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Endangered and Threatened Species; Finding for a Petition to Revise Critical Habitat for Northern Right Whales
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 28, 2003 (Volume 68, Number 167)]
[Proposed Rules]
[Page 51758-51763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28au03-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 021108270-3204-02; I.D. 102802C]
RIN 0648-AQ53
Endangered and Threatened Species; Finding for a Petition to
Revise Critical Habitat for Northern Right Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Response to petition; final determination.
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SUMMARY: On July 11, 2002, NMFS received a petition dated July 7, 2002,
requesting that NMFS revise the present critical habitat designation
for the western North Atlantic right whale, Eubalaena glacialis, (right
whales) under the Endangered Species Act (ESA) by combining and
expanding the current Cape Cod Bay and Great South Channel critical
habitats in the Northeast and by expanding the current critical habitat
in the Southeast. NMFS has determined that the requested revision, as
specified by the petitioner, is not warranted at this time. However,
NMFS will continue to analyze the physical and biological habitat
features essential to the conservation of right whales.
ADDRESSES: Comments and requests for copies of this determination
should be addressed to Assistant Regional Administrator for Protected
Resources, Protected Resources Division, NMFS, One Blackburn Drive,
Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT: Brian Hopper, Northeast Region,
telephone (978) 281-9328 x6509, fax (978) 281-9394; Barb Zoodsma,
Southeast Region, telephone 904-321-2806, fax (904) 321-1579; or Kristy
Long, telephone (301) 713-1401, fax (301) 713-0376.
SUPPLEMENTARY INFORMATION:
Electronic Access
Several background documents on right whales and the critical
habitat designation process can be downloaded from the NOAA Fisheries
Web Site at http://www.nmfs.noaa.gov/. 
Background
Right whales in the North Atlantic are one of three populations of
endangered right whales worldwide. The other populations occur in the
North Pacific and the Southern Hemisphere. The southern right whale is
recognized as a separate species and, until recently, the North
Atlantic and North Pacific stocks were defined as a single species.
However, recent genetic studies provided evidence that supported
separating species status for these two populations, one in the North
Atlantic and another in the North Pacific. On April 10, 2003, NMFS
published a final rule (68 FR 17560) concerning the nomenclature and
taxonomy of right whales, which formally acknowledges these scientific
findings by changing the species name of the northern right whale as
follows: the North Atlantic right whale, Eubalaena glacialis, and the
North Pacific right whale, Eubalaena japonica. These technical changes
did not affect the listing status of these species under the ESA (all
three remain ``endangered'').
Status of North Atlantic Right Whale
The North Atlantic right whale is one of the world's most
critically endangered species of large whale (Clapham et al. 1999).
Despite nearly three-quarters of a century of international legal
protection, the right whale has not shown any recovery towards its pre-
exploitation numbers. Recent studies on the current population trend in
right whales suggest that, if the population decline is not reversed,
the species is likely to become extinct in less than 200 years (Caswell
et al. 1999). More than 800 years of uncontrolled and intense hunting
is the primary reason that the right whale population has declined to
such a precarious level. Today, ship strikes and entanglements in
fishing gear are the primary, human-related causes of serious injury
and mortality to right whales that impede the species' recovery.
Exploitation: North Atlantic right whales were the first target of
commercial whaling and, consequently, the first large whale species to
be hunted to near extinction by such efforts. Several characteristics
specifically attributable to the right whale made it a highly desirable
resource, such as its large yield of commercially valuable products
(e.g., oil and baleen), its slow swimming speed, its distinction of
floating when dead, and its generally coastal distribution. These
factors also contributed to the whale's common name, which is said to
have originated from the English whalers who designated this species of
whale as the ``right'' (i.e., correct) whale to hunt.
