[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Proposed Rules]
[Pages 65940-65944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20794]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 230914-0218; RTID 0648-XR122]


Listing Endangered or Threatened Species; 12-Month Finding on a 
Petition To Revise the Critical Habitat Designation for the North 
Pacific Right Whale

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

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, NMFS, announce a 12-month determination on a petition to 
revise the critical habitat designation for the North Pacific right 
whale (Eubalaena japonica) under the Endangered Species Act (ESA). 
Based on our review of the best available information on North Pacific 
right whale habitat use, we intend to revise the critical habitat. This 
finding describes how we intend to proceed, particularly regarding 
analysis and review of the relevant data and information that have 
become available since North Pacific right whale critical habitat was 
designated in 2008.

DATES: The finding announced in this document was made on September 26, 
2023.

ADDRESSES: Copies of the petition, 90-day finding, and list of 
references for this 12-month finding are available online at: https://www.regulations.gov or from the NMFS website (see https://www.fisheries.noaa.gov/action/critical-habitat-north-pacific-right-whales).

FOR FURTHER INFORMATION CONTACT: Jenna Malek, NMFS Alaska Region, 
[email protected] or (907) 271-1332.

SUPPLEMENTARY INFORMATION:

Background

    In April 2008, we issued a final rule designating approximately 
95,325 square kilometers (36,800 square miles) of critical habitat for 
North Pacific right whales in the Gulf of Alaska and the Southeast 
Bering Sea (73 FR 19000, April 8, 2008). On March 10, 2022, NMFS 
received a petition from the Center for Biological Diversity and Save 
the North Pacific Right Whale requesting revision to the critical 
habitat designation for the North Pacific right whale. The requested 
revision triggers a process for agency response as outlined in the ESA 
(16 U.S.C. 1531 et seq.) and explained below.
    The ESA defines critical habitat as: (i) The specific areas within 
the geographical area occupied by the species, at the time it is listed 
. . . 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 (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed . . . upon a determination by the Secretary of Commerce 
(Secretary) that such areas are essential for the conservation of the 
species (16 U.S.C. 1532(5)(A)). Joint NMFS-U.S. Fish and Wildlife 
Service regulations for designating critical habitat at 50 CFR 
424.12(b)(1)(ii) state that the agencies will identify physical and 
biological features essential to the conservation of the species at an 
appropriate level of specificity using the best available

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scientific data. A physical and biological feature may be a single 
habitat characteristic or a more complex combination of 
characteristics, may include characteristics that support ephemeral or 
dynamic habitat conditions, and may also be expressed in terms relating 
to principles of conservation biology, such as patch size, distribution 
distances, and connectivity (50 CFR 424.02). ``Special management 
considerations or protection'' means methods or procedures useful in 
protecting physical or biological features essential to the 
conservation of the species (50 CFR 424.02).
    Section 4(b)(2) of the ESA requires the Secretary, through NMFS, to 
designate, and make revisions to, critical habitat for listed species 
based on 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. We may exclude any particular area from critical 
habitat if we determine that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
unless we determine, based on the best scientific and commercial data 
available, that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned.
    Section 4(a)(3)(A)(ii) of the ESA provides that NMFS may, from 
time-to-time, revise critical habitat as appropriate. Section 
4(b)(3)(D)(i) of the ESA requires, to the maximum extent practicable, 
that within 90 days of receipt of a petition to revise a critical 
habitat designation, NMFS make a finding on whether that petition 
presents substantial scientific information indicating that the 
petitioned revision may be warranted, and to promptly publish such 
finding in the Federal Register. On July 12, 2022 (87 FR 41271), NMFS 
published a 90-day finding that the petition, viewed in the context of 
the information readily available in our files, presented substantial 
information indicating that revising North Pacific right whale critical 
habitat may be warranted and initiated a review of the current critical 
habitat designation. To ensure that our review of critical habitat is 
comprehensive and based on the best available scientific and commercial 
information, we requested scientific and commercial information 
concerning the petitioned action.
    Within 12 months of receiving a petition that presents substantial 
information indicating that a revision of critical habitat may be 
warranted, NMFS is required to determine how we intend to proceed with 
the requested revision and promptly publish notice of our intention in 
the Federal Register (16 U.S.C. 1533(b)(3)(D)(ii)). The statute does 
not further specify any options or requirements regarding this 
determination, nor does it establish a timeline for issuance of any 
proposed rule to revise critical habitat in response to a petition. 
This notice describes the currently designated critical habitat and the 
petition for revision, summarizes comments on the 90-day finding, and 
describes how we intend to proceed with the requested revisions to 
critical habitat for the North Pacific right whale.

