Designated Critical Habitat; Northern Right Whale

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 930363-4145, I.D. 012793B]

Designated Critical Habitat; Northern Right Whale

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is designating critical habitat for the northern right

whale (Eubalaena glacialis). The designated habitat 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. This designation provides notice

to Federal agencies and the public that a listed species is dependent

on these areas and features for its continued existence and that any

Federal action that may affect these areas or features is subject to

the consultation requirements of section 7 of the Endangered Species

Act (ESA).

EFFECTIVE DATE: July 5, 1994.

ADDRESSES: Requests for copies of this rule should be addressed to the

Director, Office of Protected Resources, National Marine Fisheries

Service (NMFS), 1335 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Michael Payne, Protected Species

Management Division, NMFS, 301/713-2322; Charles Oravetz, Southeast

Regional Office, NMFS, 813/893-3141; or Doug Beach, Northeast Regional

Office, NMFS, 508/281-9254.

SUPPLEMENTARY INFORMATION:

Background

Right whales, Eubalaena spp., are the most endangered of the large

whale species, brought to extremely low levels by commercial whaling.

Right whales were the earliest targets of whaling and, although they

have been protected world-wide from commercial whaling by international

agreements since 1935, right whale populations still remain extremely

depleted. The global population of right whales is comprised of two

separate species, one each in both the northern and southern

hemisphere, and several stocks or populations within each hemisphere.

The majority of right whales occur in the southern hemisphere (the

southern right whale, E. australis) and are considered a separate

species from the right whale in the northern hemisphere (E. glacialis).

At least two populations of northern right whales, an eastern and a

western population, occur, or have occurred, in the North Atlantic. The

eastern North Atlantic population may be nearly extinct. Between 1935-

1985, there were only 21 possible sightings in the eastern North

Atlantic, totaling 45 individuals (Brown, 1986). Furthermore, Brown

(1986) considered only five of these sightings (seven individual

whales) to be confirmed. In the western North Atlantic, the known

distribution and abundance of right whales indicate a ``best

available'' population estimate of 300-350 individuals. Despite the low

abundance and known anthropogenic factors affecting total mortality

(Kraus, 1990), the western North Atlantic stock is the largest in the

Northern Hemisphere. This population stands to benefit most from

recovery actions (NMFS, 1991; Kenney, Winn and Macaulay, 1994).

Like other baleen whales, the western North Atlantic population of

right whales (hereafter referred to as the northern right whale) is

migratory. The known distribution and migratory pattern has been

previously summarized by Kraus (1985); Winn, Price and Sorensen (1986);

Gaskin (1987, 1991); and by Kraus et al. (1986). The five primary

habitats used by northern right whales during their annual migration,

as described by Kenney, Winn and Macaulay (1994), include the following

three areas off the eastern coast of the United States: (1) A spring/

early summer feeding and nursery area for a majority of the population

in the Great South Channel (GSC), (2) a late winter/spring feeding and

nursery area for a small portion of the population in Cape Cod Bay

(CCB), and (3) a winter calving ground and nursery area in the coastal

waters of the southeastern United States (SEUS); and the following two

areas located in Canadian waters: (4) a summer/fall feeding and nursery

area for some animals, including nearly all mother/calf pairs, in the

lower Bay of Fundy; and (5) a summer/fall feeding ground, with almost

exclusively mature individuals, on the southern Nova Scotian shelf.

The northern right whale was listed as endangered on June 2, 1970

(35 FR 8495). Section 9 of the ESA prohibits the taking of endangered

species, and section 7 requires Federal agencies to ensure that their

actions are not likely to jeopardize either threatened and endangered

species. For species listed prior to 1978, when Congress required that

critical habitat be designated, concurrently with the listing, critical

habitat may be designated although such designation is not required.

Section 4(f) of the ESA also requires the responsible agency to develop

and implement a recovery plan for listed species, unless such a plan

would not promote the conservation and recovery of the species. NMFS

determined that a recovery plan would promote the conservation of the

northern right whale. Accordingly, the Assistant Administrator for

Fisheries (AA) appointed a Recovery Team consisting of experts on right

whales from the private sector, academia and government. A Recovery

Plan for the Northern Right Whale was approved by NMFS in December,

1991 (NMFS, 1991).

NMFS was petitioned by the Right Whale Recovery Team to designate

critical habitat for the northern right whale on May 18, 1990. A

Federal Register notice was published on July 12, 1990 (55 FR 28670),

requesting information and comments on the petition. Of those agencies,

organizations, and private groups that commented, most responded

favorably to the designation of the three areas in the U.S. as critical

habitat for the northern right whale. The comments received were

considered and incorporated as appropriate by NMFS in the proposed rule

to designate critical habitat for northern right whales. The proposed

rule was published on May 19, 1993 (58 FR 29186), and provided for a

60-day comment period. NMFS also completed an Environmental Assesment

(EA) pursuant to the National Environmental Policy Act (NEPA), to

evaluate both the environmental and economic impacts of the proposed

critical habitat designation. The EA resulted in a finding of no

significant impact for the proposed action.

During the comment period, NMFS received several requests for

public hearings on the proposed designation. Public hearings were held

in Boston, MA, on August 25, 1993; in Port Canaveral, FL, on August 24,

1993; and in Brunswick, GA, on August 25, 1993 (58 FR 41454, Aug. 4,

1993). The comment period was extended until August 31, 1993, to allow

commenters the opportunity to respond to concerns voiced at the public

hearings. After consideration of public comments, and based on the best

available scientific information, NMFS is designating critical habitat

for the northern right whale as described in the proposed rule.

Definition of Critical Habitat

``Critical habitat'', as defined in section 3(5)(A) of the ESA, and

the term ``conservation'', as defined in section 3(3) of the ESA, were

provided in the preamble to the proposed rule (58 FR 29186, May 19,

1993).

Essential Habitat of the Northern Right Whale

Biological information for the northern right whale can be found in

the Recovery Plan (NMFS, 1991), and in recent scientific literature

(Winn, Price and Sorensen, 1986; Kenney et al., 1986; Wishner et al.,

1988; Mayo and Marx, 1990; Payne et al., 1990; Kraus and Kenney, 1991;

Kraus et al., 1993; Kenney, Winn and Macauley, 1994). The physical and

biological habitat features of the critical habitat are discussed

herein.

Foraging Habitat of the Northern Right Whale

Right whales have been characterized principally as ``skim''

feeders (Kawamura, 1974; Nemoto and Kawamura, 1977). They subsist

primarily on dense swarms of calanoid copepods, notably Calanus

finmarchicus in the North Atlantic (Mitchell, 1975; Watkins and

Schevill, 1979; Winn, Price and Sorensen, 1986; Wishner et al., 1988;

Mayo and Marx, 1990; Kraus and Kenney, 1991). Northern right whales are

also known to prey on other similar sized zooplankton. Two other

zooplankton species preyed upon by northern right whales in CCB include

Pseudocalanus minutis and Centropages spp. (Mayo and Marx, 1990). A

strong positive correlation between the abundance of right whales in

the southern Gulf of Maine and densities of C. finmarchicus has been

described by Kenney et al. (1986), Wishner et al. (1988), Payne et al.

(1990), and Kenney, Winn and Macauley (1994). The two recorded time

intervals when right whales were most abundant in the CCB/Stellwagen

Bank area (April 1970, reported by Watkins and Schevill, 1982; and

during 1986, reported by Payne et al., 1990) were during periods of

observed peak densities of copepods.

While the size and density of copepod patches are important to the

feeding energetics of right whales, so are the relative proportions of

adult copepods within each patch (Kenney et al., 1986; Wishner et al.,

1988). Although the feeding ecology of right whales is likely more

complex than previously thought (Mayo and Marx, 1990), dense

aggregations of older, caloric-rich copepods seem to be the required

characteristics for energetically successful foraging by right whales.

If copepods in these caloric-rich, adult developmental stages are not

available to northern right whales in sufficient densities, there may

be insufficient prey available in the remaining developmental stages

(independent of abundance) to provide right whales with the required

energy densities (as described by Kenney et al., 1986) to meet the

metabolic and reproductive demands of the right whale population in the

western North Atlantic (Kenney et al., 1986; Payne et al., 1990).

Foraging Habitat: The overall spatial requirements for right whales

are not well defined; however, the distribution pattern observed for

northern right whales indicates that four of the five principal

habitats occupied by right whales in the western North Atlantic are

used for foraging, and possibly reproductive activities: The GSC, CCB,

the Bay of Fundy, and the Scotian Shelf. Neither feeding nor courtship

behavior has been observed along the SEUS. Scientists believe that

subadult and adult baleen whales fast, or feed rarely, during the

winter calving period.

Based on observed distribution patterns compared to oceanographic

conditions, scientists speculate that the topographic and seasonal

oceanographic characteristics of foraging areas are conducive to the

dense growth of zooplankton. These high-use areas may comprise the

minimal space required for normal foraging behavior that will support

the northern right whale population. The Department of Fisheries and

Oceans (Canada) has already designated two foraging areas as right

whale sanctuaries--one in the Bay of Fundy and another on the Scotian

Shelf. The remaining two foraging habitats, the GSC and CCB, are found

in the United States and are included as critical habitat for the

northern right whale.

Great South Channel: The GSC is a large funnel-shaped bathymetric

feature at the southern extreme of the Gulf of Maine between Georges

Bank and Cape Cod, MA. The GSC is one of the most used cetacean

habitats off the northeastern United States (Kenney and Winn, 1986).

