Endangered and Threatened Species; Designation of Critical Habitat for North Pacific Right Whale, 19000-19014 [E8-7233]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 68 (Tuesday, April 8, 2008)]
[Rules and Regulations]
[Pages 19000-19014]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-7233]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 070717354-8251-02]
RIN 0648-AV73


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

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

ACTION: Final rule.

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SUMMARY: We, NMFS, designate critical habitat for the North Pacific 
right whale in this rulemaking. The North Pacific right whale was 
recently listed as a separate, endangered species, and because this was 
a newly listed entity, we were required to designate critical habitat 
for it.

DATES: This rule is effective on May 8, 2008.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection by appointment duringnormal business hours at the 
NMFS Alaska Region, 709 W. 9th Street, Juneau, AK 21688.

FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS Alaska Region (907) 
271-5006; Kaja Brix, NMFS, Alaska Region, (907) 586-7235; or Marta 
Nammack, (301) 713-1401, ext. 180. The final rule, references, and 
other materials relating to this determination can be found on our 
website at https://www.fakr.noaa.gov/.

SUPPLEMENTARY INFORMATION:

Background

    On December 27, 2006, we published a proposed rule (71 FR 77694) to 
list the North Pacific right whale (Eubalaena japonica) as an 
endangered species pursuant to the Endangered Species Act (ESA) (16 
U.S.C. 1531 et seq.), and we listed this species as endangered on March 
6, 2008 (73 FR 12024). On October 29, 2007, we published a proposed 
rule (72 FR 61089) to designate critical habitat for the North Pacific 
right whale. We proposed the same two areas that we had previously 
designated as critical habitat for the northern right whale in the 
North Pacific Ocean (71 FR 38277, July 6, 2006). We now designate these 
same areas as critical habitat for the North Pacific right whale. A 
description of, and the basis for, the designation follows.

Critical Habitat Designations Under the ESA

    Section 3 of the ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed . . . on which are found those physical or biological 
features (I) essential to the conservation of the species and which may 
require special management considerations or protection; and (II) 
specific areas outside the geographical area occupied by the species at 
the time it is listed upon a determination by the Secretary to be 
essential for the conservation of the species.'' Section 3 of the ESA 
(16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean ``to use, and the use of, 
all methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.''
    In determining what areas meet the definition of critical habitat, 
50 CFR 424.12(b) requires that we ``consider those physical or 
biological features that are essential to the conservation of a given 
species including space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing of offspring; and habitats that are 
protected from disturbance or are representative of the historical 
geographical and ecological distribution of a species.'' The 
regulations refine our task by directing us to ``focus on the principal 
biological or physical

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constituent elements . . . that are essential to the conservation of 
the species,'' and specify that the ``known primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify primary constituent elements (PCEs) as including, 
but not limited to: ``roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quality or quantity, 
host species or plant pollinator, geological formation, vegetation 
type, tide, and specific soil types.'' An area within the geographic 
area occupied by the species must contain one or more PCEs to be 
eligible for designation as critical habitat; an area upon which no PCE 
is found may not be designated in the hope it will acquire one or more 
PCEs in the future.
    Section 4 of the ESA requires that, before designating critical 
habitat, the Secretary consider economic impacts, impacts on national 
security, and other relevant impacts of specifying any particular area 
as critical habitat. The Secretary may exclude any area from critical 
habitat if the benefits of exclusion outweigh the benefits of 
inclusion, unless excluding an area from critical habitat will result 
in the extinction of the species concerned. Once critical habitat is 
designated, section 7(a)(2) of the ESA requires that each Federal 
agency, in consultation with and with the assistance of NMFS, ensure 
that any action authorized, funded, or carried out by such agency is 
not likely to result in the destruction or adverse modification of 
critical habitat.

Geographical Area Occupied by the Species

    The ESA defines critical habitat (in part) as areas within the 
geographical area occupied by the species at the time it was listed 
under the ESA. Prior to the onset of commercial whaling in 1835, right 
whales were widely distributed across the North Pacific (Scarff, 1986; 
Clapham et al., 2004; Shelden et al., 2005). By 1900 they were scarce 
throughout their range. Japan and the USSR did not sign a League of 
Nations agreement in 1935 to protect right whales, so they continued 
right whaling until 1949, when the newly created International Whaling 
Commission endorsed the ban. After this, 23 North Pacific right whales 
were legally killed by Japan and the USSR under Article VIII of the 
International Convention for the Regulation of Whaling (1946), which 
permits the taking of whales for scientific research purposes. However, 
it is now known that the USSR illegally caught many right whales in the 
North Pacific (Doroshenko, 2000; Brownell et al., 2001; Ivashchenko, 
2007). By 1973, the North Pacific right whale had been severely reduced 
by commercial whaling. Sighting data from this remnant population are 
too sparse to identify the range of these animals in 1973. However, no 
reason exists to suspect that the right whales that remain alive today 
inhabit a substantially different range than right whales alive during 
the time of the Soviet catches; indeed, given the longevity of this 
species, it is likely that some of the individuals who survived that 
whaling episode remain alive now. Consequently, recent habitat use is 
unlikely to be different today.
    Both the SEBS and the western GOA (shelf and slope waters south of 
Kodiak) have been the focus of many sightings (as well as the illegal 
Soviet catches) in recent decades. In general, the majority of North 
Pacific right whale sightings (historically and in recent times) have 
occurred from about 40[deg] N to 60[deg] N latitude (lat.). There are 
historical records from north of 60[deg] N lat., but these are rare and 
are likely to have been misidentified bowhead whales. North Pacific 
right whales have on rare occasions been recorded off California and 
Mexico, as well as off Hawaii. However, as noted by Brownell et al. 
(2001), there is no evidence that either Hawaii or the west coast of 
North America from Washington State to Baja California were ever 
important habitats for right whales. Given the amount of whaling effort 
as well as the human population density in these regions, it is highly 
unlikely that substantial concentrations of right whales would have 
passed unnoticed. Furthermore, no archaeological evidence exists from 
the U.S. west coast suggesting that right whales were the target of 
local native hunts. Consequently, the few records from this region are 
considered to represent vagrants.
    For the foregoing reasons, we determine that the geographical area 
occupied by the North Pacific right whale at the time of ESA listing 
extends over a broad area of the North Pacific Ocean, between 120[deg] 
E and 123[deg] W longitude and 40[deg] N and 60[deg] N latitude, as 
shown in Figure 1.
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Unoccupied Areas

    ESA section 3(5)(A)(ii) further defines critical habitat to include 
``specific areas outside the geographical area occupied'' if the areas 
are determined by the Secretary to be ``essential for the conservation 
of the species.'' 50 CFR 424.12(e) specifies that NMFS ``shall 
designate as critical habitat areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species.'' We are not designating any specific areas not occupied at 
the time of listing because insufficient information exists to identify 
any such areas that are essential to the conservation of the species. 
Future revisions to the critical habitat of the North Pacific right 
whale may consider new information which might lead to designation of 
areas outside the occupied area of these whales.

