[Federal Register Volume 73, Number 68 (Tuesday, April 8, 2008)]
[Rules and Regulations]
[Pages 19000-19014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7233]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 070717354-8251-02]
RIN 0648-AV73
Endangered and Threatened Species; Designation of Critical
Habitat for North Pacific Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: We, NMFS, designate critical habitat for the North Pacific
right whale in this rulemaking. The North Pacific right whale was
recently listed as a separate, endangered species, and because this was
a newly listed entity, we were required to designate critical habitat
for it.
DATES: This rule is effective on May 8, 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 duringnormal business hours at the
NMFS Alaska Region, 709 W. 9th Street, Juneau, AK 21688.
FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS Alaska Region (907)
271-5006; Kaja Brix, NMFS, Alaska Region, (907) 586-7235; or Marta
Nammack, (301) 713-1401, ext. 180. The final rule, references, and
other materials relating to this determination can be found on our
website at http://www.fakr.noaa.gov/.
SUPPLEMENTARY INFORMATION:
Background
On December 27, 2006, we published a proposed rule (71 FR 77694) to
list the North Pacific right whale (Eubalaena japonica) as an
endangered species pursuant to the Endangered Species Act (ESA) (16
U.S.C. 1531 et seq.), and we listed this species as endangered on March
6, 2008 (73 FR 12024). On October 29, 2007, we published a proposed
rule (72 FR 61089) to designate critical habitat for the North Pacific
right whale. We proposed the same two areas that we had previously
designated as critical habitat for the northern right whale in the
North Pacific Ocean (71 FR 38277, July 6, 2006). We now designate these
same areas as critical habitat for the North Pacific right whale. A
description of, and the basis for, the designation follows.
Critical Habitat Designations Under the ESA
Section 3 of 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 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 to be
essential for the conservation of the species.'' Section 3 of the ESA
(16 U.S.C. 1532(3)) also defines the terms ``conserve,''
``conserving,'' and ``conservation'' to mean ``to use, and the use of,
all methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this chapter are no longer necessary.''
In determining what areas meet the definition of critical habitat,
50 CFR 424.12(b) requires that we ``consider those physical or
biological features that are essential to the conservation of a given
species including space for individual and population growth and for
normal behavior; food, water, air, light, minerals, or other
nutritional or physiological requirements; cover or shelter; sites for
breeding, reproduction, and rearing of offspring; and habitats that are
protected from disturbance or are representative of the historical
geographical and ecological distribution of a species.'' The
regulations refine our task by directing us to ``focus on the principal
biological or physical
[[Page 19001]]
constituent elements . . . that are essential to the conservation of
the species,'' and specify that the ``known primary constituent
elements shall be listed with the critical habitat description.'' The
regulations identify primary constituent elements (PCEs) as including,
but not limited to: ``roost sites, nesting grounds, spawning sites,
feeding sites, seasonal wetland or dryland, water quality or quantity,
host species or plant pollinator, geological formation, vegetation
type, tide, and specific soil types.'' An area within the geographic
area occupied by the species must contain one or more PCEs to be
eligible for designation as critical habitat; an area upon which no PCE
is found may not be designated in the hope it will acquire one or more
PCEs in the future.
Section 4 of the ESA requires that, before designating critical
habitat, the Secretary consider economic impacts, impacts on national
security, and other relevant impacts of specifying any particular area
as critical habitat. The Secretary may exclude any area from critical
habitat if the benefits of exclusion outweigh the benefits of
inclusion, unless excluding an area from critical habitat will result
in the extinction of the species concerned. Once critical habitat is
designated, section 7(a)(2) of the ESA requires that each Federal
agency, in consultation with and with the assistance of NMFS, ensure
that any action authorized, funded, or carried out by such agency is
not likely to result in the destruction or adverse modification of
critical habitat.
Geographical Area Occupied by the Species
The ESA defines critical habitat (in part) as areas within the
geographical area occupied by the species at the time it was listed
under the ESA. Prior to the onset of commercial whaling in 1835, right
whales were widely distributed across the North Pacific (Scarff, 1986;
Clapham et al., 2004; Shelden et al., 2005). By 1900 they were scarce
throughout their range. Japan and the USSR did not sign a League of
Nations agreement in 1935 to protect right whales, so they continued
right whaling until 1949, when the newly created International Whaling
Commission endorsed the ban. After this, 23 North Pacific right whales
were legally killed by Japan and the USSR under Article VIII of the
International Convention for the Regulation of Whaling (1946), which
permits the taking of whales for scientific research purposes. However,
it is now known that the USSR illegally caught many right whales in the
North Pacific (Doroshenko, 2000; Brownell et al., 2001; Ivashchenko,
2007). By 1973, the North Pacific right whale had been severely reduced
by commercial whaling. Sighting data from this remnant population are
too sparse to identify the range of these animals in 1973. However, no
reason exists to suspect that the right whales that remain alive today
inhabit a substantially different range than right whales alive during
the time of the Soviet catches; indeed, given the longevity of this
species, it is likely that some of the individuals who survived that
whaling episode remain alive now. Consequently, recent habitat use is
unlikely to be different today.
Both the SEBS and the western GOA (shelf and slope waters south of
Kodiak) have been the focus of many sightings (as well as the illegal
Soviet catches) in recent decades. In general, the majority of North
Pacific right whale sightings (historically and in recent times) have
occurred from about 40[deg] N to 60[deg] N latitude (lat.). There are
historical records from north of 60[deg] N lat., but these are rare and
are likely to have been misidentified bowhead whales. North Pacific
right whales have on rare occasions been recorded off California and
Mexico, as well as off Hawaii. However, as noted by Brownell et al.
(2001), there is no evidence that either Hawaii or the west coast of
North America from Washington State to Baja California were ever
important habitats for right whales. Given the amount of whaling effort
as well as the human population density in these regions, it is highly
unlikely that substantial concentrations of right whales would have
passed unnoticed. Furthermore, no archaeological evidence exists from
the U.S. west coast suggesting that right whales were the target of
local native hunts. Consequently, the few records from this region are
considered to represent vagrants.
