[Federal Register Volume 59, Number 106 (Friday, June 3, 1994)]
[Unknown Section]
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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]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 930363-4145, I.D. 012793B]
Designated Critical Habitat; Northern Right Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is designating critical habitat for the northern right
whale (Eubalaena glacialis). The designated habitat includes portions
of Cape Cod Bay and Stellwagen Bank, the Great South Channel (each off
the coast of Massachusetts), and waters adjacent to the coasts of
Georgia and the east coast of Florida. This designation provides notice
to Federal agencies and the public that a listed species is dependent
on these areas and features for its continued existence and that any
Federal action that may affect these areas or features is subject to
the consultation requirements of section 7 of the Endangered Species
Act (ESA).
EFFECTIVE DATE: July 5, 1994.
ADDRESSES: Requests for copies of this rule should be addressed to the
Director, Office of Protected Resources, National Marine Fisheries
Service (NMFS), 1335 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Michael Payne, Protected Species
Management Division, NMFS, 301/713-2322; Charles Oravetz, Southeast
Regional Office, NMFS, 813/893-3141; or Doug Beach, Northeast Regional
Office, NMFS, 508/281-9254.
SUPPLEMENTARY INFORMATION:
Background
Right whales, Eubalaena spp., are the most endangered of the large
whale species, brought to extremely low levels by commercial whaling.
Right whales were the earliest targets of whaling and, although they
have been protected world-wide from commercial whaling by international
agreements since 1935, right whale populations still remain extremely
depleted. The global population of right whales is comprised of two
separate species, one each in both the northern and southern
hemisphere, and several stocks or populations within each hemisphere.
The majority of right whales occur in the southern hemisphere (the
southern right whale, E. australis) and are considered a separate
species from the right whale in the northern hemisphere (E. glacialis).
At least two populations of northern right whales, an eastern and a
western population, occur, or have occurred, in the North Atlantic. The
eastern North Atlantic population may be nearly extinct. Between 1935-
1985, there were only 21 possible sightings in the eastern North
Atlantic, totaling 45 individuals (Brown, 1986). Furthermore, Brown
(1986) considered only five of these sightings (seven individual
whales) to be confirmed. In the western North Atlantic, the known
distribution and abundance of right whales indicate a ``best
available'' population estimate of 300-350 individuals. Despite the low
abundance and known anthropogenic factors affecting total mortality
(Kraus, 1990), the western North Atlantic stock is the largest in the
Northern Hemisphere. This population stands to benefit most from
recovery actions (NMFS, 1991; Kenney, Winn and Macaulay, 1994).
Like other baleen whales, the western North Atlantic population of
right whales (hereafter referred to as the northern right whale) is
migratory. The known distribution and migratory pattern has been
previously summarized by Kraus (1985); Winn, Price and Sorensen (1986);
Gaskin (1987, 1991); and by Kraus et al. (1986). The five primary
habitats used by northern right whales during their annual migration,
as described by Kenney, Winn and Macaulay (1994), include the following
three areas off the eastern coast of the United States: (1) A spring/
early summer feeding and nursery area for a majority of the population
in the Great South Channel (GSC), (2) a late winter/spring feeding and
nursery area for a small portion of the population in Cape Cod Bay
(CCB), and (3) a winter calving ground and nursery area in the coastal
waters of the southeastern United States (SEUS); and the following two
areas located in Canadian waters: (4) a summer/fall feeding and nursery
area for some animals, including nearly all mother/calf pairs, in the
lower Bay of Fundy; and (5) a summer/fall feeding ground, with almost
exclusively mature individuals, on the southern Nova Scotian shelf.
The northern right whale was listed as endangered on June 2, 1970
(35 FR 8495). Section 9 of the ESA prohibits the taking of endangered
species, and section 7 requires Federal agencies to ensure that their
actions are not likely to jeopardize either threatened and endangered
species. For species listed prior to 1978, when Congress required that
critical habitat be designated, concurrently with the listing, critical
habitat may be designated although such designation is not required.
Section 4(f) of the ESA also requires the responsible agency to develop
and implement a recovery plan for listed species, unless such a plan
would not promote the conservation and recovery of the species. NMFS
determined that a recovery plan would promote the conservation of the
northern right whale. Accordingly, the Assistant Administrator for
Fisheries (AA) appointed a Recovery Team consisting of experts on right
whales from the private sector, academia and government. A Recovery
Plan for the Northern Right Whale was approved by NMFS in December,
1991 (NMFS, 1991).
NMFS was petitioned by the Right Whale Recovery Team to designate
critical habitat for the northern right whale on May 18, 1990. A
Federal Register notice was published on July 12, 1990 (55 FR 28670),
requesting information and comments on the petition. Of those agencies,
organizations, and private groups that commented, most responded
favorably to the designation of the three areas in the U.S. as critical
habitat for the northern right whale. The comments received were
considered and incorporated as appropriate by NMFS in the proposed rule
to designate critical habitat for northern right whales. The proposed
rule was published on May 19, 1993 (58 FR 29186), and provided for a
60-day comment period. NMFS also completed an Environmental Assesment
(EA) pursuant to the National Environmental Policy Act (NEPA), to
evaluate both the environmental and economic impacts of the proposed
critical habitat designation. The EA resulted in a finding of no
significant impact for the proposed action.
During the comment period, NMFS received several requests for
public hearings on the proposed designation. Public hearings were held
in Boston, MA, on August 25, 1993; in Port Canaveral, FL, on August 24,
1993; and in Brunswick, GA, on August 25, 1993 (58 FR 41454, Aug. 4,
1993). The comment period was extended until August 31, 1993, to allow
commenters the opportunity to respond to concerns voiced at the public
hearings. After consideration of public comments, and based on the best
available scientific information, NMFS is designating critical habitat
for the northern right whale as described in the proposed rule.
Definition of Critical Habitat
``Critical habitat'', as defined in section 3(5)(A) of the ESA, and
the term ``conservation'', as defined in section 3(3) of the ESA, were
provided in the preamble to the proposed rule (58 FR 29186, May 19,
1993).
Essential Habitat of the Northern Right Whale
Biological information for the northern right whale can be found in
the Recovery Plan (NMFS, 1991), and in recent scientific literature
(Winn, Price and Sorensen, 1986; Kenney et al., 1986; Wishner et al.,
1988; Mayo and Marx, 1990; Payne et al., 1990; Kraus and Kenney, 1991;
Kraus et al., 1993; Kenney, Winn and Macauley, 1994). The physical and
biological habitat features of the critical habitat are discussed
herein.
Foraging Habitat of the Northern Right Whale
Right whales have been characterized principally as ``skim''
feeders (Kawamura, 1974; Nemoto and Kawamura, 1977). They subsist
primarily on dense swarms of calanoid copepods, notably Calanus
finmarchicus in the North Atlantic (Mitchell, 1975; Watkins and
Schevill, 1979; Winn, Price and Sorensen, 1986; Wishner et al., 1988;
Mayo and Marx, 1990; Kraus and Kenney, 1991). Northern right whales are
also known to prey on other similar sized zooplankton. Two other
zooplankton species preyed upon by northern right whales in CCB include
Pseudocalanus minutis and Centropages spp. (Mayo and Marx, 1990). A
strong positive correlation between the abundance of right whales in
the southern Gulf of Maine and densities of C. finmarchicus has been
described by Kenney et al. (1986), Wishner et al. (1988), Payne et al.
(1990), and Kenney, Winn and Macauley (1994). The two recorded time
intervals when right whales were most abundant in the CCB/Stellwagen
Bank area (April 1970, reported by Watkins and Schevill, 1982; and
during 1986, reported by Payne et al., 1990) were during periods of
observed peak densities of copepods.
While the size and density of copepod patches are important to the
feeding energetics of right whales, so are the relative proportions of
adult copepods within each patch (Kenney et al., 1986; Wishner et al.,
1988). Although the feeding ecology of right whales is likely more
complex than previously thought (Mayo and Marx, 1990), dense
aggregations of older, caloric-rich copepods seem to be the required
characteristics for energetically successful foraging by right whales.
If copepods in these caloric-rich, adult developmental stages are not
available to northern right whales in sufficient densities, there may
be insufficient prey available in the remaining developmental stages
(independent of abundance) to provide right whales with the required
energy densities (as described by Kenney et al., 1986) to meet the
metabolic and reproductive demands of the right whale population in the
western North Atlantic (Kenney et al., 1986; Payne et al., 1990).
Foraging Habitat: The overall spatial requirements for right whales
are not well defined; however, the distribution pattern observed for
northern right whales indicates that four of the five principal
habitats occupied by right whales in the western North Atlantic are
used for foraging, and possibly reproductive activities: The GSC, CCB,
the Bay of Fundy, and the Scotian Shelf. Neither feeding nor courtship
behavior has been observed along the SEUS. Scientists believe that
subadult and adult baleen whales fast, or feed rarely, during the
winter calving period.
Based on observed distribution patterns compared to oceanographic
conditions, scientists speculate that the topographic and seasonal
oceanographic characteristics of foraging areas are conducive to the
dense growth of zooplankton. These high-use areas may comprise the
minimal space required for normal foraging behavior that will support
the northern right whale population. The Department of Fisheries and
Oceans (Canada) has already designated two foraging areas as right
whale sanctuaries--one in the Bay of Fundy and another on the Scotian
Shelf. The remaining two foraging habitats, the GSC and CCB, are found
in the United States and are included as critical habitat for the
northern right whale.
