[Federal Register Volume 62, Number 30 (Thursday, February 13, 1997)]
[Rules and Regulations]
[Pages 6729-6738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3632]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 217 and 222
[Docket No. 960730211-7020-02; I.D. 072296B]
RIN 0648-AJ03
North Atlantic Right Whale Protection
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule.
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SUMMARY: Disturbance is identified in the Final Recovery Plan for the
Northern Right Whale (Recovery Plan) as among the principal human-
induced factors impeding recovery of the northern right whale
(Eubalaena glacialis) (NMFS, 1991). NMFS is issuing this interim final
rule to restrict approaches within 500 yards (460 m) of a right whale,
whether by vessel, aircraft or other means, in an attempt to reduce the
current level of disturbance and the potential for vessel interaction
and injury. This rule requires right whale avoidance measures if a
vessel or aircraft is within the 500-yard (460 m) restricted area.
Generally, vessels are required to immediately depart from the area at
a slow, safe speed in a direction away from the whale. Exceptions are
provided for emergency situations, where certain authorizations are
provided for aircraft operations (unless the aircraft is conducting
whale watch activities), for certain right whale disentanglement/rescue
efforts and investigations, and for a vessel restricted in its ability
to maneuver and unable to comply with the right whale avoidance
measures.
EFFECTIVE DATE: March 17, 1997.
FOR FURTHER INFORMATION CONTACT: Margot Bohan, NMFS/FPR, 301-713-2322;
Doug Beach, NMFS/Northeast Regional Office, 508-281-9254; or
[[Page 6730]]
Kathy Wang, NMFS/Southeast Regional Office, 813-570-5312.
SUPPLEMENTARY INFORMATION:
Background
The northern right whale is recognized as the world's most
endangered large whale species. Recent mortalities off the Atlantic
coast of the United States have caused escalating concern for the
western North Atlantic population, especially with regard to the
population's vulnerability to human interaction.
The preamble to the proposed rule discussed the critically
endangered status of the western North Atlantic population of the
northern right whale (right whale), the distribution pattern of these
whales near the east coast of the United States, and the existence of
vessel and related human activities in these areas that pose a
significant risk to right whales. In particular, where human activities
coincide with the distribution of right whales off the coast of the
United States, such as vessel traffic, there is the potential that
right whales may be disturbed or have their behavior altered,
conceivably being injured or killed as a result. (For a more complete
discussion of these issues, see the preamble to the proposed rule (61
FR 41116, August 7, 1996) and the environmental assessment).
Since the proposed rule was issued, additional information has
become available concerning the right whale population. Another right
whale mortality was observed in early January 1997. A neonatal male
calf was found stranded on Flagler Beach, FL; reports from a
preliminary examination suggest that the whale may have died from birth
trauma or other natural causes. Thus, since 1995, there have been 14,
possibly 15, known serious injuries and/or mortalities of right whales
off the Atlantic coast (5 due to entanglement, 3 due to ship strikes, 5
due to unknown or natural causes, and 1 death in 1996 due to ship
strike of a whale injured by an entanglement in 1995). Furthermore, in
early 1996, an increase in estimated mortalities was reported for the
years 1994 and 1995. However, a preliminary analysis of right whale
photo-identification data suggests that total right whale mortality
cannot be estimated reliably because of a shift in photo-identification
sighting efforts (Hain, et al., 1996 (in draft)). Significant
uncertainties remain concerning the current population status and
trends. Regardless of the uncertainties, the precarious state of the
right whale population strongly suggests that human activity, which
results in disturbance, and, thus, an increased potential for injury
and mortality, may have a greater impact on population growth rates and
trends relative to other whale species.
This rule is issued as an interim final rule to allow NMFS and
state coastal management agencies to consider more fully whether this
rule will affect approved Coastal Zone Management Programs in states
along the east coast. NMFS determined that the proposed rule, if
implemented would be consistent to the maximum extent practicable with
federally-approved coastal zone management programs, pursuant to the
Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et
seq., but through an oversight, the proposed rule was never sent to the
responsible state agencies for review. NMFS has issued a similar
determination with respect to this interim final rule and has requested
the responsible state agencies to expedite their review.
In addition, other agencies have objected to the issuance of any
regulatory definition for the ``territorial sea,'' as this term is used
under the Endangered Species Act (ESA) and associated regulations. NMFS
is not issuing such a definition in this interim final rule in order to
have additional time to consult with other Federal agencies; this issue
will be resolved prior to issuing a final rule.
The authority for the interim final regulation restricting
approaches to right whales is pursuant to both the ESA and the Marine
Mammal Protection Act (MMPA), as was proposed. NMFS has concluded that
this regulation is an appropriate mechanism to carry out the purposes
of the MMPA. Likewise, the rule is an appropriate mechanism to promote
conservation, to implement recovery measures, and to enhance
enforcement under the ESA. Section 11(f) of the ESA provides the
Secretary of Commerce with broad rulemaking authority to enforce the
provisions of the ESA. For example, given the potential that close
approaches to right whales could harm, harass, injure or otherwise
``take'' a right whale, this interim final rule is issued to more fully
implement the protections established under section 9(a) of the ESA. In
addition, NMFS is required to develop and implement recovery plans
under section 4(f) of the ESA and the Recovery Plan notes that
disturbance and vessel interactions should be reduced. Lastly, all
Federal agencies have an obligation under ESA section 7(a)(1) to use
their authorities to further the purposes of the ESA to conserve
species.
Changes From the Proposed Rule
On August 7, 1996, NMFS published a proposed rule to prohibit all
approaches within 500 yards (460 m) of a right whale, whether by
vessel, aircraft or other means. NMFS also proposed to restrict head-on
approaches, to prohibit any vessel maneuver that would intercept a
right whale, and to require right whale avoidance measures under
specified circumstances. Exceptions were proposed for emergency
situations and where certain authorizations were provided.
This interim final rule differs from the proposed rule in several
important respects, and modifications were made for various reasons
discussed below. First, NMFS endeavored to simplify and clarify the
regulatory language of the rule. Second, changes were made to enhance
the enforceability of the rule. Third, changes were made in response to
comments received during the 90-day comment period for the proposed
rule. Changes to the proposed rule include the following:
Definitions
The definition of ``right whale'' is added to the definitions
section in 50 CFR part 217, instead of 50 CFR part 222. The substance
and applicability of the definition is unchanged.