Current Critical Habitat Designation

    Right whales in the North Pacific and North Atlantic were 
considered the same species, known as Northern right whales, until the 
late-2000s. North Pacific and North Atlantic right whales were listed 
as two unique species under the ESA in 2008 (73 FR 12024, March 6, 
2008) based on genetic analysis conducted in the early-mid 2000s 
(Rosenbaum et al. 2000, Gaines et al. 2005, Kaliszewska et al. 2005). 
The critical habitat that had been originally designated for the North 
Pacific population in 2006 was finalized for the newly distinguished 
species in 2008 (73 FR 19000, April 8, 2008). The final critical 
habitat designation identified two areas within the area known to be 
occupied by the whales and which contained essential features. The 
first area consists of approximately 3,050 square kilometers (1,175 
square miles) south of Kodiak Island. The second area is approximately 
91,850 square kilometers (35,460 square miles) in the southeastern 
Bering Sea, just north of the Alaska Peninsula and the eastern Aleutian 
Islands.
    The critical habitat designation for North Pacific right whales 
uses the term primary constituent element (PCE) (50 CFR 226.215; 73 FR 
19000, April 8, 2008). In 2016, as part of revisions to critical 
habitat implementing regulations in 50 CFR 424, the term ``PCE'' was 
removed and the regulations maintained the statutory term, ``physical 
or biological features'' (PBFs) (81 FR 7414, February 11, 2016). The 
shift in terminology did not change the approach used by NMFS in 
determining what areas qualify as critical habitat under the ESA. While 
little was known about the PBFs that might be essential for North 
Pacific right whale conservation at the time critical habitat was 
designated, based on known natural history of the whale and its habitat 
needs, the PBFs necessary for conservation were identified as 
concentrations of the copepod species Calanus marshallae, Neocalanus 
cristatus, and N. plumchrus, and the euphausiid species Thysanoessa 
raschii, in areas where right whales are known or thought to feed. In 
addition to the occurrence of large zooplankton, NMFS concluded that it 
is likely that certain physical forcing mechanisms are present in these 
areas and act to concentrate the identified prey species in densities 
that allow for efficient foraging by right whales (73 FR 19000, April 
8, 2008).
    In the final critical habitat designation, NMFS determined that the 
economic benefits of excluding any particular areas within the overall 
area designated as critical habitat did not outweigh the benefits of 
designation, and therefore did not exclude any areas based on economic 
impacts. The final critical habitat designation considered the impacts 
to national security and did not find any national security interests 
or other relevant impacts that warranted the exclusion of any 
particular areas.

Petition To Revise Critical Habitat

    On March 10, 2022, NMFS received a petition from the Center for 
Biological Diversity and Save the North Pacific Right Whale requesting 
revision to the critical habitat designation for the North Pacific 
right whale. The petition lists recent sources of information on North 
Pacific right whale presence and habitat use in and around currently 
designated critical habitat in the northern Gulf of Alaska and the 
southeast Bering Sea. The petitioners proposed that the critical 
habitat be revised to connect the two existing critical habitat areas 
by extending the Bering Sea area boundary west and south to the Fox 
Islands, through Unimak Pass to the edge of the continental slope, and 
east to the Kodiak Island critical habitat area. The petitioners state 
that this revision encompasses ``a key migratory point'' and provides 
``connectivity between two essential foraging grounds'' (Center for 
Biological Diversity and Save the North Pacific Right Whale, 2022, p. 
ii).
    The standard for determining whether a petition includes 
substantial information is whether the information is credible 
scientific or commercial information in support of the petition's 
claims such that a reasonable person conducting an impartial scientific 
review would conclude that the action proposed in the petition may be 
warranted (50 CFR 424.14(i)(1)(i)). Based on the information presented 
and referenced in the petition, as well as all other information 
readily available in our files, and pursuant to the criteria specified 
in 50 CFR 424.14(c) and (e), NMFS found that the petitioners had

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met this standard. NMFS therefore published a 90-day finding stating 
the petitioned action may be warranted and requesting information to 
inform our review of the current critical habitat designation (87 FR 
41271, July 12, 2022).

