Endangered And Threatened Species; Proposed Endangered Status for North Pacific Right Whale, 77694-77704 [06-9908]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Proposed Rules]
[Pages 77694-77704]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9908]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 061212327-6327-01; I.D. 120706A]
RIN 0648-XB57


Endangered And Threatened Species; Proposed Endangered Status for 
North Pacific Right Whale

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, NMFS, have completed a status review of the northern right 
whale under the Endangered Species Act (ESA). We initiated this review 
in response to a petition submitted by the Center for Biological 
Diversity, dated August 16, 2005, to list the North Pacific right whale 
as a separate endangered species. Based on the findings from the status 
review and consideration of the factors affecting this species, we have 
concluded that right whales in the northern hemisphere exist as two 
species: the North Pacific right whale (Eubalaena japonica) and the 
North Atlantic right whale (E. glacialis). We have also determined that 
each of these species is in danger of extinction throughout its range. 
To reflect this taxonomic revision, we are designating each separately 
as an endangered species. This rule proposes to list the North Pacific 
right whale as an endangered species; a proposed rule to list the North 
Atlantic right whale isissued separately. We also intend to designate 
critical habitat for the North Pacific right whale. A proposed rule for 
designation of critical habitat will follow this action. We are 
soliciting public comment on this proposed listing determination.

DATES: Comments on this proposed rule must be received by close of 
business on February 26, 2007. Requests for public hearings must be 
made in writing by February 12, 2007.

ADDRESSES: Send comments to Kaja Brix, Assistant Regional 
Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: 
Ellen Walsh. Comments may be submitted by:
     E-mail: ESA-NRW-status@noaa.gov. Include in the subject 
line the following document identifier: North Pacific Right Whale 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. 9th Street, 
Juneau, Alaska.
     Fax: (907) 586-7012.
    The proposed rule 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, NMFS, 222 West 7\th\ 
Avenue, Anchorage, Alaska 99517, telephone (907) 271-5006, fax (907) 
271-3030; Kaja Brix, NMFS,(907)586-7235, fax (907) 586-7012; or Marta 
Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

Petition

    On August 16, 2005, we received a petition from the Center for 
Biological Diversity (CBD) to list the North Pacific right whale as a 
separate endangered species under the ESA. A copy of the petition may 
be viewed at our Alaska Region website (see ADDRESSES). CBD requested 
that we list the North Pacific right whale as a new endangered species 
based, in part, on recent scientific information that establishes a new 
taxonomic classification for right whale species. On January 26, 2006, 
we issued our finding that the petition presented substantial 
information indicating that the petitioned action may be warranted (71 
FR 4344), and we requested information regarding the taxonomy and 
status of the North Pacific right whale, its habitat, biology, 
movements and distribution, threats to the species, or other pertinent 
information. This proposed rule summarizes the information gathered and 
the analyses conducted in a status review of right whales in the North 
Pacific Ocean and in the North Atlantic Ocean and constitutes our 12-
month determination on CBD's petition.

Status Review

    The review of the status of right whales in the North Atlantic and 
North Pacific Oceans describes the population structure and examines 
the extent to which phylogenetic uniqueness exists between right whales 
found in the North Atlantic and North Pacific. The review also examines 
the biological status and threats to the right whales and their 
habitat.

Biology of Right Whales in the North Pacific Ocean

    Right whales are large baleen whales that grow to lengths and 
weights exceeding 18 meters and 100 tons (90.7 metric tons), 
respectively. They are filter feeders whose prey consists exclusively 
of zooplankton. Right whales attain sexual maturity at an average age 
of 8-10 years, and females produce a single calf at intervals of 3-5 
years (Kraus et al., 2001). Their life expectancy is unclear, but is 
known to reach 70 years in some cases (Hamilton et al., 1998; Kenney, 
2002).
    Right whales are generally migratory, with at least a portion of 
the population movingbetween 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, individuals have 
been observed feeding in the Gulf of Alaska, 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).
    Historically, right whales occurred across the entire North Pacific 
Ocean from the western coast of North America to the Russian Far East 
(Scarff, 1986; Brownell et al., 2001, Clapham et al., 2004, Shelden et 
al., 2005). Sightings in the 20th century were from as far south as 
central Baja California, Mexico, and the Yellow Sea, and as far north 
as the Bering Sea and the Okhotsk Sea (Goddard and Rugh, 1998; Brownell 
et al., 2001). Right whales are frequently found in coastal or shelf 
waters. Such sightings, however, may be partially a function of survey 
effort, and thus may not reflect current or historical distribution. 
Sighting records also indicate that right whales occur far offshore, 
and movements over abyssal depths are known (Scarff, 1986; Mate et al. 
1997). Clapham et al. (2004) plotted 20th century records together with 
data summarized from 19th century whaling catches. These plots show 
that right whales had an extensive offshore distribution in the 19th 
century, and were common in areas where few or no

[[Page 77695]]

