Endangered and Threatened Species; Designation of Critical Habitat for the North Pacific Right Whale, 61089-61105 [07-5367]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 208 (Monday, October 29, 2007)]
[Proposed Rules]
[Pages 61089-61105]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5367]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 070717354-7361-01]
RIN 0648-AV73


Endangered and Threatened Species; Designation of Critical 
Habitat for the North Pacific Right Whale

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

ACTION:  Proposed rule; request for comment.

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SUMMARY: We, NMFS, completed a status review of the northern right 
whale and have determined that the right whale in the North Pacific 
Ocean is a separate and distinct species from the right whales in the 
North Atlantic Ocean and southern hemisphere. We also find the species 
to be described in the North Pacific Ocean, the North Pacific right 
whale (Eubalaena japonica), is in danger of extinction throughout its 
range. We have proposed to list this species as endangered pursuant to 
the Endangered Species Act of 1973 (ESA). Here we propose to designate 
critical habitat for this species. Two specific areas are proposed for 
designation: one in the Gulf of Alaska (GOA) and another in the Bering 
Sea. Our most recent mapping calculation indicates this area comprises 
a total of approximately 36,800 square miles (95,325 square kilometers) 
of marine habitat. We solicited 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. We 
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 December 28, 2007. Requests for public hearings must be 
made in writing by December 13, 2007.

ADDRESSES:  You may submit comments, identified by 0648-AV73, by any 
one of the following methods:
     Electronic submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: https://
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
     Mail: Kaja Brix, Assistant Regional Administrator, 
Protected Resources Division, Alaska Region, NMFS, Attn: Ellen 
Sebastian, P. O Box 21668, Juneau, AK 99802
     Hand delivery to the Federal Building : 709 W. 9th Street, 
Juneau, Alaska .
     Fax: (907) 586-7012, Attn: Ellen Sebastian.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    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 ESA, as amended [16 U.S.C. 1531 et 
seq.], grants authority to and 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 and NMFS share 
responsibility for administering the ESA. Endangered or threatened 
species under the authority of NMFS are found in 50 CFR parts 223 and 
224.

Background

    The North Pacific right whale (E. japonica) is a member of the 
family Balaenidae and is closely related to the right whales that 
inhabit the North Atlantic and the Southern Hemisphere. Right whales 
are large baleen whales that grow to lengths and weights exceeding 18 
meters and 100 tons, respectively. They are filter feeders whose prey 
consists exclusively of zooplankton (notably copepods and euphausiids; 
see below). 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 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 GOA, 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 GOA 
(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 of Nations agreement. However, because neither Japan nor the 
USSR signed this agreement, both nations were theoretically free to 
continue right whaling until 1949, when

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the newly-created International Whaling Commission (IWC) endorsed this 
ban. Following this, a total of 23 North Pacific right whales were 
legally killed by Japan and the USSR under Article VIII of the 
International Convention for the Regulation of Whaling (1946), which 
permits the taking of whales for scientific research purposes. However, 
it is now known that the USSR illegally caught many right whales in the 
North Pacific (Doroshenko, 2000; Brownell et al., 2001; Ivashchenko, 
2007). In the eastern North Pacific, 372 right whales were killed by 
the Soviets between 1963 and 1967; of these, 251 were taken in the GOA 
south of Kodiak, and 121 in the Southeastern Bering Sea (SEBS). 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, the North Pacific 
right whale today is among the most endangered of all whales worldwide. 
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 in U.S. waters under the Marine Mammal 
Protection Act of 1972. NMFS issued a Recovery Plan for the northern 
right whale in 1991 which covered both the North Atlantic and North 
Pacific (NMFS, 1991).
    We have assumed the existence of a single species of right whales 
in the North Pacific (Hill et al.,1997). However, some authors (e.g., 
Klumov, 1962; Brownell et al., 2001) have discussed the possibility 
that North Pacific right whales exist in discrete eastern and western 
North Pacific populations. In particular, Brownell et al. (2001) 
pointed to the different catch and recovery histories of the eastern 
and western management units as support for such a division. During the 
1983 IWC right whale workshop (IWC, 1986), the Scientific Committee 
recommended distinguishing two North Pacific management units, but 
stated no conclusion can be reached concerning the identity of 
biological populations. At this writing, sub-division of this species 
remains equivocal, and we consider all North Pacific right whales to 
belong to the single species, E. japonica.
    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 GOA), 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, 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 specifically at right 
whales or otherwise) have detected small numbers of right whales in the 
SEBS, including an aggregation estimated at 24 animals in the summer of 
2004. Photo-identification and genetic data have identified 35 
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 GOA, including a sighting 
in August 2005 and September 2006, both of which occurred in the same 
area south of Kodiak Island. However, the overall number of North 
Pacific right whales 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). We 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. We published a proposed rule on December 27, 2006 (71 
FR 77694), to list the North Pacific right whale, E. japonica, 
separately as an endangered species.