The channel is bordered on the west by Cape Cod and Nantucket Shoals,

and on the east by Georges Bank. The channel is generally deeper to the

north and shallower to the south, where it narrows and rises to the

continental shelf edge. To the north, the channel opens into several

deepwater basins of the Gulf of Maine. The V-shaped 100-m isobath

effectively delineates the steep drop-off from Nantucket Shoals and

Georges Bank to the deeper basins. The average depth is about 175 m,

with a maximum depth of about 200 m to the north.

The GSC becomes thermally stratified during the spring and summer

months. Surface waters typically range from 3 to 17 deg.C between

winter and summer. Salinity is stable throughout the year at

approximately 32-33 parts per thousand (Hopkins and Garfield, 1979).

Much of the bottom is comprised of silty, sandy sediments, with finer

sediments occurring in the deeper waters.

The late-winter/early spring mixing of warmer shelf waters with the

cold Gulf of Maine water funneled through the channel causes a dramatic

increase in faunal productivity in the area. The zooplankton fauna

found in these waters are typically dominated by copepods, specifically

C. finmarchicus, P. minutus, C. typicus, C. hamatus, and Metridia

lucens. From the middle of winter to early summer, C. finmarchicus and

P. minutus are the dominant species, which together made up between 60

and 90 percent of the samples described by Sherman et al. (1987). In

late spring, C. finmarchicus alone makes up 60 to 70 percent of the

copepod community. In the second half of the year, both species of

Centropages dominate the waters, accounting for about 75 percent of all

copepod species sampled.

The GSC right whale distribution was described by Kenney, Winn and

Macaulay (1994), and the following, unless otherwise cited, is taken

from that manuscript. Right whales occur in the GSC on a strictly

seasonal basis--in the spring, with a peak in May. Only in 1986 and

1987 were a small number of right whales present throughout most or all

of the summer. This corresponds to the atypical copepod density maxima

in the GSC and southern Gulf of Maine described by Wishner et al.

(1988) and Payne et al. (1990). The main area of GSC right whale

distribution has been in the central basin, generally in waters deeper

than 100 m. There is a persistent thermal front, which roughly

parallels the V-shaped 100-m isobath typically slightly south of that

isobath in 60-70 m of water. The front divides stratified waters with

warmer surface temperatures to the north of the front from tidally

mixed water with cooler surface temperatures over the shallower area

south of the front (Wishner et al., 1988; Brown and Winn, 1989). Right

whales occur in the stratified waters north of the front, and Brown and

Winn (1989) showed that right whale sightings were non-randomly

distributed relative to the front, but were at a median distance from

it of about 11 km. Although there are variations between years, the

``typical'' pattern is for the primary right whale aggregation to occur

in the central to western portion of the basin. Within any one year,

the general area of major aggregation is remarkably stable. A gradual

southward shift in the center of distribution occurs as the season

progresses.

Single-day abundance estimates for the GSC, uncorrected for animals

missed while submerged, ranged up to 179 individuals (Kenney, Winn and

Macauley, 1994). The total number of photographically identified

northern right whales is now 319, eliminating those known to have died,

but including some that have not been sighted for several years and

that may be dead (Kraus et al., 1993). Therefore, it is likely that a

significant proportion of the western North Atlantic right whale

population uses the GSC as a feeding area each spring, aggregating to

exploit exceptionally dense copepod patches. Given that not all of the

300-350 right whales are seen in U.S. shelf waters each season, it is

very likely that most, if not all, of the northern right whale

population use the GSC within any given season, and that every 2-3

years, the entire population of 300-350 northern right whales in the

northwest Atlantic may pass through the GSC.

Cape Cod Bay: The CCB is a large embayment on the U.S. Atlantic

Ocean off of the State of Massachusetts that is bounded on three sides

by Cape Cod and the Massachusetts coastline from Plymouth, MA, south.

To the north, CCB opens to Massachusetts Bay and the Gulf of Maine. CCB

has an average depth of about 25 m, and a maximum depth of about 65 m.

The deepest area of CCB is in the northern section, bordering

Massachusetts Bay.

The general water flow is counter-clockwise, running from the Gulf

of Maine south into the western half of CCB, over to eastern CCB, and

back into the Gulf of Maine through the channel between the north end

of Cape Cod (Race Point) and the southeast end of Stellwagen Bank, a

submarine bank that lies just north of Cape Cod. Flow within the bay is

driven by density gradients caused by freshwater river run-off from the

Gulf of Maine (Franks and Anderson, 1992a, 1992b; Geyer et al., 1992)

and by a predominantly westerly wind.

Thermal stratification occurs in the bay during the summer months.

Surface water temperatures typically range from 0 to 19 deg.C

throughout the year. Salinity is fairly stable at around 31-32 parts

per thousand. Much of the bottom is comprised of unconsolidated

sediments, with finer sediments occurring in the deeper waters (Davis,

1984). In shallow areas, or where there is sufficient current,

sediments tend to be coarser.

Northern right whales were ``rediscovered'' in the CCB in the early

1950s. Right whales have been seen in Massachusetts waters in most

months (Watkins and Schevill, 1982; Schevill, Watkins and Moore, 1986;

Winn, Price and Sorensen, 1986; Hamilton and Mayo, 1990). However, most

sightings occurred between February and May, with peak abundance in

late March (Mayo, 1993). Schevill, Watkins and Moore (1986) reported

764 sightings of right whales between 1955 and 1981 in CCB. More than

70 whales were seen in one day in 1970. Hamilton and Mayo (1990)

reported 2,643 sightings of 113 individual right whales in

Massachusetts waters, with a concentration in the eastern part of CCB.

A number of right whales, including cow-calf pairs, remained in CCB and

Massachusetts Bay during the summers of 1986 and 1987. This was

attributed to atypically dense concentrations of C. finmarchicus in

those years, and low abundances of sandlance, Ammodytes spp., a

planktivorous finfish that also preys on copepods and may be competing

with right whales for copepod prey during recent years (Payne et al.,

1990).

The late-winter/early spring zooplankton fauna of CCB consists

primarily of copepods, represented predominantly by two species,

Arcartia clausi and A. tonsa. Samples taken in the daytime indicated

greater densities of copepods at greater depths. The copepod C.

finmarchicus is found throughout inshore CCB waters at densities of 100

individuals per cubic meter from April through June (Mayo and Marx,

1990). However, Mayo and Marx (1990) found that the density of surface

zooplankton samples collected in the path of feeding right whales

during mid-winter was significantly higher than for the samples taken

where whales were absent (median = 3,904 organisms/m\3\). The

threshhold value below which feeding by northern right whales is not

likely to occur in CCB is approximately 1,000 organisms/m\3\ (Mayo and

Marx, 1990). Although year-to-year variation in the composition of

zooplankton was found, feeding right whales were associated with

patches of zooplankton that were dominated by C. finmarchicus, P.

minutus, C. spp. and by cirripede (barnacle) larvae. These authors

suggested that, after arrival in CCB when prey is at a maximum (or at

least at a consistently acceptable level), the whales select the

densest patches of copepods (Mayo and Marx, 1990).

Calving and Nursery Habitat of Northern Right Whales

Cape Cod Bay: Schevill, Watkins and Moore (1986) reported 21

sightings of small calves in 12 of the 26 years of their CCB study,

including two calves that may have been born in CCB. Therefore, the CCB

may occasionally serve as a calving area, but it is more recognized for

being a nursery habitat for calves that enter into the area after being

born most likely in, or near, the SEUS. Mead (1986) identified

Massachusetts waters as second only to the SEUS for documented right

whale calf sightings. Hamilton and Mayo (1990) observed a total of 30

calves between 1979 and 1987, associated with 21 mothers. Schevill,

Watkins and Moore (1986) and Hamilton and Mayo (1990) documented

observations of mating behavior and nursing in CCB.

Southeast United States (SEUS): The coastal waters off Georgia and

northern Florida (the area described as the SEUS) average about 30 m in

depth with a maximum depth of about 60 m. The deepest waters occur

along the coast of Florida, just south of Cape Canaveral. Seasonal

water temperatures and salinity for this area are higher than in

northern waters. This is a transition area separating subtropical from

the more temperate southeastern marine communities. Large, cyclic

changes in abundance and dominance of plankton species occur seasonally

and annually. Annual variation may be so great that short-term

monitoring studies may not be sensitive enough to assess the temporal

variability of the plankton community. The recorded preferred food of

the northern right whale, C. finmarchicus, does not occur in these

waters, and the area is not considered a foraging area for northern

right whales.

Between 1989-1992, 31 calves were observed within the SEUS,

representing 76 percent of the total number of calves (n = 41) reported

from the North Atlantic during that period (Kraus et al., 1993). The

calving season extends from late November through early March with an

observed peak in January. The 30' blocks of latitude within the SEUS

having the greatest density of adult and juvenile right whales occurred

in waters from Brunswick, GA to Jacksonville Beach, FL (Kraus et al.,

1993). The presence of females with calves was primarily limited to the

coastal waters between 27 deg.30' and 32 deg.00'N latitudes. This is

consistent with distributions reported by Kraus and Kenney (1991) using

historical sighting data through 1989.

Since 1980, 153 northern right whales have been individually

identified from surveys conducted in SEUS waters. This represents 48

percent of the known northern right whale population of 319 whales.

