Endangered and Threatened Species; Revision of Critical Habitat for the Northern Right Whale in the Pacific Ocean, 66332-66346 [05-21861]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 70, Number 211 (Wednesday, November 2, 2005)]
[Proposed Rules]
[Pages 66332-66346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21861]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 051018271-5271-01; I.D. 101405C]
RIN 0648-AT84


Endangered and Threatened Species; Revision of Critical Habitat 
for the Northern Right Whale in the Pacific Ocean

AGENCY: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Proposed rule; request for comment.

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SUMMARY: National Marine Fisheries Service (NMFS) proposes to revise 
the current critical habitat for the northern right whale (Eubalaena 
glacialis) by designating additional areas within the North Pacific 
Ocean. Two specific areas proposed for designation, one in the Gulf of 
Alaska and another in the Bering Sea, comprise approximately 95,200 
square kilometers (36,750 square miles) of marine habitat. Based upon 
the impacts analysis prepared for this action, NMFS has concluded that 
the benefits of exclusion of any area from the proposed critical 
habitat designation do not outweigh the benefits of inclusion. 
Consequently, no exclusions are proposed.
    NMFS must consider the broad effects of this designation 
(revision). NMFS solicits comments from the public on all aspects of 
the proposal, including information on the economic, national security, 
and other relevant impacts of the proposed designation. NMFS may revise 
this proposal and solicit additional comments prior to final 
designation to address new information received during the comment 
period.

DATES: Comments on this proposed rule must be received by close of 
business on January 3, 2006. Requests for public hearings must be made 
in writing by December 19, 2005.

ADDRESSES: Send comments to Kaja Brix, Assistant Regional 
Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: 
Lori Durall. Comments may be submitted by:
     E-mail: 0648-AT84-NPRWCH@noaa.gov. Include in the subject 
line the following document identifier: Right Whale Critical Habitat 
PR. E-mail comments, with or without attachments, are limited to 5 
megabytes.
     Webform at the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
     Mail: P. O Box 21668, Juneau, AK 99802
     Hand delivery to the Federal Building : 709 W. 9\th\ 
Street, Juneau, Alaska.
     Fax: (907) 586-7012
    The proposed rule, maps, stock assessments, and other materials 
relating to this proposal can be found on the NMFS Alaska Region 
website https://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Brad Smith, (907) 271-3023, or Marta 
Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION: The Endangered Species Act of 1973, as 
amended, [16 U.S.C. 1531] (ESA) imposes requirements upon Federal 
agencies regarding endangered or threatened species of fish, wildlife, 
or plants, and habitats of such species that have been designated as 
critical. The U.S. Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS) share responsibility for administering 
the ESA. Endangered or threatened species under the authority of NMFS 
are found in 50 CFR 222.102 and 224.101, and include the northern right 
whale.

Background

    The northern right whale is a member of the family Balaenidae. It 
is found in the Pacific and Atlantic Oceans and is closely related to 
the right whales that inhabit the Southern Hemisphere. Right whales are 
large baleen whales which grow to lengths and weights exceeding 18 
meters and 100 tons, respectively. They are filter feeders whose prey 
consists exclusively of zooplankton (notably copepods; see below). 
Right whales attain sexual maturity at an average age of 8 to 10 years, 
and females produce a single calf at intervals of 3 to 5 years (Kraus 
et al., 2001). Their life expectancy is unclear, but they are known to 
reach 70 years in some cases (Hamilton et al., 1998; Kenney, 2002).