Critical Habitat

     Section 3 of the ESA defines critical habitat (CH) as ``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 essential to the conservation of the species and 
which may require special management considerations or protection; and 
specific areas outside the geographical area occupied by the species at 
the time it is listed that are determined by the Secretary to be 
essential for the conservation of the species.'' Section 3 of the ESA 
(16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean ``to use, and the use of, 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.''
    Section 4 of the ESA requires that before designating CH, the 
Secretary consider economic impacts, impacts on national security, and 
other relevant impacts of specifying any particular area as CH. 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.

CH for the Northern Right Whale

    On July 6, 2006, we published a Final Rule (71 FR 38277) to revise 
the CH for the northern right whale by designating areas within the 
North Pacific Ocean as CH under the ESA. Two specific areas were 
designated, one in the GOA and another in the Bering Sea. These are the 
same areas being proposed here for the North Pacific right whale. In 
our 2006 Final Rule (71 FR 38277; July 6, 2006) we stated the critical 
habitat comprised approximately 36,750 square miles (95,200 sq km) of 
marine habitat. However, our most recent mapping calculation indicates 
that the area is approximately 95,325 square miles (36,800 square 
miles) of marine habitat. A description of, and the basis for, the 
proposed designation follow.

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 North Pacific right whale, it is necessary to establish this range 
when proposing to designate CH.
    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 North Pacific right 
whale had been

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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 now. Consequently, 
recent habitat use is unlikely to be different from that at or before 
the time of listing.
    Both the SEBS and the western GOA (shelf and slope waters south of 
Kodiak) have been the focus of many sightings (as well as the illegal 
Soviet catches) in recent decades. In general, the majority of North 
Pacific right whale sightings (historically and in recent times) have 
occurred from about 40[deg] N to 60[deg] N latitude (lat.). There are 
historical records from north of 60[deg] N lat., but these are rare and 
are likely to have been misidentified bowhead whales. North Pacific 
right whales have on rare occasions been recorded off California and 
Mexico, as well as off Hawaii. However, as noted by Brownell et al. 
(2001), there is no evidence that either Hawaii or the west coast of 
North America from Washington State to Baja California were ever 
important habitats for right whales. Given the amount of whaling effort 
as well as the human population density in these regions, it is highly 
unlikely that substantial concentrations of right whales would have 
passed unnoticed. Furthermore, no archaeological evidence exists from 
the U.S. west coast suggesting that right whales were the target of 
local native hunts. Consequently, the few records from this region are 
considered to represent vagrants. The geographical area occupied by the 
North Pacific right whale at the time of ESA listing extends over a 
broad area of the North Pacific Ocean, between 120[deg] E and 123[deg] 
W longitude and 40[deg] N and 60[deg] N latitude, as 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 to be ``essential for the conservation of 
the species.'' 50 CFR 424.12(e) specifies that NMFS ``shall designate 
as critical habitat areas outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species.'' 
We are not 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 North Pacific 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