During this period, 125 of the right whales observed in the SEUS have

also been sexed using criteria described in Kraus et al. (1993). Of the

96 adults observed, 91 were females, one was a male, and the sex of the

remaining four was not determined. These 91 females represent 74

percent of all the photo-identified females who have been

reproductively active since 1980. The observed frequency of occurrence

of females in the SEUS is significantly greater than the expected 1:1

sex ratio characteristic of the overall population. This demonstrates

that the population is segregated by sex at this time of the year, and

that the SEUS is used predominantly by females, and females with

calves, although several juvenile males have also been observed in

recent years. Based on the number of calves and females with calves in

the SEUS since 1980, Kraus et al. (1993) consider the SEUS as the

primary calving area for the population.

Environmental Correlates to Right Whale Distribution in the SEUS:

Environmental features that have been correlated with the distribution

of northern right whales throughout the SEUS include water depth, water

temperature, and the distribution of right whale cow/calf pairs and the

distance from shore to the 40-m isobath (Kraus et al., 1993).

The average water depth at sighting was 12.6 m (SD = 7.1). This

shallow water preference is consistent with that recorded for southern

right whales with calves (Payne, 1986). Also, the significant

correlation between the distribution of northern right whales and the

distance from shore of the 40-m isobath (referred to as the inner (0-

20-m) and middle (20-40-m) shelf by Atkinson and Menzel, 1985)

indicates that right whales in the SEUS are using the nearshore edge of

the widest part of the broad shallow-water shelf characteristic of the

Georgia-Florida Bight. The inner shelf is dominated by tidal currents,

river inflow, and interaction with the coastal sounds. The middle

shelf, which is dominated by winds, has less interaction with the

coastal environment but is influenced on the outer margins by the Gulf

Stream (Atkinson and Menzel, 1985). This use of the inner and

nearshore-middle shelf area by right whales may provide maximum

protection from the wave action that occurs over the outer margins of

the shelf. Therefore, the occurrence of cow/calf pairs in coastal

waters of the SEUS may be due, at least in part, to the bathymetry that

affords protection from large waves and rough water. The strong winds

and offshore wave activity in the winter SEUS is minimized nearshore by

the relatively shallow, very long underwater shelf (extending almost

105 km offshore) (Kraus et al, 1993).

The average temperature of 30' blocks of latitude where right

whales have occurred is significantly cooler than those blocks of

latitude within the SEUS where right whales were not observed

(14.5 deg.C vs. 18.5 deg.C) (Kraus et al., 1993). The inner shelf is

not affected by the Gulf Stream during the period when right whales are

present; therefore sea-surface temperature decreases as one moves from

the Gulf Stream towards shore. It is difficult to separate the effects

of temperature from depth and proximity to shore, but sighting data

indicate that northern right whales clearly prefer a band of relatively

cool water (10-13 deg.C) within the SEUS. This band is affected by the

nearshore processes, including cooler freshwater runoff and discharge,

as described in several chapters of Atkinson, Menzel and Bush (1985).

Although little information is available on right whale physiology, it

is hypothesized that the metabolic rate of the whale is affected by

water temperature (Kraus and Kenney, 1991). The cooler, coastal water

may provide right whales with the optimum thermal balance for calving

by cooling the female at a time when offshore, Gulf stream affected

warmer waters may be too warm for a female with maximum fatty layers

prior to parturition and nursing. At the same time, the coastal waters

may be warm enough not to cause problems for a neonate, considering

that the insulating layer of a neonate for the first few weeks is

minimal, as compared to the adult.

Courtship activities have been observed throughout most of the

range of the northern right whale, except within the SEUS (Kraus,

1985).

Activities That May Affect Essential Habitat

Northern right whales are no longer observed in certain areas where

they once were found, such as Delaware Bay, New York Bight and Long

Island Sound (NMFS, 1991). The absence of right whale sightings in

these areas may be due to several factors, including: Increased human

activities, habitat degradation, insufficient quantities of prey due to

habitat or natural alterations in the physical environment, extinction

of an independent breeding group that used these areas or contraction

of the species' range as the population has decreased (NMFS, 1991).

There exists a wide range of human activities that may impact the

designated critical habitat for northern right whales (NMFS, 1991,

1992). Resource uses in the critical habitat areas are currently, and

have been historically, dominated by vessel traffic and fisheries.

Vessel activities can change whale behavior, disrupt feeding practices,

disturb courtship rituals, disperse up food sources and injure or kill

whales through collisions. Thirty-two percent of the known strandings

of northern right whales since 1970 have been caused by human

activities (Kraus, 1990; NMFS, 1992).

Vessels that operate in the areas being designated as critical

habitat include recreational and commercial fishing vessels, commercial

transport vessels, passenger vessels, recreational boats, whale-

watching boats, research vessels and military vessels (e.g., surface

ships and submarines). Helicopters and low-altitude aircraft also fly

over the critical habitat. Results of human activities that occur

within or near the designated critical habitat for northern right

whales, and that may disrupt the essential life functions that occur

there, include, but are not limited to:

1. Mortality due to collisions with large vessels: Seven percent of

northern right whales identified have propeller scars from a large

vessel (NMFS, 1992);

2. Entanglement and mortality due to commercial fishing activities:

More than one-half of all cataloged animals have scars indicative of

entanglements with fishing gear, resulting in scars, injuries, and

death. Fishing nets and associated ropes may become entangled around a

flipper, at the gape of the mouth, or around the tail (Kraus, 1985,

1990). Gill nets are believed to be the primary cause of scars and

injuries related to fishing gear, although whales have also become

entangled in drift nets and lines from lobster pots, seines and fish

weirs (Kraus, 1985). Fishing practices and locations may need to be

managed more closely when the fishing season overlaps with the presence

of right whales.

3. Possible habitat degradation through pollution, sea bed mining,

and oil and gas exploration: Exploration and development for oil, gas,

phosphates, sand, gravel, and other materials on the outer continental

shelf may impact northern right whale habitat through the discharge of

pollutants (such as oil, drilling muds and suspended solids); noise

from seismic testing, drilling and support activity; and disturbance of

the environment through vessel traffic and mining rig activity. If

these types of activities are proposed, their timing and location may

also require special management considerations, including the

establishment and maintenance of buffer zones.

4. Pollutants may also affect phytoplankton and zooplankton

populations in a way that decreases the density and abundance of

specific zooplankton patches on which northern right whales feed. In

addition, pollution may affect the feeding patterns and habitat use of

other components of the marine ecosystem, which in turn could impact

food and habitat availability for the northern right whale. Pollutants

may also have direct toxic effects on the whale. Monitoring of known

and potential pollution and discharge sources in this essential habitat

may be necessary to insure that these sources are not affecting prey

species abundance or composition, or the northern right whale's ability

to gain maximum benefit from use of the area.

Turbulence associated with vessel traffic may also indirectly

affect northern right whales by breaking up the dense surface

zooplankton patches in certain whale feeding areas. Special vessel

traffic management or restrictions may be necessary in certain areas

when northern right whales are present.

5. Possible harassment due to whale-watching and other vessel

activities; and

6. Possible harassment due to research activities (on permitted

sites and during specified times throughout the year).

The effect of any of these activities on individual whales or on

their habitat could have consequences that may impede the recovery of

the northern right whale population. Therefore, special management

considerations may be required to protect these areas and promote the

recovery of the northern right whale. The following are some, but not

necessarily all, of those activities that occur in each of the

designated critical habitat areas.

Cape Cod Bay: In CCB, vessel traffic associated with the Cape Cod

Canal, the Boston Harbor traffic lanes, dredging and disposal traffic,

recreational boating, commercial fishing and whale-watching activities

comprise the majority of the vessel activity in the immediate area. Of

these, recreational boating, commercial fishing and whale-watching

contribute greatly to the level of activity in the critical habitat.

Recreational boating begins with the onset of warmer months,

particularly in June. Commercial fishing vessels and gear are dominated

by the lobster industry, which does not typically begin its season

until the middle of June. Whale-watching boats, ferries and other

vessels increase activity in the area with the onset of warmer weather

and the tourist season, which typically begins in May or June and ends

no later than November.

Discharges from municipal, industrial and non-point sources,

dredging activities, dredge spoil disposal and sewage disposal may

degrade essential habitat in Massachusetts Bay/northern CCB. The

cumulative effects to baleen whales (including right whales) by these

activities may affect the northern right whale in Massachusetts Bay/

northern CCB.

Great South Channel: In the GSC, vessel traffic and fisheries

constitute the majority of activities within the critical habitat area.

However, in this area, these activities are not contingent on warm

weather. Shipping vessel traffic lanes for Boston Harbor are used

throughout the year to import and export metal, salt, fuel and a

variety of other products. Similarly, the commercially important

fishing grounds on Georges Bank involve year-round vessel traffic from

the mainland through right whale essential habitat to the fishing

grounds. The bottom-trawl is the most dominant type of fishing gear

used in this area. It is not known whether the bottom-trawl, or any

other type of fishing gear, has an impact on the whales' habitat. Mesh

sizes used in this area do not pose an immediate threat to the whales'

planktonic food supply.

Southeast United States: Vessel traffic and fisheries are the major

activities in the SEUS calving grounds. Major commercial shipping and

military ports operate throughout the winter/calving area. The majority

of commercial fishing vessels that use the inshore waters to harvest

shrimp and other commercially important species use these and other

neighboring ports as well. Recreational boating traffic is also fairly

extensive.