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    Right whales are generally migratory, with at least a portion of 
the population moving between summer feeding grounds in temperate or 
high latitudes and winter calving areas in warmer waters (Kraus et al., 
1986; Clapham et al., 2004). In the North Pacific, the feeding range is 
known to include the Gulf of Alaska, the Aleutian Islands, the Bering 
Sea and the Sea of Okhotsk. Although a general northward movement is 
evident in spring and summer, it is unclear whether the entire 
population undertakes a predictable seasonal migration, and the 
location of calving grounds remains completely unknown (Scarff, 1986; 
Scarff, 1991; Brownell et al., 2001; Clapham et al., 2004; Shelden et 
al., 2005). Further details of occurrence and distribution are provided 
below.
    In the North Pacific, whaling for right whales began in the Gulf of 
Alaska (known to whalers as the ``Northwest Ground'') in 1835 (Webb, 
1988). Right whales were extensively hunted in the western North 
Pacific in the latter half of the 19\th\ century, and by 1900 were 
scarce throughout their range. Right whales were protected worldwide in 
1935 through a League of Nations agreement. However, because neither 
Japan nor the former USSR signed this agreement, both nations were 
theoretically free to continue right whaling until 1949, when the newly 
created International Whaling Commission endorsed this ban. Following 
this, a total of 23 northern right whales in the North Pacific were 
legally killed by Japan and the former 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). In the eastern 
North Pacific, 372 right whales were killed by the Soviets between 1963 
and 1967; of these, 251 were taken in the Gulf of Alaska south of 
Kodiak, and 121 in the southeastern Bering Sea. These takes devastated 
a population that, while undoubtedly small, may have been undergoing a 
slow recovery (Brownell et al., 2001).
    As a result of this historic and recent hunting in both the Pacific 
and Atlantic Oceans, northern right whales today are among the most 
endangered of all whales worldwide. Northern right whales were listed 
in 1970 following passage of the Endangered Species Conservation Act 
(ESCA) of 1969, and automatically granted endangered status when the 
ESCA was repealed and replaced by the ESA. Right whales were also 
protected under the Marine Mammal Protection Act of 1972. NMFS issued a 
Recovery Plan for the northern right whale in 1991, covering animals in 
both the North Atlantic and North Pacific (NMFS, 1991). Brownell et al. 
(2001) noted that there was no evidence for exchange between the 
western and eastern Pacific, and that the two populations had different 
recovery histories; consequently, they argued that these stocks should 
be treated as separate for the purpose of management, a division which 
has been duly recognized by NMFS in Stock Assessment Reports (Angliss 
and Lodge, 2004).
    In the western North Pacific (the Sea of Okhotsk and adjacent 
areas), current abundance is unknown but is probably in the low to mid-
hundreds (Brownell et al., 2001). There is no estimate of abundance for 
the eastern North Pacific (Bering Sea, Aleutian Islands and Gulf of 
Alaska), but sightings are rare; most biologists believe the current 
population is unlikely to exceed 100 individuals, and is probably much 
smaller. Prior to the illegal Soviet catches of the 1960s, an average 
of 25 whales was observed each year in the eastern North Pacific 
(Brownell et al., 2001); in contrast, the total number of records in 
the 35 years from 1965 to 1999 was only 82, or 2.3 whales per annum.
    Since 1996, NMFS and other surveys (directed or otherwise) have 
detected small numbers of right whales in the southeastern Bering Sea, 
including an aggregation estimated at 24 animals in the summer of 2004. 
Photo-identification and genetic data have identified 17 individuals 
from the Bering Sea, and the high inter-annual resighting rate further 
reinforces the idea that this population is small. Right whales have 
also been sighted in the northern Gulf of Alaska, including a sighting 
in August 2005. However, the overall number of right whales in the 
North Pacific using habitats other than the Bering Sea is not known.
    The taxonomic status of right whales worldwide has recently been 
revised in light of genetic analysis (see Rosenbaum et al., 2000; 
Gaines et al., 2005). Applying a phylogenetic species concept to 
molecular data separates right whales into three distinct species: 
Eubalaena glacialis (North Atlantic), E. japonica (North Pacific) and 
E. australis (Southern Hemisphere). NMFS formally recognized this 
distinction for the purpose of management in a final rule published on 
April 10, 2003 (68 FR 17560), but subsequently determined that the 
issuance of this rule did not comply with the requirements of the ESA, 
and thus rescinded it (70 FR 1830; January 11, 2005) prior to beginning 
the process anew. At this time North Atlantic and North Pacific right 
whales are thus both officially considered to be ``northern right 
whales'' (Eubalaena glacialis) under the ESA.

