[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Proposed Rules]
[Pages 61690-61691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25214]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100924467-0467-02]
RIN 0648-XZ26


Endangered and Threatened Wildlife and Designating Critical 
Habitat for the Endangered North Atlantic Right Whale

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

ACTION: Notice of 90-day petition finding, and notice of 12-month 
determination.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce our 
90-day finding and 12-month determination on how to proceed with a 
petition to revise critical habitat for the North Atlantic right whale 
(Eubalaena glacialis) pursuant to the Endangered Species Act of 1973, 
as amended (ESA). The petition seeks to revise the existing critical 
habitat designation by expanding the areas designated as critical 
feeding and calving habitat areas for the North Atlantic right whale. 
Additionally, the petition seeks to include a migratory corridor as 
part of the critical habitat designation for the North Atlantic right 
whale. Our 90-day finding is that the petition, in conjunction with the 
information readily available in our files, presents substantial 
scientific information indicating that the requested revision may be 
warranted. Our 12-month determination on how to proceed with the 
petition is that we intend to continue our ongoing rulemaking process 
with the expectation that a proposed critical habitat rule for the 
North Atlantic right whale will be submitted to the Federal Register 
for publication in the second half of 2011.

DATES: The finding announced in this document was made on October 6, 
2010.

ADDRESSES: This finding is available on the Internet at http://www.nero.noaa.gov/nero/regs/com.html. Supporting documentation used to 
prepare this finding is available for public inspection by appointment 
during normal business hours at the NMFS Northeast Regional Office, 55 
Great Republic Drive, Gloucester, MA 01930, by telephone at 978-281-
9328; or by facsimile at 978-281-9394.

FOR FURTHER INFORMATION CONTACT: Mary Colligan, Assistant Regional 
Administrator for Protected Resources, NMFS, Northeast Regional Office; 
by mail (see ADDRESSES): by telephone at 978-281-9328; or facsimile at 
978-281-9394; or Marta Nammack, NMFS, HQ, at 301-713-1401.

SUPPLEMENTARY INFORMATION: On October 1, 2009, we received a petition 
from the Center for Biological Diversity (CBD), Defenders of Wildlife, 
Humane Society of the United States, Ocean Conservancy, and the Whale 
and Dolphin Conservation Society (the Petitioners) to revise the 
designated critical habitat of the North Atlantic right whale (CBD et 
al., 2009). On October 27, 2009, we sent a letter to the petitioners 
acknowledging receipt of the petition.

Background

    Critical habitat is defined under section 3(5)(A) of the ESA as: 
``(i)The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations or protection; and (III) specific areas 
outside the geographical areas occupied by the species at the time it 
is listed, upon a determination that such areas are essential to the 
conservation of the species.''
    Section 4(b)(2) of the ESA requires us to designate and make 
revisions to critical habitat for listed species on the basis of the 
best scientific data available and after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Secretary may exclude any particular area from critical habitat if 
he determines that the benefits of such exclusion outweigh the benefits 
of specifying such area as part of the critical habitat, unless he 
determines that the failure to designate such areas as critical habitat 
will result in the extinction of the species concerned. The ESA 
provides that NMFS may revise critical habitat from time-to-time as 
appropriate (section 4(a)(3)(A)(ii)).
    Section 4(b)(3)(D)(i) of the ESA requires that, to the maximum 
extent practicable, within 90 days after receiving a petition to revise 
critical habitat, the Secretary make a finding as to whether a petition 
presents substantial scientific information indicating that the 
revision may be warranted. Our implementing regulations (50 CFR 424.14) 
define ``substantial information'' as the ``amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted.'' Our regulations provide further that, 
in making a 90-day finding on a petition to revise critical habitat, we 
shall consider whether a petition includes substantial information 
indicating that: (i) Areas contain physical and biological features 
essential to, and that may require special management to provide for 
the conservation of the species; or (ii) areas designated as critical 
habitat do not contain resources essential to, or do not require 
special management to provide for, the conservation of the species. In 
determining whether substantial information exists, we take into 
account several factors, including information submitted with, and 
referenced in, the petition and all other information readily available 
in our files. To the maximum extent practicable, this finding is to be 
made within 90 days of the receipt of the petition, and the finding is 
to be published promptly in the Federal Register. If we find that a 
petition presents substantial information indicating that the revision 
may be warranted, within 12 months after receiving the petition, we are 
required to determine how we intend to proceed with the requested 
revision and promptly publish notice of such intention in the Federal 
Register. The statute says nothing more about options or considerations 
regarding the Secretary's 12-month determination, nor does it prescribe 
any procedures or timelines for acting on petitions beyond the 12-month 
finding. See ESA Section 4(b)(3)(D)(ii).

