North Atlantic Right Whale Protection

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 222

[Docket No. 960730211-7020-02; I.D. 072296B]

RIN 0648-AJ03

North Atlantic Right Whale Protection

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule.

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SUMMARY: Disturbance is identified in the Final Recovery Plan for the

Northern Right Whale (Recovery Plan) as among the principal human-

induced factors impeding recovery of the northern right whale

(Eubalaena glacialis) (NMFS, 1991). NMFS is issuing this interim final

rule to restrict approaches within 500 yards (460 m) of a right whale,

whether by vessel, aircraft or other means, in an attempt to reduce the

current level of disturbance and the potential for vessel interaction

and injury. This rule requires right whale avoidance measures if a

vessel or aircraft is within the 500-yard (460 m) restricted area.

Generally, vessels are required to immediately depart from the area at

a slow, safe speed in a direction away from the whale. Exceptions are

provided for emergency situations, where certain authorizations are

provided for aircraft operations (unless the aircraft is conducting

whale watch activities), for certain right whale disentanglement/rescue

efforts and investigations, and for a vessel restricted in its ability

to maneuver and unable to comply with the right whale avoidance

measures.

EFFECTIVE DATE: March 17, 1997.

FOR FURTHER INFORMATION CONTACT: Margot Bohan, NMFS/FPR, 301-713-2322;

Doug Beach, NMFS/Northeast Regional Office, 508-281-9254; or

[[Page 6730]]

Kathy Wang, NMFS/Southeast Regional Office, 813-570-5312.

SUPPLEMENTARY INFORMATION:

Background

The northern right whale is recognized as the world's most

endangered large whale species. Recent mortalities off the Atlantic

coast of the United States have caused escalating concern for the

western North Atlantic population, especially with regard to the

population's vulnerability to human interaction.

The preamble to the proposed rule discussed the critically

endangered status of the western North Atlantic population of the

northern right whale (right whale), the distribution pattern of these

whales near the east coast of the United States, and the existence of

vessel and related human activities in these areas that pose a

significant risk to right whales. In particular, where human activities

coincide with the distribution of right whales off the coast of the

United States, such as vessel traffic, there is the potential that

right whales may be disturbed or have their behavior altered,

conceivably being injured or killed as a result. (For a more complete

discussion of these issues, see the preamble to the proposed rule (61

FR 41116, August 7, 1996) and the environmental assessment).

Since the proposed rule was issued, additional information has

become available concerning the right whale population. Another right

whale mortality was observed in early January 1997. A neonatal male

calf was found stranded on Flagler Beach, FL; reports from a

preliminary examination suggest that the whale may have died from birth

trauma or other natural causes. Thus, since 1995, there have been 14,

possibly 15, known serious injuries and/or mortalities of right whales

off the Atlantic coast (5 due to entanglement, 3 due to ship strikes, 5

due to unknown or natural causes, and 1 death in 1996 due to ship

strike of a whale injured by an entanglement in 1995). Furthermore, in

early 1996, an increase in estimated mortalities was reported for the

years 1994 and 1995. However, a preliminary analysis of right whale

photo-identification data suggests that total right whale mortality

cannot be estimated reliably because of a shift in photo-identification

sighting efforts (Hain, et al., 1996 (in draft)). Significant

uncertainties remain concerning the current population status and

trends. Regardless of the uncertainties, the precarious state of the

right whale population strongly suggests that human activity, which

results in disturbance, and, thus, an increased potential for injury

and mortality, may have a greater impact on population growth rates and

trends relative to other whale species.

This rule is issued as an interim final rule to allow NMFS and

state coastal management agencies to consider more fully whether this

rule will affect approved Coastal Zone Management Programs in states

along the east coast. NMFS determined that the proposed rule, if

implemented would be consistent to the maximum extent practicable with

federally-approved coastal zone management programs, pursuant to the

Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et

seq., but through an oversight, the proposed rule was never sent to the

responsible state agencies for review. NMFS has issued a similar

determination with respect to this interim final rule and has requested

the responsible state agencies to expedite their review.

In addition, other agencies have objected to the issuance of any

regulatory definition for the ``territorial sea,'' as this term is used

under the Endangered Species Act (ESA) and associated regulations. NMFS

is not issuing such a definition in this interim final rule in order to

have additional time to consult with other Federal agencies; this issue

will be resolved prior to issuing a final rule.

The authority for the interim final regulation restricting

approaches to right whales is pursuant to both the ESA and the Marine

Mammal Protection Act (MMPA), as was proposed. NMFS has concluded that

this regulation is an appropriate mechanism to carry out the purposes

of the MMPA. Likewise, the rule is an appropriate mechanism to promote

conservation, to implement recovery measures, and to enhance

enforcement under the ESA. Section 11(f) of the ESA provides the

Secretary of Commerce with broad rulemaking authority to enforce the

provisions of the ESA. For example, given the potential that close

approaches to right whales could harm, harass, injure or otherwise

``take'' a right whale, this interim final rule is issued to more fully

implement the protections established under section 9(a) of the ESA. In

addition, NMFS is required to develop and implement recovery plans

under section 4(f) of the ESA and the Recovery Plan notes that

disturbance and vessel interactions should be reduced. Lastly, all

Federal agencies have an obligation under ESA section 7(a)(1) to use

their authorities to further the purposes of the ESA to conserve

species.

Changes From the Proposed Rule

On August 7, 1996, NMFS published a proposed rule to prohibit all

approaches within 500 yards (460 m) of a right whale, whether by

vessel, aircraft or other means. NMFS also proposed to restrict head-on

approaches, to prohibit any vessel maneuver that would intercept a

right whale, and to require right whale avoidance measures under

specified circumstances. Exceptions were proposed for emergency

situations and where certain authorizations were provided.

This interim final rule differs from the proposed rule in several

important respects, and modifications were made for various reasons

discussed below. First, NMFS endeavored to simplify and clarify the

regulatory language of the rule. Second, changes were made to enhance

the enforceability of the rule. Third, changes were made in response to

comments received during the 90-day comment period for the proposed

rule. Changes to the proposed rule include the following:

Definitions

The definition of ``right whale'' is added to the definitions

section in 50 CFR part 217, instead of 50 CFR part 222. The substance

and applicability of the definition is unchanged.