Critical Habitat Designation History

    Section 3 of the ESA defines critical habitat (CH) 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 that such areas are 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.''
    Section 4 of the ESA requires that before designating CH, NMFS must 
consider economic impacts, impacts on national security and other 
relevant impacts of specifying any particular area as CH, and the 
Secretary may exclude any area from CH if the benefits of exclusion 
outweigh the benefits of inclusion, unless excluding an area from CH 
will result in the extinction of the species concerned. Once CH is 
designated, section 7(a)(2) of the ESA requires that each Federal 
agency shall, 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 
CH.
    Three areas in the North Atlantic Ocean were designated as CH for 
northern right whales in 1994; the Great South Channel, Cape Cod Bay, 
and waters of the Southeastern United States off Florida and Georgia. 
NMFS is currently analyzing the physical and biological features 
essential to the conservation of the northern right whale in the 
Atlantic Ocean, and has outlined steps it will take to propose any 
revisions to that designated CH that might be supported by new 
information and analysis (68 FR 51758; August 28, 2003).

[[Page 66334]]

Previous Federal Action and Related Litigation

    In October 2000, NMFS was petitioned by the Center for Biological 
Diversity to revise the CH for the northern right whale by designating 
an additional area in the North Pacific Ocean. In February 2002, NMFS 
announced its decision that CH could not be designated in the North 
Pacific at that time because the essential biological requirements of 
the population were not sufficiently understood. However, in June 2005, 
a Federal judge found this reasoning invalid and ordered the agency to 
take action with respect to designating CH for the northern right whale 
in the North Pacific Ocean no later than October 28, 2005 (Center for 
Biological Diversity v. Evans, Civ. No. 04-04496, N.D. Cal. June 14, 
2005). In compliance with that order, NMFS is proposing to revise the 
current CH for this species by designating areas within the Gulf of 
Alaska and Bering Sea as CH under the ESA. The range of the northern 
right whale extends to waters of the western North Pacific. These 
waters are outside the United States, and because CH is not to be 
designated within foreign countries or outside of U.S. jurisdiction [50 
CFR 424.12(h)], NMFS has not considered designation of CH for that 
region.

Critical Habitat

Geographical Area Occupied by the Species

    The ESA defines CH (in part) as areas within the geographical area 
occupied by the species at the time it was listed under the ESA. 
Because this geographical area has not been previously described for 
the northern right whale in the Pacific Ocean, it is necessary to 
establish this range when proposing to designate CH. The northern right 
whale was listed as endangered in 1973. 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 1973, the northern right whale in the Pacific Ocean 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 extant.
    Both the southeastern Bering Sea and the western Gulf of Alaska 
(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 northern right whale sightings (historically 
and in recent times) in the Northeast Pacific 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. 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. The 
geographical area occupied by the northern right whale at the time it 
was listed under the ESA extends over a broad area of the North Pacific 
Ocean as depicted in Figure 1.
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Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines CH to include ``specific 
areas outside the geographical area occupied'' if the areas are 
determined by the Secretary of Commerce (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.'' NMFS is not proposing to designate 
any areas not occupied at the time of listing because any such areas 
are presently unknown (if they exist), and the value of any such 
habitat in conserving this species cannot be determined. Future 
revisions to the CH of the northern right whale may consider new 
information which might lead to designation of areas outside the 
occupied area of these whales.

Physical or Biological Features Essential to the Conservation of the 
Species (Primary Constituent Elements)

    In determining what areas are CH, 50 CFR 424.12(b) requires that 
NMFS consider those physical or biological features that are essential 
to the conservation of a given species and that may require special 
management considerations or protection, 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 further direct us to ``focus on the principal 
biological or physical constituent elements . . . that are essential to 
the conservation of the species,'' and specify that the ``[K]nown 
primary constituent elements shall be listed with the critical habitat 
description.'' The regulations identify primary constituent elements 
(PCE) 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 
must contain one or more PCEs to be eligible for designation as CH; an 
area lacking a PCE may not be designated in the hope it will acquire 
one or more PCEs in the future.
    NMFS scientists considered PCEs for the northern right whale in the 
Pacific Ocean 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 which might be 
necessary for their conservation. The life-requisites of these whales 
for such factors as temperatures, depths, and 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 that several species of large 
copepods and other zooplankton constitute the primary prey of the 
northern right whale in the North Pacific Ocean.
    The PCEs for the northern right whale in the North Pacific Ocean 
are large copepods in areas where right whales are known or believed to 
feed. Specifically, these are: Calanus marshallae, Neocalanus 
cristatus, N. plumchris. and Thysano[euml]ssa raschii, a copepod 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 proposed CH areas (below) establishes the presence 
of these PCEs within those areas proposed as CH. In addition to the 
physical presence of these PCEs within the proposed CH, it is likely 
that certain physical forcing mechanisms are present which act to 
concentrate these prey 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 the right whales in the North Pacific. The 
PCEs, essential for the conservation of the northern right whale in the 
North Pacific and these physical forcing or concentrating mechanisms 
contribute to the habitat value of the areas proposed for designation.