Expected Impacts of Designating Critical Habitat

A critical habitat designation directly affects only those actions

authorized, funded, or carried out by Federal agencies. Federal

agencies that may be affected by critical habitat designation of these

areas include, but are not necessarily limited to, the U.S. Coast

Guard, Environmental Protection Agency, U.S. Army Corps of Engineers,

NMFS (including the New England Fishery Management Council (NEFMC) and

South Atlantic Fishery Management Council), National Ocean Service,

Office of Coastal Zone Management, Minerals Management Service and the

U.S. Navy. For a discussion of the expected impacts and significance of

critical habitat designation, see ``Significance of Designating

Critical Habitat'' in the proposed rule (58 FR 29187, May 19, 1993).

Consideration of Economic and Other Factors

NMFS prepared an EA on its proposed designation of critical

habitat, based on the best available information, that described the

environmental and economic impacts of alternative critical habitat

designations. The economic impacts considered in this analysis were

only those incremental economic impacts specifically resulting from a

critical habitat designation, above the economic and other impacts

attributable to the listing of the species, or resulting from

authorities other than the ESA. Listing a species under the ESA

provides significant protection to the species' habitat through the no-

jeopardy standard of section 7 and, to a lesser extent, the prohibition

against taking of section 9, both of which requires an analysis of harm

to the species that can include impacts to habitat of the species.

Therefore, the additional direct economic and other impacts resulting

from the critical habitat designation are minimal. In general, the

designation of critical habitat reinforces the substantive protection

resulting from the listing itself.

Designation of critical habitat in these areas may result in an

increase in administrative time and cost to Federal agencies that

conduct, authorize or fund projects in the designated areas. However,

these agencies are currently required to address habitat alteration

issues in section 7 consultations, and as a result, any increase in

administrative time or cost is expected to be minimal.

Designated Critical Habitat; Essential Features

NMFS, by this final rule, designates areas essential for the

reproduction, rest and refuge, health, continued survival, conservation

and recovery of the northern right whale population. The following

areas are designated as critical habitat:

Great South Channel: The area designated as critical habitat in

these waters is bounded by the following coordinates: 41 deg.40'N/

69 deg.45'W; 41 deg.00'N/69 deg.05'W; 41 deg.38'N/68 deg.13'W;

42 deg.10'N/68 deg.31'W.

Cape Cod Bay: The area designated as critical habitat in these

waters is bounded by the following coordinates: 42 deg.04.8'N/

70 deg.10.0'W; 42 deg.12'N/70 deg.15'W; 42 deg.12'N/70 deg.30'W;

41 deg.46.8'N/70 deg.30'W; and on the south and east, by the interior

shoreline of Cape Cod, MA.

Southeastern United States: The area designated as critical habitat

in these waters encompasses waters between 31 deg.15'N (approximately

located at the mouth of the Altamaha River, GA) and 30 deg.15'N

(approximately Jacksonville, FL) from the shoreline out to 15 nautical

miles offshore; and the waters between 30 deg.15'N and 28 deg.00'N

(approximately Sebastian Inlet, FL) from the shoreline out to 5

nautical miles.

Modifications to this critical habitat designation may be necessary

in the future as additional information becomes available.

References

Most references used in this final designation can be found in the

Final Recovery Plan for Right Whales (NMFS, 1991), and in the EA.

Additional references found in the preamble to this rule are available

upon request (see ADDRESSES).

Comments and Responses

NMFS solicited information, comments and recommendations from

concerned government agencies, the scientific community, industry and

the general public (58 FR 29186, May 19, 1993). NMFS considered and

incorporated, as appropriate, all comments received during the comment

period (ending on August 31, 1993) and all comments received during

public hearings on the proposed rule prior to making this final

designation.

During the comment period and at the public hearings, NMFS received

a total of 35 sets of comments from regional and national environmental

organizations; county, state and Federal agencies; and associations

representing regional commercial and sport fisheries. NMFS also

received more than 50 written and oral presentations (at public

hearings) regarding the proposed designation of critical habitat for

northern right whales.

Comments received by NMFS generally fell into one of the following

categories: (1) Those who were in favor of the designation as it was

proposed; (2) those who were in favor of the proposed designation, but

recommended that additional regulatory actions be taken at the time of

designation to protect northern right whales; (3) those who were in

favor of designating critical habitat for northern right whales, but

recommended expanding the boundaries of the critical habitat; (4) those

who were not in favor of the designation because it was not necessary,

given the protective measures for right whales that are being

implemented through section 7 of the ESA; and (5) those who were not in

favor of the critical habitat designation because it may lead to

further restrictions on a specified activity.

Most comments received by NMFS from private individuals,

environmental organizations, and state agencies supported the critical

habitat designation for northern right whales. Several commenters

suggested that the proposed rule lacked clear conservation measures to

ensure the recovery of the northern right whale. Many of the

recommendations were duplicative of those of other commenters;

therefore, individual comments were combined and addressed together

below, unless otherwise specified.

Comment 1: One commenter recommended that NMFS designate a Northern

Right Whale Recovery Plan Implementation Team for the coastal calving

grounds off Florida and Georgia. The commenter further suggested

representative agencies and organizations that might participate on

this team.

Response: On August 26, 1993, NMFS convened a meeting to discuss

the monitoring program that needed to be in place to protect northern

right whales on their winter ground, prior to their winter arrival.

During this meeting, the Southeastern U.S. Right Whale Recovery Plan

Implementation Team was formed. The team consists of representatives

from the Georgia Department of Natural Resources (Chairman); Florida

Department of Environmental Protection; NMFS/Southeast Fisheries Center

and Southeast Regional Office; U.S. Navy, Naval Air Station,

Jacksonville, FL; U.S. Navy, Submarine Group, Kings Bay, GA; Georgia

Ports Authority; Canaveral Port Authority; Glynn County Commission,

Glynn County, GA; University of Georgia; U.S. Army Corps of Engineers

(ACOE), South Atlantic Division; U.S. Environmental Protection Agency

(EPA); Port of Fernandina, Fernandina, FL; and the U.S. Coast Guard.

NMFS is also coordinating the development of a Right Whale Recovery

Plan Implementation Team for the Northeastern United States. Recovery

Plan implementation for the northern right whale has been ongoing at

some level within NMFS, Northeast Region (NER), since December 1990,

and has involved agency staff and scientific experts in the area. The

most recent Massachusetts Water Resources Authority outfall Biological

Opinion (issued September 8, 1993), and associated conservation

recommendations, are part of the recommendations and programs that have

been instituted in the NER that address Right Whale Recovery Plan

tasks. The Northeast Implementation Team will address the possible

cumulative impacts to right whales from all activities in Massachusetts

Bay.

Comment 2: Several organizations recommended that NMFS implement an

early warning system, consisting of daily surveys (from December 1

through March 31) of the known wintering grounds. Several organizations

also recommended that monitoring be conducted along the migratory route

of this species.

Response: ``Early warning systems'' for right whales in the

southeast United States were first developed through ESA section 7

consultations between NMFS and ACOE, Jacksonville District, as a result

of dredging operations at the Navy's submarine channel at Kings Bay,

GA; the Port of Fernandina, FL; the Port of Jacksonville, FL; the Naval

facilities at Mayport, FL; a navigation channel at St. Augustine, FL;

and numerous beach disposal projects using offshore disposal sites

throughout this area. Measures to protect right whales have included

daily aerial surveys at the time that the dredges are in operation

during the calving season. If a right whale is seen within a 16-

kilometer (k) radius of dredge and disposal areas, dredges and support

vessels are required to carry an observer during daylight hours and to

reduce speeds at night to reduce the likelihood of a collision with a

whale. However, these precautions were only in place while the dredging

operations were being conducted, not throughout the entire winter

calving period. Therefore there were gaps in the aerial survey

coverage, and thus in protective measures for the whales.

In December 1993, the U.S. Navy and the U.S. Coast Guard provided

funding to conduct aerial surveys during the remainder of the time that

the whales were in the calving area; the area of concern from the

Savannah River south to approximately Jacksonville, FL, was surveyed

through March 1994. The ACOE will continue to provide coverage during

those periods when hopper dredges are active. Therefore, the whale

sightings are passed on to appropriate agencies if a survey finds

whales in or near a navigational channel, vessels are asked to proceed

at minimum safe operational speeds and communicate locations of the

whale so other vessels can avoid them. This procedure will continually

be reviewed and revised through efforts of the Southeast Implementation

Team. NMFS intends to continue cooperative efforts with the U.S. Navy,

U.S. Coast Guard, the ACOE, and the implementation team to conduct

daily aerial surveys throughout the calving season and to operate the

early warning system to reduce the likelihood of ship strikes.

It is unlikely that right whales can be monitored throughout their

range for the purpose of protecting them from ship strikes. NMFS is

developing a research program that may include satellite tracking of

tagged northern right whales to determine those areas (winter and

summer) where right whales occur, but which are unknown at this time.

Comment 3: The following comments were made by several commenters.

