[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Proposed Rules]
[Pages 61690-61691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25214]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 100924467-0467-02]
RIN 0648-XZ26
Endangered and Threatened Wildlife and Designating Critical
Habitat for the Endangered North Atlantic Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of 90-day petition finding, and notice of 12-month
determination.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce our
90-day finding and 12-month determination on how to proceed with a
petition to revise critical habitat for the North Atlantic right whale
(Eubalaena glacialis) pursuant to the Endangered Species Act of 1973,
as amended (ESA). The petition seeks to revise the existing critical
habitat designation by expanding the areas designated as critical
feeding and calving habitat areas for the North Atlantic right whale.
Additionally, the petition seeks to include a migratory corridor as
part of the critical habitat designation for the North Atlantic right
whale. Our 90-day finding is that the petition, in conjunction with the
information readily available in our files, presents substantial
scientific information indicating that the requested revision may be
warranted. Our 12-month determination on how to proceed with the
petition is that we intend to continue our ongoing rulemaking process
with the expectation that a proposed critical habitat rule for the
North Atlantic right whale will be submitted to the Federal Register
for publication in the second half of 2011.
DATES: The finding announced in this document was made on October 6,
2010.
ADDRESSES: This finding is available on the Internet at http://www.nero.noaa.gov/nero/regs/com.html. Supporting documentation used to
prepare this finding is available for public inspection by appointment
during normal business hours at the NMFS Northeast Regional Office, 55
Great Republic Drive, Gloucester, MA 01930, by telephone at 978-281-
9328; or by facsimile at 978-281-9394.
FOR FURTHER INFORMATION CONTACT: Mary Colligan, Assistant Regional
Administrator for Protected Resources, NMFS, Northeast Regional Office;
by mail (see ADDRESSES): by telephone at 978-281-9328; or facsimile at
978-281-9394; or Marta Nammack, NMFS, HQ, at 301-713-1401.
SUPPLEMENTARY INFORMATION: On October 1, 2009, we received a petition
from the Center for Biological Diversity (CBD), Defenders of Wildlife,
Humane Society of the United States, Ocean Conservancy, and the Whale
and Dolphin Conservation Society (the Petitioners) to revise the
designated critical habitat of the North Atlantic right whale (CBD et
al., 2009). On October 27, 2009, we sent a letter to the petitioners
acknowledging receipt of the petition.
Background
Critical habitat is defined under section 3(5)(A) of the ESA as:
``(i)The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection; and (III) specific areas
outside the geographical areas occupied by the species at the time it
is listed, upon a determination that such areas are essential to the
conservation of the species.''
Section 4(b)(2) of the ESA requires us to designate and make
revisions to critical habitat for listed species on the basis of the
best scientific data available and after taking into consideration the
economic impact, the impact on national security, and any other
relevant impact, of specifying any particular area as critical habitat.
The Secretary may exclude any particular area from critical habitat if
he determines that the benefits of such exclusion outweigh the benefits
of specifying such area as part of the critical habitat, unless he
determines that the failure to designate such areas as critical habitat
will result in the extinction of the species concerned. The ESA
provides that NMFS may revise critical habitat from time-to-time as
appropriate (section 4(a)(3)(A)(ii)).
Section 4(b)(3)(D)(i) of the ESA requires that, to the maximum
extent practicable, within 90 days after receiving a petition to revise
critical habitat, the Secretary make a finding as to whether a petition
presents substantial scientific information indicating that the
revision may be warranted. Our implementing regulations (50 CFR 424.14)
define ``substantial information'' as the ``amount of information that
would lead a reasonable person to believe that the measure proposed in
the petition may be warranted.'' Our regulations provide further that,
in making a 90-day finding on a petition to revise critical habitat, we
shall consider whether a petition includes substantial information
indicating that: (i) Areas contain physical and biological features
essential to, and that may require special management to provide for
the conservation of the species; or (ii) areas designated as critical
habitat do not contain resources essential to, or do not require
special management to provide for, the conservation of the species. In
determining whether substantial information exists, we take into
account several factors, including information submitted with, and
referenced in, the petition and all other information readily available
in our files. To the maximum extent practicable, this finding is to be
made within 90 days of the receipt of the petition, and the finding is
to be published promptly in the Federal Register. If we find that a
petition presents substantial information indicating that the revision
may be warranted, within 12 months after receiving the petition, we are
required to determine how we intend to proceed with the requested
revision and promptly publish notice of such intention in the Federal
Register. The statute says nothing more about options or considerations
regarding the Secretary's 12-month determination, nor does it prescribe
any procedures or timelines for acting on petitions beyond the 12-month
finding. See ESA Section 4(b)(3)(D)(ii).
Listing and Designated Critical Habitat History
In 1970, right whales, Eubalaena spp. were listed as endangered (35
FR 18319; December 2, 1970). We consider this listing to have included
two species of right whales, the northern right whale (Eubalaena
glacialis) and the southern right whale (Eubalaena australis) (71 FR at
77706; December 27, 2006). Until the listing was changed in 2008, we
considered the northern right whale species (Eubalaena glacialis) to
consist of two populations--one occurring in the North Atlantic Ocean
and the other in the North Pacific Ocean. In 1994, we
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designated critical habitat for the northern right whale in the North
Atlantic Ocean (59 FR 28805; June 3, 1994). This critical habitat
designation includes portions of Cape Cod Bay and Stellwagen Bank, the
Great South Channel (each off the coast of Massachusetts), and waters
adjacent to the coasts of Georgia and the east coast of Florida. These
areas were determined to provide critical feeding, nursery, and calving
habitat for the North Atlantic population of northern right whales.