The commercial harvest of right whales began with Basque whalers
taking substantial numbers of them as early as the 1500s in the Strait
of Belle Isle region (Aguilar, 1986). As the stocks in the eastern
North Atlantic became depleted, hunting effort shifted to the western
North Atlantic, off the Labrador and New England coasts. This intense
period of early whaling may have resulted in a significant reduction in
the stock of right whales by the time colonists in the Plymouth area
began hunting for right whales in the 1600s (Reeves and Mitchell,
1987). A modest but persistent whaling effort along the coast of the
eastern United States lasted three centuries, and the records include
one report of 29 whales killed in Cape Cod Bay in a single day during
January 1700. The right whales' vulnerability to over-exploitation was
noticed as early as the 19\th\ century. For example, in 1851, Herman
Melville wrote that, although still numerous at that time, the right
whale could vanish from the earth under the hunting pressure then being
applied to the species. However, Melville's prophetic observation went
largely ignored for over 80 years, and the traditional high-seas Yankee
whale fishery made way for a modern, industrial, and efficient whaling
fleet. Finally, in 1935, the species had declined to such low levels
that the League of Nations was able to get most whaling nations to
agree to stop hunting right whales.
Abundance and Trends: An estimate of the pre-exploitation
population size of right whales is not available. However, based on
historical catch levels, right whale abundance probably exceeded 10,000
animals. The historic range of North Atlantic right whales extended
from as far south as Florida and northwestern Africa to as far north as
Labrador, southern Greenland, Iceland, and Norway (Kenney, 2002).
Commercial whaling severely depleted the population to the point where
right whales are no longer abundant in portions of their historical
range (e.g., the Strait of Belle Isle, Newfoundland, the coastal waters
of Long Island, New York, and Delaware Bay). Therefore, the present
range of North Atlantic right whales, from Florida to Nova Scotia, is
[[Page 51759]]
considerably reduced from its historic extent.
The best estimate of present abundance is about 300 animals. In
1998, the right whale population size was estimated to be 291
individuals (Kraus et al., 2001) based on a census of individual whales
identified using photo-identification techniques. It is assumed that
the census of identified and presumed living whales represents a
minimum population size estimate. However, the true population size in
1998 may have been higher if: (1) there were animals not photographed
and identified; and/or (2) some animals presumed to be dead, actually,
were not.
The population growth rate reported for the period 1986-1992 by
Knowlton et al. (1994) was 2.5 percent (CV=0.12), which suggested that
the species was showing signs of a slow recovery. However, more recent
work by Caswell et al. (1999) has suggested that crude survival
probability declined from about 0.99 in the early 1980s to about 0.94
in the late 1990s. The decline in survival probability is statistically
significant. Additional work conducted in 1999 concluded that survival
had indeed declined during the 1990s (Best et al., 2001). Although
heterogeneity of capture could negatively bias survival estimates,
subsequent review of this study concluded that this factor could not
account for all of the observed decline, which appeared to be
particularly marked in adult females.
Seasonal Movement and Habitat: Right whales migrate annually
between high-latitude feeding grounds and low-latitude calving and
breeding grounds. In general, most of the whales spend the spring and
early summer off the coast of New England, then, in the latter part of
the summer and fall, move to the waters off southern Canada. Some
whales may remain in these northern waters throughout the winter, but
the majority leave. Therefore, the exact location of a large segment of
the population is unknown during the winter. A small fraction of the
population, consisting almost entirely of pregnant females and
juveniles, migrates south in the winter to the only known calving
ground for the species - the coastal waters of Georgia and northeast
Florida.
Breeding and Calving: The precise location of a breeding ground for
right whales has not been identified. However, as North Atlantic right
whales have been observed engaging in breeding-like behavior throughout
much of their range, the concept of a specific breeding ground may not
be relevant for this species.
The only known current calving ground in the western North Atlantic
is in the coastal waters of the southeastern United States, especially
the shallow waters from Savannah, Georgia, south to Cape Canaveral,
Florida. It has been speculated that other coastal areas, such as
Delaware Bay and Cape Cod Bay, may have been calving grounds before the
population was decimated by whaling (Kenney, 2002).