right whales occur today. Sightings diminished and occurred further 
south in autumn, and very few animals were recorded anywhere in winter. 
Whalers never reported winter calving areas in the North Pacific, and 
calving locations remain unknown (Scarff, 1986; Clapham et al., 2004). 
Overall, these analyses confirmed that the size and range of the right 
whale population is now considerably diminished in the North Pacific 
relative to the situation during the peak period of whaling for this 
species in the 19th century.
    Little is known regarding the migratory behavior of right whales in 
the North Pacific. Historical sighting and catch records provide the 
only information on possible migration patterns for North Pacific right 
whales (Omura, 1958; Omura et al., 1969; Scarff, 1986). During summer, 
whales were found in the Gulf of Alaska, along both coasts of the 
Kamchatka Peninsula, the Kuril Islands, the Aleutian Islands, the 
southeastern Bering Sea, and in the Okhotsk Sea. Fall and spring 
distribution was the most widely dispersed, with whales occurring in 
mid-ocean waters and extending from the Sea of Japan to the eastern 
Bering Sea. In winter, right whales were found in the Ryukyu Islands 
(south of Kyushu, Japan), the Bonin Islands, the Yellow Sea, and the 
Sea of Japan. The current distribution patterns and migration routes of 
these whales are not known.
    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 19th century, and by 1900 were scarce 
throughout their range. Right whales were protected worldwide in 1935 
through a League ofNations agreement. However, because neither Japan 
nor the USSR signed this agreement, both nations asserted authority to 
continue hunting right whales until 1949 when the newly-created 
International Whaling Commission endorsed the ban. Despite this ban, a 
total of 23 right whales were legally killed in the North Pacific by 
Japan and the USSR under Article VIII of theInternational 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, right whales today 
are among the most endangered of all whales worldwide. 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 a hundred individuals, and is probably 
much smaller. Prior to the illegal Soviet catches of the 1960s, on 
average, 25 whales were 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 an average of 2.3 whales 
per annum.
    The current population size of right whales in the North Pacific is 
likely fewer than 1,000 animals. Exploitation by commercial whaling 
reduced the North Pacific right whales nearly to the point of 
extinction by the beginning of the 20th century. There are insufficient 
data to estimate the pre-exploitation size of this or any other species 
of right whale. Based upon catch levels, it is reasonable to assume 
there were in excess of 10,000 animals in the North Pacific. Based upon 
the number of animals taken illegally by Soviets during the 1960s, 
there were at least 372 right whales alive at that time. That estimate 
would not include right whales found in the western North Pacific. 
There are no reliable estimates of current abundance or trends for this 
species. Rice (1974) indicated only a few individuals remained in the 
eastern North Pacific management unit (i.e., within U.S. waters), and 
that the population was essentially extinct. Despite high levels of 
survey effort in the region, most notably from Japanese sighting 
surveys (Miyashita and Kato, 1998), right whale sightings in the 
eastern North Pacific have been rare and geographically scattered 
(Perry et al., 1999).
    Recent sightings of right whales in the eastern Bering Sea during 
the summer (Goddard and Rugh, 1998; Tynan, 1998, 1999; Moore et al., 
2000; LeDuc et al., 2001; Tynan et al., 2001; Wade et al., 2006) 
represent the first reliable observations of aggregations of right 
whales in the eastern North Pacific since the 1960s. Although a few 
calves have recently been documented in the eastern North Pacific 
(Goddard and Rugh, 1998; LeDuc, 2004; Wade et al., 2006), these were 
the first such sightings in over a century (Brownell et al., 2001). 
These recent sightings, the first of which occurred in 1996, and other 
surveys (directed specifically at right whales 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 sightings 
in 2005 and 2006. However, the overall number of right whales using 
habitats in the North Pacific other than the Bering Sea is not known.
    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). 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

[[Page 77696]]

from this region areconsidered to represent vagrants. We have 
determined the range of the North Pacific right whale extends over a 
broad area of the North Pacific Ocean as depicted in Figure 1.
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP27DE06.114

BILLING CODE 3510-22-C

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Listing Determinations Under the ESA

    The ESA defines an endangered species as one that is in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as one that is likely to becomeendangered in the 
foreseeable future throughout all or a significant portion of its range 
(sections 3(6) and 3(20), respectively). The statute requires us to 
determine whether any species is endangered or threatened because of 
any one of the following five factors: (1) the present or threatened 
destruction, modification or curtailment of its habitat or range; (2) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) theinadequacy of 
existing regulatory mechanisms; or (5) other natural or manmade factors 
affecting its continued existence (section 4(a)(1)(A)-(E)). We are to 
make this determination based solely on the best available scientific 
information after conducting a review of the status of the species and 
taking into account any efforts being made by states or foreign 
governments to protect the species. The focus of our evaluation of the 
ESA section 4(a)(1) factors is to evaluate whether and to what extent a 
given factor represents a threat to the future survival of the species. 
The focus of our consideration of protective efforts is to evaluate 
whether and to what extent they address the identified threats and so 
ameliorate a species' risk of extinction. The steps we follow in 
implementing this statutory scheme are to: (1) delineate the species 
under consideration; (2)review the status of the species; (3) consider 
the ESA section 4 (a)(1) factors to identify threats facing the 
species; (4) assess whether certain protective efforts mitigate these 
threats; and (5) predict the species' future persistence.

Review of ``Species'' Delineation

    Since 1974, NMFS has maintained the right whale listing as 
originally listed by the United States Fish and Wildlife Service 
(USFWS) under the Endangered Species Conservation Act of 1969, the 
precursor to the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.; the ESA)(35 FR 18319, December 2, 1970)--Eubalaena spp., i.e., 
all the species within the genus Eubalaena. The USFWS maintains the 
official lists of threatened and endangered species and isrequired to 
add species to the official lists when NMFS or USFWS determines species 
under itsjurisdiction should be listed. The USFWS has changed the 
nomenclature for right whales severaltimes over the years in various 
iterations of the list of threatened and endangered wildlife. NMFS also 
changed the nomenclature for a period of time after one of the USFWS 
changes, butlater reverted back to the original Eubalaena spp. listing. 
The changes may have been made as a reflection of the discussion in the 
scientific literature over the appropriate taxonomic status of right 
whales. At no point did the USFWS ever propose delisting any of the 
species that were included in the original listing of Eubalaena spp. 
Regardless of the changes to the list, NMFS maintains that right whale 
species were listed as Eubalaena spp., which reflects the predominant 
view that existed in 1974: that right whale species are distinct from 
bowhead whales (Balaena mysticetus), they belong in the genus 
Eubalaena, and the genus Eubalaena contains at least twospecies: E. 
glacialis in the northern hemisphere and E. australis in the southern 
hemisphere.
    Recent investigations of right whale genetics confirm the 
distinction between E. glacialis and E. australis at the species level 
and suggest that the North Pacific form of E. glacialis should be 
recognized as a separate species and named E. japonica, distinct from 
the other two species. NMFS is proposing to adopt this view and, in a 
separate rulemaking, to modify its listing to add E. japonica to the 
current listing Eubalaenaspp. (which includes E. glacialis and E. 
australis).

