, and 
ecological science used to identify the PCEs that define critical 
habitat for the right whale in the Pacific, as well as the foregoing 
assumptions, empirical data, historical information, and accumulated 
experience regarding human activity in the BSAI and GOA, we recognize 
the potential for oil and gas exploration and production activity to 
destroy or adversely modify northern right whale critical habitat, 
though adverse modification is unlikely.
    As previously indicated, MMS has authority over OCS oil and gas 
permitting. An examination of published information from the MMS Alaska 
Region reveals that three MMS OCS planning areas overlap some portion 
of the northern right whale critical habitat areas. Previously, we have 
consulted extensively with the MMS regarding oil and gas leasing 
actions on the Alaskan OCS, and we concur that none of these has been 
determined likely to jeopardize the continued existence of any listed 
species or destroy or adversely modify critical habitat. In addition, 
we found in the impacts analysis prepared for the proposed rule that 
oil and gas exploration, development, and commercial production 
represent a relatively low risk to critical habitat for the right 
whale. Although we recognize there is a potential for impacts that 
could result in destruction or adverse modification of critical 
habitat, the amount of future anticipated OCS oil and gas related 
activities in the proposed fright whale critical habitat and the 
regulatory requirements imposed by MMS on OCS operators to minimize the 
potential for adverse impacts suggest that right whale critical habitat 
would not be destroyed or adversely modified. Further, any potential 
risks of destruction or adverse modification from specific oil and gas 
activities will be analyzed and addressed in the context of an ESA 
section 7 consultation where Federal agencies must insure that the 
actions they authorize, fund or carry out are not likely to destroy or 
adversely modify critical habitat or jeopardize the continued existence 
of the northern right whale.
    Further, MMS sources indicate that in only one of these has there 
been any exploratory well drilling (i.e., St. George Basin). A total of 
10 exploratory wells were permitted, all of which were completed in 
1984 and 1985, and no subsequent associated exploration activity 
occurred. It appears that there

[[Page 38292]]

has been no activity on the part of the lease holders in this or the 
other referenced areas to seek authorization to undertake additional 
exploratory activity or develop production facilities. MMS reports no 
planned or scheduled OCS lease sales for these areas, at least through 
2007 (the latest projected date MMS has published on its web site). 
This suggests that the only private sector entities that potentially 
could be directly regulated and adversely impacted by the designation 
would be those entities that own the lease rights to develop oil and 
gas production facilities in these areas. However, during the 
preparation of the proposed rule we became aware that the oil and gas 
industry has expressed recent interest in exploring and developing oil 
and gas resources in the North Aleutian Basin OCS Planning Area and 
that the State of Alaska announced support for this activity.
    When MMS records were consulted as to the identity of the entities 
holding leases to the wells in the St. George Basin, six businesses 
were listed for the 10 permitted exploratory wells. These include: 
SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3 wells); EXXON 
Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged with EXXON); 
GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well). These data were 
last updated, according to the MMS website, March 17, 2005. None of 
these entities could reasonably be characterized as ``small,'' for RFA 
purposes. All are widely recognized multi-national corporations and 
employ more than ``500 full-time, part-time, temporary, or any other 
category of employees, in all of their affiliated operations 
worldwide'' (the criterion specified by SBA for assessing entity size 
for this sector).
    Under the Regulatory Flexibility Act, the preferred alternative was 
compared to the ``No Action'' (or status quo) alternative and an 
alternative proposed by the petitioner, the Center for Biological 
Diversity. NMFS rejected the ``No Action'' alternative because it did 
not comply with the remand order in Center for Biological Diversity v. 
Evans, Civ. No. 04-04496 (N.D. Cal. June 14, 2005) or satisfy the 
agency's obligations under the ESA. NMFS rejected the petitioner's 
alternative because the best scientific information available did not 
support a finding that the physical or biological features essential 
for conservation of the right whale in the North Pacific Ocean are 
found throughout the area identified by the petitioner, and thus the 
area did not meet the ESA definition of critical habitat.
    Because our analysis did not identify costs to any small entities 
attributable to the critical habitat designation action, there is no 
identified alternative that imposes lesser impacts on this group while 
achieving the requirements of the ESA and the objectives of this 
action.
    The action does not impose new recordkeeping or reporting 
requirements on small entities. The analysis did not reveal any Federal 
rules that duplicate, overlap or conflict with the final action. No 
comments were received on the IRFA identifying analytical deficiencies 
or objecting to the reported RFAA interpretations and conclusions

Military Lands

    The Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resource Management Plan 
(INRMP). The recent National Defense Authorization Act for Fiscal Year 
2004 (Public Law No. 108-136) amended the ESA to limit areas eligible 
for designation as critical habitat. Specifically, section 
4(a)(3)(B)(I) of the ESA (16 U.S.C. 1533(a)(3)(B)(I)) now provides that 
``[t]he Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation.'' We have determined no military lands 
would be impacted by this rule.