Great South Channel: The GSC is a large funnel-shaped bathymetric
feature at the southern extreme of the Gulf of Maine between Georges
Bank and Cape Cod, MA. The GSC is one of the most used cetacean
habitats off the northeastern United States (Kenney and Winn, 1986).
The channel is bordered on the west by Cape Cod and Nantucket Shoals,
and on the east by Georges Bank. The channel is generally deeper to the
north and shallower to the south, where it narrows and rises to the
continental shelf edge. To the north, the channel opens into several
deepwater basins of the Gulf of Maine. The V-shaped 100-m isobath
effectively delineates the steep drop-off from Nantucket Shoals and
Georges Bank to the deeper basins. The average depth is about 175 m,
with a maximum depth of about 200 m to the north.
The GSC becomes thermally stratified during the spring and summer
months. Surface waters typically range from 3 to 17 deg.C between
winter and summer. Salinity is stable throughout the year at
approximately 32-33 parts per thousand (Hopkins and Garfield, 1979).
Much of the bottom is comprised of silty, sandy sediments, with finer
sediments occurring in the deeper waters.
The late-winter/early spring mixing of warmer shelf waters with the
cold Gulf of Maine water funneled through the channel causes a dramatic
increase in faunal productivity in the area. The zooplankton fauna
found in these waters are typically dominated by copepods, specifically
C. finmarchicus, P. minutus, C. typicus, C. hamatus, and Metridia
lucens. From the middle of winter to early summer, C. finmarchicus and
P. minutus are the dominant species, which together made up between 60
and 90 percent of the samples described by Sherman et al. (1987). In
late spring, C. finmarchicus alone makes up 60 to 70 percent of the
copepod community. In the second half of the year, both species of
Centropages dominate the waters, accounting for about 75 percent of all
copepod species sampled.
The GSC right whale distribution was described by Kenney, Winn and
Macaulay (1994), and the following, unless otherwise cited, is taken
from that manuscript. Right whales occur in the GSC on a strictly
seasonal basis--in the spring, with a peak in May. Only in 1986 and
1987 were a small number of right whales present throughout most or all
of the summer. This corresponds to the atypical copepod density maxima
in the GSC and southern Gulf of Maine described by Wishner et al.
(1988) and Payne et al. (1990). The main area of GSC right whale
distribution has been in the central basin, generally in waters deeper
than 100 m. There is a persistent thermal front, which roughly
parallels the V-shaped 100-m isobath typically slightly south of that
isobath in 60-70 m of water. The front divides stratified waters with
warmer surface temperatures to the north of the front from tidally
mixed water with cooler surface temperatures over the shallower area
south of the front (Wishner et al., 1988; Brown and Winn, 1989). Right
whales occur in the stratified waters north of the front, and Brown and
Winn (1989) showed that right whale sightings were non-randomly
distributed relative to the front, but were at a median distance from
it of about 11 km. Although there are variations between years, the
``typical'' pattern is for the primary right whale aggregation to occur
in the central to western portion of the basin. Within any one year,
the general area of major aggregation is remarkably stable. A gradual
southward shift in the center of distribution occurs as the season
progresses.
Single-day abundance estimates for the GSC, uncorrected for animals
missed while submerged, ranged up to 179 individuals (Kenney, Winn and
Macauley, 1994). The total number of photographically identified
northern right whales is now 319, eliminating those known to have died,
but including some that have not been sighted for several years and
that may be dead (Kraus et al., 1993). Therefore, it is likely that a
significant proportion of the western North Atlantic right whale
population uses the GSC as a feeding area each spring, aggregating to
exploit exceptionally dense copepod patches. Given that not all of the
300-350 right whales are seen in U.S. shelf waters each season, it is
very likely that most, if not all, of the northern right whale
population use the GSC within any given season, and that every 2-3
years, the entire population of 300-350 northern right whales in the
northwest Atlantic may pass through the GSC.
Cape Cod Bay: The CCB is a large embayment on the U.S. Atlantic
Ocean off of the State of Massachusetts that is bounded on three sides
by Cape Cod and the Massachusetts coastline from Plymouth, MA, south.
To the north, CCB opens to Massachusetts Bay and the Gulf of Maine. CCB
has an average depth of about 25 m, and a maximum depth of about 65 m.
The deepest area of CCB is in the northern section, bordering
Massachusetts Bay.
The general water flow is counter-clockwise, running from the Gulf
of Maine south into the western half of CCB, over to eastern CCB, and
back into the Gulf of Maine through the channel between the north end
of Cape Cod (Race Point) and the southeast end of Stellwagen Bank, a
submarine bank that lies just north of Cape Cod. Flow within the bay is
driven by density gradients caused by freshwater river run-off from the
Gulf of Maine (Franks and Anderson, 1992a, 1992b; Geyer et al., 1992)
and by a predominantly westerly wind.
Thermal stratification occurs in the bay during the summer months.
Surface water temperatures typically range from 0 to 19 deg.C
throughout the year. Salinity is fairly stable at around 31-32 parts
per thousand. Much of the bottom is comprised of unconsolidated
sediments, with finer sediments occurring in the deeper waters (Davis,
1984). In shallow areas, or where there is sufficient current,
sediments tend to be coarser.
Northern right whales were ``rediscovered'' in the CCB in the early
1950s. Right whales have been seen in Massachusetts waters in most
months (Watkins and Schevill, 1982; Schevill, Watkins and Moore, 1986;
Winn, Price and Sorensen, 1986; Hamilton and Mayo, 1990). However, most
sightings occurred between February and May, with peak abundance in
late March (Mayo, 1993). Schevill, Watkins and Moore (1986) reported
764 sightings of right whales between 1955 and 1981 in CCB. More than
70 whales were seen in one day in 1970. Hamilton and Mayo (1990)
reported 2,643 sightings of 113 individual right whales in
Massachusetts waters, with a concentration in the eastern part of CCB.
A number of right whales, including cow-calf pairs, remained in CCB and
Massachusetts Bay during the summers of 1986 and 1987. This was
attributed to atypically dense concentrations of C. finmarchicus in
those years, and low abundances of sandlance, Ammodytes spp., a
planktivorous finfish that also preys on copepods and may be competing
with right whales for copepod prey during recent years (Payne et al.,
1990).
The late-winter/early spring zooplankton fauna of CCB consists
primarily of copepods, represented predominantly by two species,
Arcartia clausi and A. tonsa. Samples taken in the daytime indicated
greater densities of copepods at greater depths. The copepod C.
finmarchicus is found throughout inshore CCB waters at densities of 100
individuals per cubic meter from April through June (Mayo and Marx,
1990). However, Mayo and Marx (1990) found that the density of surface
zooplankton samples collected in the path of feeding right whales
during mid-winter was significantly higher than for the samples taken
where whales were absent (median = 3,904 organisms/m\3\). The
threshhold value below which feeding by northern right whales is not
likely to occur in CCB is approximately 1,000 organisms/m\3\ (Mayo and
Marx, 1990). Although year-to-year variation in the composition of
zooplankton was found, feeding right whales were associated with
patches of zooplankton that were dominated by C. finmarchicus, P.
minutus, C. spp. and by cirripede (barnacle) larvae. These authors
suggested that, after arrival in CCB when prey is at a maximum (or at
least at a consistently acceptable level), the whales select the
densest patches of copepods (Mayo and Marx, 1990).
Calving and Nursery Habitat of Northern Right Whales
Cape Cod Bay: Schevill, Watkins and Moore (1986) reported 21
sightings of small calves in 12 of the 26 years of their CCB study,
including two calves that may have been born in CCB. Therefore, the CCB
may occasionally serve as a calving area, but it is more recognized for
being a nursery habitat for calves that enter into the area after being
born most likely in, or near, the SEUS. Mead (1986) identified
Massachusetts waters as second only to the SEUS for documented right
whale calf sightings. Hamilton and Mayo (1990) observed a total of 30
calves between 1979 and 1987, associated with 21 mothers. Schevill,
Watkins and Moore (1986) and Hamilton and Mayo (1990) documented
observations of mating behavior and nursing in CCB.
Southeast United States (SEUS): The coastal waters off Georgia and
northern Florida (the area described as the SEUS) average about 30 m in
depth with a maximum depth of about 60 m. The deepest waters occur
along the coast of Florida, just south of Cape Canaveral. Seasonal
water temperatures and salinity for this area are higher than in
northern waters. This is a transition area separating subtropical from
the more temperate southeastern marine communities. Large, cyclic
changes in abundance and dominance of plankton species occur seasonally
and annually. Annual variation may be so great that short-term
monitoring studies may not be sensitive enough to assess the temporal
variability of the plankton community. The recorded preferred food of
the northern right whale, C. finmarchicus, does not occur in these
waters, and the area is not considered a foraging area for northern
right whales.
Between 1989-1992, 31 calves were observed within the SEUS,
representing 76 percent of the total number of calves (n = 41) reported
from the North Atlantic during that period (Kraus et al., 1993). The
calving season extends from late November through early March with an
observed peak in January. The 30' blocks of latitude within the SEUS
having the greatest density of adult and juvenile right whales occurred
in waters from Brunswick, GA to Jacksonville Beach, FL (Kraus et al.,
1993). The presence of females with calves was primarily limited to the
coastal waters between 27 deg.30' and 32 deg.00'N latitudes. This is
consistent with distributions reported by Kraus and Kenney (1991) using
historical sighting data through 1989.