For the foregoing reasons, we determine that the geographical area
occupied by the North Pacific right whale at the time of ESA listing
extends over a broad area of the North Pacific Ocean, between 120[deg]
E and 123[deg] W longitude and 40[deg] N and 60[deg] N latitude, as
shown in Figure 1.
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Unoccupied Areas
ESA section 3(5)(A)(ii) further defines critical habitat to include
``specific areas outside the geographical area occupied'' if the areas
are determined by the Secretary to be ``essential for the conservation
of the species.'' 50 CFR 424.12(e) specifies that NMFS ``shall
designate as critical habitat areas outside the geographical area
presently occupied by a species only when a designation limited to its
present range would be inadequate to ensure the conservation of the
species.'' We are not designating any specific areas not occupied at
the time of listing because insufficient information exists to identify
any such areas that are essential to the conservation of the species.
Future revisions to the critical habitat of the North Pacific right
whale may consider new information which might lead to designation of
areas outside the occupied area of these whales.
Primary Constituent Elements (PCEs)
NMFS scientists considered PCEs for right whales in the North
Pacific during a workshop held during July 2005. Unfortunately, many
data gaps exist in our knowledge of the ecology and biology of these
whales, and very little is known about the PCEs that might be necessary
for their conservation. The life-requisites for such factors as
temperatures, depths, substrates, are unknown, or may be highly
variable. One certainty is the metabolic necessity of prey species to
support feeding by right whales. Examination of harvested whales in the
North Pacific and limited plankton tows near feeding right whales in
recent years show these whales feed on several species of zooplankton.
Several species of large copepods and other zooplankton constitute the
primary prey of the North Pacific right whale. Therefore, we have
determined that the PCEs for the North Pacific right whale are species
of large zooplankton in areas where right whale are known or believed
to feed. In particular, these are the copepods Calanus marshallae,
Neocalanus cristatus, and N. plumchrus, and a euphausiid, Thysanoessa
raschii, whose very large size, high lipid content, and occurrence in
the region likely makes it a preferred prey item for right whales (J.
Napp, pers. comm.). A description of the critical habitat (below)
establishes the presence of these PCEs within the designated areas. In
addition to the physical presence of these PCEs within the critical
habitat, it is likely that certain physical forcing mechanisms are
present which act to concentrate these prey species in densities which
allow for efficient foraging by right whales. There may in fact be
critical or triggering densities below which right whale feeding does
not occur. Such densities are not presently described for North Pacific
right whales in the North Pacific, but have been documented in the
Atlantic. Accordingly, the critical habitat encompasses areas in which
the physical and biological oceanography combines to promote high
productivity and aggregation of large copepods into patches of
sufficient density for right whales. The PCEs, essential for the
conservation of the North Pacific right whale, and these physical
forcing or concentrating mechanisms, contribute to the habitat value of
the areas designated.
Special Management Considerations or Protection
An occupied area may be designated as critical habitat if it
contains physical or biological features that ``may require special
management considerations or protection.'' 50 CFR 424.02(j) defines
``special management considerations or protection'' to mean ``any
methods or procedures useful in protecting physical and biological
features of the environment for the conservation of listed species.''
We considered whether the copepods and other zooplankton which have
been identified as the PCEs for the North Pacific right whale may
require special management considerations or protection. The designated
critical habitat areas support extensive and multi-species commercial
fisheries for pollock, flatfish, cod, various crabs, and other
resources (but not salmon, as salmon fisheries in Alaska are restricted
to State waters, except in the case of trolling which is permitted in
Federal waters but only immediately adjacent to the Southeast Alaska
coastline; these areas are not included in the designated critical
habitat areas). We believe the identified PCEs would not be harmed by
these federally managed fisheries. However, plankton communities and
species are vulnerable to physical and chemical alterations within the
water column due to both natural processes, as well as pollution from
various potential sources, including oil spills and discharges from oil
and gas drilling and production. Because of the vulnerabilities to
pollution sources, these PCEs may require special management or
protection through such measures as conditioning Federal permits or
authorizations through special operational restraints, mitigation
measures, or technological changes. The 2005 wreck of the M/V Selendang
Ayu near Unalaska caused the release of approximately 321,000 gallons
(1,215,117 litres) of fuel oil and 15,000 gallons (56,781 litres) of
diesel into the Bering Sea. That incident has precipitated
recommendations for regulations which would improve navigational safety
in the area for the protection of the marine environment. While such
measures are not targeted towards protecting copepods or zooplankton
per se, they would act to conserve these PCEs.
PCEs in the Critical Habitat and Related Physical Processes
The current abundance of North Pacific right whales is considered
to be very low in relation to historical numbers or their carrying
capacity, which is not determined. The existence of a persistent
concentration of North Pacific right whales found within the SEBS since
1996 is somewhat extraordinary in that it may represent a significant
portion of the remaining population. These areas of concentration where
right whales feed are characterized by certain physical and biological
features which include nutrients, physical oceanographic processes,
certain species of zooplankton, and long photoperiod due to the high
latitude. These feeding areas, supporting a significant assemblage of
the remaining North Pacific right whales, are critical in terms of
their conservation value. We have been able to substantiate this
conclusion with observations of feeding behavior, direct sampling of
plankton near feeding right whales, or records of stomach contents of
dead whales. These conclusions underlie the designation of the critical
habitat areas shown in Figure 2 and described below. Two areas are
designated: an area of the SEBS and an area south of Kodiak Island in
the GOA.
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Shelden et al. (2005) reviewed prey and habitat characteristics of
North Pacific right whales. They noted that habitat selection is often
associated with features that influence abundance and availability of a
predator's prey. Right whales in the North Pacific are known to prey
upon a variety of zooplankton species. Availability of these
zooplankton greatly influences the distribution of right whales on
their feeding grounds in the SEBS and GOA. Right whales require
zooplankton patches of very high density, and zooplankton are typically
small and distributed over space and time (Mayo and Marx, 1990).
Typical zooplankton sampling is too broad-scale in nature to detect
patches of these densities, and directed studies employing fine-scale
sampling cued by the presence of feeding right whales are the only
means of doing this (Mayo and Marx, 1990). Accordingly, there may be no
obvious correlation between the abundance and distribution of prey
copepods and euphausiids (as measured by broad-scale oceanographic
sampling) and the distribution of right whales (M. Baumgartner, in
prep.). In light of this, we must rely upon the whales themselves to
indicate the location of important feeding areas in the North Pacific.