Special Management Considerations or Protection

    An occupied area may be designated as CH if it contains physical 
and 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.'' NMFS considered 
whether the copepods and other zooplankton in feeding areas, which have 
been identified as the PCEs for the northern right whale in the North 
Pacific Ocean, may require special management considerations or 
protection.
    Copepods can be affected by physical and chemical alterations 
within the water column both by natural processes such as global 
climate change or the Pacific Decadal Oscillation, as well as by 
pollution from various potential sources, including oil spills and 
discharges resulting from oil and gas drilling and production. The 
outer continental shelf (OCS) oil and gas exploration and development 
permits or authorizations already are routinely conditioned with 
operational restraints, mitigative measures, or technological changes 
to protect the marine environment from these impacts. While such 
management measures and protections are not necessarily designed to 
protect copepods or zooplankton in right whale feeding areas per se, 
they could be useful in protecting these PCEs for the conservation of 
northern right whales in the North Pacific Ocean.
    NMFS specifically requests comment on the extent to which the 
designated PCEs may require special management considerations or 
protection.

Proposed Critical Habitat

    The current abundance of northern right whales in the North Pacific 
Ocean is considered to be very low in relation to historical numbers or 
their carrying capacity (not determined). The existence of a persistent 
concentration of right whales found within the Southeastern Bering Sea 
since 1996 is somewhat extraordinary in that it may represent a 
substantial portion of the remaining population. These areas of 
concentration where right whales feed are characterized as containing 
the copepod PCEs described above. NMFS considers these feeding areas, 
supporting a significant assemblage of the remaining right whales in 
the North Pacific, to be critical in terms of right whale conservation. 
For the reasons given below, NMFS has based designation of CH on these 
areas, rather than where right whales have appeared sporadically or in 
transit. NMFS has been able to substantiate the assumption that these 
areas are right whale feeding areas by observations of feeding 
behavior, direct sampling of plankton near feeding right whales, or 
records of stomach contents of dead whales. These assumptions underlie 
the proposed CH areas shown in Figure 2 and described below. Two areas 
are proposed, as depicted in Figure 2: an area of the southeastern 
Bering Sea and an area south of Kodiak Island in the Gulf of Alaska.

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    Shelden et al. (2005) reviewed prey and habitat characteristics of 
northern right whales in the North Pacific. 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 the small North Pacific population on their feeding grounds in the 
Southeastern Bering Sea (SEBS) and Gulf of Alaska (GOA). Right whales 
are known to feed on copepod patches of very high density, and these 
patches may typically be small and unpredictably 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 copepods 
(as measured by broad-scale oceanographic sampling) and the 
distribution of right whales (M. Baumgartner, in prep.) In light of 
this, NMFS 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. 2003, 2003b). In the North 
Atlantic, an analysis of sighting data by NMFS indicated that a density 
of 4 or more right whales per 100 nm\2\ was a reliable indicator of a 
persistent feeding aggregation (Clapham and Pace 2001), and this has 
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 persistent 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, the distribution of right 
whales is used here as a proxy for the existence of suitably dense 
copepod patches and thus to identify the areas proposed herein for 
designation as CH. NMFS has used sighting records since the time of 
listing to make this determination because these records are more 
recent and are taken to be a more reliable indicator of current 
distribution than historical sightings, especially given that most of 
the latter relate to animals that were removed from the population by 
whaling.

