[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13500]

[[Page Unknown]]

[Federal Register: June 3, 1994]



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.


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.



    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, 

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 

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 
    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., 
    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, 

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 

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.


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    NMFS will continue to focus recovery/management efforts on ways to 
reduce human-induced mortality as a result of ship strikes and 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.


    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:


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

    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:





[FR Doc. 94-13500 Filed 6-2-94; 8:45 am]