Taxonomy of Right Whales

    All whales belong to the mammalian order Cetacea, which is divided 
into two suborders: Odontoceti (toothed whales) and Mysticeti (baleen 
whales). The Mysticeti are further dividedinto four families: the 
Eschrichtidae, a monotypic family (i.e., containing only one species), 
the gray whale; Neobalaenidae, another monotypic family containing only 
the pygmy right whale;Balaenidae, which contains two genera: 
Balaena(bowhead whales) and Eubalaena (right whales); and 
Balaenopteridae, which contains all of the other baleen whales.
    Balaena is the genus name for the bowhead whale (Balaena 
mysticetus), recognized byLinnaeus in 1758. Eubalaena is the genus name 
for right whales, first proposed by Gray in 1864. The first right whale 
to be named was what we today call the North Atlantic right whale or 
Nord-Kaper (Balaena glacialis, Muller, 1776), from North Cape, Norway. 
The second right whale to be named was what we today call the North 
Pacific right whale (Balaena japonica, Lacepede,1818), from Japan. And 
the third right whale to be named was what we today call the Southern 
right whale (Balaena australis, Desmoulins, 1822), from Algoa Bay, Cape 
of Good Hope, South Africa. In the 1970s when all baleen whales were 
being considered for listing as endangered under the Endangered Species 
Conservation Act of 1969, authors disagreed on the taxonomic status of 
right whales. One view was that they belonged in the genus Balaena 
along with bowhead whales and that the genus contains two species: 
Baleana mysticetus and Baleana glacialis (Rice, 1977). The subspecific 
composition of B. glacialis was unclear. The other view was that right 
whales were distinct from bowhead whales at the genus level and that 
right whales should be identified as Eubalaena (Schevill, 1986). This 
later view is currently the prevailing view, and it is the view 
embraced by USFWS and NMFS.
    There were also two views about the species composition of 
Eubalaena. One view was that there was only one species Eubalaena 
glacialis containing several subspecies (E. glacialis glacialis (North 
Atlantic), E. glacialis sieboldii (North Pacific), and E. glacialis 
australis (Southern oceans)) (Tomilin, 1957). Hershkovitz (1966) also 
describes these three subspecies,except that he refers to North Pacific 
right whales as E. glacialis japonica. The other view was that 
Eubalaena comprised two species E. glacialis and E. australis (Omura, 
1958; Omura et al.,1969). This is the view represented by the 
designation of Eubalaena spp. in the original listing by USFWS in 1970 
and by NMFS in its first listing in 1974. Generally accepted taxonomic 
nomenclature recognized the term ``spp.'' as an abbreviation for 
multiple species within a genus.
    The two-species view is summarized by Perry et al.'s (1999) summary 
of morphological (Muller, 1954) and genetic data (Schaeff et al., 
1991), both of which recognized distinct species in the northern and 
southern hemispheres. Cummings (1985) used E. australis for all right 
whales below the equator (southern right whales). The International 
Whaling Commission also recognizes the presence of two distinct 
species, E. glacialis and E. australis, in the schedule appended to the 
Convention in which species under purview of the Commission are listed.

Conclusion

    Although the listing of right whales has changed from the original 
nomenclature of Eubalaena spp., there is no indication in the record 
that USFWS ever intended to delist any of the species contained in the 
original listing of the entire genus. Since the

[[Page 77699]]

original 1970 listing wasdescribed as ``Eubalaena spp.'', the logical 
interpretation is that at least two species of right whalewere listed, 
the northern right whale (E. glacialis) and the southern right whale 
(E. australis), since ``spp.'' refers to more than one species, not 
``subspecies.'' Even if three separate species had been recognized in 
1970, southern right whale (E. australis) would have been one of them. 
Eachplausible scenario results in the right whale in the Southern 
Hemisphere being recognized as a separate species. Since NMFS has 
maintained its listing as ``Right whales, Eubalaena spp.'', and USFWS 
has never proposed delisting any of the species included in the 
original listing, we conclude that both E. glacialis and E. australis 
were listed in 1970, carried forward to the list created pursuant to 
the ESA, and determined to be endangered in our listing in 1974.

Right Whale Species Currently Being Considered for Listing

    Genetic data now provide unequivocal support to distinguish three 
right whale lineages as separate phylogenetic species: (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 southern 
hemisphere's Oceans (Rosenbaum et al., 2000). Based on evidence from 
recent genetic studies (Gaines et al., 2005), we conclude that the 
current taxonomic classification of right whales in the northern 
hemisphere should be revised consistent with the generally accepted 
analyses by Rosenbaum et al. (2000). We have determined that listing 
right whales in the North Atlantic and the North Pacific as two 
separate species is warranted in light of the compelling evidence 
provided by recent scientific studies on right whale taxonomy and 
classification. In accordance with the applicable statutory definitions 
and requirements, the North Atlantic right whale (E. glacialis) and the 
North Pacific right whale (E. japonica) are being considered for 
listing as separate species under the ESA.
    Refining the taxonomy of these endangered cetaceans is critical to 
the recovery planning and conservation of these species. The separate 
listings of these two species in the northern hemisphere will allow for 
consistent scientific practice and management policies in recovering 
these species.

Status of the Three Right Whale Species

    The determination that right whales in the North Atlantic and North 
Pacific Oceans are two separate species requires us to consider these 
species separately for the purposes of listingunder the ESA. We will 
consider the status of the North Pacific right whale (E. japonica) in 
this proposed rule and that of the North Atlantic right whale (E. 
glacialis) in a separate proposed rule in today's issue of the Federal 
Register. At the final rule stage, we will address both species in the 
same rule so that any changes become effective together. The southern 
right whale, E. australis, will remain listed as endangered, though we 
intend to conduct a 5-year review of its status in the near future. In 
the following discussion of the status of the North Pacific right 
whale, E. japonica, we provide the rationale for today's proposal to 
list this species as a separate endangered species. The other proposed 
rule in today's issue of the Federal Register provides the rationale 
for this proposal to list the North Atlantic right whale, E. glacialis, 
as a separate endangered species. We also identify the southern right 
whale, E. australis (one of two species that was listed in 1970 and is 
still listed) in the regulatory language as a separate endangered 
species and remove Eubalaena spp. from the list.