Prey: Right whales feed exclusively on zooplankton, especially on
large calanoid copepods (mostly of the genera Calanus and
Pseudocalanus). At times, they also feed on juvenile euphausiids (also
known as krill), smaller copepods, pteropods (tiny planktonic snails),
or the planktonic larval stages of barnacles and other crustaceans
(Kenney, 2002).
The waters along the New England coast are a primary feeding
habitat for the right whale. Research suggests that right whales must
locate and exploit extremely dense patches of zooplankton to feed
efficiently (Mayo and Marx, 1990). These dense zooplankton patches are
known to occur in the spring, summer, and fall right whale habitats
from Cape Cod Bay to the Bay of Fundy.
Status of North Atlantic Right Whales Under the Endangered Species Act
The right whale was listed as endangered under the Endangered
Species Conservation Act, the precursor to the ESA, on June 2, 1970 (35
FR 8495; codified at 50 CFR 17.11). The species was subsequently listed
as endangered under the ESA in 1973, and as depleted under the Marine
Mammal Protection Act in the same year. NMFS has the lead
responsibility for developing, implementing, and monitoring a recovery
program for this species.
NMFS published a Final Recovery Plan for the Northern Right Whale
(Recovery Plan) in 1991, and a draft, revised Recovery Plan in 2001.
Habitat related objectives were identified in the 1991 Recovery Plan,
as well as in the 2001 draft revision. One of these objectives was to
characterize known habitats of special importance to the species,
identify other habitats essential to the conservation of the species,
and protect these areas as necessary. Additional objectives of the
Recovery Plan concerning habitat include the collection of new data and
analysis of available data to assess the need for expanding or
modifying the existing critical habitat boundaries.
NMFS was petitioned by the Right Whale Recovery Team to designate
critical habitat for right whales on May 18, 1990. A notice was
published in the Federal Register on July 12, 1990 (55 FR 28670),
requesting information and comments on the petition. The proposed
critical habitat designation was published on May 19, 1993 (58 FR
29186), and the final rule was published on June 3, 1994 (59 FR 28793;
codified at 50 CFR 226.203). Areas included in the initial critical
habitat designation were identified primarily on the basis of use by
right whales. The designation recognized and discussed important
characteristics of these habitats that relate to aspects of right whale
biology, such as foraging, calving, and nursing. Specifically, this
designation includes portions of Cape Cod Bay and Stellwagen Bank, the
Great South Channel (each off the coast of Massachusetts), and waters
adjacent to the coasts of Georgia and the east coast of Florida.
Petition To Revise Existing Right Whale Critical Habitat
On July 11, 2002, NMFS received a petition dated July 9, 2002, from
The Ocean Conservancy requesting that NMFS revise the current critical
habitat designation for North Atlantic right whales by expanding its
boundaries in both the Northeast and Southeast U.S. The petitioner
requests that NMFS expand the existing Southeast critical habitat
designation to the following coordinates: 31[deg]
30' N to 29[deg]
40'
N from the shoreline out to thirty nautical miles; 29[deg]
40' N to
28[deg]
00'N from the shoreline out to ten nautical miles. The
petitioned area would add approximately 2,700 nm2 (5,003.6 km2) to the
current critical habitat coverage. The petitioner also requests that
NMFS expand and combine both the existing Northeast critical habitat
designations (Cape Cod Bay and Great South Channel) into one critical
habitat area bounded by the following coordinates: 41[deg]
41.2'N/
69[deg]
58.2'W; 41[deg]
00.0'N/69[deg] 05.0'W; 41[deg] 00.0'N/68[deg]
13.0'W; 42[deg]
12.0'N/68[deg]
13.0'W; 42[deg] 12.0'N/70[deg] 30.0'W;
41[deg]
46.8'N/70[deg]
30.0'W; and on the southwest corner by the
shoreline of Cape Cod, MA.