Primary Constituent Elements (PCEs)

    NMFS scientists considered PCEs for right whales in the North 
Pacific during a workshop held during July 2005. Unfortunately, many 
data gaps exist in our knowledge of the ecology and biology of these 
whales, and very little is known about the PCEs that might be necessary 
for their conservation. The life-requisites for such factors as 
temperatures, depths, substrates, are unknown, or may be highly 
variable. One certainty is the metabolic necessity of prey species to 
support feeding by right whales. Examination of harvested whales in the 
North Pacific and limited plankton tows near feeding right whales in 
recent years show these whales feed on several species of zooplankton. 
Several species of large copepods and other zooplankton constitute the 
primary prey of the North Pacific right whale. Therefore, we have 
determined that the PCEs for the North Pacific right whale are species 
of large zooplankton in areas where right whale are known or believed 
to feed. In particular, these are the copepods Calanus marshallae, 
Neocalanus cristatus, and N. plumchrus, and a euphausiid, Thysanoessa 
raschii, whose very large size, high lipid content, and occurrence in 
the region likely makes it a preferred prey item for right whales (J. 
Napp, pers. comm.). A description of the critical habitat (below) 
establishes the presence of these PCEs within the designated areas. In 
addition to the physical presence of these PCEs within the critical 
habitat, it is likely that certain physical forcing mechanisms are 
present which act to concentrate these prey species in densities which 
allow for efficient foraging by right whales. There may in fact be 
critical or triggering densities below which right whale feeding does 
not occur. Such densities are not presently described for North Pacific 
right whales in the North Pacific, but have been documented in the 
Atlantic. Accordingly, the critical habitat encompasses areas in which 
the physical and biological oceanography combines to promote high 
productivity and aggregation of large copepods into patches of 
sufficient density for right whales. The PCEs, essential for the 
conservation of the North Pacific right whale, and these physical 
forcing or concentrating mechanisms, contribute to the habitat value of 
the areas designated.

Special Management Considerations or Protection

    An occupied area may be designated as critical habitat if it 
contains physical or biological features that ``may require special 
management considerations or protection.'' 50 CFR 424.02(j) defines 
``special management considerations or protection'' to mean ``any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species.'' 
We considered whether the copepods and other zooplankton which have 
been identified as the PCEs for the North Pacific right whale may 
require special management considerations or protection. The designated 
critical habitat areas support extensive and multi-species commercial 
fisheries for pollock, flatfish, cod, various crabs, and other 
resources (but not salmon, as salmon fisheries in Alaska are restricted 
to State waters, except in the case of trolling which is permitted in 
Federal waters but only immediately adjacent to the Southeast Alaska 
coastline; these areas are not included in the designated critical 
habitat areas). We believe the identified PCEs would not be harmed by 
these federally managed fisheries. However, plankton communities and 
species are vulnerable to physical and chemical alterations within the 
water column due to both natural processes, as well as pollution from 
various potential sources, including oil spills and discharges from oil 
and gas drilling and production. Because of the vulnerabilities to 
pollution sources, these PCEs may require special management or 
protection through such measures as conditioning Federal permits or 
authorizations through special operational restraints, mitigation 
measures, or technological changes. The 2005 wreck of the M/V Selendang 
Ayu near Unalaska caused the release of approximately 321,000 gallons 
(1,215,117 litres) of fuel oil and 15,000 gallons (56,781 litres) of 
diesel into the Bering Sea. That incident has precipitated 
recommendations for regulations which would improve navigational safety 
in the area for the protection of the marine environment. While such 
measures are not targeted towards protecting copepods or zooplankton 
per se, they would act to conserve these PCEs.