Status of the North Pacific Right Whale (Eubalaena japonica)

Abundance and Trends

    The basic life history parameters and census data, including 
population abundance, growth rate, age structure, breeding ages, and 
distribution, remain undetermined for North Pacificright whale. To 
date, the largest number of North Pacific right whale individuals 
identified in the eastern Bering Sea is 23 (based on genetic sampling), 
while abundance in the western NorthPacific appears to number fewer 
than 1,000 individuals (with a minimum estimate near 400). Abundance 
estimates and other vital rate indices in both the eastern and western 
North Pacificare not well established. Where such estimates exist, they 
have very wide confidence limits.

Life History Characteristics

    Although there are no data for the North Pacific, studies of other 
right whale populations suggest calving intervals of 3-6 years, 
lifespans of up to 70 years, and growth rates that are likely dependent 
on feeding success (Reynolds et al., 2002; Kenney, 2002). Long-lived 
organisms have limited abilities to respond to chronic increases in 
juvenile mortality and even lesser abilities to respond to increased 
mortality through commercial harvest of juveniles and adults (Congdon 
et al., 1993). Life history characteristics such as low reproductive 
rates, delayed sexual maturity, and reliance on high juvenile 
survivorship make long-lived species such as whales particularly 
vulnerable to overexploitation. This likely explains the paucity of 
sightings in the North Pacific following the illegal kills by Soviet 
whalers in the 1960s. The effects of past commercial and illegal 
harvests persist. These removals remain an obstacle to the recovery of 
the North Pacific right whale, despite the cessation of such whaling.

Distorted Age, Size or Structure of the Population, and Reduced 
Reproductive Success

    To date, photogrammetric data in the Bering Sea have been collected 
primarily for adult animals (LeDuc et al., 2001). Of the 12 whales for 
which lengths were determined (range: 14.7-17.6m), none were smaller 
than the smallest length estimate for sexually mature right whales (13-
16m: Kenney, 2002). Length measurements for two whales observed off 
California suggestat least one of these whales was not yet sexually 
mature (12.6m: Carretta et al., 1994). The presence of two calves 
during the 2004 season in the Bering Sea (Wade et al., 2006) is 
encouraging. However, to date, there is no evidence of reproductive 
success (i.e., young reared to independence) in the eastern North 
Pacific. No data are available for the western North Pacific.

Genetic Diversity

    The Allee effect has been defined as the impact of reduced social 
interactions and loss of mating opportunities in a small population. 
Marine mammal populations with an effective population size of a few 
dozen individuals are usually sufficiently large to avoid most of the 
deleterious consequences of inbreeding (Lande, 1991). Theoretically, 
during a rapid decline in population size, nearly all (i.e., >95 
percent) of the diversity in a population is maintained in an effective 
population of 10 individuals, and more than 99 percent of the diversity 
in a population is maintained in an effective population of 50 
individuals (Ralls et al., 1983). However, it has been suggested that 
if the number of reproductive animals is fewer than 50, the potential 
for impacts associated with inbreeding depression increases 
substantially (IUCN, 2003). In 2002, the ratio of right whale females 
to males biopsied in the Bering Sea was 1:9. In

[[Page 77700]]

2004, biopsy results indicated a ratio of 7:16. Excluding the two male 
calves from the sample and assumingall other whales were adults, a 1:2 
ratio of females to males can be estimated, with a possible effective 
abundance of 21. Although there is some evidence of mating success 
among NorthPacific right whales, the extent of reproductive success has 
not been quantified.

Habitat Specificity or Site Fidelity

    Other large whale populations such as humpback whales (Megaptera 
novaeangliae) appear to use common breeding grounds with a ``maternally 
directed site-fidelity to specific feeding grounds'' (Baker et al., 
1990, 1994; Palsb ll et al., 1995, 1997; Larsen et al., 1996). Genetic 
sampling revealed similar patterns in western North Atlantic right 
whales (E. glacialis), indicating this population probably occupies a 
single breeding area but segregates into distinct,maternally-linked 
subpopulations during migration to isolated nursery areas (Schaeff et 
al., 1993). There is some suggestion of site fidelity among right 
whales found in the Bering Sea. Ofthe whales observed between 1997 and 
2004, at least five were photographed and five were biopsied over 
multiple years. It is possible that similar site fidelity is occurring 
in the westernNorth Pacific. It is not known where these animals 
overwinter, nor if they share a common wintering area. This is a 
critical gap in understanding dynamics of right whales in the 
NorthPacific Ocean.

Summary of Factors Affecting the North Pacific Right Whale

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, if a species isendangered or threatened 
because of any one or a combination of the following factors: (1) the 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease orpredation; (4) the 
inadequacy of existing regulatory mechanisms; and (5) other natural or 
manmade factors affecting its continued existence. A discussion of 
these considerations follows:

The Present or Threatened Destruction, Modification, or Curtailment of 
Habitat or Range