Southeastern Bering Sea

    NMFS proposes to designate CH in the Bering Sea (Figure 2) to be 
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]00' W. The area described by these boundaries lies 
completely within the waters of the United States and its Exclusive 
Economic Zone, outside of waters of the State of Alaska. State waters 
extend seaward for 3 nautical miles; very few sightings occurred within 
this area. Right whale encounters occurring after ESA-listing in 1973 
totaled 182 within this area, out of 184 encounters north of the 
Aleutian Islands during this time period.

Gulf of Alaska

    NMFS proposes to designate CH in the Gulf of Alaska (Figure 2), to 
be 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[deg]00' W. The area described by these boundaries lies completely 
within the waters of the United States and its Exclusive Economic Zone. 
Right whale encounters occurring after ESA-listing in 1973 totaled 5 
within this area, out of 14 encounters in the Gulf of Alaska during 
this time period.

Existence of the PCEs Within the Proposed 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. Northern 
right whales in the western North Pacific 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 or 
not 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 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 Neocalanus cristatus (Calanus 
cristatus: Omura et al., 1969). Although oceanic species such as 
Neocalanus 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 use these resources by 
targeting regions

[[Page 66339]]

where the bottom mixed layer forces the zooplankton into shallower, 
discrete layers (e.g. Baumgartner et al., 2003a).

Southeastern Bering Sea (SEBS) 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 result 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. Calanus 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 (up to densities greater 
than 500 mg/m-3) of euphausiids (Thysano[euml]ssa 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, Pseudocalanus 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) and 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, 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 Gulf 
of Alaska and are patchily distributed across a wide variety of water 
depths. Three large herbivorous species comprise more than 70 percent 
of the biomass: N. cristatus, N. plumchrus, and Eucalanus bungii 
(Cooney 1986, 1987). In northern GOA shelf waters, the late winter and 
spring zooplankton is dominated by calanoid copepods (Neocalanus spp.), 
with a production peak in May; this is a cycle that appears resistant 
to environmental variability associated with El Ni[ntilde]o/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 (Calanus plumchrus: Omura et al., 
1969), potentially by targeting areas where adult copepods remained 
above 200 m (e.g. Baumgartner et al., 2003a).
    The area proposed as CH within the SEBS presents several 
similarities to that proposed within the Gulf of Alaska. Both areas are 
influenced by large eddies, submarine canyons, or frontal zones that 
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.).

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. NMFS has used 
sighting records since the time of listing to make this determination 
because these records are more recent and are taken to be 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 post-listing right whale sightings 
reported north of the Aleutian Islands, 182 occurred within the 
specific area proposed 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.) 
and over 23 sightings in 2004. Single right whales as well as pairs and 
aggregations 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, NMFS concludes that the right whale 
sightings in the specific area in the Bering Sea described in Figure 2 
are a suitable proxy for the presence of the PCEs and therefore 
proposes this area as critical habitat for the northern right whale in 
the North Pacific Ocean.
    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 specific area proposed as critical habitat 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, Wynne and Mellinger, 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, Wynne and Mellinger, 2003). Compared to the

[[Page 66340]]

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 2. It is also 
instructive that one of these animals was exhibiting feeding behavior 
at the time it was observed. Based on consideration of these factors, 
NMFS proposes that the right whale sightings in the specific area in 
the GOA described in Figure 2 are a reasonably reliable proxy for the 
presence of the PCEs and therefore proposes this area as critical 
habitat for the northern right whale in the North Pacific Ocean.

Activities Which May be Affected by This Revision

    Section 4(b)(8) of the ESA requires that NMFS describe briefly and 
evaluate, in any proposed or final regulation to revise critical 
habitat, those activities that may destroy or adversely modify such 
habitat or that may be affected by such designation. A wide variety of 
activities may affect CH 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, Federal 
fisheries management, pollutant discharges authorized by the 
Environmental Protection Agency, and military training exercises and 
other functions of the U.S. armed forces.
    This proposed designation of CH will provide these agencies, 
private entities, and the public with clear notification of proposed CH 
for northern right whales in the North Pacific and the boundaries of 
the habitat. This proposed designation will also assist these agencies 
and others in evaluating the potential effects of their activities on 
CH and in determining if ESA section 7 consultation with NMFS is 
needed.