PCEs in the Critical Habitat and Related Physical Processes

    The current abundance of North Pacific right whales is considered 
to be very low in relation to historical numbers or their carrying 
capacity, which is not determined. The existence of a persistent 
concentration of North Pacific right whales found within the SEBS since 
1996 is somewhat extraordinary in that it may represent a significant 
portion of the remaining population. These areas of concentration where 
right whales feed are characterized by certain physical and biological 
features which include nutrients, physical oceanographic processes, 
certain species of zooplankton, and long photoperiod due to the high 
latitude. These feeding areas, supporting a significant assemblage of 
the remaining North Pacific right whales, are critical in terms of 
their conservation value. We have been able to substantiate this 
conclusion with observations of feeding behavior, direct sampling of 
plankton near feeding right whales, or records of stomach contents of 
dead whales. These conclusions underlie the designation of the critical 
habitat areas shown in Figure 2 and described below. Two areas are 
designated: an area of the SEBS and an area south of Kodiak Island in 
the GOA.
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    Shelden et al. (2005) reviewed prey and habitat characteristics of 
North Pacific right whales. They noted that habitat selection is often 
associated with features that influence abundance and availability of a 
predator's prey. Right whales in the North Pacific are known to prey 
upon a variety of zooplankton species. Availability of these 
zooplankton greatly influences the distribution of right whales on 
their feeding grounds in the SEBS and GOA. Right whales require 
zooplankton patches of very high density, and zooplankton are typically 
small and distributed over space and time (Mayo and Marx, 1990). 
Typical zooplankton sampling is too broad-scale in nature to detect 
patches of these densities, and directed studies employing fine-scale 
sampling cued by the presence of feeding right whales are the only 
means of doing this (Mayo and Marx, 1990). Accordingly, there may be no 
obvious correlation between the abundance and distribution of prey 
copepods and euphausiids (as measured by broad-scale oceanographic 
sampling) and the distribution of right whales (M. Baumgartner, in 
prep.). In light of this, we must rely upon the whales themselves to 
indicate the location of important feeding areas in the North Pacific. 
Aggregations of right whales in high latitudes can be used with high 
confidence as an indicator of the presence of suitable concentrations 
of prey, and thus of feeding behavior by the whales. Right whales feed 
daily during spring and summer, and studies in the North Atlantic have 
consistently found an association between concentrations of whales and 
feeding behavior, with dense copepod patches recorded by oceanographic 
sampling around such groups of whales (Mayo and Marx, 1990; Baumgartner 
et al., 2003a, 2003b). In the North Atlantic, an analysis of sighting 
data by NMFS indicated that a density of four or more right whales per 
100 nm\2\ was a reliable indicator of a persistent feeding aggregation 
(Clapham and Pace, 2001), and this had been used for Dynamic Area 
Management fisheries closures to reduce the risk of right whales 
becoming entangled in fishing gear. While this metric is a reliable 
indicator of the presence of feeding aggregations in the North 
Atlantic, it is not necessarily the only metric suitable for 
application in the North Pacific; the much smaller population of right 
whales in the eastern North Pacific Ocean typically results in 
sightings of single animals or pairs. Unlike with larger groups, such 
small numbers sometimes indicate transient passage through an area and 
thus cannot be unequivocally linked with feeding behavior. However, 
while sporadic sightings of right whales in such small numbers 
generally would not be considered a reliable indication of a feeding 
area, consistent sightings of right whales - even of single individuals 
and pairs - in a specific area in spring and summer over a long period 
of time is sufficient indication that the area is a feeding area 
containing suitable concentrations of copepods.
    Therefore, in the absence of data which describe the densities, as 
well as presence, of the PCEs themselves, sightings of right whales is 
used here as a proxy for the existence of suitably dense copepod and 
euphausiid patches and thus to identify the areas proposed herein for 
designation as critical habitat. Figure 2 depicts the designated 
critical habitat and the best available sightings data.
Gulf of Alaska
    We designate critical habitat in the GOA (Figure 3), described as 
an area delineated by a series of straight lines connecting the 
following coordinates in the order listed: 57[deg] 03' N/153[deg] 00' 
W, 57[deg] 18' N/151[deg] 30' W, 57[deg] 00' N/151[deg] 30' W, 56[deg] 
45' N/153[deg] 00' W, and returning to 57[deg] 03' N/153 00' W. The 
area described by these boundaries lies completely within the waters of 
the United States and its Exclusive Economic Zone (EEZ) and outside of 
waters of the State of Alaska. State waters extend seaward for 3 
nautical miles from the shoreline; very few sightings occurred within 
State waters. The best available sightings data on right whales in this 
area totaled 5 out of 14 encounters in the GOA.
Southeastern Bering Sea
    We also designate critical habitat in the Bering Sea (Figure 4), 
described as an area delineated by a series of straight lines 
connecting the following coordinates in the order listed: 58[deg] 00' 
N/168[deg] 00' W, 58[deg] 00' N/163[deg] 00' W, 56[deg] 30' N/161[deg] 
45' W, 55[deg] 00' N/166[deg] 00' W, 56[deg] 00' N/168[deg] 00' W and 
returning to 58[deg] 00' N/168[deg] 00prime; W. The area described by 
these boundaries lies completely within the waters of the United States 
and its EEZ and outside of waters of the State of Alaska. State waters 
extend seaward for 3 nautical miles from the shoreline. Because very 
few sightings occurred within 3 nautical miles of shore, State waters 
are not included in the proposed critical habitat. The best available 
information on right whale encounters occurring totaled 182 within this 
area, out of 184 encounters north of the Aleutian Islands.

Physical Processes and the Existence of PCEs Within the Critical 
Habitat

Southeastern Bering Sea Slope Waters
    The Bering Sea slope is a very productive zone, sometimes referred 
to as the ``Greenbelt'', where annual primary production can exceed 
that on the adjacent shelf and basin by 60 percent and 270 percent, 
respectively (Springer et al., 1996). Physical processes at the shelf 
edge, such as intensive tidal mixing, eddies, and up-canyon flow bring 
nutrients to the surface, thereby supporting enhanced productivity and 
elevated biomass of phytoplankton, zooplankton, and fish. Western North 
Pacific right whales have been observed in association with oceanic 
frontal zones that produce eddies southeast of Hokkaido Island, Japan, 
and southeast of Cape Patience (Mys Terpeniya), Sakhalin Island, in the 
Okhotsk Sea (Omura et al., 1969). Whether the Bering Slope Current, or 
eddies shed from it, support production or entrain right whale prey is 
unknown.
    From August to October in 1955 and 1956, Soviet scientists observed 
aggregations of Calanus spp. between the Pribilof Islands and the 
Aleutian Islands (around 170[deg] W long.) that were identified as C. 
finmarchicus, though, as mentioned above, were probably C. marshallae 
(Klumov, 1963). Flint et al. (2002) also report high concentrations of 
C. marshallae at frontal zones near the Pribilof Islands, with 
especially high biomass noted for the subthermohaline layer. This 
oceanographic front effectively separates slope and outer shelf 
Neocalanus spp. from the inshore middle shelf community of C. 
marshallae (Vidal and Smith, 1986). Right whales were found on both 
sides of this frontal zone (that coincides with the shelf break at 170 
m) during both the 19\th\ and 20\th\ centuries. This is similar to the 
habitat described by Baumgartner et al. (2003a) for right whales 
feeding in the North Atlantic. Six right whales that were caught under 
scientific permit in late July-early August 1962-63 in Bering Sea slope 
waters had exclusively consumed N. cristatus (Omura et al., 1969). 
Although oceanic species such as Neocalanus spp. usually enter diapause 
and migrate to depths greater than 200 m by late summer in the slope 
waters of the Bering Sea (Vidal and Smith, 1986), right whales may 
still be able to utilize these resources by targeting regions where the 
bottom mixed layer forces the zooplankton into shallower, discrete 
layers (e.g., Baumgartner et al., 2003a).

