Listing Endangered or Threatened Species; 12-Month Finding on a Petition To Revise the Critical Habitat Designation for the North Pacific Right Whale, 65940-65944 [2023-20794]
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Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
You may submit information by one
of the methods listed in ADDRESSES. We
request that you send information only
by the methods described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
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may request at the top of your document
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We will post all hardcopy submissions
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Information and materials we receive
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Docket No. FWS–R1–ES–2023–0123.
Authors
The primary authors of this document
are the staff members of the Fish and
Wildlife Service’s Species Assessment
Team.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023–20826 Filed 9–25–23; 8:45 am]
BILLING CODE 4333–15–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 226
[Docket No. 230914–0218; RTID 0648–
XR122]
Listing Endangered or Threatened
Species; 12-Month Finding on a
Petition To Revise the Critical Habitat
Designation for the North Pacific Right
Whale
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Department of Commerce.
ACTION: Notice of 12-month petition
finding.
AGENCY:
We, NMFS, announce a 12month determination on a petition to
revise the critical habitat designation for
the North Pacific right whale
SUMMARY:
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(Eubalaena japonica) under the
Endangered Species Act (ESA). Based
on our review of the best available
information on North Pacific right
whale habitat use, we intend to revise
the critical habitat. This finding
describes how we intend to proceed,
particularly regarding analysis and
review of the relevant data and
information that have become available
since North Pacific right whale critical
habitat was designated in 2008.
DATES: The finding announced in this
document was made on September 26,
2023.
ADDRESSES: Copies of the petition, 90day finding, and list of references for
this 12-month finding are available
online at: https://www.regulations.gov
or from the NMFS website (see https://
www.fisheries.noaa.gov/action/criticalhabitat-north-pacific-right-whales).
FOR FURTHER INFORMATION CONTACT:
Jenna Malek, NMFS Alaska Region,
jenna.malek@noaa.gov or (907) 271–
1332.
SUPPLEMENTARY INFORMATION:
Background
In April 2008, we issued a final rule
designating approximately 95,325
square kilometers (36,800 square miles)
of critical habitat for North Pacific right
whales in the Gulf of Alaska and the
Southeast Bering Sea (73 FR 19000,
April 8, 2008). On March 10, 2022,
NMFS received a petition from the
Center for Biological Diversity and Save
the North Pacific Right Whale
requesting revision to the critical habitat
designation for the North Pacific right
whale. The requested revision triggers a
process for agency response as outlined
in the ESA (16 U.S.C. 1531 et seq.) and
explained below.
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 (II)
which may require special management
considerations or protection; and (ii)
specific areas outside the geographical
area occupied by the species at the time
it is listed . . . upon a determination by
the Secretary of Commerce (Secretary)
that such areas are essential for the
conservation of the species (16 U.S.C.
1532(5)(A)). Joint NMFS–U.S. Fish and
Wildlife Service regulations for
designating critical habitat at 50 CFR
424.12(b)(1)(ii) state that the agencies
will identify physical and biological
features essential to the conservation of
the species at an appropriate level of
specificity using the best available
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scientific data. A physical and
biological feature may be a single
habitat characteristic or a more complex
combination of characteristics, may
include characteristics that support
ephemeral or dynamic habitat
conditions, and may also be expressed
in terms relating to principles of
conservation biology, such as patch size,
distribution distances, and connectivity
(50 CFR 424.02). ‘‘Special management
considerations or protection’’ means
methods or procedures useful in
protecting physical or biological
features essential to the conservation of
the species (50 CFR 424.02).
Section 4(b)(2) of the ESA requires the
Secretary, through NMFS, to designate,
and make revisions to, critical habitat
for listed species based on the best
scientific data available and after taking
into consideration the economic impact,
the impact on national security, and any
other relevant impact, of specifying any
particular area as critical habitat. We
may exclude any particular area from
critical habitat if we determine that the
benefits of such exclusion outweigh the
benefits of specifying such area as part
of the critical habitat, unless we
determine, based on the best scientific
and commercial data available, that the
failure to designate such area as critical
habitat will result in the extinction of
the species concerned.
Section 4(a)(3)(A)(ii) of the ESA
provides that NMFS may, from time-totime, revise critical habitat as
appropriate. Section 4(b)(3)(D)(i) of the
ESA requires, to the maximum extent
practicable, that within 90 days of
receipt of a petition to revise a critical
habitat designation, NMFS make a
finding on whether that petition
presents substantial scientific
information indicating that the
petitioned revision may be warranted,
and to promptly publish such finding in
the Federal Register. On July 12, 2022
(87 FR 41271), NMFS published a 90day finding that the petition, viewed in
the context of the information readily
available in our files, presented
substantial information indicating that
revising North Pacific right whale
critical habitat may be warranted and
initiated a review of the current critical
habitat designation. To ensure that our
review of critical habitat is
comprehensive and based on the best
available scientific and commercial
information, we requested scientific and
commercial information concerning the
petitioned action.
Within 12 months of receiving a
petition that presents substantial
information indicating that a revision of
critical habitat may be warranted, NMFS
is required to determine how we intend
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to proceed with the requested revision
and promptly publish notice of our
intention in the Federal Register (16
U.S.C. 1533(b)(3)(D)(ii)). The statute
does not further specify any options or
requirements regarding this
determination, nor does it establish a
timeline for issuance of any proposed
rule to revise critical habitat in response
to a petition. This notice describes the
currently designated critical habitat and
the petition for revision, summarizes
comments on the 90-day finding, and
describes how we intend to proceed
with the requested revisions to critical
habitat for the North Pacific right whale.
Current Critical Habitat Designation
Right whales in the North Pacific and
North Atlantic were considered the
same species, known as Northern right
whales, until the late-2000s. North
Pacific and North Atlantic right whales
were listed as two unique species under
the ESA in 2008 (73 FR 12024, March
6, 2008) based on genetic analysis
conducted in the early-mid 2000s
(Rosenbaum et al. 2000, Gaines et al.