The interim final rule also adds a definition for ``vessel
restricted in her ability to maneuver'' that refers to the definition
in Rule 3 of the Inland Navigation Rules (33 U.S.C. 2003). A similar
definition is used in the COLREGS Rule 3 (See 33 CFR Part 81 App. A,
Part A, Rule 3).
Head-on Approaches
The proposed rule would have prohibited a vessel from approaching a
right whale head-on from any distance once the right whale was observed
or should have been observed by a vessel operator using due diligence
and once there had been time to alter the heading of the vessel. The
interim final rule does not include this prohibition. NMFS concluded
that this prohibition would be very difficult to enforce and that the
general restrictions on approaches within 500 yards (460 m) of a right
whale should provide adequate protection. Nevertheless, while not
required by regulation, NMFS continues to encourage vessel operators to
avoid head-on approaches of right whales (see Right Whale Avoidance
Guidance in the Summary of Protective Measures for details).
Interception
The proposed rule would have prohibited a vessel from turning,
[[Page 6731]]
positioning, or maneuvering in a manner to intercept a right whale. The
interim final rule does not contain this language but maintains the
general requirement by prohibiting any approach ``by interception.''
This stylistic change reflects the fact that actions designed to
intercept a right whale constitute a form of approach. This
interpretation is consistent with the view currently taken by NMFS in
implementing the approach restrictions governing humpback whales in the
Hawaiian islands.
At this time, NMFS is not defining the term ``interception.'' With
this prohibition, however, NMFS intends to prohibit positioning or
maneuvering that is calculated to bring a vessel or aircraft within 500
yards (460 m) of a right whale.
Right Whale Avoidance Measures
The proposed rule contained a detailed list of right whale
avoidance measures in its regulatory requirements. Right whale
avoidance measures were described, generally, as actions necessary to
avoid takings prohibited under the MMPA or the ESA and actions
necessary to comply with instructions from NMFS, the U.S. Coast Guard
and other agencies concerning the avoidance of right whales. If a
person, aircraft, vessel or other object were to come within 500 yards
(460 m) of a right whale, right whale avoidance measures were to be
followed to increase the person or object's distance from the whale.
The proposed rule also provided specific guidance concerning how to
increase one's distance from a right whale: (1) Sudden changes in
operation were to be avoided unless necessary to avoid striking or
injuring a right whale or for safe vessel or aircraft operation, (2) if
one were already moving away from a right whale, approximately the same
speed and direction should be maintained, (3) if one was moving toward
a right whale, expeditious efforts should be made to reduce speed and
to change direction away from the whale, (4) if one is approached by a
whale, the person or object should move slowly but deliberately and
steadily away from the whale. These requirements were not applicable
under certain circumstances such as when a vessel was not underway or
was restricted in its ability to maneuver.
Though still in the interim final rule, these avoidance measures
have been scaled back significantly. NMFS has decided that more concise
avoidance measures will enhance enforceability and will allow the use
of avoidance measures that are appropriate, given the unique
circumstances of any situation that is encountered.
Specifically, this interim final rule removes the general
description of right whale avoidance measures as written in the
proposed rule. NMFS has concluded that there is no need to repeat the
statutory prohibition on taking pursuant to the ESA and MMPA. In
addition, NMFS removed the regulatory requirement, as written in the
proposed rule, for compliance with instructions from NMFS, the U.S.
Coast Guard and other agencies, although that information may be
relevant in assessing the seriousness of a violation.
Furthermore, NMFS has excluded from this rule specific regulatory
requirements concerning the steps to be taken to increase one's
distance from a right whale. Instead of the detailed instructions
provided in the proposed regulations, the interim final regulations
simply require that, if within 500 yards (460 m) of a right whale: (1)
Vessels that are underway must steer a course away from the right whale
and immediately leave the area at a slow safe speed; and (2) aircraft
must take a course away from the right whale and immediately leave the
area at a constant airspeed.
Notwithstanding these modifications, NMFS wishes to provide
guidance that will assist individuals who find themselves within 500
yards (460 m) of a right whale. To that end, NMFS is providing Right
Whale Avoidance Guidance (see Summary of Protective Measures). This
guidance embraces many of the avoidance measures set forth in the
proposed rule.
General Exceptions
Exceptions to the approach restrictions and the avoidance measures
were listed separately from the more limited exceptions applicable only
to the avoidance measures in the proposed regulations. This interim
final rule groups all exceptions together. In addition, the interim
final rule states clearly that a person claiming the benefit of any
exception has the burden of proving that the exception is applicable.
Aircraft. The proposed rule would have prohibited approaches by
aircraft within 1500 feet (460 m) of a right whale, regardless of
whether the aircraft was involved in whale watching activities. NMFS
has substantially modified this provision in order to limit the
restrictions to aircraft-related activities of greatest concern. As
modified, a broad exception is provided to the approach restrictions
and avoidance measures so that these provisions only apply to aircraft
that are conducting whale watching activities.
Vessels at anchor or mooring. The proposed rule included an
exception from the requirement to undertake right whale avoidance
measures for vessels that are not underway. The interim final rule
maintains this requirement, but in a stylistically different manner. In
the interim final rule, the exception is removed, but the avoidance
measures are modified to apply only to vessels that are ``underway.''
As with the proposed rule, the term underway is defined to mean vessels
not at anchor, made fast to the shore, or aground.
Right whale investigation or rescue efforts. This interim final
rule provides an exception to the approach prohibitions and avoidance
measures in a situation when a person is approaching to investigate a
right whale entanglement or injury, or to assist in the disentanglement
or rescue of a right whale; however, permission must be received from
NMFS or a NMFS designee prior to the approach. The proposed rule did
not include a similar exception; this addition in the interim final
rule is in response to several commenters' requests.
Emergency situations. Both the proposed and interim final rules
include an exception for emergency situations. The language of this
exception is changed somewhat from the proposed rule. In addition, the
recommendation within the regulatory text to contact, if possible,
NMFS, the U.S. Coast Guard, local port authority, or local law
enforcement officials is removed in the interim final rule, although
such action may help establish that the exception is applicable in a
particular situation.
Responses to Comments on the Proposed Rulemaking
Fifteen commenters responded to the proposed rule's request for
comments; all submissions were considered in the preparation of this
interim final rule. Responses to comments addressing significant issues
and requiring a reply are summarized below:
Comment 1: Usage of the term ``disturbance'' in this rule. One
commenter recommended that NMFS avoid equating the disturbance of
marine mammals with ``harassment,'' explaining that the parallel is
purely speculative.