    In determining what areas are CH, 50 CFR 424.12(b) requires that we 
``consider those physical or biological features that are essential to 
the conservation of a given species including space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing of offspring; 
and habitats that are protected from disturbance or are representative 
of the historical geographical and ecological distribution of a 
species.'' The regulations 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 
``known 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 right whales in the North 
Pacific during a workshop held during July 2005. Unfortunately, many 
data gaps exist in our knowledge of the ecology and biology of these 
whales, and very little is known about the PCEs that might be necessary 
for their conservation. The life-requisites for such factors as 
temperatures, depths, substrates, are unknown, or may be highly 
variable. One certainty is the metabolic necessity of prey species to 
support feeding by right whales. Examination of harvested whales in the 
North Pacific and limited plankton tows near feeding right whales in 
recent years show these whales feed on several species of zooplankton. 
We have determined these are described by several species of large 
copepods and other zooplankton which constitute the primary prey of the 
North Pacific right whale. The PCEs for the North Pacific right whale 
are species of large zooplankton in areas where right whale are known 
or believed to feed. In particular, these are: the copepods Calanus 
marshallae, Neocalanus cristatus, and N. plumchrus. and a euphausiid, 
Thysanoessa raschii, whose very large size, high lipid content, and 
occurrence in the region likely makes it a preferred prey item for 
right whales (J. Napp, pers. comm.). A description of the proposed CH 
(below) establishes the presence of these PCEs within those areas. 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, but have been documented in the Atlantic. Accordingly, the 
proposed CH encompasses areas in which the physical and biological 
oceanography combines to promote high productivity and aggregation of 
large copepods into patches of sufficient density for right whales. The 
PCEs, essential for the conservation of the North Pacific right whale, 
and these physical forcing or concentrating mechanisms, contribute to 
the habitat value of the areas 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.'' We considered 
whether the copepods and other zooplankton which have been identified 
as the PCEs for the North Pacific right whale may require special 
management considerations or protection. The proposed CH areas support 
extensive and multi-species commercial fisheries for pollock, flatfish, 
cod, various crabs, and other resources (but not salmon, as salmon 
fisheries in Alaska are restricted to State waters, except in the case 
of trolling which is permitted in Federal waters but only immediately 
adjacent to the Southeast Alaska coastline; these areas are not 
included in the proposed CH areas). We believe the identified PCEs 
would not be harmed by these Federally managed fisheries. However, 
plankton communities and species are vulnerable to physical and 
chemical alterations within the water column due to both natural 
processes, such as global climate change or the Pacific Decadal 
Oscillation, as well as pollution from various potential sources, 
including oil spills, discharges from oil and gas drilling and 
production, and fish processing waste discharges. Because of the 
vulnerabilities to pollution sources, these PCEs may require special 
management or protection through such measures as conditioning Federal 
permits or authorizations through special operational restraints, 
mitigative measures, or technological changes. The 2005 wreck of the M/
V Selendang Ayu near Unalaska caused the release of approximately 
321,000 gallons (1,215,117 litres) of fuel oil and 15,000 gallons 
(56,781 litres) of diesel into the Bering Sea. That incident has 
precipitated recommendations for regulations which would improve 
navigational safety in the area for the protection of the marine 
environment. While such protections are not targeted towards copepods 
or zooplankton per se, they would act to conserve these PCEs.
    We request comment on the extent to which the designated PCEs may 
require special management considerations or protection. The 
contributions of these management measures are also relevant to the 
exclusion analysis under section 4(b)(2) of the ESA, and will be 
considered further in a later section of this notice.

Proposed Critical Habitat

    The current abundance of North Pacific right whales 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 SEBS since 1996 is somewhat 
extraordinary in that it may

[[Page 61094]]