2005, Kaliszewska et al. 2005). The
critical habitat that had been originally
designated for the North Pacific
population in 2006 was finalized for the
newly distinguished species in 2008 (73
FR 19000, April 8, 2008). The final
critical habitat designation identified
two areas within the area known to be
occupied by the whales and which
contained essential features. The first
area consists of approximately 3,050
square kilometers (1,175 square miles)
south of Kodiak Island. The second area
is approximately 91,850 square
kilometers (35,460 square miles) in the
southeastern Bering Sea, just north of
the Alaska Peninsula and the eastern
Aleutian Islands.
The critical habitat designation for
North Pacific right whales uses the term
primary constituent element (PCE) (50
CFR 226.215; 73 FR 19000, April 8,
2008). In 2016, as part of revisions to
critical habitat implementing
regulations in 50 CFR 424, the term
‘‘PCE’’ was removed and the regulations
maintained the statutory term, ‘‘physical
or biological features’’ (PBFs) (81 FR
7414, February 11, 2016). The shift in
terminology did not change the
approach used by NMFS in determining
what areas qualify as critical habitat
under the ESA. While little was known
about the PBFs that might be essential
for North Pacific right whale
conservation at the time critical habitat
was designated, based on known natural
history of the whale and its habitat
needs, the PBFs necessary for
conservation were identified as
concentrations of the copepod species
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Calanus marshallae, Neocalanus
cristatus, and N. plumchrus, and the
euphausiid species Thysanoessa raschii,
in areas where right whales are known
or thought to feed. In addition to the
occurrence of large zooplankton, NMFS
concluded that it is likely that certain
physical forcing mechanisms are
present in these areas and act to
concentrate the identified prey species
in densities that allow for efficient
foraging by right whales (73 FR 19000,
April 8, 2008).
In the final critical habitat
designation, NMFS determined that the
economic benefits of excluding any
particular areas within the overall area
designated as critical habitat did not
outweigh the benefits of designation,
and therefore did not exclude any areas
based on economic impacts. The final
critical habitat designation considered
the impacts to national security and did
not find any national security interests
or other relevant impacts that warranted
the exclusion of any particular areas.
Petition To Revise Critical Habitat
On March 10, 2022, NMFS received a
petition from the Center for Biological
Diversity and Save the North Pacific
Right Whale requesting revision to the
critical habitat designation for the North
Pacific right whale. The petition lists
recent sources of information on North
Pacific right whale presence and habitat
use in and around currently designated
critical habitat in the northern Gulf of
Alaska and the southeast Bering Sea.
The petitioners proposed that the
critical habitat be revised to connect the
two existing critical habitat areas by
extending the Bering Sea area boundary
west and south to the Fox Islands,
through Unimak Pass to the edge of the
continental slope, and east to the
Kodiak Island critical habitat area. The
petitioners state that this revision
encompasses ‘‘a key migratory point’’
and provides ‘‘connectivity between two
essential foraging grounds’’ (Center for
Biological Diversity and Save the North
Pacific Right Whale, 2022, p. ii).
The standard for determining whether
a petition includes substantial
information is whether the information
is credible scientific or commercial
information in support of the petition’s
claims such that a reasonable person
conducting an impartial scientific
review would conclude that the action
proposed in the petition may be
warranted (50 CFR 424.14(i)(1)(i)).
Based on the information presented and
referenced in the petition, as well as all
other information readily available in
our files, and pursuant to the criteria
specified in 50 CFR 424.14(c) and (e),
NMFS found that the petitioners had
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met this standard. NMFS therefore
published a 90-day finding stating the
petitioned action may be warranted and
requesting information to inform our
review of the current critical habitat
designation (87 FR 41271, July 12,
2022).
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Summary of Public Comments
The public comment period
announced in the 90-day finding closed
on September 12, 2022, and all of the
comments received can be viewed at
https://www.regulations.gov by
searching for docket number ‘‘NOAA–
NMFS–2022–0050.’’ NMFS received 11
comments from a variety of individuals
and organizations, including
researchers, concerned citizens, state
and federal agencies, and nonprofit
organizations. Of these, eight supported
a revision of North Pacific right whale
critical habitat. Three of the comments
expressed concerns about the lack of
data supporting the requested revision
and the need to consider the economic
impacts of such an action. Some
commenters offered additional
information, including information on
recently funded projects on North
Pacific right whales, sightings of North
Pacific right whales since 1979, and
reports describing organizational
sustainability policies aimed at
protecting marine mammals. The
information included in the comments
was taken into consideration during our
review of the petitioned action and will
be utilized in the process outlined in the
‘‘How We Intend to Proceed’’ section of
this document. A summary of the
substantive comments and information
submitted is below. Where appropriate,
we have combined similar comments.
Quantity and Quality of Currently
Available Information
Comment 1: One commenter
expressed that the petition overstates
the quantity and quality of the
information that is available with
respect to the essential habitat needs of
North Pacific right whales. Though
additional research conducted since the
original designation of critical habitat in
2008 suggests certain areas within the
petitioned revision may be important for
North Pacific right whales (e.g., Unimak
Pass), the commenter stated that the
data collected are still quite limited for
making many of the assertions in the
petition. For example, the commenter
referred to the lack of data supporting
connecting the currently designated
critical habitat areas in the Bering Sea
and Gulf of Alaska. The commenter
urged that any revisions NMFS makes to
critical habitat be based on the best
available, albeit limited, data.
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Restrictions to Marine Shipping and
Commercial Fishing, and Potential
Economic Impacts
Comment 2: Several commenters
cautioned that any revision to critical
habitat for North Pacific right whales
needs to balance potential economic
impacts with benefits to the species.