The petitioner states that 10 years of new data regarding right
whale distribution and causes of mortality along the east coast of the
United States show that the current critical habitat designation is not
sufficient to protect right whales from further anthropogenic
mortality. According to the petitioner, the additional critical habitat
contains several features essential to the conservation of the right
whale in the western North Atlantic that may require specific
protection or management considerations to ensure the survival and
recovery of the species. The petitioner stated that the areas
petitioned for expanded critical habitat experience high levels of
human disturbance in the form of shipping
[[Page 51760]]
activities, fisheries, military activities, dredging operations,
increased pollution, and general habitat disturbance. The essential
features associated with the petitioned critical habitat according to
the petitioner include the following: 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 distributions of species.
The petitioner acknowledged that some areas in the northeastern
U.S. have already received special management attention in the form of
fishing regulations, but maintains that essential right whale habitat
along the eastern seaboard lacks protection from ship strikes. In
addition, the petitioner noted that when several habitats, each
satisfying the requirements for designation as critical habitat, are
located in proximity to one another, an inclusive area may be
designated as critical habitat.
The petitioner stated that the continued high mortality of North
Atlantic right whales from ship strikes indicates the immediate need
for management actions to reduce ship strikes, maintaining that
accurately designated critical habitat boundaries will facilitate the
management process. In addition, the petitioner stated that since the
time critical habitat was originally designated in the southeastern
U.S., extensive and expansive survey efforts have shown that right
whales occur further offshore than originally known. The petitioner
contended that the importance of this area as the only known calving
ground for right whales warrants the revision of critical habitat to
protect the animals within this region.
Section 4(b)(3)(D) of the ESA requires that NMFS, to the maximum
extent practicable, within 90 days after receiving a petition to revise
existing critical habitat, make a finding as to whether the petition
presents substantial scientific information indicating that the
petitioned action may be warranted and publish the finding in the
Federal Register. If the finding is that substantial scientific
information is presented, NMFS is required, within 12 months of the
date the petition was received, to make a determination on how it
intends to proceed with the requested revision and promptly publish
notice of such intention in the Federal Register.
On November 19, 2002 (67 FR 69708), NMFS published a notice finding
that the subject petition contained substantial scientific information
indicating that the requested revision of right whale critical habitat
may be warranted and inviting interested persons to submit comments and
information concerning revision. NMFS' finding was based on the
agency's concurrence with petitioner's statement that extensive and
expanded survey efforts in the southeast indicate that right whales
occur farther offshore than previously known, and that the draft final
recovery plan suggested that data should be analyzed to assess
expanding or modifying the critical habitat boundaries.
Response to the Comments Received on the Petition
NMFS received over 2,000 letters and postcards during the comment
period. The comments are addressed in the following paragraphs.
Comments in Support of Revising Critical Habitat
Comment 1: Hundreds of people sent form letters and post cards
expressing support for the proposed expansion of right whale critical
habitat, based on the belief that it will more accurately reflect the
distribution and range of the species and provide a mechanism to
achieve greater protection. Another commenter suggested that NMFS
designate the entire known range of North Atlantic right whales as
critical habitat.
Response: Recent NMFS surveys have documented the consistent use of
areas outside of the currently designated critical habitats by right
whales (Zoodsma et al., 1999; Merrick et al., 2001). However, more
analyses of the sightings data and their environmental correlates are
necessary to define and designate these areas as critical habitat.
Furthermore, the ESA requires that the process for designating critical
habitat must focus on the identification of specific habitat features
(i.e., primary constituent elements) essential to right whale
conservation that may require special management considerations or
protection, rather than only on known distribution. If the physical and
biological features essential to the conservation of right whales are
identified and determined to be distributed outside of current critical
habitat boundaries, NMFS will evaluate the addition of areas containing
these features to the designated critical habitat, in accordance with
the requirements set forth in sections 3(5)(A) and 4(b)(2) of the ESA.