Response: The 1994 amendments to the MMPA included the following
definition:
(18)(A) The term ``harassment'' means any act of pursuit,
torment, or annoyance which--(i) has the potential to injure a
marine mammal or marine mammal stock in the wild; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the
wild by causing the disruption of
[[Page 6732]]
behavioral patterns, including, but not limited to, migration,
breathing, nursing, feeding or sheltering.
Based on the best available information, NMFS has determined that,
in general, close approaches to right whales by vessels, aircraft and
other means have the potential to disturb or injure these animals. (For
further information concerning disturbance, see also the response to
Comment 2 below.) NMFS also recognizes that not every approach within
500 yards (460 m) of a right whale necessarily results in harassment.
Nonetheless, because of the precarious status of this species, NMFS has
concluded that a general restriction on these types of approaches is
justified.
Comment 2: The size of the buffer zone. Three commenters remarked
on the lack of sufficient data to support a 500 yard (460 m) protection
zone and demonstrate that it is an appropriate distance to protect
right whales from behavioral disturbance. One of these commenters cited
ESA section 4, which requires the publication of a summary of the data
on which a regulation is based, showing the relationship of such data
to the proposed/final regulation. The same commenter explained that 500
yard (460 m) zone is not correlated to the observational capabilities
of ship operators or the operational capabilities of their vessels.
Additional study to determine the appropriate distance was recommended.
Implementation of other measures in conjunction with the approach
restriction was also recommended.
In favor of the proposed rule, a fourth commenter stated that
although 500 yards (460 m) may be a greater distance than necessary and
may be difficult to accurately measure, it will prevent intentional
close approach by vessels if it is enforced. Another commenter
explained that the 500 yard (460 m) approach prohibition makes the
protection of right whales in Federal waters consistent with that
provided in Massachusetts State waters, where such a prohibition
already exists; it is an important step in providing basic protection.
Response: NMFS has determined that a 500 yard (460 m) buffer zone
is appropriate. The Recovery Team concluded that observers (lookouts)
with knowledge or training should be able to distinguish right whales
from other whale species at this distance. NMFS has determined that
such a buffer will allow people to observe right whales (and other
large whales if they are unable to identify the species with certainty)
while providing a measure of protection and safety for these animals
consistent with sound management practices. NMFS recognizes operational
limitations, such as difficulties in establishing distances at sea in
an enforcement action, that may reduce the actual zone of protection.
NMFS also notes that such an approach is consistent with Massachusetts'
regulations.
As indicated in the preamble to the proposed rule, right whales are
vulnerable to disturbance or injury as a result of close approaches by
vessels or other means. Right whales are slow-moving. This limitation
and other behavioral characteristics make this species particularly
susceptible to close approaches by humans. Vessel traffic may subject
whales to impacts ranging from displacing cow/calf pairs from nearshore
waters to expending increased energy when feeding is disrupted or
migratory paths rerouted.
Furthermore, as indicated in the preamble to the proposed rule and
described in more detail in the environmental assessment, turbulence
associated with vessel traffic may indirectly affect right whales by
breaking up the dense surface zooplankton patches in certain whale
feeding areas. Right whale energetics are such that they are
particularly dependent on very dense zooplankton aggregations for
feeding. If copepods in the caloric-rich, adult developmental stages
are not available to right whales in sufficient densities, there may be
insufficient prey available in the remaining developmental stages
(independent of abundance) to provide right whales with the required
energy densities (as described by Kenney et al., 1986) to meet the
metabolic and reproductive demands of the right whale population in the
western North Atlantic (Kenney et al., 1986; Payne et al., 1990).
Prey distribution and density are believed to be among the primary
governing factors in whale distribution and density in an undisturbed
ecosystem. The presence of vessels in or adjacent to areas occupied by
whales may cause a change in whale behavior, such as cessation of
feeding activity, for the duration of the human activity. Such activity
levels may cause the whales to leave localized feeding areas
temporarily. Repeated disturbance of the whales may result in the
abandonment of localized feeding areas. Any loss of feeding habitat or
interference with feeding activities may affect the ability of these
whales to obtain the full summer ration of food necessary for
successful reproduction and overwintering. The severity of this loss
would depend on the level of interference with feeding activity or on
the availability of alternative food supplies.
While the proposed rule recognized that data and evidence of
disturbance or behavioral changes induced by human activity or
interactions beyond 100 yards (90 m) was limited, NMFS has considered
the best available information on this issue. The critically endangered
status of this species was another important consideration in
establishing the appropriate size of the buffer zone. Finally,
operational and practical considerations also were evaluated, such as
the maximum distance at which a right whale could be identified, and
difficulties in estimating distance at sea. Based on these
considerations, NMFS has concluded that the area of protection around
right whales should be maximized to avoid any potential for disturbance
or behavioral changes and to reduce, if possible, the risk of
collision; thus, a 500 yard (460 m) buffer area is appropriate.
Comment 3: Situations where the identification of the whale species
is uncertain. Two commenters expressed notable support for the
implementation of species-specific protective measures. According to
these commenters, since right whales make up such a small fraction of
the whales sighted on whale watches, it would be an undue burden on
industry to limit approaches to all whales because of the remote
possibility that the whale is a right whale.
Two other commenters expressed their support for a rule
establishing comprehensive protection for all listed whale species,
rather than partial protection on a species-by-species basis. They
cited the July 22, 1996, U.S. Coast Guard Biological Opinion as a model
of protection to follow and recommended revision to the proposed rule
to make it a generally applicable rule that could be amended according
to whatever species-specific information may be learned as part of the
initiative. The rule, according to these commenters, also should
establish the presumption that any whale not positively identified as
another whale species must be considered a northern right whale; the
fact that only the northern right whale is afforded a buffer zone
presupposes that all boaters will be able to identify a northern right
whale. One of these two commenters claimed that if NMFS denies any
listed whales the protection of a distance rule, the operators of
commercial whale watching vessels must be required to obtain incidental
take permits, pursuant to section 10 of the ESA and a small take
permit, pursuant to section 101(a)(5) of the
[[Page 6733]]
MMPA before being allowed to conduct whale watching.