Summary of Public Comments

    The public comment period announced in the 90-day finding closed on 
September 12, 2022, and all of the comments received can be viewed at 
https://www.regulations.gov by searching for docket number ``NOAA-NMFS-
2022-0050.'' NMFS received 11 comments from a variety of individuals 
and organizations, including researchers, concerned citizens, state and 
federal agencies, and nonprofit organizations. Of these, eight 
supported a revision of North Pacific right whale critical habitat. 
Three of the comments expressed concerns about the lack of data 
supporting the requested revision and the need to consider the economic 
impacts of such an action. Some commenters offered additional 
information, including information on recently funded projects on North 
Pacific right whales, sightings of North Pacific right whales since 
1979, and reports describing organizational sustainability policies 
aimed at protecting marine mammals. The information included in the 
comments was taken into consideration during our review of the 
petitioned action and will be utilized in the process outlined in the 
``How We Intend to Proceed'' section of this document. A summary of the 
substantive comments and information submitted is below. Where 
appropriate, we have combined similar comments.

Quantity and Quality of Currently Available Information

    Comment 1: One commenter expressed that the petition overstates the 
quantity and quality of the information that is available with respect 
to the essential habitat needs of North Pacific right whales. Though 
additional research conducted since the original designation of 
critical habitat in 2008 suggests certain areas within the petitioned 
revision may be important for North Pacific right whales (e.g., Unimak 
Pass), the commenter stated that the data collected are still quite 
limited for making many of the assertions in the petition. For example, 
the commenter referred to the lack of data supporting connecting the 
currently designated critical habitat areas in the Bering Sea and Gulf 
of Alaska. The commenter urged that any revisions NMFS makes to 
critical habitat be based on the best available, albeit limited, data.

Restrictions to Marine Shipping and Commercial Fishing, and Potential 
Economic Impacts

    Comment 2: Several commenters cautioned that any revision to 
critical habitat for North Pacific right whales needs to balance 
potential economic impacts with benefits to the species. Multiple 
comments addressed the implications in the petition that a revision to 
critical habitat for North Pacific right whales would allow NMFS to 
implement regulatory measures and protections that could affect 
commercial shipping and fishing activities, leading to economic 
impacts. Commenters stated that many communities in rural Alaska rely 
upon arrival of goods through commercial shipping and that changes to 
shipping regulations, such as reduced speeds through major 
transportation corridors (e.g., Unimak Pass), would cause financial and 
logistical difficulties in maintaining timely and efficient services to 
Alaskan ports and residents, while having little benefit for North 
Pacific right whales.
    Commenters pointed out that fishing is an economic driver for many 
coastal Alaskan communities. One commenter described how the 
designation of critical habitat for Steller sea lions (58 FR 45269, 
August 27, 1993), and resulting fisheries closures, severely impacted 
commercial fisheries and the economies of communities that rely on this 
industry. The commenter expressed concern about similar impacts 
occurring as the result of a revision to North Pacific right whale 
critical habitat. It was also pointed out that there are multiple 
commercial fisheries of high value in the petitioned area that could 
suffer from substantial economic loss should closures or restrictions 
occur as a result of changes to critical habitat.

Scope of Regulatory Requirements

    Comment 3: One commenter pointed out that the petition cites 50 CFR 
424.12(d) as support for adding all of the habitat between the two 
currently designated areas into a revision of critical habitat, but 
noted that these areas are over 350 mi (563 km) apart and therefore do 
not fit the regulatory criteria of being ``in proximity to one 
another.''
    The same commenter also referenced NMFS' criteria for designating 
critical habitat under 50 CFR 424.12, asserting that the petitioned 
revision to North Pacific right whale critical habitat would be 
different from other NMFS designations due to its very large size. 
Additionally, the commenter stated that the petition provides no 
evidence that the essential PBFs of North Pacific right whale critical 
habitat are present in large portions of the petition's proposed area, 
and that NMFS must adhere to the requirements of the ESA by 
demonstrating that these features are present in any areas included in 
a critical habitat revision.