Since 1980, 153 northern right whales have been individually
identified from surveys conducted in SEUS waters. This represents 48
percent of the known northern right whale population of 319 whales.
During this period, 125 of the right whales observed in the SEUS have
also been sexed using criteria described in Kraus et al. (1993). Of the
96 adults observed, 91 were females, one was a male, and the sex of the
remaining four was not determined. These 91 females represent 74
percent of all the photo-identified females who have been
reproductively active since 1980. The observed frequency of occurrence
of females in the SEUS is significantly greater than the expected 1:1
sex ratio characteristic of the overall population. This demonstrates
that the population is segregated by sex at this time of the year, and
that the SEUS is used predominantly by females, and females with
calves, although several juvenile males have also been observed in
recent years. Based on the number of calves and females with calves in
the SEUS since 1980, Kraus et al. (1993) consider the SEUS as the
primary calving area for the population.
Environmental Correlates to Right Whale Distribution in the SEUS:
Environmental features that have been correlated with the distribution
of northern right whales throughout the SEUS include water depth, water
temperature, and the distribution of right whale cow/calf pairs and the
distance from shore to the 40-m isobath (Kraus et al., 1993).
The average water depth at sighting was 12.6 m (SD = 7.1). This
shallow water preference is consistent with that recorded for southern
right whales with calves (Payne, 1986). Also, the significant
correlation between the distribution of northern right whales and the
distance from shore of the 40-m isobath (referred to as the inner (0-
20-m) and middle (20-40-m) shelf by Atkinson and Menzel, 1985)
indicates that right whales in the SEUS are using the nearshore edge of
the widest part of the broad shallow-water shelf characteristic of the
Georgia-Florida Bight. The inner shelf is dominated by tidal currents,
river inflow, and interaction with the coastal sounds. The middle
shelf, which is dominated by winds, has less interaction with the
coastal environment but is influenced on the outer margins by the Gulf
Stream (Atkinson and Menzel, 1985). This use of the inner and
nearshore-middle shelf area by right whales may provide maximum
protection from the wave action that occurs over the outer margins of
the shelf. Therefore, the occurrence of cow/calf pairs in coastal
waters of the SEUS may be due, at least in part, to the bathymetry that
affords protection from large waves and rough water. The strong winds
and offshore wave activity in the winter SEUS is minimized nearshore by
the relatively shallow, very long underwater shelf (extending almost
105 km offshore) (Kraus et al, 1993).
The average temperature of 30' blocks of latitude where right
whales have occurred is significantly cooler than those blocks of
latitude within the SEUS where right whales were not observed
(14.5 deg.C vs. 18.5 deg.C) (Kraus et al., 1993). The inner shelf is
not affected by the Gulf Stream during the period when right whales are
present; therefore sea-surface temperature decreases as one moves from
the Gulf Stream towards shore. It is difficult to separate the effects
of temperature from depth and proximity to shore, but sighting data
indicate that northern right whales clearly prefer a band of relatively
cool water (10-13 deg.C) within the SEUS. This band is affected by the
nearshore processes, including cooler freshwater runoff and discharge,
as described in several chapters of Atkinson, Menzel and Bush (1985).
Although little information is available on right whale physiology, it
is hypothesized that the metabolic rate of the whale is affected by
water temperature (Kraus and Kenney, 1991). The cooler, coastal water
may provide right whales with the optimum thermal balance for calving
by cooling the female at a time when offshore, Gulf stream affected
warmer waters may be too warm for a female with maximum fatty layers
prior to parturition and nursing. At the same time, the coastal waters
may be warm enough not to cause problems for a neonate, considering
that the insulating layer of a neonate for the first few weeks is
minimal, as compared to the adult.
Courtship activities have been observed throughout most of the
range of the northern right whale, except within the SEUS (Kraus,
1985).
Activities That May Affect Essential Habitat
Northern right whales are no longer observed in certain areas where
they once were found, such as Delaware Bay, New York Bight and Long
Island Sound (NMFS, 1991). The absence of right whale sightings in
these areas may be due to several factors, including: Increased human
activities, habitat degradation, insufficient quantities of prey due to
habitat or natural alterations in the physical environment, extinction
of an independent breeding group that used these areas or contraction
of the species' range as the population has decreased (NMFS, 1991).
There exists a wide range of human activities that may impact the
designated critical habitat for northern right whales (NMFS, 1991,
1992). Resource uses in the critical habitat areas are currently, and
have been historically, dominated by vessel traffic and fisheries.
Vessel activities can change whale behavior, disrupt feeding practices,
disturb courtship rituals, disperse up food sources and injure or kill
whales through collisions. Thirty-two percent of the known strandings
of northern right whales since 1970 have been caused by human
activities (Kraus, 1990; NMFS, 1992).
Vessels that operate in the areas being designated as critical
habitat include recreational and commercial fishing vessels, commercial
transport vessels, passenger vessels, recreational boats, whale-
watching boats, research vessels and military vessels (e.g., surface
ships and submarines). Helicopters and low-altitude aircraft also fly
over the critical habitat. Results of human activities that occur
within or near the designated critical habitat for northern right
whales, and that may disrupt the essential life functions that occur
there, include, but are not limited to:
1. Mortality due to collisions with large vessels: Seven percent of
northern right whales identified have propeller scars from a large
vessel (NMFS, 1992);
2. Entanglement and mortality due to commercial fishing activities:
More than one-half of all cataloged animals have scars indicative of
entanglements with fishing gear, resulting in scars, injuries, and
death. Fishing nets and associated ropes may become entangled around a
flipper, at the gape of the mouth, or around the tail (Kraus, 1985,
1990). Gill nets are believed to be the primary cause of scars and
injuries related to fishing gear, although whales have also become
entangled in drift nets and lines from lobster pots, seines and fish
weirs (Kraus, 1985). Fishing practices and locations may need to be
managed more closely when the fishing season overlaps with the presence
of right whales.
3. Possible habitat degradation through pollution, sea bed mining,
and oil and gas exploration: Exploration and development for oil, gas,
phosphates, sand, gravel, and other materials on the outer continental
shelf may impact northern right whale habitat through the discharge of
pollutants (such as oil, drilling muds and suspended solids); noise
from seismic testing, drilling and support activity; and disturbance of
the environment through vessel traffic and mining rig activity. If
these types of activities are proposed, their timing and location may
also require special management considerations, including the
establishment and maintenance of buffer zones.
4. Pollutants may also affect phytoplankton and zooplankton
populations in a way that decreases the density and abundance of
specific zooplankton patches on which northern right whales feed. In
addition, pollution may affect the feeding patterns and habitat use of
other components of the marine ecosystem, which in turn could impact
food and habitat availability for the northern right whale. Pollutants
may also have direct toxic effects on the whale. Monitoring of known
and potential pollution and discharge sources in this essential habitat
may be necessary to insure that these sources are not affecting prey
species abundance or composition, or the northern right whale's ability
to gain maximum benefit from use of the area.
Turbulence associated with vessel traffic may also indirectly
affect northern right whales by breaking up the dense surface
zooplankton patches in certain whale feeding areas. Special vessel
traffic management or restrictions may be necessary in certain areas
when northern right whales are present.
5. Possible harassment due to whale-watching and other vessel
activities; and
6. Possible harassment due to research activities (on permitted
sites and during specified times throughout the year).
The effect of any of these activities on individual whales or on
their habitat could have consequences that may impede the recovery of
the northern right whale population. Therefore, special management
considerations may be required to protect these areas and promote the
recovery of the northern right whale. The following are some, but not
necessarily all, of those activities that occur in each of the
designated critical habitat areas.
Cape Cod Bay: In CCB, vessel traffic associated with the Cape Cod
Canal, the Boston Harbor traffic lanes, dredging and disposal traffic,
recreational boating, commercial fishing and whale-watching activities
comprise the majority of the vessel activity in the immediate area. Of
these, recreational boating, commercial fishing and whale-watching
contribute greatly to the level of activity in the critical habitat.
Recreational boating begins with the onset of warmer months,
particularly in June. Commercial fishing vessels and gear are dominated
by the lobster industry, which does not typically begin its season
until the middle of June. Whale-watching boats, ferries and other
vessels increase activity in the area with the onset of warmer weather
and the tourist season, which typically begins in May or June and ends
no later than November.
Discharges from municipal, industrial and non-point sources,
dredging activities, dredge spoil disposal and sewage disposal may
degrade essential habitat in Massachusetts Bay/northern CCB. The
cumulative effects to baleen whales (including right whales) by these
activities may affect the northern right whale in Massachusetts Bay/
northern CCB.
Great South Channel: In the GSC, vessel traffic and fisheries
constitute the majority of activities within the critical habitat area.
However, in this area, these activities are not contingent on warm
weather. Shipping vessel traffic lanes for Boston Harbor are used
throughout the year to import and export metal, salt, fuel and a
variety of other products. Similarly, the commercially important
fishing grounds on Georges Bank involve year-round vessel traffic from
the mainland through right whale essential habitat to the fishing
grounds. The bottom-trawl is the most dominant type of fishing gear
used in this area. It is not known whether the bottom-trawl, or any
other type of fishing gear, has an impact on the whales' habitat. Mesh
sizes used in this area do not pose an immediate threat to the whales'
planktonic food supply.
