[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Rules and Regulations]
[Pages 12024-12030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4376]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 080225302-8314-01]
RIN 0648-XF85


Endangered and Threatened Species; Endangered Status for North 
Pacific and North Atlantic Right Whales

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

ACTION: Final rule.

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SUMMARY: We, NMFS, completed a status review of right whales in the 
North Pacific and North Atlantic Oceans under the Endangered Species 
Act (ESA) in December 2006 and are listing the currently endangered 
northern right whale (Eubalaena spp.) as two separate, endangered 
species, North Pacific right whale (E. japonica) and North Atlantic 
right whale (E. glacialis).

DATES: This rule is effective on April 7, 2008.

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 NMFS Alaska Region, 709 W. 9th Street, Juneau, AK 21688 (for North 
Pacific right whale) or NMFS Northeast Region, One Blackburn Drive, 
Gloucester, MA 01930 (for North Atlantic right whale).

FOR FURTHER INFORMATION CONTACT: For North Pacific right whale, Brad 
Smith, NMFS Alaska Region (907) 271-5006; or Kaja Brix, NMFS, Alaska 
Region, (907) 586-7235; for North Atlantic right whale, Mark Minton, 
NMFS, Northeast Region, 978 281 9328, ext. 6534; and for general 
information on listing, Marta Nammack, (301) 713-1401, ext. 180. The 
final rule, references, petition, and other materials relating to this 
determination can be found on our website at http://www.fakr.noaa.gov/ 
(North Pacific right whale) or http://www.nero.noaa.gov/ (North 
Atlantic right whale).

SUPPLEMENTARY INFORMATION:

Background

    On August 16, 2005, we received a petition from the Center for 
Biological Diversity (CBD) to list the North Pacific right whale as a 
separate endangered species under the ESA. CBD requested that we list 
the North Pacific right whale as a new endangered species based, in 
part, on recent scientific information that establishes new scientific 
names for right whale species. On January 26, 2006, we issued our 
finding that the petition presented substantial information indicating 
that the petitioned action may be warranted (71 FR 4344), and we 
requested information regarding the taxonomy and status of the North 
Pacific right whale, its habitat, biology, movements and distribution, 
threats to the species, or other pertinent information.
    In December 2006, we completed a Review of the Status of the Right 
Whales in the North Atlantic and North Pacific Oceans (NMFS, 2006). On 
December 27, 2006, we published two proposed rules (71 FR 77694 - North 
Pacific and 71 FR 77704 - North Atlantic) to list these species as 
separate endangered species and invited public comment. These proposed 
rules summarize the information gathered and the analyses conducted in 
the status review of right whales in the North Pacific Ocean and in the 
North Atlantic Ocean.

Listing Determinations Under the ESA

    The ESA defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as one that is likely to become endangered in the 
foreseeable future throughout all or a significant portion of its range 
(sections 3(6) and 3(20), respectively). The ESA requires us to 
determine whether any species is endangered or threatened because of 
any one of the following factors: (1) the present or threatened 
destruction, modification or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence (section 4(a)(1)(A)-(E)). We are to 
make this determination based solely on the best available scientific 
information after conducting a review of the status of the species and 
taking into account any efforts being made by states or foreign 
governments to protect the species. The focus of our evaluation of the 
ESA section 4(a)(1) factors is to evaluate whether and to what extent a 
given factor represents a threat to the future survival of the species. 
The focus of our consideration of protective efforts is to evaluate 
whether and to what extent they address the identified threats and so 
ameliorate a species' risk of extinction. The steps we follow in 
implementing this statutory scheme are to: (1) delineate the species 
under consideration; (2) review the status of the species; (3) consider 
the ESA section 4(a)(1) factors to identify threats facing the species; 
(4) assess whether certain protective efforts mitigate these threats; 
and (5) predict the species' future persistence.

Organization of This Final Rule

    First, we provide a summary of our analysis that concludes that the 
North Pacific and North Atlantic right whales are separate species. 
Next, we provide responses to public comments on the proposed rules to 
list the North Pacific right whale as endangered (71 FR 77694; December 
27, 2006) and the North Atlantic right whale as endangered (71 FR 
77704; December 27, 2006). The determination that right whales in the 
North Atlantic and North Pacific Oceans are two separate species 
requires us to consider these species separately for the purposes of 
listing under the ESA. Therefore, for each of the two species, we 
follow with an extinction risk assessment, a summary of the ESA section 
4(a)(1) factors, a summary of ongoing conservation efforts, and a final 
conclusion on status for each of the two species.

