[Federal Register Volume 61, Number 153 (Wednesday, August 7, 1996)]
[Proposed Rules]
[Pages 41116-41123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20025]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 217 and 222

[Docket No. 960730211-6211-01; I.D. 072296B]
RIN 0648-AJ03


North Atlantic Right Whale Protection

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The northern right whale (Eubalaena glacialis) has been 
recognized as the world's most endangered large whale species. Recent 
mortalities off the Atlantic coast of the United States place the 
western Atlantic population of the northern right whale in an even more 
precarious position. Vessel interactions are identified as one of the 
major threats facing these whales, especially collisions with, and 
disturbances to whales. NMFS proposes to prohibit all approaches within 
500 yards (460 m), whether by vessel, aircraft or other means. The 
proposed rule would restrict head-on approaches to northern right 
whales, would prohibit any vessel maneuver that would intercept a 
northern right whale within 500 yards (460 m), and would require 
northern right whale avoidance measures under specified circumstances. 
Exceptions would be provided for emergency situations and where certain 
authorizations are provided.

DATES: Written comments must be received on or before November 5, 1996.

ADDRESSES: Comments on the proposed rule should be addressed to Chief, 
Marine Mammal Division, Office of Protected Resources (FPR), NMFS, 1315 
East-West Highway, Silver Spring, MD 20910. Comments regarding the 
burden-hour estimates or any other aspect of the collection of 
information requirements contained in this proposed rule should be sent 
to the above individual and to the Office of Information and Regulatory 
Affairs, OMB, Attention: NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Margot Bohan or Michael Payne, NMFS/
FPR, 301-713-2322; Doug Beach, NMFS/Northeast Regional Office, 508-281-
9254; or Kathy Wang, NMFS/Southeast Regional Office, 813-570-5312.

SUPPLEMENTARY INFORMATION:

Background

Species Description and Summary of Status

    The global population of right whales (Eubalaena spp.) is comprised 
of two separate species, the northern right whale located in the 
northern hemisphere, and the southern right whale (E. australis) in the 
southern hemisphere. Each species consists of several stocks or 
populations.
    The northern right whale is the large whale species most in danger 
of becoming extinct in the near future (The Final Recovery Plan for the 
Northern Right Whale, NMFS, 1991) (Recovery Plan). The Right Whale 
Recovery Team (Recovery Team) concluded in the Recovery Plan that the 
low numbers of this species in each population, and the apparently low 
population growth rates, stand in alarming contrast to other right 
whale populations in the southern hemisphere, as well as other large 
whale populations worldwide.
    In the Pacific, at least two populations of northern right whales 
are thought to occur. A 1973 estimate of the Pacific populations of the 
northern right whale, based on sighting data collected during the 
1960s, was 100-200 animals (Wada, 1973). However, the western Pacific 
population (found primarily in the Sea of Okhotsk) may comprise most of 
this estimate. In the eastern North Pacific only a few sightings of 
individual animals have occurred during the past several decades. 
Therefore, a reliable estimate of abundance for the eastern Pacific 
population of the northern right whale is currently not available 
(Small and DeMaster, 1995).
    In the North Atlantic, at least two populations of right whales, an 
eastern and a western population, also occur, or have occurred in the 
past. The eastern North Atlantic population may be nearly extinct. 
Between 1935-85, there were only 21 possible sightings, totaling 45 
individuals, and Brown (1986) considered only five of these sightings 
(seven individual whales) to be confirmed.

[[Page 41117]]

    The western Atlantic population of the northern right whale 
(hereafter ``right whale'' refers to this population unless otherwise 
stated) is the population that inhabits waters off the east coast of 
United States. The minimum population for the western North Atlantic 
population (based on known photo-identified individuals) was estimated 
to be 295 animals (See U.S. Atlantic and Gulf of Mexico Marine Mammal 
Stock Assessments, NMFS (1995), 60 FR 44308, August 25, 1995). In 
recent decades, the growth rate of this population may not be 
significantly different than zero.
    In the 12 months prior to this proposed rule, there have been 9 
confirmed right whale mortalities. Two known mortalities occurred in 
1995 in middle and late summer along the coastlines of Rhode Island and 
Canada. Seven mortalities were documented in the first three months of 
1996. Five, possibly six, right whale deaths occurred during January 
and February 1996, in the calving grounds off Georgia and northern 
Florida. These mortalities included one adult male, one adult female 
and three calves. Several carcasses were observed, but could not be 
retrieved for necropsy or identification. The most recent known right 
whale mortality occurred near Cape Cod, Massachusetts, May 1996. 
Because so few individuals are left in the population, these recent 
mortalities are a matter of extremely serious concern.

Distribution

    Like other baleen whales, right whales in the western Atlantic are 
migratory. The five primary habitats used by right whales during their 
annual migration, as described by Kenney, Winn and Macaulay (1994), 
include a spring/early summer feeding and nursery area for a majority 
of the population in the Great South Channel, a late winter/spring 
feeding and nursery area for a small portion of the population in Cape 
Cod Bay (CCB), a winter calving ground and nursery area in the coastal 
waters of the southeastern United States (SEUS), a summer/fall feeding 
and nursery area for some animals, including nearly all mother/calf 
pairs, in the lower Bay of Fundy, and a summer/fall feeding ground, 
with almost exclusively mature individuals, on the southern Nova 
Scotian shelf. On June 3, 1994, NMFS designated the first three areas 
as critical habitat for the northern right whale (59 FR 28793).
    Also, during 1996, aerial surveys were conducted in areas adjacent 
to, but offshore and south of, the SEUS. These flights were conducted 
because, during each of the two previous calving seasons, at least some 
of the right whales observed in the area within each season apparently 
moved out of the SEUS during mid-winter and their distribution was 
unknown during that period. Aerial flights also were conducted in 1996 
in response to reports of dead right whales in the waters east of the 
SEUS.
    During 1996, four surveys were flown offshore of the SEUS resulting 
in four sightings of right whales. These sightings included a group of 
four whales, another mother and calf pair, a dead whale, and a sighting 
for which the number of whales could not be documented. Additional 
surveys are planned for the winter of 1996-97 in an attempt to 
determine, and more precisely characterize, the offshore distribution 
of right whales during the winter season.