    One potential source of habitat degradation for baleen whales is 
spilled oil. Data on the effects of oil pollution on cetaceans are 
inconclusive (Geraci, 1990; Loughlin, 1994). However, general concerns 
with regard to oil pollution, some of which are direct impacts on the 
whales rather than habitat impacts, are ingestion of contaminated prey, 
potential irritation of skin and eyes, inhalation of toxic fumes, and 
abandonment of polluted feeding habitat (Geraci and St. Aubin, 1980; 
Geraci, 1990). Although there is currently no oil exploration or 
production underway in known right whale habitat in offshore areas of 
the Bering Sea or Gulf of Alaska, and limited activity elsewhere in the 
species' range, the possibility remains that there will be lease sales 
in these areas in the future. Furthermore, large amounts of oil are 
transported by ship alongthe western North American coast through areas 
that have been used by right whales in the past, and where they have 
been occasionally seen recently (Brownell et al., 2001).
    The Minerals Management Service (MMS) has proposed an Outer 
Continental Shelf (OCS) leasing for conducting lease sales for the 
North Aleutian Basin (in the southeast Bering Sea) in 2010 and 2012. 
This planning area is presently under a moratorium from OCS leasing by 
Presidential Executive Order. It is unknown whether the moratorium may 
be lifted or to what extent these activities may disturb or otherwise 
affect right whales. In addition to oil and gas exploration and 
development, undersea exploration and development of mineral deposits 
may affect the habitat of the North Pacific right whale. Development of 
oil fields off the Sakhalin Islands is also occurring within habitat of 
the western North Pacific population of the North Pacific right whale. 
The effect on habitat of shipping or oil and gas development is 
unclear.
    Right whale life history characteristics make them very slow to 
adapt to rapid changes in their habitat (Reynolds et al.., 2002). They 
are also feeding specialists that require exceptionally high densities 
of their prey (Baumgartner and Mate, 2003; Baumgartner et al., 2003). 
Zooplankton abundance and density in the Bering Sea has been shown to 
be highly variable, affected by climate, weather, and ocean processes 
and in particular ice extent (Napp and Hunt, 2001; Baier and Napp, 
2003). The largest concentrations of copepods occurred in years with 
the greatest southern extent of sea ice (Baier and Napp, 2003). It is 
possible that changes in ice extent, density, and persistence may alter 
the dynamics of the Bering Sea shelf zooplankton community and in turn 
affect the foraging behavior and success of right whales. No data are 
available for the western North Pacific.
    Chemical contaminants are an additional potential source of habitat 
degradation for right whales. The direct impact of chemical 
contaminants on right whales is uncertain. O'Shea andBrownell (1994) 
conclude that there is currently no evidence for significant 
contaminant-related problems in baleen whales. Although additional 
research is needed, existing data on mysticetes indicate that the lower 
trophic levels at which these animals feed should result in smaller 
contaminant burdens than would be expected in many odontocetes, which 
typically show burdens that differ from those of baleen whales by an 
order of magnitude (O'Shea and Brownell, 1994). However, the manner in 
which pollutants negatively impact animals is complex and difficult to 
study, particularly in taxa (such as large whales) for which many of 
the key variables and pathways are unknown (Aguilar, 1987; O'Shea and 
Brownell, 1994). The trans-generational accumulation of contaminants 
(Colborn and Smolen, 1996) is perhaps a more likely source for concern, 
but this remains unstudied in right whales or any other cetacean.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    North Pacific right whales were heavily exploited by commercial 
whalers during the 19th and 20th centuries. The IWC estimates 15,451 
right whales were taken in the North Pacificbetween 1840 and 1909 
(Brownell et al., 1986). There were 741 recorded catches of right 
whales in the North Pacific in the 20th century (411 in the eastern 
unit and 330 in the western unit)(Brownell et al., 2001). According to 
Estes (1979) and Congdon et al. (1993), long-lived organisms have 
limited abilities to respond to chronic increases in juvenile mortality 
and evenless ability to respond to increased mortality through 
commercial hunting of juveniles and adults. Life history 
characteristics such as low reproductive rates, delayed sexual 
maturity, and reliance on high juvenile survivorship make long-lived 
species such as whales particularly vulnerable to overexploitation. 
Commercial whaling very likely reduced the genetic variability of the 
North Pacific right whale. The small, remnant populations that survived 
commercial whaling likely lost genetic variability because of genetic 
drift and inbreeding, further confounding conservation and recovery 
efforts.

[[Page 77701]]

    Currently, the IWC has assigned ``Protected Stock'' status to all 
stocks of right whales (IWC, 1995). The catch quota for these whales is 
therefore set at zero for all signatory nations at the IWC. The Soviet 
Union killed right whales illegally for commercial purposes in the 
OkhotskSea/Kuril Islands (reported as ``hundreds'' by Yablokov (1994), 
although this is known to include bowhead whales). Furthermore, the 
Soviets killed 372 right whales in the eastern North Pacific(notably in 
the Bering Sea and Gulf of Alaska) in the 1960s (Doroshenko, 2000). 
These catches presumably occurred primarily during summer.
    Right whales were historically hunted by native peoples along the 
Northwest Pacific coast and in the Aleutian Islands, although the level 
of such take was probably insignificant. We haveno information on 
aboriginal harvests for the western North Pacific. However, given the 
current status of this species, the North Pacific right whale could not 
tolerate even a very low level of commercial or aboriginal hunt. While 
no hunting currently occurs on North Pacific right whales, the impact 
from historical commercial harvest persists and likely presents a 
threat to the recovery of the species throughout all of its range. 
These removals are the primary causative factor for thedecline of the 
North Pacific right whale, and the North Pacific right whale is in 
danger of extinction throughout its range because of historical and 
more recent whaling.
    There are no known recreational or educational uses of North 
Pacific right whales. However, if a right whale were to be seen in a 
highly accessible area, such as near the coast ofCalifornia, there 
could be a large response from whale watching operations trying to 
observe the whale.
    Scientific studies of right whales may involve close approaches to 
the animals for the purpose of photographs, genetic sampling, or 
tagging. These activities are controlled by permitsin both U.S. and 
Canadian waters, and potential negative impact on the animals is 
considered in the permitting process. While the potential for 
disturbance or harassment exists for scientificresearch, the overall 
impact from this activity on North Pacific right whales is likely 
minimal, and the information gained in this research may play a 
critical role in helping manage and recover the species.