Review of ``Species'' Delineation

    We have concluded that right whales in the North Pacific and North 
Atlantic exist as two species, the North Pacific right whale (E. 
japonica) and the North Atlantic right whale (E. glacialis). The status 
review indicates that separating the northern right whale into two 
different species is warranted in light of the compelling evidence 
provided by recent scientific studies on right whale taxonomy and 
classification. Genetic data now provide unequivocal support to 
distinguish three right whale lineages (including the southern right 
whale) as separate phylogenetic species: (1) the North Atlantic right 
whale (E. glacialis), ranging in the North Atlantic Ocean; (2) the 
North Pacific right whale (E. japonica), ranging in the North Pacific 
Ocean; and (3) the southern right whale (E. australis), historically 
ranging throughout the southern hemisphere's oceans (Rosenbaum et al., 
2000). See either of the two December 27, 2006, proposed rules (71 FR 
77694; 71 FR 77704) for further details. As discussed in these proposed 
rules, because the southern right whale was already considered a 
separate species when it was included in the Eubalaena spp. listing, we 
clarify the regulatory text by

[[Page 12025]]

listing the southern right whale separately as E. australis.

Summary of Comments in Response to the Proposed Rule to List the North 
Pacific Right Whale

    The proposed rule to list the North Pacific right whale as a 
separate, endangered species (71 FR 77694; December 27, 2006) announced 
a comment period that closed on February 26, 2007. We have reviewed all 
comments received during the comment period and incorporated updated 
data and information into appropriate sections of this rule. We 
received 10 public comments on the proposed rule to list the North 
Pacific right whale as a separate, endangered species under the ESA. 
The majority of the comments supported the proposed action. A summary 
of the comments received and our response to each are presented below.
    Comment 1: The Final Rule should contain any information gathered 
as a result of the Minerals Management Service (MMS)/NOAA joint 
collaborative research on North Pacific right whales.
    Response: These dedicated research efforts are still ongoing. 
Additional data are expected from upcoming aerial and shipboard 
surveys.
    Comment 2: One commenter stated that the draft Status Review is 
inconsistent on the issue of population structure for right whales. It 
sometimes implies that North Pacific right whales comprise a single 
population and at other times suggests they consist of separate eastern 
and western populations. The Marine Mammal Commission also recommended 
NMFS recognize an eastern and a western North Pacific stock for 
management purposes, and conduct research to determine if those 
populations constitute DPSs.
    Response: The final Status Review addresses this issue. This review 
concludes that the generally accepted analyses by Rosenbaum et al. 
(2000) constitute the best available scientific information regarding 
current taxonomic classification of right whales. Rosenbaum et al. 
(2000) concluded that the right whale should be regarded as three 
separate species as follows: (1) the North Atlantic right whale (E. 
glacialis), ranging in the North Atlantic Ocean; (2) the North Pacific 
right whale (E. japonica), ranging in the North Pacific Ocean; and (3) 
the southern right whales (E. australis), historically ranging 
throughout the southern hemisphere's oceans.
    The Status Review concludes that historically, right whales ranged 
throughout the entire North Pacific north of 35[deg] N latitude (Braham 
and Rice, 1984 Perry et al., 1999). The final Status Review notes that 
the International Whaling Commission (IWC) considers that the question 
of whether there are two populations of right whales in the North 
Pacific remains open. The IWC did note in a review (IWC, 2001a) that 
the different catch and recovery histories support the view that there 
``were once at least two populations, at least with regard to feeding 
ground divisions'' (see also Perry et al., 1998 and 1999). The final 
Status Review notes that some researchers (e.g., Klumov, 1962; Brownell 
et al., 2001) who have discussed the possibility that right whales in 
the North Pacific exist in discrete eastern and western populations 
have also suggested that the western group may occur in two different 
populations. However, at present no subdivision of either population is 
recognized. The idea that the western population can be further 
subdivided into two parts (Omura, 1986) is regarded as unlikely, but 
cannot be ruled out based on existing data (IWC, 2001a).
    It is important to note that for purposes of this listing, we 
recognize all right whales found in the North Pacific Ocean as members 
of the single species, E. japonica, without further subdivision as sub-
species or DPSs under the provisions of the ESA.
    Comment 3: Several commenters felt NMFS had overstated the concern 
regarding the problem of right whale interaction with fishing gear. 
Only one such case is reported which occurred in Russian waters. While 
there have been two apparent cases of entanglement of bowhead whales by 
fishing gear, it is questionable to extrapolate from these events 
because of the rarity of such interactions and the fact that the 
western arctic population of bowhead whales numbers ten times that of 
the North Pacific right whale.
    Response: The issue of interaction with North Pacific right whales 
is not well understood. It may be inappropriate to make broad 
conclusions on this issue from data on bowhead whales, and the known 
number (one) of known or reported interactions with North Pacific right 
whales is small. Also, one commenter correctly pointed out that fishing 
practices differ between Russia and the United States, which may be an 
important consideration in assessing this issue. The United States has 
banned drift net fishing in the U.S. Exclusive Economic Zone (EEZ) and 
has implemented limited entry fishery programs which reduce the numbers 
of vessels and amount of fishing gear employed in many fisheries. Both 
actions reduce the possibility for gear interaction.
    Comment 4: More protection is needed from ship strikes for North 
Pacific right whales. This is a very significant problem for North 
Atlantic right whales. The lack of observed interactions in the North 
Pacific may be an artifact of the small population size rendering such 
events inherently infrequent, and the remoteness of their habitat 
leading to any such interactions going unobserved.
    Response: The threat of ship strikes is a very significant issue 
for right whales in the North Atlantic, but very little evidence 
suggests that ship strikes are an issue for North Pacific right whales. 
However, we believe additional research and monitoring is appropriate, 
and we intend to address the potential for ship strikes in a Recovery 
Plan for North Pacific right whales. Preparation of a Recovery Plan 
will follow the listing of this species.
    Comment 5: The mere taxonomic reclassification of the right whale 
should not re-open a process that was completed less than a year ago - 
especially for a species with an even longer gestation period - with no 
major ecological changes occurring in the interim.
    Response: This action results in the listing of North Pacific right 
whales as a separate endangered species pursuant to the ESA. We have 
followed the procedure specified in the ESA for listing this species 
and designating its critical habitat.