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Southeastern Bering Sea Middle-Shelf Waters
    The SEBS shelf has been the focus of intense oceanographic study 
since the late 1970s (e.g., Schumacher et al., 1979; Coachman, 1986; 
Napp et al., 2000; Hunt et al., 2002a; Hunt et al., 2002b), largely due 
to the considerable commercial fishing effort in the area (National 
Research Council, 1996). Coachman (1986) described the now well-
established hydrographic domains of the inner, middle, and outer shelf, 
separated by a front or transition zone at roughly the 50 m (inner 
front) and 100 m (outer front) isobaths. During the 1990s, research 
focused on these domains demonstrated dynamic advection of nutrient-
rich Bering slope water onto the shelf in both winter and summer via 
eddies, meanders, and up-canyon flow (Schumacher and Stabeno, 1998; 
Stabeno and Hunt, 2002). These intrusions of nutrient-rich water, 
physical factors related to water column stratification, and long 
summer day length results in a very productive food web over the SEBS 
shelf (e.g. Livingston et al.,1999; Napp et al., 2002; Coyle and 
Pinchuk, 2002; Schumacher et al., 2003). Specifically, copepod species 
upon which right whales feed (e.g., C. marshallae, Pseudocalanus spp., 
and Neocalanus spp.) are among the most abundant of the zooplankton 
sampled over the middle shelf (Cooney and Coyle, 1982; Smith and Vidal, 
1986). Small, dense patches (to >500 mg per cubic meter) of euphausiids 
(T. raschii, T. inermis), potential right whale prey, have also been 
reported for waters near the SEBS inner front (Coyle and Pinchuk, 
2002).
    Zooplankton sampled near right whales seen in the SEBS in July 1997 
included C. marshallae, P. newmani, and Acartia longiremis (Tynan, 
1998). C. marshallae was the dominant copepod found in these samples as 
well as samples collected near right whales in the same region in 1999 
(Tynan et al., 2001). C. marshallae is the only ``large'' calanoid 
species found over the SEBS middle shelf (Cooney and Coyle, 1982; Smith 
and Vidal, 1986). Concentrations of copepods were significantly higher 
in 1994-98 than in 1980-81 by at least an order of magnitude (Napp et 
al., 2002). Tynan et al. (2001) suggest that this increased production 
may explain the presence of right whales in middle shelf waters. 
However, at least three right whales were observed in 1985 in the same 
location as the middle shelf sightings reported in the late 1990s 
(Goddard and Rugh, 1998).
Gulf of Alaska
    The central GOA is dominated by the Alaskan gyre, a cyclonic 
feature that is demarcated to the south by the eastward flowing North 
Pacific Current and to the north by the Alaska Stream and Alaska 
Coastal Current (ACC), which flow westward near the shelf break. The 
bottom topography of this region is rugged and includes seamounts, 
ridges, and submarine canyons along with the abyssal plain. Strong 
semi-diurnal tides and current flow generate numerous eddies and 
meanders (Okkonen et al., 2001) that influence the distribution of 
zooplankton.
    Copepods are the dominant taxa of mesozooplankton found in the GOA 
and are patchily distributed across a wide variety of water depths. In 
northern GOA shelf waters, the late winter and spring zooplankton is 
dominated by calanoid copepods (Neocalanus spp.), with a production 
peak in May, a cycle that appears resistant to environmental 
variability associated with El Nino Southern Oscillation (ENSO) (Coyle 
and Pinchuk, 2003). In oceanic waters (50[deg] N lat., 145[deg] W 
long.), N. plumchrus dominate (Miller and Nielsen, 1988; Miller and 
Clemons, 1988) and have demonstrated dramatic shifts in the timing of 
annual peak biomass from early May to late July (Mackas et al., 1998). 
From late summer through autumn, N. plumchrus migrate to deep water 
ranging from 200 m to 2000 m depending on location within the GOA 
(Mackas et al., 1998). The three right whales caught under scientific 
permit on August 22, 1961, south of Kodiak Island had all consumed N. 
plumchrus (Omura et al., 1969), potentially by targeting areas where 
adult copepods remained above 200 m (e.g. Baumgartner et al., 2003a).
    The area designated as critical habitat within the SEBS presents 
several similarities to that designated within the GOA. Both areas are 
influenced by large eddies, submarine canyons, or frontal zones which 
enhance nutrient exchange and act to concentrate prey. These areas lie 
adjacent to major ocean currents (the ACC and the Aleutian ocean 
passes) and are characterized by relatively low circulation and water 
movement (P. Stabeno, pers. com.). Both critical habitat areas contain 
the designated PCEs and support feeding by North Pacific right whales.

Right Whale Sightings as a Proxy for Locating the PCEs

    As noted above, consistent sightings of right whales - even of 
single individuals and pairs - in a specific area in spring and summer 
over an extended period of time can be used with high confidence as an 
indicator of the presence of the PCEs in a feeding area. We have used 
recent sighting records to make this determination because these 
records are a more reliable indicator of current distribution of 
feeding whales than historical sightings, especially given that most of 
the latter relate to animals that were removed from the population by 
whaling and are thus no longer extant. Of the 184 recent right whale 
sightings reported north of the Aleutian Islands, 182 occurred within 
the specific area designated as critical habitat in the Bering Sea. 
Since 1996, right whales have been consistently sighted in this area 
over a period of years during the spring and summer feeding seasons. 
For example, NMFS surveys alone recorded between two and four sightings 
in 1996 (Goddard and Rugh, 1998), 13 sightings in 2000 (Le Duc et al., 
2004) and over 23 sightings in 2004. Single right whales as well as 
pairs and aggregations of up to five animals were sighted during this 
period, and all sightings were within 100 nm\2\ of one another. Based 
on consideration of these factors, we conclude that the right whale 
sightings in the specific area in the Bering Sea described in Figure 4 
are a suitable proxy for the presence of the PCEs in this area.
    Recent sightings of right whales are fewer in number in the GOA 
than in the Bering Sea. However, three individuals were sighted 
recently in the critical habitat area designated in the GOA. These 
sightings occurred at a time when right whales typically feed in the 
North Pacific Ocean. In July 1998, a single right whale exhibiting 
behavior consistent with feeding activity was observed among a group of 
about eight humpback whales (Waite et al., 2003). In August 2004, a 
NMFS researcher observed a single right whale among a group of 
humpbacks. In August 2005, a NMFS researcher reported yet another 
sighting of a right whale within 250 to 500 meters of groups of 
humpback and fin whales. Acoustic monitoring of the area conducted in 
summer 2000 recorded what appeared to be right whale calls in the area 
on September 6 (Waite et al., 2003). Compared to the Bering Sea 
sightings, the GOA right whale sightings do not provide as strong an 
indication of feeding right whales. However, individual right whales 
have been directly observed in 1998, 2004, and 2005 and detected 
acoustically in 2000 during the spring and summer feeding seasons in 
the specific area in the GOA described in Figure 3. It is also 
instructive that one of these animals was exhibiting feeding behavior 
at the