Response: NMFS recognizes that under certain circumstances
regulations are appropriate to address specific species in a particular
area or region. Oftentimes, differences in species and marine habitat
merit differences in regulatory approach. This rule pertains only to
the western North Atlantic population of northern right whales. On
August 3, 1992, NMFS published a proposed rule of general applicability
to protect whales, dolphins and porpoise from activities associated
with whale watching and to establish minimum approach distances (see 57
FR 34101). That proposal was withdrawn in 1993, in part, because it was
viewed as being too broad in scope (see 58 FR 16519, March 29, 1993).
At that time, NMFS began an initiative to concentrate efforts regarding
marine mammal approach on a more species- and region-specific basis.
NMFS recognizes that in some situations it may be difficult for a
person to differentiate between a right whale and another species of
large whale at a distance of 500 yards (460 m), although the Recovery
Team indicated that persons with knowledge or training could identify
right whales at this distance. Thus, in order to ensure compliance with
the mandates concerning right whales in this interim final rule, a
person is advised to avoid approaches within 500 yards (460 m) of any
large whales that cannot be identified as to species in waters along
the east coast of the United States, especially in right whale high-use
areas when those whales are expected to be present.
NMFS did not propose restrictions on approaches to any species
except right whales. As indicated above, NMFS believes that such
restrictions should be evaluated on a species- and region-specific
basis, and NMFS has not completed those evaluations at this time.
With respect to the need for an incidental take permit for
approaches to endangered whales, NMFS notes that this interim final
rule does not authorize any approach that would constitute a ``taking''
under the ESA or MMPA. Such approaches are prohibited by statute unless
a permit or other authorization is obtained; the fact that these types
of approaches are not prohibited explicitly in this interim final rule
should not be interpreted as any type of authorization for the taking
of an endangered whale. On the other hand, NMFS also recognizes that
whether a specific approach constitutes a ``taking'' and thus would
require an incidental take permit must be determined on a case-by-case
basis. NMFS declines to make any determination concerning the necessity
of such a permit in the context of this interim final rule.
Comment 4: Applicability of rule to various approach activities.
Three commenters recommended that a provision be added to the list of
``Exceptions,'' whereupon, with proper notification to either NMFS and/
or the Coast Guard, a vessel would be authorized to approach to within
less than 500 yards (460 m) for the purpose of confirming a right whale
entanglement, reporting the nature of its distress, and/or awaiting
help. Concern exists with regard to the potential for missing valuable
sightings of right whale entanglements or distress because of the 500
yard (460 m) distance restriction. One of these commenters recommended
that the regulations include a provision or be issued with a commitment
of funding to ensure that each right whale may be approached briefly
for a health assessment and photo-identification.
Response: NMFS agrees with the commenters' recommendation to
include a provision to allow vessel approaches within less than 500
yards (460 m) in imminent circumstances regarding the whale's health
and well-being. The provision is in place under the list of
``Exceptions'' (Sec. 222.32(c)) to enable close approaches to
investigate a right whale entanglement or injury, or to assist in the
disentanglement or rescue of a right whale, provided that permission is
received from NMFS or a NMFS designee prior to the approach. In
response to the comment recommending implementation of an approach
provision for right whale health assessments and photo-identification,
researchers may apply for a scientific research permit issued under
subpart C (Endangered Fish or Wildlife Permits) of part 222.
Comment 5: Deliberate versus unintentional approaches. Three
commenters recommended that the rule's prohibitions and mandated
evasive maneuvers should apply only to explicit actions with the
deliberate intent of approaching a right whale. Another commenter
stated that the rule is overly broad in scope and attempts to regulate
many activities that do not threaten physical harm to right whales. It
should eliminate actions that have little or no potential to cause
serious injury or mortality, such as small vessel activities, vessels
traveling at very slow speeds and swimmers. According to this
commenter, the rule should limit activities only during the time
periods and in the geographic areas where right whales are known to
congregate and where critical habitat is established, as shown by
scientific data. Two other commenters recommended being explicit if
whale watching is in fact the focus of the rule; the rule should be
revised to narrowly address these activities.
Response: Though some activities present only a limited potential
to disturb or injure right whales, NMFS believes that an expansive
approach prohibition is necessary. This view is predicated upon the
highly endangered status of the species, and the need to minimize those
risks associated with any type of approach. Additionally, such an
approach is easier to understand and enforce, thereby enhancing its
overall effectiveness.
Given this rationale, the prohibition on approach applies to both
intentional and unintentional approaches. This restriction reflects the
fact that both intentional and unintentional approaches create a risk
of disturbance or injury. Additionally, this restriction is consistent
with both the MMPA and ESA, which prohibit all takings, including those
that are intentional, unintentional, and incidental.
Having said this, NMFS does not wish to extend this prohibition to
activities that clearly present little risk to right whales. For this
reason, NMFS has modified the regulation as it applies to aircraft,
only prohibiting approaches by aircraft conducting whale watching
activities.
Comment 6: Vessels restricted in their ability to maneuver in
certain situations--Exceptions to the rule. Two commenters requested
confirmation that the proposed rule exemption granted to vessels
restricted in their ability to maneuver is applicable to their
situation. Another commenter requested special consideration for
submerged operations where a posted lookout is not possible and where
there is limited or no ability for a submerged vessel to detect the
presence of right whales and to execute recommended evasions or altered
courses. A fourth commenter recommended that vessels ``in extremis,''
as defined by the Convention on the International Regulations for
Preventing Collisions at Sea, 1972, be added to proposed
Sec. 222.32(d)(2).
Response: The interim final rule recognizes the special
circumstances presented by a vessel restricted in its ability to
maneuver; right whale avoidance measures are not required under such
circumstances. Under the COLREGS Rule 3 (See 33 CFR part 81 App. A,
Part A, Rule 3) and Rule 3 of the Inland Navigation Rules (33 U.S.C.
2003) a vessel restricted in its ability to
[[Page 6734]]
maneuver includes, but is not limited to, a vessel engaged in dredging,
a vessel engaged in submerged operations, a vessel engaged in launching
or recovery of aircraft, a vessel engaged in a towing operation that
severely restricts the towing vessel and the tow in their ability to
deviate from their course, and various other types of vessels. NMFS
interprets this definition to include a fishing vessel engaged in
haulback operations and vessels in similar situations where the vessel
is unable or severely limited in its ability to comply with right whale
avoidance measures. To the extent that the vessel is able to maneuver
in a situation where it is within 500 yards (460 m) of a right whale,
it should undertake efforts to maximize its distance from and minimize
interactions with the whale.