Comment 2: Two commenters recommended that NMFS review the
available data and, based on that review, expand the current critical
habitat as warranted. In addition, these commenters recommended that
NMFS contract or prepare a report similar to the one prepared for the
Marine Mammal Commission in 1991, which assesses right whale sighting
data and human activities in and around the three existing right whale
critical habitat areas. Such a report could be used to identify and
evaluate the most appropriate critical habitat boundaries.
Response: NMFS agrees that the available data should be reviewed
and, based on that review, NMFS could proceed to revise critical
habitat. NMFS intends to proceed with the analyses necessary to
evaluate the necessity of revising critical habitat based on the need
to protect the habitat features essential to the conservation of right
whales. Finally, NMFS will consider the recommendation to solicit a
contractor to prepare a report that assesses right whale sighting data
and human activities in and around the three existing right whale
critical habitat areas.
Comment 3: In addition to supporting the proposed expansion of
critical habitat, several commenters suggested that NMFS include other
areas shown to be regularly frequented by right whales that are outside
of the petitioned area. For example, these commenters specifically
suggested including Jeffreys Ledge, Platts Bank, Fippennies Ledge, and
Cashes Ledge because of their seasonal use as feeding habitat.
Furthermore, these commenters suggested that the Seasonal Area
Management (SAM) areas northeast of the Great South Channel should
receive equal consideration as critical habitat.
Response: See response to Comment 1.
Comment 4: With respect to the petitioned revision in the
Southeast, one commenter expressed support for the need to expand
critical habitat beyond the current boundaries because recent surveys
have shown regular and significant numbers of right whales in these
waters.
Response: See response to Comment 1.
Comments Opposed To Revising Critical Habitat
Comment 5: Several commenters expressed support for federal efforts
to protect and recover right whales, including the concept of expanding
critical habitat based on the availability of new data, but did not
support the petitioned revision because the
[[Page 51761]]
information provided by the petitioner is insufficient. Therefore,
these commenters suggest that NMFS conduct further analysis and
research on right whale distribution, including the identification of
``high-risk'' areas. Specifically, these commenters recommend an
analysis of all right whale sightings since 1994 using a Sightings-Per-
Unit-Effort analysis, which will provide scientists and managers with a
more precise representation of spatial and temporal patterns of right
whale habitat use.
Response: NMFS agrees that further analysis of the available data
is warranted to better understand what areas are most frequented by
right whales so that we may better manage the threat of takes. In
addition, more analyses of the sightings data and their environmental
correlates are necessary to define and designate additional areas as
critical habitat. NMFS notes, however, that any revision of critical
habitat will reflect habitat features essential to conserving the North
Atlantic right whale population.
Comment 6: One commenter expressed concern that a revised and
expanded critical habitat would unnecessarily restrict military
training/operations in additional open ocean areas.
Response: As Federal agencies, under section 7 of the ESA, the
branches of the U.S. military are required to consult with NMFS (or
U.S. Fish and Wildlife Service) to ensure that their actions are not
likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. NMFS does not agree that it is a forgone
conclusion that the revision of critical habitat will restrict military
operations along the East Coast. A designation or revision of critical
habitat assists Federal agencies in planning future actions, since the
designation or revision identifies, in advance, those habitat features
that will be given special consideration through section 7
consultations. Therefore, potential conflicts between projects and
endangered species can be identified early in the planning process.
Comment 7: One commenter expressed opposition to the petitioned
revision to critical habitat because he/she believes it is unnecessary
and would only lead to more petitions to designate critical habitat
until the entire Atlantic Ocean is critical habitat.
Response: The public's right to petition NMFS to designate or
revise critical habitat is expressly provided for in the ESA, and the
agency can neither prohibit the exercise of this right nor ignore the
petitions it receives with respect to such actions. In addition, the
regulations at 50 CFR 424.12(g) provide NMFS with the authority to
revise existing critical habitat when new data become available. As
explained later on in this Notice, NMFS believes that the requested
revision of critical habitat, as specified by the petitioner, is not
warranted at this time. However, NMFS intends to proceed with the
specified activities to determine whether a revision of critical
habitat is warranted.