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time it was observed. Based on consideration of these factors, we 
conclude that the right whale sightings in the specific area in the GOA 
described in Figure 3 are a reasonably reliable proxy for the presence 
of the PCEs in this area.

Response to Comments

    Comment 1: A commenter supports our February 2002 finding that 
critical habitat cannot be designated for the (North Pacific right 
whale) because the essential biological requirements of the population 
were not sufficiently understood.
    Response: In October 2000, we were petitioned to revise the 
critical habitat for the northern right whale by designating an 
additional area in the North Pacific Ocean. In February 2002, we 
announced our decision that critical habitat could not be designated at 
that time because the essential biological and habitat requirements of 
the population were not sufficiently understood. However, in June 2005, 
a Federal court found this reasoning invalid and remanded the matter to 
us for further action (Center for Biological Diversity v. Evans, Civ. 
No. 04-4496, N.D. Cal. June 14, 2005). In compliance with that order, 
we subsequently revised the northern right whale's critical habitat by 
designating areas within the Gulf of Alaska (GOA) and Bering Sea as 
critical habitat under the ESA. We believe that relating the presence 
of feeding concentrations of right whales in the North Pacific Ocean to 
habitat attributes was, and remains, an appropriate basis upon which to 
designate critical habitat for the North Pacific right whale.
    Comment 2: There is no supporting evidence that: (1) concentrations 
of sightings are not due to sampling area; (2) concentration of Primary 
Constituent Elements are distinctly different in the designated areas; 
or (3) the population of the North Pacific right whale shows any 
specific habitat preference.
    Response: Survey effort directed toward right whales has not been 
evenly distributed throughout their range. This is largely due to their 
very small population size, very large range, and limits on research 
funding. The area in the southeastern Bering Sea (SEBS) where right 
whales have often been observed since 1996 has received relatively 
greater survey effort. However, we are required to base critical 
habitat designations using the best scientific data available, 
including survey effort, and we have done so here.
    We believe the described PCE (zooplankton species) concentrations 
are distinctly different in the designated areas. Our scientists 
concluded that aggregations of right whales in high latitudes can be 
used with high confidence as an indicator of the presence of suitable 
concentrations of prey, and thus of feeding behavior by the whales. 
Shelden et al. (2005) reviewed prey and habitat characteristics of 
northern right whales in the North Pacific and noted that habitat 
selection is often associated with features that influence abundance 
and availability of the whales' prey. Right whales in the North Pacific 
are known to prey upon a variety of zooplankton species. Availability 
of these zooplankton greatly influences the distribution of these 
whales on their feeding grounds in the SEBS and GOA. Because few data 
exist to describe the concentrations of these primary constituent 
elements between areas, we must rely upon the whales themselves to 
indicate the location of such concentrations, which are important 
feeding areas in the North Pacific.
    Regarding habitat preference, right whales feed daily during spring 
and summer, and studies in the North Atlantic have consistently found 
an association between concentrations of whales and feeding behavior, 
with dense zooplankton patches recorded by oceanographic sampling 
around such groups of whales. In the North Pacific, we believe the 
persistent presence of right whales within a certain area during summer 
months strongly indicates the presence of zooplankton concentrations in 
right whale feeding grounds.
    Comment 3: The proposed critical habitat designations fail to 
provide for recovery, so the designation should include unoccupied 
right whale habitat.
    Response: Section 3(5)(A)(i) of the ESA requires us to identify 
specific areas within the geographical area occupied by the species 
that contain physical or biological features that may require special 
management considerations or protection. Section 3(5)(A)(ii) requires 
that specific areas outside the geographical area occupied by the 
species only fall within the definition of critical habitat if the 
Secretary determines that the area is essential for conservation. Our 
regulations further provide that we will designate unoccupied areas 
``only when a designation limited to [the species'] present range would 
be inadequate to ensure the conservation of the species (50 CFR 
424.12(e)).''
    We found no information that would support designation of critical 
habitat in unoccupied areas. While historic data include sightings and 
other records of North Pacific right whales outside of the geographic 
area occupied by the species at the time it was listed, we do not have 
information allowing us to determine that the specific areas designated 
as critical habitat within the geographical area occupied by the 
species are inadequate for conservation, and that other unoccupied 
areas are essential for conservation.
    Comment 4: The extent of the areas proposed for designation as 
critical habitat in the North Pacific Ocean is not sufficient to 
provide for the recovery of the northern right whale. NMFS should also 
designate as critical habitat those areas which were historically used 
by right whales in the North Pacific. NMFS should provide critical 
habitat designations that are over-inclusive, rather than under-
inclusive.
    Response: Our ability to identify critical habitat as defined in 
the ESA is limited by the level of information available to describe 
the biology and ecology of the North Pacific right whale. We have 
identified two specific areas within which are found biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. The available 
scientific information on this species limits our ability to identify 
any additional specific areas meeting the definition of critical 
habitat. We anticipate modifications to the present designation may 
occur as more scientific information becomes available. For example, as 
we gather more information, the designation may be revised to 
encompass: (1) additional areas in which zooplankton concentrations are 
found to occur; or (2) the physical or biological features that 
comprise suitable calving grounds.
    Comment 5: The precautionary principle requires NMFS to designate 
other areas with similar features or habitat conditions as critical 
habitat.
    Response: It is unclear what ``similar features'' the commenter 
refers to here. We have used recent sighting records of feeding right 
whales as a proxy for the location of PCEs necessary to describe 
critical habitat. The ESA does not permit designation of specific areas 
containing features ``similar'' to the PCEs identified. The PCEs must 
be found in designated areas. Research on northern right whales 
indicates that these animals are able to locate prey in densities 
needed to meet their metabolic needs. Recent research indicates that 
right whales are feeding specialists that require exceptionally high 
densities of prey. The physical and biological parameters necessary to 
produce these ``lenses'' of highly concentrated zooplankton in the 
North Pacific are not

