[Federal Register Volume 69, Number 168 (Tuesday, August 31, 2004)]
[Notices]
[Pages 53040-53043]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19775]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 051804D]


Notice of Availability of the Draft Revised Recovery Plan for the 
North Atlantic Right Whale

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

ACTION: Notice of availability; request for comments.

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SUMMARY: NMFS announces the availability for public review of the draft 
revised Recovery Plan (Plan) for the North Atlantic Right Whale 
(Eubalaena glacialis). NMFS is soliciting review and comment from the 
public and all

[[Page 53041]]

interested parties on the Plan, and will consider all substantive 
comments received during the review period before submitting the Plan 
for final approval.

DATES: Written comments on the revised Recovery Plan must be received 
no later than 5 p.m., eastern standard time, on November 1, 2004.

ADDRESSES: Written comments should be sent to: Chief, Marine Mammal 
Conservation Division, Attn: North Atlantic Right Whale Recovery Plan, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910. Comments may also be sent 
via e-mail to the following address: [email protected]. Interested 
persons may obtain the Plan for review from the above address; the Plan 
is also available on-line from the Office of Protected Resources web 
site at the following URL: http://www.nmfs.noaa.gov/pr/PR3/recovery.html

FOR FURTHER INFORMATION CONTACT: Michael Payne, Chief, Marine Mammal 
Conservation Division, (301) 713-2322 x101, e-mail 
[email protected]; or Phil Williams, Chief, Endangered Species 
Division, (301) 713-1401 x145, e-mail [email protected].

SUPPLEMENTARY INFORMATION: Recovery Plans (1) describe actions 
considered necessary for the conservation and recovery of species 
listed under the Endangered Species Act of 1973 (ESA), as amended (16 
U.S.C. 1531 et seq.), (2) establish criteria for the downlisting or 
delisting of such species, and (3) estimate the time and costs required 
to implement recovery actions. The ESA requires the development of 
Recovery Plans for listed species unless such a plan would not promote 
the recovery of a particular species. Section 4(f) of the ESA, as 
amended in 1988, requires that public notice and an opportunity for 
public review and comment be provided during Recovery Plan development. 
NMFS will consider all substantive comments and information presented 
during the public comment period in the course of finalizing this 
Recovery Plan.
    Right whales were listed as endangered under the Endangered Species 
Conservation Act in June 1970 (35 FR 8495). Right whales in the North 
Pacific and North Atlantic were until recently considered a single 
species (E. glacialis), while the southern right whale (E. australis) 
was considered a separate, but closely related species. The 1991 
Recovery Plan for the Northern Right Whale (E. glacialis) addressed 
right whales throughout the northern hemisphere. However, recent 
genetic studies provide strong evidence of separate specific status for 
North Atlantic and North Pacific right whales, and accordingly have 
suggested changing the binomial for the North Pacific population. The 
set of taxonomic classifications put forth were accepted by the 
International Whaling Commission. NMFS revised the List of Threatened 
and Endangered Wildlife to reflect this on April 10, 2003 (68 FR 
17560). The revised classifications are as follows: the North Atlantic 
right whale (E. glacialis); the North Pacific right whale (E. 
japonica); and the Southern right whale (E. australis). These 
classifications will be used for the purposes of this Plan, and for 
those of a separate plan being drafted for the North Pacific right 
whale. Therefore, this revised Plan addresses only status, recovery 
actions needed, and criteria for the North Atlantic right whale.
    Historically depleted by commercial whaling, the North Atlantic 
right whale population at present numbers approximately 300 
individuals, and is impacted both directly and indirectly by human 
activities primarily in the form of vessel collisions and entanglement 
in fishing gear. These impacts have contributed to a lack of recovery 
for the species.
    A recovery plan was completed for the Northern right whale 
(Eubalaena glacialis) in 1991, which referred to the North Atlantic 
right whale as a population. NMFS has revised the Plan according to: 
public comments received, recent information, and a recently revised 
plan format. In particular, NMFS further refined recovery criteria for 
the species and has revised the Plan accordingly. Once finalized, NMFS 
will use this Plan to guide research and conservation activities 
designed to promote the recovery of North Atlantic right whales.
    The Plan includes the following prioritized objectives to recover 
the North Atlantic right whale: (1) Minimize sources of human-caused 
death, injury, and disturbance; (2) develop demographically-based 
recovery criteria; (3) identify, characterize, protect, and monitor 
important habitats; (4) monitor the status and trends of abundance and 
distribution of the western North Atlantic right whale population; (5) 
and coordinate Federal, state, international, and private efforts to 
implement the Recovery Plan. The ultimate goal of the Plan is to 
promote the recovery of the North Atlantic right whale to a level 
sufficient to warrant its removal from the List of Endangered and 
Threatened Wildlife and Plants under the Act. The intermediate goal is 
to reclassify the species from endangered to threatened.
    Criteria for reclassification of the North Atlantic right whale are 
included in the Plan. In summary, the North Atlantic right whale may be 
reclassified from endangered to threatened when all of the following 
have been met: (1) the population structure of right whales (including, 
but not limited to, such parameters as abundance, growth rate, age 
structure, gender ratios) is indicative of a biologically significant 
increasing population; (2) the population has increased for a period of 
20 years at an average rate of increase of 2 percent per year or more; 
(3) all five listing factors are addressed; and (4) given current and 
projected conditions, the population has no more than a 1 percent 
chance of quasi-extinction in 100 years. For the purposes of the Plan, 
quasi-extinction is defined by NMFS as a small, critical population 
threshold whose lower boundary may be unacceptable for the continued 
survival of a species. For instance, this could be the population size 
at which factors such as demographics, inbreeding depression, or 
behavioral constraints prohibit survival (Ginzburg et al., 1982 as 
cited in Burgman et al., 1993).
    Criteria for delisting the North Atlantic right whale are not 
included in the Plan because the current abundance of North Atlantic 
right whales is an order of magnitude less than an abundance at which 
NMFS would consider delisting the species, and decades of population 
growth likely would be required before the population could attain such 
an abundance. In addition, conditions related to delisting are now too 
distant and hypothetical to realistically develop specific criteria. 
Such criteria will be included in a future revision of the Recovery 
Plan well before the population is at a level when delisting becomes a 
reasonable decision.