represent a significant portion of the remaining population. These 
areas of concentration where right whales feed are characterized by 
certain physical and biological features which include nutrients, 
physical oceanographic processes, certain species of zooplankton, and 
long photoperiod due to the high latitude. We consider these feeding 
areas, supporting a significant assemblage of the remaining North 
Pacific right whales, to be critical in terms of their conservation 
value. We have based our proposed designation of CH on these areas, 
rather than where right whales have appeared singly, in low numbers, or 
in transit. We have been able to substantiate this assumption with 
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: an area of the SEBS and an 
area south of Kodiak Island in the GOA.
    Shelden et al. (2005) reviewed prey and habitat characteristics of 
North Pacific right whales. They noted that habitat selection is often 
associated with features that influence abundance and availability of a 
predator's prey. Right whales in the North Pacific are known to prey 
upon a variety of zooplankton species. Availability of these 
zooplankton greatly influences the distribution of right whales on 
their feeding grounds in the SEBS and GOA. Right whales require 
zooplankton patches of very high density, and zooplankton are typically 
small and distributed over space and time (Mayo and Marx, 1990). 
Typical zooplankton sampling is too broad-scale in nature to detect 
patches of these densities, and directed studies employing fine-scale 
sampling cued by the presence of feeding right whales are the only 
means of doing this (Mayo and Marx, 1990). Accordingly, there may be no 
obvious correlation between the abundance and distribution of prey 
copepods and euphausiids (as measured by broad-scale oceanographic 
sampling) and the distribution of right whales (M. Baumgartner, in 
prep.) In light of this, we must rely upon the whales themselves to 
indicate the location of important feeding areas in the North Pacific. 
Aggregations of right whales in high latitudes can be used with high 
confidence as an indicator of the presence of suitable concentrations 
of prey, and thus of feeding behavior by the whales. Right whales feed 
daily during spring and summer, and studies in the North Atlantic have 
consistently found an association between concentrations of whales and 
feeding behavior, with dense copepod patches recorded by oceanographic 
sampling around such groups of whales (Mayo and Marx, 1990; Baumgartner 
et al., 2003a, 2003b). In the North Atlantic, an analysis of sighting 
data by NMFS indicated that a density of four or more right whales per 
100 nm2 was a reliable indicator of a persistent feeding aggregation 
(Clapham and Pace, 2001), and this had been used for Dynamic Area 
Management fisheries closures to reduce the risk of right whales 
becoming entangled in fishing gear. While this metric is a reliable 
indicator of the presence of feeding aggregations in the North 
Atlantic, it is not necessarily the only metric suitable for 
application in the North Pacific; the much smaller population of right 
whales in the eastern North Pacific Ocean typically results in 
sightings of single animals or pairs. Unlike with larger groups, such 
small numbers sometimes indicate transient passage through an area and 
thus cannot be unequivocally linked with feeding behavior. However, 
while sporadic sightings of right whales in such small numbers 
generally would not be considered a reliable indication of a feeding 
area, consistent sightings of right whales - even of single individuals 
and pairs - in a specific area in spring and summer over a long period 
of time is sufficient indication that the area is a feeding area 
containing suitable concentrations of copepods.
    Therefore, in the absence of data which describe the densities, as 
well as presence, of the PCEs themselves, the distribution of right 
whales is used here as a proxy for the existence of suitably dense 
copepod and euphausiid patches and thus to identify the areas proposed 
herein for designation as CH. Figure 2 depicts the proposed critical 
habitats and the best available sightings data.
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Gulf of Alaska

    We propose to designate CH in the GOA (Figure 3), 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 (EEZ) and outside of 
waters of the State of Alaska. State waters extend seaward for 3 
nautical miles from the shoreline; very few sightings occurred within 
state waters. The best available sightings data on right whales in this 
area totaled 5 out of 14 encounters in the GOA.

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Southeastern Bering Sea

    We propose to designate CH in the Bering Sea (Figure 4); to be 
described as an area described by a series of straight lines connecting 
the following coordinates in the order listed: 58[deg]00' N/168[deg]00' 
W, 58[deg]00'N/163[deg]00' W, 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 EEZ and outside of 
waters of the State of Alaska. State waters extend seaward for 3 
nautical miles from the shoreline. Because very few sightings occurred 
within 3 nautical miles of shore, State waters are not included in the 
proposed CH. The best available information on right whale encounters 
occurring totaled 182 within this area, out of 184 encounters north of 
the Aleutian Islands.