They all address additional activities that the commenters felt should

be developed to protect right whales, or activities that should be

prohibited, restricted or modified, primarily in the SEUS, to protect

the whales further. These comments are addressed together.

a. Many commenters indicated that restrictions or modifications of

shipping lanes and shipping practices need to be made at the time of

designation. The suggested modifications or changes included the

seasonal relocation of shipping lanes, a requirement that vessels

entering or leaving ports adjacent to the right whale winter grounds

use direct routes (perpendicular to the shoreline at the port entrance)

from December 1 through March 31, restriction of shipping and vessel

speeds to allow whales to avoid oncoming ships or allow ships to avoid

hitting whales, and a requirement of dedicated onboard observers to

maintain watch so that vessel collisions with right whales are avoided

when ships are transiting through right whale wintering habitats during

months when the whales occupy these habitats.

b. Several commenters recommended the development of education

programs for shipping and public interests. Others suggested that NMFS

provide to the shipping companies illustrated instructions (in many

languages) on the importance of protecting right whales in these

waters, and on safe vessel operation in the winter calving areas. They

further suggested that these instructions be posted for the crews of

all ships operating in U.S. waters, and that these safety measures

should be enforced. It was suggested that the U.S. Coast Guard should

include whale safety in its small boating course, and in required

courses for commercial captains and boat operators.

c. Several commenters suggested that NMFS should define right whale

critical habitat boundaries on NOAA navigational charts, and the notice

of the designation and occurrence of whales need to be included

seasonally in the Notice to Mariners and other publications, alerting

shipping interests to the potential presence of right whales in the

area at certain times.

d. Several commenters recommended that NMFS ban dredging and seabed

mining in the right whale calving grounds and feeding grounds, and

along the entire migratory route. Many comments supported restrictions

on dredging, if necessary, to protect right whales; gas and oil

exploration and the dumping of contaminated waste within the calving

areas described by the critical habitat boundaries; dumping of

contaminated dredge spoils and industrial waste; and the construction

of submerged or emergent structures within known right whale habitats.

e. Several commenters suggested that the discharge of pollutants at

the mouths of rivers that empty into the calving grounds should be

monitored for possible effects on the habitat.

Response: Regarding comments 3a.-3c., the Southeastern U.S. Right

Whale Recovery Plan Implementation Team (see Comment 1) formed

committees to examine many of the issues discussed in the comments.

Committees that were formed cover the following topics: Education/

Awareness; Early Warning Surveys/Communication; Funding of Surveys;

Research; and Relocation of Ocean Disposal Sites. A second meeting of

the Implementation Team occurred on December 14, 1993; the following

updates from each of the committees are summarized from that meeting.

Education/Awareness Committee: The Canaveral Port Authority

developed an endangered species pamphlet covering whales, manatees and

turtles, which is being distributed regionally. As a group, the Port

Authorities developed a series of posters describing the time right

whales are in their waters, a phone number to contact if a whale is

seen, and mention of right whale habitat. This poster is being

distributed by the harbor pilots when they board a vessel for

navigation.

A standard brochure on right whales in the SEUS has been developed

with input from the Georgia DNR, Florida DEP, New England Aquarium and

others. The brochure is designed for boaters (commercial and public),

but is also to be given to ship masters by harbor pilots. The Port

Authorities, U.S. Coast Guard, U.S. Navy, Georgia DNR and Florida DEP

can use this brochure to increase public awareness and education.

Financial support for this brochure comes from the participating

agencies.

The Georgia DNR and U.S. Coast Guard developed a local Notice to

Mariners about right whale calving grounds. This notice is broadcast

four times daily by the U.S. Coast Guard on VHF. Broadcasts ran from

December 6, 1993, through March 31, 1994. A slightly longer version is

published in the local Weekly Notice to Mariners. This notice may also

be published daily, along with the tides and weather, in regional

newspapers. The Annual Notice to Mariners also has information on this

subject.

Several press releases were issued beginning when the first right

whales were sighted on December 4, 1993. A regional press release was

also issued describing the implementation team, members, persons to

contact if a whale is seen and other information on the need for

protection of right whales in the SEUS.

The University of Georgia is surveying local groups to ensure that

there is no duplication in the development of educational materials on

right whales, and to provide a network to combine and coordinate

efforts.

The Savannah Area Chamber of Commerce suggested that treating a

sighted right whale as though it were another ship (slowing down,

changing course and anchoring to avoid collisions with right whales)

should be formalized for all ports in the southeast (i.e., treating

right whales as vessels under the nautical rules of the road). They

further stated that injury to, and interference with, right whales can

best be avoided by continuing the education of ship's captains, and

through ongoing cooperation between the port, its pilots and the

Georgia DNR.

Early Warning and Communication Committee: An early warning network

has been developed with aerial surveys at the core of the network (see

Comment 2). A communication flow chart has been developed to illustrate

how information regarding whale sightings should be channeled between

the appropriate agencies/groups. This is currently considered the best

communication scheme for relaying right whale sightings from aircraft

to land-based stations, and back to surface vessels. This communication

network is essential to the early warning system and alerts mariners to

the presence of right whales in the SEUS. Information disseminated by

this system is updated daily as whales are located during the aerial

surveys.

Regarding Comment 3d., many of the suggested activities may be

authorized, funded or conducted by Federal agencies. The responsible

Federal agency active within the range of the northern right whales is

required to consult with NMFS regarding its projects and activities

under section 7 of the ESA. If the activity is found likely to

jeopardize the continued existence of the species, directly or through

habitat degradation, reasonable and prudent alternatives would be

offered that could include restrictions. Even if the activity is not

likely to jeopardize the continued existence of the species, NMFS is

required to provide an incidental take statement that identifies the

impact of any incidental taking of northern right whales by the action

agency, and specifies reasonable and prudent measures, and terms and

conditions that must be complied with, to minimize such takings. These

measures may include restrictions upon the activity. In addition,

private entities are prohibited from taking an endangered species

pursuant to section 9 of the ESA, which may include harm to the species

caused by habitat degradation. In this regard, such activities are

already prohibited as a result of listing.

Regarding Comment 3e., NMFS agrees that discharge of pollutants at

the mouths of rivers that empty into the calving grounds should be

monitored for possible effects on the habitat. A designation of

critical habitat may assist Federal agencies in evaluating the

potential environmental impacts of their activities on northern right

whales and their critical habitat. The designation may also help focus

state and private conservation and management efforts in those areas.

Comment 4: Two commenters recommended that a ``distance buffer'' be

established around northern right whales. One recommended that a

minimum approach distance of 100m to 300m should be established for all

vessels around right whales.

The second commenter recommended that NMFS establish around every

northern right whale, in any area designated as critical habitat, a

500m radius ``protection zone,'' and prohibit any vessel or person from

entering or knowingly remaining within this zone. The commenter further

suggested that such a buffer zone is consistent with similar rules

already adopted by NMFS and cited as examples the minimum distance rule

for humpback whales (Megaptera novaeangliae) in Hawaii (50 CFR 222.31)

and the 5.5 k buffer zone established around Steller sea lion

(Eumetopias jubatus) rookeries and major haulouts in Alaska (50 CFR

226.12). The commenter continued that such protection zones for the

area designated in Cape Cod Bay and Stellwagen Bank would be consistent

with existing Massachusetts regulations (322 CMR 12.00 et seq.), which

require that no one approach or remain within 500m of a right whale in

state waters.

Response: In both cases, the purpose of the suggested buffer zones

would be to ensure that northern right whales are undisturbed as much

as possible throughout their range, and to keep vessels far enough away

so that there is no danger of a collision between whales and vessels.

Critical habitat designations reflect specific determinate geographical

areas containing physical or biological features essential to the

conservation of the species. While NMFS recognizes that the area around

each whale is important, it is not appropriately the subject of a

critical habitat designation. Rather, such buffer zones should be

established through separate rulemaking, similar to the special

prohibitions for humpback whales in Hawaii.

Comment 5: One commenter suggested that NMFS implement research and

monitoring programs focused on: (1) Behavioral changes (of northern

right whales) associated with the possible impacts of vessel traffic,

noise and whalewatching; or (2) the effects of dredging activities and

their associated vessel traffic, siltation and noise in the

southeastern United States through continued observation of dredge

activity and aerial surveys of right whales in and adjacent to buffer

zones around dredging operations; (3) the impact of pollution on

phytoplankton and zooplankton abundance--specifically the impact of the

Boston Harbor effluent outfall; and (4) the effects of whalewatching

activities on the northern right whale. The commenter recommended that,

if necessary, NMFS promulgate regulations to mitigate the effects of

these activities.

Response: In addition to the monitoring program implemented by the

Southeast Implementation Team, NMFS is developing a 3-5 year research

plan that will focus on research needs identified as priorities in the

Northern Right Whale Recovery Plan. The current research program is the

result of several meetings that occurred on April 14-15, 1992, in

Silver Spring, MD; June 18, 1993, in Brunswick, GA; and July 16, 1993,

in Silver Spring. These meetings established the following research

priorities:

a. To determine the wintering location(s) of most northern right

whales in the northwest Atlantic through the deployment of satellite

tags on selected female right whale;

b. to determine daily movements within the wintering/calving area.

Tagging with VHF tags in the SEUS could determine the daily movements

of these animals. This information could be useful to develop a long-

term monitoring program to reduce ship strikes in the SEUS;

c. to determine the unknown location of a third summering area.

There are three matrilineal stocks of northern right whales recognized.