[[Page 19008]]

understood. While other areas in the North Pacific may contain features 
that provide for the production of zooplankton and that may act as 
forcing mechanisms for the concentration of these zooplankton, we 
currently lack information as to whether the features in those areas 
actually concentrate the prey into aggregations sufficiently dense to 
encourage and sustain feeding by right whales. Similarly, we do not 
have sufficient information to characterize the areas designated as 
critical habitat based on other physical or biological characteristics. 
Lacking such information, we rely on the presence of zooplankton, as 
evidenced by recent observations of feeding right whales, to identify 
critical habitat for the North Pacific right whale.
    Comment 6: The primary constituent elements should be revised to 
include those habitat components that are essential for the primary 
biological needs of feeding, reproducing, resting, and migrating, and 
include all marine waters, along with associated marine aquatic flora 
and fauna in the water column, and the underlying marine benthic 
community.
    Response: As stated above, existing scientific information is not 
sufficient to describe the essential habitat components for many of the 
biological needs identified in the comment. For instance, the calving 
areas of the North Pacific right whales remain unknown, making it 
impossible to describe the essential features of such habitat. As noted 
in the previous response, we do not have sufficient information at this 
time to characterize the areas designated as critical habitat based on 
other physical or biological characteristics.
    Comment 7: The proposed critical habitat designation is 
inconsistent in basing designation on sighting effort, which is not 
consistent over the range of the North Pacific right whale. NMFS also 
fails to include historical data which show concentrations of North 
Pacific right whales in other areas that can be assumed to have 
important habitat attributes. The designation should be expanded. 
Specifically, this should include the SEBS, including the southern 
portion of the shelf break and the area of high prey and whale 
concentration to the west of the shelf break.
    Response: The ESA defines critical habitat, in part, as those areas 
occupied by the species at the time of listing on which the identified 
PCEs are found. We have insufficient basis to conclude that the PCEs 
are found in other areas, or occurred in the past century. The current 
sighting data are the best available data that can be used to determine 
that the PCEs are found on the designated areas. We considered the 
utility of historic data in identifying and designating critical 
habitat. Many records of the commercial whalers are general in nature 
and do not provide specific locations, information on the numbers of 
whales present at the time of the sighting or harvest, or descriptions 
of their behavior (e.g., whether the sightings indicated feeding 
behavior). Therefore, we concluded that the more recent sightings data 
from the time of listing represented the best evidence of the current 
presence of the PCEs in specific feeding areas.
    Comment 8: NMFS data demonstrate right whales are found through 
Unimak Pass and eastward to Kodiak Island. These waters also contain 
important features or serve important biological needs and should be 
added to the areas proposed for designation.
    Response: We have few data describing the migratory movements of 
right whales in the North Pacific Ocean. While it is likely right 
whales move through major ocean passes, we cannot determine at this 
time which passes right whales use. We will continue to collect 
information on the right whale's habitat use to identify migration 
corridors and determine whether PCEs are found within these areas.
    Comment 9: More research is needed to describe PCEs for the North 
Pacific right whale.
    Response: The NMFS National Marine Mammal Laboratory and other NOAA 
components are now conducting research on the North Pacific right whale 
and its habitat. We understand that there is a need to better identify 
and describe the habitat for these whales, along with their basic 
biology. We will continue to conduct and advocate research in this 
area.

Activities That May Be Affected by This Designation

    Section 4(b)(8) of the ESA requires that we evaluate briefly and 
describe, in any proposed or final regulation to designate critical 
habitat, those activities involving a Federal action that may adversely 
modify such habitat or that may be affected by such designation. A wide 
variety of activities may affect critical habitat and, when carried 
out, funded, or authorized by a Federal agency, require that an ESA 
section 7 consultation be conducted. Such activities include, but are 
not limited to, oil and gas leasing and development on the Outer 
Continental Shelf (OCS), Federal management of high seas fisheries in 
territorial waters and the EEZ of the United States, dredge and fill, 
mining, pollutant discharges, other activities authorized or conducted 
by the Army Corps of Engineers and the Environmental Protection Agency 
(EPA), and military training exercises and other functions of the U.S. 
Armed Forces.
    This designation of critical habitat will provide these agencies, 
private entities, and the public with clear notification of the 
designation of critical habitat for North Pacific right whales and the 
boundaries of the habitat. This designation will also assist these 
agencies and others in evaluating the potential effects of their 
activities on critical habitat and in determining if section 7 
consultation with NMFS is required.

Exclusion Process

    Section 4 (b)(2) of the ESA states that critical habitat shall be 
designated after taking into consideration its economic impact, the 
impact on national security, and any other relevant impact. Any 
particular area may be excluded from critical habitat designation if 
the benefits of exclusion are found to outweigh those of inclusion, 
unless such exclusion would result in the extinction of the species. We 
will apply the statutory provisions of the ESA, including those in 
section 3 that define ``critical habitat'' and ``conservation'' to 
determine whether a proposed action might result in the destruction or 
adverse modification of critical habitat.
    Based upon the best available information, it appears there exists 
some probability of oil or gas exploration activities within (or 
immediately adjacent to) the North Pacific right whale critical habitat 
within the next 10 years. There are no commercial production facilities 
in operation, currently under development, nor permitted for future 
development, within these critical habitat areas. As only exploratory 
activities are expected within the next 10 years, there is little 
expectation that Federal actions in the oil and gas sector will have 
the potential to destroy or adversely modify the critical habitat 
within the analytical time horizon.
    While we expect to consult annually on fishery related proposed 
actions that may affect the critical habitat, none of these actions 
would be expected to destroy or adversely modify the critical habitat; 
thus, none would be expected to result in imposition of costs on 
commercial fishery participants. Because fisheries do not target or 
affect the PCEs for the North Pacific right whale, no fishing or 
related activity (e.g., at-sea processing, transiting) would be 
expected to be restricted or