In formulating this exception, NMFS recognizes the unique, and
oftentimes limiting, circumstances facing vessels operating in the
Atlantic and along its coastline. Unlike Hawaii, where humpback whales
are generally found nearshore and the humpback whale approach
restrictions largely impact recreational vessel activity, the Atlantic
distribution of right whales is more variable and the right whale
approach prohibitions affect a multi-use and highly trafficked water
body.
NMFS also acknowledges that what constitutes a proper lookout
depends upon the prevailing conditions and circumstances and that
submarine operations are somewhat unique. Maintaining a proper lookout
for a submarine may include the use of sonar or other available means
under the circumstances; NMFS also encourages communication efforts
with submarines before the submarines enter critical habitat or areas
of high use by right whales so that sighting information may be relayed
to the operator. Finally, with respect to a vessel in extremis, NMFS
has concluded that the emergency exception is applicable because of the
serious and imminent threat to the vessel or person in such a
situation.
Comment 7: Appropriate speed. One commenter recommended that NMFS
adopt a generic rule requiring vessel operators to adjust their vessel
speed and direction when whales are observed. Another commenter
questioned the absence of a rationale for the exclusion of speed limits
in the proposed rule.
Response: NMFS recognizes that it may be necessary, under certain
circumstances, for vessels, especially large ships, to reduce speed in
order to avoid prohibited approaches to right whales. Currently, vessel
operators are required by COLREGS, Rule 6, to proceed at safe speed so
that the vessel can take proper and effective action to avoid collision
and ``be stopped within a distance appropriate to the prevailing
circumstances and conditions'' (72 COLREGS, see 33 CFR part 81 App. A.
Part B, Section 1, Rule 6). An identical requirement is imposed under
the Inland Navigational Rules, 33 U.S.C. 2006. These and other
regulations limiting vessel speed should be interpreted with a
consideration of the risk of a close approach to a right whale.
While vessel speed remains a concern with regard to right whale
avoidance, NMFS also recognizes that other agencies and organizations
may have special expertise and authority with respect to this subject
and that specific or detailed guidance on speed may depend on the
operational characteristics of a vessel or the circumstances under
which it is operated. The focus of the proposed rule and this interim
final rule is on restricting approaches within 500 yards (460 m) of a
right whale. In that respect, this interim final rule requires that
vessels within the restricted area immediately leave the area at a slow
safe speed. NMFS encourages adherence to the speed regulations already
in place, but it declines to adopt further speed restrictions in this
interim final rule.
Comment 8: Aircraft. One commenter stated that actions having
little or no potential to cause serious injury or mortality, such as
military aircraft approaches and overflights, small vessel activities,
should be eliminated from the rule, i.e., only limit the class of
actions that may physically harm right whales. Two additional
commenters claim that NMFS overlooks military aircraft maneuvers,
especially in the southeast United States while right whales are in
calving grounds, and overlooks what type of regulations the military
have to follow for these exercises; exceptions should be made in some
cases. A fourth commenter remarked that the 500 yard (460 m)
prohibition may impact aircraft takeoffs and landings in an
unacceptable manner for safety, glide path and air traffic operations.
Response: NMFS has reconsidered its original proposal to limit all
aircraft to an altitude of no less than 1500 feet (460 m) above a right
whale. As modified in the interim final rule, a broad exception is
provided for most aircraft operations so that approach restrictions and
avoidance measures are applicable only to aircraft conducting whale
watching activities.
Comment 9: Economic impacts. One commenter remarked that the
avoidance measures may result in substantial delays to shipping and,
thus, increase costs to the industry. According to this commenter,
there is no evidence that NMFS has actually calculated the chances that
a vessel would have to adhere to avoidance measures; nor has NMFS
calculated the effect of those measures on the vessel's arrival in port
and transportation costs. A second commenter suggested that
transportation costs are likely to increase for commercial vessels
based on increased transit time as a result of this regulation.
Response: NMFS concluded that the proposed rule, if implemented,
would not have a significant economic impact on a substantial number of
small entities. While this rule may have a minor impact on whale
watching activities, especially in early spring when right whales, but
no other whale species, are likely to be in the area where these
activities occur, the cost of delaying operations for a few weeks, with
respect to expected revenues, is not considered significant.
Similarly, this rule is expected to have only a minor impact on
commercial shipping and other vessel activities. Adjustments to speed
or a more vigilant lookout would be appropriate under current law to
avoid the risk of taking a right whale, especially in areas where, and
at times when, right whales are known or expected to be present. In
light of existing law, any change in operation and any costs associated
with these changes in operation necessitated by the implementation of
this interim final rule are not considered significant when compared to
expected revenues.
Comment 10: Additional research needs--Cumulative effects. Three
commenters recommended implementation of a research component to
examine existing and future technologies and methods that may lead to
the healthy coexistence of human activities and these species, e.g.,
increased surveillance of right whale movement, assessment of shipping
traffic relative to high risk areas; determination of what distance
disrupts feeding behavior and establishment of this distance
restriction on feeding grounds; evaluation of deterrents including
sonar; and, finally, a follow-up on the New England Aquarium/MIT ship
modeling study to include (a) other vessel types, and (b) the depth
dimension. According to one of the commenters, a distance rule should
be based on studies of the reactions of right whales to vessel
approaches with varying sound signatures, and the effect of vessels of
dense plankton aggregations at or near the surface.
[[Page 6735]]
Another of the three commenters suggested that, although additional
study was necessary to determine the appropriate right whale approach
distance, an interim rule could be implemented in the meantime to
prohibit commercial and recreational whale watching programs from
focusing on right whales. Two additional commenters remarked on the
potential for inaccuracies when making cross-species behavioral
comparisons.
Response: NMFS acknowledges that long-term studies in this area are
needed. However, the absence of definitive long-term research results
does not preclude the adoption of protective measures. The ESA
generally requires NMFS to use the best available information in
managing protected species. In this case, the available information
reviewed by NMFS indicates that right whales may be disturbed by human
activity, especially close approaches within 500 yards (460 m). NMFS
believes there is sufficient information available to support this
action. (See also the response to Comment 2.)
NMFS may revise protection efforts accordingly if future research
demonstrates that additional or different means of protection are
needed. Other human-induced factors mentioned in the Recovery Plan that
pose a threat to the right whales will be addressed in separate
rulemakings or through other management initiatives.