Comment 8: One commenter expressed the belief that a revised
critical habitat designation would not be an effective mechanism for
reducing the levels of right whale mortalities. In light of the
commenter's belief that there is no link between the extent of critical
habitat boundaries and levels of anthropogenic mortality, this
commenter suggests that NMFS take immediate action to require universal
gear modifications as the most effective means for enhancing the
protection of right whales.
Response: The revision of critical habitat would likely not
directly address the ``take'' issue to which this comment refers. The
designation of critical habitat, in itself, does not necessarily lead
to additional management measures. Under the ESA, the only direct
impact of a critical habitat designation is through the provisions of
section 7. Section 7 applies only to actions with Federal involvement
(e.g., authorized, funded, conducted), and, through the consultation
process, requires modifications to those projects that would result in
the destruction or adverse modification of the primary constituent
elements in designated critical habitat areas. Accordingly, NMFS would
address the need for management measures for commercial fishing in
critical habitat through the ESAs section 7 consultations on the
fisheries regulated by NMFS and the Atlantic Large Whale Take Reduction
Plan (ALWTRP). Indirectly, critical habitat designations also help
focus Federal, state, and private conservation and management efforts
in those areas. Recovery efforts may address special considerations
needed in critical habitat, including conservation regulations to
restrict private as well as Federal activities. Finally, it is
important to note that the recommendation for special gear
modifications designed to reduce serious injury to or mortality of
right whales is more appropriate within the context of NMFS' Atlantic
Large Whale Take Reduction Team (ALWTRT) than in the context of a
petition to revise critical habitat.
Comment 9: Three commenters expressed opposition to the proposed
expansion of critical habitat because it would lead to further
regulation of state fisheries while continuing to bypass the shipping
industry. In addition, these commenters urged NMFS to implement rules
that would specifically protect right whales from ship strikes.
Response: First, the designation or revision of critical habitat
does not, in itself, restrict non-Federal activities within the area or
mandate any specific management or recovery action; as discussed above,
a designation of critical habitat triggers an inter-agency consultation
requirement designed to ensure that Federal activities avoid
destruction or adverse modification of critical habitat. In addition, a
critical habitat designation or revision contributes to the
conservation of a species by identifying the physical and biological
features within those areas that are essential to conservation of the
species, thereby alerting both public and private entities to the
importance of the area to the species. Second, the regulations found at
50 CFR 224.103(c) are intended to protect right whales from ship
strikes by prohibiting vessels from approaching within 500 yards (460
m) of a right whale. Finally, NMFS is currently working toward
developing and implementing a ship strike reduction strategy.
Comment 10: One commenter expressed opposition to the petitioned
expansion of critical habitat because he/she felt that the petitioners
have not presented sufficient evidence that expanding critical habitat
and implementing regulations to reduce vessel speeds within critical
habitat will provide protection for right whales.
Response: See response to comment 9.
Comments on the Process for Revising Critical Habitat
Comment 11: One commenter suggested that NMFS advise the relevant
regulated communities (i.e., commercial fisheries and shipping) on the
possible effects that the petition and any subsequent critical habitat
designation may have on future management measures.
Response: NMFS agrees that the relevant regulated communities
should be informed about the petition to revise critical habitat,
NMFS's responses to the petition, and how the agency intends to proceed
with the requested revision. NMFS provided copies of the petition and
90-day notice and finding to team members and interested parties at the
recent meeting of the ALWTRT. A presentation was also given at the
meeting on critical habitat in general and made specific reference to
the
[[Page 51762]]
petitioned revision. In addition, prior to the meeting, the ALWTRT was
made aware of the petitioned action through an email distribution and
by posting the relevant documents on the Web Site for the ALWTRP as
well as on the NOAA Fisheries home page (see Electronic Access). NMFS
provided similar notice to the shipping community through the Ship
Strike Reduction e-mail distribution list and a presentation to the
Southeast U.S. Right Whale Recovery Plan Implementation Team.