Human Interactions With Right Whales

    Human interactions with right whales are a very serious problem for 
right whales in the western North Atlantic. In particular, where human 
activities coincide with the distribution of right whales off the east 
coast of the United States, especially where vessel traffic and similar 
activities occur, there is the potential that right whales may be 
disturbed or their behavior otherwise altered, or that they may be 
injured or killed.
    Right whale behavior (i.e., resting at the surface, surface skim 
feeding, and surface courtship activity), and their slow swimming speed 
relative to other large whales, make the right whale particularly 
susceptible to close approaches and disturbances by humans. 
Additionally, due to their distribution in coastal waters with high 
levels of human activity, the western North Atlantic population of the 
right whale is particularly vulnerable to human interactions.
    With the exception of a few neonates, most known right whale deaths 
appear related to human activity. Incidents of human interactions with 
right whales are becoming more evident with increased efforts to 
retrieve carcasses and more extensive survey efforts. Collisions with 
ships and entrapment or entanglement with fishing gear are the primary 
human-induced causes of right whale mortalities and serious injuries. 
Ship strikes are a major cause of mortality, producing an estimated 
mortality rate of between 0.8 and 1.4 right whales per year (NMFS, 
1995).
    The Recovery Plan also recognizes that disturbance is another 
human-induced factor that may impede the recovery of the population in 
the western North Atlantic. It is known that disturbance by vessel 
activities can change behavior in other species of whales. Studies of 
baleen whales other than right whales, including the bowhead (Balaena 
mysticetus) and gray whales (Eschrichtius robustus), clearly document a 
pattern of short-term, behavioral disturbance in response to a variety 
of actual and simulated vessel activity and noise (Richardson et. al, 
1985; Malme et. al, 1983). Studies of bowhead whales revealed that 
these whales oriented themselves in relation to a vessel when the 
engine was on, and a significant avoidance response was invoked simply 
by turning the engine on, even at a distance of approximately 3,000 ft 
(900 m). Studies of humpback whales (Megaptera novaengliae) on their 
summering grounds, as summarized by Baker and Herman (1989) and on 
their wintering grounds, as summarized by Bauer (1986), found similar 
patterns of disturbance in response to vessel activity.
    Similarly, NMFS has recognized that approaches to marine mammals by 
aircraft below certain altitudes has the potential to harass marine 
mammals and has imposed restrictions on these types of approaches as 
conditions in various permits. Finally, although rare, deliberate 
approaches to whales and other marine mammals have occurred. Reports of 
people in close proximity to whales or other marine mammals include 
``buzzing'' incidents, where a person on a thrill craft (``jet ski'') 
or other watercraft deliberately approaches a marine mammal, swimming 
and scuba activities near marine mammals, touching or petting 
incidents, photography or video activities and similar types of 
reports. Obviously, such activities may involve the risk of disturbing 
or harassing marine mammals.
    Studies, observations and other information on the effects of 
disturbance on right whales are more limited and less conclusive than 
information concerning some other species, but the available evidence 
suggests that human-induced disturbance, such as by vessel activity, 
may change right whale behavior, displace cow/calf pairs, and break up 
food sources. Whether right whales react to disturbance depends both 
upon the type and level of the disturbance, and upon the behavior in 
which the right whales are engaged when the disturbance occurs.
    Low-level engine noise and minor vessel maneuvering may not induce 
a reaction from right whales (Watkins, 1986). If the disturbance is 
intense, however, right whales may be forced to dive to avoid impact or 
other perceived

[[Page 41118]]

threats, to temporarily leave an area or reroute their migratory path, 
to expend energy in avoidance behavior, or to otherwise alter their 
behavior.
    Courtship activities and surface skim-feeding are examples of 
behaviors where right whales generally appear unresponsive to low-level 
disturbance. In contrast, avoidance reactions to disturbance may be 
most significant for calves, or females with calves, animals that are 
the reproductive core of the population and essential for recovery. 
Vessel activity may displace a female with a calf from nearshore waters 
or interrupt nursing or similar behavior. Calves have been observed to 
exhibit avoidance behavior in response to the sound of vessels (NMFS, 
1991).
    In addition to disturbances caused by vessel movement or noise, 
vessels may affect right whales indirectly. For example, feeding 
behavior may be interrupted or affected as a result of a vessel 
breaking up dense surface zooplankton patches in certain feeding areas.
    Furthermore, while most studies and observations have focused on 
the short-term responses of whales to disturbance, long-term exposure 
to vessel traffic, to multiple vessels operating in close proximity, or 
to other close human contact may have a cumulative adverse impact on 
whale behavior.
    Significantly, if whales become habituated to vessels and related 
activity, they may become especially vulnerable to vessel collisions or 
other adverse impacts. Preliminary results of a right whale study that 
was based on a small data set indicated that both within 100 meters and 
at distances beyond 100 meters, right whales, at first, oriented 
themselves away from vessels, but subsequently, no deviation in 
behavior could be detected (CMC, 1988). Although these results should 
be used cautiously, it is possible that they indicate some degree of 
right whale habituation to vessels. Because of the resulting increased 
risk of vessel collision, this type of habituation may pose a more 
significant peril to whales than avoidance behavior.
    NMFS has concluded that the effects of vessel interactions and 
close approaches to right whales could have consequences that may be 
jeopardizing the continued existence and impeding the recovery of the 
population.