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Physical Processes and the Existence of 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. Western North 
Pacific right whales have been observed in association with oceanic 
frontal zones that produce eddies southeast of Hokkaido Island, Japan, 
and southeast of Cape Patience (Mys Terpeniya), Sakhalin Island, in the 
Okhotsk Sea (Omura et al., 1969). Whether the Bering Slope Current, or 
eddies shed from it, support production or entrain right whale prey is 
unknown.
    From August to October in 1955 and 1956, Soviet scientists observed 
aggregations of Calanus spp. between the Pribilof Islands and the 
Aleutian Islands (around 170[deg] W long.) that were identified as C. 
finmarchicus, though, as mentioned above, were probably C. marshallae 
(Klumov, 1963). Flint et al. (2002) also report high concentrations of 
C. marshallae at frontal zones near the Pribilof Islands, with 
especially high biomass noted for the subthermohaline layer. This 
oceanographic front effectively separates slope and outer shelf 
Neocalanus spp. from the inshore middle shelf community of C. 
marshallae (Vidal and Smith, 1986). Right whales were found on both 
sides of this frontal zone (that coincides with the shelf break at 170 
m) during both the 19\th\ and 20\th \centuries. This is similar to the 
habitat described by Baumgartner et al. (2003a) for right whales 
feeding in the North Atlantic. Six right whales that were caught under 
scientific permit in late July-early August 1962-63 in Bering Sea slope 
waters had exclusively consumed N. cristatus (C. cristatus: Omura et 
al., 1969). Although oceanic species such as Neocalanus spp. usually 
enter diapause and migrate to depths greater than 200 m by late summer 
in the slope waters of the Bering Sea (Vidal and Smith, 1986), right 
whales may still be able to utilize these resources by targeting 
regions where the bottom mixed layer forces the zooplankton into 
shallower, discrete layers (e.g. Baumgartner et al., 2003a).

Southeastern Bering Sea Middle-Shelf Waters

    The SEBS shelf has been the focus of intense oceanographic study 
since the late 1970s (e.g. Schumacher et al., 1979; Coachman, 1986; 
Napp et al., 2000; Hunt et al., 2002a; Hunt et al., 2002b), largely due 
to the considerable commercial fishing effort in the area (National 
Research Council, 1996). Coachman (1986) described the now well-
established hydrographic domains of the inner-, middle- and outer-
shelf, separated by a front or transition zone at roughly the 50 m 
(inner front) and 100 m (outer front) isobaths. During the 1990s, 
research focused on these domains demonstrated dynamic advection of 
nutrient-rich Bering slope water onto the shelf in both winter and 
summer, via eddies, meanders, and up-canyon flow (Schumacher and 
Stabeno, 1998; Stabeno and Hunt, 2002). These intrusions of nutrient-
rich water, physical factors related to water column stratification, 
and long summer day length results in a very productive food web over 
the SEBS shelf (e.g. Livingston et al.,1999; Napp et al., 2002; Coyle 
and Pinchuk, 2002; Schumacher et al., 2003). Specifically, copepod 
species upon which right whales feed (e.g., C. marshallae, 
Pseudocalanus spp., and Neocalanus spp.) are among the most abundant of 
the zooplankton sampled over the middle shelf (Cooney and Coyle, 1982; 
Smith and Vidal, 1986). Small, dense patches (to >500 mg/m-\-3\) of 
euphausiids (T. raschii, T. inermis), potential right whale prey, have 
also been reported for waters near the SEBS inner front (Coyle and 
Pinchuk, 2002).
    Zooplankton sampled near right whales seen in the SEBS in July 1997 
included C. marshallae, P. newmani, and Acartia longiremis (Tynan, 
1998). C. marshallae was the dominant copepod found in these samples as 
well as samples collected near right whales in the same region in 1999 
(Tynan et al., 2001). C. marshallae is the only ``large'' calanoid 
species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith 
and Vidal, 1986). Concentrations of copepods were significantly higher 
in 1994-98 than in 1980-81 by at least an order of magnitude (Napp et 
al., 2002), 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 (ACC), which flow westward near the shelf break. The 
bottom topography of this region is rugged and includes seamounts, 
ridges, and submarine canyons along with the abyssal plain. Strong 
semi-diurnal tides and current flow generate numerous eddies and 
meanders (Okkonen et al., 2001) that influence the distribution of 
zooplankton.
     Copepods are the dominant taxa of mesozooplankton found in the GOA 
and are patchily distributed across a wide variety of water depths. In 
northern GOA shelf waters, the late winter and spring zooplankton is 
dominated by calanoid copepods (Neocalanus spp.), with a production 
peak in May a cycle that appears resistant to environmental variability 
associated with El Nino Southern Oscillation (ENSO) (Coyle and Pinchuk, 
2003). In oceanic waters (50[deg] N lat., 145[deg] W long.), N. 
plumchrus dominate (Miller and Nielsen, 1988; Miller and Clemons, 1988) 
and have demonstrated dramatic shifts in the timing of annual peak 
biomass from early May to late July (Mackas et al., 1998). From late 
summer through autumn, N. plumchrus migrate to deep water ranging from 
200 m to 2000 m depending on location within the GOA (Mackas et al., 
1998). The three right whales caught under scientific permit on August 
22, 1961, south of Kodiak Island had all consumed N. plumchrus (C. 
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 GOA. Both areas are influenced 
by large eddies, submarine canyons, or frontal zones which enhance 
nutrient exchange and act to concentrate prey. These areas lie adjacent 
to major ocean currents (the ACC and the Aleutian ocean passes) and are 
characterized by relatively low circulation and water movement (P. 
Stabeno, pers. com.). Both proposed CH areas contain the designated 
PCEs and support feeding by North Pacific right whales.