Additionally, immediate protective measures are appropriate since
they represent an important step in increasing public awareness of the
problems caused by disturbance and vessel interactions with right
whales. Finally, these regulations will complement other initiatives,
such as efforts to communicate information concerning the location of
right whales to vessel operators and any initiatives that may be
undertaken internationally, as well as efforts to undertake further
research.
Comment 11: Noise. Two commenters suggested that, in terms of the
harm caused to whales by vessels, the cumulative effect (noise) of many
vessels in a limited area is one of the most serious concerns in that
it may cause abandonment or decrease in use of important right whale
habitats.
Response: NMFS recognizes that this problem warrants further study.
While not specifically designed for this purpose, this interim final
rule may reduce vessel noise in the vicinity of right whales by
restricting human approaches.
Comment 12: Enforcement/compliance. According to one commenter, the
definition ``to approach head on'' is subjective and will be difficult
to enforce. A vessel operator could easily argue an intention to change
course to avoid intercepting a whale; enforcement officials could not
easily refute this argument. This commenter also recommended that NMFS
remove proposed Secs. 222.32(b)(4) and (5) that would have required
vessels not to approach a right whale head-on from any distance once
observed and identified or to cause a vessel to be turned positioned or
maneuvered in a manner to intercept a right whale. According to the
commenter, these restrictions are vague and are drafted to preclude
maneuvers at any distance from a sighted right whale, which could
impact vessel operation for miles.
Two other commenters believe that enforcement of the regulation
and/or prosecution for violations would be extremely difficult, given
the somewhat subjective nature of the approach standards. To minimize
or eliminate concerns regarding the inability to enforce conservation
measures and to conduct measures of environmental protection or
navigational aid, especially in cases of emergency, one of these
commenters suggested including a third exception under
Sec. 222.32(d)(3): ``Coast Guard law enforcement, marine environmental
protection and aid to navigation operations.''
Another commenter requested that NMFS outline what enforcement it
proposes and how the results of the rule will be reported to the
public. The same commenter requested clarification of the second
paragraph in the first column on page 41119 of the proposed rule (61 FR
41119, August 7, 1996), in that it currently implies that violation of
this rule would not be considered an incidental take. This commenter
also wanted to know how NMFS will address/enforce right whale
protection at night, in rain, fog or high sea states to ensure whales
are not disturbed.
A final commenter remarked that the prohibitions and avoidance
measures in the proposed rule may result in vessel movement that would
conflict with USCG Traffic Separation Schemes for the Atl. East Coast,
33 CFR part 167 et seq. and Rule 10 of the International Regs for
Preventing Collisions at sea 33 foll. Sec. 1602, Rule 10, rules that
provide safe access routes for vessels proceeding to and from U.S.
ports.
Response: NMFS has reconsidered its original proposal to prohibit
head-on approaches to right whales. NMFS recognizes that this provision
would be difficult to interpret and enforce; that provision is not
included in this interim final rule. On the other hand, while not
required by regulation, NMFS continues to encourage vessel operators to
avoid head-on approaches of right whales.
While NMFS has concluded that, in general, approaches within 500
yards (460 m) of right whales have the potential to disturb or injure
these animals, NMFS also recognizes that whether an incidental take
occurs in any specific approach may depend on the circumstances of that
approach. NMFS also recognizes that circumstances such as rain, fog,
sea state, and visibility may affect the ability of an operator to
avoid close approaches to right whales. Extra caution is urged in these
situations. In addition, NMFS is working with other agencies and
organizations to enhance vessel traffic coordination. (See response to
Comment 15.)
NMFS disagrees with claims that these approach and avoidance
requirements are unenforceable. The approach prohibition largely
mirrors a similar restriction enacted in 1987 for the protection of
humpback whales in the Hawaiian Islands. Past experience in Hawaii
suggests that this prohibition is easy to understand and enforce.
Indeed, NOAA has successfully prosecuted many cases involving vessels
that have violated this approach prohibition.
Additionally, from an enforcement perspective, this approach
prohibition ensures more effective prosecution of inappropriate
activities. The prohibition establishes a clear, objective, distance
requirement. This requirement is easily understood by the vast majority
of individuals who wish to legally observe right whales, and is far
easier to prosecute in the event of a violation.
NMFS agrees with comments that stress the need for enforceable
requirements. To that end, NMFS has made significant modifications from
the proposed rule, especially to those provisions addressing right
whale avoidance measures. NMFS has deleted provisions addressing head-
on approaches and many of the speed and directional provisions
applicable to aircraft and vessels within 500 yards (460 m) of a right
whale. These changes are designed to simplify the requirements and
enhance enforceability.
NMFS does not believe that these requirements are unduly
burdensome. The rule provides an exception in instances where
compliance would create an imminent and serious threat to any person,
vessel, or aircraft. NMFS also recognizes that law enforcement
activities are exempt from prohibitions such as this rule under
traditional common law theories. Additionally, NMFS has the authority
to consider
[[Page 6736]]
mitigating factors, such as the difficulty of compliance, in
determining the appropriate enforcement response.
Finally, NMFS does not anticipate conflicts between this rule and
regulations governing traffic separation schemes. Navigation rules
provide for special exceptions in cases where departure from those
rules is necessary to avoid immediate danger and, with respect to
compliance with traffic separation schemes, in emergency circumstances.
(See Rule 2 and Rule 10 of the COLREGS (See 33 CFR Part 81 App. A, Part
A, Rule 2 and Part B, Section 1, Rule 10) and Rule 2 and 10 of the
Inland Navigation Rules (33 U.S.C. 2002 and 2010)). In addition, this
interim final rule provides for an emergency exception; NMFS recognizes
that the applicability of this or other exceptions in this interim
final rule must be evaluated in the context of the circumstances.
Comment 13: Reports of right whale sightings. One commenter notes
that, although the proposed rule implies that vessel personnel are
expected to report right whale sightings and locations, it contains no
legal requirement for personnel to report.
Response: NMFS concurs. If a right whale is positively identified
and observed, lookouts and/or vessel operators are encouraged to report
right whale sightings and locations to the U.S. Coast Guard or other
appropriate port authority, and request assistance if appropriate.
Knowledge of the location of right whales may help prevent potential
collisions and allow vessels to implement appropriate whale avoidance
measures. Refer to the Right Whale Avoidance Guidance (see Summary of
Protective Measures) for further information.