Summary of Vessel and Related Activities

    Vessel and aircraft activities occur off the east coast of the U.S. 
throughout the range of the right whale. These activities include 
recreational and commercial fishing vessels, commercial cargo and other 
commercial vessels, recreational boats, whalewatch boats, and military 
vessels. Aircraft, including fixed wing aircraft and helicopters, also 
fly throughout the range of the right whale.
    Following are some, but not necessarily all, of the vessel 
activities that occur in areas of high-use by right whales, including 
both critical habitat areas and certain waters adjacent to critical 
habitat areas (right whale high-use areas).
    In CCB, commercial vessel traffic associated with the Cape Cod 
Canal and the Boston Harbor traffic lanes, recreational boating, and 
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 right whale high-use areas.
    Recreational boating is largely a seasonal phenomenon increasing 
with the onset of warmer months, particularly in June. Commercial 
fishing vessels (primarily lobster fishing) and the placement of gear, 
generally begin their season in the middle of June. Whale-watching 
boats usually begin operations in late March or April, when whales 
first arrive to the area, and increase their activity with the onset of 
warmer weather and the tourist season. The whale-watching season 
typically ends by mid-October.
    In the southeastern United States, vessel traffic and fisheries are 
the major activities in, and adjacent to, the calving grounds. Major 
commercial shipping and military activity also occurs near or in the 
SEUS. Recreational boating traffic is also fairly extensive.
    Aircraft activity at altitudes that may affect or disturb right 
whales is thought to be concentrated in areas near population centers 
and to be limited primarily to private aircraft that are involved in 
deliberate approaches to whales.

Existing and Related Regulations and Guidelines

    State right whale approach restrictions: Massachusetts has 
implemented a 500 yard (460 m) buffer zone between right whales and 
vessels. Under Massachusetts' regulations it is unlawful for a vessel 
to approach within 500 yards (460 m) of a right whale; to turn in a 
manner to intercept a right whale within 600 yards (550 m) thereof; or 
not to depart immediately from the buffer zone if a right whale 
surfaces near the vessel. The regulations apply within the territorial 
and inland waters of the Commonwealth of Massachusetts and certain 
exceptions are provided (See 322 Code of Massachusetts Regulations, 
12.00 et seq.).
    Approach restrictions for humpback whales: NMFS has implemented 
approach restrictions similar to those proposed here to protect 
humpback whales in certain areas off Hawaii although those restrictions 
apply to approaches within 100 yards (90 m) rather than 500 yards (460 
m) of a whale (See 50 CFR 222.31).
    Similarly, the National Park Service prohibits the operation of any 
vessel within one-quarter of a nautical mile (460 m) of a humpback 
whale on navigable waters within Glacier Bay National Park. 
Instructions are provided on what actions to take if a vessel finds 
itself within this area and various exceptions are specified (See 36 
CFR 13.65).
    Whale-watching guidelines: Under present whale-watching guidelines 
issued by NMFS for the New England area, vessels conducting whale-
watching operations are directed to remain at least 100 ft (30 m) from 
all whales. In the area from 100 to 300 ft (30-90 m) of a whale, there 
may be no more than one boat and that boat must not operate in excess 
of idle speed and must avoid head-on approaches toward the whale. In 
the area between 300 and 600 ft (90-180 m) of a whale, there may be no 
more than three boats and those boats must avoid head-on approaches. 
The area between 600-1500 ft (180-460 m) of a whale is referred to as 
the ``whale awareness zone'' and boats in this zone must not change 
course or speed suddenly and must not use excessive speed.

Background to Proposed Rule

    Recommendations of the Recovery Team: As noted above, the Recovery 
Team concluded in the Recovery Plan that disturbance was among the 
principal human-induced factors impeding right whale recovery and 
recommended that regulations be promulgated that: (1) Establish minimum 
approach distances for the northern right whale, (2) require a vessel 
to maintain speed and direction should a northern right whale surface 
within this minimum approach distance, and (3) prohibit a vessel from 
approaching a northern right whale or turning in any manner to 
intercept a whale.
    This proposed rule addresses the recommendations of the Recovery 
Team by proposing to prohibit close approaches to right whales by 
vessels or other means.
    Petition for rulemaking: On October 5, 1994, NMFS received a 
petition from GreenWorld, Inc., requesting that NMFS issue regulations 
establishing a 500-yard

[[Page 41119]]