Southeast United States: Vessel traffic and fisheries are the major
activities in the SEUS calving grounds. Major commercial shipping and
military ports operate throughout the winter/calving area. The majority
of commercial fishing vessels that use the inshore waters to harvest
shrimp and other commercially important species use these and other
neighboring ports as well. Recreational boating traffic is also fairly
extensive.
Expected Impacts of Designating Critical Habitat
A critical habitat designation directly affects only those actions
authorized, funded, or carried out by Federal agencies. Federal
agencies that may be affected by critical habitat designation of these
areas include, but are not necessarily limited to, the U.S. Coast
Guard, Environmental Protection Agency, U.S. Army Corps of Engineers,
NMFS (including the New England Fishery Management Council (NEFMC) and
South Atlantic Fishery Management Council), National Ocean Service,
Office of Coastal Zone Management, Minerals Management Service and the
U.S. Navy. For a discussion of the expected impacts and significance of
critical habitat designation, see ``Significance of Designating
Critical Habitat'' in the proposed rule (58 FR 29187, May 19, 1993).
Consideration of Economic and Other Factors
NMFS prepared an EA on its proposed designation of critical
habitat, based on the best available information, that described the
environmental and economic impacts of alternative critical habitat
designations. The economic impacts considered in this analysis were
only those incremental economic impacts specifically resulting from a
critical habitat designation, above the economic and other impacts
attributable to the listing of the species, or resulting from
authorities other than the ESA. Listing a species under the ESA
provides significant protection to the species' habitat through the no-
jeopardy standard of section 7 and, to a lesser extent, the prohibition
against taking of section 9, both of which requires an analysis of harm
to the species that can include impacts to habitat of the species.
Therefore, the additional direct economic and other impacts resulting
from the critical habitat designation are minimal. In general, the
designation of critical habitat reinforces the substantive protection
resulting from the listing itself.
Designation of critical habitat in these areas may result in an
increase in administrative time and cost to Federal agencies that
conduct, authorize or fund projects in the designated areas. However,
these agencies are currently required to address habitat alteration
issues in section 7 consultations, and as a result, any increase in
administrative time or cost is expected to be minimal.
Designated Critical Habitat; Essential Features
NMFS, by this final rule, designates areas essential for the
reproduction, rest and refuge, health, continued survival, conservation
and recovery of the northern right whale population. The following
areas are designated as critical habitat:
Great South Channel: The area designated as critical habitat in
these waters is bounded by the following coordinates: 41 deg.40'N/
69 deg.45'W; 41 deg.00'N/69 deg.05'W; 41 deg.38'N/68 deg.13'W;
42 deg.10'N/68 deg.31'W.
Cape Cod Bay: The area designated as critical habitat in these
waters is bounded by the following coordinates: 42 deg.04.8'N/
70 deg.10.0'W; 42 deg.12'N/70 deg.15'W; 42 deg.12'N/70 deg.30'W;
41 deg.46.8'N/70 deg.30'W; and on the south and east, by the interior
shoreline of Cape Cod, MA.
Southeastern United States: The area designated as critical habitat
in these waters encompasses waters between 31 deg.15'N (approximately
located at the mouth of the Altamaha River, GA) and 30 deg.15'N
(approximately Jacksonville, FL) from the shoreline out to 15 nautical
miles offshore; and the waters between 30 deg.15'N and 28 deg.00'N
(approximately Sebastian Inlet, FL) from the shoreline out to 5
nautical miles.
Modifications to this critical habitat designation may be necessary
in the future as additional information becomes available.
References
Most references used in this final designation can be found in the
Final Recovery Plan for Right Whales (NMFS, 1991), and in the EA.
Additional references found in the preamble to this rule are available
upon request (see ADDRESSES).
Comments and Responses
NMFS solicited information, comments and recommendations from
concerned government agencies, the scientific community, industry and
the general public (58 FR 29186, May 19, 1993). NMFS considered and
incorporated, as appropriate, all comments received during the comment
period (ending on August 31, 1993) and all comments received during
public hearings on the proposed rule prior to making this final
designation.
During the comment period and at the public hearings, NMFS received
a total of 35 sets of comments from regional and national environmental
organizations; county, state and Federal agencies; and associations
representing regional commercial and sport fisheries. NMFS also
received more than 50 written and oral presentations (at public
hearings) regarding the proposed designation of critical habitat for
northern right whales.
Comments received by NMFS generally fell into one of the following
categories: (1) Those who were in favor of the designation as it was
proposed; (2) those who were in favor of the proposed designation, but
recommended that additional regulatory actions be taken at the time of
designation to protect northern right whales; (3) those who were in
favor of designating critical habitat for northern right whales, but
recommended expanding the boundaries of the critical habitat; (4) those
who were not in favor of the designation because it was not necessary,
given the protective measures for right whales that are being
implemented through section 7 of the ESA; and (5) those who were not in
favor of the critical habitat designation because it may lead to
further restrictions on a specified activity.
Most comments received by NMFS from private individuals,
environmental organizations, and state agencies supported the critical
habitat designation for northern right whales. Several commenters
suggested that the proposed rule lacked clear conservation measures to
ensure the recovery of the northern right whale. Many of the
recommendations were duplicative of those of other commenters;
therefore, individual comments were combined and addressed together
below, unless otherwise specified.
Comment 1: One commenter recommended that NMFS designate a Northern
Right Whale Recovery Plan Implementation Team for the coastal calving
grounds off Florida and Georgia. The commenter further suggested
representative agencies and organizations that might participate on
this team.
Response: On August 26, 1993, NMFS convened a meeting to discuss
the monitoring program that needed to be in place to protect northern
right whales on their winter ground, prior to their winter arrival.
During this meeting, the Southeastern U.S. Right Whale Recovery Plan
Implementation Team was formed. The team consists of representatives
from the Georgia Department of Natural Resources (Chairman); Florida
Department of Environmental Protection; NMFS/Southeast Fisheries Center
and Southeast Regional Office; U.S. Navy, Naval Air Station,
Jacksonville, FL; U.S. Navy, Submarine Group, Kings Bay, GA; Georgia
Ports Authority; Canaveral Port Authority; Glynn County Commission,
Glynn County, GA; University of Georgia; U.S. Army Corps of Engineers
(ACOE), South Atlantic Division; U.S. Environmental Protection Agency
(EPA); Port of Fernandina, Fernandina, FL; and the U.S. Coast Guard.
NMFS is also coordinating the development of a Right Whale Recovery
Plan Implementation Team for the Northeastern United States. Recovery
Plan implementation for the northern right whale has been ongoing at
some level within NMFS, Northeast Region (NER), since December 1990,
and has involved agency staff and scientific experts in the area. The
most recent Massachusetts Water Resources Authority outfall Biological
Opinion (issued September 8, 1993), and associated conservation
recommendations, are part of the recommendations and programs that have
been instituted in the NER that address Right Whale Recovery Plan
tasks. The Northeast Implementation Team will address the possible
cumulative impacts to right whales from all activities in Massachusetts
Bay.
Comment 2: Several organizations recommended that NMFS implement an
early warning system, consisting of daily surveys (from December 1
through March 31) of the known wintering grounds. Several organizations
also recommended that monitoring be conducted along the migratory route
of this species.
Response: ``Early warning systems'' for right whales in the
southeast United States were first developed through ESA section 7
consultations between NMFS and ACOE, Jacksonville District, as a result
of dredging operations at the Navy's submarine channel at Kings Bay,
GA; the Port of Fernandina, FL; the Port of Jacksonville, FL; the Naval
facilities at Mayport, FL; a navigation channel at St. Augustine, FL;
and numerous beach disposal projects using offshore disposal sites
throughout this area. Measures to protect right whales have included
daily aerial surveys at the time that the dredges are in operation
during the calving season. If a right whale is seen within a 16-
kilometer (k) radius of dredge and disposal areas, dredges and support
vessels are required to carry an observer during daylight hours and to
reduce speeds at night to reduce the likelihood of a collision with a
whale. However, these precautions were only in place while the dredging
operations were being conducted, not throughout the entire winter
calving period. Therefore there were gaps in the aerial survey
coverage, and thus in protective measures for the whales.
In December 1993, the U.S. Navy and the U.S. Coast Guard provided
funding to conduct aerial surveys during the remainder of the time that
the whales were in the calving area; the area of concern from the
Savannah River south to approximately Jacksonville, FL, was surveyed
through March 1994. The ACOE will continue to provide coverage during
those periods when hopper dredges are active. Therefore, the whale
sightings are passed on to appropriate agencies if a survey finds
whales in or near a navigational channel, vessels are asked to proceed
at minimum safe operational speeds and communicate locations of the
whale so other vessels can avoid them. This procedure will continually
be reviewed and revised through efforts of the Southeast Implementation
Team. NMFS intends to continue cooperative efforts with the U.S. Navy,
U.S. Coast Guard, the ACOE, and the implementation team to conduct
daily aerial surveys throughout the calving season and to operate the
early warning system to reduce the likelihood of ship strikes.
It is unlikely that right whales can be monitored throughout their
range for the purpose of protecting them from ship strikes. NMFS is
developing a research program that may include satellite tracking of
tagged northern right whales to determine those areas (winter and
summer) where right whales occur, but which are unknown at this time.
Comment 3: The following comments were made by several commenters.
