[Federal Register Volume 70, Number 105 (Thursday, June 2, 2005)]
[Notices]
[Pages 32293-32303]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10987]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

I.D. 033105B


Endangered and Threatened Wildlife; Recovery Plans for Listed 
Marine Mammals

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

ACTION: Notice of availability.

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SUMMARY: NMFS announces the availability of the final revision of the 
recovery plan for the western North Atlantic right whale, Eubalaena 
glacialis, as required by the Endangered Species Act of 1973 (ESA).

ADDRESSES: The final plan is provided on NMFS' Protected Resources 
internet website at www.nmfs.noaa.gov/pr/PR3/recovery.html. Also, 
requests for a copy of the recovery plan may be submitted to Chief, 
Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Gregory Silber, Ph.D., Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910, Phone: 301-713-2322; Fax: 301-427-2522.

SUPPLEMENTARY INFORMATION:

Background

    Congress passed the ESA (16 U.S.C. 1531 et seq.) to protect species 
of plants and animals in danger of extinction. NMFS and the U.S. Fish 
and Wildlife Service (FWS) share responsibility for the administration 
of the ESA. NMFS is responsible for most endangered and threatened 
marine mammal species, including the Northern right whale (Eubalaena 
glacialis). Listed endangered and threatened species under NMFS 
jurisdiction are identified in 50 CFR 222.23(a) and 50 CFR 227.4, 
respectively. The List of Endangered and Threatened Wildlife, which 
contains species under the jurisdiction of both agencies, is provided 
in 50 CFR 17.11(h). The North Atlantic right whale (originally the 
Northern right whale) is listed as endangered.
    Section 4(f)(1) of the ESA requires that recovery plans be 
developed and implemented for the conservation and survival of 
endangered and threatened species, unless such plans would not promote 
the conservation of the species. A plan was prepared at the request of 
the Assistant Administrator for Fisheries to promote the recovery of 
North Atlantic right whales.

Comments and Responses

    NMFS published a notice of availability of, and request for 
comments on, the draft revised recovery plan for the North Atlantic 
right whale in the Federal Register on August 31, 2004 (69 FR 53040). 
We received comments from eight individuals and organizations, and 
approximately 5500 form letters during the 60-day comment period.
    NMFS received a number of suggestions regarding editorial and 
formatting changes. Generally, the suggestions regarding editorial and 
formatting changes were accepted and the plan has been modified 
accordingly. NMFS also received approximately 5500 form letters via e-
mail encouraging the implementation of a strengthened recovery plan. 
The agency appreciates these comments and is moving as swiftly as 
possible to implement this plan.
    Most of the other comments requested an update of, or modification 
to, the introductory sections of the plan on North Atlantic right whale 
distribution and abundance, and human impacts. Commenters also provided 
comments on the reclassification criteria, listing/recovery factors and 
the implementation schedule, and the recovery narrative. These comments 
are addressed in the following sections of this notice of availability.

Comments on the Reclassification Criteria

    Several comments were received on the reclassification criteria. 
The text on the reclassification criteria from the 2004 draft recovery 
plan follows:

[[Page 32294]]