Aggregations of right whales in high latitudes can be used with high
confidence as an indicator of the presence of suitable concentrations
of prey, and thus of feeding behavior by the whales. Right whales feed
daily during spring and summer, and studies in the North Atlantic have
consistently found an association between concentrations of whales and
feeding behavior, with dense copepod patches recorded by oceanographic
sampling around such groups of whales (Mayo and Marx, 1990; Baumgartner
et al., 2003a, 2003b). In the North Atlantic, an analysis of sighting
data by NMFS indicated that a density of four or more right whales per
100 nm\2\ was a reliable indicator of a persistent feeding aggregation
(Clapham and Pace, 2001), and this had been used for Dynamic Area
Management fisheries closures to reduce the risk of right whales
becoming entangled in fishing gear. While this metric is a reliable
indicator of the presence of feeding aggregations in the North
Atlantic, it is not necessarily the only metric suitable for
application in the North Pacific; the much smaller population of right
whales in the eastern North Pacific Ocean typically results in
sightings of single animals or pairs. Unlike with larger groups, such
small numbers sometimes indicate transient passage through an area and
thus cannot be unequivocally linked with feeding behavior. However,
while sporadic sightings of right whales in such small numbers
generally would not be considered a reliable indication of a feeding
area, consistent sightings of right whales - even of single individuals
and pairs - in a specific area in spring and summer over a long period
of time is sufficient indication that the area is a feeding area
containing suitable concentrations of copepods.
Therefore, in the absence of data which describe the densities, as
well as presence, of the PCEs themselves, sightings of right whales is
used here as a proxy for the existence of suitably dense copepod and
euphausiid patches and thus to identify the areas proposed herein for
designation as critical habitat. Figure 2 depicts the designated
critical habitat and the best available sightings data.
Gulf of Alaska
We designate critical habitat in the GOA (Figure 3), described as
an area delineated by a series of straight lines connecting the
following coordinates in the order listed: 57[deg] 03' N/153[deg] 00'
W, 57[deg] 18' N/151[deg] 30' W, 57[deg] 00' N/151[deg] 30' W, 56[deg]
45' N/153[deg] 00' W, and returning to 57[deg] 03' N/153 00' W. The
area described by these boundaries lies completely within the waters of
the United States and its Exclusive Economic Zone (EEZ) and outside of
waters of the State of Alaska. State waters extend seaward for 3
nautical miles from the shoreline; very few sightings occurred within
State waters. The best available sightings data on right whales in this
area totaled 5 out of 14 encounters in the GOA.
Southeastern Bering Sea
We also designate critical habitat in the Bering Sea (Figure 4),
described as an area delineated by a series of straight lines
connecting the following coordinates in the order listed: 58[deg] 00'
N/168[deg] 00' W, 58[deg] 00' N/163[deg] 00' W, 56[deg] 30' N/161[deg]
45' W, 55[deg] 00' N/166[deg] 00' W, 56[deg] 00' N/168[deg] 00' W and
returning to 58[deg] 00' N/168[deg] 00prime; W. The area described by
these boundaries lies completely within the waters of the United States
and its EEZ and outside of waters of the State of Alaska. State waters
extend seaward for 3 nautical miles from the shoreline. Because very
few sightings occurred within 3 nautical miles of shore, State waters
are not included in the proposed critical habitat. The best available
information on right whale encounters occurring totaled 182 within this
area, out of 184 encounters north of the Aleutian Islands.
Physical Processes and the Existence of PCEs Within the Critical
Habitat
Southeastern Bering Sea Slope Waters
The Bering Sea slope is a very productive zone, sometimes referred
to as the ``Greenbelt'', where annual primary production can exceed
that on the adjacent shelf and basin by 60 percent and 270 percent,
respectively (Springer et al., 1996). Physical processes at the shelf
edge, such as intensive tidal mixing, eddies, and up-canyon flow bring
nutrients to the surface, thereby supporting enhanced productivity and
elevated biomass of phytoplankton, zooplankton, and fish. Western North
Pacific right whales have been observed in association with oceanic
frontal zones that produce eddies southeast of Hokkaido Island, Japan,
and southeast of Cape Patience (Mys Terpeniya), Sakhalin Island, in the
Okhotsk Sea (Omura et al., 1969). Whether the Bering Slope Current, or
eddies shed from it, support production or entrain right whale prey is
unknown.
From August to October in 1955 and 1956, Soviet scientists observed
aggregations of Calanus spp. between the Pribilof Islands and the
Aleutian Islands (around 170[deg] W long.) that were identified as C.
finmarchicus, though, as mentioned above, were probably C. marshallae
(Klumov, 1963). Flint et al. (2002) also report high concentrations of
C. marshallae at frontal zones near the Pribilof Islands, with
especially high biomass noted for the subthermohaline layer. This
oceanographic front effectively separates slope and outer shelf
Neocalanus spp. from the inshore middle shelf community of C.
marshallae (Vidal and Smith, 1986). Right whales were found on both
sides of this frontal zone (that coincides with the shelf break at 170
m) during both the 19\th\ and 20\th\ centuries. This is similar to the
habitat described by Baumgartner et al. (2003a) for right whales
feeding in the North Atlantic. Six right whales that were caught under
scientific permit in late July-early August 1962-63 in Bering Sea slope
waters had exclusively consumed N. cristatus (Omura et al., 1969).
Although oceanic species such as Neocalanus spp. usually enter diapause
and migrate to depths greater than 200 m by late summer in the slope
waters of the Bering Sea (Vidal and Smith, 1986), right whales may
still be able to utilize these resources by targeting regions where the
bottom mixed layer forces the zooplankton into shallower, discrete
layers (e.g., Baumgartner et al., 2003a).