They all address additional activities that the commenters felt should
be developed to protect right whales, or activities that should be
prohibited, restricted or modified, primarily in the SEUS, to protect
the whales further. These comments are addressed together.
a. Many commenters indicated that restrictions or modifications of
shipping lanes and shipping practices need to be made at the time of
designation. The suggested modifications or changes included the
seasonal relocation of shipping lanes, a requirement that vessels
entering or leaving ports adjacent to the right whale winter grounds
use direct routes (perpendicular to the shoreline at the port entrance)
from December 1 through March 31, restriction of shipping and vessel
speeds to allow whales to avoid oncoming ships or allow ships to avoid
hitting whales, and a requirement of dedicated onboard observers to
maintain watch so that vessel collisions with right whales are avoided
when ships are transiting through right whale wintering habitats during
months when the whales occupy these habitats.
b. Several commenters recommended the development of education
programs for shipping and public interests. Others suggested that NMFS
provide to the shipping companies illustrated instructions (in many
languages) on the importance of protecting right whales in these
waters, and on safe vessel operation in the winter calving areas. They
further suggested that these instructions be posted for the crews of
all ships operating in U.S. waters, and that these safety measures
should be enforced. It was suggested that the U.S. Coast Guard should
include whale safety in its small boating course, and in required
courses for commercial captains and boat operators.
c. Several commenters suggested that NMFS should define right whale
critical habitat boundaries on NOAA navigational charts, and the notice
of the designation and occurrence of whales need to be included
seasonally in the Notice to Mariners and other publications, alerting
shipping interests to the potential presence of right whales in the
area at certain times.
d. Several commenters recommended that NMFS ban dredging and seabed
mining in the right whale calving grounds and feeding grounds, and
along the entire migratory route. Many comments supported restrictions
on dredging, if necessary, to protect right whales; gas and oil
exploration and the dumping of contaminated waste within the calving
areas described by the critical habitat boundaries; dumping of
contaminated dredge spoils and industrial waste; and the construction
of submerged or emergent structures within known right whale habitats.
e. Several commenters suggested that the discharge of pollutants at
the mouths of rivers that empty into the calving grounds should be
monitored for possible effects on the habitat.
Response: Regarding comments 3a.-3c., the Southeastern U.S. Right
Whale Recovery Plan Implementation Team (see Comment 1) formed
committees to examine many of the issues discussed in the comments.
Committees that were formed cover the following topics: Education/
Awareness; Early Warning Surveys/Communication; Funding of Surveys;
Research; and Relocation of Ocean Disposal Sites. A second meeting of
the Implementation Team occurred on December 14, 1993; the following
updates from each of the committees are summarized from that meeting.
Education/Awareness Committee: The Canaveral Port Authority
developed an endangered species pamphlet covering whales, manatees and
turtles, which is being distributed regionally. As a group, the Port
Authorities developed a series of posters describing the time right
whales are in their waters, a phone number to contact if a whale is
seen, and mention of right whale habitat. This poster is being
distributed by the harbor pilots when they board a vessel for
navigation.
A standard brochure on right whales in the SEUS has been developed
with input from the Georgia DNR, Florida DEP, New England Aquarium and
others. The brochure is designed for boaters (commercial and public),
but is also to be given to ship masters by harbor pilots. The Port
Authorities, U.S. Coast Guard, U.S. Navy, Georgia DNR and Florida DEP
can use this brochure to increase public awareness and education.
Financial support for this brochure comes from the participating
agencies.
The Georgia DNR and U.S. Coast Guard developed a local Notice to
Mariners about right whale calving grounds. This notice is broadcast
four times daily by the U.S. Coast Guard on VHF. Broadcasts ran from
December 6, 1993, through March 31, 1994. A slightly longer version is
published in the local Weekly Notice to Mariners. This notice may also
be published daily, along with the tides and weather, in regional
newspapers. The Annual Notice to Mariners also has information on this
subject.
Several press releases were issued beginning when the first right
whales were sighted on December 4, 1993. A regional press release was
also issued describing the implementation team, members, persons to
contact if a whale is seen and other information on the need for
protection of right whales in the SEUS.
The University of Georgia is surveying local groups to ensure that
there is no duplication in the development of educational materials on
right whales, and to provide a network to combine and coordinate
efforts.
The Savannah Area Chamber of Commerce suggested that treating a
sighted right whale as though it were another ship (slowing down,
changing course and anchoring to avoid collisions with right whales)
should be formalized for all ports in the southeast (i.e., treating
right whales as vessels under the nautical rules of the road). They
further stated that injury to, and interference with, right whales can
best be avoided by continuing the education of ship's captains, and
through ongoing cooperation between the port, its pilots and the
Georgia DNR.
Early Warning and Communication Committee: An early warning network
has been developed with aerial surveys at the core of the network (see
Comment 2). A communication flow chart has been developed to illustrate
how information regarding whale sightings should be channeled between
the appropriate agencies/groups. This is currently considered the best
communication scheme for relaying right whale sightings from aircraft
to land-based stations, and back to surface vessels. This communication
network is essential to the early warning system and alerts mariners to
the presence of right whales in the SEUS. Information disseminated by
this system is updated daily as whales are located during the aerial
surveys.
Regarding Comment 3d., many of the suggested activities may be
authorized, funded or conducted by Federal agencies. The responsible
Federal agency active within the range of the northern right whales is
required to consult with NMFS regarding its projects and activities
under section 7 of the ESA. If the activity is found likely to
jeopardize the continued existence of the species, directly or through
habitat degradation, reasonable and prudent alternatives would be
offered that could include restrictions. Even if the activity is not
likely to jeopardize the continued existence of the species, NMFS is
required to provide an incidental take statement that identifies the
impact of any incidental taking of northern right whales by the action
agency, and specifies reasonable and prudent measures, and terms and
conditions that must be complied with, to minimize such takings. These
measures may include restrictions upon the activity. In addition,
private entities are prohibited from taking an endangered species
pursuant to section 9 of the ESA, which may include harm to the species
caused by habitat degradation. In this regard, such activities are
already prohibited as a result of listing.
Regarding Comment 3e., NMFS agrees that discharge of pollutants at
the mouths of rivers that empty into the calving grounds should be
monitored for possible effects on the habitat. A designation of
critical habitat may assist Federal agencies in evaluating the
potential environmental impacts of their activities on northern right
whales and their critical habitat. The designation may also help focus
state and private conservation and management efforts in those areas.
Comment 4: Two commenters recommended that a ``distance buffer'' be
established around northern right whales. One recommended that a
minimum approach distance of 100m to 300m should be established for all
vessels around right whales.
The second commenter recommended that NMFS establish around every
northern right whale, in any area designated as critical habitat, a
500m radius ``protection zone,'' and prohibit any vessel or person from
entering or knowingly remaining within this zone. The commenter further
suggested that such a buffer zone is consistent with similar rules
already adopted by NMFS and cited as examples the minimum distance rule
for humpback whales (Megaptera novaeangliae) in Hawaii (50 CFR 222.31)
and the 5.5 k buffer zone established around Steller sea lion
(Eumetopias jubatus) rookeries and major haulouts in Alaska (50 CFR
226.12). The commenter continued that such protection zones for the
area designated in Cape Cod Bay and Stellwagen Bank would be consistent
with existing Massachusetts regulations (322 CMR 12.00 et seq.), which
require that no one approach or remain within 500m of a right whale in
state waters.
Response: In both cases, the purpose of the suggested buffer zones
would be to ensure that northern right whales are undisturbed as much
as possible throughout their range, and to keep vessels far enough away
so that there is no danger of a collision between whales and vessels.
Critical habitat designations reflect specific determinate geographical
areas containing physical or biological features essential to the
conservation of the species. While NMFS recognizes that the area around
each whale is important, it is not appropriately the subject of a
critical habitat designation. Rather, such buffer zones should be
established through separate rulemaking, similar to the special
prohibitions for humpback whales in Hawaii.
Comment 5: One commenter suggested that NMFS implement research and
monitoring programs focused on: (1) Behavioral changes (of northern
right whales) associated with the possible impacts of vessel traffic,
noise and whalewatching; or (2) the effects of dredging activities and
their associated vessel traffic, siltation and noise in the
southeastern United States through continued observation of dredge
activity and aerial surveys of right whales in and adjacent to buffer
zones around dredging operations; (3) the impact of pollution on
phytoplankton and zooplankton abundance--specifically the impact of the
Boston Harbor effluent outfall; and (4) the effects of whalewatching
activities on the northern right whale. The commenter recommended that,
if necessary, NMFS promulgate regulations to mitigate the effects of
these activities.
Response: In addition to the monitoring program implemented by the
Southeast Implementation Team, NMFS is developing a 3-5 year research
plan that will focus on research needs identified as priorities in the
Northern Right Whale Recovery Plan. The current research program is the
result of several meetings that occurred on April 14-15, 1992, in
Silver Spring, MD; June 18, 1993, in Brunswick, GA; and July 16, 1993,
in Silver Spring. These meetings established the following research
priorities:
a. To determine the wintering location(s) of most northern right
whales in the northwest Atlantic through the deployment of satellite
tags on selected female right whale;
b. to determine daily movements within the wintering/calving area.
Tagging with VHF tags in the SEUS could determine the daily movements
of these animals. This information could be useful to develop a long-
term monitoring program to reduce ship strikes in the SEUS;
c. to determine the unknown location of a third summering area.
There are three matrilineal stocks of northern right whales recognized.