    North Atlantic right whales may be considered for reclassifying to 
threatened when all of the following have been met:
    I. 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;
    II. The population has increased for a period of 20 years at an 
average rate of increase of 2% per year or more;
    III. All five listings factors are addressed; and
    IV. Given current and projected conditions, the population has no 
more than a 1-percent chance of quasi-extinction in 100 years.
    Criteria for delisting North Atlantic right whales are not included 
in the recovery plan. Decades of population growth are required before 
the population could attain a level such that delisting could be 
contemplated. 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 before the 
population is at a level when delisting becomes a reasonable decision.
    Comment 1: One commenter suggested that the first criterion was 
confusing and vague and that the population structure should be made 
comparable to that of a ``normal'' whale population to consider 
reclassification. The commenter suggested rewriting this criterion to 
clarify what the standards mean, and to specify the biological data 
that would be used to determine if, and when, the criterion is met.
    Response: In the final plan, NMFS has revised the first criterion 
to clarify that this criterion addresses the population ecology and 
demography of right whales, not their population structure. This 
criterion is designed to make certain that the population ecology of 
northern North Atlantic right whales has all of the attributes of a 
population that is growing; however, NMFS acknowledges that we cannot 
currently assign specific values to each of the relevant variables. To 
meet this criterion, the vital rates of northern right whales (e.g., 
age-specific survival and reproduction, and lifetime reproductive 
success) will have to be identified, those vital rates will need to be 
related to the population's growth rate, and the range of those vital 
rates that would be necessary for the population to grow will have to 
be determined.
    Comment 2: One commenter remarked that the second reclassification 
criterion sets an unacceptably low standard for reclassification. A two 
percent annual rate of increase for a small population such as right 
whales could indicate a population still under considerable stress. The 
commenter recommended that NMFS reexamine this criterion and increase 
the amount of time and/or the minimal growth rate that must be met to 
satisfy this condition.
    Response: In the final plan, NMFS has revised the time period (to 
35 years) over which the right whale population must increase at a rate 
of at least 2 percent per year to allow the population to double before 
this criterion is met. Because this criterion is designed to work in 
concert with the other three criteria, all four criteria would have to 
be met before we could propose to reclassify northern right whales from 
endangered to threatened. NMFS interprets the criterion ``all five 
listing factors are addressed'' to mean that the human and natural 
phenomena that currently combine to endanger right whales should no 
longer impair the species' recovery from endangerment. To reclassify 
the species, the population would have to sustain a positive growth 
rate and the known threats to the population would no longer be acting 
on the population. NMFS has revised the criteria to make this 
relationship clearer.
    Comment 3: One commenter suggested, with regard to the fourth 
reclassification criterion, that research be undertaken to develop 
population parameters necessary to run related population models and 
developing such parameters be listed as being top priority in the plan. 
However, the same commenter also recommended, that studies to develop 
model parameters be assigned a lower priority ranking in lieu of 
implementing more effective protection measures given that 
reclassification would not be considered for at least 20 years.
    Response: NMFS agrees that research will need to be undertaken to 
identify the population variables for right whales necessary to run 
existing population models for the species or to develop new population 
models. To meet the first of the four reclassification criteria, 
research will have to identify the vital rates of northern right 
whales, relate those vital rates to the population's growth rate, and 
determine the range of those vital rates that would be necessary for 
the population to grow. These are the same variables that would be 
necessary to run most population models. NMFS understands this concern 
but disagrees that it is necessary to assign a lower priority to 
studies to develop model parameters than for implementing effective 
protection measures for northern right whales because the individuals 
who are developing the existing population models for northern right 
whales are different from the individuals who are taking management 
actions to protect right whales. Thus far, work on population models 
for right whales has not occurred at the expense of management actions 
to protect the species. In fact, the population models that have been 
developed for right whales have helped focus management actions to 
protect the species. NMFS expects that work on population models will 
continue to develop concurrent with management action.
    Comment 4: Several comments were received on the Listing/Recovery 
Factors. One commenter recommended modifying the term ``regulatory 
mechanisms'' in Listing/Recovery Factor D to read ``regulatory 
mechanisms, non-regulatory programs, and other means''. Another 
commenter requested clarification of the term ``biologically 
insignificant'' in Listing/Recovery Factor E and how it will be used. 
The commenter recommended that PBR be described to explain what 
``biologically insignificant'' is at present.
    Response: Section 3(a)(1) of the ESA, as amended, identifies five 
factors for listing species as threatened or endangered. Section 
(3)(a)(1)(D) of the ESA identifies the fourth factor as ``the 
inadequacy of existing regulatory mechanisms.'' The listing/recovery 
factors cited in the plan use the terminology of the statute and thus 
cannot be changed. To clarify the meaning of the phrase ``result in a 
level of mortality considered to be biologically insignificant,'' NMFS 
has replaced this term with ``result in mortality levels that do not 
limit the population's growth rate.'' Although the commenter 
recommended using the term ``potential biological removal'' (PBR) to 
clarify the term ``biologically insignificant,'' PBR is a term from the 
Marine Mammal Protection Act of 1972, as amended. Because this recovery 
plan is prepared to comply with section 4 of the ESA, we chose not to 
transfer terminology from another statute.

Comments on the Implementation Schedule

    Comment 5: One commenter recommended that the Implementation 
Schedule include a more comprehensive list of non-governmental 
organizations, research organizations, universities, and State agencies 
that contribute to right whale recovery. The commenter suggested that 
if these organizations cannot be listed in the Implementation Schedule, 
then they

[[Page 32295]]