The interim final rule also adds a definition for ``vessel

restricted in her ability to maneuver'' that refers to the definition

in Rule 3 of the Inland Navigation Rules (33 U.S.C. 2003). A similar

definition is used in the COLREGS Rule 3 (See 33 CFR Part 81 App. A,

Part A, Rule 3).

Head-on Approaches

The proposed rule would have prohibited a vessel from approaching a

right whale head-on from any distance once the right whale was observed

or should have been observed by a vessel operator using due diligence

and once there had been time to alter the heading of the vessel. The

interim final rule does not include this prohibition. NMFS concluded

that this prohibition would be very difficult to enforce and that the

general restrictions on approaches within 500 yards (460 m) of a right

whale should provide adequate protection. Nevertheless, while not

required by regulation, NMFS continues to encourage vessel operators to

avoid head-on approaches of right whales (see Right Whale Avoidance

Guidance in the Summary of Protective Measures for details).

Interception

The proposed rule would have prohibited a vessel from turning,

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positioning, or maneuvering in a manner to intercept a right whale. The

interim final rule does not contain this language but maintains the

general requirement by prohibiting any approach ``by interception.''

This stylistic change reflects the fact that actions designed to

intercept a right whale constitute a form of approach. This

interpretation is consistent with the view currently taken by NMFS in

implementing the approach restrictions governing humpback whales in the

Hawaiian islands.

At this time, NMFS is not defining the term ``interception.'' With

this prohibition, however, NMFS intends to prohibit positioning or

maneuvering that is calculated to bring a vessel or aircraft within 500

yards (460 m) of a right whale.

Right Whale Avoidance Measures

The proposed rule contained a detailed list of right whale

avoidance measures in its regulatory requirements. Right whale

avoidance measures were described, generally, as actions necessary to

avoid takings prohibited under the MMPA or the ESA and actions

necessary to comply with instructions from NMFS, the U.S. Coast Guard

and other agencies concerning the avoidance of right whales. If a

person, aircraft, vessel or other object were to come within 500 yards

(460 m) of a right whale, right whale avoidance measures were to be

followed to increase the person or object's distance from the whale.

The proposed rule also provided specific guidance concerning how to

increase one's distance from a right whale: (1) Sudden changes in

operation were to be avoided unless necessary to avoid striking or

injuring a right whale or for safe vessel or aircraft operation, (2) if

one were already moving away from a right whale, approximately the same

speed and direction should be maintained, (3) if one was moving toward

a right whale, expeditious efforts should be made to reduce speed and

to change direction away from the whale, (4) if one is approached by a

whale, the person or object should move slowly but deliberately and

steadily away from the whale. These requirements were not applicable

under certain circumstances such as when a vessel was not underway or

was restricted in its ability to maneuver.

Though still in the interim final rule, these avoidance measures

have been scaled back significantly. NMFS has decided that more concise

avoidance measures will enhance enforceability and will allow the use

of avoidance measures that are appropriate, given the unique

circumstances of any situation that is encountered.

Specifically, this interim final rule removes the general

description of right whale avoidance measures as written in the

proposed rule. NMFS has concluded that there is no need to repeat the

statutory prohibition on taking pursuant to the ESA and MMPA. In

addition, NMFS removed the regulatory requirement, as written in the

proposed rule, for compliance with instructions from NMFS, the U.S.

Coast Guard and other agencies, although that information may be

relevant in assessing the seriousness of a violation.

Furthermore, NMFS has excluded from this rule specific regulatory

requirements concerning the steps to be taken to increase one's

distance from a right whale. Instead of the detailed instructions

provided in the proposed regulations, the interim final regulations

simply require that, if within 500 yards (460 m) of a right whale: (1)

Vessels that are underway must steer a course away from the right whale

and immediately leave the area at a slow safe speed; and (2) aircraft

must take a course away from the right whale and immediately leave the

area at a constant airspeed.

Notwithstanding these modifications, NMFS wishes to provide

guidance that will assist individuals who find themselves within 500

yards (460 m) of a right whale. To that end, NMFS is providing Right

Whale Avoidance Guidance (see Summary of Protective Measures). This

guidance embraces many of the avoidance measures set forth in the

proposed rule.

General Exceptions

Exceptions to the approach restrictions and the avoidance measures

were listed separately from the more limited exceptions applicable only

to the avoidance measures in the proposed regulations. This interim

final rule groups all exceptions together. In addition, the interim

final rule states clearly that a person claiming the benefit of any

exception has the burden of proving that the exception is applicable.

Aircraft. The proposed rule would have prohibited approaches by

aircraft within 1500 feet (460 m) of a right whale, regardless of

whether the aircraft was involved in whale watching activities. NMFS

has substantially modified this provision in order to limit the

restrictions to aircraft-related activities of greatest concern. As

modified, a broad exception is provided to the approach restrictions

and avoidance measures so that these provisions only apply to aircraft

that are conducting whale watching activities.

Vessels at anchor or mooring. The proposed rule included an

exception from the requirement to undertake right whale avoidance

measures for vessels that are not underway. The interim final rule

maintains this requirement, but in a stylistically different manner. In

the interim final rule, the exception is removed, but the avoidance

measures are modified to apply only to vessels that are ``underway.''

As with the proposed rule, the term underway is defined to mean vessels

not at anchor, made fast to the shore, or aground.

Right whale investigation or rescue efforts. This interim final

rule provides an exception to the approach prohibitions and avoidance

measures in a situation when a person is approaching to investigate a

right whale entanglement or injury, or to assist in the disentanglement

or rescue of a right whale; however, permission must be received from

NMFS or a NMFS designee prior to the approach. The proposed rule did

not include a similar exception; this addition in the interim final

rule is in response to several commenters' requests.

Emergency situations. Both the proposed and interim final rules

include an exception for emergency situations. The language of this

exception is changed somewhat from the proposed rule. In addition, the

recommendation within the regulatory text to contact, if possible,

NMFS, the U.S. Coast Guard, local port authority, or local law

enforcement officials is removed in the interim final rule, although

such action may help establish that the exception is applicable in a

particular situation.

Responses to Comments on the Proposed Rulemaking

Fifteen commenters responded to the proposed rule's request for

comments; all submissions were considered in the preparation of this

interim final rule. Responses to comments addressing significant issues

and requiring a reply are summarized below:

Comment 1: Usage of the term ``disturbance'' in this rule. One

commenter recommended that NMFS avoid equating the disturbance of

marine mammals with ``harassment,'' explaining that the parallel is

purely speculative.