Comment 14: Authority citations. One commenter recommends that NMFS
delete its reference to the Fish and Wildlife Act of 1956 in the
proposed rule.
Response: The authority section for 50 CFR part 217, (this part is
entitled ``General Provisions'' and includes a variety of definitions),
currently includes the reference to the Fish and Wildlife Coordination
Act. The approach regulations (except for the definitions) are issued
under 50 CFR part 222, subpart D. The authority citation clearly
indicates that those regulations are issued under the authority of the
ESA and MMPA. The Fish and Wildlife Coordination is not cited as
authority for that part or subpart of the CFR.
Comment 15: Vessel traffic coordination. Six commenters expressed
support for the coordination of whale alert teams in the southeast and
northeast Atlantic set up to note whale locations and report them to
the appropriate authorities, who then relay that information to ships
in close range.
Response: NMFS concurs and notes that these efforts will increase
public awareness and the effectiveness of this interim final rule. In
coastal waters of the southeastern United States, an awareness and
mitigation program, involving ten agencies and organizations, was begun
in 1992, and has been upgraded and expanded annually. This effort
includes an established Early Warning System network designed to
prevent whale/vessel collisions on the calving grounds. NMFS also
recently established an early warning network to alert mariners to the
location of right whales off Massachusetts. This collaborated effort of
the U.S. Coast Guard, the State of Massachusetts, the Center for
Coastal Studies, the Stellwagen Bank National Marine Sanctuary and NMFS
will make sighting information available through marine radio
announcements, automated fax, and the Internet with the intention to
reduce the chances of collisions between vessels and whales in New
England waters.
Comment 16: Jurisdictional applicability. One commenter recommended
clarification of the rule to indicate its applicability only to U.S.
citizens and U.S.-flagged vessels, in order to be consistent with
international law.
Response: Clearly this interim final rule applies to U.S. citizens
and U.S.-flagged vessels. The prohibitions in the ESA generally apply
to all persons subject to the jurisdiction of the United States, which
includes foreign nationals and vessels in appropriate cases. With
certain exceptions, the MMPA also prohibits any person, vessel or
conveyance subject to the jurisdiction of the United States from taking
a marine mammal on the high seas; any person, vessel or conveyance is
prohibited from taking a marine mammal within the U.S. territorial sea
or the exclusive economic zone (EEZ), except as expressly provided for
by an international treaty, convention or agreement or associated
implementing statute. NMFS disagrees that the applicability of the
final rule to foreign vessels would necessarily conflict with
international law. U.S. jurisdictional authority over vessels other
than U.S.-flagged vessels depends upon the circumstances of each
particular case. In all cases, however, the United States intends to
enforce this rule consistently with international law, including
customary international law as reflected in the 1982 United Nations
Convention on the Law of the Sea.
Comment 17: Territorial Sea. One commenter questioned the necessity
of defining ``territorial sea'' for the proposed and final rules. In
issuing the proposed rule, NMFS had set forth its view that the
territorial sea jurisdiction under the ESA encompassed the area within
12 nautical miles (nm) (22.2 kilometers (km)) of the baseline. This
commenter disagrees with NMFS defining the extent of the U.S.
territorial sea as 12 nm (22.2 km) rather than 3 nm (5.6 km) seaward of
the baseline on the grounds that Presidential Proclamation 5928
extended the U.S. territorial sea to 12 nm (22.2 km) for international
but not for domestic, legal purposes. Also according to this commenter,
the extent to which the term is being revised for the purposes of 50
CFR parts 216 to 227 is outside the scope of the rule and does not
sufficiently provide for public notice and opportunity for comment.
Response: NMFS disagrees that the definition of ``territorial
sea,'' as presented in the proposed rule, is outside the scope of this
rulemaking. NMFS also notes that to the extent that the definition
would announce an interpretation of the ESA, there is no need for
advance public notice or opportunity to comment. Finally, NMFS does not
agree with the commenter's interpretation of the jurisdictional scope
of the ESA and the effect of the Presidential Proclamation on that
scope. Nonetheless, NMFS has decided not to issue a regulatory
definition of the ``territorial sea'' in this interim final rule in
order to have additional time to consult with other Federal agencies;
this issue will be resolved prior to issuing a final rule.
Again, NMFS emphasizes that the restriction on approaches to right
whales is promulgated under the authority of both the ESA and the MMPA.
The MMPA defines ``waters under the jurisdiction of the United States''
to include both the territorial sea and the EEZ which extends 200 nm
(370 km) beyond the baseline from which the territorial sea is
measured. The ESA does not refer to the EEZ although persons subject to
U.S. jurisdiction are prohibited from taking endangered species, both
within the territorial sea and upon the high seas.
Summary of Protective Measures
There is good reason to believe that if the full range of human
impacts specified by the Recovery Team were reduced, the chance for
species recovery would be maximized. This rule should be considered an
important step towards that goal.
[[Page 6737]]
Description of the Interim Final Rule
In order to minimize the risk that human activities will disturb or
cause other behavioral changes in right whales and to reduce the risk
of vessel collisions and other interactions, this interim final rule is
established: (1) To prohibit approach (including by interception)
within 500 yards (460 m) of a right whale whether by vessel, aircraft
or other means; and (2) to require adherence to right whale avoidance
measures if a vessel or aircraft is within this restricted area.
Right whale avoidance measures are those actions necessary to be
taken within 500 yards (460 m) of a right whale, as follows: (1)
Vessels must steer a course away from the right whale and immediately
leave the area at a slow constant speed (See Right Whale Avoidance
Guidance for supplementary instruction); and (2) aircraft must take a
course away from the right whale and immediately leave the area at a
constant airspeed.
Exceptions to the interim final rule include: (1) Approaches to
right whales that have been authorized by a NMFS permit (under subpart
C (Endangered Fish or Wildlife Permits) or similar authorization; (2)
situations of imminent and serious threat to the safety or life of a
person, vessel or aircraft; (3) approaches made for the purpose of
investigating a right whale entanglement or assisting in a right whale
rescue or disentanglement, provided that prior permission is received
from NMFS or a NMFS-designee; (4) aircraft operations, unless that
aircraft is conducting whale watch activities; and (5) a vessel or
aircraft restricted in its ability to maneuver and unable to comply
with the right whale avoidance measures. Any person, who claims the
benefit of any of the above exceptions has the burden to prove that the
exception is applicable.