Disease or Predation

    Disease and predation are not believed to be factors causing the 
North Pacific right whale to be in danger of extinction. Very little is 
known about disease in, or predation on, NorthPacific right whales. 
There have been no recorded epizootics in baleen whales. Reeves et al. 
(2001) presented the results of a workshop on right whale reproduction, 
which considered fivepossible factors including disease as explanations 
for the decline in North Atlantic right whales. The information 
reviewed and summarized, along with associated caveats at this 
NMFSworkshop, are likely applicable to other balaenids (Reeves et al., 
2001).
    The only four known cases of mass mortalities of baleen whales 
involved humpback whales (Megaptera novaeangliae) in the Northeast 
United States in 1987-1988, 2003, 2005, and 2006. Geraci et al. (1989) 
provide strong evidence that, in the former case, these deaths resulted 
from consumption of mackerel whose livers contained high levels of 
saxitoxin, a naturally occurring red-tide toxin originating with 
dinoflagellate (Alexandrium spp). It has been suggested that red tide 
phenomena are related to increased freshwater runoff from coastal 
development, leading some observers to suggest that such events may 
become more common among marine mammals as coastal development 
increases. There is currently no evidence linking red tide toxins to 
deaths or chronic health problems in North Pacific right whales.
    It is not known whether right whales suffer from stress-induced 
bacterial infections similar to those observed in captive cetaceans 
(Buck et al., 1987). Studies of bowhead whaleskilled in the Alaskan 
native hunt have provided information on bacterial, mycotic, and viral 
infections, but not on the level to which they contribute to mortality 
and morbidity (Philo et al.,1993). Skin lesions, found on all the 
hunted bowhead whales, were not malignant or contagious. However, 
potentially pathogenic microorganisms inhabit these lesions and may 
contribute toepidermal necrosis and the spread of disease (Shotts et 
al., 1990). Exposure of these roughened areas of skin to environmental 
contaminants, such as petroleum products, could have significant 
effects (Albert, 1981; Shotts et al., 1990); however, Bratton et 
al.(1993) concluded that such encounters were not likely to be 
hazardous. The occurrence of skin lesions on North Atlantic right 
whales has been documented in recent years (Marx et al., 1999; Pettis 
et al., 2004). The origins and significance of these lesions are 
unknown, and further research is required to determine whether they 
represent a topical or systemic health problem for the affected 
animals.The system developed by Pettis et al. (2004) to assess health 
and body condition of North Atlantic right whales is currently being 
applied to photographs of North Pacific right whales.
    Predation of right whales by killer whales and large shark species 
is likely to occur, but the level is not documented, and no attacks 
have been observed. North Atlantic right whalesbearing scars from 
killer whale, Orcinus orca, attacks have been photographed (Kraus, 
1990), but the number of whales killed by this predator is unknown 
(Perry et al., 1999). More recently, Mehta (2004) concluded that scars 
recorded on the flukes and bodies of North Atlantic right whales are 
more consistent with harassment by some smaller cetacean, possibly 
pilot whales, Globicephala spp., and do not originate from killer 
whales.
    Of 195 bowhead whales examined during the Alaskan subsistence hunt 
(1976-92), 8 had been wounded by killer whales (George et al., 1994). 
Seven of the eight bowhead whales were greater than 13 m in length, 
suggesting either that scars are accumulated over time, or young 
animals do not survive a killer whale attack. Hunters on St. Lawrence 
Island reported two small (<9 m) bowhead whales found dead as a result 
of killer whale attacks (George et al., 1994). Bowhead whales are 
pagophilic (``ice-loving''), unlike right whales, and ice-covered 
waters mayprovide some protection from killer whale attacks. The 
frequency of attacks is unknown, and killer whale distribution in the 
North Pacific has not been well documented (George et al., 1994).

The Inadequacy of Existing Regulatory Mechanisms

    Right whales are protected under both U.S. and Canadian law, and 
internationally by the IWC. At present, there is no information to 
indicate that existing regulatory mechanisms areinadequate, resulting 
in activities having adverse effects on North Pacific right whales. If 
additional studies reveal that significant impacts are occurring, it 
may be necessary to enhanceexisting laws or promulgate new regulations 
to reduce or eliminate these threats.

Other Natural or Manmade Factors Affecting its Continued Existence

    Vessel Collisions-The role vessel interactions play in the 
mortality of North Pacific rightwhales is not known. In the North 
Atlantic, ship collisions and fishing gear entanglements are the most 
common direct known causes of mortality in North Atlantic right whales 
(Kraus, 1990;Knowlton and Kraus, 1998; Gillespie and Leaper, 2001), but 
little is

[[Page 77702]]