Right Whale Sightings as a Proxy for Locating the PCEs

    As noted above, consistent sightings of right whales - even of 
single individuals and pairs - in a specific area in spring and summer 
over an extended

[[Page 61101]]

period of time can be used with high confidence as an indicator of the 
presence of the PCEs in a feeding area. We have used recent sighting 
records to make this determination because these records are a more 
reliable indicator of current distribution of feeding whales than 
historical sightings, especially given that most of the latter relate 
to animals that were removed from the population by whaling and are 
thus no longer extant. Of the 184 recent right whale sitings 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., 2004) and over 23 
sightings in 2004. Single right whales as well as pairs and 
aggregations of up to five animals were sighted during this period, and 
all sightings were within 100 nm2 of one another. Based on 
consideration of these factors, we conclude that the right whale 
sightings in the specific area in the Bering Sea described in Figure 2 
are a suitable proxy for the presence of the PCEs and therefore propose 
this area as critical habitat for the North Pacific right whale. 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 et al., 2003). In August 2004, a NMFS 
researcher observed a single right whale among a group of humpbacks. In 
August 2005, a NMFS researcher reported yet another sighting of a right 
whale within 250 to 500 meters of groups of humpback and fin whales. 
Acoustic monitoring of the area conducted in summer 2000 recorded what 
appeared to be right whale calls in the area on September 6 (Waite, 
Wynne and Mellinger, 2003). Compared to the Bering Sea sightings, the 
GOA right whale sightings do not provide as strong an indication of 
feeding right whales. However, individual right whales have been 
directly observed in 1998, 2004, and 2005 and detected acoustically in 
2000 during the spring and summer feeding seasons in the specific area 
in the GOA described in Figure 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, we propose 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 North 
Pacific right whale.

Activities Which may be Affected by This Designation

    Section 4(b)(8) of the ESA requires that we evaluate briefly and 
describe, in any proposed or final regulation to designate critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. A wide 
variety of activities may affect 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 
(OCS), Federal management of high seas fisheries in territorial waters 
and the EEZ of the United States, dredge and fill, mining, pollutant 
discharges, other activities authorized or conducted by the Army Corps 
of Engineers and the Environmental Protection Agency (EPA), and 
military training exercises and other functions of the U.S. armed 
forces.
     This proposed designation of CH will provide these agencies, 
private entities, and the public with clear notification of proposed CH 
for North Pacific right whales 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 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 data available and after taking into 
consideration its economic impact, the impact on 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. We will 
apply the statutory provisions of the ESA, including those in section 3 
that define ``critical habitat'' and ``conservation'' to determine 
whether a proposed action might result in the destruction or adverse 
modification of 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 time frame of our 
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.
    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 
has announced support for this activity. However, we lack specific 
information regarding this potential exploration and development 
activity and have been unable to gather information on these 
activities. Therefore, we specifically request 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. Any 
information we acquire 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 we expect 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 the North Pacific right whale, 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. We did not find any specific areas in which the costs exceed 
benefits for activities that may affect CH, and we have therefore not 
proposed the exclusion of any areas from designation.