Multiple comments addressed the
implications in the petition that a
revision to critical habitat for North
Pacific right whales would allow NMFS
to implement regulatory measures and
protections that could affect commercial
shipping and fishing activities, leading
to economic impacts. Commenters
stated that many communities in rural
Alaska rely upon arrival of goods
through commercial shipping and that
changes to shipping regulations, such as
reduced speeds through major
transportation corridors (e.g., Unimak
Pass), would cause financial and
logistical difficulties in maintaining
timely and efficient services to Alaskan
ports and residents, while having little
benefit for North Pacific right whales.
Commenters pointed out that fishing
is an economic driver for many coastal
Alaskan communities. One commenter
described how the designation of
critical habitat for Steller sea lions (58
FR 45269, August 27, 1993), and
resulting fisheries closures, severely
impacted commercial fisheries and the
economies of communities that rely on
this industry. The commenter expressed
concern about similar impacts occurring
as the result of a revision to North
Pacific right whale critical habitat. It
was also pointed out that there are
multiple commercial fisheries of high
value in the petitioned area that could
suffer from substantial economic loss
should closures or restrictions occur as
a result of changes to critical habitat.
Scope of Regulatory Requirements
Comment 3: One commenter pointed
out that the petition cites 50 CFR
424.12(d) as support for adding all of
the habitat between the two currently
designated areas into a revision of
critical habitat, but noted that these
areas are over 350 mi (563 km) apart and
therefore do not fit the regulatory
criteria of being ‘‘in proximity to one
another.’’
The same commenter also referenced
NMFS’ criteria for designating critical
habitat under 50 CFR 424.12, asserting
that the petitioned revision to North
Pacific right whale critical habitat
would be different from other NMFS
designations due to its very large size.
Additionally, the commenter stated that
the petition provides no evidence that
the essential PBFs of North Pacific right
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whale critical habitat are present in
large portions of the petition’s proposed
area, and that NMFS must adhere to the
requirements of the ESA by
demonstrating that these features are
present in any areas included in a
critical habitat revision.
Adequacy of Existing Regulatory
Mechanisms
Comment 4: Multiple commenters
stated that the current regulatory
mechanisms in place are inadequate to
mitigate death and serious injury of
North Pacific right whales from threats
such as vessel strikes and entanglement
in fishing gear, which are known to be
the two biggest anthropogenic threats to
North Atlantic right whales. Revision of
critical habitat for North Pacific right
whales could allow NMFS to require
reasonable and prudent measures for
avoiding threats from vessel strikes,
entanglement in fishing gear, oil and
chemical spills, and exploratory
activities associated with the oil and gas
industry.
Comment 5: One commenter
conducted their own analysis of vessel
traffic in the petition’s proposed area
and currently designated critical habitat.
That comment contained a figure
showing Unimak Pass as a bottleneck
for vessel traffic, which could overlap
with whales migrating through this area.
Though the commenter acknowledged
that NMFS could implement
conservation measures and protections
such as restricting ship speeds, they also
acknowledged there would be
challenges to enacting regulations and
that proper analysis (i.e., economic,
national security impacts) must be
conducted and notice given to
potentially affected parties.
New Information on North Pacific Right
Whale Habitat and Habitat Use
New information on habitat use has
become available since critical habitat
was designated for North Pacific right
whales in 2008. NMFS has been
collecting passive acoustic data in the
Bering Sea, as well as in parts of the
northern Gulf of Alaska, that has
advanced the scientific understanding
of North Pacific right whale habitat use,
including in currently designated
critical habitat. Sightings have been
reported through dedicated research
surveys (2007–2010), opportunistic
research cruises, and opportunistic
reports from fishers and local
community members. While there have
been sightings of North Pacific right
whales in the currently designated
critical habitat areas since 2008,
numerous sightings have occurred
outside of the critical habitat in both the
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Gulf of Alaska and the Bering Sea. For
example, between 2010 and 2020, there
were three sightings in the Gulf of
Alaska in Shelikof Strait and along the
Alaska Peninsula (J. Crance, NOAA
Alaska Fisheries Science Center,
personal communication, April 2023),
as well as a sighting of two right whales
feeding just north of Unimak Pass in
February 2022 (NMFS 2022).
Additionally, acoustic monitoring with
sonobuoys (expendable sonar buoys)
indicated that right whales were present
outside the boundaries of critical habitat
near Kodiak Island in the Gulf of Alaska
in 2021, and off St. Lawrence Island in
the northern Bering Sea in 2018 (Wright
et al. 2019). These sightings and
acoustic detections suggest that North
Pacific right whales are utilizing habitat
outside of the currently designated
critical habitat areas. Given that the
2008 designation relied on right whale
sightings as a proxy for the presence of
the essential features for determining
the critical habitat boundaries (73 FR
19000, April 8, 2008), the areas where
North Pacific right whales have been
sighted or detected in the last 15 years
are likely candidates for critical habitat
designation, and will be considered
further in conjunction with other
available scientific information.
The North Pacific has undergone
substantial oceanographic shifts since
2008, including marine heatwaves in
2013–2016, 2017–2018, and 2019–2021,
that have affected the distribution and
abundance of zooplankton, multiple
species of which are the essential
feature NMFS identified for the existing
North Pacific right whale critical
habitat. There has also been a trend
toward decreasing sea ice extent in the
Bering Sea, with 2018 having the lowest
sea ice extent on record (Stabeno and
Bell 2019). As discussed below, the
extent of sea ice and resulting ocean
temperature conditions are closely
linked to the abundance and
distribution of zooplankton species that
North Pacific right whales rely on for
prey. Using the best available
information, all of these factors need to
be considered, along with the potential
impacts of a revised critical habitat
designation, to assess any revision
NMFS will propose for North Pacific
right whale critical habitat.
How We Intend To Proceed
Given the acoustic detections and
sightings supporting North Pacific right
whales’ use of areas outside of the
currently designated critical habitat and
the recent shifts in the essential features
of critical habitat (i.e., certain
zooplankton species), we intend to
revise critical habitat. We will proceed
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by analyzing the available acoustic
detections, sightings, and relevant
habitat data with the expectation of
developing a proposed rule to revise
critical habitat for North Pacific right
whales. Below, we identify key steps we
will take to help ensure that, in
developing a proposed rule, we rely on
the best scientific and commercial data
available and meet the statutory
requirements for designating or revising
critical habitat.