One of the stocks does not visit the Bay of Fundy, but is seen in the

GSC and CCB during spring, and in the SEUS in winter. Satellite

tracking a tagged female from the third matriline (these have already

been determined from mtDNA analyses and photoidentification) in the GSC

or CCB in the spring might lead to the location of the other summer

location of northern right whales in the North Atlantic.

d. to identify ``bottlenecks'' in the rate of recovery. The reasons

for the northern right whale's low reproductive rate relative to

southern hemisphere right whales are unknown. One theory is that there

is too much inbreeding as a result of the extremely depleted

population. The extent of inbreeding can be determined from genetic/

molecular identification through mtDNA biopsy sampling and sexing using

molecular techniques; and

e. to determine the best location and methods to monitor recovery

of this population.

NMFS is not considering broad-based whalewatching regulations at

this time, but may consider minimum approach distances specific to

northern right whales as part of the recovery planning process (see

Response to Comment 3).

Comment 6: One commenter stated that collisions with ships and

entanglement in fishing gear may be rare from the perspective of total

fishing activity and vessel traffic in the various areas. However, at

least two right whales were struck and killed in the past 3 years. That

means that about 2 percent (a much higher rate for calves) of the right

whales known to occur in the area since late 1989 have been killed by a

collision with a vessel. This percentage may underestimate the actual

percentage struck during the period because many whales, including

calves, have been seen with propeller scars. In the view of the

commenter, this information demonstrates a significant risk from the

perspective of right whales in this area, especially since the threat

is concentrated on the reproductive core of the population and the

calves, essential for population recovery.

The commenter recommended that NMFS expand the proposed critical

habitat designation to include conservation measures that would reduce

the likelihood of right whales being struck by vessels or becoming

entangled in fishing gear. The commenter continued that the designation

of critical habitat will serve as a warning to those who operate ships

in these areas that steps must be taken to reduce the risk of collision

with right whales. While finding the steps already taken by harbor

pilots, ports authorities, the U.S. Navy, the U.S. Coast Guard, ACOE

and others to be encouraging, the commenter believed that more needs to

be done.

Response: NMFS recognizes that the loss of each northern right

whale has a measurable impact on this population. The first priority of

the Southeast Implementation Team was to develop a program to reduce or

eliminate ship strikes throughout the whales' wintering area.

Also, the New England Fishery Management Council (NEFMC) has

restricted all commercial fishing in Gulf of Maine Groundfish Area I,

which roughly covers the GSC, because of the importance of the area for

haddock spawning from February 1 to May 31, since 1986. The haddock no

longer spawn in that area, but NMFS and the NEFMC have recommended

leaving the closure in place for all gillnet gear to protect the

northern right whale, and other whale species that use that area in the

spring.

NMFS will continue to focus recovery/management efforts on ways to

reduce human-induced mortality as a result of ship strikes and

entanglement.

Comment 7: One commenter stated that the continued availability of

these areas for use by northern right whales is critical to the

survival of the species. The commenter further stated that under the

authority of the Massachusetts Wetlands Protection Act, Massachusetts

has already designated the portion of CCB critical habitat that occurs

in Massachusetts waters as ``Estimated Habitat'' for a State-listed

wetland wildlife species. Estimated habitat, under the Code of

Massachusetts Regulations (CMR), 310 CMR 10.37, is defined as the

estimated geographical extent of the habitats of State-listed species

for which an occurrence within the last 25 years has been accepted by

the Massachusetts Natural Heritage and Endangered Species Program and

incorporated into its official database.

The commenter also stated that regulations have already been

promulgated by Massachusetts law to prohibit vessels from approaching

within 500m of a right whale in State waters. Fishery measures that

reduce the risk of entanglements of marine mammals with fixed gear such

as lobster gear and gillnets have also been adopted in Massachusetts.

There are moratoria on gillnet and lobster licenses, a limit on the

number of lobster pots per fisherman and limits on the length of

lobster pot trawls and gillnets. Further restrictions on gillnets, some

to complement what the NEFMC is considering to reduce by-catch of

harbor porpoise, Phocoena phocoena, are being considered.

The commenter believed, however, that a designation of critical

habitat at the Federal level would extend comprehensive,

interjurisdictional protection to the right whale, a correct approach

to conserving the species. The commenter further stated that since, the

proposed rule said ``fishing practices and locations may require

special management considerations when the timing of the fishing season

and the presence of the northern right whale overlap,'' NMFS should

work closely with Massachusetts and the NEFMC to assess the need for,

and nature of, special management considerations.

Response: NMFS recognizes and appreciates the efforts of the

Commonwealth of Massachusetts to protect the northern right whale. NMFS

is establishing a Northeast Implementation Team for the Recovery Plan

(see Response to Comment 5). It is the intent of NMFS to work closely

with these teams to determine for, and effectiveness of, special

management measures.

Comment 8: One Federal agency supported the proposed critical

habitat designation for the northern right whale, but was concerned

that NMFS would be the Federal agency listed as having management

responsibilities within the boundaries of Cape Cod National Seashore.

Response: Designation of critical habitat does not create

management responsibilities for NMFS, nor does it give NMFS primary

jurisdiction over Federal lands included in the critical habitat

designation. While a Federal agency may undertake an activity that may

affect either the listed species or critical habitat, and may be

required to consult with NMFS pursuant to section 7, it is the action

agency that decides whether to initiate consultation. Likewise, the

action agency determines whether and in what manner to proceed with the

action in light of its section 7 obligations and NMFS' biological

opinion (See 50 CFR 402.15). NMFS' role is advisory in nature.

For example, while NMFS has responsibility over this listed

species, the National Park Service (NPS) at Cape Cod National Seashore

has major responsibilities for the long-term preservation of Cape Cod's

natural resources, including this federally listed endangered species.

As such, the NPS at Cape Cod National Seashore has management

responsibilities within the proposed area of critical habitat that

overlaps with the legislative boundary of the Cape Cod National

Seashore. NMFS believes that the NPS and NMFS can work together on

issues pertaining to the northern right whale.

Comment 9: One commenter suggested that two of the proposed

critical habitat areas violate the prohibition on habitat designation

outside the jurisdiction of the United States. The proposed critical

habitat designation in the GSC and portions of the SEUS exceed the 12

nautical mile territorial sea recognized by the United States.

Response: The regulations state that ``critical habitat shall not

be designated within foreign countries or in other areas outside of the

United States jurisdiction'' (50 CFR 424.12(h)). The critical habitat

designation falls within the 200 mile exclusive economic zone of the

United States, and therefore is not outside of U.S. jurisdiction.

Furthermore, critical habitat designation may impact the activities of

Federal agencies, which are defined as ``all activities or programs of

any kind authorized, funded, or carried out, in whole or in part, by

Federal agencies in the United States or upon the high seas'' (50 CFR

402.02).

Comment 10: Several commenters suggested that the northern boundary

of the critical habitat, as recommended by the Recovery Team and

proposed by NMFS (58 FR 29186, May 19, 1993), be extended further

northward to 32 deg. N latitude, approximately the mouth of the

Savannah River. Based on data examined since the Recovery Team reviewed

and recommended the critical habitat boundaries that were proposed in

the critical habitat designation, the commenter stated that sightings

corrected for effort (i.e., the number of right whales counted per

survey mile since 1984) indicate that the number of right whales per

mile of transect off St. Catherines Island, GA, was comparable to the

number observed off Melbourne and Daytona Beach, FL, and greater than

that off St. Augustine, FL, areas within the proposed critical habitat.

Several other commenters requested that no extension of the

critical habitat include the mouth of the Savannah River be

incorporated into a final designation until verified information on the

presence of the right whale is publicly provided and a public hearing

is held in Savannah, GA, so that the public can have an opportunity to

comment. They further urged that any boundary modification be justified

on firm scientific grounds, showing significant benefits to right whale

recovery.

Response: NMFS believes that the most important winter/calving

areas known are within the boundaries identified as critical habitat in

the proposed rule. The greatest number and highest densities of right

whales have been observed in the Cape Canaveral region, with the second

highest number occurring at the Georgia-Florida border. It is clear,

however, that northern right whales occur outside this area, including

near the mouth of the Savannah River, during the winter calving period

and during their late-winter/spring migration northward.

The monitoring conducted around the mouth of the Savannah River

during 1992/1993, and the near-daily monitoring conducted during the

winter of 1993/1994 from Savannah south throughout the SEUS to

approximately Jacksonville, FL, can be used to examine this issue. In

these 2 years of monitoring near the mouth of the Savannah River (total

approximately 90 days, 20 in 1992/1993 and approximately 70 thus far in

1993/1994) only four right whales have been sighted. The first

sighting, on December 12, 1993, was of three whales moving south. These

whales were resighted the following day near Brunswick, GA. The second

and third sightings were also followed by resightings off Brunswick. In

these cases, the time between resightings was only a few days,

indicating that the whales were not remaining near the Savannah River

but traveling through the area toward the core of the sighting

distribution. Based on these data, NMFS sees no need to include the

area as critical habitat at this time. NMFS recognizes that the

sighting data is based on only 2 years of information, and that

distributions between years can vary dramatically. NMFS will

continually examine sighting data and may modify critical habitat

boundaries in the future if warranted by additional sighting

information.

Comment 11: One commenter suggested that there is a lack of data

offered by NMFS supporting the presence of a substantial right whale

population off the Cape Canaveral Florida coast (south of False Cape).

The commenter cited information in the Recovery Plan for the Northern

Right Whale, which indicates that only four sightings within the 5nm

proposed habitat have been recorded south of the False Cape area prior

to 1989, and questioned whether this is sufficient data on which to

base a designation.