Response: The 1994 amendments to the MMPA included the following

definition:

(18)(A) The term ``harassment'' means any act of pursuit,

torment, or annoyance which--(i) has the potential to injure a

marine mammal or marine mammal stock in the wild; or (ii) has the

potential to disturb a marine mammal or marine mammal stock in the

wild by causing the disruption of

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behavioral patterns, including, but not limited to, migration,

breathing, nursing, feeding or sheltering.

Based on the best available information, NMFS has determined that,

in general, close approaches to right whales by vessels, aircraft and

other means have the potential to disturb or injure these animals. (For

further information concerning disturbance, see also the response to

Comment 2 below.) NMFS also recognizes that not every approach within

500 yards (460 m) of a right whale necessarily results in harassment.

Nonetheless, because of the precarious status of this species, NMFS has

concluded that a general restriction on these types of approaches is

justified.

Comment 2: The size of the buffer zone. Three commenters remarked

on the lack of sufficient data to support a 500 yard (460 m) protection

zone and demonstrate that it is an appropriate distance to protect

right whales from behavioral disturbance. One of these commenters cited

ESA section 4, which requires the publication of a summary of the data

on which a regulation is based, showing the relationship of such data

to the proposed/final regulation. The same commenter explained that 500

yard (460 m) zone is not correlated to the observational capabilities

of ship operators or the operational capabilities of their vessels.

Additional study to determine the appropriate distance was recommended.

Implementation of other measures in conjunction with the approach

restriction was also recommended.

In favor of the proposed rule, a fourth commenter stated that

although 500 yards (460 m) may be a greater distance than necessary and

may be difficult to accurately measure, it will prevent intentional

close approach by vessels if it is enforced. Another commenter

explained that the 500 yard (460 m) approach prohibition makes the

protection of right whales in Federal waters consistent with that

provided in Massachusetts State waters, where such a prohibition

already exists; it is an important step in providing basic protection.

Response: NMFS has determined that a 500 yard (460 m) buffer zone

is appropriate. The Recovery Team concluded that observers (lookouts)

with knowledge or training should be able to distinguish right whales

from other whale species at this distance. NMFS has determined that

such a buffer will allow people to observe right whales (and other

large whales if they are unable to identify the species with certainty)

while providing a measure of protection and safety for these animals

consistent with sound management practices. NMFS recognizes operational

limitations, such as difficulties in establishing distances at sea in

an enforcement action, that may reduce the actual zone of protection.

NMFS also notes that such an approach is consistent with Massachusetts'

regulations.

As indicated in the preamble to the proposed rule, right whales are

vulnerable to disturbance or injury as a result of close approaches by

vessels or other means. Right whales are slow-moving. This limitation

and other behavioral characteristics make this species particularly

susceptible to close approaches by humans. Vessel traffic may subject

whales to impacts ranging from displacing cow/calf pairs from nearshore

waters to expending increased energy when feeding is disrupted or

migratory paths rerouted.

Furthermore, as indicated in the preamble to the proposed rule and

described in more detail in the environmental assessment, turbulence

associated with vessel traffic may indirectly affect right whales by

breaking up the dense surface zooplankton patches in certain whale

feeding areas. Right whale energetics are such that they are

particularly dependent on very dense zooplankton aggregations for

feeding. If copepods in the caloric-rich, adult developmental stages

are not available to 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).

Prey distribution and density are believed to be among the primary

governing factors in whale distribution and density in an undisturbed

ecosystem. The presence of vessels in or adjacent to areas occupied by

whales may cause a change in whale behavior, such as cessation of

feeding activity, for the duration of the human activity. Such activity

levels may cause the whales to leave localized feeding areas

temporarily. Repeated disturbance of the whales may result in the

abandonment of localized feeding areas. Any loss of feeding habitat or

interference with feeding activities may affect the ability of these

whales to obtain the full summer ration of food necessary for

successful reproduction and overwintering. The severity of this loss

would depend on the level of interference with feeding activity or on

the availability of alternative food supplies.

While the proposed rule recognized that data and evidence of

disturbance or behavioral changes induced by human activity or

interactions beyond 100 yards (90 m) was limited, NMFS has considered

the best available information on this issue. The critically endangered

status of this species was another important consideration in

establishing the appropriate size of the buffer zone. Finally,

operational and practical considerations also were evaluated, such as

the maximum distance at which a right whale could be identified, and

difficulties in estimating distance at sea. Based on these

considerations, NMFS has concluded that the area of protection around

right whales should be maximized to avoid any potential for disturbance

or behavioral changes and to reduce, if possible, the risk of

collision; thus, a 500 yard (460 m) buffer area is appropriate.

Comment 3: Situations where the identification of the whale species

is uncertain. Two commenters expressed notable support for the

implementation of species-specific protective measures. According to

these commenters, since right whales make up such a small fraction of

the whales sighted on whale watches, it would be an undue burden on

industry to limit approaches to all whales because of the remote

possibility that the whale is a right whale.

Two other commenters expressed their support for a rule

establishing comprehensive protection for all listed whale species,

rather than partial protection on a species-by-species basis. They

cited the July 22, 1996, U.S. Coast Guard Biological Opinion as a model

of protection to follow and recommended revision to the proposed rule

to make it a generally applicable rule that could be amended according

to whatever species-specific information may be learned as part of the

initiative. The rule, according to these commenters, also should

establish the presumption that any whale not positively identified as

another whale species must be considered a northern right whale; the

fact that only the northern right whale is afforded a buffer zone

presupposes that all boaters will be able to identify a northern right

whale. One of these two commenters claimed that if NMFS denies any

listed whales the protection of a distance rule, the operators of

commercial whale watching vessels must be required to obtain incidental

take permits, pursuant to section 10 of the ESA and a small take

permit, pursuant to section 101(a)(5) of the

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MMPA before being allowed to conduct whale watching.

Response: NMFS recognizes that under certain circumstances

regulations are appropriate to address specific species in a particular

area or region. Oftentimes, differences in species and marine habitat

merit differences in regulatory approach. This rule pertains only to

the western North Atlantic population of northern right whales. On

August 3, 1992, NMFS published a proposed rule of general applicability

to protect whales, dolphins and porpoise from activities associated

with whale watching and to establish minimum approach distances (see 57

FR 34101). That proposal was withdrawn in 1993, in part, because it was

viewed as being too broad in scope (see 58 FR 16519, March 29, 1993).