Step 1: Analyze Acoustic Data Collected
in Areas Recommended by the
Petitioners and Currently Designated as
Critical Habitat
NMFS has been using year-round
passive acoustic moorings to collect
data in the Bering Sea since 2007, and
in the western Gulf of Alaska starting in
2019. Acoustic data relevant to the
revision that can be processed and
summarized in a timely manner will be
made available in a report. NMFS
anticipates that this report will be one
of the best sources of information to aid
in the decision on how to revise critical
habitat (Baumgartner et al. 2013, Wright
et al. 2018, 2019).
Step 2: Assess Spatial and Temporal
Patterns of Prey Species (i.e., Copepods
and Euphausiids) in Conjunction With
Oceanographic Information
The PBFs for currently designated
North Pacific right whale critical habitat
include prey species (i.e., copepods and
euphausiids) in areas where right
whales are known or believed to forage.
In the original designation of critical
habitat, evidence of right whales feeding
for prolonged periods in a specific area
in spring and summer was used as a
proxy for the existence of densities of
prey suitable for foraging whales.
Oceanographic conditions have
shifted since the initial designation of
critical habitat, with changes occurring
in sea ice distribution and timing,
impacting the availability of
zooplankton species that make up the
PBFs of North Pacific right whale
habitat (e.g., Kimmel et al. 2018). As
North Pacific right whales are
dependent on certain zooplankton as
prey, understanding how copepods,
specifically C. marshallae, Neocalanus
spp., and euphausiids (krill) have and
are responding to environmental cues in
the Bering Sea and northern Gulf of
Alaska is central to assessing how to
revise the critical habitat. We will
utilize available data on spatial and
temporal zooplankton trends in our
analysis outlined in Step 4 below.
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Step 3: Analyze Sighting Data for
Evidence of Feeding Behavior
As described in the previous section,
we used sightings of feeding North
Pacific right whales as a proxy for
suitable abundances of prey in the 2008
critical habitat designation. There have
been some subsequent sightings for
which it can be confirmed by photo or
video, or through visual confirmation of
the reporting party, that North Pacific
right whales were feeding. We will
analyze available sighting reports to
better understand where right whale
feeding activity has been documented
since critical habitat was designated.
Step 4: Synthesize Available Acoustics
Data, Trends in Zooplankton, and
Sightings Data To Identify Areas That
Meet the Definition of Critical Habitat
Available acoustic data, relevant
information on zooplankton and
oceanographic features, and sighting
records providing evidence of feeding
will be evaluated by NMFS together
with any other best available scientific
data. This synthesis will help identify
where zooplankton prey species and
North Pacific right whale foraging are
likely to occur and provide support for
the revision of critical habitat, as well as
any revisions to the PBFs that may be
appropriate. These results will then be
used to identify areas that meet the
definition of critical habitat and will be
included in the proposed rule described
in Step 6.
Step 5: Section 4(b)(2) Impacts Analysis
Section 4(b)(2) of the ESA requires us
to use the best scientific data available
in designating critical habitat. It also
requires that we consider the economic
impact, impact on national security, and
any other relevant impact of designating
any particular area as critical habitat.
Therefore, we will analyze and consider
potential economic, national security,
and any other relevant impacts prior to
proposing any revisions to the
designated critical habitat. This analysis
will inform our decision whether to
propose the exclusion of any areas that
fit the definition of critical habitat.
Step 6: Develop Proposed Rule for
Public Comment
Steps 1–5 will inform our
determination of what areas qualify as
critical habitat for North Pacific right
whales and thus what revisions to
propose to the currently designated
areas. The underlying science will be
subject to peer review according to the
Office of Management and Budget
Bulletin for Peer Review, implemented
under the Information Quality Act (Pub.
L. 106–554). We will publish a proposed
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rule in the Federal Register and seek
public comment on all aspects of the
proposed revisions to North Pacific right
whale critical habitat prior to issuing
any final revision.
References Cited
The complete citations for the
references used in this document are
available (see ADDRESSES and FOR
FURTHER INFORMATION CONTACT).
Authority: 16 U.S.C. 1531 et seq.
Dated: September 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023–20794 Filed 9–25–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 230921–0230]
RIN 0648–BM51
Fisheries of the Northeastern United
States; Framework Adjustments to
Northeast Multispecies, Atlantic Sea
Scallop, Monkfish, Northeast Skate
Complex, and Atlantic Herring
Fisheries; Southern New England
Habitat Area of Particular Concern
Designation
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
This action proposes to
implement the New England Fishery
Management Council’s Framework
Adjustment that would identify a
Habitat Area of Particular Concern
offshore of Southern New England. This
rule would adjust the following fishery
management plans: Northeast
Multispecies; Atlantic Sea Scallop;
Monkfish; Northeast Skate Complex;
and Atlantic Herring. The proposed
Habitat Area of Particular Concern
would be within and around wind lease
areas in Southern New England,
including Cox Ledge, to focus
conservation recommendations on cod
spawning habitats and complex benthic
habitats that are known to serve
important habitat functions to Councilmanaged fishery species.
DATES: Comments must be received by
October 26, 2023.
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SUMMARY:
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You may submit comments
on this document, identified by NOAA–
NMFS–2023–0101, by the following
method:
Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov, and enter
‘‘NOAA–NMFS–2023–0101’’ in the
Search box. Click the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are part of the public record
and will generally be posted for public
viewing on https://www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). If you are unable to
submit your comment through https://
www.regulations.gov, contact Sabrina
Pereira (see FOR FURTHER INFORMATION
CONTACT).
Copies of the Southern New England
Habitat Area of Particular Concern
Framework and other supporting
documents for this action are available
upon request from Dr. Catherine
O’Keefe, Executive Director, New
England Fishery Management Council,
50 Water Street, Mill 2, Newburyport,
MA 01950. The supporting documents
are also accessible via the internet at:
https://
d23h0vhsm26o6d.cloudfront.net/
220822-SNE-HAPC-Framework.pdf.