Response: The lack of sightings at the southern end of the

designated SEUS area is explained, at least in part, by low sampling

effort in that area. Sightings corrected for effort indicate that the

area around Cape Canaveral may be used by right whales to a greater

extent than presented by Kraus and Kenney (1991) and discussed in the

Recovery Plan. The data do not support removal of the area from

consideration.

Given the need to monitor and manage activities that might impact

northern right whales in the area of Cape Canaveral, NMFS believes that

it is appropriate to designate this area as critical habitat. The

seasonal use, and extent of use, of any area will be considered during

the ESA section 7 process on a case-by-case basis, but at present the

area in question represents the southern limit to the only known

calving area for this species, and is therefore considered critical.

Comment 12: Another Federal agency supported the proposed

designation and submitted comments from the particular perspectives of

the Gray's Reef National Marine Sanctuary (GRNMS) and the recently

designated Stellwagen Bank National Marine Sanctuary (SBNMS).

The GRNMS lies to the north and east of the proposed critical

habitat boundary in coastal Georgia; and the commenter recommended that

the boundary of the proposed critical habitat be extended northward and

seaward to include GRNMS. The commenter stated that Grays Reef is

particularly vital to the critical habitat designation because the

waters off Georgia and northern Florida serve as calving grounds for

this species. The commenter also stated that personnel at GRNMS could

provide additional resources for observing and monitoring these whales

as part of the Sanctuary's routine operations, as well as provide

substantial support to the education and outreach objectives listed in

the Northern Right Whale Recovery Plan.

The commenter continued by stating that the recently designated

SBNMS overlaps slightly with the proposed critical habitat area (at the

northern end of CCB). The commenter felt that the proposed designation,

in conjunction with the implementation of the SBNMS, would provide

additional opportunities for coordinated efforts to enhance the

potential for recovery of this critically endangered marine species.

Also, some or all of the ``special management considerations or

protections'' identified in the proposed designation as being

potentially required to protect and promote the recovery of the

northern right whale population using the Stellwagen Bank environment

(i.e., vessel traffic, fishing, pollution, mining and gas exploration)

are also addressed by the SBNMS management plan. With the exception of

fishing, these activities are currently either regulated directly, or

are listed as subject to sanctuary regulation.

Furthermore, the Marine Protection, Research and Sanctuaries Act

(title III), as amended in 1992, established the requirement for

consultation between the Secretary of Commerce (NOAA) and any Federal

agency proposing to undertake an activity in the vicinity of a National

Marine Sanctuary that may result in adverse impacts on sanctuary

resources or qualities, including private activities authorized by

licenses, leases or permits. Such consultation must occur prior to

initiation of the proposed activity. From the perspective of

administrative structure, therefore, there are opportunities for both

NMFS and NMSP to coordinate their programmatic objectives.

Response: NMFS does not believe that extending the boundary of the

SEUS critical habitat seaward to include the GRNMS is necessary (see

Response to Comment 10). However, NMFS does agree that the Grays Reef

program could provide additional monitoring of these whales,

substantial support to the education and outreach objectives listed in

the Northern Right Whale Recovery Plan and additional opportunities for

coordinated efforts to enhance the potential for recovery of this

critically endangered marine species.

Comment 13: A commenter recommended that NMFS designate Delaware

Bay as critical habitat for the northern right whale, stating that

Delaware Bay is habitat that is representative of the historic

geographical and ecological distribution of the species.

Response: The criteria specified under 50 CFR 424.12 to be

considered in designating critical habitat, and described in the

preamble to the proposed designation, must consider the requirements of

the species, including habitats that are representative of the historic

geographical and ecological distributions of the species. Section

3(5)(A)(ii) of the ESA states that areas outside the current

geographical range of a species can be designated if the Secretary

determines that such areas are essential for the conservation of the

species. The regulations to the ESA interpret this provision to mean

that the Secretary shall designate as critical habitat areas outside

the geographic area presently occupied by a species only when a

designation limited to its present range would be inadequate to ensure

the conservation of the species (50 CFR 424.12(c)). Even where the area

is presently occupied by the species, section 3(5)(c) states that, with

certain exceptions determined by the Secretary, ``critical habitat

shall not include the entire geographic area which can be occupied by

the * * * species.''

Although known to have been used by right whales, it is not

completely understood to what extent Delaware Bay was used, or whether

this area would ever have been considered critical habitat. It is

known, however, that the area is now bypassed by northern right whales

during their annual movements. NMFS believes that the current high-use

areas are identified in this rule, but recognizes that the areas

designated represent the minimal space required by right whales to

ensure population growth. Designating Delaware Bay as critical habitat

would not enhance the likelihood of recovery for this species. If

evidence to the contrary becomes available, critical habitat boundaries

can be modified.

Comment 14: Several commenters did not oppose the designation of

the critical habitat designation for the northern right whale, but were

concerned with the ``general'' language of the proposed designation and

felt there was no real need for it. Rather, they felt that a public

awareness program for shipping interests is sufficient. They further

expressed concern that the language of the preamble to the proposed

designation stating that ``habitats will be given special consideration

in section 7 consultations'' would become a vehicle to attack offshore

dredge disposal and port expansion. The commenters requested that NMFS

reconsider the need for the proposed designation as it applies to the

southern coastal area, given that there is already an active task force

working to prevent collisions between vessels and the northern right

whale and that the other protections of the ESA still apply.

Finally, one of the commenters wanted the channel, fairways to sea

lanes, disposal sites, access routes to disposal sites and nearshore

berm areas in the SEUS to be excluded from the critical habitat

designation. The commenter noted that these areas can be excluded if

the overall benefits of exclusion outweight the benefits of

designation, unless the exclusion results in the extinction of the

species.

Response: Federal agencies active within the range of the northern

right whales are already required to consult with NMFS regarding

projects and activities that may affect the species pursuant to section

7 of the ESA. Federal agencies are required to evaluate their

activities with respect to northern right whales and to consult with

NMFS prior to engaging in any action that may affect the critical

habitat to ensure that their actions are not likely to result in its

destruction or adverse modification. Regarding the SEUS critical

habitat specifically, these actions are being reviewed by the Southeast

Implementation Team, through section 7 consultations and agreements

already in place, and through the expanded efforts of the

Implementation Team to reach the private and public sectors.

Finally, frequent travel by commercial vessels in these areas

represents a considerable threat to northern right whales. Therefore,

NMFS does not agree that corridors frequently traveled by vessels

within the designated critical habitat should be excluded.

Comment 15: One federal agency was concerned that the proposed

designation was neither appropriate nor necessary to preserve the

species. The commenter felt that the current proposal merely designates

areas of highest concentration of the whales and lists their

characteristics, rather than considers the physical or biological

features that are essential to the conservation of the species. To

warrant critical habitat designation, the commenter felt that a better

understanding of the species' biological and physical requirements is

needed.

Response: NMFS agrees that critical habitat designation must

include areas meaningful to the specie's conservation. Consequently,

NMFS is not designating the northern right whale's entire range, which

was suggested by several commenters, but is focusing attention on

particular areas that have essential features and that may be in need

of special management consistent with the ESA and implementing

regulations. The section of this preamble entitled ``Essential Habitat

of the Northern Right Whale'' has been expanded from the proposed rule

to address those biological and physical features and to identify those

principal constituent elements, such as feeding sites, breeding grounds

and calving areas within the designated areas, that are considered

essential to the northern right whale. The section in the proposed

designation entitled ``Need for Special Management Consideration''

summarizes the justification for the designation of these three special

areas.

NMFS has concluded, based on the best available scientific evidence

and the biological and ecological needs of the species, that the areas

in coastal and offshore waters that are being designated as critical

habitat for northern right whales contain the appropriate environmental

and biological characteristics required by the species to recover, and

may warrant consideration of special management measures.

NMFS has also concluded that the designation of waters within the

SEUS is warranted, given the geographic concentration of northern right

whales during the winter/calving period, the extreme endangered status

of this species, the importance of the area to the reproductive

potential (recovery) of the species, the possible impacts of commercial

activities on right whales that may require monitoring and the fact

that this area may be in need of special management measures.

The potential for special management considerations does not

necessarily mandate restriction or elimination of activities. Close

monitoring of activities and additional research also constitute

special management considerations. The existing information, discussed

in the preamble to this final designation, supports this designation of

critical habitat.

Comment 16: Another Federal agency commenter, citing the EA

prepared by NMFS, stated that the direct impact of the designation

affects Federal agencies and only duplicates that protection provided

under the section 7 jeopardy provision. According to the commenter, the

primary benefit cited for the proposed designation is increased

awareness. The commenter believed that previous consultations with

Federal agencies and meetings with the public have heightened

awareness, and therefore, that more regulations are unnecessary. In

summary, the commenter opposed the designation. However, the commenter

wanted to facilitate more progressive conservation of the species and

to cooperate in the development of interagency management plans to

reduce impacts to the whales in high density areas. The commenter

believed such measures will allow NMFS and other Federal agencies more

flexibility in advancing recovery of the northern right whale.

Response: NMFS restates that, while designating critical habitat

helps focus the attention of Federal agencies on the importance of a

designated area for an endangered species, state and private agencies

may also give special consideration toward conservation and management

actions in these areas. A designation of critical habitat provides some

incremental protection to northern right whales in those cases where

the action may not result in a direct impact to individuals of a listed

species (e.g., an action occurring within the critical area when a

migratory species is not present, or when an activity is conducted

outside the designated area), but may affect the critical habitat.

