02-29360. 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:

Notice of 90-day finding.

SUMMARY:

NMFS announces the receipt of a petition to revise critical habitat for the endangered western North Atlantic right whales, Eubalaena glacialis, (right whales). NMFS finds that the petition presents substantial scientific information indicating that this action may be warranted and is soliciting public comment and information on the petition. NMFS will determine how to proceed with the petitioned action within 12 months after receiving the petition.

DATES:

Comments on this action must be postmarked or transmitted by facsimile by January 21, 2003. Comments transmitted via e-mail or the Internet will not be accepted.

ADDRESSES:

Comments concerning this action may be submitted to Mary Colligan, Assistant Regional Administrator for Protected Resources, Protected Resources Division, NMFS, One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT:

Mary Colligan, Northeast Region, telephone [phone], fax [phone]; Kathy Wang, Southeast Region, telephone [phone], fax [phone]; or Patricia Lawson, telephone [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 11, 2002, NMFS received a petition dated July 9, 2002, from The Ocean Conservancy requesting that NMFS revise and expand the current critical habitat designation for right whales. The petitioner requested that NMFS expand the existing Southeast critical habitat designation to the following coordinates: 31° 30′ N to 29 40′ N from the shoreline out to 30 nautical miles (55.6 km2); 29° 4′' N to 28 °00′ N from the shoreline out to 10 nautical miles (18.5 km²). The petitioned area would add approximately 2,700 nm² (5,003.6 km²) to the current critical habitat coverage. The petitioner also requested 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° 41.2′N/69° 58.2′ W; 41° 00.0′ N/69° 05.0′ W; 41° 00.0′ N/68° 13.0′ W; 42° 12.0′ N/68° 13.0′ W; 42° 12.0′ N/70° 30.0′ W; 41° 46.8′ N/70° 30.0′ W; and on the southwest corner by the shoreline of Cape Cod, MA.

Section 4(b)(3)(D) of the Endangered Species Act (ESA), as amended (16 U.S.C. 1533(b)(3)(D)), requires that NMFS make a finding on whether a petition to revise a designation of critical habitat presents substantial scientific information to demonstrate that the petitioned action may be warranted. NMFS' ESA implementing regulations at 50 CFR 424.14 define “substantial information” as the amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted. In making this finding, NMFS must consider the information that is presented by the petitioner and any new unassessed information on habitat that was added to NMFS' file regarding the species after critical habitat was designated but before NMFS received the petition to revise it. To the maximum extent practicable, this finding is to be made within 90 days of the petition, and the finding is to be published promptly in the Federal Register. Within 12 months after receiving a petition that NMFS has found to present substantial information indicating that the revision may be warranted, NMFS must determine how it intends to proceed with the requested revision and promptly publish notice of such intention in the Federal Register.

Critical habitat is defined in section 3(5)(A) of the ESA as (i) the specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection and; (ii) 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. Conservation is defined in section 3 of the ESA as “... the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary.”

In determining what areas are critical habitat, NMFS must consider the physical and biological features that are essential to the conservation of the species and that may require special management considerations. Physical and biological features essential to the conservation of the species include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.

Special management considerations or protections mean any methods or procedures useful in protecting the physical and biological features of the environment for the conservation of the listed species (50 CFR 424.02(j)).

Section 4(b)(2) of the ESA requires NMFS to take into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. NMFS may exclude areas from critical habitat designation when the benefits of exclusion outweigh the benefits of including the areas within critical habitat, provided the exclusion will not result in extinction of the species.

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). NMFS was petitioned by the Right Whale Recovery Team to designate critical habitat for right whales on May 18, 1990. A document was published in the Federal Register on July 12, 1990 (55 FR 28670), requesting information and comments on the petition. The proposed rule 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). The designation identified habitat with features essential to the conservation of the species, 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.

In general, the petitioner stated that since the 1994 designation of right whale critical habitat, knowledge regarding distribution and mortality of the North Atlantic right whale has increased substantially, indicating that critical habitat boundaries need to be revised and expanded to provide proper protection for right whales.

Specifically, the petitioner stated 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. The petitioner stated that the proposed critical habitat expansion contains several features essential to the conservation of the right whale in the western North Atlantic and proposed that these features require specific protection or management considerations to ensure the survival and recovery of the species. The petitioner stated that the areas proposed for expanded critical habitat experience high levels of human disturbance in the form of shipping activities, fisheries, military activities, dredging operations, increased pollution, and general habitat disturbance. The essential features associated with the proposed critical habitat cited by 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 and maintains 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.

Petition Finding

NMFS has reviewed the petition and other available information. On the basis of that information, NMFS finds that the petition presents substantial scientific information indicating that the requested action may be warranted. Within 1 year of the receipt of the petition, NMFS will determine how it intends to proceed with the requested revision and promptly publish notice of such intention in the Federal Register.

Authority: 16 U.S.C. 1531 et seq.

Dated: November 13, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.