[[Page 61102]]

    This action is anticipated to result in consultations with EPA on 
seafood processing waste discharges; with the Department of Defense 
(DoD) on military ``underway training'' activities it authorizes; and 
with the U.S. Coast Guard (USCG) and Minerals Management Service (MMS) 
on approvals of oil spill response plans, 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 we believe that the 
benefits of exclusion are outweighed by the benefits of inclusion. Our 
analysis (available on the NMFS Alaska Region website https://
www.fakr.noaa.gov/ ) did not find any specific areas which merit such 
exclusion in consideration of economics, nor have we determined that 
national security interests or other relevant impact warrant the 
exclusion of any specific areas from this proposed designation. We 
solicit comments on these benefits and costs as well as our 
determinations.

Public Comments Solicited

    We request interested persons to submit comments, information, and 
suggestions concerning this proposed rule to designate CH for the North 
Pacific right whale. Comments or suggestions from the public, other 
concerned governments and agencies, the scientific community, 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 the 
North Pacific right whale;
    (2) Information as to the identification of physical or biological 
features which may be essential to the conservation of the North 
Pacific right whale;
    (3) Information on whether the copepods and euphausiids in feeding 
areas identified by NMFS as PCEs, or any other physical or biological 
features that may be essential to the conservation of the North Pacific 
right whale, may require special management considerations or 
protection;
    (4) Information regarding the benefits of excluding any portions of 
the proposed CH, including the regulatory burden that 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 designation; and
    (9) Whether specific unoccupied areas not presently proposed for 
designation may be essential to the conservation of the North Pacific 
right whale.
    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/. We will 
consider all comments and information received during the comment 
period on this proposed rule in 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 designate CH. Requests for 
public hearing must be made in writing (see ADDRESSES) by December 13, 
2007. 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. We 
encourage 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 (E.O.) 12866. As part of our exclusion 
process under section 4(b)(2) of the ESA, the economic benefits and 
costs of the proposed critical habitat designations are described in 
our draft economic report. Data are not available to express all costs 
and benefits of CH designation in monetary terms. Indeed, many costs 
and benefits accrue outside of traditional markets and, therefore, are 
not typically associated with a ``monetary'' measure (e.g., subsistence 
activities). In such cases, an effort has been made to ``quantify'' 
benefits and costs in measurable units. Finally, some benefits and 
costs cannot be either monetized, nor quantified, yet are important to 
a full evaluation and understanding of a proposed action. In these 
instances, benefits and costs have been fully characterized in 
``qualitative'' terms. Application of a benefit/cost framework is fully 
consistent with E.O. 12866.
    In July 2006, NMFS revised the existing critical habitat for 
northern right whales to include critical habitat in the eastern North 
Pacific (71 FR 38227, July 6, 2006). Subsequently, it was determined 
that the North Atlantic and North Pacific populations of northern right 
whale are, in fact, distinct species. This rule, therefore, proposes as 
critical habitat for the North Pacific right whale (currently proposed 
for listing 71 FR 77694, December 27, 2006) the same critical habitat 
that was finalized in 2006. The proposal would not have any additional 
effect because the habitat proposed for designation is the same that 
was designated in the previous rule. The analysis provided largely 
mirrors the analysis provided in the previous rulemaking, updated as 
necessary to account for new information, and does not result in any 
substantive changes to the analytical conclusions.

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). 
We have prepared an initial regulatory flexibility analysis (IRFA), and 
this document is available upon request (see ADDRESSES). This IRFA 
evaluates the potential effects of

[[Page 61103]]