Summary of Comments in Response to the Proposed Rule to List the North 
Atlantic Right Whale

    The proposed rule to list the North Atlantic right whale as a 
separate, endangered species (71 FR 77704; December 27, 2006) announced 
a comment period that closed on February 26, 2007. We have reviewed all 
comments received during the comment period and incorporated updated 
data and information into appropriate sections of this rule. We 
received nine public comments on the proposed rule to list the North 
Atlantic right whale as a separate, endangered species under the ESA. 
The majority of the comments supported the proposed action. A summary 
of the comments received and our response to each are presented below.
    In addition to soliciting and reviewing public comments, we are 
required to seek peer review of our listing proposals. On July 1, 1994, 
NMFS and

[[Page 12026]]

USFWS published a series of policies regarding listings under the ESA, 
including a policy for peer review of proposed listings (59 FR 34270). 
In accordance with this policy, we solicited the expert opinions of six 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomic, biological, and 
ecological information on this species. We sent the proposed rule and 
Status Review to these independent peer reviewers, but received no 
responses from them.
    Comment 6: A commenter opposed the proposed action to list right 
whales in the northern hemisphere as two separate species under the ESA 
and petitioned NMFS to list right whales globally as a single species 
with the common name of black whale.
    Response: We reviewed the petition and published a finding (72 FR 
29974; May 30 2007) that the petition did not present substantial 
scientific or commercial information indicating the listing of the 
global populations of right whales as a single species may be 
warranted. The best scientific data available supports the 
determination that right whales found in the northern hemisphere exist 
as two separate species, the North Atlantic right whale (E. glacialis) 
and the North Pacific right whale (E. japonica).
    As discussed above and in our proposed rule to list this species as 
a separate, endangered species, new genetic data now provide 
unequivocal support to distinguish three right whale lineages as 
separate phylogenetic species (Rosenbaum et al., 2000). Rosenbaum et 
al. (2000) concluded that the right whale should be classified as three 
separate species as follows: (1) the North Atlantic right whale (E. 
glacialis), historically ranging in the North Atlantic Ocean from 
latitudes 60[deg] N to 20[deg] N; (2) the North Pacific right whale (E. 
japonica), historically ranging in the North Pacific Ocean from 
latitudes 70[deg] N to 20[deg] N; and (3) the southern right whale (E. 
australis), historically ranging throughout the southern hemisphere's 
oceans.
    Comment 7: A commenter noted that while NMFS concludes that habitat 
loss/degradation is not a factor jeopardizing the continued existence 
of the North Atlantic right whale, the uptake of pollutants may 
adversely impact reproduction. The commenter notes that the result of a 
NMFS workshop on possible causes of reproductive failure in North 
Atlantic right whales (Reeves et al., 2001) identifies chemical 
contaminants as one possible explanation for low observed reproduction 
rates observed in North Atlantic right whales.
    Response: The proposed rule to list the North Atlantic right whale 
as a separate, endangered species (71 FR 77704; December 27, 2006) and 
the Status Review on which it is based identifies chemical contaminants 
as a potential source of habitat degradation that might affect North 
Atlantic right whales. We conclude, however, that there is no evidence 
indicating that there are contaminant-related impacts on the species. 
The existing data suggest that, because large baleen whales feed at a 
lower trophic level compared to the toothed whales (odontocetes), 
bioaccumulation of contaminants would be lower. The proposed rule and 
Status Review note that the manner in which pollutants negatively 
affect animals is complex and difficult to study, particularly in taxa 