One of the stocks does not visit the Bay of Fundy, but is seen in the
GSC and CCB during spring, and in the SEUS in winter. Satellite
tracking a tagged female from the third matriline (these have already
been determined from mtDNA analyses and photoidentification) in the GSC
or CCB in the spring might lead to the location of the other summer
location of northern right whales in the North Atlantic.
d. to identify ``bottlenecks'' in the rate of recovery. The reasons
for the northern right whale's low reproductive rate relative to
southern hemisphere right whales are unknown. One theory is that there
is too much inbreeding as a result of the extremely depleted
population. The extent of inbreeding can be determined from genetic/
molecular identification through mtDNA biopsy sampling and sexing using
molecular techniques; and
e. to determine the best location and methods to monitor recovery
of this population.
NMFS is not considering broad-based whalewatching regulations at
this time, but may consider minimum approach distances specific to
northern right whales as part of the recovery planning process (see
Response to Comment 3).
Comment 6: One commenter stated that collisions with ships and
entanglement in fishing gear may be rare from the perspective of total
fishing activity and vessel traffic in the various areas. However, at
least two right whales were struck and killed in the past 3 years. That
means that about 2 percent (a much higher rate for calves) of the right
whales known to occur in the area since late 1989 have been killed by a
collision with a vessel. This percentage may underestimate the actual
percentage struck during the period because many whales, including
calves, have been seen with propeller scars. In the view of the
commenter, this information demonstrates a significant risk from the
perspective of right whales in this area, especially since the threat
is concentrated on the reproductive core of the population and the
calves, essential for population recovery.
The commenter recommended that NMFS expand the proposed critical
habitat designation to include conservation measures that would reduce
the likelihood of right whales being struck by vessels or becoming
entangled in fishing gear. The commenter continued that the designation
of critical habitat will serve as a warning to those who operate ships
in these areas that steps must be taken to reduce the risk of collision
with right whales. While finding the steps already taken by harbor
pilots, ports authorities, the U.S. Navy, the U.S. Coast Guard, ACOE
and others to be encouraging, the commenter believed that more needs to
be done.
Response: NMFS recognizes that the loss of each northern right
whale has a measurable impact on this population. The first priority of
the Southeast Implementation Team was to develop a program to reduce or
eliminate ship strikes throughout the whales' wintering area.
Also, the New England Fishery Management Council (NEFMC) has
restricted all commercial fishing in Gulf of Maine Groundfish Area I,
which roughly covers the GSC, because of the importance of the area for
haddock spawning from February 1 to May 31, since 1986. The haddock no
longer spawn in that area, but NMFS and the NEFMC have recommended
leaving the closure in place for all gillnet gear to protect the
northern right whale, and other whale species that use that area in the
spring.
NMFS will continue to focus recovery/management efforts on ways to
reduce human-induced mortality as a result of ship strikes and
entanglement.
Comment 7: One commenter stated that the continued availability of
these areas for use by northern right whales is critical to the
survival of the species. The commenter further stated that under the
authority of the Massachusetts Wetlands Protection Act, Massachusetts
has already designated the portion of CCB critical habitat that occurs
in Massachusetts waters as ``Estimated Habitat'' for a State-listed
wetland wildlife species. Estimated habitat, under the Code of
Massachusetts Regulations (CMR), 310 CMR 10.37, is defined as the
estimated geographical extent of the habitats of State-listed species
for which an occurrence within the last 25 years has been accepted by
the Massachusetts Natural Heritage and Endangered Species Program and
incorporated into its official database.
The commenter also stated that regulations have already been
promulgated by Massachusetts law to prohibit vessels from approaching
within 500m of a right whale in State waters. Fishery measures that
reduce the risk of entanglements of marine mammals with fixed gear such
as lobster gear and gillnets have also been adopted in Massachusetts.
There are moratoria on gillnet and lobster licenses, a limit on the
number of lobster pots per fisherman and limits on the length of
lobster pot trawls and gillnets. Further restrictions on gillnets, some
to complement what the NEFMC is considering to reduce by-catch of
harbor porpoise, Phocoena phocoena, are being considered.
The commenter believed, however, that a designation of critical
habitat at the Federal level would extend comprehensive,
interjurisdictional protection to the right whale, a correct approach
to conserving the species. The commenter further stated that since, the
proposed rule said ``fishing practices and locations may require
special management considerations when the timing of the fishing season
and the presence of the northern right whale overlap,'' NMFS should
work closely with Massachusetts and the NEFMC to assess the need for,
and nature of, special management considerations.
Response: NMFS recognizes and appreciates the efforts of the
Commonwealth of Massachusetts to protect the northern right whale. NMFS
is establishing a Northeast Implementation Team for the Recovery Plan
(see Response to Comment 5). It is the intent of NMFS to work closely
with these teams to determine for, and effectiveness of, special
management measures.
Comment 8: One Federal agency supported the proposed critical
habitat designation for the northern right whale, but was concerned
that NMFS would be the Federal agency listed as having management
responsibilities within the boundaries of Cape Cod National Seashore.
Response: Designation of critical habitat does not create
management responsibilities for NMFS, nor does it give NMFS primary
jurisdiction over Federal lands included in the critical habitat
designation. While a Federal agency may undertake an activity that may
affect either the listed species or critical habitat, and may be
required to consult with NMFS pursuant to section 7, it is the action
agency that decides whether to initiate consultation. Likewise, the
action agency determines whether and in what manner to proceed with the
action in light of its section 7 obligations and NMFS' biological
opinion (See 50 CFR 402.15). NMFS' role is advisory in nature.
For example, while NMFS has responsibility over this listed
species, the National Park Service (NPS) at Cape Cod National Seashore
has major responsibilities for the long-term preservation of Cape Cod's
natural resources, including this federally listed endangered species.
As such, the NPS at Cape Cod National Seashore has management
responsibilities within the proposed area of critical habitat that
overlaps with the legislative boundary of the Cape Cod National
Seashore. NMFS believes that the NPS and NMFS can work together on
issues pertaining to the northern right whale.
Comment 9: One commenter suggested that two of the proposed
critical habitat areas violate the prohibition on habitat designation
outside the jurisdiction of the United States. The proposed critical
habitat designation in the GSC and portions of the SEUS exceed the 12
nautical mile territorial sea recognized by the United States.
Response: The regulations state that ``critical habitat shall not
be designated within foreign countries or in other areas outside of the
United States jurisdiction'' (50 CFR 424.12(h)). The critical habitat
designation falls within the 200 mile exclusive economic zone of the
United States, and therefore is not outside of U.S. jurisdiction.
Furthermore, critical habitat designation may impact the activities of
Federal agencies, which are defined as ``all activities or programs of
any kind authorized, funded, or carried out, in whole or in part, by
Federal agencies in the United States or upon the high seas'' (50 CFR
402.02).
Comment 10: Several commenters suggested that the northern boundary
of the critical habitat, as recommended by the Recovery Team and
proposed by NMFS (58 FR 29186, May 19, 1993), be extended further
northward to 32 deg. N latitude, approximately the mouth of the
Savannah River. Based on data examined since the Recovery Team reviewed
and recommended the critical habitat boundaries that were proposed in
the critical habitat designation, the commenter stated that sightings
corrected for effort (i.e., the number of right whales counted per
survey mile since 1984) indicate that the number of right whales per
mile of transect off St. Catherines Island, GA, was comparable to the
number observed off Melbourne and Daytona Beach, FL, and greater than
that off St. Augustine, FL, areas within the proposed critical habitat.
Several other commenters requested that no extension of the
critical habitat include the mouth of the Savannah River be
incorporated into a final designation until verified information on the
presence of the right whale is publicly provided and a public hearing
is held in Savannah, GA, so that the public can have an opportunity to
comment. They further urged that any boundary modification be justified
on firm scientific grounds, showing significant benefits to right whale
recovery.
Response: NMFS believes that the most important winter/calving
areas known are within the boundaries identified as critical habitat in
the proposed rule. The greatest number and highest densities of right
whales have been observed in the Cape Canaveral region, with the second
highest number occurring at the Georgia-Florida border. It is clear,
however, that northern right whales occur outside this area, including
near the mouth of the Savannah River, during the winter calving period
and during their late-winter/spring migration northward.
The monitoring conducted around the mouth of the Savannah River
during 1992/1993, and the near-daily monitoring conducted during the
winter of 1993/1994 from Savannah south throughout the SEUS to
approximately Jacksonville, FL, can be used to examine this issue. In
these 2 years of monitoring near the mouth of the Savannah River (total
approximately 90 days, 20 in 1992/1993 and approximately 70 thus far in
1993/1994) only four right whales have been sighted. The first
sighting, on December 12, 1993, was of three whales moving south. These
whales were resighted the following day near Brunswick, GA. The second
and third sightings were also followed by resightings off Brunswick. In
these cases, the time between resightings was only a few days,
indicating that the whales were not remaining near the Savannah River
but traveling through the area toward the core of the sighting
distribution. Based on these data, NMFS sees no need to include the
area as critical habitat at this time. NMFS recognizes that the
sighting data is based on only 2 years of information, and that
distributions between years can vary dramatically. NMFS will
continually examine sighting data and may modify critical habitat
boundaries in the future if warranted by additional sighting
information.
Comment 11: One commenter suggested that there is a lack of data
offered by NMFS supporting the presence of a substantial right whale
population off the Cape Canaveral Florida coast (south of False Cape).