At that time, NMFS began an initiative to concentrate efforts regarding

marine mammal approach on a more species- and region-specific basis.

NMFS recognizes that in some situations it may be difficult for a

person to differentiate between a right whale and another species of

large whale at a distance of 500 yards (460 m), although the Recovery

Team indicated that persons with knowledge or training could identify

right whales at this distance. Thus, in order to ensure compliance with

the mandates concerning right whales in this interim final rule, a

person is advised to avoid approaches within 500 yards (460 m) of any

large whales that cannot be identified as to species in waters along

the east coast of the United States, especially in right whale high-use

areas when those whales are expected to be present.

NMFS did not propose restrictions on approaches to any species

except right whales. As indicated above, NMFS believes that such

restrictions should be evaluated on a species- and region-specific

basis, and NMFS has not completed those evaluations at this time.

With respect to the need for an incidental take permit for

approaches to endangered whales, NMFS notes that this interim final

rule does not authorize any approach that would constitute a ``taking''

under the ESA or MMPA. Such approaches are prohibited by statute unless

a permit or other authorization is obtained; the fact that these types

of approaches are not prohibited explicitly in this interim final rule

should not be interpreted as any type of authorization for the taking

of an endangered whale. On the other hand, NMFS also recognizes that

whether a specific approach constitutes a ``taking'' and thus would

require an incidental take permit must be determined on a case-by-case

basis. NMFS declines to make any determination concerning the necessity

of such a permit in the context of this interim final rule.

Comment 4: Applicability of rule to various approach activities.

Three commenters recommended that a provision be added to the list of

``Exceptions,'' whereupon, with proper notification to either NMFS and/

or the Coast Guard, a vessel would be authorized to approach to within

less than 500 yards (460 m) for the purpose of confirming a right whale

entanglement, reporting the nature of its distress, and/or awaiting

help. Concern exists with regard to the potential for missing valuable

sightings of right whale entanglements or distress because of the 500

yard (460 m) distance restriction. One of these commenters recommended

that the regulations include a provision or be issued with a commitment

of funding to ensure that each right whale may be approached briefly

for a health assessment and photo-identification.

Response: NMFS agrees with the commenters' recommendation to

include a provision to allow vessel approaches within less than 500

yards (460 m) in imminent circumstances regarding the whale's health

and well-being. The provision is in place under the list of

``Exceptions'' (Sec. 222.32(c)) to enable close approaches to

investigate a right whale entanglement or injury, or to assist in the

disentanglement or rescue of a right whale, provided that permission is

received from NMFS or a NMFS designee prior to the approach. In

response to the comment recommending implementation of an approach

provision for right whale health assessments and photo-identification,

researchers may apply for a scientific research permit issued under

subpart C (Endangered Fish or Wildlife Permits) of part 222.

Comment 5: Deliberate versus unintentional approaches. Three

commenters recommended that the rule's prohibitions and mandated

evasive maneuvers should apply only to explicit actions with the

deliberate intent of approaching a right whale. Another commenter

stated that the rule is overly broad in scope and attempts to regulate

many activities that do not threaten physical harm to right whales. It

should eliminate actions that have little or no potential to cause

serious injury or mortality, such as small vessel activities, vessels

traveling at very slow speeds and swimmers. According to this

commenter, the rule should limit activities only during the time

periods and in the geographic areas where right whales are known to

congregate and where critical habitat is established, as shown by

scientific data. Two other commenters recommended being explicit if

whale watching is in fact the focus of the rule; the rule should be

revised to narrowly address these activities.

Response: Though some activities present only a limited potential

to disturb or injure right whales, NMFS believes that an expansive

approach prohibition is necessary. This view is predicated upon the

highly endangered status of the species, and the need to minimize those

risks associated with any type of approach. Additionally, such an

approach is easier to understand and enforce, thereby enhancing its

overall effectiveness.

Given this rationale, the prohibition on approach applies to both

intentional and unintentional approaches. This restriction reflects the

fact that both intentional and unintentional approaches create a risk

of disturbance or injury. Additionally, this restriction is consistent

with both the MMPA and ESA, which prohibit all takings, including those

that are intentional, unintentional, and incidental.

Having said this, NMFS does not wish to extend this prohibition to

activities that clearly present little risk to right whales. For this

reason, NMFS has modified the regulation as it applies to aircraft,

only prohibiting approaches by aircraft conducting whale watching

activities.

Comment 6: Vessels restricted in their ability to maneuver in

certain situations--Exceptions to the rule. Two commenters requested

confirmation that the proposed rule exemption granted to vessels

restricted in their ability to maneuver is applicable to their

situation. Another commenter requested special consideration for

submerged operations where a posted lookout is not possible and where

there is limited or no ability for a submerged vessel to detect the

presence of right whales and to execute recommended evasions or altered

courses. A fourth commenter recommended that vessels ``in extremis,''

as defined by the Convention on the International Regulations for

Preventing Collisions at Sea, 1972, be added to proposed

Sec. 222.32(d)(2).

Response: The interim final rule recognizes the special

circumstances presented by a vessel restricted in its ability to

maneuver; right whale avoidance measures are not required under such

circumstances. Under the COLREGS Rule 3 (See 33 CFR part 81 App. A,

Part A, Rule 3) and Rule 3 of the Inland Navigation Rules (33 U.S.C.

2003) a vessel restricted in its ability to

[[Page 6734]]

maneuver includes, but is not limited to, a vessel engaged in dredging,

a vessel engaged in submerged operations, a vessel engaged in launching

or recovery of aircraft, a vessel engaged in a towing operation that

severely restricts the towing vessel and the tow in their ability to

deviate from their course, and various other types of vessels. NMFS

interprets this definition to include a fishing vessel engaged in

haulback operations and vessels in similar situations where the vessel

is unable or severely limited in its ability to comply with right whale

avoidance measures. To the extent that the vessel is able to maneuver

in a situation where it is within 500 yards (460 m) of a right whale,

it should undertake efforts to maximize its distance from and minimize

interactions with the whale.

In formulating this exception, NMFS recognizes the unique, and

oftentimes limiting, circumstances facing vessels operating in the

Atlantic and along its coastline. Unlike Hawaii, where humpback whales

are generally found nearshore and the humpback whale approach

restrictions largely impact recreational vessel activity, the Atlantic

distribution of right whales is more variable and the right whale

approach prohibitions affect a multi-use and highly trafficked water

body.