(460-m) radius protection zone around every right whale and, citing the 
similarity of appearance provision of section 4(e) of the Endangered 
Species Act (ESA), 16 U.S.C. 1533(e), a 100-yard (90-m) radius 
protection zone around all other whales. The petition also asked that 
any approach closer than 500 yards (460 m) (or 100 yards (90 m) for 
every other whale species) be considered an incidental take under the 
ESA.
    This proposed rule addresses the GreenWorld request by proposing to 
prohibit approaches within 500 yards (460 m) of right whales although 
NMFS does not propose to use the similarity of appearance provision, 
nor does it propose that close approaches should be considered an 
incidental take although certain approaches to right whales would be 
prohibited by regulation. Likewise, NMFS is not proposing to restrict 
approaches to whale species other than the right whale. NMFS has 
considered similar proposals in the past. On August 3, 1992, NMFS 
published a proposed rule of general applicability to protect whales, 
dolphins and porpoise from activities associated with whale watching 
and to establish minimum approach distances (See 57 FR 34101). That 
proposal was withdrawn on March 29, 1993, in part, because it was 
viewed as being too broad in scope (See 58 FR 16519). At that time, 
NMFS began an initiative to concentrate initial efforts on marine 
mammal approach problems on a more species-specific and region-specific 
basis. This proposed rule is a part of that initiative.
    Comments on other rulemaking: Following publication of the proposed 
rule to designate critical habitat for the northern right whale (58 FR 
29186, May 19, 1993), NMFS received several comments in support of a 
``distance buffer'' that would be established around northern right 
whales. One commenter recommended that approach restrictions for all 
vessels around right whales be established and suggested a distance of 
100 m to 300 m. A second commenter recommended that NMFS establish 
around every right whale, in any area designated as critical habitat, a 
500 m 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 be consistent with similar 
rules that have already been adopted by NMFS and the State of 
Massachusetts.
    In the final rule designating critical habitat, NMFS responded to 
those comments (59 FR 28793, June 3, 1994) stating that, in both cases, 
the purpose of the buffer zones would be to ensure that vessels were 
kept far enough away from right whales, so that the animals would not 
be disturbed and would not be in danger of collision with a vessel, in 
as much as possible, throughout their range. Critical habitat 
designations reflect the identification of specific geographical areas 
containing physical or biological features essential to the 
conservation of the species, and NMFS determined that, while 
recognizing that the area around each right whale is important, it is 
not appropriate for a critical habitat designation.
    At that time, NMFS stated that buffer zones around right whales 
should be established through separate rulemaking, similar to the 
special prohibitions for humpback whales in Hawaii (See 59 FR 28800, 
June 3, 1994). This proposed rule constitutes part of that separate 
rulemaking process.
    Advance notice of proposed rulemaking (ANPR): On December 27, 1994, 
NMFS published an ANPR concerning the establishment of protection zones 
around right whales (59 FR 66513). The ANPR was initiated in response 
to the recommendations of the Recovery Team, to the petition, and to 
other comments received. The ANPR requested comments on the petition 
and the need for and types of conservation measures that would be 
effective in minimizing human-induced interactions with northern right 
whales. In response to several requests, the comment period for the 
ANPR was extended until April 3, 1995 (60 FR 11951, March 3, 1995).
    Numerous comments on the ANPR were received. Comments were 
submitted by environmental groups, state and local government 
spokespersons, representatives of industry and private citizens. 
Comments were mixed in their support for and opposition to the 
implementation of right whale conservation measures. These comments 
were considered in the preparation of this proposed rule.

Description of Proposed Regulatory Measures

    Summary of the proposed rule: There is good reason to believe that 
if the full range of human impacts specified by the Recovery Team were 
reduced, the chance for species recovery would be maximized. In order 
to minimize the risk that human activities will disturb or cause other 
behavioral changes in right whales and to reduce the risk of vessel 
collisions and other interactions with right whales, NMFS proposes:
    (1) To prohibit or limit certain activities that may affect right 
whales, especially activities within 500 yards (460 m) of a right 
whale. Except under very limited circumstances, all approaches within 
500 yards (460 m) would be prohibited, whether by vessel, aircraft or 
other means. NMFS proposes to use the definition of ``vessel'' found in 
the International Regulations for Preventing Collisions at Sea, 1972 
(COLREGS) (see 33 CFR Part 81 App. A, Part A, Rule 3) and in the Inland 
Navigation Rules (see 33 U.S.C. 2003), which includes surfboards, 
thrill craft or ``jet skis,'' and all other types of water craft used 
or capable of being used for transportation.
    (2) To prohibit head-on approaches to a right whale from any 
distance once a right whale is sighted by an operator exercising due 
diligence and once the operator has had time to alter the heading of 
the vessel or craft accordingly.
    (3) To prohibit the positioning of a vessel in the path of a right 
whale.
    (4) To require right whale avoidance measures.
    Right whale avoidance measures would be those actions necessary to 
avoid takings prohibited under the MMPA or the ESA, actions necessary 
to comply with instructions from NMFS, the U.S. Coast Guard and other 
agencies concerning the avoidance of right whales and, if a person, 
aircraft, vessel or other object is within 500 yards (460 m) of a right 
whale, certain steps to increase the person or object's distance from 
the whale.
    The proposed rule provides specific guidance concerning how to 
increase one's distance from a right whale: (1) Sudden changes in 
operation are to be avoided unless necessary to avoid striking or 
injuring a right whale or for safe vessel or aircraft operation, (2) if 
one is already moving away from a right whale, approximately the same 
speed and direction should be maintained, (3) if one is moving toward a 
right whale, expeditious efforts should be made to reduce speed and to 
change direction away from the whale, (4) if one is approached by a 
whale, the person or object should move slowly but deliberately and 
steadily away from the whale. These requirements are not applicable 
under certain circumstances such as when a vessel is not underway.
    Finally, the proposed rule contains an exception for emergency 
situations where there is a threat to the safety, health or life of a 
person, a significant threat to a vessel or aircraft, or a threat to 
the safety, health or life of a right whale, and an exception for 
approaches to or activity in the proximity of right whales specifically 
authorized in a scientific research permit, an incidental take 
statement, incidental take permit or similar authorization issued by 
NMFS. Issues considered and the applicability