such as large whales. The Status Review concludes that more research is 
needed to adequately address this issue.
    Comment 8: One commenter stated that commercial and recreational 
whale watching vessels and multiple scientific research permits should 
not be allowed to adversely affect right whales.
    Response: We continue to work actively with the commercial whale 
watching industry to ensure its compliance with existing regulations 
governing the approach of vessels within proscribed minimal distance 
approach standards. Similarly, we continue to work to educate 
recreational vessel operators about existing regulations we have 
implemented to prevent harassment of marine mammals due to disturbances 
that may be caused by the approach and interactions with recreational 
vessels. Our Office of Law Enforcement works in cooperation with state 
and private organizations to enforce existing regulations.
    We are completing a Draft Environmental Impact Statement (DEIS) 
under the National Environmental Policy Act (NEPA) that reviews the 
process for issuing ESA section 10(a)(1)(A) scientific research permits 
and permit amendments on right whale species in the North Atlantic and 
North Pacific Oceans. The DEIS reviews several alternatives for a more 
``programmatic'' approach that would allow us to better analyze the 
potential collective environmental impact of research and other 
activities on right whales. The DEIS reviews and analyzes the effects 
of all research activities that have been conducted on right whales in 
the proposed action area in the past 5 years and also recommends 
several alternatives that would have specific 'take' targets for the 
next 5 years based on that analysis. This approach is intended to 
reduce takes of right whales due to research activities.
    In addition, we are considering proposing changes to our 
implementing regulations and criteria governing the issuance of permits 
for scientific research and enhancement activities under section 104 of 
the Marine Mammal Protection Act (MMPA)(72 FR 52339; September 13, 
2007).
    Comment 9: One commenter stated that NMFS has failed to adequately 
protect right whales and that to date there has been inadequate action 
undertaken to prevent mortalities and serious injuries affecting the 
species. The commenter notes that it is currently engaged in ongoing 
litigation against NMFS related to ship strikes and entanglement in 
commercial fishing gear.
    Response: The issue raised by the commenter is not germane to this 
action to list North Atlantic and North Pacific right whales a 
separate, endangered species under the ESA. Nonetheless, the proposed 
rule notes and discusses the numerous ongoing and existing regulatory 
and conservation measures in place to reduce the impact of ship strikes 
on the survival and recovery of the species. These efforts involve 
Federal, state, and local agencies, as well as conservation, academic, 
and industry organizations (71 FR 77704; December 27, 2007, at 77709). 
As required by the ESA, we have reviewed the factors listed under 
section 4(a)(1), including the adequacy of existing regulatory 
mechanisms. Based on this review, we have concluded that, while 
regulatory mechanisms have provided increased protection to right 
whales in the North Atlantic, human activities still result in serious 
injuries and mortalities of right whales. The inadequacy of existing 
regulatory mechanisms is a factor that places the North Atlantic right 
whale in danger of extinction throughout its range.
    Based on this determination, we have concluded that, despite 
previous efforts, ship strikes and fishing gear interactions remain a 
serious factor negatively affecting the continued survival and recovery 
of the species. New conservation measures are being developed and 
implemented with the intent of reducing the threat and frequency of 
ship strikes and fishing gear interactions with right whales. These 
measures will continue to be monitored to assess their effectiveness in 
reducing the impact of these factors on the survival of the species.
    Comment 10: A commenter stated that the literature used in the 
proposed rule is dated. The commenter noted that ship