should be acknowledged in the section's introductory text. 
Alternatively, the commenter recommended that the title of the column 
be changed to read ``Agencies Involved'' if only government entities 
are listed.
    Response: It would be difficult to list all organizations, academic 
institutions, and other entities involved in right whale-related 
activities. An attempt to create an exhaustive list may overlook some 
group. The plan therefore identifies government agencies or government-
convened organizations with relevant actions or interests.
    Comment 6: One commenter expressed concern that listing an agency 
as involved in a recovery action commits that agency to provide 
resources outside the legal authority or environmental compliance 
obligations of that agency. The commenter also noted that this implies 
an expectation for those agencies to serve as the primary funding 
sources or data manager for such actions.
    Response: The draft Recovery Plan already contained a disclaimer 
about agency responsibility under the plan; nonetheless, in response to 
this comment, the disclaimer in the plan (page iii) has been revised to 
read: ``Recovery plans delineate reasonable actions, which the best 
available science indicates are required to recover and/or protect, 
listed species. The National Marine Fisheries Service, sometimes with 
the assistance of recovery teams, contractors, State agencies, and 
others, publishes these plans. Recovery plans do not necessarily 
represent the views or the official positions or approval of any 
individuals or agencies involved in the plan formulation, other than 
the National Marine Fisheries Service. They represent the official 
position of the National Marine Fisheries Service only after the 
Assistant Administrator for Fisheries, NOAA (AA), has signed them. 
Recovery plans are guidance and planning documents only; identification 
of an action to be implemented by any public or private party does not 
create a legal obligation beyond existing legal requirements. Nothing 
in this plan should be construed as a commitment or requirement that 
any Federal agency obligate or pay funds in any one fiscal year in 
excess of appropriations made by Congress for that fiscal year in 
contravention of the Anti-Deficiency Act, 31 U.S.C. 1341, or any other 
law or regulation. Approved recovery plans are subject to modification 
as dictated by new findings, changes in species status, and the 
completion of recovery actions.''
    Comment 7: One commenter recommended that NMFS combine activities 
in the Implementation Schedule with similar objectives, where 
applicable, to save costs for implementing the recovery plan. For 
example, the commenter noted that objective 1.1.29 - Consider 
conducting studies of whale behavior relative to various types of 
``alerting'' sounds that may warn sleeping, feeding, or courting whales 
to the presence of oncoming ships, and assess the desirability of 
deploying such devices in an environment already heavily polluted by 
noise - and objective 3.3.4 - Conduct studies to assess the direct and 
indirect effects of anthropogenic noise on the distribution, behavior, 
and productivity of right whales - might overlap for some portions of 
the work required for each objective.
    Response: NMFS believes that these objectives do not necessarily 
overlap since they represent different conditions i.e. objective 1.1.29 
refers to introduced detection and deterrent methods that are currently 
being considered, or will be considered in the future, specifically to 
minimize ship strikes. Objective 3.3.4, on the other hand, involves 
studying the effects of existing marine anthropogenic noise, such as 
from ships or from marine exercises, and their effects on whale 
behavior. Combining these tasks would dilute the objectives of the 
respective studies.

Comments on Priorities of Action Items in the Implementation Schedule

    NMFS received a number of comments with regard to shifting the 
priority indication of tasks in the implementation schedule. Priorities 
in the implementation schedule are assigned as follows:
    Priority 1: An action that must be taken to prevent extinction or 
to prevent the species from declining irreversibly.
    Priority 2: An action that must be taken to prevent a significant 
decline in population numbers or habitat quality, or to prevent other 
significant negative impacts short of extinction.
    Priority 3: All other actions necessary to provide for full 
recovery of the species.
    Comment 8: One commenter suggested changing objective 1.1.5 - 
Assess the effectiveness and efficiency of the survey programs in 
attaining the primary goal of reducing ship strikes - from a priority 2 
to a priority 1, as without this assessment there is the possibility of 
repetition and duplicate efforts, which is not the best use of limited 
resources.
    Response: NMFS believes that this action, although an important 
one, does not meet the criterion of essential to prevent extinction or 
to prevent the species from declining irreversibly in the context of a 
recovery plan. Further, this aspect, among others, will be covered 
under the Ship Strike Reduction Strategy.
    Comment 9: Two commenters suggested changing objective 1.1.13 - 
Conduct risk assessment analyses of various ship routing or speed 
options to assess best set of vessel traffic management options by area 
- to priority 1 as this would place more emphasis on this objective and 
encourage the shipping industry participation and increase buy-in for 
the Ship Strike Reduction Strategy. One commenter observed that two 
previous items were priority 1 and it would seem that without a risk 
assessment of the various options (this item) the previous items 
couldn't be accomplished.
    Response: NMFS does not believe that this action is essential to 
recovery of the species in the context of a recovery plan. Further, 
this aspect, among others, will be covered under the Ship Strike 
Reduction Strategy.
    Comment 10: Two commenters suggested that objective 1.1.14 - Assess 
the potential economic impact of vessel management options - be a 
priority 1 action due to the crucial nature of effectively 
communicating the ship strike reduction strategy to corporate and 
agency management.
    Response: NMFS believes that public and private decisionmakers are 
capable of understanding the legal and biological basis of the recovery 
plan, and that the type of economic analyses contemplated, while 
informative for related planning purposes, are not essential to 
recovery of the species in the context of a recovery plan. Further, 
this aspect, among others, will be covered under the Ship Strike 
Reduction Strategy.
    Comment 11: One commenter suggested changing objective 1.1.18 - 
Establish and/or maintain regionally-based liaison positions to work 
directly with the shipping industry - from priority 2 to 1, as the 
Jacksonville-based NMFS Shipping Liaison has been an invaluable asset 
to the open communications between the shipping industry, mariner 
community, and NMFS and should continue to be funded.
    Response: NMFS believes that, while an important function, this 
action is not essential to prevent extinction or to prevent the species 
from declining irreversibly.
    Comment 12: One commenter recommended changing objective 1.1.33 - 
Establish or use existing GIS to: (a) conduct analysis of right whale 
occurrence and distribution; (b) prepare