NMFS also acknowledges that what constitutes a proper lookout

depends upon the prevailing conditions and circumstances and that

submarine operations are somewhat unique. Maintaining a proper lookout

for a submarine may include the use of sonar or other available means

under the circumstances; NMFS also encourages communication efforts

with submarines before the submarines enter critical habitat or areas

of high use by right whales so that sighting information may be relayed

to the operator. Finally, with respect to a vessel in extremis, NMFS

has concluded that the emergency exception is applicable because of the

serious and imminent threat to the vessel or person in such a

situation.

Comment 7: Appropriate speed. One commenter recommended that NMFS

adopt a generic rule requiring vessel operators to adjust their vessel

speed and direction when whales are observed. Another commenter

questioned the absence of a rationale for the exclusion of speed limits

in the proposed rule.

Response: NMFS recognizes that it may be necessary, under certain

circumstances, for vessels, especially large ships, to reduce speed in

order to avoid prohibited approaches to right whales. Currently, vessel

operators are required by COLREGS, Rule 6, to proceed at safe speed so

that the vessel can take proper and effective action to avoid collision

and ``be stopped within a distance appropriate to the prevailing

circumstances and conditions'' (72 COLREGS, see 33 CFR part 81 App. A.

Part B, Section 1, Rule 6). An identical requirement is imposed under

the Inland Navigational Rules, 33 U.S.C. 2006. These and other

regulations limiting vessel speed should be interpreted with a

consideration of the risk of a close approach to a right whale.

While vessel speed remains a concern with regard to right whale

avoidance, NMFS also recognizes that other agencies and organizations

may have special expertise and authority with respect to this subject

and that specific or detailed guidance on speed may depend on the

operational characteristics of a vessel or the circumstances under

which it is operated. The focus of the proposed rule and this interim

final rule is on restricting approaches within 500 yards (460 m) of a

right whale. In that respect, this interim final rule requires that

vessels within the restricted area immediately leave the area at a slow

safe speed. NMFS encourages adherence to the speed regulations already

in place, but it declines to adopt further speed restrictions in this

interim final rule.

Comment 8: Aircraft. One commenter stated that actions having

little or no potential to cause serious injury or mortality, such as

military aircraft approaches and overflights, small vessel activities,

should be eliminated from the rule, i.e., only limit the class of

actions that may physically harm right whales. Two additional

commenters claim that NMFS overlooks military aircraft maneuvers,

especially in the southeast United States while right whales are in

calving grounds, and overlooks what type of regulations the military

have to follow for these exercises; exceptions should be made in some

cases. A fourth commenter remarked that the 500 yard (460 m)

prohibition may impact aircraft takeoffs and landings in an

unacceptable manner for safety, glide path and air traffic operations.

Response: NMFS has reconsidered its original proposal to limit all

aircraft to an altitude of no less than 1500 feet (460 m) above a right

whale. As modified in the interim final rule, a broad exception is

provided for most aircraft operations so that approach restrictions and

avoidance measures are applicable only to aircraft conducting whale

watching activities.

Comment 9: Economic impacts. One commenter remarked that the

avoidance measures may result in substantial delays to shipping and,

thus, increase costs to the industry. According to this commenter,

there is no evidence that NMFS has actually calculated the chances that

a vessel would have to adhere to avoidance measures; nor has NMFS

calculated the effect of those measures on the vessel's arrival in port

and transportation costs. A second commenter suggested that

transportation costs are likely to increase for commercial vessels

based on increased transit time as a result of this regulation.

Response: NMFS concluded that the proposed rule, if implemented,

would not have a significant economic impact on a substantial number of

small entities. While this rule may have a minor impact on whale

watching activities, especially in early spring when right whales, but

no other whale species, are likely to be in the area where these

activities occur, the cost of delaying operations for a few weeks, with

respect to expected revenues, is not considered significant.

Similarly, this rule is expected to have only a minor impact on

commercial shipping and other vessel activities. Adjustments to speed

or a more vigilant lookout would be appropriate under current law to

avoid the risk of taking a right whale, especially in areas where, and

at times when, right whales are known or expected to be present. In

light of existing law, any change in operation and any costs associated

with these changes in operation necessitated by the implementation of

this interim final rule are not considered significant when compared to

expected revenues.

Comment 10: Additional research needs--Cumulative effects. Three

commenters recommended implementation of a research component to

examine existing and future technologies and methods that may lead to

the healthy coexistence of human activities and these species, e.g.,

increased surveillance of right whale movement, assessment of shipping

traffic relative to high risk areas; determination of what distance

disrupts feeding behavior and establishment of this distance

restriction on feeding grounds; evaluation of deterrents including

sonar; and, finally, a follow-up on the New England Aquarium/MIT ship

modeling study to include (a) other vessel types, and (b) the depth

dimension. According to one of the commenters, a distance rule should

be based on studies of the reactions of right whales to vessel

approaches with varying sound signatures, and the effect of vessels of

dense plankton aggregations at or near the surface.

[[Page 6735]]

Another of the three commenters suggested that, although additional

study was necessary to determine the appropriate right whale approach

distance, an interim rule could be implemented in the meantime to

prohibit commercial and recreational whale watching programs from

focusing on right whales. Two additional commenters remarked on the

potential for inaccuracies when making cross-species behavioral

comparisons.

Response: NMFS acknowledges that long-term studies in this area are

needed. However, the absence of definitive long-term research results

does not preclude the adoption of protective measures. The ESA

generally requires NMFS to use the best available information in

managing protected species. In this case, the available information

reviewed by NMFS indicates that right whales may be disturbed by human

activity, especially close approaches within 500 yards (460 m). NMFS

believes there is sufficient information available to support this

action. (See also the response to Comment 2.)

NMFS may revise protection efforts accordingly if future research

demonstrates that additional or different means of protection are

needed. Other human-induced factors mentioned in the Recovery Plan that

pose a threat to the right whales will be addressed in separate

rulemakings or through other management initiatives.

Additionally, immediate protective measures are appropriate since

they represent an important step in increasing public awareness of the

problems caused by disturbance and vessel interactions with right

whales. Finally, these regulations will complement other initiatives,

such as efforts to communicate information concerning the location of

right whales to vessel operators and any initiatives that may be

undertaken internationally, as well as efforts to undertake further

research.