Finally, NMFS agrees with the commenter that a more progressive

conservation program to protect this species is necessary, and that the

development of interagency management plans to reduce impacts to the

whales in high density areas is the best approach. Therefore, NMFS will

continue to work through the Southeast Implementation Team and through

ongoing section 7 consultations to advance recovery efforts for

northern right whales in these waters. NMFS appreciates the efforts

that have already been made toward protecting these animals, and

believes continued research and management discussions will result in a

cost-effective, flexible program that will enhance the recovery of the

northern right whale.

Comment 17: One commenter supported reasonable activities to

protect the right whale at an acceptable cost and understood that the

designation will not, in itself, impose additional regulations

affecting activities within the habitat area. The commenter shared the

concerns of other port operators that designation of critical habitat

may lead to adoption of rules regulating the speed and routes of

commercial vessels which may cause vessels to leave these ports at

great economic cost to the port.

The commenter was concerned that all proposed special management

measures that could impose increased costs should be adequately

evaluated to assure that resulting benefits justify those costs, and

that measures are implemented in the most cost-effective manner. The

commenter suggested that effective alternative protection methods with

significantly less cost may exist, although it did not provide specific

recommendations.

This commenter has joined together with others to institute an

education and information dissemination plan designed to protect the

right whale. The commenter believed that this cooperative effort is the

method most likely to be effective in protecting the right whale at

reasonable cost in northern Florida and southern Georgia coastal

waters.

Response: NMFS does not expect any additional restrictions on use

of the areas as a result of this designation. Therefore, direct

economic impacts associated with this designation are expected to be

minimal.

NMFS agrees that there may be alternative protection methods. The

possibility of such alternatives, however, does not eliminate the need

to designate critical habitat. These should be brought to the attention

of the Southeast Implementation Team, which can review and evaluate

them.

Comment 18: One commenter was concerned about the potential effects

of this designation on beach nourishment projects done in conjunction

with the ACOE. Currently the commenter and the ACOE are studying the

feasibility of beach nourishment at several eroding areas of the

Atlantic shoreline. The commenter continued that the potential window

for beach nourishment projects has already been limited by the presence

of essential nesting habitat for endangered and threatened species of

sea turtle. The nesting seasons runs from May 1 through October 1 of

each year, limiting the timeframe for nourishment projects to the

winter months.

Another Federal agency stated that any hopper dredge restrictions

implemented to avoid the December through March time period of right

whale calving and presence in the area would be burdensome. The

commenter encouraged working out a timeframe that would allow use of a

hopper dredge and take into account the winter right whale calving

season and the summer period of high abundance for Kemp's ridley turtle

(Lepidochelys kempii) and manatee (Trichechus manatus) in the Kings Bay

area.

Response: NMFS realizes that the present dredging period was

scheduled to accommodate the presence of several species of sea turtles

in these waters, and also recognizes the seasonal limits for beach

nourishment projects. The present seasonal restriction on dredging is

an essential management measure, given the increased densities of sea

turtles in coastal waters during the warmer months.

The designation of critical habitat for right whales will not

affect the scheduling of this activity. NMFS does not intend to alter

the present schedule through this designation, but rather will continue

to require the present level of monitoring of dredging activities

during winter months to reduce impacts to northern right whales. Over

the years, there have been several very near misses of right whales

with dredges that were avoided due, at least in part, to observer

coverage on the dredges.

Comment 19: Several organizations and individuals had comments

regarding commercial fishing restrictions. One commenter recommended

seasonal restrictions on set-gillnet fisheries and multiple trap

American lobster, Homarus americanus, fisheries within known right

whale habitat, and felt that fines and enforcement procedures for

individuals violating this and other restrictions should be mandated.

Another commenter recommended that NMFS expand the rule to include

conservation measures to reduce the likelihood of right whales being

struck by boats or becoming entangled in fishing gear. Specifically,

the commenter recommended that NMFS prohibit the use of unattended

drift and sink gillnets in all three areas being designated as critical

habitat during the seasons that right whales are likely to occur in the

area.

Another commenter suggested that unattended use of gillnets should

be prohibited from December 1 through March 31 (the time that northern

right whales are in the area), but that commercial fishing need not be

restricted on the winter grounds.

NMFS also received several comments from individuals and

organizations recommending against designating critical habitat because

they believed it would lead to further restrictions of fishing

activities. One such commenter asserted that the desigation may

eventually result in the halting of recreational fishing outside

Sebastian Inlet, FL, and for that reason was opposed to designating

critical habitat. Another commenter felt that the designation of

critical habitat would increase regulation of commercial fishing and

for that reason opposed the designation.

Another commenter stated that commercial fishermen throughout the

SEUS support efforts to protect the northern right whale through

participating in whale sighting programs, and by radioing positions of

whales to other vessels to avoid collisions. Thus, the commenter felt

declaring this area as critical habitat was not necessary to avoid

collisions, and may unnecessarily affect fishermen as well as other

commercial activities.

Response: As stated in the proposed critical habitat designation,

the only direct impact of a critical habitat designation is through the

provisions of section 7 of the ESA, which applies only to those actions

authorized, funded or carried out by Federal agencies. This final

critical habitat designation contains no land use or fishing

regulations, and will not directly affect private activities. Even

where there is Federal involvement, NMFS anticipates that this final

critical habitat designation, by itself, will not restrict private

activities in a manner or to an extent that these activities are not

already affected as a result of the listing of this species as

endangered. If, in the future, NMFS determines that restrictions on

human activities are necessary to protect northern right whales or

their habitat, such action would be preceded by an opportunity for

public review and comment.

Comment 20: One commenter stated that pollutant discharges in CCB

may represent a continuous source of degradation to essential habitats.

Sewage discharges, dredging activities, dredge spoil disposal and non-

point sources all contribute contaminants into this relatively shallow

and extraordinarily productive environment. The commenter further

stated that the Massachusetts Water Resources Authority (MWRA) is in

the process of combining, upgrading and relocating its outfalls

approximately 15km out into Massachusetts Bay, or roughly 40km to the

north of the critical habitat boundary. The commenter felt that

research should be continued and broadened to address all aspects of

the species' biology, behavior and habitat requirements, as well as the

specific sources of pollution that threaten to diminish the quality of

the habitat for northern right whales.

The commenter stated that in CCB there is a need to establish a

water quality monitoring program that focuses on endangered species and

incorporates sampling of critical parameters at the appropriate spatial

and temporal scales.

Response: As previously stated, NMFS is coordinating the

development of a Right Whale Recovery Plan Implementation Team that

will address the possible impacts to right and humpback whales from

activities in Massachusetts Bay that may affect CCB (see Comment 5).

Comment 21: One Federal agency outlined those protective measures

that have been developed over the years through ESA section 7

consultations with NMFS and commended the efforts of NMFS, Southeast

Regional Office, in initiating discussions with EPA, Region IV, to

propose moving the Kings Bay ocean dredged material disposal site

closer to the navigation channel. A closer disposal site would reduce

the distance traveled by hopper dredges, thereby reducing the potential

for collisions with right whales.

The commenter did not anticipate additional restrictions on these

activities because of the critical habitat designation.

Response: NMFS will continue to work with all Federal agencies

through the section 7 consultation process on all protected species

issues to ensure the continued recovery and protection of endangered

and threatened species.

Classification

It has been determined that this rule is not significant for

purposes of E.O. 12866.

NOAA Administrative Order 216-6 states that critical habitat

designations under the ESA generally are categorically excluded from

the requirements to prepare on EA or Environmental Impact Statement.

However, in order to more clearly evaluate the minimal environmental

and economic impacts of critical habitat designation versus the

alternative of a no-critical habitat designation, NMFS has prepared an

EA. Copies of the EA are available on request (see ADDRESSES).

List of Subjects in 50 CFR Part 226

Endangered and threatened species.

Dated: May 27, 1994.

Charles Karnella,

Acting Program Management Officer, National Marine Fisheries Service.

For the reasons set forth in the preamble, 50 CFR part 226 is

amended as follows:

PART 226--DESIGNATED CRITICAL HABITAT

1. The authority citation for part 226 continues to read as

follows:

Authority: 16 U.S.C. 1533.

2. New Sec. 226.13 is added to subpart B to read as follows:

Sec. 226.13 North Atlantic Ocean.

Northern Right Whale (Eubalaena glacialis)

(a) Great South Channel. The area bounded by 41 deg.40' N/

69 deg.45' W; 41 deg.00' N/69 deg.05' W; 41 deg.38' N/68 deg.13' W; and

42 deg.10' N/68 deg.31' W (Figure 6 to part 226).

(b) Cape Cod Bay, Massachusetts. The area bounded by 42 deg.04.8'

N/70 deg.10' W; 42 deg.12' N/70 deg.15' W; 42 deg.12' N/70 deg.30' W;

41 deg.46.8' N/70 deg.30' W and on the south and east by the interior

shore line of Cape Cod, Massachusetts (Figure 7 to part 226).

(c) Southeastern United States. The coastal waters between

31 deg.15' N and 30 deg.15' N from the coast out 15 nautical miles; and

the coastal waters between 30 deg.15' N and 28 deg.00' N from the coast

out 5 nautical miles (Figure 8 to part 226).

3. Figures 6 through 8 are added to part 226 to read as follows:

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