[[Page 32296]]

predictive models of occurrence; (c) determine right whale and ship 
traffic overlap; (d) analyze patterns of strandings, whale/vessel 
interactions, and ``near-miss incidents; and (e) assess ways 
to minimize ship/whale interactions - from priority 2 to 1 due to the 
large scale of coverage this action includes and the direct 
implications on the management decision-making process.
    Response: Although Geographic Information System (GIS) analysis is 
a valuable tool, NMFS does not believe that this objective is a 
priority 1 action (essential to prevent extinction or to prevent the 
species from declining irreversibly) in the context of a general 
recovery plan.
    Comment 13: One commenter suggested that objective 1.2.9 - Expand 
fisheries observer programs - should be a priority 3 rather than a 2. 
Expanding the observer program, particularly for the trap/pot 
fisheries, is an expensive program with limited utility.
    Response: NMFS concurs with this comment and the necessary changes 
have been made.
    Comment 14: One commenter recommended objective 3.3.10 - Minimize 
identified adverse effects from oil, gas, and hard mineral exploration 
and development - be elevated from a priority 3 to 2, and emphasized 
the importance of identifying the adverse effects on the species prior 
to conducting studies to minimize the adverse effects.
    Response: NMFS agrees with this comment and has changed the plan 
accordingly.
    Comment 15: One commenter recommended changing objective 3.3.12 - 
Assess and update existing contingency plans for oil and chemical 
spills in waters in which right whales occur - from priority 3 to 2. In 
order to have a usable, productive final plan, NMFS should place an 
increased priority to further stress the importance of an oil and 
chemical spill contingency plan relating to right whales in the 
Southeast U.S.
    Response: NMFS has incorporated this change into the plan.
    Comment 16: One commenter recommended that objective 3.3.15 - 
Continue and expand education/public awareness programs - be made a 
priority 2 or 3, rather than a 1, as this type of activity is not 
necessary to avert extinction.
    Response: NMFS concurs with this comment and the necessary changes 
have been made.
    Comment 17: One commenter observed that some lower priority actions 
appear to receive more funding than higher priority actions. For 
example, 1.1.14 - Assess the potential economic impact of vessel 
management options - (priority 3) appears to be funded at $85,000 over 
the first three fiscal years; whereas, 1.1.12 - Assess the utility and 
feasibility of speed restrictions in right whale habitat - (priority 1) 
appears to be funded at $15,000 for the second fiscal year. It was 
recommended that explanations for these fiscal differences be 
articulated in an explanatory narrative for the implementation 
schedule.
    Response: NMFS has provided estimates of cost to complete or 
execute the task based on best available information and given existing 
knowledge of agency resources. NMFS points out that the plan (page V-1) 
states ``Estimates are based on information available at this time; the 
amount needed to actually complete the task may change as specific 
actions are pursued.'' Priority levels alone do not determine the 
amount of funding available for a given task. In addition, the plan 
provides estimates of overall cost, not commitments to funding levels.
    Comment 18: One commenter stated that the Executive Summary, fourth 
paragraph, indicates that development of demographic recovery criteria 
must be completed quickly; whereas elsewhere the plan notes that 
downlisting could not be considered for at least 20 years. The 
commenter agreed with the need to develop downlisting criteria but 
disagreed that this was top priority that ranked with the same urgency 
as implementing improved protection measures. The commenter recommended 
that this be listed as a second or third priority action.
    Response: To meet the first of the four reclassification criteria, 
the demographic criteria that will be used to monitor and measure 
changes in the status and trend of right whales will have to be 
identified. Further, these demographic measures are necessary to 
evaluate the effectiveness of any measures that are implemented to 
protect right whales. For both of these reasons, identifying and 
developing these demographic variables must remain a top priority for 
the right whale's recovery.

