[Federal Register Volume 59, Number 247 (Tuesday, December 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31645]


[[Page Unknown]]

[Federal Register: December 27, 1994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

[Docket No. 941126-4326; I.D. 112294A]

 

North Atlantic Right Whale Protection

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking (ANPR).

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SUMMARY: This document is in response to a petition requesting the 
issuance of regulations that will establish specific protection zones 
around every northern right whale (as well as around all other whales). 
It solicits public comment and information to assist in determining the 
need for and types of conservation measures that would be effective in 
minimizing human-induced disturbance of and harmful interaction with 
northern right whales.

DATES: Written comments must be received on or before February 27, 
1995.

ADDRESSES: Comments on this ANPR should be addressed to Chief, Marine 
Mammal Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Margot Bohan or Michael Payne, Office 
of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:
    The western North Atlantic population of northern right whales 
(Eubalaena glacialis) is estimated to consist of 300-350 animals. 
Although protected by international agreements for over 50 years, the 
growth rate of this population remains at an extremely low level 
relative to the growth rates of right whale populations in the southern 
hemisphere that have been similarly protected (Kraus, 1990). It has 
been suggested that both natural and human-induced factors are 
responsible for the absence of measurable growth in the northern right 
whale population.
    One human-induced factor thought to be a substantial threat to the 
recovery of the northern right whale, as identified in the Recovery 
Plan for Northern Right Whales (NMFS, 1991), developed under section 
4(f) of the Endangered Species Act (ESA), 16 U.S.C. 1533(f), is 
disturbance by vessels. Northern right whale behavior occurring at the 
water's surface, such as resting, skim feeding, and courtship, makes 
them susceptible to disturbance by vessels. Further, it appears that 
vessel traffic has a measurable effect on large whales, including right 
whales. These effects include overt changes in direction of swimming, 
changes in respiration patterns, changes in dive time/surface time 
ratios, and changes in acoustic behaviors. In particular, right whale 
cows with calves and single long-diving whales appear to be sensitive 
to sound and have been observed to avoid boats (Kraus and Mayo, unpubl. 
data). Finally, 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.
    On October 5, 1994, NMFS received a petition from Greenworld, Inc. 
requesting that, in order to address this perceived problem, NMFS issue 
regulations establishing a 500-yard (yd) (460 meter(m)) radius 
protection zone around every right whale and, citing the similarity of 
appearance provision of section 4(e) of the ESA, 16 U.S.C. 1533(e), a 
100-yd (90m) radius protection zone around all other whales. The 
petition also suggested that any vessel approach of a right whale 
closer than 500-yds (or 100-yds for other whales) be considered an 
incidental take under the ESA.
    NMFS has previously received information suggesting similar 
actions. During the comment period following the proposed rule to 
designate critical habitat for the right whale (final rule at 59 FR 
28793, June 3, 1994), several commenters recommended that a distance 
buffer be established around each right whale. To allow whales to avoid 
oncoming vessels and vessels to avoid whales, commenters indicated 
that, at the time of critical habitat designation, restrictions or 
modifications of shipping lanes and shipping practices needed to be 
made. Another commenter suggested that a minimum vessel approach 
distance of 100-300m be established around right whales. Finally, a 
commenter recommended that NMFS establish a 500m radius protection zone 
around every right whale in every area designated as critical habitat, 
and prohibit any person from knowingly entering or remaining within 
this zone. This commenter noted that such a buffer would be consistent 
with rules already adopted by NMFS, citing, as examples, the minimum 
distance rules for humpback whales (Megaptera novaeangliae) in Hawaii 
(50 CFR 222.31) and the 5.5km (5500m) zone established around Steller 
sea lion rookeries and major haulouts in Alaska (50 CFR 226.12). The 
commenter further explained that right whale protective zones for the 
areas proposed to be designated as critical habitat in Cape Cod Bay and 
Stellwagen Bank would be consistent with existing Massachusetts 
regulations (322 CMR 12.00 et seq.), which implement a 500-yd buffer 
zone between right whales and vessels and prohibit activities of 
vessels that negatively impact right whales within Massachusetts 
waters. (Critical habitat for the northern right whale was designated 
by final rule published on June 3, 1994 (59 FR 28793).)
    In light of the petition and comments, NMFS is soliciting 
information from the public which confirms or rebuts the proposition 
that disturbance from directed vessel interaction, other than 
collisions, can cause harm to right whales that is detrimental to 
recovery of the species. Assuming disturbance from vessel interaction 
may be harmful, NMFS seeks suggestions of appropriate measures to 
minimize the harmful effects of directed vessel interactions on 
northern right whales, including possible exceptions and variations.

References

    Kraus, S.D. 1990. Rates and Potential Causes of Mortality in North 
Atlantic Right Whales. Mar. Mam. Sci. 6(4):278-291.
    Marine Mammal Commission. 1994. Annual Report of the Marine Mammal 
Commission, Calendar Year 1993. Report to Congress. 240 pp.
    National Marine Fisheries Service. 1991. Recovery Plan for the 
Northern Right Whale, Eubalaena glacialis. Prepared by the Right Whale 
Recovery Team for the National Marine Fisheries Service, Silver Spring, 
MD. 86pp.

    Dated: December 19, 1994.
Charles Karnella,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 94-31645 Filed 12-23-94; 8:45 am]
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