Adequacy of Existing Regulatory Mechanisms

    Comment 4: Multiple commenters stated that the current regulatory 
mechanisms in place are inadequate to mitigate death and serious injury 
of North Pacific right whales from threats such as vessel strikes and 
entanglement in fishing gear, which are known to be the two biggest 
anthropogenic threats to North Atlantic right whales. Revision of 
critical habitat for North Pacific right whales could allow NMFS to 
require reasonable and prudent measures for avoiding threats from 
vessel strikes, entanglement in fishing gear, oil and chemical spills, 
and exploratory activities associated with the oil and gas industry.
    Comment 5: One commenter conducted their own analysis of vessel 
traffic in the petition's proposed area and currently designated 
critical habitat. That comment contained a figure showing Unimak Pass 
as a bottleneck for vessel traffic, which could overlap with whales 
migrating through this area. Though the commenter acknowledged that 
NMFS could implement conservation measures and protections such as 
restricting ship speeds, they also acknowledged there would be 
challenges to enacting regulations and that proper analysis (i.e., 
economic, national security impacts) must be conducted and notice given 
to potentially affected parties.

New Information on North Pacific Right Whale Habitat and Habitat Use

    New information on habitat use has become available since critical 
habitat was designated for North Pacific right whales in 2008. NMFS has 
been collecting passive acoustic data in the Bering Sea, as well as in 
parts of the northern Gulf of Alaska, that has advanced the scientific 
understanding of North Pacific right whale habitat use, including in 
currently designated critical habitat. Sightings have been reported 
through dedicated research surveys (2007-2010), opportunistic research 
cruises, and opportunistic reports from fishers and local community 
members. While there have been sightings of North Pacific right whales 
in the currently designated critical habitat areas since 2008, numerous 
sightings have occurred outside of the critical habitat in both the

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Gulf of Alaska and the Bering Sea. For example, between 2010 and 2020, 
there were three sightings in the Gulf of Alaska in Shelikof Strait and 
along the Alaska Peninsula (J. Crance, NOAA Alaska Fisheries Science 
Center, personal communication, April 2023), as well as a sighting of 
two right whales feeding just north of Unimak Pass in February 2022 
(NMFS 2022). Additionally, acoustic monitoring with sonobuoys 
(expendable sonar buoys) indicated that right whales were present 
outside the boundaries of critical habitat near Kodiak Island in the 
Gulf of Alaska in 2021, and off St. Lawrence Island in the northern 
Bering Sea in 2018 (Wright et al. 2019). These sightings and acoustic 
detections suggest that North Pacific right whales are utilizing 
habitat outside of the currently designated critical habitat areas. 
Given that the 2008 designation relied on right whale sightings as a 
proxy for the presence of the essential features for determining the 
critical habitat boundaries (73 FR 19000, April 8, 2008), the areas 
where North Pacific right whales have been sighted or detected in the 
last 15 years are likely candidates for critical habitat designation, 
and will be considered further in conjunction with other available 
scientific information.
    The North Pacific has undergone substantial oceanographic shifts 
since 2008, including marine heatwaves in 2013-2016, 2017-2018, and 
2019-2021, that have affected the distribution and abundance of 
zooplankton, multiple species of which are the essential feature NMFS 
identified for the existing North Pacific right whale critical habitat. 
There has also been a trend toward decreasing sea ice extent in the 
Bering Sea, with 2018 having the lowest sea ice extent on record 
(Stabeno and Bell 2019). As discussed below, the extent of sea ice and 
resulting ocean temperature conditions are closely linked to the 
abundance and distribution of zooplankton species that North Pacific 
right whales rely on for prey. Using the best available information, 
all of these factors need to be considered, along with the potential 
impacts of a revised critical habitat designation, to assess any 
revision NMFS will propose for North Pacific right whale critical 
habitat.

How We Intend To Proceed

    Given the acoustic detections and sightings supporting North 
Pacific right whales' use of areas outside of the currently designated 
critical habitat and the recent shifts in the essential features of 
critical habitat (i.e., certain zooplankton species), we intend to 
revise critical habitat. We will proceed by analyzing the available 
acoustic detections, sightings, and relevant habitat data with the 
expectation of developing a proposed rule to revise critical habitat 
for North Pacific right whales. Below, we identify key steps we will 
take to help ensure that, in developing a proposed rule, we rely on the 
best scientific and commercial data available and meet the statutory 
requirements for designating or revising critical habitat.