Comments on Background Information Sections

Comments on Brief Overview
    Comment 19: One comment was received on page IA-1 recommending the 
deletion of the statement: ``although precise estimates of abundance 
are not available'' (first paragraph). While the exact number of right 
whales is never known, it is believed that most whales have been photo-
identified and this represents a total count that is likely very close 
to the actual population size.
    Response: As the commenter notes, the ``exact number'' is not known 
at this time. That is the same as saying a ``precise estimate'' is 
unavailable. NMFS has chosen to leave the sentence as it appears in the 
draft.
    Comments on Distribution and Habitat Use
    Comment 20: One commenter stated on Page IC-2 that many of the 
citations for right whale sightings and residency times are outdated 
(e.g., early 1990s). The commenter mentioned that since the late 1990s, 
survey effort shows different information on peak sighting times and 
areas used by whales. The commenter recommended that information on 
right whale movements (e.g., Kingfisher) be updated in the plan, 
including recent satellite telemetry data on movement patterns.
    Response: The literature discussed is being provided as background 
information and provides a comprehensive review of the scientific 
literature for an uninitiated reader. Much of the satellite tagging 
data are not published or readily available. The paper by B.R. Mate, 
S.L. Nieukirk, and S.D. Kraus (Journal of Wildlife Management 1997, 
Volume 61, Number 4: Page 1393-1405) provides a detailed discussion on 
satellite-monitored movements of northern right whales.
    Comment 21: Two commenters recommended changes under 'Western North 
Atlantic Population' (Page IC-2). One commenter recommended adding: 
``Most calving takes place off Georgia and Florida, but limited surveys 
recently conducted along the mid-Atlantic suggest some mother-calf 
pairs use the area from Cape Fear, NC to SC as a wintering/calving area 
as well.'' Another commenter recommended modifying the last sentence of 
the same paragraph to: `` serious risks, such as collision or 
entanglement, while in transit between such areas.
    Response: These changes have been made to the plan.
Comments on Threats
    Comment 22: Four comments were received on sections G.1 - Vessel 
Interactions, and G.2 - Entrapment and Entanglement in Fishing Gear. 
One commenter suggested that the statement ``ship speed was an 
important factor in the frequency of occurrence of ship strikes `` 
should be elaborated upon to state that collision at lower speeds 
(e.g., below 14 knots) were not as often fatal. Two commenters stated 
that

[[Page 32297]]

information on vessel interactions was outdated and recommended that 
collision data from 2002 to 2004 be included in the final revised plan. 
Another commenter recommended the most recent stock assessment be used 
as the source of data on the number and rate of entanglements in 
fishing gear.
    Response: NMFS has included a conclusion from Laist et al. 
regarding ship strikes at reduced speeds. NMFS has also updated the 
collision and entanglement information to include data up to 2004.
    Comment 23: One commenter expressed concern regarding 
implementation of the 500-yard (460 m) approach rule in section G.1. 
Research was cited showing low compliance with the existing speed 
guidelines. The commenter supported the promulgation of existing whale 
watching guidelines as regulations to promote better protection of 
whales, and compliance with these protective management measures.
    Response: NMFS directs the commenter to the response to comment 68 
on the 500-yard (460 m) approach rule. NMFS and other partner agencies 
(including NGOs) have continued to provide outreach and educational 
materials to both commercial and recreational vessel owners and 
operators to increase awareness of and compliance with the 500-yard 
(460 m) approach rule. In January 2000 NMFS issued an Advanced Notice 
of Proposed Rulemaking (ANPR) for North Atlantic Whale Protection (65 
FR 270) to reduce threats from vessel interactions. The ANPR 
specifically states that, ``to minimize the detrimental effects of 
directed vessel interactions with Northern Right Whales, NMFS issued an 
interim final rule prohibiting the approach of a right whale within 500 
yards (460 m) on Feb. 13, 1997. Although this rule provides certain 
exceptions, it generally prohibits vessels and aircraft from 
approaching a right whale within 500 yards (460 m), and is believed to 
provide adequate protection to this species from whale watch vessels.'' 
No changes were made to the plan.
    Comment 24: One commenter noted that section G.3 - Habitat 
Degradation does not include a discussion of the potential impact of 
additional energy development projects on right whales, and recommended 
some discussion of these projects.
    Response: NMFS has added a discussion with regard to potential 
energy development under section G.3.
    Comment 25: Three comments were received on section G.4 - Noise. 
One commenter recommended adding a statement that digital tag (DTAG) 
work was conducted in deep water environments and therefore caution 
should be used when extending study results to shallow water environs 
such as in the Southeast U.S. Two commenters stated that approaching 
right whales to attach DTAGs and then exposing the animals to sound was 
irreconcilable with the recovery of the species. One commenter 
expressed concern over harassment and behavioral impacts as well as 
potential synergistic impacts to the species when tagging is combined 
with other threats such as food scarcity, entanglement and ship 
strikes. Commenters felt that the data obtained is not worth the risk 
to the species.
    Response: Some types of research (even those potentially disturbing 
to right whales) may be needed to help guide management/recovery 
efforts. NMFS believes that, should some types of data collection be 
considered harmful, the ESA section 7 consultation process, research 
permit application, and peer-review processes will reveal this.
    Comment 26: Two commenters recommended edits to section G.6 - 
Underwater Explosive Activities. One commenter suggested that small 
take is not the proper standard for military readiness activities. 
Second, the commenter believed that it was inaccurate to state, ``[A]ll 
Navy operations that introduce loud sounds into the marine environment 
are subject `` The standard in the law is a prohibition on ``take'', 
not a prohibition on ``loud noise'', a subjective and potentially 
confusing term. It was recommended the sentence reading ``In addition, 
all Navy operations that introduce loud sounds into the marine 
environment are subject, under the Marine Mammal Protection Act of 1972 
(MMPA), to application for and provision of small take letters of 
authorization from NMFS'', be deleted. Another commenter suggested that 
the text: ``In addition, the Navy operations that introduce loud sounds 
into the marine environment are subject, under the MMPA, to application 
for and provision of the small take letters of authorization from 
NMFS'' was no longer the case, as Public Law 108-136 The National 
Defense Authorization Act of 2004 provides 2 processes for the 
Department of Defense (DOD) to receive exemptions for Navy actions if 
they are necessary for military readiness or national security. The 
commenter expressed concern over exemptions and recommended that NMFS 
work closely with DOD to address Navy activities in right whale 
habitat.
    Response: NMFS has modified text in section G.6 accordingly.