Comment 12: One commenter expressed concern that neither the
petition nor the Federal Register notice provided a substantive
discussion of economic impacts. Furthermore, this commenter suggested
that NMFS carefully analyze the data relied upon to designate critical
habitat and apply designation criteria uniformly to avoid undue
economic costs or economic dislocation to the shipping industry as the
agency proceeds with ship strike mitigation measures. Finally, this
commenter suggested that NMFS articulate to the public that management
measures may not have the same or coincident boundaries as those of a
revised critical habitat.
Response: Both the ESA and the regulations for designating critical
habitat found at 50 CFR 424.12 require NMFS to consider economic
impacts, and any other relevant impact, of specifying any particular
area as critical habitat. At this time, an analysis of economic impacts
is not required, because NMFS has not yet proposed any areas for
designation as part of an effort to revise right whale critical
habitat. In other words, the agency has not defined the area in which
an analysis of economic impacts may be applied. However, NMFS has
determined that an economic analysis will be included among the steps
the agency has identified for any future revision of critical habitat.
NMFS agrees with the final point made by the commenter, and the public
will be notified if the agency decides to implement management measures
whether or not it revises critical habitat.
Determination on the Petition
Critical habitat is defined in section 3(5)(A) of the ESA as the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. In addition, under section 3(5)(A) of the ESA, critical
habitat may include specific areas outside the geographic area occupied
by a species at the time it is listed, upon a determination that such
areas are essential for the conservation of the species.
NMFS has decided not to designate critical habitat in accordance
with the petitioned revision because the information presented in the
petition does not adequately support the petitioned new boundaries for
critical habitat. The revisions proposed by the petitioner are largely
based on where whales have been found and general information on what
the whales may be doing in those areas rather than on the specific
nature and location of the physical or biological features of the
habitat that are essential to the conservation of the species.
For example, in discussing the value of ``space'' for individual
and population growth and for normal behavior, the petitioner states
that the requested revision will ``cover areas that consistently
maintain large numbers of western North Atlantic right whales and the
conditions they require for individual and population growth as well as
normal behavior'' (Petition p. 21). However, the petitioner fails to
identify or discuss with the necessary degree of detail what those
conditions are that would be necessary for individual and population
growth, and normal behavior, or how these features are essential to the
conservation of right whales. Therefore, without establishing a nexus
between the specific habitat feature and the requested revision, beyond
the premise that the area is used by large numbers of right whales, the
petition does not support the suggested changes to critical habitat
boundaries.
With regard to its discussion of ``food, water, air, light,
minerals, or other nutritional or physiological requirements,'' the
petition indicates that right whales require high densities of prey for
effective feeding. However, the petition does not present information
identifying what those densities are, what features of the habitat lead
to the concentration of prey, or evidence that the expanded boundaries
incorporate additional areas in which sufficiently high densities of
prey are likely to exist.
With regard to its discussion of ``cover or shelter,'' the petition
indicates that the proposed additions to the northern and southern
areas ``exhibit temperature, salinity, and bathymetric requirements
needed to provide shelter for western North Atlantic right whales.''
However, the petition does not indicate specifically what those
temperature, salinity, and bathymetric features are or provide evidence
that the expanded boundaries incorporate additional areas in which
those features are likely to exist.
With regard to its discussion of ``sites for breeding,
reproduction, and rearing of offspring,'' the petition indicates that
new information suggests that female right whales and calves utilize
the waters farther offshore of the Southeastern U.S. than initially
documented. While NMFS agrees that new information does indicate
females and calves use waters farther offshore than initially believed,
the existence of right whales farther offshore is not, in and of
itself, a physical and biological feature essential to the conservation
of the species. The petition does not indicate what the physical and
biological features are of these waters that make them appeal to female
right whales and their calves. As a result, the petition does not
provide sufficient support for the proposed expansion of the critical
habitat area in the southeast U.S.