FOR FURTHER INFORMATION CONTACT:
Sabrina Pereira, Marine Habitat
Resource Specialist, email:
Sabrina.Pereira@noaa.gov; phone: (978)
675–2178.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Background
This action proposes the
identification of a Habitat Area of
Particular Concern (HAPC) in and
around offshore wind lease areas in
Southern New England (SNE), including
Cox Ledge. The New England Fishery
Management Council (Council)
recommended the HAPC designation
due to concerns about the potential
adverse impact on essential fish habitat
(EFH) from the development of offshore
wind energy projects. The proposed
designation would focus on important
cod spawning grounds and areas of
PO 00000
Frm 00118
Fmt 4702
Sfmt 4702
complex habitat that are known to serve
important habitat functions to federally
managed species within and adjacent to
offshore wind development areas.
Complex benthic habitat provides
shelter for certain species during their
early life history, refuge from predators,
and feeding opportunities.
HAPCs highlight specific types or
areas of habitat within EFH that may be
particularly vulnerable to human
impacts. HAPC designations should be
based on one or more of the following
criteria: (1) The importance of the
ecological function provided by the
habitat, including both the historical
and current ecological function; (2) the
extent to which the habitat is sensitive
to human-induced environmental
degradation; (3) whether, and to what
extent, development activities are, or
will be, stressing the habitat type; and
(4) the rarity of the habitat type (50 CFR
600.815(a)(8)). As detailed below, if
adopted, the HAPC designated by this
action is based on all four of these
attributes.
An area’s status as an HAPC should
lead to special attention regarding
potential adverse effects on habitats
within areas of particular concern from
various activities (e.g., fishing, offshore
wind energy). An HAPC designation
does not provide any specific habitat
management measures, such as
restrictions on gear types, harvest levels,
fishing locations, offshore wind survey
and construction activities, or other
activities with adverse effects on habitat
in the area.
Proposed Habitat Area of Concern
Designation
This action proposes the Council’s
preferred alternative for the Southern
New England HAPC designation, which
would identify as an HAPC certain
habitats in the area overlapping offshore
wind lease sites in southern New
England. The spatial extent of the HAPC
is based on the footprint of the lease
areas, buffered by approximately 10 km
on all sides, combined with the
footprint of the Cox Ledge spawning
ground, which is based on recent
evidence of cod spawning activity.
Maps for the proposed HAPC
designation are provided in the
Council’s document (see ADDRESSES).
The HAPC area would be designated
EFH for the following species that
occupy complex habitats within the
footprint: Atlantic cod egg, larvae,
juveniles, and adults; Atlantic herring
eggs; Atlantic sea scallop eggs,
juveniles, and adults; little skate
juveniles and adults; monkfish juveniles
and adults; ocean pout eggs, juveniles,
and adults; red hake juveniles and
E:\FR\FM\26SEP1.SGM
26SEP1
]]>Agencies
[Federal Register Volume 88, Number 185 (Tuesday, September 26, 2023)]
[Proposed Rules]
[Pages 65940-65944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20794]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 230914-0218; RTID 0648-XR122]
Listing Endangered or Threatened Species; 12-Month Finding on a
Petition To Revise the Critical Habitat Designation for the North
Pacific Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Notice of 12-month petition finding.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, announce a 12-month determination on a petition to
revise the critical habitat designation for the North Pacific right
whale (Eubalaena japonica) under the Endangered Species Act (ESA).
Based on our review of the best available information on North Pacific
right whale habitat use, we intend to revise the critical habitat. This
finding describes how we intend to proceed, particularly regarding
analysis and review of the relevant data and information that have
become available since North Pacific right whale critical habitat was
designated in 2008.
DATES: The finding announced in this document was made on September 26,
2023.
ADDRESSES: Copies of the petition, 90-day finding, and list of
references for this 12-month finding are available online at: https://www.regulations.gov or from the NMFS website (see https://www.fisheries.noaa.gov/action/critical-habitat-north-pacific-right-whales).
FOR FURTHER INFORMATION CONTACT: Jenna Malek, NMFS Alaska Region,
[email protected] or (907) 271-1332.
SUPPLEMENTARY INFORMATION:
Background
In April 2008, we issued a final rule designating approximately
95,325 square kilometers (36,800 square miles) of critical habitat for
North Pacific right whales in the Gulf of Alaska and the Southeast
Bering Sea (73 FR 19000, April 8, 2008). On March 10, 2022, NMFS
received a petition from the Center for Biological Diversity and Save
the North Pacific Right Whale requesting revision to the critical
habitat designation for the North Pacific right whale. The requested
revision triggers a process for agency response as outlined in the ESA
(16 U.S.C. 1531 et seq.) and explained below.
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 (II) which may require
special management considerations or protection; and (ii) specific
areas outside the geographical area occupied by the species at the time
it is listed . . . upon a determination by the Secretary of Commerce
(Secretary) that such areas are essential for the conservation of the
species (16 U.S.C. 1532(5)(A)). Joint NMFS-U.S. Fish and Wildlife
Service regulations for designating critical habitat at 50 CFR
424.12(b)(1)(ii) state that the agencies will identify physical and
biological features essential to the conservation of the species at an
appropriate level of specificity using the best available
[[Page 65941]]
scientific data. A physical and biological feature may be a single
habitat characteristic or a more complex combination of
characteristics, may include characteristics that support ephemeral or
dynamic habitat conditions, and may also be expressed in terms relating
to principles of conservation biology, such as patch size, distribution
distances, and connectivity (50 CFR 424.02). ``Special management
considerations or protection'' means methods or procedures useful in
protecting physical or biological features essential to the
conservation of the species (50 CFR 424.02).