known of the nature or extent of this problem in the North Pacific, and 
no collisions have been recorded. The areawhere right whales have been 
seen in recent surveys is not in a major vessel traffic lane. However, 
the proximity of the other known right whale habitats to shipping lanes 
(e.g., UnimakPass) suggests that collisions with vessels may represent 
a threat to North Pacific right whales. Because of the rarity of right 
whales, the impact to the species from even low levels ofinteraction 
could be significant.
    Fisheries Interactions-The eastern Bering Sea supports extensive 
fisheries, and, therefore, fishery interactions with right whales are 
possible. Types of gear that most frequently entangle North Atlantic 
right whales include pots and gillnets. Gillnet fisheries in the 
eastern Bering Sea occur in nearshore waters (state waters) not 
associated and generally not overlapping with known North Pacific right 
whale distribution. Pot fisheries occur in offshore waters, thoughthey 
are often prosecuted during seasons when right whales are not known to 
be present (i.e., winter).
    Entanglements of North Pacific right whales in fishing gear appear 
to be uncommon; though this may be due to the very low numbers of 
whales influencing the probability of encounter. Perry et al. (1999) 
reported two fishery-related mortalities due to entanglement in fishing 
gear from Russian waters (Kornev, 1994; NMFS, 1991). On review of the 
original records in the Platforms of Opportunity Program database, one 
of the encounters was actually a sighting and not an entanglement. 
Therefore, only one case of entanglement is known from the western 
North Pacific (Brownell et al., 2001), though the occurrence of right 
whales near pot fisheries in the Bering Sea creates a potential for 
interactions and, as with vessel collisions, the direct impact from 
even low levels of interaction could be significant.
    Several cases of entanglements of bowhead whales have been recorded 
during the Alaska Native subsistence hunt (Philo et al., 1992). These 
reports included three bowheads killed in thehunt with scars attributed 
to rope entanglements, one bowhead found dead entangled in ropes 
similar to those used with fishing gear in the Bering Sea, and one 
bowhead with ropes on it thatwere attributed to rigging from a 
commercial offshore fishing pot, most likely a crab pot. There have 
been two other recent reports of bowheads with gear attached or marks 
that likely werefrom crab gear (J. C. George, North Slope Borough, 
Barrow, AK, pers. comm.). Aerial photographs in at least two cases have 
shown ropes trailing from the mouths of bowheads (NMFS, NMML, 
unpublished data). A similar review of photographs of North Pacific 
right whales is planned.
    Injuries and entanglements that are not initially lethal may result 
in a gradual weakening of entangled individuals, making them more 
vulnerable to some other direct cause of mortality(Kenney and Kraus, 
1993). Entanglement-related stress may decrease an individual's 
reproductive success or reduce its life span, which may in turn depress 
population growth. Studies of scarring rates have been conducted in the 
North Atlantic to determine the frequency of right whale entanglements 
with fishing gear (Kraus, 1990; Hamilton et al., 1998b). Studies of 
scarring rates among North Pacific right whales would be difficult due 
to the extreme rarity of this species, but may provide significant 
insight into the extent of this problem in the North Pacific Ocean.
    Noise-Noise pollution may also have an impact on critical behaviors 
of marine mammals (e.g., foraging, mating, nursing), although the 
effect is unclear. Richardson et al. (1995) provides a review of the 
impacts of noise on marine mammals. It is unclear whether activities, 
such as oil exploration and development and shipping, adversely affect 
critical behaviors such as reproductive success, population 
productivity, and feeding activity. Some observations suggest that 
marine mammals can habituate to high levels of sound (Geraci and St. 
Aubin, 1980). However, playback experiments on gray and bowhead whales 
indicate these whales actively avoid very loud sources of noise (Malme 
et al., 1983).
    While certain species of large whales have shown behavioral changes 
in response to anthropogenic noise in the marine environment, there 
have been few studies of the effects ofanthropogenic noise on right 
whales specifically. In right whales, the level of sensitivity to noise 
disturbance and vessel activity appears related to the behavior and 
activity in which they are engaged at the time (Watkins, 1986; Mayo, 
Watkins, and Kraus pers. comm., as cited in NMFS, 1991; Kraus and Mayo, 
unpubl. data as cited in NMFS, 1991). In particular, feeding or 
courting right whales may be relatively unresponsive to loud sounds 
and, therefore, slow to react to approaching vessels or even oblivious 
to them. In general, the impact of noise from shipping or industrial 
activities on the communication, behavior, and distribution of right 
whales remains unknown.

Conservation Efforts

    When considering the listing of a species, section 4 (b)(1)(A) of 
the ESA requires consideration of efforts by any State, foreign nation, 
or political subdivision of a State or foreignnation to protect such 
species. Such efforts would include measures by Native tribes and 
organizations, local governments, and private organizations. Also, 
Federal, tribal, state, andforeign recovery actions (16 U.S.C. 
1533(f)), Federal consultation requirements (16 U.S.C. 1536), and 
prohibitions on taking (16 U.S.C. 1538) constitute conservation 
measures. On March 28, 2003, we and USFWS (the Services) published the 
final policy for evaluating conservation efforts (PECE)(68 FR 15100). 
The PECE provides guidance on evaluating current protectiveefforts 
identified in conservation agreements, conservation plans, management 
plans, or similar documents (developed by Federal agencies, state and 
local governments, tribal governments, businesses, organizations, and 
individuals) that have not yet been implemented, or have been 
implemented but have not yet demonstrated effectiveness. The PECE 
establishes two basic criteria for evaluating current conservation 
efforts: (1) the certainty that the conservation efforts will be 
implemented, and (2) the certainty that the efforts will be effective. 
The PECE provides specific factors under these two basic criteria that 
direct the analysis of adequacy and efficacy ofexisting conservation 
efforts.
    North Pacific right whales benefit from protections afforded by the 
MMPA and the ESA (by virtue of their current inclusion as part of the 
endangered northern right whale). Also, theMarine Conservation 
Alliance, with support from NMFS, has developed an outreach program and 
informational brochures to be distributed throughout the commercial 
fishing industry to alertfishermen to the presence of right whales, and 
to take proactive measures to avoid interaction. This Alliance is also 
coordinating with commercial shipping interests to extend this network 
sothat it might reach the commercial cargo vessels that transit the 
North Pacific. The effectiveness of such voluntary measures has not 
been determined.
    The Canadian Department of Fisheries and Oceans has prepared a 
draft National Recovery Strategy for the North Pacific right whale (E. 
japonica) in Canadian waters in thePacific Ocean. At this time the 
document has not been finalized.
    Except for the IWC hunting ban noted above, we are not aware of any 
other

[[Page 77703]]

conservation efforts undertaken by foreign nations specifically to 
protect North Pacific right whales. We support the conservation efforts 
currently in effect; however, these efforts lack certainty of 
implementation and effectiveness. In developing our final listing 
determination, we will consider the best available information 
concerning these conservation efforts and any other protective efforts 
for which we have information.