Comments and Responses

    Previous public comments have been incorporated into the current 
updated version of the Plan. NMFS published a notice of availability of 
a revised draft Recovery Plan for the western North Atlantic right 
whale (2001 draft Plan) in the Federal Register on July 11, 2001 (66 FR 
36260) and extended the comment period on the draft Plan on August 22, 
2001 (66 FR 44115). Comments were received from 15 individuals and 
organizations during the comment period. Reviewers' comments and NMFS' 
response to the comments are discussed in this document.

[[Page 53042]]

    The majority of comments involved updates to, or modifications of, 
the introductory sections of the Plan on right whale distribution, 
abundance, and human impact. These sections have been modified 
accordingly. A number of commenters commended NMFS for preparing the 
revised Plan and indicated that the revision was an improvement over 
the current (prepared in 1991) Northern Right Whale Recovery Plan.
    Comment 1: Many commenters suggested NMFS include specific actions 
and tasks in the Plan, particularly actions to reduce right whale 
fishing gear entanglements and ship collisions. With regard to reducing 
ship strikes, these suggested actions included, among others, such 
things as restricting ship speed where right whales occur; limiting 
ship traffic where right whales occur; requiring fixed shipping routes 
to and from east coast ports; and complete avoidance by ships of areas 
used by right whales for feeding, nursing, and traveling. With regard 
to reducing entanglement in fishing gear, recommendations for specific 
actions included, among others, such things as prohibiting all fishing 
operations in waters where right whales occur; requiring knotless buoy 
weak links; prohibiting single lobster traps and requiring single buoy 
lines to multiple lobster traps; elimination of all vertical lines and 
fixed gear that pose a threat of entanglement; requiring remote and 
time-release lines; and requiring the removal of lobster gear in areas 
where whales are sighted.
    Response: NMFS has considered including these specific actions in 
the Plan. However, many of these specific measures are being identified 
and implemented through other processes. For example, NMFS has 
developed and published in the Federal Register an advance notice of 
proposed rulemaking with proposed regulatory measures to implement a 
comprehensive ship strike reduction strategy which includes a number of 
the actions identified by commenters (69 FR 30857, 1 June 2004; public 
comment period extended July 9, 2004 (69 FR 41446)). In addition, NMFS 
identifies, assesses, develops, and implements commercial fishing 
operations regulations through the Atlantic Large Whale Take Reduction 
Plan (50 CFR 229.32). Through this process and related processes, 
including consultations on Federal actions under section 7 of the ESA, 
fishing gear advisory groups, various workshops, and other means, NMFS 
has implemented a number of restrictions, and is contemplating or in 
the process of implementing others. Therefore, NMFS believes that the 
wording in the Plan is sufficiently rigorous without including specific 
measures being identified and implemented through other processes 
(e.g., specific types of changes to fishing operations). The Plan 
requires identifying means to: reduce the effects of human activities 
(i.e., entanglements and ship collisions), monitor the program being 
used and, if not sufficiently rigorous, implement more stringent 
measures to reduce or eliminate threats.
    Comment 2: NMFS received comments recommending the removal of 
specific actions. Several commenters recommended deleting the action to 
assess intermodal transport to explore ways to reduce ship traffic in 
certain areas.
     Response: NMFS agrees and the Plan has been modified. This action 
has been deleted.
    Comment 3: Several commenters pointed out an inconsistency in the 
2001 draft Plan regarding the inadequacy of existing regulatory 
mechanisms to protect right whales (one of the factors considered in 
listing or delisting a species). Specifically, the draft indicated that 
existing regulations were adequate, but further regulation may be 
needed.
    Response: NMFS changed the recovery criteria in the Plan to address 
this comment.
    Comment 4: With regard to the draft recovery criteria in the 2001 
draft Plan, NMFS received few comments. One commenter stated ''. . . 
the identified approach and criteria seem reasonable.''
    Response. NMFS has further refined recovery criteria for the 
species and has revised the Plan accordingly.
    Comment 5: With regard to the recovery criteria, two commenters 
recommended using ``generation-time'' rather than years.
    Response: NMFS recognizes this as an approach that has been used in 
developing some recovery criteria, however, information on age at 
sexual maturity and other potential measures of generation time is 
imprecisely known in right whales. In addition, adopting the use of 
generation time as a unit of time for a temporal unit would be counter 
to the conclusions of the workshop convened by NMFS in February 2001 to 
develop reclassification criteria for endangered large whale species 
and much of the scientific literature on this issue. The 100-year 
criteria is more conservative than generation time and, therefore, 
ultimately more protective of the severely depleted North Atlantic 
right whale.
    Comment 6: A number of comments concerned the designation of 
priorities in the implementation schedule, as well as comments aimed at 
clarifying the content of the table of priorities. For example, the 
suggestion was made to elevate the task of identifying features of 
right whale habitat from priority 2 to 1.
    Response: These suggestions have been accepted and changes have 
been made accordingly, while also adhering to recovery planning 
guidelines which provide that priority 1 recovery actions are ``Actions 
that must be taken to prevent extinction or to prevent the species from 
declining irreversibly.''
    Comment 7: One commenter requested that the section on ``Early 
Warning Surveys'' (surveys that are used to determine the locations of 
right whales and to pass the sighting information onto mariners) be 
revised to indicate that (a) the main purpose of the flights is to warn 
mariners, and (b) that information on ship strike ``near misses'' be 
collected in a standardized way.
    Response: These suggested changes have been made by incorporating 
the recommendations into specific tasks in the Recovery Program section 
of the Plan on reducing ship strikes.
    Comment 8: Several commenters requested a change in the Plan to 
indicate that right whale photo-identification data and sighting and 
other information apropos to Geographic Information System studies be 
provided to curators of such information in a timely manner.
    Response: NMFS has made these changes in the Recovery Program 
section of the Plan.
    Comment 9: Comments were received regarding statements made in the 
Plan about U.S. Navy operations, specifically about the need for NMFS 
to have a better understanding of the types of activities undertaken by 
the Navy in waters where right whales occur.
    Response: Portions of the Plan have been modified to address the 
concern in this comment. For example, the threats section of the Plan 
on ``Underwater Explosive Activities'' now states ``As described in 
Appendix A, the Navy has consulted with NMFS under section 7 of the ESA 
on the potential effect of some of its operations on protected species. 
In addition, all Navy operations that introduce loud sounds into the 
marine environment are subject, under the MMPA, to application for and 
provision of small take letters of authorization from NMFS. The Navy 
has made a number of significant modifications to its operations to 
facilitate protection of right whales in their critical habitat in the 
SEUS. The NMFS and Navy both