Comment 11: Noise. Two commenters suggested that, in terms of the

harm caused to whales by vessels, the cumulative effect (noise) of many

vessels in a limited area is one of the most serious concerns in that

it may cause abandonment or decrease in use of important right whale

habitats.

Response: NMFS recognizes that this problem warrants further study.

While not specifically designed for this purpose, this interim final

rule may reduce vessel noise in the vicinity of right whales by

restricting human approaches.

Comment 12: Enforcement/compliance. According to one commenter, the

definition ``to approach head on'' is subjective and will be difficult

to enforce. A vessel operator could easily argue an intention to change

course to avoid intercepting a whale; enforcement officials could not

easily refute this argument. This commenter also recommended that NMFS

remove proposed Secs. 222.32(b)(4) and (5) that would have required

vessels not to approach a right whale head-on from any distance once

observed and identified or to cause a vessel to be turned positioned or

maneuvered in a manner to intercept a right whale. According to the

commenter, these restrictions are vague and are drafted to preclude

maneuvers at any distance from a sighted right whale, which could

impact vessel operation for miles.

Two other commenters believe that enforcement of the regulation

and/or prosecution for violations would be extremely difficult, given

the somewhat subjective nature of the approach standards. To minimize

or eliminate concerns regarding the inability to enforce conservation

measures and to conduct measures of environmental protection or

navigational aid, especially in cases of emergency, one of these

commenters suggested including a third exception under

Sec. 222.32(d)(3): ``Coast Guard law enforcement, marine environmental

protection and aid to navigation operations.''

Another commenter requested that NMFS outline what enforcement it

proposes and how the results of the rule will be reported to the

public. The same commenter requested clarification of the second

paragraph in the first column on page 41119 of the proposed rule (61 FR

41119, August 7, 1996), in that it currently implies that violation of

this rule would not be considered an incidental take. This commenter

also wanted to know how NMFS will address/enforce right whale

protection at night, in rain, fog or high sea states to ensure whales

are not disturbed.

A final commenter remarked that the prohibitions and avoidance

measures in the proposed rule may result in vessel movement that would

conflict with USCG Traffic Separation Schemes for the Atl. East Coast,

33 CFR part 167 et seq. and Rule 10 of the International Regs for

Preventing Collisions at sea 33 foll. Sec. 1602, Rule 10, rules that

provide safe access routes for vessels proceeding to and from U.S.

ports.

Response: NMFS has reconsidered its original proposal to prohibit

head-on approaches to right whales. NMFS recognizes that this provision

would be difficult to interpret and enforce; that provision is not

included in this interim final rule. On the other hand, while not

required by regulation, NMFS continues to encourage vessel operators to

avoid head-on approaches of right whales.

While NMFS has concluded that, in general, approaches within 500

yards (460 m) of right whales have the potential to disturb or injure

these animals, NMFS also recognizes that whether an incidental take

occurs in any specific approach may depend on the circumstances of that

approach. NMFS also recognizes that circumstances such as rain, fog,

sea state, and visibility may affect the ability of an operator to

avoid close approaches to right whales. Extra caution is urged in these

situations. In addition, NMFS is working with other agencies and

organizations to enhance vessel traffic coordination. (See response to

Comment 15.)

NMFS disagrees with claims that these approach and avoidance

requirements are unenforceable. The approach prohibition largely

mirrors a similar restriction enacted in 1987 for the protection of

humpback whales in the Hawaiian Islands. Past experience in Hawaii

suggests that this prohibition is easy to understand and enforce.

Indeed, NOAA has successfully prosecuted many cases involving vessels

that have violated this approach prohibition.

Additionally, from an enforcement perspective, this approach

prohibition ensures more effective prosecution of inappropriate

activities. The prohibition establishes a clear, objective, distance

requirement. This requirement is easily understood by the vast majority

of individuals who wish to legally observe right whales, and is far

easier to prosecute in the event of a violation.

NMFS agrees with comments that stress the need for enforceable

requirements. To that end, NMFS has made significant modifications from

the proposed rule, especially to those provisions addressing right

whale avoidance measures. NMFS has deleted provisions addressing head-

on approaches and many of the speed and directional provisions

applicable to aircraft and vessels within 500 yards (460 m) of a right

whale. These changes are designed to simplify the requirements and

enhance enforceability.

NMFS does not believe that these requirements are unduly

burdensome. The rule provides an exception in instances where

compliance would create an imminent and serious threat to any person,

vessel, or aircraft. NMFS also recognizes that law enforcement

activities are exempt from prohibitions such as this rule under

traditional common law theories. Additionally, NMFS has the authority

to consider

[[Page 6736]]

mitigating factors, such as the difficulty of compliance, in

determining the appropriate enforcement response.

Finally, NMFS does not anticipate conflicts between this rule and

regulations governing traffic separation schemes. Navigation rules

provide for special exceptions in cases where departure from those

rules is necessary to avoid immediate danger and, with respect to

compliance with traffic separation schemes, in emergency circumstances.

(See Rule 2 and Rule 10 of the COLREGS (See 33 CFR Part 81 App. A, Part

A, Rule 2 and Part B, Section 1, Rule 10) and Rule 2 and 10 of the

Inland Navigation Rules (33 U.S.C. 2002 and 2010)). In addition, this

interim final rule provides for an emergency exception; NMFS recognizes

that the applicability of this or other exceptions in this interim

final rule must be evaluated in the context of the circumstances.

Comment 13: Reports of right whale sightings. One commenter notes

that, although the proposed rule implies that vessel personnel are

expected to report right whale sightings and locations, it contains no

legal requirement for personnel to report.

Response: NMFS concurs. If a right whale is positively identified

and observed, lookouts and/or vessel operators are encouraged to report

right whale sightings and locations to the U.S. Coast Guard or other

appropriate port authority, and request assistance if appropriate.

Knowledge of the location of right whales may help prevent potential

collisions and allow vessels to implement appropriate whale avoidance

measures. Refer to the Right Whale Avoidance Guidance (see Summary of

Protective Measures) for further information.

Comment 14: Authority citations. One commenter recommends that NMFS

delete its reference to the Fish and Wildlife Act of 1956 in the

proposed rule.