Step 1: Analyze Acoustic Data Collected in Areas Recommended by the 
Petitioners and Currently Designated as Critical Habitat

    NMFS has been using year-round passive acoustic moorings to collect 
data in the Bering Sea since 2007, and in the western Gulf of Alaska 
starting in 2019. Acoustic data relevant to the revision that can be 
processed and summarized in a timely manner will be made available in a 
report. NMFS anticipates that this report will be one of the best 
sources of information to aid in the decision on how to revise critical 
habitat (Baumgartner et al. 2013, Wright et al. 2018, 2019).

Step 2: Assess Spatial and Temporal Patterns of Prey Species (i.e., 
Copepods and Euphausiids) in Conjunction With Oceanographic Information

    The PBFs for currently designated North Pacific right whale 
critical habitat include prey species (i.e., copepods and euphausiids) 
in areas where right whales are known or believed to forage. In the 
original designation of critical habitat, evidence of right whales 
feeding for prolonged periods in a specific area in spring and summer 
was used as a proxy for the existence of densities of prey suitable for 
foraging whales.
    Oceanographic conditions have shifted since the initial designation 
of critical habitat, with changes occurring in sea ice distribution and 
timing, impacting the availability of zooplankton species that make up 
the PBFs of North Pacific right whale habitat (e.g., Kimmel et al. 
2018). As North Pacific right whales are dependent on certain 
zooplankton as prey, understanding how copepods, specifically C. 
marshallae, Neocalanus spp., and euphausiids (krill) have and are 
responding to environmental cues in the Bering Sea and northern Gulf of 
Alaska is central to assessing how to revise the critical habitat. We 
will utilize available data on spatial and temporal zooplankton trends 
in our analysis outlined in Step 4 below.

Step 3: Analyze Sighting Data for Evidence of Feeding Behavior

    As described in the previous section, we used sightings of feeding 
North Pacific right whales as a proxy for suitable abundances of prey 
in the 2008 critical habitat designation. There have been some 
subsequent sightings for which it can be confirmed by photo or video, 
or through visual confirmation of the reporting party, that North 
Pacific right whales were feeding. We will analyze available sighting 
reports to better understand where right whale feeding activity has 
been documented since critical habitat was designated.

Step 4: Synthesize Available Acoustics Data, Trends in Zooplankton, and 
Sightings Data To Identify Areas That Meet the Definition of Critical 
Habitat

    Available acoustic data, relevant information on zooplankton and 
oceanographic features, and sighting records providing evidence of 
feeding will be evaluated by NMFS together with any other best 
available scientific data. This synthesis will help identify where 
zooplankton prey species and North Pacific right whale foraging are 
likely to occur and provide support for the revision of critical 
habitat, as well as any revisions to the PBFs that may be appropriate. 
These results will then be used to identify areas that meet the 
definition of critical habitat and will be included in the proposed 
rule described in Step 6.

Step 5: Section 4(b)(2) Impacts Analysis

    Section 4(b)(2) of the ESA requires us to use the best scientific 
data available in designating critical habitat. It also requires that 
we consider the economic impact, impact on national security, and any 
other relevant impact of designating any particular area as critical 
habitat. Therefore, we will analyze and consider potential economic, 
national security, and any other relevant impacts prior to proposing 
any revisions to the designated critical habitat. This analysis will 
inform our decision whether to propose the exclusion of any areas that 
fit the definition of critical habitat.

Step 6: Develop Proposed Rule for Public Comment

    Steps 1-5 will inform our determination of what areas qualify as 
critical habitat for North Pacific right whales and thus what revisions 
to propose to the currently designated areas. The underlying science 
will be subject to peer review according to the Office of Management 
and Budget Bulletin for Peer Review, implemented under the Information 
Quality Act (Pub. L. 106-554). We will publish a proposed

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rule in the Federal Register and seek public comment on all aspects of 
the proposed revisions to North Pacific right whale critical habitat 
prior to issuing any final revision.

References Cited

    The complete citations for the references used in this document are 
available (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

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

    Dated: September 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2023-20794 Filed 9-25-23; 8:45 am]
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