Proposed Listing Determination

    We have reviewed the status of the North Pacific right whale, 
considered the factors set forth in section 4 (a)(1) of the ESA, and 
taken into account any conservation efforts to protect the species. We 
conclude that the North Pacific right whale should be listed as an 
endangered species under the ESA because it is in danger of extinction 
throughout all of its range because of:(1) overutilization for 
commercial, recreational, scientific or educational purposes; and (2) 
other natural and manmade factors affecting its continued existence 
(see above for a description of these section 4 (a)(1) factors). This 
endangered determination is also supported by the fact that the factors 
confounding recovery have not been thoroughly identified and may 
continue to persist until more is known, and corrective actions can be 
taken.
    We also conclude that, at present, no protective or conservation 
measures are in place that substantially mitigate the factors affecting 
the future viability of this species. Based on the best available 
information, we propose to list the North Pacific right whale under the 
ESA as an endangered species.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction.
    Sections 7(a)(2) and (4) of the ESA require Federal agencies to 
consult with us to ensure that activities they authorize, fund, or 
conduct are not likely to jeopardize the continued existence of a 
listed species or a species proposed for listing, or to destroy or 
adversely modify critical habitat or proposed critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with us. 
Examples of Federal actions that may affect the North Pacific right 
whale include oil and gas development, seismic exploration, emerging 
chemical contaminant practices, vessel operations, and fishery 
management practices.
    Sections 10(a)(1)(A) and (B) of the ESA authorize us to grant 
exceptions to the ESA's Section 9 ''take'' prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may be issued 
to entities (Federal and non-federal) for scientific purposes or to 
enhance the propagation or survival of a listed species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets North 
Pacific right whales. Under section 10(a)(1)(B), the Secretary may 
permit takings otherwise prohibited by section 9(a)(1)(B) if such 
taking is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity.

NMFS Policies on Endangered and Threatened Fish and Wildlife

    On July 1, 1994, we and FWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270) and a policy to identify, to the maximum 
extent possible, those activities that would or would not constitute a 
violation of section 9 of the ESA (59 FR 34272).

Role of Peer Review

    The intent of the peer review policy is to ensure that listings are 
based on the best scientific and commercial data available. Prior to a 
final listing, we will solicit the expert opinions of three qualified 
specialists, concurrent with the public comment period. Independent 
specialists will be selected from the academic and scientific 
community, Federal and state agencies, and the private sector.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    The intent of this policy is to increase public awareness of the 
effect of our ESA listing on proposed and ongoing activities within the 
species' range. We will identify, to the extent known at the time of 
the final rule, specific activities that will be considered likely to 
result in violation of section 9, as well as activities that will not 
be considered likely to result in violation. Activities that we believe 
could result in violation of section 9 prohibitions against ``take'' of 
the North Atlantic right whale include, but are not limited to, the 
following: (1) Operating vessels in a manner that results in ship 
strikes or disrupts foraging, resting, or care for young; (2) fishing 
practices that can result in entanglement when lines, nets, or other 
gear are placed in the water column; (4) discharging or dumping toxic 
chemicals or other pollutants into areas used by North Pacific right 
whales; (5) scientific research activities; (6) Land/water use or 
fishing practices that result in reduced availability of prey species 
during periods when North Pacific right whales are present.
    We believe, based on the best available information, the following 
actions will not result in a violation of Section 9: (1) federally 
funded or approved projects for which ESA section 7 consultation has 
been completed, and that are conducted in accordance with any terms and 
conditions we provide in an incidental take statement accompanying a 
biological opinion; and (2) takes of North Pacific right whales that 
have been authorized by NMFS pursuant to section 10 of the ESA.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that we might or might not consider 
as constituting a take of North Pacific right whales.

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, critical habitat be designated concurrently 
with the final listing of a species under the ESA. Critical habitat has 
previously been designated for the Northern right whale in the North 
Pacific Ocean (71 FR 38277; July 6, 2006). The designation of the North 
Pacific right whale as a new species under the ESA necessitates the 
designation of critical habitat, replacing that previously designated. 
We intend to propose designation of critical habitat for the North 
Pacific right whale in a separate rulemaking.

Public Comments

    To ensure that final action resulting from this proposed rule will 
be as accurate and effective as possible and be based upon the best 
available scientific and commercial information, we solicit comment 
from the public, other governmental agencies, the scientific community, 
industry, and any other interested parties. 50 CFR 424.16(c)(3) 
requires the Secretary of Commerce to promptly hold at least one public 
hearing if any person requests one within 45 days of publication of a 
proposed regulation to list a species under the ESA. Requests for 
public hearing must be made in writing (see DATES and ADDRESSES). Such 
hearings provide the opportunity for interested individuals and parties 
to give comments, exchange information and opinions, and engage in a

[[Page 77704]]

constructive dialogue concerning this proposed rule. We encourage the 
public's involvement in such ESA matters.

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing 
to the best scientific and commercial data available. Based on this 
limitation of criteria for a listing decision and the opinion in 
Pacific Legal Foundation v. Andrus, 675 F 2d 825 (6th Cir.1981), we 
have concluded that ESA listing actions are not subject to the 
environmental assessment requirements of the National Environmental 
Policy Act. (see also NOAA Administrative Order 216-6.)

Executive Order (E.O.) 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this rule is exempt from review under E. O. 12866. This 
proposed rule does not contain a collection-of-information requirement 
for the purposes of the Paperwork Reduction Act.

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 proposed listing determination. In 
keeping with the intent of the Administration and Congress to provide 
continuing and meaningful dialogue on issues of mutual State and 
Federal interest, this proposed rule will be given to the relevant 
state agencies in each state in which the North Pacific right whale is 
believed to occur, who will be invited to comment.

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 proposed listing of the North Pacific right 
whale would not have tribal implications, nor affect any tribal 
governments or issues. The North Pacific right whale is not hunted by 
Alaskan Natives for traditional use or subsistence purposes.

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 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: December 20, 2006.
Samuel D. Rauch III.,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 224 as follows:

PART 224 ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
    2. Revise Sec.  224.101(b) to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead 
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis); 
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus); 
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal 
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae); 
Indus River dolphin (Platanista minor); Mediterranean monk seal 
(Monachus monachus); North Pacific right whale (Eubalaena japonica); 
Saimaa seal (Phoca hispida saimensis); Sei whale (Balaenoptera 
borealis); Sperm whale (Physeter catodon); Western North Pacific 
(Korean) gray whale (Eschrichtius robustus); Steller sea lion, western 
population, (Eumetopias jubatus), which consist