With regard to its discussion of ``habitats that are protected from
disturbance or are representative of the historical, geographical, and
ecological distributions of species,'' the petition indicates that the
areas petitioned for inclusion as critical habitat ``focus on the most
vital portions of the historic range where current data indicate that
large numbers of right whales aggregate for extended periods of time.''
However, the petition does not support the expanded boundaries by
indicating what specific physical and biological features make those
areas vital.
Accordingly, based on the language found in section 3(5)(A)(i)(I)
of the ESA that defines critical habitat, in part, as specific areas
``on which are found those physical or biological features essential to
the conservation of the species,'' and for the reasons previously
discussed, NMFS believes that the petition does not provide sufficient
information to support the requested revision. However, a review of
scientific information suggests that physical and biological features
essential to the conservation of right whales may include, but are not
necessarily limited to, the occurrence of copepods and the features
that concentrate them in the water off of the Northeast U.S., as well
as sea surface temperature and possibly bathymetry in the waters off of
the Southeast U.S. Further investigation and analysis needs to be
performed regarding the specific nature of those features and/or
others, whether they are essential to the conservation of right whales,
and, if so, where they are located and whether they may require
[[Page 51763]]
special management considerations or protection.
How Does NMFS Intend To Proceed?
Section 4(b)(3)(D)(ii) of the ESA requires that NMFS, within 12
months of the date a petition is received, make a determination on how
it intends to proceed with the requested revision and promptly publish
notification of such intention in the Federal Register. NMFS made its
determination in the previous section of this notice that the requested
revision, as specified by the petitioner, is not warranted at this
time. However, NMFS intends to continue with planned research
activities during 2003 and evaluate new information to determine
whether physical and biological features essential to the conservation
of the species exist that may warrant a revision of critical habitat.
To further investigate those physical or biological features essential
to the conservation of the North Atlantic right whale, and to propose
any revisions to designated critical habitat that might be supported by
new information and analysis, NMFS would have to complete at least the
following steps:
(1) In the waters off of the Southeast U.S., continue analysis of
right whale distribution data in relation to bathymetry and sea surface
temperature derived from Advanced Very High Resolution Radiometer
(AVHRR) imagery;
(2) In the waters off of the Northeast U.S., continue its own
efforts, as well as collaborate with others working in the Gulf of
Maine Ecosystem, to characterize the spatial and temporal distribution
of zooplankton;
(3) Examine the available scientific information to assess whether
other physical or biological features of the environment are essential
to the conservation of the species;
(4) Identify those ``specific areas within the geographical area
occupied by the species, at the time it is listed..., on which are
found'' one or more of the physical or biological features determined
to be essential for conservation;
(5) Evaluate the current or future special management
considerations or protections relevant to the habitat features
determined to be essential for conservation;
(6) Evaluate the economic and other relevant impacts of including
any particular area in the designation of critical habitat, weigh these
benefits and negative impacts, and determine whether exclusion of any
area would lead to the extinction of the North Atlantic right whale;
and
(7) Identify specific areas outside the geographical areas occupied
by the North Atlantic right whale at the time it was listed, that are
essential to the conservation of the species, and evaluate the impacts
of designating any of these areas as critical habitat.
While NMFS intends to investigate further the nature and location
of physical and biological features essential to the conservation of
right whales and will evaluate new information to determine whether a
proposed rule to revise critical habitat is appropriate, this notice
should not be misinterpreted as a commitment to take any particular
action because any such commitment would be premature at this time. If
a revision of critical habitat is warranted in the future, NMFS will
provide notice to the public as required by the ESA.
All references are available upon request (see FOR FURTHER
INFORMATION CONTACT).
Authority: 16 U.S.C. 1531 et seq.
Dated: August 22, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 03-22039 Filed 8-27-03; 8:45 am]
BILLING CODE 3510-22-S