[[Page 19006]]
Southeastern Bering Sea Middle-Shelf Waters
The SEBS shelf has been the focus of intense oceanographic study
since the late 1970s (e.g., Schumacher et al., 1979; Coachman, 1986;
Napp et al., 2000; Hunt et al., 2002a; Hunt et al., 2002b), largely due
to the considerable commercial fishing effort in the area (National
Research Council, 1996). Coachman (1986) described the now well-
established hydrographic domains of the inner, middle, and outer shelf,
separated by a front or transition zone at roughly the 50 m (inner
front) and 100 m (outer front) isobaths. During the 1990s, research
focused on these domains demonstrated dynamic advection of nutrient-
rich Bering slope water onto the shelf in both winter and summer via
eddies, meanders, and up-canyon flow (Schumacher and Stabeno, 1998;
Stabeno and Hunt, 2002). These intrusions of nutrient-rich water,
physical factors related to water column stratification, and long
summer day length results in a very productive food web over the SEBS
shelf (e.g. Livingston et al.,1999; Napp et al., 2002; Coyle and
Pinchuk, 2002; Schumacher et al., 2003). Specifically, copepod species
upon which right whales feed (e.g., C. marshallae, Pseudocalanus spp.,
and Neocalanus spp.) are among the most abundant of the zooplankton
sampled over the middle shelf (Cooney and Coyle, 1982; Smith and Vidal,
1986). Small, dense patches (to >500 mg per cubic meter) of euphausiids
(T. raschii, T. inermis), potential right whale prey, have also been
reported for waters near the SEBS inner front (Coyle and Pinchuk,
2002).
Zooplankton sampled near right whales seen in the SEBS in July 1997
included C. marshallae, P. newmani, and Acartia longiremis (Tynan,
1998). C. marshallae was the dominant copepod found in these samples as
well as samples collected near right whales in the same region in 1999
(Tynan et al., 2001). C. marshallae is the only ``large'' calanoid
species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith
and Vidal, 1986). Concentrations of copepods were significantly higher
in 1994-98 than in 1980-81 by at least an order of magnitude (Napp et
al., 2002). Tynan et al. (2001) suggest that this increased production
may explain the presence of right whales in middle shelf waters.
However, at least three right whales were observed in 1985 in the same
location as the middle shelf sightings reported in the late 1990s
(Goddard and Rugh, 1998).
Gulf of Alaska
The central GOA is dominated by the Alaskan gyre, a cyclonic
feature that is demarcated to the south by the eastward flowing North
Pacific Current and to the north by the Alaska Stream and Alaska
Coastal Current (ACC), which flow westward near the shelf break. The
bottom topography of this region is rugged and includes seamounts,
ridges, and submarine canyons along with the abyssal plain. Strong
semi-diurnal tides and current flow generate numerous eddies and
meanders (Okkonen et al., 2001) that influence the distribution of
zooplankton.
Copepods are the dominant taxa of mesozooplankton found in the GOA
and are patchily distributed across a wide variety of water depths. In
northern GOA shelf waters, the late winter and spring zooplankton is
dominated by calanoid copepods (Neocalanus spp.), with a production
peak in May, a cycle that appears resistant to environmental
variability associated with El Nino Southern Oscillation (ENSO) (Coyle
and Pinchuk, 2003). In oceanic waters (50[deg] N lat., 145[deg] W
long.), N. plumchrus dominate (Miller and Nielsen, 1988; Miller and
Clemons, 1988) and have demonstrated dramatic shifts in the timing of
annual peak biomass from early May to late July (Mackas et al., 1998).
From late summer through autumn, N. plumchrus migrate to deep water
ranging from 200 m to 2000 m depending on location within the GOA
(Mackas et al., 1998). The three right whales caught under scientific
permit on August 22, 1961, south of Kodiak Island had all consumed N.
plumchrus (Omura et al., 1969), potentially by targeting areas where
adult copepods remained above 200 m (e.g. Baumgartner et al., 2003a).
The area designated as critical habitat within the SEBS presents
several similarities to that designated within the GOA. Both areas are
influenced by large eddies, submarine canyons, or frontal zones which
enhance nutrient exchange and act to concentrate prey. These areas lie
adjacent to major ocean currents (the ACC and the Aleutian ocean
passes) and are characterized by relatively low circulation and water
movement (P. Stabeno, pers. com.). Both critical habitat areas contain
the designated PCEs and support feeding by North Pacific right whales.
Right Whale Sightings as a Proxy for Locating the PCEs
As noted above, consistent sightings of right whales - even of
single individuals and pairs - in a specific area in spring and summer
over an extended period of time can be used with high confidence as an
indicator of the presence of the PCEs in a feeding area. We have used
recent sighting records to make this determination because these
records are a more reliable indicator of current distribution of
feeding whales than historical sightings, especially given that most of
the latter relate to animals that were removed from the population by
whaling and are thus no longer extant. Of the 184 recent right whale
sightings reported north of the Aleutian Islands, 182 occurred within
the specific area designated as critical habitat in the Bering Sea.
Since 1996, right whales have been consistently sighted in this area
over a period of years during the spring and summer feeding seasons.
For example, NMFS surveys alone recorded between two and four sightings
in 1996 (Goddard and Rugh, 1998), 13 sightings in 2000 (Le Duc et al.,
2004) and over 23 sightings in 2004. Single right whales as well as
pairs and aggregations of up to five animals were sighted during this
period, and all sightings were within 100 nm\2\ of one another. Based
on consideration of these factors, we conclude that the right whale
sightings in the specific area in the Bering Sea described in Figure 4
are a suitable proxy for the presence of the PCEs in this area.
Recent sightings of right whales are fewer in number in the GOA
than in the Bering Sea. However, three individuals were sighted
recently in the critical habitat area designated in the GOA. These
sightings occurred at a time when right whales typically feed in the
North Pacific Ocean. In July 1998, a single right whale exhibiting
behavior consistent with feeding activity was observed among a group of
about eight humpback whales (Waite et al., 2003). In August 2004, a
NMFS researcher observed a single right whale among a group of
humpbacks. In August 2005, a NMFS researcher reported yet another
sighting of a right whale within 250 to 500 meters of groups of
humpback and fin whales. Acoustic monitoring of the area conducted in
summer 2000 recorded what appeared to be right whale calls in the area
on September 6 (Waite et al., 2003). Compared to the Bering Sea
sightings, the GOA right whale sightings do not provide as strong an
indication of feeding right whales. However, individual right whales
have been directly observed in 1998, 2004, and 2005 and detected
acoustically in 2000 during the spring and summer feeding seasons in
the specific area in the GOA described in Figure 3. It is also
instructive that one of these animals was exhibiting feeding behavior
at the
[[Page 19007]]
time it was observed. Based on consideration of these factors, we
conclude that the right whale sightings in the specific area in the GOA
described in Figure 3 are a reasonably reliable proxy for the presence
of the PCEs in this area.