Comments on Conservation Measures

    Comment 27: One commenter stated that rather than listing the 
average number of right whales killed annually in the lobster fishery 
in section H.2.1 - List of Fisheries, NMFS should report the percentage 
of total deaths that this represents.
    Response: This is a matter of presentation only, i.e., the actual 
data are provided. Therefore, NMFS has chosen to leave the language in 
the section as is.
    Comment 28: Several comments were received on section H.2.2.1 - 
Atlantic Large Whale Take Reduction Team and Plan (ALWTRT and ALWTRP). 
One comment noted that section H.2.2.1 currently states that an 
Environmental Impact Statement (EIS) is in preparation, citing a June 
2003 FR document. As of November 2004, the EIS was still not published. 
The commenter requested that the plan be updated to reflect the current 
situation. Two commenters stated that the recovery plan should describe 
recent recommendations of the TRT and ongoing efforts to revise the 
TRP.
    Response: At the time of this writing, an EIS is still in 
preparation. The TRT provides recommendations to NMFS regularly. For 
latest developments arising from this process, the reader is referred 
to the website: http://www.nero.noaa.gov/whaletrp/index.htm
    Comment 29: One comment was received on section H.2.2.2 - Atlantic 
Offshore Cetacean Take Reduction Team (AOCTRT) and Plan, and the 
statement that the drift net fishery was closed ``based on the [AOCTRT] 
Team's recommendations and concerns about right whales.'' As the Team 
did not recommend closure of the fishery in its plan, the commenter 
recommended that this be corrected in final Plan.
    Response: NMFS has modified text in section H.2.2.2 accordingly.
    Comment 30: One commenter recommended changing the text in section 
H.3 - Efforts to disentangle right whales, to read, ``In the Southeast 
U.S., responders are available to assist and disentanglement equipment 
caches have been established at key locations.
    Response: NMFS agrees and has modified text in section H.3 
accordingly.
    Comment 31: One commenter noted that the language in section H.3 
indicating that numerous whales have been disentangled but two attempts 
were unsuccessful gave the impression that disentanglement efforts are 
far more effective than they actually are. This

[[Page 32298]]