The commenter cited information in the Recovery Plan for the Northern
Right Whale, which indicates that only four sightings within the 5nm
proposed habitat have been recorded south of the False Cape area prior
to 1989, and questioned whether this is sufficient data on which to
base a designation.
Response: The lack of sightings at the southern end of the
designated SEUS area is explained, at least in part, by low sampling
effort in that area. Sightings corrected for effort indicate that the
area around Cape Canaveral may be used by right whales to a greater
extent than presented by Kraus and Kenney (1991) and discussed in the
Recovery Plan. The data do not support removal of the area from
consideration.
Given the need to monitor and manage activities that might impact
northern right whales in the area of Cape Canaveral, NMFS believes that
it is appropriate to designate this area as critical habitat. The
seasonal use, and extent of use, of any area will be considered during
the ESA section 7 process on a case-by-case basis, but at present the
area in question represents the southern limit to the only known
calving area for this species, and is therefore considered critical.
Comment 12: Another Federal agency supported the proposed
designation and submitted comments from the particular perspectives of
the Gray's Reef National Marine Sanctuary (GRNMS) and the recently
designated Stellwagen Bank National Marine Sanctuary (SBNMS).
The GRNMS lies to the north and east of the proposed critical
habitat boundary in coastal Georgia; and the commenter recommended that
the boundary of the proposed critical habitat be extended northward and
seaward to include GRNMS. The commenter stated that Grays Reef is
particularly vital to the critical habitat designation because the
waters off Georgia and northern Florida serve as calving grounds for
this species. The commenter also stated that personnel at GRNMS could
provide additional resources for observing and monitoring these whales
as part of the Sanctuary's routine operations, as well as provide
substantial support to the education and outreach objectives listed in
the Northern Right Whale Recovery Plan.
The commenter continued by stating that the recently designated
SBNMS overlaps slightly with the proposed critical habitat area (at the
northern end of CCB). The commenter felt that the proposed designation,
in conjunction with the implementation of the SBNMS, would provide
additional opportunities for coordinated efforts to enhance the
potential for recovery of this critically endangered marine species.
Also, some or all of the ``special management considerations or
protections'' identified in the proposed designation as being
potentially required to protect and promote the recovery of the
northern right whale population using the Stellwagen Bank environment
(i.e., vessel traffic, fishing, pollution, mining and gas exploration)
are also addressed by the SBNMS management plan. With the exception of
fishing, these activities are currently either regulated directly, or
are listed as subject to sanctuary regulation.
Furthermore, the Marine Protection, Research and Sanctuaries Act
(title III), as amended in 1992, established the requirement for
consultation between the Secretary of Commerce (NOAA) and any Federal
agency proposing to undertake an activity in the vicinity of a National
Marine Sanctuary that may result in adverse impacts on sanctuary
resources or qualities, including private activities authorized by
licenses, leases or permits. Such consultation must occur prior to
initiation of the proposed activity. From the perspective of
administrative structure, therefore, there are opportunities for both
NMFS and NMSP to coordinate their programmatic objectives.
Response: NMFS does not believe that extending the boundary of the
SEUS critical habitat seaward to include the GRNMS is necessary (see
Response to Comment 10). However, NMFS does agree that the Grays Reef
program could provide additional monitoring of these whales,
substantial support to the education and outreach objectives listed in
the Northern Right Whale Recovery Plan and additional opportunities for
coordinated efforts to enhance the potential for recovery of this
critically endangered marine species.
Comment 13: A commenter recommended that NMFS designate Delaware
Bay as critical habitat for the northern right whale, stating that
Delaware Bay is habitat that is representative of the historic
geographical and ecological distribution of the species.
Response: The criteria specified under 50 CFR 424.12 to be
considered in designating critical habitat, and described in the
preamble to the proposed designation, must consider the requirements of
the species, including habitats that are representative of the historic
geographical and ecological distributions of the species. Section
3(5)(A)(ii) of the ESA states that areas outside the current
geographical range of a species can be designated if the Secretary
determines that such areas are essential for the conservation of the
species. The regulations to the ESA interpret this provision to mean
that the Secretary shall designate as critical habitat areas outside
the geographic area presently occupied by a species only when a
designation limited to its present range would be inadequate to ensure
the conservation of the species (50 CFR 424.12(c)). Even where the area
is presently occupied by the species, section 3(5)(c) states that, with
certain exceptions determined by the Secretary, ``critical habitat
shall not include the entire geographic area which can be occupied by
the * * * species.''
Although known to have been used by right whales, it is not
completely understood to what extent Delaware Bay was used, or whether
this area would ever have been considered critical habitat. It is
known, however, that the area is now bypassed by northern right whales
during their annual movements. NMFS believes that the current high-use
areas are identified in this rule, but recognizes that the areas
designated represent the minimal space required by right whales to
ensure population growth. Designating Delaware Bay as critical habitat
would not enhance the likelihood of recovery for this species. If
evidence to the contrary becomes available, critical habitat boundaries
can be modified.
Comment 14: Several commenters did not oppose the designation of
the critical habitat designation for the northern right whale, but were
concerned with the ``general'' language of the proposed designation and
felt there was no real need for it. Rather, they felt that a public
awareness program for shipping interests is sufficient. They further
expressed concern that the language of the preamble to the proposed
designation stating that ``habitats will be given special consideration
in section 7 consultations'' would become a vehicle to attack offshore
dredge disposal and port expansion. The commenters requested that NMFS
reconsider the need for the proposed designation as it applies to the
southern coastal area, given that there is already an active task force
working to prevent collisions between vessels and the northern right
whale and that the other protections of the ESA still apply.
Finally, one of the commenters wanted the channel, fairways to sea
lanes, disposal sites, access routes to disposal sites and nearshore
berm areas in the SEUS to be excluded from the critical habitat
designation. The commenter noted that these areas can be excluded if
the overall benefits of exclusion outweight the benefits of
designation, unless the exclusion results in the extinction of the
species.
Response: Federal agencies active within the range of the northern
right whales are already required to consult with NMFS regarding
projects and activities that may affect the species pursuant to section
7 of the ESA. Federal agencies are required to evaluate their
activities with respect to northern right whales and to consult with
NMFS prior to engaging in any action that may affect the critical
habitat to ensure that their actions are not likely to result in its
destruction or adverse modification. Regarding the SEUS critical
habitat specifically, these actions are being reviewed by the Southeast
Implementation Team, through section 7 consultations and agreements
already in place, and through the expanded efforts of the
Implementation Team to reach the private and public sectors.
Finally, frequent travel by commercial vessels in these areas
represents a considerable threat to northern right whales. Therefore,
NMFS does not agree that corridors frequently traveled by vessels
within the designated critical habitat should be excluded.
Comment 15: One federal agency was concerned that the proposed
designation was neither appropriate nor necessary to preserve the
species. The commenter felt that the current proposal merely designates
areas of highest concentration of the whales and lists their
characteristics, rather than considers the physical or biological
features that are essential to the conservation of the species. To
warrant critical habitat designation, the commenter felt that a better
understanding of the species' biological and physical requirements is
needed.
Response: NMFS agrees that critical habitat designation must
include areas meaningful to the specie's conservation. Consequently,
NMFS is not designating the northern right whale's entire range, which
was suggested by several commenters, but is focusing attention on
particular areas that have essential features and that may be in need
of special management consistent with the ESA and implementing
regulations. The section of this preamble entitled ``Essential Habitat
of the Northern Right Whale'' has been expanded from the proposed rule
to address those biological and physical features and to identify those
principal constituent elements, such as feeding sites, breeding grounds
and calving areas within the designated areas, that are considered
essential to the northern right whale. The section in the proposed
designation entitled ``Need for Special Management Consideration''
summarizes the justification for the designation of these three special
areas.
NMFS has concluded, based on the best available scientific evidence
and the biological and ecological needs of the species, that the areas
in coastal and offshore waters that are being designated as critical
habitat for northern right whales contain the appropriate environmental
and biological characteristics required by the species to recover, and
may warrant consideration of special management measures.
NMFS has also concluded that the designation of waters within the
SEUS is warranted, given the geographic concentration of northern right
whales during the winter/calving period, the extreme endangered status
of this species, the importance of the area to the reproductive
potential (recovery) of the species, the possible impacts of commercial
activities on right whales that may require monitoring and the fact
that this area may be in need of special management measures.
The potential for special management considerations does not
necessarily mandate restriction or elimination of activities. Close
monitoring of activities and additional research also constitute
special management considerations. The existing information, discussed
in the preamble to this final designation, supports this designation of
critical habitat.
Comment 16: Another Federal agency commenter, citing the EA
prepared by NMFS, stated that the direct impact of the designation
affects Federal agencies and only duplicates that protection provided
under the section 7 jeopardy provision. According to the commenter, the
primary benefit cited for the proposed designation is increased
awareness. The commenter believed that previous consultations with
Federal agencies and meetings with the public have heightened
awareness, and therefore, that more regulations are unnecessary. In
summary, the commenter opposed the designation. However, the commenter
wanted to facilitate more progressive conservation of the species and
to cooperate in the development of interagency management plans to
reduce impacts to the whales in high density areas. The commenter
believed such measures will allow NMFS and other Federal agencies more
flexibility in advancing recovery of the northern right whale.