Response to Comments
Comment 1: A commenter supports our February 2002 finding that
critical habitat cannot be designated for the (North Pacific right
whale) because the essential biological requirements of the population
were not sufficiently understood.
Response: In October 2000, we were petitioned to revise the
critical habitat for the northern right whale by designating an
additional area in the North Pacific Ocean. In February 2002, we
announced our decision that critical habitat could not be designated at
that time because the essential biological and habitat requirements of
the population were not sufficiently understood. However, in June 2005,
a Federal court found this reasoning invalid and remanded the matter to
us for further action (Center for Biological Diversity v. Evans, Civ.
No. 04-4496, N.D. Cal. June 14, 2005). In compliance with that order,
we subsequently revised the northern right whale's critical habitat by
designating areas within the Gulf of Alaska (GOA) and Bering Sea as
critical habitat under the ESA. We believe that relating the presence
of feeding concentrations of right whales in the North Pacific Ocean to
habitat attributes was, and remains, an appropriate basis upon which to
designate critical habitat for the North Pacific right whale.
Comment 2: There is no supporting evidence that: (1) concentrations
of sightings are not due to sampling area; (2) concentration of Primary
Constituent Elements are distinctly different in the designated areas;
or (3) the population of the North Pacific right whale shows any
specific habitat preference.
Response: Survey effort directed toward right whales has not been
evenly distributed throughout their range. This is largely due to their
very small population size, very large range, and limits on research
funding. The area in the southeastern Bering Sea (SEBS) where right
whales have often been observed since 1996 has received relatively
greater survey effort. However, we are required to base critical
habitat designations using the best scientific data available,
including survey effort, and we have done so here.
We believe the described PCE (zooplankton species) concentrations
are distinctly different in the designated areas. Our scientists
concluded that aggregations of right whales in high latitudes can be
used with high confidence as an indicator of the presence of suitable
concentrations of prey, and thus of feeding behavior by the whales.
Shelden et al. (2005) reviewed prey and habitat characteristics of
northern right whales in the North Pacific and noted that habitat
selection is often associated with features that influence abundance
and availability of the whales' prey. Right whales in the North Pacific
are known to prey upon a variety of zooplankton species. Availability
of these zooplankton greatly influences the distribution of these
whales on their feeding grounds in the SEBS and GOA. Because few data
exist to describe the concentrations of these primary constituent
elements between areas, we must rely upon the whales themselves to
indicate the location of such concentrations, which are important
feeding areas in the North Pacific.
Regarding habitat preference, right whales feed daily during spring
and summer, and studies in the North Atlantic have consistently found
an association between concentrations of whales and feeding behavior,
with dense zooplankton patches recorded by oceanographic sampling
around such groups of whales. In the North Pacific, we believe the
persistent presence of right whales within a certain area during summer
months strongly indicates the presence of zooplankton concentrations in
right whale feeding grounds.
Comment 3: The proposed critical habitat designations fail to
provide for recovery, so the designation should include unoccupied
right whale habitat.
Response: Section 3(5)(A)(i) of the ESA requires us to identify
specific areas within the geographical area occupied by the species
that contain physical or biological features that may require special
management considerations or protection. Section 3(5)(A)(ii) requires
that specific areas outside the geographical area occupied by the
species only fall within the definition of critical habitat if the
Secretary determines that the area is essential for conservation. Our
regulations further provide that we will designate unoccupied areas
``only when a designation limited to [the species'] present range would
be inadequate to ensure the conservation of the species (50 CFR
424.12(e)).''
We found no information that would support designation of critical
habitat in unoccupied areas. While historic data include sightings and
other records of North Pacific right whales outside of the geographic
area occupied by the species at the time it was listed, we do not have
information allowing us to determine that the specific areas designated
as critical habitat within the geographical area occupied by the
species are inadequate for conservation, and that other unoccupied
areas are essential for conservation.
Comment 4: The extent of the areas proposed for designation as
critical habitat in the North Pacific Ocean is not sufficient to
provide for the recovery of the northern right whale. NMFS should also
designate as critical habitat those areas which were historically used
by right whales in the North Pacific. NMFS should provide critical
habitat designations that are over-inclusive, rather than under-
inclusive.
Response: Our ability to identify critical habitat as defined in
the ESA is limited by the level of information available to describe
the biology and ecology of the North Pacific right whale. We have
identified two specific areas within which are found biological
features essential to the conservation of the species and which may
require special management considerations or protection. The available
scientific information on this species limits our ability to identify
any additional specific areas meeting the definition of critical
habitat. We anticipate modifications to the present designation may
occur as more scientific information becomes available. For example, as
we gather more information, the designation may be revised to
encompass: (1) additional areas in which zooplankton concentrations are
found to occur; or (2) the physical or biological features that
comprise suitable calving grounds.
Comment 5: The precautionary principle requires NMFS to designate
other areas with similar features or habitat conditions as critical
habitat.
Response: It is unclear what ``similar features'' the commenter
refers to here. We have used recent sighting records of feeding right
whales as a proxy for the location of PCEs necessary to describe
critical habitat. The ESA does not permit designation of specific areas
containing features ``similar'' to the PCEs identified. The PCEs must
be found in designated areas. Research on northern right whales
indicates that these animals are able to locate prey in densities
needed to meet their metabolic needs. Recent research indicates that
right whales are feeding specialists that require exceptionally high
densities of prey. The physical and biological parameters necessary to
produce these ``lenses'' of highly concentrated zooplankton in the
North Pacific are not
[[Page 19008]]
understood. While other areas in the North Pacific may contain features
that provide for the production of zooplankton and that may act as
forcing mechanisms for the concentration of these zooplankton, we
currently lack information as to whether the features in those areas
actually concentrate the prey into aggregations sufficiently dense to
encourage and sustain feeding by right whales. Similarly, we do not
have sufficient information to characterize the areas designated as
critical habitat based on other physical or biological characteristics.