[[Page 12027]]

strike citations are only through 1999, though there are more recent 
data. The commenter cited Kraus et al. (2005), stating that this 
reference contains more recent information on likely rates of detected 
and undetected death from both ship strikes and gear entanglement.
    Response: Deaths from collisions with ships and entanglement in 
fishing gear are significant impediments to the recovery of the 
species. The proposed rule and Status Review correctly note ship 
strikes as one of the greatest known causes of deaths of North Atlantic 
right whales. While the commenter notes that at least one of our 
literature citations related to ship strike mortalities seems dated, 
the proposed rule and Status Review on which it was based provide and 
consider additional current and up-to-date ship strike information. The 
more recent scientific reference cited by the commenter provides 
supportive data that are consistent with the determination that ship 
strikes represent a significant threat to the North Atlantic right 
whale.
    The proposed rule and Status Review conclude that the most 
significant factor placing the North Atlantic right whale in danger of 
extinction remains human-related mortality, most notably, ship 
collisions and entanglement in fishing gear. The available evidence 
strongly suggests that the western population of North Atlantic right 
whale cannot sustain the number of deaths that result from vessel and 
fishing gear interactions. The actual number of deaths is almost 
certainly higher than those documented, as some deaths go undetected or 
unreported, and in many cases it is not possible to determine the cause 
of death from recovered carcasses. The proposed rule and Status Review 
conclude that it may be necessary to enhance existing regulations, or 
promulgate new regulations, to reduce or eliminate the threat of ship 
strikes and fishing gear entanglement. The citation proffered by the 
commenter supports and reinforces our conclusion about the threat posed 
to the species by ship strikes.
    Comment 11: A commenter raised a number of issues related to the 
potential impact of several broad categories of activities undertaken 
by the U.S. Department of Defense (DoD). These comments include the 
following related issues: (1) The proposed rule does not consider the 
risk posed to right whales by DoD activities proposed in and around 
right whales migratory routes in the mid-Atlantic; (2) right whales 
that died concurrently with naval exercises off Florida in the 1990s 
are not discussed; (3) possible impacts from Naval ordnance activities 
near critical habitat in the southeast and northeast are not discussed; 
and (4) the recent decision by the DoD to exempt its activities from 
compliance with the mandates of the MMPA is not discussed.
    Response: Any impact on right whales from DoD activities does not 
change our determination that the North Atlantic right whale should be 
listed as a separate, endangered species. As noted in the proposed rule 
(71 FR 77704; December 27, 2006, at 77714), section 7(a)(2) of the ESA 
requires that all Federal agencies ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of endangered or threatened species or destroy or adversely 
modify designated critical habitat. These agencies must consult with 
NMFS on any action that may affect listed species or critical habitat 
for species under the agency's jurisdiction (including right whales). 
As a result of these consultations, we issue either a letter of 
concurrence that the activity is not likely to adversely affect a 
species or critical habitat, or a Biological Opinion (BO) for 
activities likely to adversely affect a species or critical habitat. A 
BO evaluates whether the activity is likely to jeopardize the continued 
existence of the species or result in the destruction or adverse 
modification of critical habitat and, if so, provides reasonable and 
prudent alternatives to the activity. In those cases where we conclude 
that an action (or implementation of any reasonable and prudent 
alternatives) and the resultant incidental take of listed species is 
not likely to jeopardize the continued existence of listed species, we 
specify reasonable and prudent measures necessary and appropriate to 
minimize effects of the action on the species of concern. We have 
consulted under section 7(a)(2) of the ESA with a number of Federal 
agencies, including the U.S. Navy, on several occasions for a variety 
of activities, including those identified by the commenter.

North Pacific Right Whale (Eubalaena japonica)

Extinction Risk Assessment for the North Pacific Right Whale (Eubalaena 
japonica)

    To date, the largest number of North Pacific right whale 
individuals identified in the eastern Bering Sea is 23 (based on 
genetic sampling), while abundance in the western North Pacific appears 
to number fewer than 1,000 individuals (with a minimum estimate near 
400). Abundance estimates and other vital rate indices in both the 
eastern and western North Pacific are not well established. Where such 
estimates exist, they have very wide confidence limits. We find the 
continued anthropogenic threats and other factors discussed below 
demonstrate a high risk of extinction for the North Pacific right whale 
throughout its range, into the foreseeable future.
    The basic life history parameters and survey data, including 
population abundance, growth rate, age structure, breeding ages, and 
distribution, remain undetermined for North Pacific right whale. While 
these data are necessary to perform quantitative population analyses or 
to develop surrogate models to evaluate the risk of extinction, there 
are a number of factors that put North Pacific right whales at 
considerable risk of extinction. These include, but are not limited to, 
the following: (1) Life history characteristics such as slow growth 
rate, long calving intervals, and longevity; (2) strong depensatory or 
Allee effects; (3) distorted age, size or structure of the population, 
and reduced reproductive success; (4) habitat specificity or site 
fidelity; and (5) habitat sensitivity. Please see the Proposed Rule (71 
FR 77694; December 27, 2006) for a complete discussion of these issues.