[[Page 19009]]

otherwise altered as a result of critical habitat.
    This action is anticipated to result in consultations with EPA on 
seafood processing waste discharges; with the DoD on military 
``underway training'' activities it authorizes; and with the U.S. Coast 
Guard (USCG) and MMS on approvals of oil spill response plans, among 
others. It is unlikely that these activities will destroy or adversely 
modify the critical habitat; thus, no mandatory modifications would be 
required. It follows that no costs, beyond the small costs attributable 
to inter-agency (occasionally intra-agency) consultation, result from 
this designation. As explained in the impacts analysis prepared for 
this action, some larger benefit accrues to society as a result of 
designation, including the educational value derived from 
identification and designation of the critical habitat areas within 
which the PCEs are found. Thus we believe that the benefits of 
exclusion are outweighed by the benefits of inclusion. Our analysis 
(see ADDRESSES) did not find any specific areas which merit such 
exclusion in consideration of economics, nor have we determined that 
national security interests or other relevant impacts warrant the 
exclusion of any specific areas from this designation.
    The results of our 4(b)(2) analysis are further summarized in the 
CLASSIFICATION section below.

Classification

National Environmental Policy Act (NEPA)

    We have determined that we need not prepare environmental analyses 
for critical habitat designations made pursuant to the ESA. See Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 
1042 (1996).

Regulatory Flexibility Act (RFA)

    Critical habitat designations are subject to the RFA. Under the RFA 
(5 U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is 
required to publish a notice of proposed rulemaking, it must prepare 
and make available for public comment a regulatory flexibility analysis 
that describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
We have prepared an initial regulatory flexibility analysis (IRFA) for 
the proposed rule and a final regulatory flexibility analysis (FRFA) 
for this final rule. The FRFA incorporates the IRFA and any comments 
received on the economic impacts of the rule. These documents are 
available upon request (see ADDRESSES). A summary of the analysis 
follows.
    The small entities that may be directly regulated by this action 
are those that seek formal approval (e.g., a permit) from, or are 
otherwise authorized by, a Federal agency to undertake an action or 
activity that ``may affect'' critical habitat for the North Pacific 
right whale. Submission of such a request for a Federal agency's 
approval, from a small entity, would require that agency (i.e., the ' 
action agency') to consult with NMFS (i.e., the 'consulting agency').
    Consultations vary from simple to complex, depending on the 
specific facts of each action or activity for which application is 
made. Attributable costs are directly proportionate to complexity. In 
the majority of instances projected to take place under the proposed 
critical habitat designation, these costs are expected to accrue solely 
to the Federal agencies that are party to the consultation. In only 
formal consultations might it be expected that a private sector 
applicant could potentially incur costs directly attributable to the 
consultation process itself. Furthermore, if destruction or adverse 
modification of critical habitat is found at the conclusion of formal 
consultation, the applicant must implement modifications to avoid such 
effects. These modifications could result in adverse economic impacts.
    An examination of the Federal agencies with management, 
enforcement, or other regulatory authority over activities or actions 
within, or immediately adjacent to, the critical habitat area indicated 
that potential action agencies may include: the EPA, USCG, DoD, MMS, 
and NMFS. Activities or actions with a nexus to these Federal agencies 
which are expected to require consultation include: EPA permitting of 
seafood processing waste discharges at-sea; USCG and MMS oil spill 
response plan approval, as well as emergency oil spill response; DoD 
authorization of military training activities in the Bering Sea and 
Aleutian Islands (BSAI) and GOA; MMS leasing activity, oil and gas 
exploration and production permitting, and NMFS fishery management 
actions in the BSAI and GOA.
    A 10-year ``post-designation'' analytical horizon was adopted, 
during which time we may reasonably expect to consult an estimated 27 
times on critical habitat-related actions with one or more of the 
action agencies identified above. The majority of the consultations are 
expected to be ``informal,'' projected to represent approximately 52 
percent of the total. The more complex and costly ``formal'' 
consultations are projected to account for perhaps 37 percent, while 
the simplest and least costly ``pre-consultations'' are expected to 
account for 11 percent of the total. These figures reflect the best 
estimates information and experience can presently provide.
    On the basis of the underlying biological, oceanographic, and 
ecological science used to identify the PCEs that define critical 
habitat for the North Pacific right whale, as well as the foregoing 
assumptions, empirical data, historical information, and accumulated 
experience regarding human activity in the BSAI and GOA, it is believed 
that only OCS oil and gas exploration and production has the potential, 
albeit relatively small, to ``destroy or adversely modify'' right whale 
critical habitat.
    As previously indicated, MMS has authority over OCS oil and gas 
permitting. An examination of published information from the MMS Alaska 
Region reveals that three MMS OCS planning areas overlap some portion 
of the right whale critical habitat areas. Further, MMS sources 
indicate that in only one of these has there been any exploratory well 
drilling (i.e., St. George Basin). Ten exploratory wells were 
permitted, all of which were completed in 1984 and 1985 (with no 
subsequent associated exploration activity). It appears that there has 
been no recent OCS oil and gas activity in and adjacent to the areas 
designated as critical habitat. MMS reported no planned or scheduled 
OCS lease sales for these areas through 2007 (the end of the last 5-
year Lease-Sale planning cycle). However, both seismic acquisition and 
leasing took place in the adjacent North Aleutian Basin Planning Area 
through Sale 92 held in 1988. Leases were held until 1995, when a 
``buy-back'' settlement was reached between leaseholders and the 
Federal government. There are no current OCS lease holdings in the St. 
George Basin or North Aleutian Basin Planning Areas. In January 2007, 
the President modified the Presidential withdrawal for the North 
Aleutian Basin, allowing the Secretary of the Interior to offer this 
OCS planning area for leasing during the next 5-year OCS leasing 
program (2007- 2012). The 2007-2012 program now includes a lease sale 
in the North Aleutian Basin to be held in 2011. MMS may also offer a 
sale in the North Aleutian Basin which would be confined to a small 
portion of the planning area previously offered during lease sale 92 in 
1988.