Lacking such information, we rely on the presence of zooplankton, as
evidenced by recent observations of feeding right whales, to identify
critical habitat for the North Pacific right whale.
Comment 6: The primary constituent elements should be revised to
include those habitat components that are essential for the primary
biological needs of feeding, reproducing, resting, and migrating, and
include all marine waters, along with associated marine aquatic flora
and fauna in the water column, and the underlying marine benthic
community.
Response: As stated above, existing scientific information is not
sufficient to describe the essential habitat components for many of the
biological needs identified in the comment. For instance, the calving
areas of the North Pacific right whales remain unknown, making it
impossible to describe the essential features of such habitat. As noted
in the previous response, we do not have sufficient information at this
time to characterize the areas designated as critical habitat based on
other physical or biological characteristics.
Comment 7: The proposed critical habitat designation is
inconsistent in basing designation on sighting effort, which is not
consistent over the range of the North Pacific right whale. NMFS also
fails to include historical data which show concentrations of North
Pacific right whales in other areas that can be assumed to have
important habitat attributes. The designation should be expanded.
Specifically, this should include the SEBS, including the southern
portion of the shelf break and the area of high prey and whale
concentration to the west of the shelf break.
Response: The ESA defines critical habitat, in part, as those areas
occupied by the species at the time of listing on which the identified
PCEs are found. We have insufficient basis to conclude that the PCEs
are found in other areas, or occurred in the past century. The current
sighting data are the best available data that can be used to determine
that the PCEs are found on the designated areas. We considered the
utility of historic data in identifying and designating critical
habitat. Many records of the commercial whalers are general in nature
and do not provide specific locations, information on the numbers of
whales present at the time of the sighting or harvest, or descriptions
of their behavior (e.g., whether the sightings indicated feeding
behavior). Therefore, we concluded that the more recent sightings data
from the time of listing represented the best evidence of the current
presence of the PCEs in specific feeding areas.
Comment 8: NMFS data demonstrate right whales are found through
Unimak Pass and eastward to Kodiak Island. These waters also contain
important features or serve important biological needs and should be
added to the areas proposed for designation.
Response: We have few data describing the migratory movements of
right whales in the North Pacific Ocean. While it is likely right
whales move through major ocean passes, we cannot determine at this
time which passes right whales use. We will continue to collect
information on the right whale's habitat use to identify migration
corridors and determine whether PCEs are found within these areas.
Comment 9: More research is needed to describe PCEs for the North
Pacific right whale.
Response: The NMFS National Marine Mammal Laboratory and other NOAA
components are now conducting research on the North Pacific right whale
and its habitat. We understand that there is a need to better identify
and describe the habitat for these whales, along with their basic
biology. We will continue to conduct and advocate research in this
area.
Activities That May Be Affected by This Designation
Section 4(b)(8) of the ESA requires that we evaluate briefly and
describe, in any proposed or final regulation to designate critical
habitat, those activities involving a Federal action that may adversely
modify such habitat or that may be affected by such designation. A wide
variety of activities may affect critical habitat and, when carried
out, funded, or authorized by a Federal agency, require that an ESA
section 7 consultation be conducted. Such activities include, but are
not limited to, oil and gas leasing and development on the Outer
Continental Shelf (OCS), Federal management of high seas fisheries in
territorial waters and the EEZ of the United States, dredge and fill,
mining, pollutant discharges, other activities authorized or conducted
by the Army Corps of Engineers and the Environmental Protection Agency
(EPA), and military training exercises and other functions of the U.S.
Armed Forces.
This designation of critical habitat will provide these agencies,
private entities, and the public with clear notification of the
designation of critical habitat for North Pacific right whales and the
boundaries of the habitat. This designation will also assist these
agencies and others in evaluating the potential effects of their
activities on critical habitat and in determining if section 7
consultation with NMFS is required.
Exclusion Process
Section 4 (b)(2) of the ESA states that critical habitat shall be
designated after taking into consideration its economic impact, the
impact on national security, and any other relevant impact. Any
particular area may be excluded from critical habitat designation if
the benefits of exclusion are found to outweigh those of inclusion,
unless such exclusion would result in the extinction of the species. We
will apply the statutory provisions of the ESA, including those in
section 3 that define ``critical habitat'' and ``conservation'' to
determine whether a proposed action might result in the destruction or
adverse modification of critical habitat.
Based upon the best available information, it appears there exists
some probability of oil or gas exploration activities within (or
immediately adjacent to) the North Pacific right whale critical habitat
within the next 10 years. There are no commercial production facilities
in operation, currently under development, nor permitted for future
development, within these critical habitat areas. As only exploratory
activities are expected within the next 10 years, there is little
expectation that Federal actions in the oil and gas sector will have
the potential to destroy or adversely modify the critical habitat
within the analytical time horizon.
While we expect to consult annually on fishery related proposed
actions that may affect the critical habitat, none of these actions
would be expected to destroy or adversely modify the critical habitat;
thus, none would be expected to result in imposition of costs on
commercial fishery participants. Because fisheries do not target or
affect the PCEs for the North Pacific right whale, no fishing or
related activity (e.g., at-sea processing, transiting) would be
expected to be restricted or
[[Page 19009]]
otherwise altered as a result of critical habitat.
This action is anticipated to result in consultations with EPA on
seafood processing waste discharges; with the DoD on military
``underway training'' activities it authorizes; and with the U.S. Coast
Guard (USCG) and MMS on approvals of oil spill response plans, among
others. It is unlikely that these activities will destroy or adversely
modify the critical habitat; thus, no mandatory modifications would be
required. It follows that no costs, beyond the small costs attributable
to inter-agency (occasionally intra-agency) consultation, result from
this designation. As explained in the impacts analysis prepared for
this action, some larger benefit accrues to society as a result of
designation, including the educational value derived from
identification and designation of the critical habitat areas within
which the PCEs are found. Thus we believe that the benefits of
exclusion are outweighed by the benefits of inclusion. Our analysis
(see ADDRESSES) did not find any specific areas which merit such
exclusion in consideration of economics, nor have we determined that
national security interests or other relevant impacts warrant the
exclusion of any specific areas from this designation.