[[Page 41120]]

of proposed measures to specific situations.
    The size of the buffer zone: In preparing this proposed rule NMFS 
considered a variety of options. In particular, various alternatives 
were considered before proposing the 500-yard (460-m) buffer area 
around right whales. The status quo was considered inappropriate given 
the status of these critically endangered whales. Likewise, there was 
concern that a 100-yard (90-m) zone might not be large enough to 
conserve right whales although it was recognized that evidence of 
harassment or behavioral changes induced by disturbances beyond this 
distance was sketchy.
    Generally, NMFS wanted to maximize the area of protection around 
right whales to avoid any potential for disturbance or behavioral 
changes and to reduce, if possible, the risk of collision. While NMFS 
considered a 1000-yard (920-m) buffer zone, NMFS concluded that right 
whales could not be identified at that distance and that a 500-yard 
(460-m) no-approach area would be the most appropriate.
    Situations where the identification of the whale species is 
uncertain: In some situations it may be difficult for a person to 
differentiate between a northern right whale and another species of 
large whale at a distance of 500 yards (460 m) although the Recovery 
Team indicated that persons with knowledge or training could identify 
right whales at this distance.
    Thus, in order to ensure compliance with the mandates concerning 
right whales in the proposed rule, a person would be expected to avoid 
close approaches to all large whales that cannot be identified as to 
species in waters along the east coast of the United States, especially 
in right whale high-use areas when those whales are expected to be 
present.
    NMFS has concluded that a 500-yard (460-m) buffer zone would allow 
people to observe right whales (and other large whales if they are 
unable to identify the species with certainty) while providing a 
measure of protection and safety for these animals consistent with 
sound management practices and the recommendations of the Recovery 
Team.
    Applicability to various approach activities: The proposed rule 
would apply broadly to approaches by vessels, aircraft or other means. 
NMFS recognizes that many small vessels, vessels travelling at very 
slow speeds, swimmers, aircraft and certain other types of close-
approaches have little or no potential to cause serious injury to right 
whales; nonetheless, such approaches would be prohibited. First, close 
human contact has the potential to disturb or harass a right whale even 
if it does not result in injury. For example, if right whales become 
habituated to small vessels or vessels operating at slow speeds and 
fail to dive and orient themselves away from vessels, then they may 
become more vulnerable to larger vessels or vessels travelling at 
higher speeds. Next, while not currently a serious problem, NMFS wants 
to discourage potential activities such as airplane or helicopter 
whale-watching operations or other activities that could disturb or 
cause behavioral changes in right whales. Finally, a 500-yard (460-m) 
no-approach prohibition is much easier for the public to understand and 
easier to enforce than the more general prohibition on harassment. NMFS 
has concluded that this type of regulation will minimize risks and 
potential risks and would be justified given the precarious status of 
right whales .
    Applicability of proposed rule to whale-watching operations: Right 
whales are the object of commercial whale-watching activities primarily 
in two areas: CCB in the late spring (mid-March through mid-May), and 
the lower Bay of Fundy in the late summer and fall. As stated earlier, 
the Recovery Plan recommends that regulations be promulgated limiting 
close approaches to right whales, including approaches by whale-
watching vessels. Generally, whale-watching operations focus on several 
other large baleen whales, notably the humpback whale and the finback 
whale (Balaenoptera physalus). However, during early spring, or during 
those few years when right whales are the only large whale species 
available for viewing (1986 on Stellwagen Bank was the exceptional year 
for right whales), several whale-watching vessels may remain around 
right whales throughout the day or over a period of several days or 
even weeks.
    It should be emphasized that this rule would apply only to vessel-
approaches near right whales. Vessels operators conducting whale-
watching activities in Massachusetts waters already are subject to the 
500-yard (460-m) right whale buffer zone created by Commonwealth law. 
This proposed rule is designed to be compatible with that law.
    Whale-watching vessels are not thought to present any significant 
risk of serious collision with right whales because an intense lookout 
for whales is usually maintained on these vessels and because of the 
way such vessels are handled. Compliance with whale-watching guidelines 
generally has been very good. On the other hand, the possibility of 
disturbances caused by vessels and the risk that right whales may 
become acclimated to vessel activity, as described above, does exist.
    Even if current levels of whale-watching activity do not present a 
major or immediate direct threat to right whales, NMFS is concerned 
about human-induced changes to right whale behavior resulting from 
existing operations as well as potential future developments in this 
industry. Likewise, NMFS is concerned that related activities, such as 
aircraft whale-watching rides, could occur. NMFS wants to ensure that 
such activities do not develop and that the public recognizes that 
close encounters with right whales should be avoided under all 
circumstances.
    Vessel approaching a right whale versus a right whale approaching a 
vessel: A vessel would not necessarily be in violation of the proposed 
regulation merely by being inside the proscribed 500-yard (450-m) area 
unless there is evidence that the vessel approached the right whale or 
that the vessel was turned, maneuvered or positioned in a manner 
designed to intercept a right whale. Rather, if a vessel is approached 
by a right whale or if a right whale surfaces near a vessel, the vessel 
would be required to undertake required right whale avoidance measures 
promptly. If a vessel remained within the proscribed area and failed to 
undertake the required avoidance measures, the owner or operator would 
be in violation of the proposed rule.
    Deliberate versus unintentional approaches: Approaches to right 
whales, whether deliberate or unintended, present the potential serious 
problems described above. Disturbance of right whales may be more 
likely when approaches are intentional because such contact may be 
closer in proximity, more prolonged, or more intense. On the other 
hand, ship strikes and serious injuries and mortalities may be more 
likely to result from accidental approaches.
    While intentional misconduct sometimes is considered especially 
culpable, it is important to note that the prohibitions on takings 
imposed under the MMPA and the ESA are not limited to intentional 
takings but also include unintentional or incidental takings as well. 
Similarly, regulations prohibiting approaches to humpback whales off 
Hawaii apply to unintentional as well as intentional approaches. In 
some cases, it may be appropriate to use enforcement discretion in 
deciding whether to bring an enforcement action against someone who 
accidentally approaches a whale,