Exclusion Process

    Section 4 (b)(2) of the ESA states that CH shall be designated on 
the basis of the best scientific and commercial data available and 
after taking into consideration the economic impact, impacts to 
national security, and any other relevant impact. Any area may be 
excluded from CH if the benefits of exclusion are found to outweigh 
those of inclusion, unless such exclusion would result in the 
extinction of the species. NMFS 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 CH.
    Based upon the best available information, it appears that the 
probability of oil or gas exploration activities within (or immediately 
adjacent to) proposed right whale critical habitat is very low, 
certainly within the 10-year timeframe of NMFS' assessment. Likewise, 
there are no commercial production facilities in operation, currently 
under development, nor `permitted' for future development, within these 
critical habitat areas. Unless contrary information emerges suggesting 
exploration and development are imminent, there is little expectation 
that Federal actions in the oil and gas sector will have the potential 
to ``destroy or adversely modify'' critical habitat as proposed under 
this action, within the analytical time horizon.
    However, during the preparation of this proposed rule we became 
aware that the oil and gas industry has expressed current interest in 
exploring and developing oil and gas resources in the North Aleutian 
Basin OCS Planning Area. We also understand that the State of Alaska 
announced support for this activity. NMFS lacks specific information 
regarding this potential exploration and development activity and was 
unable to gather information in the time available to prepare this 
proposed rule. Therefore, NMFS specifically requests comment on the 
type of exploration and development activities under consideration and 
the likelihood for such activities to occur, a description of the areas 
in the North Aleutian Basin that may be affected by any such 
activities, the extent to which the activities may affect the proposed 
critical habitat, and any other issues that may be relevant to the 
analysis of impacts and the exclusion process under section 4(b)(2) of 
the ESA. Prior to the issuance of any final rule, NMFS will attempt to 
gather information on this topic. Any information NMFS acquires and 
public comments received on these issues will be considered in 
analyzing the impacts of the designation of critical habitat and in the 
section 4(b)(2) exclusion process.
    While NMFS expects to consult annually on fishery related proposed 
actions that ``may affect'' the proposed CH, none of these 
consultations would be expected to result in a finding of ``adverse 
modification,'' and 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 northern right whales, it then follows 
that no fishing or related activity (e.g., at-sea processing, 
transiting) would be expected to be restricted or otherwise altered as 
a result of critical habitat designation in the two areas being 
proposed. NMFS did not find any specific areas in which the costs 
exceed benefits for activities that may affect CH, and has therefore 
not proposed the exclusion of any areas from designation.
    This action is anticipated to result in consultations on seafood 
processing waste discharges with EPA; Department of Defense (DoD) 
authorized military ``underway training'' activities; and USCG oil 
spill response plan approval, among others. It is unlikely that these 
activities will result in an ``adverse modification'' finding and, 
thus, no mandatory modifications would be imposed. It must follow then 
that no ``costs'' are imposed as a result of designation beyond the 
small costs attributable to inter-agency (occasionally intra-agency) 
consultation. 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, NMFS believes that the benefits of 
exclusion are outweighed by the benefits of inclusion.
    The NMFS analysis (available on the NMFS Alaska Region website 
https://www.fakr.noaa.gov/ ) did not find any specific areas which merit 
exclusion in consideration of economic impacts, nor have we determined 
that National security interests or other relevant impacts warrant the 
exclusion of any specific areas from this proposed designation. NMFS 
solicits comments on these benefits and costs as well as our 
determinations.

Public Comments Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this proposed rule to revise CH for the 
northern right whales in the North Pacific. This proposed action would 
amend the current regulations by adding CH in the North Pacific Ocean 
to the CH already designated along the Atlantic seaboard (Great South 
Channel, Cape Cod Bay, and the Southeastern United States). This 
proposed rule is responsive to the June 14, 2005, Northern District of 
California order and concerns only CH designation in the North Pacific 
Ocean. Comments or suggestions from the public, other concerned 
governments and agencies, the scientific community,