section should note that: disentanglement efforts are successful in 
only a small percentage of cases; it has not been possible to 
disentangle most entangled right whales; and that long-term 
entanglements are a source of serious injuries.
    Response: NMFS has added text to section H.3 based on these 
comments.
    Comment 32: One commenter stated that information on workshops and 
meetings held since 1998 should be included in section H.4 - Efforts to 
Reduce Mortality or Disturbance from Ship Activities. This includes the 
submission of the Russell Report.
    Response: A description of all events, reports, and activities on 
this issue may be too voluminous for this plan. The reader is referred 
to the website http://www.nero.noaa.gov/shipstrike/ for reports on the 
subject.
    Comment 33: Three comments were received on section H.4.2 - 
Aircraft Surveys in the Southeastern U.S. One commenter stated that 
mariner advisories recommend using ``reduced'' speed, or refer mariners 
to Coast Pilot, which recommends using ``reduced'' speed. The commenter 
requested that NMFS check the accuracy of the reported advice and 
modify the text accordingly. Two commenters recommended that section 
H.4.2, be modified to read: `` immediately relayed to area mariners for 
their use in avoiding whales.'' Also they requested that NMFS specify 
Southeast U.S. survey lines as being East-West survey lines spaced at 
3-nautical mile intervals.
    Response: NMFS agrees and has modified text in section H.4.2 
accordingly.
    Comment 34: Another comment was received on section H.4.2, stating 
that this discussion should include information on the sightability of 
whales in the Southeast and the consequent limits of surveys as a means 
of reducing risk through real-time communications with vessels.
    Response: NMFS has modified section H.4.2 of the plan to 
incorporate this comment.
    Comment 35: Two comments were received on section H.4.3 - Aircraft 
Surveys in the Northeastern U.S. One commenter recommended that 
information on surveys in Massachusetts be updated to include results 
obtained since 1999. Another commenter recommended that this section 
stress the importance of opportunistic sightings, as reports from whale 
watch boats have played an important role in documenting entanglements 
in the Northeast.
    Response: NMFS has modified section H.4.3 of the plan to 
incorporate these comments.
    Comment 36: Two commenters stated that section H.4.4 - Updating 
Navigational Publications, needed to be updated. One commenter 
suggested that some of the information and charts in the draft plan 
say, ``will be revised'', which has already been done. Another 
commenter stated that the information on Coast Pilot is out of date. 
The commenter pointed out that in 2004, the NMFS Northeast Regional 
Office in collaboration with the NEIT has developed major revisions and 
this should be included in the plan.
    Response: NMFS views the updating of nautical charts and 
publications as an ongoing process and has modified text in section 
H.4.4 of the plan to reflect these comments and to include recent 
updates.
    Comment 37: Two commenters pointed out the draft plan lacked 
information on the North Atlantic Right Whale Ship Strike Strategy 
Advanced Notice of Proposed Rulemaking (ANPR). These commenters also 
suggested addition of information on the actions by the Canadian 
government in modifying shipping lanes to reduce collisions of ships 
with whales.
    Response: NMFS has modified the plan to include information on the 
ANPR in section H.4.8. NMFS has also added section H.4.9 to include 
information on Canadian actions to modify shipping lanes.

Comments on the Recovery Strategy

    Comment 38: Two comments were received on Page II, Recovery 
Strategy, stating that the discussion fails to underscore the need to 
modify and improve measures that have been tried to date and which have 
not successfully reduced vessel or entanglement injuries and deaths. 
The section should also underscore the urgency of developing measures 
to reduce ship strikes and entanglements that are more effective than 
those implemented under the previous recovery plan.
    Response: NMFS has added the following text to section II, - 
``Actions taken in the past have not significantly reduced the rate of 
human-related deaths and serious injury. Therefore, rigorous and urgent 
action is needed to reduce these threats.'' This language is consistent 
with language in the Executive Summary and in section IA.

Comments on the Recovery Program Narrative

    Several comments focused on expanding the Recovery Narrative. These 
are discussed below.
    Comment 39: One commenter suggested that the language of objective 
1 - Minimize sources of human-caused death, injury, and disturbance 
should be revised to include ``significant reduction'' or 
``elimination'' of anthropogenic threats.
    Response: NMFS agrees and has revised objective 1 to read, 
``Significantly reduce'' anthropogenic threats.

Comments on Reducing Ship Collisions with Right Whales

    Comment 40: A number of comments were received on objective 1.1 - 
Reduce ship collisions with right whales. One commenter recommended 
that the general goals be made more specific to the regions in which 
right whales are resident or migratory. Another commenter similarly 
stated that the recovery plan needs to describe specific management 
actions that NMFS is prepared to pursue, or that are underway 
currently, for each of the three regions of the eastern seaboard where 
Northern right whales feed, breed, calve and migrate. A third commenter 
suggested that the section be revised to include the steps necessary to 
implement the NOAA Ship Strike Reduction Strategy. For example, it 
should note the need for developing new speed and routing regulations 
for waters off the East coast ports, port access route studies, the 
preparation of supporting documents such as an EIS, and the development 
of a cooperative agreement with Canada.
    Response: NMFS has considered including these specific actions in 
the plan. However, NMFS believes that while these and other steps may 
have merit, introducing and attempting to implement specific measures 
in the context of a recovery plan may actually restrict our ability to 
respond to these threats and new information. The timeframes in which 
actions to reduce adverse affects from human activities and response to 
certain events is often shorter than the 5-year revision schedule 
expected for this plan. Moreover, specific measures are being 
identified and implemented through other processes. For example, at the 
time of this writing, NMFS is developing and expects to implement 
measures identified in a ship strike reduction strategy. A number of 
the actions identified by commenters, and a host of others, are 
expected to be implemented through the strategy.
    In addition, NMFS identifies, assesses, develops, and implements 
fishing operation regulations through the Atlantic Large Whale Take 
Reduction program a dynamic process.