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 North Pacific right whale. 
Submission of such a request for a Federal agency's approval, from a 
small entity, would require that agency (i.e., the 'action agency') to 
consult with NMFS (i.e., the 'consulting agency').
    Consultations vary, from simple to complex, depending on the 
specific facts of each action or activity for which application is 
made. Attributable costs are directly proportionate to complexity. In 
the majority of instances projected to take place under the proposed 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 conclusion of formal consultation, 
the applicant must implement modifications to avoid such effects. These 
modifications could result in adverse economic impacts.
    An examination of the Federal agencies with management, 
enforcement, or other regulatory authority over activities or actions 
within, or immediately adjacent to, the proposed CH area, resulted in 
the following list. Potential action agencies may include: the EPA, 
USCG, DoD, MMS, and NMFS. Activities or actions with a nexus to these 
Federal agencies which are expected to require consultation include: 
EPA permitting of seafood processing waste discharges at-sea; USCG and 
MMS oil spill response plan approval, as well as emergency oil spill 
response; DoD authorization of military training activities in the 
Bering Sea and Aleutian Islands (BSAI) and GOA; MMS leasing activity, 
oil and gas exploration and production permitting, and NMFS fishery 
management actions in the BSAI and GOA.
    A 10-year ``post-CH designation'' analytical horizon was adopted, 
during which time we 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-consultations'' 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 
North Pacific right whale, as well as the foregoing assumptions, 
empirical data, historical information, and accumulated experience 
regarding human activity in the BSAI and GOA, it is believed that only 
one federally authorized activity (among all those identified in the 
analyses and referenced above) has the potential to ``destroy or 
adversely modify'' right whale CH, albeit believed to be a relatively 
small potential. This one class of activity is 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 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). Ten exploratory wells were permitted, all of 
which were completed in 1984 and 1985 (with no subsequent associated 
exploration activity). It appears that there has been no recent OCS oil 
and gas activity in and adjacent to the areas being proposed for 
critical habitat designation. MMS reports no planned or scheduled OCS 
lease sales for these areas through 2007 (the end of the current 5-year 
Lease-Sale planning cycle). However, both seismic acquisition and 
leasing took place in the adjacent North Aleutian Basin Planning Area 
through Sale 92 held in 1988. Leases were held until 1995, when a 
``buy-back'' settlement was reached between leaseholders and the 
Federal government. There are no current OCS lease holdings in the St. 
George Basin or North Aleutian Basin Planning Areas. In January 2007, 
the President modified the Presidential withdrawal for the North 
Aleutian Basin, allowing the Secretary of the Interior to offer this 
OCS planning area for leasing during the next 5-year OCS leasing 
program (2007-2012). The 2007-2012 program now includes a lease sale in 
the North Aleutian Basin to be held in 2011. MMS may also offer a sale 
in the North Aleutian Basin which would be confined to a small portion 
of the planning area previously offered during lease sale 92 in 1988.
    When MMS records were consulted as to the identity of the entities 
that previously held lease rights to the wells in the St. George Basin, 
six businesses were listed for the ten permitted exploratory wells. 
These include: SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3 
wells); EXXON Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged 
with EXXON); GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well). 
MMS records also indicate that the following nine companies submitted 
bids, jointly or individually, on blocks in the North Aleutian Basin 
under lease sale 92 held in 1988: Chevron, Unocal, Conoco, Murphy, 
Odeco, Amoco, Shell, Mobil, and Pennzoil. These data were last updated, 
according to the MMS website, 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).
    The preferred alternative was compared to the mandatory 'No Action' 
(or status quo) alternative. In addition, a third alternative was 
analyzed and its expected benefits and costs contrasted with the status 
quo and preferred alternatives. That alternative was based upon the 
proposed areas of the Bering Sea identified in an October 2000 petition 
that requested critical habitat be designated for the northern right 
whale within the North Pacific Ocean.
    Because there appear to be no identifiable economic costs to any 
small entities attributable to the CH designation action, there cannot 
be an alternative to the proposed action that imposes lesser impacts, 
while achieving the purpose of the ESA and the objectives of this 
action, than are reflected in the preferred alternative.
    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

[[Page 61104]]

complete, by November 17, 2001, an Integrated Natural Resource 
Management Plan. The National Defense Authorization Act for Fiscal Year 
2004 (Public Law No. 108-136) amended the ESA to limit areas eligible 
for designation as critical habitat. Specifically, section 
4(a)(3)(B)(i) of the ESA (16 U.S.C. 1533(a)(3)(B)(i)) now provides: 
``The Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an integrated 
natural resources management plan prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a benefit to the species for which critical habitat 
is proposed for designation.'' We have determined no military lands 
would be impacted by this proposed rule.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O.) on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking any action that promulgates or is expected to 
lead to the promulgation of a final rule or regulation that (1) is a 
significant regulatory action under E.O. 12866 and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy.
    We have considered the potential impacts of this action on the 
supply, distribution, or use of energy, and we find the designation of 
critical habitat will not have impacts that exceed the thresholds 
identified above.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (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 mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.'' The 
designation of 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