Response: NMFS restates that, while designating critical habitat
helps focus the attention of Federal agencies on the importance of a
designated area for an endangered species, state and private agencies
may also give special consideration toward conservation and management
actions in these areas. A designation of critical habitat provides some
incremental protection to northern right whales in those cases where
the action may not result in a direct impact to individuals of a listed
species (e.g., an action occurring within the critical area when a
migratory species is not present, or when an activity is conducted
outside the designated area), but may affect the critical habitat.
Finally, NMFS agrees with the commenter that a more progressive
conservation program to protect this species is necessary, and that the
development of interagency management plans to reduce impacts to the
whales in high density areas is the best approach. Therefore, NMFS will
continue to work through the Southeast Implementation Team and through
ongoing section 7 consultations to advance recovery efforts for
northern right whales in these waters. NMFS appreciates the efforts
that have already been made toward protecting these animals, and
believes continued research and management discussions will result in a
cost-effective, flexible program that will enhance the recovery of the
northern right whale.
Comment 17: One commenter supported reasonable activities to
protect the right whale at an acceptable cost and understood that the
designation will not, in itself, impose additional regulations
affecting activities within the habitat area. The commenter shared the
concerns of other port operators that designation of critical habitat
may lead to adoption of rules regulating the speed and routes of
commercial vessels which may cause vessels to leave these ports at
great economic cost to the port.
The commenter was concerned that all proposed special management
measures that could impose increased costs should be adequately
evaluated to assure that resulting benefits justify those costs, and
that measures are implemented in the most cost-effective manner. The
commenter suggested that effective alternative protection methods with
significantly less cost may exist, although it did not provide specific
recommendations.
This commenter has joined together with others to institute an
education and information dissemination plan designed to protect the
right whale. The commenter believed that this cooperative effort is the
method most likely to be effective in protecting the right whale at
reasonable cost in northern Florida and southern Georgia coastal
waters.
Response: NMFS does not expect any additional restrictions on use
of the areas as a result of this designation. Therefore, direct
economic impacts associated with this designation are expected to be
minimal.
NMFS agrees that there may be alternative protection methods. The
possibility of such alternatives, however, does not eliminate the need
to designate critical habitat. These should be brought to the attention
of the Southeast Implementation Team, which can review and evaluate
them.
Comment 18: One commenter was concerned about the potential effects
of this designation on beach nourishment projects done in conjunction
with the ACOE. Currently the commenter and the ACOE are studying the
feasibility of beach nourishment at several eroding areas of the
Atlantic shoreline. The commenter continued that the potential window
for beach nourishment projects has already been limited by the presence
of essential nesting habitat for endangered and threatened species of
sea turtle. The nesting seasons runs from May 1 through October 1 of
each year, limiting the timeframe for nourishment projects to the
winter months.
Another Federal agency stated that any hopper dredge restrictions
implemented to avoid the December through March time period of right
whale calving and presence in the area would be burdensome. The
commenter encouraged working out a timeframe that would allow use of a
hopper dredge and take into account the winter right whale calving
season and the summer period of high abundance for Kemp's ridley turtle
(Lepidochelys kempii) and manatee (Trichechus manatus) in the Kings Bay
area.
Response: NMFS realizes that the present dredging period was
scheduled to accommodate the presence of several species of sea turtles
in these waters, and also recognizes the seasonal limits for beach
nourishment projects. The present seasonal restriction on dredging is
an essential management measure, given the increased densities of sea
turtles in coastal waters during the warmer months.
The designation of critical habitat for right whales will not
affect the scheduling of this activity. NMFS does not intend to alter
the present schedule through this designation, but rather will continue
to require the present level of monitoring of dredging activities
during winter months to reduce impacts to northern right whales. Over
the years, there have been several very near misses of right whales
with dredges that were avoided due, at least in part, to observer
coverage on the dredges.
Comment 19: Several organizations and individuals had comments
regarding commercial fishing restrictions. One commenter recommended
seasonal restrictions on set-gillnet fisheries and multiple trap
American lobster, Homarus americanus, fisheries within known right
whale habitat, and felt that fines and enforcement procedures for
individuals violating this and other restrictions should be mandated.
Another commenter recommended that NMFS expand the rule to include
conservation measures to reduce the likelihood of right whales being
struck by boats or becoming entangled in fishing gear. Specifically,
the commenter recommended that NMFS prohibit the use of unattended
drift and sink gillnets in all three areas being designated as critical
habitat during the seasons that right whales are likely to occur in the
area.
Another commenter suggested that unattended use of gillnets should
be prohibited from December 1 through March 31 (the time that northern
right whales are in the area), but that commercial fishing need not be
restricted on the winter grounds.
NMFS also received several comments from individuals and
organizations recommending against designating critical habitat because
they believed it would lead to further restrictions of fishing
activities. One such commenter asserted that the desigation may
eventually result in the halting of recreational fishing outside
Sebastian Inlet, FL, and for that reason was opposed to designating
critical habitat. Another commenter felt that the designation of
critical habitat would increase regulation of commercial fishing and
for that reason opposed the designation.
Another commenter stated that commercial fishermen throughout the
SEUS support efforts to protect the northern right whale through
participating in whale sighting programs, and by radioing positions of
whales to other vessels to avoid collisions. Thus, the commenter felt
declaring this area as critical habitat was not necessary to avoid
collisions, and may unnecessarily affect fishermen as well as other
commercial activities.
Response: As stated in the proposed critical habitat designation,
the only direct impact of a critical habitat designation is through the
provisions of section 7 of the ESA, which applies only to those actions
authorized, funded or carried out by Federal agencies. This final
critical habitat designation contains no land use or fishing
regulations, and will not directly affect private activities. Even
where there is Federal involvement, NMFS anticipates that this final
critical habitat designation, by itself, will not restrict private
activities in a manner or to an extent that these activities are not
already affected as a result of the listing of this species as
endangered. If, in the future, NMFS determines that restrictions on
human activities are necessary to protect northern right whales or
their habitat, such action would be preceded by an opportunity for
public review and comment.
Comment 20: One commenter stated that pollutant discharges in CCB
may represent a continuous source of degradation to essential habitats.
Sewage discharges, dredging activities, dredge spoil disposal and non-
point sources all contribute contaminants into this relatively shallow
and extraordinarily productive environment. The commenter further
stated that the Massachusetts Water Resources Authority (MWRA) is in
the process of combining, upgrading and relocating its outfalls
approximately 15km out into Massachusetts Bay, or roughly 40km to the
north of the critical habitat boundary. The commenter felt that
research should be continued and broadened to address all aspects of
the species' biology, behavior and habitat requirements, as well as the
specific sources of pollution that threaten to diminish the quality of
the habitat for northern right whales.
The commenter stated that in CCB there is a need to establish a
water quality monitoring program that focuses on endangered species and
incorporates sampling of critical parameters at the appropriate spatial
and temporal scales.
Response: As previously stated, NMFS is coordinating the
development of a Right Whale Recovery Plan Implementation Team that
will address the possible impacts to right and humpback whales from
activities in Massachusetts Bay that may affect CCB (see Comment 5).
Comment 21: One Federal agency outlined those protective measures
that have been developed over the years through ESA section 7
consultations with NMFS and commended the efforts of NMFS, Southeast
Regional Office, in initiating discussions with EPA, Region IV, to
propose moving the Kings Bay ocean dredged material disposal site
closer to the navigation channel. A closer disposal site would reduce
the distance traveled by hopper dredges, thereby reducing the potential
for collisions with right whales.
The commenter did not anticipate additional restrictions on these
activities because of the critical habitat designation.
Response: NMFS will continue to work with all Federal agencies
through the section 7 consultation process on all protected species
issues to ensure the continued recovery and protection of endangered
and threatened species.
Classification
It has been determined that this rule is not significant for
purposes of E.O. 12866.
NOAA Administrative Order 216-6 states that critical habitat
designations under the ESA generally are categorically excluded from
the requirements to prepare on EA or Environmental Impact Statement.
However, in order to more clearly evaluate the minimal environmental
and economic impacts of critical habitat designation versus the
alternative of a no-critical habitat designation, NMFS has prepared an
EA. Copies of the EA are available on request (see ADDRESSES).
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: May 27, 1994.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set forth in the preamble, 50 CFR part 226 is
amended as follows:
PART 226--DESIGNATED CRITICAL HABITAT
1. The authority citation for part 226 continues to read as
follows:
Authority: 16 U.S.C. 1533.
2. New Sec. 226.13 is added to subpart B to read as follows:
Sec. 226.13 North Atlantic Ocean.
Northern Right Whale (Eubalaena glacialis)
(a) Great South Channel. The area bounded by 41 deg.40' N/
69 deg.45' W; 41 deg.00' N/69 deg.05' W; 41 deg.38' N/68 deg.13' W; and
42 deg.10' N/68 deg.31' W (Figure 6 to part 226).
(b) Cape Cod Bay, Massachusetts. The area bounded by 42 deg.04.8'
N/70 deg.10' W; 42 deg.12' N/70 deg.15' W; 42 deg.12' N/70 deg.30' W;
41 deg.46.8' N/70 deg.30' W and on the south and east by the interior
shore line of Cape Cod, Massachusetts (Figure 7 to part 226).
(c) Southeastern United States. The coastal waters between
31 deg.15' N and 30 deg.15' N from the coast out 15 nautical miles; and
the coastal waters between 30 deg.15' N and 28 deg.00' N from the coast
out 5 nautical miles (Figure 8 to part 226).
3. Figures 6 through 8 are added to part 226 to read as follows:
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