Response: The authority section for 50 CFR part 217, (this part is

entitled ``General Provisions'' and includes a variety of definitions),

currently includes the reference to the Fish and Wildlife Coordination

Act. The approach regulations (except for the definitions) are issued

under 50 CFR part 222, subpart D. The authority citation clearly

indicates that those regulations are issued under the authority of the

ESA and MMPA. The Fish and Wildlife Coordination is not cited as

authority for that part or subpart of the CFR.

Comment 15: Vessel traffic coordination. Six commenters expressed

support for the coordination of whale alert teams in the southeast and

northeast Atlantic set up to note whale locations and report them to

the appropriate authorities, who then relay that information to ships

in close range.

Response: NMFS concurs and notes that these efforts will increase

public awareness and the effectiveness of this interim final rule. In

coastal waters of the southeastern United States, an awareness and

mitigation program, involving ten agencies and organizations, was begun

in 1992, and has been upgraded and expanded annually. This effort

includes an established Early Warning System network designed to

prevent whale/vessel collisions on the calving grounds. NMFS also

recently established an early warning network to alert mariners to the

location of right whales off Massachusetts. This collaborated effort of

the U.S. Coast Guard, the State of Massachusetts, the Center for

Coastal Studies, the Stellwagen Bank National Marine Sanctuary and NMFS

will make sighting information available through marine radio

announcements, automated fax, and the Internet with the intention to

reduce the chances of collisions between vessels and whales in New

England waters.

Comment 16: Jurisdictional applicability. One commenter recommended

clarification of the rule to indicate its applicability only to U.S.

citizens and U.S.-flagged vessels, in order to be consistent with

international law.

Response: Clearly this interim final rule applies to U.S. citizens

and U.S.-flagged vessels. The prohibitions in the ESA generally apply

to all persons subject to the jurisdiction of the United States, which

includes foreign nationals and vessels in appropriate cases. With

certain exceptions, the MMPA also prohibits any person, vessel or

conveyance subject to the jurisdiction of the United States from taking

a marine mammal on the high seas; any person, vessel or conveyance is

prohibited from taking a marine mammal within the U.S. territorial sea

or the exclusive economic zone (EEZ), except as expressly provided for

by an international treaty, convention or agreement or associated

implementing statute. NMFS disagrees that the applicability of the

final rule to foreign vessels would necessarily conflict with

international law. U.S. jurisdictional authority over vessels other

than U.S.-flagged vessels depends upon the circumstances of each

particular case. In all cases, however, the United States intends to

enforce this rule consistently with international law, including

customary international law as reflected in the 1982 United Nations

Convention on the Law of the Sea.

Comment 17: Territorial Sea. One commenter questioned the necessity

of defining ``territorial sea'' for the proposed and final rules. In

issuing the proposed rule, NMFS had set forth its view that the

territorial sea jurisdiction under the ESA encompassed the area within

12 nautical miles (nm) (22.2 kilometers (km)) of the baseline. This

commenter disagrees with NMFS defining the extent of the U.S.

territorial sea as 12 nm (22.2 km) rather than 3 nm (5.6 km) seaward of

the baseline on the grounds that Presidential Proclamation 5928

extended the U.S. territorial sea to 12 nm (22.2 km) for international

but not for domestic, legal purposes. Also according to this commenter,

the extent to which the term is being revised for the purposes of 50

CFR parts 216 to 227 is outside the scope of the rule and does not

sufficiently provide for public notice and opportunity for comment.

Response: NMFS disagrees that the definition of ``territorial

sea,'' as presented in the proposed rule, is outside the scope of this

rulemaking. NMFS also notes that to the extent that the definition

would announce an interpretation of the ESA, there is no need for

advance public notice or opportunity to comment. Finally, NMFS does not

agree with the commenter's interpretation of the jurisdictional scope

of the ESA and the effect of the Presidential Proclamation on that

scope. Nonetheless, NMFS has decided not to issue a regulatory

definition of the ``territorial sea'' in this interim final rule in

order to have additional time to consult with other Federal agencies;

this issue will be resolved prior to issuing a final rule.

Again, NMFS emphasizes that the restriction on approaches to right

whales is promulgated under the authority of both the ESA and the MMPA.

The MMPA defines ``waters under the jurisdiction of the United States''

to include both the territorial sea and the EEZ which extends 200 nm

(370 km) beyond the baseline from which the territorial sea is

measured. The ESA does not refer to the EEZ although persons subject to

U.S. jurisdiction are prohibited from taking endangered species, both

within the territorial sea and upon the high seas.

Summary of Protective Measures

There is good reason to believe that if the full range of human

impacts specified by the Recovery Team were reduced, the chance for

species recovery would be maximized. This rule should be considered an

important step towards that goal.

[[Page 6737]]

Description of the Interim Final Rule

In order to minimize the risk that human activities will disturb or

cause other behavioral changes in right whales and to reduce the risk

of vessel collisions and other interactions, this interim final rule is

established: (1) To prohibit approach (including by interception)

within 500 yards (460 m) of a right whale whether by vessel, aircraft

or other means; and (2) to require adherence to right whale avoidance

measures if a vessel or aircraft is within this restricted area.

Right whale avoidance measures are those actions necessary to be

taken within 500 yards (460 m) of a right whale, as follows: (1)

Vessels must steer a course away from the right whale and immediately

leave the area at a slow constant speed (See Right Whale Avoidance

Guidance for supplementary instruction); and (2) aircraft must take a

course away from the right whale and immediately leave the area at a

constant airspeed.

Exceptions to the interim final rule include: (1) Approaches to

right whales that have been authorized by a NMFS permit (under subpart

C (Endangered Fish or Wildlife Permits) or similar authorization; (2)

situations of imminent and serious threat to the safety or life of a

person, vessel or aircraft; (3) approaches made for the purpose of

investigating a right whale entanglement or assisting in a right whale

rescue or disentanglement, provided that prior permission is received

from NMFS or a NMFS-designee; (4) aircraft operations, unless that

aircraft is conducting whale watch activities; and (5) a vessel or

aircraft restricted in its ability to maneuver and unable to comply

with the right whale avoidance measures. Any person, who claims the

benefit of any of the above exceptions has the burden to prove that the

exception is applicable.

Right Whale Avoidance Guidance

As stated earlier in this preamble, NMFS wishes to provide

guidance, separate and apart from the specific approach prohibitions

and avoidance measures found in the regulations. This guidance is

offered to assist individuals who find themselves in the vicinity of a

right whale, with the aim of minimizing the possibility of interaction

and the level of disturbance associated with any interaction. The

guidelines are advisory only, and NMFS encourages individuals to follow

them to the extent that doing so is consistent with the controlling,

regulatory approach restrictions and avoidance measures.