Summary of Factors Affecting the North Pacific Right Whale (Eubalaena 
japonica)

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, if a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) the present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) over-utilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) the inadequacy of existing regulatory 
mechanisms; and (5) other natural or manmade factors affecting its 
continued existence. A discussion of each of these considerations is 
presented in the Proposed Rule (71 FR 77694; December 27, 2006). In 
that discussion and analysis, we determined the North Pacific right 
whale was endangered primarily because of the effects of commercial and 
illegal whaling decimated this species and continue to account for its 
status. Please see the Proposed Rule for a complete discussion of this 
analysis.

Conservation Efforts for the North Pacific Right Whale (Eubalaena 
japonica)

    When considering the listing of a species, section 4 (b)(1)(A) of 
the ESA

[[Page 12028]]

requires consideration of any efforts by any State, foreign nation, or 
political subdivision of a State or foreign nation to protect such 
species. The Proposed Rule (71 FR 77694; December 27, 2006) considered 
this, and determined that there are no current conservation efforts in 
place at this time specifically targeted towards the North Pacific 
right whale in the North Pacific Ocean. Please see the Proposed Rule 
for a complete discussion of this issue.

Listing Determination for the North Pacific Right Whale (Eubalaena 
japonica)

    We have reviewed the status of the North Pacific right whale, 
considered the factors set forth in section 4 (a)(1) of the ESA, and 
taken into account any conservation efforts to protect the species. We 
conclude that the North Pacific right whale should be listed as an 
endangered species under the ESA because it is in danger of extinction 
throughout all of its range because of (1) overutilization for 
commercial, recreational, scientific or educational purposes (see above 
for a description of these section 4 (a)(1) factors). This endangered 
determination is also supported by the fact that the factors 
confounding recovery have not been thoroughly identified and may 
continue to persist until more is known.
    We also conclude that, at present, no protective or conservation 
measures are in place that substantially mitigate the factors affecting 
the future viability of this species. Based on the best available 
information, we list the North Pacific right whale under the ESA as an 
endangered species.

North Atlantic Right Whale (Eubalaena glacialis)

Extinction Risk Assessment for the North Atlantic Right Whale 
(Eubalaena glacialis)

    Sighting surveys from the eastern Atlantic Ocean suggest that right 
whales present in this region are rare (Best et al., 2001). Abundance 
estimates for the western North Atlantic stock remained relatively 
stable during the 1990s (1992 - 295 individuals; 1996 263 individuals; 
1998 - 299 individuals). However, no estimate of abundance with an 
associated coefficient of variation has been calculated for this 
population. All population growth models indicated a decline in right 
whale survival in the 1990s relative to the 1980s with female survival, 
in particular, apparently affected (Best et al., 2001; Waring et al., 
2002). An analysis of the age structure of this population suggests 
that it contains a smaller proportion of juvenile whales than expected 
(Hamilton et al., 1998; Best et al., 2001), which may reflect low 
recruitment and/or high juvenile mortality. In addition, it is possible 
that the apparently low reproductive rate is due in part to unstable 
age structure or to decreased reproduction due to aging (i.e., 
reproductive senescence) on the part of some females (Waring et al., 
2004). The size of the western North Atlantic stock is likely reduced 
significantly from historic levels, and this may have resulted in a 
loss of genetic diversity that could affect the ability of the current 
population to successfully reproduce (e.g., decreased conceptions, 
increased abortions, increased neonate mortality). Despite 
uncertainties in abundance and trend estimates, we find the continued 
anthropogenic threats and other factors discussed below demonstrate a 
high risk of extinction for the North Atlantic right whale throughout 
its range, into the foreseeable future.
    As with the North Pacific right whale, there are a number of 
factors that put North Atlantic right whales at considerable risk of 
extinction. These include, but are not limited to, the following: (1) 
Life history characteristics such as slow growth rate, long calving 
intervals, and longevity; (2) strong depensatory or Allee effects; (3) 
distorted age, size, or structure of the population, and reduced 
reproductive success; (4) habitat specificity or site fidelity; and (5) 
habitat sensitivity. Please see the Proposed Rule (71 FR 77694; 
December 27, 2006) for a complete discussion of these issues.