Listing and Designated Critical Habitat History

    In 1970, right whales, Eubalaena spp. were listed as endangered (35 
FR 18319; December 2, 1970). We consider this listing to have included 
two species of right whales, the northern right whale (Eubalaena 
glacialis) and the southern right whale (Eubalaena australis) (71 FR at 
77706; December 27, 2006). Until the listing was changed in 2008, we 
considered the northern right whale species (Eubalaena glacialis) to 
consist of two populations--one occurring in the North Atlantic Ocean 
and the other in the North Pacific Ocean. In 1994, we

[[Page 61691]]

designated critical habitat for the northern right whale in the North 
Atlantic Ocean (59 FR 28805; June 3, 1994). This critical habitat 
designation includes portions of Cape Cod Bay and Stellwagen Bank, the 
Great South Channel (each off the coast of Massachusetts), and waters 
adjacent to the coasts of Georgia and the east coast of Florida. These 
areas were determined to provide critical feeding, nursery, and calving 
habitat for the North Atlantic population of northern right whales.
    In 2006, we published a comprehensive status review report for the 
northern right whale, which concluded recent genetic data provided 
unequivocal support to distinguish three right whale lineages as 
separate phylogenetic species (Rosenbaum et al., 2000): (1) The North 
Atlantic right whale (Eubalaena glacialis) ranging in the North 
Atlantic Ocean; (2) the North Pacific right whale (Eubalaena japonica) 
ranging in the North Pacific Ocean; and (3) the southern right whale 
(Eubalaena australis), historically ranging throughout the oceans of 
the southern hemisphere. Based on these findings, we published proposed 
and final determinations listing right whales in the North Atlantic and 
North Pacific as separate endangered species under the ESA (71 FR 
77704, December 27, 2006; 73 FR 12024, March 6, 2008). As stated 
previously, these individual species were previously encompassed in the 
broader listing of northern right whales, and the 1994 designation of 
critical habitat for the northern right whale analyzed and included 
only areas in the North Atlantic Ocean. The population analyzed in the 
critical habitat designation was right whales in the North Atlantic 
Ocean. Since the biological basis and analysis for the 1994 critical 
habitat designation was based on the North Atlantic population of right 
whales, we believe that analysis and designation applies to the North 
Atlantic right whales as they were subsequently listed as a separate 
species in 2008. We, therefore, consider the 1994 designation legally 
valid and applicable until it is revised when the ongoing analysis is 
completed through rulemaking.

Analysis of Petition and 90-Day Finding

    As discussed above, petitioners seek to include expanded areas off 
the coast of New England and the Southeast United States, as well as 
new areas within the mid-Atlantic region, as critical habitat for the 
North Atlantic right whale. The petition contains information on the 
natural history, status, and threats to the North Atlantic right whale.
    To support the requested revision, the petition provides summaries 
of several analyses conducted by NMFS as well as additional published 
and unpublished sighting survey data. The first is a 2008 evaluation of 
foraging habitat and of potential overwintering habitat in the Gulf of 
Maine (Pace and Merrick, 2008). The second is a 2007 NOAA Technical 
Memorandum detailing the results of a habitat model that evaluated the 
correlation between selected habitat features and right whale sightings 
in the southeastern U.S. (Garrison, 2007). The petition also discusses 
the NMFS summary of sightings data from 1972 to 2000 provided in the 
2008 ship speed rule (73 FR 60173; October 10, 2008) and Environmental 
Impact Statement for that rule (2008). The petition also provides 
information from two separate analyses of North Atlantic right whale 
sightings data and migration (Firestone et al., 2008; Schick et al., 
2009) to support the request for revising designated critical habitat 
to include a migratory corridor.
    Based on the above information and information readily available in 
our files related to an ongoing rulemaking effort for critical habitat 
for the North Atlantic right whale, and pursuant to criteria specified 
in 50 CFR 424.14(c), we find the petition presents substantial 
scientific information indicating that the requested revision may be 
warranted.

12-Month Determination

    As indicated above, the ESA provides us with broad discretion 
respecting revision of designated critical habitat, allowing us to 
determine when revision is appropriate, and affording us wide latitude 
to determine how to respond to a petition to revise critical habitat 
designations. In this instance, we received the petition while 
conducting an ongoing analysis and evaluation of new information 
available since the 1994 designation that indicates the designation 
should be revised. We are in the process of evaluating the nature and 
extent of physical or biological features that may be considered 
essential to the conservation of the North Atlantic right whale, and 
which may require special management consideration or protections, and 
identifying specific areas on which such features are found. We have 
also begun preparing the impacts analysis required under 4(b)(2) of the 
ESA, which will take into consideration the economic impact, impact on 
national security, and any other relevant impacts of designating any 
particular area as critical habitat. Our analysis will include an 
evaluation of the information provided in the petition. Therefore, it 
is our intention to proceed with the petition by completing our ongoing 
rulemaking. Based on an updated assessment of the time required for 
completing the rulemaking, we expect to submit a proposed rule to the 
Federal Register in the second half of 2011.

Petition 12-Month Determination

    Based on the information above, pursuant to the provisions of the 
ESA respecting revision of critical habitat and petitions for revision, 
we have determined it is timely and appropriate to revise the 1994 
designation of critical habitat for northern right whales by continuing 
our ongoing rulemaking process for designating critical habitat for the 
North Atlantic right whale. When we complete our analysis, we will 
publish a proposed rule and will solicit public comments. Those 
comments will be considered in preparing a final determination. Until 
we are able to revise the critical habitat designation for the North 
Atlantic right whale, the currently designated critical habitat, as 
well as those areas that support North Atlantic right whales but are 
outside of the current critical habitat designation, will continue to 
be subject to conservation actions implemented under section 7(a)(1) of 
the ESA. Federal agency actions are subject to the regulatory 
protections afforded by section 7(a)(2), which requires Federal 
agencies to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of any listed species 
or result in destruction or adverse modification of critical habitat.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Northeast Regional Office 
(see ADDRESSES).

    Authority:  The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: October 1, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-25214 Filed 10-5-10; 8:45 am]
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