In 2006, we published a comprehensive status review report for the
northern right whale, which concluded recent genetic data provided
unequivocal support to distinguish three right whale lineages as
separate phylogenetic species (Rosenbaum et al., 2000): (1) The North
Atlantic right whale (Eubalaena glacialis) ranging in the North
Atlantic Ocean; (2) the North Pacific right whale (Eubalaena japonica)
ranging in the North Pacific Ocean; and (3) the southern right whale
(Eubalaena australis), historically ranging throughout the oceans of
the southern hemisphere. Based on these findings, we published proposed
and final determinations listing right whales in the North Atlantic and
North Pacific as separate endangered species under the ESA (71 FR
77704, December 27, 2006; 73 FR 12024, March 6, 2008). As stated
previously, these individual species were previously encompassed in the
broader listing of northern right whales, and the 1994 designation of
critical habitat for the northern right whale analyzed and included
only areas in the North Atlantic Ocean. The population analyzed in the
critical habitat designation was right whales in the North Atlantic
Ocean. Since the biological basis and analysis for the 1994 critical
habitat designation was based on the North Atlantic population of right
whales, we believe that analysis and designation applies to the North
Atlantic right whales as they were subsequently listed as a separate
species in 2008. We, therefore, consider the 1994 designation legally
valid and applicable until it is revised when the ongoing analysis is
completed through rulemaking.
Analysis of Petition and 90-Day Finding
As discussed above, petitioners seek to include expanded areas off
the coast of New England and the Southeast United States, as well as
new areas within the mid-Atlantic region, as critical habitat for the
North Atlantic right whale. The petition contains information on the
natural history, status, and threats to the North Atlantic right whale.
To support the requested revision, the petition provides summaries
of several analyses conducted by NMFS as well as additional published
and unpublished sighting survey data. The first is a 2008 evaluation of
foraging habitat and of potential overwintering habitat in the Gulf of
Maine (Pace and Merrick, 2008). The second is a 2007 NOAA Technical
Memorandum detailing the results of a habitat model that evaluated the
correlation between selected habitat features and right whale sightings
in the southeastern U.S. (Garrison, 2007). The petition also discusses
the NMFS summary of sightings data from 1972 to 2000 provided in the
2008 ship speed rule (73 FR 60173; October 10, 2008) and Environmental
Impact Statement for that rule (2008). The petition also provides
information from two separate analyses of North Atlantic right whale
sightings data and migration (Firestone et al., 2008; Schick et al.,
2009) to support the request for revising designated critical habitat
to include a migratory corridor.
Based on the above information and information readily available in
our files related to an ongoing rulemaking effort for critical habitat
for the North Atlantic right whale, and pursuant to criteria specified
in 50 CFR 424.14(c), we find the petition presents substantial
scientific information indicating that the requested revision may be
warranted.
12-Month Determination
As indicated above, the ESA provides us with broad discretion
respecting revision of designated critical habitat, allowing us to
determine when revision is appropriate, and affording us wide latitude
to determine how to respond to a petition to revise critical habitat
designations. In this instance, we received the petition while
conducting an ongoing analysis and evaluation of new information
available since the 1994 designation that indicates the designation
should be revised. We are in the process of evaluating the nature and
extent of physical or biological features that may be considered
essential to the conservation of the North Atlantic right whale, and
which may require special management consideration or protections, and
identifying specific areas on which such features are found. We have
also begun preparing the impacts analysis required under 4(b)(2) of the
ESA, which will take into consideration the economic impact, impact on
national security, and any other relevant impacts of designating any
particular area as critical habitat. Our analysis will include an
evaluation of the information provided in the petition. Therefore, it
is our intention to proceed with the petition by completing our ongoing
rulemaking. Based on an updated assessment of the time required for
completing the rulemaking, we expect to submit a proposed rule to the
Federal Register in the second half of 2011.
Petition 12-Month Determination
Based on the information above, pursuant to the provisions of the
ESA respecting revision of critical habitat and petitions for revision,
we have determined it is timely and appropriate to revise the 1994
designation of critical habitat for northern right whales by continuing
our ongoing rulemaking process for designating critical habitat for the
North Atlantic right whale. When we complete our analysis, we will
publish a proposed rule and will solicit public comments. Those
comments will be considered in preparing a final determination. Until
we are able to revise the critical habitat designation for the North
Atlantic right whale, the currently designated critical habitat, as
well as those areas that support North Atlantic right whales but are
outside of the current critical habitat designation, will continue to
be subject to conservation actions implemented under section 7(a)(1) of
the ESA. Federal agency actions are subject to the regulatory
protections afforded by section 7(a)(2), which requires Federal
agencies to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of any listed species
or result in destruction or adverse modification of critical habitat.
References Cited
A complete list of all references is available upon request from
the Protected Resources Division of the NMFS Northeast Regional Office
(see ADDRESSES).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: October 1, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 2010-25214 Filed 10-5-10; 8:45 am]
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