[[Page 41121]]

but because of the risk that unintentional approaches may cause the 
injury or mortality of a right whale, such approaches would be 
prohibited under this proposed rule and all persons who are concerned 
about their responsibility for unintentional approaches are urged to 
use extra caution. Experience in Hawaii suggests that problems 
understanding, interpreting and enforcing the approach prohibition may 
be relatively minor.
    Vessels at anchor or mooring: The proposed rule would not apply to 
anchored vessels. A vessel at anchor can not approach a right whale, 
and the proposed rule specifically states that whale avoidance measures 
are not applicable to vessels that are not underway, that is, vessels 
that are anchored, made fast to the shore, or aground.
    In addition, it is unlikely that the proposed rule would prevent 
access to safe anchorages or harbors since, in most circumstances, a 
vessel still would have room to maneuver and approach the harbour or 
anchorage even if a right whale was in the vicinity.
    Applicability of proposed rule to research and fishing operations: 
While the proposed rule would apply to all vessels, it is not expected 
to interfere unreasonably with research or fishing operations. Research 
on northern right whales for which a permit is issued under the ESA or 
MMPA would be exempt from the proposed rule. With respect to other 
types of research, researchers would be encouraged to use areas where, 
or seasons when, right whales are unlikely to be present, or would need 
to contact NMFS to explore ways to conduct the research without adverse 
impacts on right whales.
    Fishing operations normally are conducted at vessel speeds that do 
not pose a significant threat to right whales and, as a result, the 
vessel operator is expected to have time to take action to avoid 
approaches to right whales that would be prohibited by this proposed 
rule. Nevertheless, certain operations, such as hauling back a tow, can 
limit a vessel's maneuverability. Such operations should not be 
initiated if a right whale is sighted, and certainly should not begin 
if the right whale is within or almost within 500 yards (460 m) of the 
vessel.
    If haulback operations are initiated and a right whale subsequently 
approaches the vessel, under most circumstances, the haulback should be 
completed because of safety concerns and requirements for safe vessel 
operation. By statute, the vessel must take all reasonable actions in 
order to avoid violating the ESA and MMPA prohibitions on ``takes.'' 
Once the operation is completed or maneuverability is again 
unrestricted, the vessel should move slowly but deliberately and 
steadily in a direction away from the right whale in accordance with 
the right whale avoidance measures.
    Maintaining a lookout and exercising due diligence: Currently, 
vessel operators are required by COLREGS, Rule 5 (See 33 CFR Part 81 
App. A, Part B, Section 1, Rule 5) and by Rule 5 of the Inland 
Navigation Rules (33 U.S.C. 2005) to maintain a proper lookout. That 
lookout should use all available means appropriate under the 
circumstances to watch for whales, especially right whales. If the 
vessel is in an area (and time) where right whales are known to occur, 
or may be expected to occur, additional care is required. If vessel 
operators do not maintain an adequate whale lookout or fail to exercise 
due diligence, ship strikes of northern right whales, while unintended, 
are likely to continue to occur.
    NMFS is cooperating with the U.S. Coast Guard, several port 
authorities, the U.S. Navy, state agencies and other parties to 
increase knowledge and awareness of the location of northern right 
whales generally as well as the location of specific right whales in 
shipping lanes or in areas with a high concentration of shipping. This 
proposed rule would require vessel operators to exercise due diligence 
to avoid head-on approaches to right whales. Similarly, vessel 
operators would be required to comply with instructions received from 
NMFS, the U.S. Coast Guard, the U.S. Navy, or port authorities 
concerning measures necessary to avoid approaches to right whales.
    Appropriate speed: In order to avoid prohibited approaches to right 
whales, it may be necessary for certain vessels, especially large 
ships, to reduce speed. Currently, vessel operators are required by 
COLREGS, Rule 6, to proceed at safe speed so that the vessel can take 
proper and effective action to avoid collision and ``be stopped within 
a distance appropriate to the prevailing circumstances and conditions'' 
(72 COLREGS, see 33 CFR Part 81 App. A, Part B, Section 1, Rule 6). An 
identical requirement is imposed under the Inland Navigational Rules, 
33 USC 2006.
    Under circumstances where right whales are known to occur, or may 
be expected to be in the area where a vessel is operating, a ``distance 
appropriate to the prevailing circumstances'' would be at least 500 
yards (460 m) from a right whale.
    Vessels restricted in their ability to maneuver or in certain 
areas: NMFS recognizes that special circumstances sometimes restrict a 
vessel in its ability to maneuver, that a vessel is sometimes 
constrained by its draft, and that often there is a need to stay within 
shipping lanes or within designated channels. While right whales may 
avoid some channels, port areas, traffic routes and shallow water 
areas, clearly, collisions with right whales can occur in these places. 
In fact, collisions with whales may be more likely in areas or under 
circumstances of limited maneuverability and in these situations it is 
particularly important to avoid approaches within 500 yards (460 m) of 
a right whale.
    In order to avoid prohibited approaches to right whales in these 
situations, extra caution including additional efforts to maintain a 
lookout or additional reductions in speed may be necessary.
    If a right whale is positively identified and observed near a port, 
in a channel, in an established shipping lane, or in others areas with 
a high concentration of shipping activity, a vessel operator should 
report the sighting to the U.S. Coast Guard or the appropriate port 
authority, and request assistance, if appropriate. Knowledge of the 
location of right whales may help prevent potential collisions and 
allow vessels to implement appropriate whale avoidance measures.
    Likewise, where the presence of a right whale would inhibit the 
entry of a large ship into a port or otherwise interfere with vessel 
operations, a vessel operator should contact the U.S. Coast Guard or 
port authority for assistance or instruction.
    Aircraft: Approaches by aircraft below certain altitudes have been 
recognized by NMFS to have the potential to harass marine mammals. The 
proposed rule would prohibit an aircraft from approaching or circling 
over a right whale at an altitude below 1500 ft (460 m). NMFS has 
imposed restrictions on low altitude approaches to certain marine 
mammals as a condition on various permits. In most cases, however, the 
specified altitude is between 500-1000 ft (150-310 m). Given the 
precarious status of right whales, NMFS is proposing an altitude 
restriction that will minimize the possibility of the disturbance of 
these whales .
    NMFS recognizes that there may be some commercial and military use 
of air space in certain areas where right whales may occur and solicits 
comments on the feasibility of this proposed restriction in those 
areas.