The results of our 4(b)(2) analysis are further summarized in the
CLASSIFICATION section below.
Classification
National Environmental Policy Act (NEPA)
We have determined that we need not prepare environmental analyses
for critical habitat designations made pursuant to the ESA. See Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S.
1042 (1996).
Regulatory Flexibility Act (RFA)
Critical habitat designations are subject to the RFA. Under the RFA
(5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is
required to publish a notice of proposed rulemaking, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
We have prepared an initial regulatory flexibility analysis (IRFA) for
the proposed rule and a final regulatory flexibility analysis (FRFA)
for this final rule. The FRFA incorporates the IRFA and any comments
received on the economic impacts of the rule. These documents are
available upon request (see ADDRESSES). A summary of the analysis
follows.
The small entities that may be directly regulated by this action
are those that seek formal approval (e.g., a permit) from, or are
otherwise authorized by, a Federal agency to undertake an action or
activity that ``may affect'' critical habitat for the North Pacific
right whale. Submission of such a request for a Federal agency's
approval, from a small entity, would require that agency (i.e., the '
action agency') to consult with NMFS (i.e., the 'consulting agency').
Consultations vary from simple to complex, depending on the
specific facts of each action or activity for which application is
made. Attributable costs are directly proportionate to complexity. In
the majority of instances projected to take place under the proposed
critical habitat designation, these costs are expected to accrue solely
to the Federal agencies that are party to the consultation. In only
formal consultations might it be expected that a private sector
applicant could potentially incur costs directly attributable to the
consultation process itself. Furthermore, if destruction or adverse
modification of critical habitat is found at the conclusion of formal
consultation, the applicant must implement modifications to avoid such
effects. These modifications could result in adverse economic impacts.
An examination of the Federal agencies with management,
enforcement, or other regulatory authority over activities or actions
within, or immediately adjacent to, the critical habitat area indicated
that potential action agencies may include: the EPA, USCG, DoD, MMS,
and NMFS. Activities or actions with a nexus to these Federal agencies
which are expected to require consultation include: EPA permitting of
seafood processing waste discharges at-sea; USCG and MMS oil spill
response plan approval, as well as emergency oil spill response; DoD
authorization of military training activities in the Bering Sea and
Aleutian Islands (BSAI) and GOA; MMS leasing activity, oil and gas
exploration and production permitting, and NMFS fishery management
actions in the BSAI and GOA.
A 10-year ``post-designation'' analytical horizon was adopted,
during which time we may reasonably expect to consult an estimated 27
times on critical habitat-related actions with one or more of the
action agencies identified above. The majority of the consultations are
expected to be ``informal,'' projected to represent approximately 52
percent of the total. The more complex and costly ``formal''
consultations are projected to account for perhaps 37 percent, while
the simplest and least costly ``pre-consultations'' are expected to
account for 11 percent of the total. These figures reflect the best
estimates information and experience can presently provide.
On the basis of the underlying biological, oceanographic, and
ecological science used to identify the PCEs that define critical
habitat for the North Pacific right whale, as well as the foregoing
assumptions, empirical data, historical information, and accumulated
experience regarding human activity in the BSAI and GOA, it is believed
that only OCS oil and gas exploration and production has the potential,
albeit relatively small, to ``destroy or adversely modify'' right whale
critical habitat.
As previously indicated, MMS has authority over OCS oil and gas
permitting. An examination of published information from the MMS Alaska
Region reveals that three MMS OCS planning areas overlap some portion
of the right whale critical habitat areas. Further, MMS sources
indicate that in only one of these has there been any exploratory well
drilling (i.e., St. George Basin). Ten exploratory wells were
permitted, all of which were completed in 1984 and 1985 (with no
subsequent associated exploration activity). It appears that there has
been no recent OCS oil and gas activity in and adjacent to the areas
designated as critical habitat. MMS reported no planned or scheduled
OCS lease sales for these areas through 2007 (the end of the last 5-
year Lease-Sale planning cycle). However, both seismic acquisition and
leasing took place in the adjacent North Aleutian Basin Planning Area
through Sale 92 held in 1988. Leases were held until 1995, when a
``buy-back'' settlement was reached between leaseholders and the
Federal government. There are no current OCS lease holdings in the St.
George Basin or North Aleutian Basin Planning Areas. In January 2007,
the President modified the Presidential withdrawal for the North
Aleutian Basin, allowing the Secretary of the Interior to offer this
OCS planning area for leasing during the next 5-year OCS leasing
program (2007- 2012). The 2007-2012 program now includes a lease sale
in the North Aleutian Basin to be held in 2011. MMS may also offer a
sale in the North Aleutian Basin which would be confined to a small
portion of the planning area previously offered during lease sale 92 in
1988.
[[Page 19010]]
When MMS records were consulted as to the identity of the entities
that previously held lease rights to the wells in the St. George Basin,
six businesses were listed for the ten permitted exploratory wells.
These include: SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3
wells); EXXON Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged
with EXXON); GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well).
MMS records also indicate that the following nine companies submitted
bids, jointly or individually, on blocks in the North Aleutian Basin
under lease sale 92 held in 1988: Chevron, Unocal, Conoco, Murphy,
Odeco, Amoco, Shell, Mobil, and Pennzoil. These data were last updated,
according to the MMS website, on March 17, 2005. It would appear that
none of these entities could reasonably be characterized as ``small
entities'' for RFA purposes. All are widely recognized multi-national
corporations and employ more than ``500 full-time, part-time,
temporary, or any other category of employees, in all of their
affiliated operations worldwide'' (the criterion specified by SBA for
assessing entity size for this sector).
The preferred alternative was compared to the mandatory ``No
Action'' (or status quo) alternative. In addition, a third alternative
was analyzed and its expected benefits and costs contrasted with the
status quo and preferred alternatives. That alternative was based upon
the proposed areas of the Bering Sea identified in an October 2000
petition that requested critical habitat be designated for the northern
right whale within the North Pacific Ocean.