E.O. 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking any action that promulgates or is expected to 
lead to the promulgation of a final rule or regulation that (1) is a 
significant regulatory action under E.O. 12866 and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy and find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (a) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5) (7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon state, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to state, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement.) ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose a legally binding duty on non-Federal government entities or 
private parties. Under the ESA, the only regulatory effect is that 
Federal agencies must ensure that their actions do not destroy or 
adversely modify critical habitat under section 7. While non-Federal 
entities who receive Federal funding, assistance, permits or otherwise 
require approval or authorization from a Federal agency for an action 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of

[[Page 38293]]

critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply; nor 
would critical habitat shift the costs of the large entitlement 
programs listed above to state governments.
    (b) Due to the prohibition against take of this species both within 
and outside of the designated areas, we do not anticipate that this 
final rule will significantly or uniquely affect small governments. As 
such, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630, this final rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of critical habitat affects only Federal 
agency actions. Private lands do not exist within the critical habitat 
and therefore would not be affected by this action.

Federalism

    In accordance with E.O. 13132, this final rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of Commerce policies, we have 
requested information from, and will coordinate development of, this 
critical habitat designation with appropriate State of Alaska resource 
agencies. The designation may have some benefit to State and local 
resource agencies in that the areas essential to the conservation of 
the species are more clearly defined, and the PCEs of the habitat 
necessary to the survival of the northern right whale are specifically 
identified.

Civil Justice Reform

    In accordance with E.O. 12988, the Department of the Commerce has 
determined that this final rule does not unduly burden the judicial 
system and meets the requirements of sections 3(a) and 3(b)(2) of the 
E.O. We are designating critical habitat in accordance with the 
provisions of the ESA. This final rule uses standard property 
descriptions and identifies the PCEs within the designated areas to 
assist the public in understanding the habitat needs of the northern 
right whale.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This final rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that an environmental analyses as provided for 
under the National Environmental Policy Act of 1969 for critical 
habitat designations made pursuant to the ESA is not required. See 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 
116 S.Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. E.O. 
13175 - Consultation and Coordination with Indian Tribal Governments- 
outlines the responsibilities of the Federal Government in matters 
affecting tribal interests.
    We have determined designation of critical habitat for the northern 
right whale in the North Pacific Ocean would not have tribal 
implications, nor affect any tribal governments or issues. None of the 
critical habitat occurs on tribal lands or affects tribal trust 
resources or the exercise of tribal rights. In addition, as discussed 
above and in the economic analysis supporting this rulemaking, we 
consider economic impacts of designation on oil and gas activity in the 
area to be speculative.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on the NMFS Alaska Region's website at http://www.fakr.noaa.gov/ 
and is available upon request from the NMFS office in Juneau, Alaska 
(see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: June 29, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 226 is amended to 
read as follows:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation of part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
2. In Sec.  226.203, the section heading and the introductory text are 
revised; paragraphs (a), (b), and (c) are redesignated as paragraphs 
(a)(1), (a)(2), and (a)(3), respectively; and new paragraph (a) heading 
and paragraph (b) are added to read as follows:


Sec.  226.203  Critical habitat for northern right whale (Eubalaena 
glacialis).

    Critical habitat is designated in the North Atlantic Ocean, Bering 
Sea, and the Gulf of Alaska for the northern right whale as described 
in paragraphs (a) and (b) of this section. The textual descriptions of 
critical habitat are the definitive source for determining the critical 
habitat boundaries. General location maps are provided for critical 
habitat in the North Pacific Ocean for general guidance purposes only, 
and not as a definitive source for determining critical habitat 
boundaries.
    (a) North Atlantic Ocean. * * *
* * * * *
    (b) North Pacific Ocean--(1) Primary Constituent Elements. The 
primary constituent elements essential for conservation of the northern 
right whale are the copepods Calanus marshallae, Neocalanus cristatus, 
and N. plumchris, and the euphausiid Thysano[euml]ssa raschii, in areas 
of the North Pacific Ocean in which northern right whales are known or 
believed to feed, as described in paragraphs (b)(2) and (3) of this 
section.
    (2) Bering Sea. An area described by a series of straight lines 
connecting the following coordinates in the order listed:
    58[deg]00' N/168[deg]00' W
    58[deg]00' N/163[deg]00' W
    56[deg]30' N/161[deg]45' W
    55[deg]00' N/166[deg]00' W
    56[deg]00' N/168[deg]00' W
    58[deg]00' N/168[deg]00' W.
    (3) Gulf of Alaska. An area described by a series of straight lines 
connecting

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the following coordinates in the order listed:
    57[deg]03' N/153[deg]00' W
    57[deg]18' N/151[deg]30' W
    57[deg]00' N/151[deg] 30' W
    56[deg]45' N/153[deg]00' W
    57[deg]03' N/153[deg]00' W.
    (4) Maps of critical habitat for the northern right whale in the 
North Pacific Ocean follow:

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[FR Doc. 06-6014 Filed 6-30-06; 1:05 pm]
BILLING CODE 3510-22-S