[[Page 41122]]

    Jurisdictional applicability: The proposed rule would apply to all 
persons, vessels and aircraft subject to the jurisdiction of the United 
States. The proposed rule also would state clearly NMFS' interpretation 
of U.S. jurisdiction within the territorial sea and the U.S. exclusive 
economic zone (EEZ).
    The proposed rule includes a definition of the term ``territorial 
sea.'' In 1988 the President issued a proclamation extending the 
breadth of the territorial sea for international purposes from three 
miles to twelve miles from the baseline. Whether this proclamation has 
an effect on a particular Federal statute depends upon whether the 
statute uses the term ``territorial sea'' in an international sense, 
i.e., linked to the extent of the territorial sea for international 
purposes, or in a domestic sense. Sections 9 and 10 of the ESA use the 
term ``territorial sea'' to denote U.S. territorial sovereignty in 
contrast to the ``high seas.'' These terms in the ESA appear in the 
original law, Pub. L. 93-205 (1973), before the establishment of the 
EEZ. Consequently ``territorial sea'' is used in the ESA in the 
international sense and would be defined by this rule as extending 12 
miles from the baseline. This proposed definition is consistent with 
the findings, purposes and policies of the ESA, including that of 
utilizing all Federal authorities to meet the commitment of United 
States for the protection of endangered species and threatened species.
    In the area outside the territorial sea but within the EEZ, the 
United States exercises jurisdiction with respect to certain marine 
resources such as marine mammals (See Section 3(14)(B) of the MMPA and 
Pub. L. 94-265, Sec. 404(a)). Beyond the EEZ, U.S. jurisdiction is 
based other factors such as U.S. citizenship or the fact that a vessel 
is operating as a U.S. flag vessel. Under the proposed rule, NMFS would 
utilize its full jurisdictional authority to protect right whales.

Classification

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration as follows:

    I certify that the attached proposed rule to be issued under 50 
CFR part 222, if adopted, would not have a significant economic 
impact on a substantial number of small entities. The proposed rule 
would establish protective measures to reduce human-induced 
disturbance and the potential for injury or mortality to the 
Northern Right whale throughout its western North Atlantic range.
    If adopted, the proposed rule may have a minor impact on whale-
watching activities, perhaps especially in the early spring when 
right whales, but not other whale species, are likely to be in the 
area where these activities occur. This change would not be expected 
to affect most operations off the coast of Massachusetts since State 
regulations very similar to this proposed rule already are in effect 
within State waters. Whale-watching operations in other areas of New 
England, consisting of only a few vessels, may need to delay 
operations until later in the spring when other species of whales 
are available for watching if restrictions on approaches to right 
whales are implemented. The cost of delaying operations for a few 
weeks, with respect to expected revenues, is not considered 
significant.
    Similarly, if adopted, the proposed rule may have a minor impact 
on commercial shipping and other vessel activities, perhaps 
especially in areas where and at times when right whales are know or 
expected to be present. In those areas and at those times, vessels 
may need to maintain an extra vigilant lookout and reduce speed in 
order to avoid approaches to right whales. In most situations, such 
caution would be appropriate under current law in order to avoid the 
risk of taking a right whale. Any change in operations and the costs 
associated with that change that would result from the 
implementation of the proposed rule is not considered significant 
when compared to expected revenues. Exceptions are provided for 
emergency situations and where approaches are authorized.

Because of this certification, a regulatory flexibility analysis was 
not prepared.
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    This proposed rule contains a new, but minor, collection-of-
information requirement subject to the Paperwork Reduction Act. Persons 
operating vessels and involved in certain other activities may need to 
contact NMFS, the U.S. Coast Guard or other agencies, usually by VHF 
radio, to explain that an emergency situation exists or to respond to 
instructions concerning how to avoid right whales. This proposed rule 
is being submitted to the Office of Management and Budget (OMB) for 
review and approval. The average reporting burden is estimated to be 
0.25 hrs (15 minutes per call) for each radio contact or similar type 
of report with an estimate of 30 reported sightings per year. This 
would equal a total of 7.5 hrs of reporting annually. An increased 
number of sightings would result in a linear increase in the total 
hours. Send comments regarding these reporting burden estimates or any 
other aspect of the collections of information, including suggestions 
for reducing the burdens, to NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB Control Number.
    The Assistant Administrator for Fisheries, NOAA, is preparing an 
environmental assessment (EA) under the National Environmental Policy 
Act for these proposed regulations and is expected to complete that EA 
shortly. When the EA is completed a notice will be placed in the 
Federal Register announcing that it is available.

List of Subjects

50 CFR Part 217

    Endangered and threatened species, Exports, Fish, Imports, Marine 
mammals, Transportation.

50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: August 1, 1996.
C. Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
    For the reasons set forth out in the preamble, 50 CFR part 217 and 
part 222 are proposed to be amended as follows:

PART 217--GENERAL PROVISIONS

    1. The authority citation for part 217 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1544; and 16 U.S.C. 742a et seq.; 
unless otherwise noted.