Vessel lookout. Vessel operators are encouraged to maintain a

proper lookout for right whales, especially when right whales are known

to frequent an area. If a right whale is observed, increased vigilance

is recommended, since other right whales also may be present in the

area. Such vigilance is consistent with Rule 5 of the COLREGS (See 33

CFR Part 81 App. A, Part B, Section 1, Rule 5) and Rule 5 of the Inland

Navigation Rules (33 U.S.C. 2005). Such vigilance may prevent

inadvertent approaches as well as enable vessels to take all necessary

avoidance measures.

If a right whale is positively identified and observed near a port,

in a channel, in an established shipping lane, or in other areas with a

high concentration of shipping activity, a vessel operator should

report the sighting to the U. S. Coast Guard or other appropriate port

authority, and request assistance if appropriate. Likewise, where the

presence of a right whale would inhibit the entry of a large ship into

a port or otherwise interfere with vessel operations, a vessel operator

is encouraged to contact the U.S. Coast Guard or port authority for

assistance or instruction.

Vessel speed. Vessel operators also are encouraged to proceed at

prudent speed when transiting waters frequented by right whales.

Prudence may require transit at a reduced speed in order to avoid

approaching within 500 yards (460 m) of a right whale, or to enable

vessels to follow any necessary avoidance measures. Such prudence is

consistent with Rule 6 of the COLREGS and Rule 6 of the Inland

Navigation Rules, which require vessels to proceed at a safe speed, so

that the vessel can take proper and effective action to avoid collision

and be stopped within a distance appropriate to the prevailing

circumstances and conditions.

Sudden changes in operation. In order to minimize the potential for

disturbance to a right whale, changes in vessel speed and direction

should be gradual. To that end, rapid acceleration, use of bow

thrusters, and sudden changes in propeller pitch are discouraged.

Head-on approaches. In order to minimize the risk of an unlawful

approach, NMFS encourages vessel operators to avoid approaching a right

whale head-on. Once a right whale is sighted, vessel operators should

alter course to ensure that an approach within 500 yards (460 m) is

avoided.

Classification

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration when this rule was proposed that this

rule would not have a significant economic impact on a substantial

number of small entities. NMFS received two comments, addressed above,

concerning the economic impact of this rule. These comments did not

cause the Assistant General Counsel to change his determination

regarding the certification. Furthermore, the changes made from the

proposed rule to the interim final rule do not affect the reasons for

the certification. As a result, no regulatory flexibility analysis was

prepared.

This interim final rule has been determined to be not significant

for purposes of E.O. 12866.

This interim final rule does not contain a collection-of-

information requirement, subject to the Paperwork Reduction Act.

List of Subjects

50 CFR Part 217

Endangered and threatened species, Exports, Fish, Imports, Marine

mammals, Transportation.

50 CFR Part 222

Administrative practice and procedure, Endangered and threatened

species, Exports, Imports, Reporting and recordkeeping requirements,

Transportation.

Dated: February 7, 1997.

Rolland A. Schmitten,

Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 217 and part

222 are amended as follows:

PART 217--GENERAL PROVISIONS

1. The authority citation for part 217 is revised to read as

follows:

Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544,

unless otherwise noted.

2. In Sec. 217.12, the definitions of ``Right whale,''

``Underway,'' ``Vessel,'' and ``Vessel restricted in her ability to

maneuver'' are added in alphabetical order to read as follows:

Sec. 217.12 Definitions.

* * * * *

Right whale, as used in subpart D of this part, means any whale

that is a member of the western North Atlantic population of the

northern right whale species (Eubalaena glacialis).

* * * * *

[[Page 6738]]

Underway, with respect to a vessel, means that the vessel is not at

anchor, or made fast to the shore, or aground.

* * * * *

Vessel includes every description of watercraft, including

nondisplacement craft and seaplanes, used or capable of being used as a

means of transportation on water.

Vessel restricted in her ability to maneuver has the meaning

specified for this term at 33 U.S.C. 2003(g).

* * * * *

PART 222--ENDANGERED FISH OR WILDLIFE

3. The authority citation for part 222 is revised to read as

follows:

Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under

16 U.S.C. 1361 et seq.

4. Section 222.32 is added to subpart D to read as follows:

Sec. 222.32 Approaching North Atlantic right whales.

(a) Prohibitions. Except as provided under paragraph (c) of this

section, it is unlawful for any person subject to the jurisdiction of

the United States to commit, attempt to commit, to solicit another to

commit, or cause to be committed any of the following acts:

(1) Approach (including by interception) within 500 yards (460 m)

of a right whale by vessel, aircraft, or any other means;

(2) Fail to undertake required right whale avoidance measures

specified under paragraph (b) of this section.

(b) Right whale avoidance measures. Except as provided under

paragraph (c) of this section, the following avoidance measures must be

taken if within 500 yards (460 m) of a right whale:

(1) If underway, a vessel must steer a course away from the right

whale and immediately leave the area at a slow safe speed;

(2) An aircraft must take a course away from the right whale and

immediately leave the area at a constant airspeed.

(c) Exceptions. The following exceptions apply to this section, but

any person who claims the applicability of an exception has the burden

of proving that the exception is applicable:

(1) Paragraphs (a) and (b) of this section do not apply if a right

whale approach is authorized by NMFS through a permit issued under

subpart C (Endangered Fish or Wildlife Permits) of this part or through

a similar authorization.

(2) Paragraphs (a) and (b) of this section do not apply where

compliance would create an imminent and serious threat to a person,

vessel, or aircraft.

(3) Paragraphs (a) and (b) of this section do not apply when

approaching to investigate a right whale entanglement or injury, or to

assist in the disentanglement or rescue of a right whale, provided that

permission is received from NMFS or a NMFS designee prior to the

approach.

(4) Paragraphs (a) and (b) of this section do not apply to an

aircraft unless the aircraft is conducting whale watch activities or is

being operated for that purpose.

(5) Paragraph (b) of this section does not apply to the extent that

a vessel is restricted in her ability to maneuver, and because of the

restriction, cannot comply with paragraph (b) of this section.

[FR Doc. 97-3632 Filed 2-10-97; 3:49 pm]

BILLING CODE 3510-22-P