The action does not impose new recordkeeping or reporting
requirements on small entities. No comments were received on the IRFA
identifying analytical deficiencies or objecting to the reported RFAA
interpretations and conclusions, or on the economic impacts of the
rule.
Regulatory Planning and Review - Executive Order (E.O.) 12866
This rule to designate critical habitat for the North Pacific right
whale has been determined to be significant for purposes of Executive
Order (E.O.) 12866. As part of our exclusion process under section
4(b)(2) of the ESA, the economic benefits and costs of the proposed
critical habitat designations are described in our economic report.
Data are not available to express all costs and benefits of designation
in monetary terms. Indeed, many costs and benefits accrue outside of
traditional markets and, therefore, are not typically associated with a
monetary measure (e.g., subsistence activities). While these benefits
and costs cannot be either monetized nor quantified, they are
nonetheless important to a full evaluation and understanding of the
designation. These benefits and costs have been fully characterized in
qualitative terms. Application of a benefit/cost framework is fully
consistent with E.O. 12866.
This rule designates as critical habitat for the North Pacific
right whale the same critical habitat that was designated for the
northern right whale in the eastern North Pacific Ocean in 2006 (71 FR
38227; July 6, 2006). The analysis provided largely mirrors the
analysis provided in the 2006 rulemaking, updated as necessary to
account for new information, and does not result in any substantive
changes to the analytical conclusions.
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 this critical habitat designation. 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 is
believed to occur, and these state agencies were invited to comment. We
have requested information from, and will coordinate development of,
the critical habitat designation with appropriate State resource
agencies in Alaska. The designation may have some benefit to State and
local resource agencies in that the areas essential to the conservation
of the species are more clearly defined, and the PCEs of the habitat
necessary to the survival of the North Pacific right whale are
specifically identified.
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 designation of critical habitat for the
North Pacific right whale in the North Pacific Ocean will not have
tribal implications, nor affect any tribal governments or issues. None
of the designated critical habitat includes tribal lands, affects
tribal trust resources, or affects the exercise of tribal rights.
Military Lands
The Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each
military installation that includes land and water suitable for the
conservation and management of natural resources to complete, by
November 17, 2001, an Integrated Natural Resource Management Plan. The
National Defense Authorization Act for Fiscal Year 2004 (Public Law No.
108-136) amended the ESA to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(I) of the ESA (16
U.S.C. 1533(a)(3)(B)(I)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.'' We have determined no military lands would be impacted
by this proposed rule.
[[Page 19011]]
Executive Order 13211.
On May 18, 2001, the President issued an Executive Order (E.O.) on
regulations that significantly affect energy supply, distribution, and
use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking any action that promulgates or is expected to
lead to the promulgation of a final rule or regulation that (1) is a
significant regulatory action under E.O. 12866 and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy. We have considered the potential impacts of this action on
the supply, distribution, or use of energy, and we find the designation
of critical habitat will not have impacts that exceed the thresholds
identified above.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we make the
following findings:
This final rule designating critical habitat for the North Pacific
right whale 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.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the ESA, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat. While non-Federal entities who receive Federal funding,
assistance, permits or otherwise require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legal duty to avoid destruction or
adverse modification of critical habitat 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 critical habitat designation
shift the costs of the large entitlement programs listed above to State
governments. 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. Thus, a Small Government Agency Plan is not required.
Takings
In accordance with E.O. 12630, this final rule does not have
significant takings implications. Under E.O. 12630, ``Actions
undertaken by governmental officials that result in a physical invasion
or occupancy of private property, and regulations imposed on private
property that substantially affect its value or use, may constitute a
taking of property'' [emphasis added]. The critical habitat designation
can not be expected to substantially affect the value or use of
property. A takings implication assessment is not required.
The designation of critical habitat confers the ESA section 7
protection against ``the destruction or adverse modification of
[critical] habitat.'' The designation of critical habitat in this rule
affects only Federal agency actions, and will not increase or decrease
the current restrictions on private property concerning take of right
whales. Private lands do not exist within or near the designated
critical habitat and therefore would not be affected by this action.
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. We are designating critical habitat in accordance with the
provisions of the ESA. This final rule uses standard property
descriptions and identifies the PCEs within the designated areas to
assist the public in understanding habitat needs of North Pacific right
whale.
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 226
Endangered and threatened species.
Dated: April 1, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, we amend part 226, title 50 of
the Code of Regulations as set forth below:
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation of part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. In Sec. 226.203, the section heading is revised, the introductory
text is removed, paragraph (a) heading is removed, paragraph (b) is
removed in its entirety, and paragraphs (a)(1), (a)(2), and (a)(3) are
redesignated as paragraphs (a), (b), and (c), respectively, to read as
follows:
Sec. 226.203 Critical habitat for northern right whales.
* * * * *
0
3. Section 226.215 is added to read as follows:
Sec. 226.215 Critical habitat for the North Pacific Right Whale
(Eubalaena japonica).
(a) Primary Constituent Elements. The primary constituent elements
of the North Pacific right whale are the copepods Calanus marshallae,
Neocalanus cristatus, and N. plumchris, and the euphausiid Thysanoessa
raschii, in areas of the North Pacific Ocean in which North Pacific
right whales are known or believed to feed, as described in paragraphs
(b) and (c) of this section.
(b) Bering Sea. An area described by a series of straight lines
connecting the following coordinates in the order listed:
58[deg] 00' N/168[deg] 00' W
58[deg] 00' N/163[deg] 00' W
[[Page 19012]]
56[deg] 30' N/161[deg] 45' W
55[deg] 00' N/166[deg] 00' W
56[deg] 00' N/168[deg] 00' W
58 [deg]00' N/168[deg] 00' W.
(c) Gulf of Alaska. An area described by a series of straight lines
connecting the following coordinates in the order listed:
57[deg] 03' N/153[deg] 00' W
57[deg] 18' N/151[deg] 30' W
57[deg] 00' N/ 151[deg] 30' W
56[deg] 45' N/153[deg] 00' W
57[deg] 03' N/153[deg] 00' W.
(d) Maps of critical habitat for the North Pacific right whale
follow:
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[FR Doc. E8-7233 Filed 4-7-08; 8:45 am]
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