[[Page 66341]]

industry, or any other interested party concerning this proposed rule 
are solicited. Comments particularly are sought concerning:
    (1) Maps and specific information describing the amount, 
distribution, and use type (e.g., feeding, calving, migration) of 
northern right whale habitat in the North Pacific Ocean;
    (2) Information as to the identification of physical or biological 
features which may be essential to the conservation of the northern 
right whale in the North Pacific Ocean;
    (3) Information on whether the copepods in feeding areas identified 
by NMFS as PCEs, or any other physical or biological features that may 
be essential to the conservation of the northern right whale in the 
North Pacific Ocean, may require special management considerations or 
protection;
    (4) Information regarding the benefits of excluding any portions of 
the proposed CH, including the regulatory burden designation may 
impose;
    (5) Information regarding the benefits of designating particular 
areas as CH;
    (6) Current or planned activities in the areas proposed for 
designation and their possible impacts on proposed CH;
    (7) Any information regarding potential oil and gas exploration and 
development activities in the North Aleutian Basin OCS Planning Area, 
including information on the type of exploration and development 
activities under consideration and the likelihood for such activities 
to occur, a description of the areas in the North Aleutian Basin that 
may be affected by any such activities, the extent to which the 
activities may affect the proposed critical habitat, and any other 
issues that may be relevant to the analysis of impacts and the 
exclusion process under section 4(b)(2) of the ESA;
    (8) Any foreseeable economic or other potential impacts resulting 
from the proposed designations; and
    (9) Whether specific unoccupied areas not presently proposed for 
designation may be essential to the conservation of the northern right 
whale in the North Pacific Ocean.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES ). The proposed rule, 
maps, fact sheets, and other materials relating to this proposal can be 
found on the NMFS Alaska Region website at https://www.fakr.noaa.gov/. 
NMFS will consider all comments and information received during the 
comment period on this proposed rule for preparing the final rule. 
Accordingly, the final decision may differ from this proposal.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary to promptly hold at 
least one public hearing if any person requests one within 45 days of 
publication of a proposed regulation to revise CH. Requests for public 
hearing must be made in writing (see ADDRESSES) by December 19, 2005. 
Such hearings provide the opportunity for interested individuals and 
parties to give comments, exchange information and opinions, and engage 
in a constructive dialogue concerning this proposed rule. NMFS 
encourages the public's involvement in such ESA matters.

Classification

Regulatory Planning and Review

    This proposed rule has been determined to be significant for 
purposes of Executive Order 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 draft 
economic report (NMFS, 2005). This approach is in accord with OMB's 
guidance on regulatory analysis (OMB Circular A-4, Regulatory Analysis, 
September 17, 2003).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (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 rulemaking for any proposed or final rule, 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). 
NMFS has prepared an initial regulatory flexibility analysis (IRFA) and 
this document is available upon request (see ADDRESSES). This IRFA 
evaluates the potential effects of the proposed CH designation on 
federally regulated small entities. The reasons for the action, a 
statement of the objectives of the action, and the legal basis for the 
proposed rule are discussed earlier in the preamble. 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'' CH for the northern 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 CH 
designation, these costs are expected to accrue solely to the Federal 
agencies that are party to the consultation. In only the most complex 
of ``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 CH is found at the conclusions 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 proposed CH area, resulted in 
the following list. Potential action agencies may include: the EPA, 
U.S. Coast Guard (USCG), DoD, Minerals Management Service (MMS), and 
NMFS. Activities or actions with a nexus to these Federal agencies that 
are expected to require consultation include: EPA permitting of seafood 
processing waste discharges at-sea; USCG 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 oil and gas exploration and production permitting; 
and NMFS fishery management actions in the BSAI and GOA.
    A 10-year ``post-CH designation'' analytical horizon was adopted, 
during which time NMFS may reasonably expect to consult an estimated 27 
times on CH-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-consultation'' are expected 11 percent of the time. 
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 CH for the 
right whale