    2. In section 217.12, the definitions of ``Territorial sea'', 
``Underway'', and ``Vessel'' are added in alphabetical order to read as 
follows:


Sec. 217.12  Definitions.

* * * * *
    Territorial sea means the 12-nautical mile (22 km) maritime zone 
set forth in Presidential Proclamation 5928, dated December 27, 1988 (3 
CFR, 1988 Comp., p. 547).
* * * * *
    Underway, with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
* * * * *
    Vessel includes every description of watercraft, including 
nondisplacement craft and seaplanes, used or capable of being used as a 
means of transportation on water.
* * * * *

[[Page 41123]]

PART 222--ENDANGERED FISH OR WILDLIFE

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

    Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under 
16 U.S.C. 1361 et seq.

Subpart D--Special Prohibitions

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


Sec. 222.32  Approaching northern right whales.

    (a) Definitions. As used in this section:
    (1) To approach head-on means to move directly toward a whale, to 
move on a path that is within 30 degrees of a line directly toward a 
whale, or to move on a path that will intercept or is likely to 
intercept a whale.
    (2) Right whale means any whale that is a member of the western 
North Atlantic population of the northern right whale (Eubalaena 
glacialis).
    (b) Prohibitions. Except as authorized under paragraph (d) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, attempt to commit, to solicit another to 
commit, or cause to be committed any of the following acts with respect 
to any right whale:
    (1) Operate an aircraft within 1,500 feet (460 m) of a right whale;
    (2) Cause a vessel or other object to approach within 500 yards 
(460 m) of a right whale;
    (3) Approach by any means within 500 yards (460 m) of a right 
whale;
    (4) Cause a vessel to approach a right whale head-on from any 
distance once the right whale is observed or should be observed by the 
operator of a vessel using due diligence, and once there has been time 
to alter the heading of the vessel consistent with safe vessel 
operation procedures;
    (5) Cause a vessel to be turned, positioned, or maneuvered in a 
manner to intercept a right whale; or
    (6) Fail to undertake required right whale avoidance measures.
    (c) Right whale avoidance measures. Right whale avoidance are all 
actions necessary to avoid any taking of a right whale, as prohibited 
under Marine Mammal Protection Act, 16 U.S.C. 1361 et seq. or the ESA; 
all actions necessary to comply with instructions from NMFS, the U.S. 
Coast Guard, the U.S. Navy, or a port authority concerning the 
avoidance of right whales; and, unless inconsistent with these actions, 
if a person, vessel, aircraft or other object is within 500 yards (460 
m) of a right whale, appropriate steps to increase that person or 
object's distance from the right whale as follows:
    (1) Sudden changes in operation. Sudden changes in direction or 
speed, including sudden efforts to stop or reverse direction, sudden 
changes in engine speed, use of bow thrusters, sudden changes in 
propeller pitch, or other actions that may disturb or harass a right 
whale must be avoided unless such action is necessary for safety 
reasons or, if applicable, is necessary for safe aircraft or vessel 
operation.
    (2) Consistent speed and direction. If a person, aircraft, vessel 
or other object is moving away from a right whale, a constant or 
approximately constant speed and direction must be maintained.
    (3) Changing speed and direction. If a person, aircraft, vessel or 
other object is moving toward a right whale, expeditious efforts must 
be made to change direction away from the right whale and to reduce 
speed or to shift the motor of a motor vessel into neutral. Once the 
person, aircraft, vessel or other object is headed away from the right 
whale or has stopped or reduced speed to a minimum, efforts must be 
made to move slowly but deliberately and steadily in a direction away 
from the right whale.
    (4) Moving away from a northern right whale. If a person is 
floating or moving slowly in the water, if a helicopter or other 
aircraft is hovering or moving very slowly, or if a vessel is underway 
but stationary or operating at very slow speeds and if that person, 
aircraft or vessel has been or is being approached by a right whale, 
efforts must be made to move slowly but deliberately and steadily in a 
direction away from the right whale.
    (5) Vessels or aircraft restricted in ability to maneuver. If a 
vessel is restricted in its ability to maneuver and because of those 
limitations cannot comply with paragraphs (c)(1) through (c)(4) of this 
section, and undertakes reasonable efforts to maximize distance from 
and avoid interactions with the right whale, then aircraft or vessel 
operations may continue notwithstanding the fact that a northern right 
whale is within 500 yards (460 m).
    (6) Vessels or aircraft not underway or in operation. Paragraphs 
(c)(1) through (c)(5) of this section do not apply to a vessel that is 
not underway or to an aircraft that is not in operation including a 
seaplane that is not underway or any aircraft that is on shore or 
onboard a vessel.
    (d) Exceptions. The prohibitions specified under paragraph (b) of 
this section do not apply to:
    (1) An activity authorized in a permit issued under subpart C 
(Endangered Fish or Wildlife Permits) of this part or to an activity 
specifically authorized by NMFS in an incidental take statement, 
incidental take permit or similar authorization; or
    (2) Emergency situations where compliance with those prohibitions 
would present a threat to the safety, health or life of a person, would 
present a significant threat to a vessel or aircraft, or would pose a 
threat to the safety, health or life of a right whale. A person who 
claims this type of exception has the burden to prove that the 
exception is applicable. If possible and if appropriate under the 
circumstance, a person in an emergency situation should contact by 
telephone or radio communication NMFS, the U.S. Coast Guard, local port 
authority, or local law enforcement officials and describe the 
circumstances surrounding the emergency situation.

[FR Doc. 96-20025 Filed 8-1-96; 4:32 pm]
BILLING CODE 3510-22-P