[[Page 19010]]

    When MMS records were consulted as to the identity of the entities 
that previously held lease rights to the wells in the St. George Basin, 
six businesses were listed for the ten permitted exploratory wells. 
These include: SHELL Western E&P Inc. (2 wells); ARCO Alaska Inc. (3 
wells); EXXON Corp. (2 wells); Mobile Oil Corp. (1 well) (now merged 
with EXXON); GULF Oil Corp. (1 well); and CHEVRON USA Inc. (1 well). 
MMS records also indicate that the following nine companies submitted 
bids, jointly or individually, on blocks in the North Aleutian Basin 
under lease sale 92 held in 1988: Chevron, Unocal, Conoco, Murphy, 
Odeco, Amoco, Shell, Mobil, and Pennzoil. These data were last updated, 
according to the MMS website, on March 17, 2005. It would appear that 
none of these entities could reasonably be characterized as ``small 
entities'' for RFA purposes. All are widely recognized multi-national 
corporations and employ more than ``500 full-time, part-time, 
temporary, or any other category of employees, in all of their 
affiliated operations worldwide'' (the criterion specified by SBA for 
assessing entity size for this sector).
    The preferred alternative was compared to the mandatory ``No 
Action'' (or status quo) alternative. In addition, a third alternative 
was analyzed and its expected benefits and costs contrasted with the 
status quo and preferred alternatives. That alternative was based upon 
the proposed areas of the Bering Sea identified in an October 2000 
petition that requested critical habitat be designated for the northern 
right whale within the North Pacific Ocean.
    The action does not impose new recordkeeping or reporting 
requirements on small entities. No comments were received on the IRFA 
identifying analytical deficiencies or objecting to the reported RFAA 
interpretations and conclusions, or on the economic impacts of the 
rule.

Regulatory Planning and Review - Executive Order (E.O.) 12866

    This rule to designate critical habitat for the North Pacific right 
whale has been determined to be significant for purposes of Executive 
Order (E.O.) 12866. As part of our exclusion process under section 
4(b)(2) of the ESA, the economic benefits and costs of the proposed 
critical habitat designations are described in our economic report. 
Data are not available to express all costs and benefits of designation 
in monetary terms. Indeed, many costs and benefits accrue outside of 
traditional markets and, therefore, are not typically associated with a 
monetary measure (e.g., subsistence activities). While these benefits 
and costs cannot be either monetized nor quantified, they are 
nonetheless important to a full evaluation and understanding of the 
designation. These benefits and costs have been fully characterized in 
qualitative terms. Application of a benefit/cost framework is fully 
consistent with E.O. 12866.
    This rule designates as critical habitat for the North Pacific 
right whale the same critical habitat that was designated for the 
northern right whale in the eastern North Pacific Ocean in 2006 (71 FR 
38227; July 6, 2006). The analysis provided largely mirrors the 
analysis provided in the 2006 rulemaking, updated as necessary to 
account for new information, and does not result in any substantive 
changes to the analytical conclusions.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This final rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. This rule will not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Neither of these 
circumstances is applicable to this critical habitat designation. In 
keeping with the intent of the Administration and Congress to provide 
continuing and meaningful dialogue on issues of mutual State and 
Federal interest, we provided the proposed rules to the relevant state 
agencies in each state in which the North Pacific right whale is 
believed to occur, and these state agencies were invited to comment. We 
have requested information from, and will coordinate development of, 
the critical habitat designation with appropriate State resource 
agencies in Alaska. The designation may have some benefit to State and 
local resource agencies in that the areas essential to the conservation 
of the species are more clearly defined, and the PCEs of the habitat 
necessary to the survival of the North Pacific right whale are 
specifically identified.

Government-to-Government Relationship With Tribes - E.O. 13175

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights. E.O. 
13175 - Consultation and Coordination with Indian Tribal Governments- 
outlines the responsibilities of the Federal Government in matters 
affecting tribal interests.
    We have determined the designation of critical habitat for the 
North Pacific right whale in the North Pacific Ocean will not have 
tribal implications, nor affect any tribal governments or issues. None 
of the designated critical habitat includes tribal lands, affects 
tribal trust resources, or affects the exercise of tribal rights.

Military Lands

    The Sikes Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete, by 
November 17, 2001, an Integrated Natural Resource Management Plan. The 
National Defense Authorization Act for Fiscal Year 2004 (Public Law No. 
108-136) amended the ESA to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(I) of the ESA (16 
U.S.C. 1533(a)(3)(B)(I)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.'' We have determined no military lands would be impacted 
by this proposed rule.

[[Page 19011]]

Executive Order 13211.

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

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    This final rule designating critical habitat for the North Pacific 
right whale will not produce a Federal mandate. In general, a Federal 
mandate is a provision in legislation, statute, or regulation that 
would impose an enforceable duty upon State, local, tribal governments, 
or the private sector and includes both ``Federal intergovernmental 
mandates'' and ``Federal private sector mandates.'' These terms are 
defined in 2 U.S.C. 658(5) (7). ``Federal intergovernmental mandate'' 
includes a regulation that ``would impose an enforceable duty upon 
State, local, or tribal governments'' with two exceptions. It excludes 
``a condition of Federal assistance.'' It also excludes ``a duty 
arising from participation in a voluntary Federal program,'' unless the 
regulation ``relates to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and tribal 
governments under entitlement authority,'' if the provision would 
``increase the stringency of conditions of assistance'' or ``place caps 
upon, or otherwise decrease, the Federal Government's responsibility to 
provide funding'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. (At the time of enactment, these 
entitlement programs were: Medicaid; AFDC work programs; Child 
Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement.) ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the ESA, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat. While non-Federal entities who receive Federal funding, 
assistance, permits or otherwise require approval or authorization from 
a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legal duty to avoid destruction or 
adverse modification of critical habitat is borne by the Federal 
agency. Furthermore, to the extent that non-Federal entities are 
indirectly impacted because they receive Federal assistance or 
participate in a voluntary Federal aid program, the Unfunded Mandates 
Reform Act would not apply; nor would the critical habitat designation 
shift the costs of the large entitlement programs listed above to State 
governments. Due to the prohibition against take of this species both 
within and outside of the designated areas, we do not anticipate that 
this final rule will significantly or uniquely affect small 
governments. Thus, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630, this final rule does not have 
significant takings implications. Under E.O. 12630, ``Actions 
undertaken by gove