Section 4(b)(2) of the ESA requires the Secretary, through NMFS, to
designate, and make revisions to, critical habitat for listed species
based on the best scientific data available and after taking into
consideration the economic impact, the impact on national security, and
any other relevant impact, of specifying any particular area as
critical habitat. We may exclude any particular area from critical
habitat if we determine that the benefits of such exclusion outweigh
the benefits of specifying such area as part of the critical habitat,
unless we determine, based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species concerned.
Section 4(a)(3)(A)(ii) of the ESA provides that NMFS may, from
time-to-time, revise critical habitat as appropriate. Section
4(b)(3)(D)(i) of the ESA requires, to the maximum extent practicable,
that within 90 days of receipt of a petition to revise a critical
habitat designation, NMFS make a finding on whether that petition
presents substantial scientific information indicating that the
petitioned revision may be warranted, and to promptly publish such
finding in the Federal Register. On July 12, 2022 (87 FR 41271), NMFS
published a 90-day finding that the petition, viewed in the context of
the information readily available in our files, presented substantial
information indicating that revising North Pacific right whale critical
habitat may be warranted and initiated a review of the current critical
habitat designation. To ensure that our review of critical habitat is
comprehensive and based on the best available scientific and commercial
information, we requested scientific and commercial information
concerning the petitioned action.
Within 12 months of receiving a petition that presents substantial
information indicating that a revision of critical habitat may be
warranted, NMFS is required to determine how we intend to proceed with
the requested revision and promptly publish notice of our intention in
the Federal Register (16 U.S.C. 1533(b)(3)(D)(ii)). The statute does
not further specify any options or requirements regarding this
determination, nor does it establish a timeline for issuance of any
proposed rule to revise critical habitat in response to a petition.
This notice describes the currently designated critical habitat and the
petition for revision, summarizes comments on the 90-day finding, and
describes how we intend to proceed with the requested revisions to
critical habitat for the North Pacific right whale.
Current Critical Habitat Designation
Right whales in the North Pacific and North Atlantic were
considered the same species, known as Northern right whales, until the
late-2000s. North Pacific and North Atlantic right whales were listed
as two unique species under the ESA in 2008 (73 FR 12024, March 6,
2008) based on genetic analysis conducted in the early-mid 2000s
(Rosenbaum et al. 2000, Gaines et al. 2005, Kaliszewska et al. 2005).
The critical habitat that had been originally designated for the North
Pacific population in 2006 was finalized for the newly distinguished
species in 2008 (73 FR 19000, April 8, 2008). The final critical
habitat designation identified two areas within the area known to be
occupied by the whales and which contained essential features. The
first area consists of approximately 3,050 square kilometers (1,175
square miles) south of Kodiak Island. The second area is approximately
91,850 square kilometers (35,460 square miles) in the southeastern
Bering Sea, just north of the Alaska Peninsula and the eastern Aleutian
Islands.
The critical habitat designation for North Pacific right whales
uses the term primary constituent element (PCE) (50 CFR 226.215; 73 FR
19000, April 8, 2008). In 2016, as part of revisions to critical
habitat implementing regulations in 50 CFR 424, the term ``PCE'' was
removed and the regulations maintained the statutory term, ``physical
or biological features'' (PBFs) (81 FR 7414, February 11, 2016). The
shift in terminology did not change the approach used by NMFS in
determining what areas qualify as critical habitat under the ESA. While
little was known about the PBFs that might be essential for North
Pacific right whale conservation at the time critical habitat was
designated, based on known natural history of the whale and its habitat
needs, the PBFs necessary for conservation were identified as
concentrations of the copepod species Calanus marshallae, Neocalanus
cristatus, and N. plumchrus, and the euphausiid species Thysanoessa
raschii, in areas where right whales are known or thought to feed. In
addition to the occurrence of large zooplankton, NMFS concluded that it
is likely that certain physical forcing mechanisms are present in these
areas and act to concentrate the identified prey species in densities
that allow for efficient foraging by right whales (73 FR 19000, April
8, 2008).
In the final critical habitat designation, NMFS determined that the
economic benefits of excluding any particular areas within the overall
area designated as critical habitat did not outweigh the benefits of
designation, and therefore did not exclude any areas based on economic
impacts. The final critical habitat designation considered the impacts
to national security and did not find any national security interests
or other relevant impacts that warranted the exclusion of any
particular areas.
Petition To Revise Critical Habitat
On March 10, 2022, NMFS received a petition from the Center for
Biological Diversity and Save the North Pacific Right Whale requesting
revision to the critical habitat designation for the North Pacific
right whale. The petition lists recent sources of information on North
Pacific right whale presence and habitat use in and around currently
designated critical habitat in the northern Gulf of Alaska and the
southeast Bering Sea. The petitioners proposed that the critical
habitat be revised to connect the two existing critical habitat areas
by extending the Bering Sea area boundary west and south to the Fox
Islands, through Unimak Pass to the edge of the continental slope, and
east to the Kodiak Island critical habitat area. The petitioners state
that this revision encompasses ``a key migratory point'' and provides
``connectivity between two essential foraging grounds'' (Center for
Biological Diversity and Save the North Pacific Right Whale, 2022, p.
ii).
The standard for determining whether a petition includes
substantial information is whether the information is credible
scientific or commercial information in support of the petition's
claims such that a reasonable person conducting an impartial scientific
review would conclude that the action proposed in the petition may be
warranted (50 CFR 424.14(i)(1)(i)). Based on the information presented
and referenced in the petition, as well as all other information
readily available in our files, and pursuant to the criteria specified
in 50 CFR 424.14(c) and (e), NMFS found that the petitioners had
[[Page 65942]]
met this standard. NMFS therefore published a 90-day finding stating
the petitioned action may be warranted and requesting information to
inform our review of the current critical habitat designation (87 FR
41271, July 12, 2022).