Summary of Factors Affecting the North Atlantic Right Whale (Eubalaena 
glacialis)

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, if a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) the present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) over-utilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) the inadequacy of existing regulatory 
mechanisms; and (5) other natural or manmade factors affecting its 
continued existence. A discussion of each of these considerations is 
presented in the Proposed Rule (71 FR 77704; December 27, 2006). In 
that discussion and analysis, we determined the North Atlantic right 
whale was endangered because of: (1) overutilization for commercial, 
recreational scientific, or educational purposes; (2) the inadequacy of 
existing regulatory mechanisms; and (3) other natural and manmade 
factors affecting it continued existence. Please see the Proposed Rule 
for a complete discussion of this analysis.

Conservation Efforts for the North Atlantic Right Whale (Eubalaena 
glacialis)

    When considering the listing of a species, section 4 (b)(1)(A) of 
the ESA requires consideration of any efforts by any State, foreign 
nation, or political subdivision of a State or foreign nation to 
protect such species. Right whales have been listed under the ESA for 
many years and numerous conservation measures have been implemented in 
order to protect and conserve the species. For a complete discussion of 
these measures, both current and past, see the proposed rule to list 
North Atlantic right whale as a separate, endangered species under the 
ESA (71 FR 77704; December 27, 2006) or the Review of the Status of 
Right Whales in the North Atlantic and North Pacific Oceans.

Listing Determination for the North Atlantic Right Whale (Eubalaena 
glacialis)

    We have concluded, based on an analysis of the best scientific and 
commercial data available, that listing the North Atlantic right whale 
as a separate, endangered species (Eubalaena glacialis) under the ESA 
is warranted. Based on an analysis of the best scientific and 
commercial data available and after taking into consideration current 
population trends and abundance, demographic risk factors affecting the 
continued survival of the species, and ongoing conservation efforts, we 
have determined that the North Atlantic right whale is in danger of 
extinction throughout its range because of: (1) overutilization for 
commercial, recreational scientific, or educational purposes; (2) the 
inadequacy of existing regulatory mechanisms; and (3) other natural and 
manmade factors affecting its continued existence. Because the right 
whale is a long-lived species, extinction may not occur in the 
immediate future, but the possibility of biological extinction in the 
next century is very real. This endangered determination is also 
supported by the fact that the factors confounding recovery have not 
been thoroughly identified and may continue to persist until more is 
known. We also conclude that, at present, no protective or conservation 
measures are in place that substantially mitigate the factors

[[Page 12029]]

affecting the future viability of this species. Based on the best 
available information, we list the North Atlantic right whale under the 
ESA as an endangered species.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction.
    Sections 7(a)(2) of the ESA requires Federal agencies to consult 
with us to ensure that activities they authorize, fund, or conduct are 
not likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with NMFS. Examples of 
Federal actions that may affect the North Pacific and North Atlantic 
right whales include coastal development, oil and gas development, 
seismic exploration, point and non-point source discharge of 
contaminants, contaminated waste disposal, water quality standards, 
activities that involve the release of chemical contaminant and/or 
noise, vessel operations, research, and fishery management practices.
    Sections 10(a)(1)(A) and (B) of the ESA authorize NMFS to grant 
exceptions to the ESA's Section 9 ``take'' prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may be issued 
to entities (Federal and non-federal) for scientific purposes or to 
enhance the propagation or survival of a listed species. The types of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets North 
Pacific and North Atlantic right whales. Under section 10(a)(1)(B), the 
Secretary may permit takings otherwise prohibited by section 9(a)(1)(B) 
if such taking is incidental to, and not the purpose of, the carrying 
out of an otherwise lawful activity.

NMFS Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, we and FWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270) and a policy to identify, to the maximum 
extent possible, those activities that would or would not constitute a 
violation of section 9 of the ESA (59 FR 34272).