[[Page 66342]]

in the Pacific, 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 one federally 
authorized activity (among all those identified in the analyses and 
referenced above) has the potential to ``destroy or adversely modify'' 
northern right whale CH. This one class of activity is Outer 
Continental Shelf (OCS) oil and gas exploration and production.
    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 proposed northern right whale CH areas. Further, MMS sources 
indicate that in only one of these has there been any exploratory well 
drilling (i.e., St. George Basin). A total of 10 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 activity on the part of the lease holders in this or the other 
four referenced areas to seek authorization to undertake additional 
exploratory activity or develop production facilities. MMS reports no 
planned or scheduled OCS lease sales for these areas, at least through 
2007 (the latest projected date MMS has published on its web site). 
This suggests that the only private sector entities that potentially 
could be directly and adversely impacted by the proposed designation 
would be those entities that own the lease rights to develop oil and 
gas production facilities in these areas. However, during the 
preparation of this proposed rule NMFS became aware that the oil and 
gas industry has expressed current interest in exploring and developing 
oil and gas resources in the North Aleutian Basin OCS Planning Area and 
that the State of Alaska announced support for this activity. NMFS 
lacks specific information regarding this potential exploration and 
development activity and was unable to gather information in the time 
available to prepare this proposed rule. Therefore, NMFS specifically 
requests comment on the type of exploration and development activities 
under consideration and the likelihood for such activities to occur, a 
description of the areas in the North Aleutian Basin that may be 
affected by any such activities, the extent to which the activities may 
affect the proposed critical habitat, and any other issues that may be 
relevant to the analysis of impacts and the exclusion process under 
section 4(b)(2) of the ESA. Prior to the issuance of any final rule, 
NMFS will attempt to gather information on this topic. Any information 
NMFS acquires and public comments received on these issues will be 
considered in analyzing the impacts of the designation of critical 
habitat and in the section 4(b)(2) exclusion process.
    When MMS records were consulted as to the identity of the entities 
holding leases to the wells in the St. George Basin, six businesses 
were listed for the 10 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). These data were 
last updated, according to the MMS website, March 17, 2005. It would 
appear that none of these entities could reasonably be characterized as 
``small,'' 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).
    Under the Regulatory Flexibility Act, the preferred alternative was 
compared to the ``No Action'' (or status quo) alternative and an 
alternative proposed by the petitioner, the Center for Biological 
Diversity. NMFS rejected the ``No Action'' alternative because it did 
not comply with the remand order in Center for Biological Diversity v. 
Evans, Civ. No. 04-04496 (N.D. Cal. June 14, 2005) or satisfy the 
agency's obligations under the ESA. NMFS rejected the petitioner's 
alternative because the best scientific information available did not 
support a finding that the physical or biological features essential 
for conservation of the right whale in the North Pacific Ocean are 
found throughout the area identified by the petitioner, and thus the 
area did not meet the ESA definition of critical habitat.
    Because NMFS' analysis did not identify costs to any small entities 
attributable to the CH designation action, there is no identified 
alternative that imposes lesser impacts on this group while achieving 
the requirements of the ESA and the objectives of this action.
    The action does not impose new recordkeeping or reporting 
requirements on small entities. The analysis did not reveal any Federal 
rules that duplicate, overlap or conflict with the proposed action.

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 
(INRMP). The recent 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.'' NMFS has determined no military lands 
would be impacted by this proposed rule.

Executive Order (E.O.) 13211

    On May 18, 2001, the President issued an Executive Order 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.
    NMFS has considered the potential impacts of this action on the 
supply, distribution, or use of energy and finds 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, NMFS makes the 
following findings:
    (a) This proposed rule 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

[[Page 66343]]

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; Aid to Families 
with Dependent Children 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 CH 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 CH under section 7. 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 CH, the legally binding duty to avoid 
destruction or adverse modification of CH rests squarely on 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 CH shift the costs of the large 
entitlement programs listed above to State governments.
    (b) Due to the prohibition against take of this species both within 
and outside of the designated areas, we do not anticipate that this 
proposed rule will significantly or uniquely affect small governments. 
As such, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630, the proposed rule does not have 
significant takings implications. A takings implication assessment is 
not required. The designation of CH affects only Federal agency 
actions. Private lands do not exist within the proposed CH and 
therefore would not be affected by this action.

Federalism

    In accordance with E.O. 13132, this proposed rule does not have 
significant federalism effects. A federalism assessment is not 
required. In keeping with Department of Commerce policies, we request 
information from, and will coordinate development of, this proposed CH 
designation with appropriate state resource agencies in Alaska. The 
proposed 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 northern right whale are specifically identified.

Civil Justice Reform

    In accordance with E.O. 12988, the Department of the Commerce has 
determined that this proposed 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 proposing to designa