Summary of Public Comments
The public comment period announced in the 90-day finding closed on
September 12, 2022, and all of the comments received can be viewed at
https://www.regulations.gov by searching for docket number ``NOAA-NMFS-
2022-0050.'' NMFS received 11 comments from a variety of individuals
and organizations, including researchers, concerned citizens, state and
federal agencies, and nonprofit organizations. Of these, eight
supported a revision of North Pacific right whale critical habitat.
Three of the comments expressed concerns about the lack of data
supporting the requested revision and the need to consider the economic
impacts of such an action. Some commenters offered additional
information, including information on recently funded projects on North
Pacific right whales, sightings of North Pacific right whales since
1979, and reports describing organizational sustainability policies
aimed at protecting marine mammals. The information included in the
comments was taken into consideration during our review of the
petitioned action and will be utilized in the process outlined in the
``How We Intend to Proceed'' section of this document. A summary of the
substantive comments and information submitted is below. Where
appropriate, we have combined similar comments.
Quantity and Quality of Currently Available Information
Comment 1: One commenter expressed that the petition overstates the
quantity and quality of the information that is available with respect
to the essential habitat needs of North Pacific right whales. Though
additional research conducted since the original designation of
critical habitat in 2008 suggests certain areas within the petitioned
revision may be important for North Pacific right whales (e.g., Unimak
Pass), the commenter stated that the data collected are still quite
limited for making many of the assertions in the petition. For example,
the commenter referred to the lack of data supporting connecting the
currently designated critical habitat areas in the Bering Sea and Gulf
of Alaska. The commenter urged that any revisions NMFS makes to
critical habitat be based on the best available, albeit limited, data.
Restrictions to Marine Shipping and Commercial Fishing, and Potential
Economic Impacts
Comment 2: Several commenters cautioned that any revision to
critical habitat for North Pacific right whales needs to balance
potential economic impacts with benefits to the species. Multiple
comments addressed the implications in the petition that a revision to
critical habitat for North Pacific right whales would allow NMFS to
implement regulatory measures and protections that could affect
commercial shipping and fishing activities, leading to economic
impacts. Commenters stated that many communities in rural Alaska rely
upon arrival of goods through commercial shipping and that changes to
shipping regulations, such as reduced speeds through major
transportation corridors (e.g., Unimak Pass), would cause financial and
logistical difficulties in maintaining timely and efficient services to
Alaskan ports and residents, while having little benefit for North
Pacific right whales.
Commenters pointed out that fishing is an economic driver for many
coastal Alaskan communities. One commenter described how the
designation of critical habitat for Steller sea lions (58 FR 45269,
August 27, 1993), and resulting fisheries closures, severely impacted
commercial fisheries and the economies of communities that rely on this
industry. The commenter expressed concern about similar impacts
occurring as the result of a revision to North Pacific right whale
critical habitat. It was also pointed out that there are multiple
commercial fisheries of high value in the petitioned area that could
suffer from substantial economic loss should closures or restrictions
occur as a result of changes to critical habitat.
Scope of Regulatory Requirements
Comment 3: One commenter pointed out that the petition cites 50 CFR
424.12(d) as support for adding all of the habitat between the two
currently designated areas into a revision of critical habitat, but
noted that these areas are over 350 mi (563 km) apart and therefore do
not fit the regulatory criteria of being ``in proximity to one
another.''
The same commenter also referenced NMFS' criteria for designating
critical habitat under 50 CFR 424.12, asserting that the petitioned
revision to North Pacific right whale critical habitat would be
different from other NMFS designations due to its very large size.
Additionally, the commenter stated that the petition provides no
evidence that the essential PBFs of North Pacific right whale critical
habitat are present in large portions of the petition's proposed area,
and that NMFS must adhere to the requirements of the ESA by
demonstrating that these features are present in any areas included in
a critical habitat revision.
Adequacy of Existing Regulatory Mechanisms
Comment 4: Multiple commenters stated that the current regulatory
mechanisms in place are inadequate to mitigate death and serious injury
of North Pacific right whales from threats such as vessel strikes and
entanglement in fishing gear, which are known to be the two biggest
anthropogenic threats to North Atlantic right whales. Revision of
critical habitat for North Pacific right whales could allow NMFS to
require reasonable and prudent measures for avoiding threats from
vessel strikes, entanglement in fishing gear, oil and chemical spills,
and exploratory activities associated with the oil and gas industry.
Comment 5: One commenter conducted their own analysis of vessel
traffic in the petition's proposed area and currently designated
critical habitat. That comment contained a figure showing Unimak Pass
as a bottleneck for vessel traffic, which could overlap with whales
migrating through this area. Though the commenter acknowledged that
NMFS could implement conservation measures and protections such as
restricting ship speeds, they also acknowledged there would be
challenges to enacting regulations and that proper analysis (i.e.,
economic, national security impacts) must be conducted and notice given
to potentially affected parties.
New Information on North Pacific Right Whale Habitat and Habitat Use
New information on habitat use has become available since critical
habitat was designated for North Pacific right whales in 2008. NMFS has
been collecting passive acoustic data in the Bering Sea, as well as in
parts of the northern Gulf of Alaska, that has advanced the scientific
understanding of North Pacific right whale habitat use, including in
currently designated critical habitat. Sightings have been reported
through dedicated research surveys (2007-2010), opportunistic research
cruises, and opportunistic reports from fishers and local community
members. While there have been sightings of North Pacific right whales
in the currently designated critical habitat areas since 2008, numerous
sightings have occurred outside of the critical habitat in both the
[[Page 65943]]
Gulf of Alaska and the Bering Sea. For example, between 2010 and 2020,
there were three sightings in the Gulf of Alaska in Shelikof Strait and
along the Alaska Peninsula (J. Crance, NOAA Alaska Fisheries Science
Center, personal communication, April 2023), as well as a sighting of
two right whales feeding just north of Unimak Pass in February 2022
(NMFS 2022). Additionally, acoustic monitoring with sonobuoys
(expendable sonar buoys) indicated that right whales were present
outside the boundaries of critical habitat near Kodiak Island in the
Gulf of Alaska in 2021, and off St. Lawrence Island in the northern
Bering Sea in 2018 (Wright et al. 2019). These sightings and acoustic
detections suggest that North Pacific right whales are utilizing
habitat outside of the currently designated critical habitat areas.