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understand the need to continue to keep an open dialogue, or possible 
formal or informal section 7 consultations, with regard to Navy 
operations and to evaluate ways to mitigate possible environmental 
impacts of the operations throughout the eastern seaboard.''
    Comment 10: Several commenters indicated that voluntary measures 
(as identified in the 2001 draft Plan) to reduce ship strikes would not 
be adhered to by the shipping industry, and therefore, should not be 
considered.
    Response: NMFS has modified the Plan by removing the task to 
implement voluntary ship strike reduction measures. See also response 
to Comment 1 regarding an advance notice of proposed rulemaking on ship 
strike reduction measures.
    Comment 11: Several commenters indicated that the section of the 
Plan on compliance and enforcement of various right whale protective 
regulations needed to be amended and expanded.
    Response: Changes have been made to the section on enforcement in 
the Recovery Program section of the Plan by adding a task to: ``Review 
and assess the implementation and efficacy of the enforcement programs 
and take steps to improve the enforcement measures if deficiencies are 
identified.'' The level of support of this element has been increased 
in the implementation plan.
    Comment 12: Comments from two people indicated that an assessment 
of the boundaries of critical habitat in the northeast U.S., as well as 
those in the southeast U.S., should be made.
    Response: The Plan has been revised in the Recovery Program section 
to address the concerns raised in this comment.

Public Comments Solicited

    NMFS solicits written comments on the draft Revised Recovery Plan. 
All substantive comments received by the data specified above will be 
considered prior to final approval of the Plan.

Authority

    The authority for this action is section 4(f) of the Endangered 
Species Act (16 U.S.C. 1531 et seq.)

Literature Cited

    Burgman, M.A., S. Ferson, and H.R. Akcakaya. 1993. Risk Assessment 
in Conservation Biology. Chapman & Hall, University Press, Cambridge. 
p14.
    Ginzburg, L.R., L.B. Slobodkin, K. Johnson, and A.G. Bindman. 1982. 
Quasiextinction probabilities as a measure of impact on population 
growth. Risk Analysis. 21: 171-81.
    National Marine Fisheries Service. 1991. Recovery Plan for the 
Northern Right Whale (Eubalaena glacialis). Prepared by the Right Whale 
Recovery Team for the National Marine Fisheries Service, Silver Spring, 
Maryland. 86pp.

    Dated: August 25, 2004.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 04-19775 Filed 8-30-04; 8:45 am]
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