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. As noted 
above (see introductory language in Summary of Comments in Response to 
the Proposed Rule to List the North Atlantic Right Whale), we solicited 
the expert opinions and review of six independent, qualified 
specialists, concurrent with the public comment period. The Status 
Review, which was the basis for the proposed rules to list North 
Pacific and North Atlantic right whales as separate, endangered 
species, discussed both the North Pacific and North Atlantic right 
whales.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    The intent of this policy is to increase public awareness of the 
effect of our ESA listing on proposed and ongoing activities within the 
species' range. We identify, to the extent known, specific activities 
that will be considered likely to result in violation of section 9, as 
well as activities that will not be considered likely to result in 
violation. Activities that we believe could result in violation of 
section 9 prohibitions against ``take'' of the North Pacific right 
whale or North Atlantic right whale include, but are not limited to, 
the following: (1) Operating vessels in a manner that results in ship 
strikes or disrupts foraging, resting, or care for young or results in 
noise levels that disrupt foraging, communication, resting, or care for 
young; (2) fishing practices that result in entanglement when lines, 
nets, or other gear are placed in the water column; (3) coastal 
development that adversely affects right whales (e.g., dredging, waste 
treatment); (4) discharging or dumping toxic chemicals or other 
pollutants into areas used by North Pacific or North Atlantic right 
whales; (5) scientific research activities; and (6) land/water use or 
fishing practices that result in reduced availability of prey species 
during periods when North Pacific or North Atlantic right whales are 
present.
    We believe, based on the best available information, the following 
actions will not result in a violation of Section 9: (1) federally 
funded or approved projects for which ESA section 7 consultation has 
been completed, and that are conducted in accordance with any terms and 
conditions we provide in an incidental take statement accompanying a 
biological opinion; and (2) takes of North Pacific or North Atlantic 
right whales that have been authorized by NMFS pursuant to section 10 
of the ESA.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that we might or might not consider 
as constituting a take of North Pacific or North Atlantic right whales.

Classification

National Environmental Policy Act (NEPA)

    ESA listing decisions are exempt from the requirement to prepare an 
environmental assessment or environmental impact statement under the 
NEPA. See NOAA Administrative Order 216-6.03(e)(1) and Pacific Legal 
Foundation v. Andrus, 657 F.2d 825 (6\th\ Cir. 1981). Thus, we have 
determined that the final listing determinations for North Pacific and 
North Atlantic right whales described in this notice are exempt from 
the requirements of the NEPA.

Regulatory Flexibility Act (RFA)

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the RFA are 
not applicable to the listing process.

Regulatory Planning and Review - Executive Order (E.O.) 12866

    This final rule to list North Pacific and North Atlantic right 
whales as two separate, endangered species is exempt from review under 
E. O. 12866.

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.

Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of these 
circumstances is applicable to these final listing

[[Page 12030]]

determinations. In keeping with the intent of the Administration and 
Congress to provide continuing and meaningful dialogue on issues of 
mutual State and Federal interest, we provided the proposed rules to 
the relevant state agencies in each state in which the North Pacific 
right whale and the North Atlantic right whale is believed to occur, 
and these state agencies were invited to comment.

Government-to-Government Relationship With Tribes - E.O. 13175

    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 the listing of the North Pacific and North 
Atlantic right whale will not have tribal implications, nor affect any 
tribal governments or issues. The North Pacific right whale is not 
hunted by Native Americans for traditional use or subsistence purposes.

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 listing the North Pacific right whale and North 
Atlantic right whale as endangered 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; AFDC 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.''
    ESA listing 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 jeopardize the continued existence of the species. 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 ESA listings, the legal 
duty to avoid jeopardy is borne by 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 the listing 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.

Civil Justice Reform

    In accordance with E.O. 12988, the Department of 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.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the NMFS (see ADDRESSES).

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: February 29, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, we amend 50 CFR part 224 as 
follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. Revise Sec.  224.101(b) to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); 
Indus River dolphin (Platanista minor); Mediterranean monk seal 
(Monachus monachus); North Atlantic right whale (Eubalaena glacialis); 
North Pacific right whale (Eubalaena japonica); Southern right whale 
(Eubalaena australis); Saimaa seal (Phoca hispida saimensis); Sei whale 
(Balaenoptera borealis); Sperm whale (Physeter catodon); Western North 
Pacific (Korean) gray whale (Eschrichtius robustus); Steller sea lion, 
western population, (Eumetopias jubatus), which consists of Steller sea 
lions from breeding colonies located west of 144[deg] W. longitude.
* * * * *
[FR Doc. E8-4376 Filed 3-5-08; 8:45 am]
BILLING CODE 3510-22-S