Right Whale Avoidance Guidance
As stated earlier in this preamble, NMFS wishes to provide
guidance, separate and apart from the specific approach prohibitions
and avoidance measures found in the regulations. This guidance is
offered to assist individuals who find themselves in the vicinity of a
right whale, with the aim of minimizing the possibility of interaction
and the level of disturbance associated with any interaction. The
guidelines are advisory only, and NMFS encourages individuals to follow
them to the extent that doing so is consistent with the controlling,
regulatory approach restrictions and avoidance measures.
Vessel lookout. Vessel operators are encouraged to maintain a
proper lookout for right whales, especially when right whales are known
to frequent an area. If a right whale is observed, increased vigilance
is recommended, since other right whales also may be present in the
area. Such vigilance is consistent with Rule 5 of the COLREGS (See 33
CFR Part 81 App. A, Part B, Section 1, Rule 5) and Rule 5 of the Inland
Navigation Rules (33 U.S.C. 2005). Such vigilance may prevent
inadvertent approaches as well as enable vessels to take all necessary
avoidance measures.
If a right whale is positively identified and observed near a port,
in a channel, in an established shipping lane, or in other areas with a
high concentration of shipping activity, a vessel operator should
report the sighting to the U. S. Coast Guard or other appropriate port
authority, and request assistance if appropriate. Likewise, where the
presence of a right whale would inhibit the entry of a large ship into
a port or otherwise interfere with vessel operations, a vessel operator
is encouraged to contact the U.S. Coast Guard or port authority for
assistance or instruction.
Vessel speed. Vessel operators also are encouraged to proceed at
prudent speed when transiting waters frequented by right whales.
Prudence may require transit at a reduced speed in order to avoid
approaching within 500 yards (460 m) of a right whale, or to enable
vessels to follow any necessary avoidance measures. Such prudence is
consistent with Rule 6 of the COLREGS and Rule 6 of the Inland
Navigation Rules, which require vessels to proceed at a safe speed, so
that the vessel can take proper and effective action to avoid collision
and be stopped within a distance appropriate to the prevailing
circumstances and conditions.
Sudden changes in operation. In order to minimize the potential for
disturbance to a right whale, changes in vessel speed and direction
should be gradual. To that end, rapid acceleration, use of bow
thrusters, and sudden changes in propeller pitch are discouraged.
Head-on approaches. In order to minimize the risk of an unlawful
approach, NMFS encourages vessel operators to avoid approaching a right
whale head-on. Once a right whale is sighted, vessel operators should
alter course to ensure that an approach within 500 yards (460 m) is
avoided.
Classification
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed that this
rule would not have a significant economic impact on a substantial
number of small entities. NMFS received two comments, addressed above,
concerning the economic impact of this rule. These comments did not
cause the Assistant General Counsel to change his determination
regarding the certification. Furthermore, the changes made from the
proposed rule to the interim final rule do not affect the reasons for
the certification. As a result, no regulatory flexibility analysis was
prepared.
This interim final rule has been determined to be not significant
for purposes of E.O. 12866.
This interim final rule does not contain a collection-of-
information requirement, subject to the Paperwork Reduction Act.
List of Subjects
50 CFR Part 217
Endangered and threatened species, Exports, Fish, Imports, Marine
mammals, Transportation.
50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: February 7, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 217 and part
222 are amended as follows:
PART 217--GENERAL PROVISIONS
1. The authority citation for part 217 is revised to read as
follows:
Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544,
unless otherwise noted.
2. In Sec. 217.12, the definitions of ``Right whale,''
``Underway,'' ``Vessel,'' and ``Vessel restricted in her ability to
maneuver'' are added in alphabetical order to read as follows:
Sec. 217.12 Definitions.
* * * * *
Right whale, as used in subpart D of this part, means any whale
that is a member of the western North Atlantic population of the
northern right whale species (Eubalaena glacialis).
* * * * *
[[Page 6738]]
Underway, with respect to a vessel, means that the vessel is not at
anchor, or made fast to the shore, or aground.
* * * * *
Vessel includes every description of watercraft, including
nondisplacement craft and seaplanes, used or capable of being used as a
means of transportation on water.
Vessel restricted in her ability to maneuver has the meaning
specified for this term at 33 U.S.C. 2003(g).
* * * * *
PART 222--ENDANGERED FISH OR WILDLIFE
3. The authority citation for part 222 is revised to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under
16 U.S.C. 1361 et seq.
4. Section 222.32 is added to subpart D to read as follows:
Sec. 222.32 Approaching North Atlantic right whales.
(a) Prohibitions. Except as provided under paragraph (c) of this
section, it is unlawful for any person subject to the jurisdiction of
the United States to commit, attempt to commit, to solicit another to
commit, or cause to be committed any of the following acts:
(1) Approach (including by interception) within 500 yards (460 m)
of a right whale by vessel, aircraft, or any other means;
(2) Fail to undertake required right whale avoidance measures
specified under paragraph (b) of this section.
(b) Right whale avoidance measures. Except as provided under
paragraph (c) of this section, the following avoidance measures must be
taken if within 500 yards (460 m) of a right whale:
(1) If underway, a vessel must steer a course away from the right
whale and immediately leave the area at a slow safe speed;
(2) An aircraft must take a course away from the right whale and
immediately leave the area at a constant airspeed.
(c) Exceptions. The following exceptions apply to this section, but
any person who claims the applicability of an exception has the burden
of proving that the exception is applicable:
(1) Paragraphs (a) and (b) of this section do not apply if a right
whale approach is authorized by NMFS through a permit issued under
subpart C (Endangered Fish or Wildlife Permits) of this part or through
a similar authorization.
(2) Paragraphs (a) and (b) of this section do not apply where
compliance would create an imminent and serious threat to a person,
vessel, or aircraft.
(3) Paragraphs (a) and (b) of this section do not apply when
approaching to investigate a right whale entanglement or injury, or to
assist in the disentanglement or rescue of a right whale, provided that
permission is received from NMFS or a NMFS designee prior to the
approach.
(4) Paragraphs (a) and (b) of this section do not apply to an
aircraft unless the aircraft is conducting whale watch activities or is
being operated for that purpose.
(5) Paragraph (b) of this section does not apply to the extent that
a vessel is restricted in her ability to maneuver, and because of the
restriction, cannot comply with paragraph (b) of this section.
[FR Doc. 97-3632 Filed 2-10-97; 3:49 pm]
BILLING CODE 3510-22-P