Given that the 2008 designation relied on right whale sightings as a
proxy for the presence of the essential features for determining the
critical habitat boundaries (73 FR 19000, April 8, 2008), the areas
where North Pacific right whales have been sighted or detected in the
last 15 years are likely candidates for critical habitat designation,
and will be considered further in conjunction with other available
scientific information.
The North Pacific has undergone substantial oceanographic shifts
since 2008, including marine heatwaves in 2013-2016, 2017-2018, and
2019-2021, that have affected the distribution and abundance of
zooplankton, multiple species of which are the essential feature NMFS
identified for the existing North Pacific right whale critical habitat.
There has also been a trend toward decreasing sea ice extent in the
Bering Sea, with 2018 having the lowest sea ice extent on record
(Stabeno and Bell 2019). As discussed below, the extent of sea ice and
resulting ocean temperature conditions are closely linked to the
abundance and distribution of zooplankton species that North Pacific
right whales rely on for prey. Using the best available information,
all of these factors need to be considered, along with the potential
impacts of a revised critical habitat designation, to assess any
revision NMFS will propose for North Pacific right whale critical
habitat.
How We Intend To Proceed
Given the acoustic detections and sightings supporting North
Pacific right whales' use of areas outside of the currently designated
critical habitat and the recent shifts in the essential features of
critical habitat (i.e., certain zooplankton species), we intend to
revise critical habitat. We will proceed by analyzing the available
acoustic detections, sightings, and relevant habitat data with the
expectation of developing a proposed rule to revise critical habitat
for North Pacific right whales. Below, we identify key steps we will
take to help ensure that, in developing a proposed rule, we rely on the
best scientific and commercial data available and meet the statutory
requirements for designating or revising critical habitat.
Step 1: Analyze Acoustic Data Collected in Areas Recommended by the
Petitioners and Currently Designated as Critical Habitat
NMFS has been using year-round passive acoustic moorings to collect
data in the Bering Sea since 2007, and in the western Gulf of Alaska
starting in 2019. Acoustic data relevant to the revision that can be
processed and summarized in a timely manner will be made available in a
report. NMFS anticipates that this report will be one of the best
sources of information to aid in the decision on how to revise critical
habitat (Baumgartner et al. 2013, Wright et al. 2018, 2019).
Step 2: Assess Spatial and Temporal Patterns of Prey Species (i.e.,
Copepods and Euphausiids) in Conjunction With Oceanographic Information
The PBFs for currently designated North Pacific right whale
critical habitat include prey species (i.e., copepods and euphausiids)
in areas where right whales are known or believed to forage. In the
original designation of critical habitat, evidence of right whales
feeding for prolonged periods in a specific area in spring and summer
was used as a proxy for the existence of densities of prey suitable for
foraging whales.
Oceanographic conditions have shifted since the initial designation
of critical habitat, with changes occurring in sea ice distribution and
timing, impacting the availability of zooplankton species that make up
the PBFs of North Pacific right whale habitat (e.g., Kimmel et al.
2018). As North Pacific right whales are dependent on certain
zooplankton as prey, understanding how copepods, specifically C.
marshallae, Neocalanus spp., and euphausiids (krill) have and are
responding to environmental cues in the Bering Sea and northern Gulf of
Alaska is central to assessing how to revise the critical habitat. We
will utilize available data on spatial and temporal zooplankton trends
in our analysis outlined in Step 4 below.
Step 3: Analyze Sighting Data for Evidence of Feeding Behavior
As described in the previous section, we used sightings of feeding
North Pacific right whales as a proxy for suitable abundances of prey
in the 2008 critical habitat designation. There have been some
subsequent sightings for which it can be confirmed by photo or video,
or through visual confirmation of the reporting party, that North
Pacific right whales were feeding. We will analyze available sighting
reports to better understand where right whale feeding activity has
been documented since critical habitat was designated.
Step 4: Synthesize Available Acoustics Data, Trends in Zooplankton, and
Sightings Data To Identify Areas That Meet the Definition of Critical
Habitat
Available acoustic data, relevant information on zooplankton and
oceanographic features, and sighting records providing evidence of
feeding will be evaluated by NMFS together with any other best
available scientific data. This synthesis will help identify where
zooplankton prey species and North Pacific right whale foraging are
likely to occur and provide support for the revision of critical
habitat, as well as any revisions to the PBFs that may be appropriate.
These results will then be used to identify areas that meet the
definition of critical habitat and will be included in the proposed
rule described in Step 6.
Step 5: Section 4(b)(2) Impacts Analysis
Section 4(b)(2) of the ESA requires us to use the best scientific
data available in designating critical habitat. It also requires that
we consider the economic impact, impact on national security, and any
other relevant impact of designating any particular area as critical
habitat. Therefore, we will analyze and consider potential economic,
national security, and any other relevant impacts prior to proposing
any revisions to the designated critical habitat. This analysis will
inform our decision whether to propose the exclusion of any areas that
fit the definition of critical habitat.
Step 6: Develop Proposed Rule for Public Comment
Steps 1-5 will inform our determination of what areas qualify as
critical habitat for North Pacific right whales and thus what revisions
to propose to the currently designated areas. The underlying science
will be subject to peer review according to the Office of Management
and Budget Bulletin for Peer Review, implemented under the Information
Quality Act (Pub. L. 106-554). We will publish a proposed
[[Page 65944]]
rule in the Federal Register and seek public comment on all aspects of
the proposed revisions to North Pacific right whale critical habitat
prior to issuing any final revision.
References Cited
The complete citations for the references used in this document are
available (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).
Authority: 16 U.S.C. 1531 et seq.
Dated: September 14, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2023-20794 Filed 9-25-23; 8:45 am]
BILLING CODE 3510-22-P