[[Page 32299]]

Through this process, which includes such things as consultations of 
Federal actions under section 7 of the ESA, its fishing gear advisory 
groups, various workshops, and others means, NMFS has implemented a 
suite of restrictions, and is in the process of implementing, or is 
contemplating, others. For example, at the time of this writing, steps 
are being taken to issue fishing gear regulations under the Atlantic 
Large Whale Take Reduction Plan; additional steps are expected in the 
coming months.
    NMFS believes that the wording in the plan is sufficiently rigorous 
without requiring or pre-judging specific actions (e.g., specific types 
of changes to fishing operations). The plan currently requires 
identifying steps 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 41: One commenter suggested that in addition to the 
proposed measures in objective 1.1.8 - Use acoustic detection 
technology (e.g., ``pop-up'' buoys), surveys, and other technologies as 
available to monitor right whale occurrence and distribution in waters 
off the mid-Atlantic States - NMFS should also support and pursue the 
development and implementation of real-time passive acoustic techniques 
as a means of detecting right whales. It was recommended that NMFS 
develop and incorporate such progressive technology to strengthen 
monitoring and enforcement of ship strike management measures and use 
acoustic detection technology throughout the range of NARW habitat to 
assist in protection of right whales.
    Response: The use of passive acoustic devices and other 
technologies is either being used, planned, or contemplated. As noted 
above, to identify as a task or action the use of specific technologies 
or measures in the plan will pre-judge and therefore, by committing to 
a certain avenue, may preclude development or use of some more 
effective technique. Finally, use of passive acoustic devices and other 
technologies is the subject of funding and studies already underway, 
and/or considered via the Ship Strike Reduction Strategy.
    Comment 42: One commenter stated that objective 1.1.10 - Collect 
standardized data during aerial surveys on ``close calls'' between 
ships and whales - should specify how data could be collected on 
``close calls.''
    Response: NMFS has modified objective 1.1.10 to specify data 
collection methods for ``close calls''.
    Comment 43: One commenter suggested mentioning the need to conduct 
a Port Access Routing Study and identifying agencies responsible for 
doing so under objective 1.1.11 - Assess the utility and feasibility of 
ship routing changes in right whale habitat.
    Response: A Port Access Routing Study is being considered as part 
of a larger ship strike reduction strategy. NMFS views including it in 
objective 1.1.11 as being overly specific in the context of a recovery 
plan.
    Comment 44: Two commenters stated that in objective 1.1.11, 
discussing options for altering shipping in the Southeast makes it 
incorrectly appear that this is the only area of significant concern. 
This paragraph also suggests one specific option, which is too 
limiting, and does not consider other options such as speed 
restrictions. It was recommended that NMFS spend an equal amount of 
energy to establish ship strike mitigation measures in the Northeast 
U.S. (NEUS) as in the Southeast U.S. (SEUS). One commenter recommended 
omitting the statement about altering course near specific ports in the 
SE, and instead including a general discussion of the advantages of 
routing and speed restrictions and/or the ANPR as part of the process 
toward regulating ships throughout the range of right whales. If this 
is not possible, the commenter recommended that NMFS discuss risk in 
each area (Northeast, mid-Atlantic, Southeast) and provide examples of 
options for each of the areas.
    Response: Although the SEUS is mentioned in the paragraph, NMFS 
indicates that management options should be considered in all areas; 
and, they are being considered in NMFS' Ship Strike Reduction Strategy 
as indicated in its Advanced Notice of Proposed Rulemaking (ANPR). As 
stated in the plan, measures for the SEUS were illustrated because of 
the high level of traffic and aggregation of whales that occur there 
and the importance of the area as a calving/nursery area. Examples 
provided for the SEUS are illustrative of measures that could be 
undertaken in other areas.
    Comment 45: Two comments were received on objective 1.1.14 - Assess 
the potential economic impact of vessel management options. One 
commenter stated that the phrase ``if economic burdens are small'', 
implies that the shipping industry will not agree to changes if 
economic burdens are not small, but there is no clarification of the 
term ``small''. The commenter recommended removing this statement from 
the plan. One commenter requested that this section include mention of 
the economic analyses that were undertaken prior to the drafting of 
this section.
    Response: The plan has been modified to incorporate these comments.
    Comment 46: One commenter suggested that objective 1.1.15 - Work 
with mariners, the shipping industry, and appropriate State and Federal 
agencies to develop and implement a regionally-based set of measures to 
reduce the threat of ship strikes - was obsolete since the industry has 
been involved in all discussions that have resulted in the development 
of risk reduction measures. The commenter recommended changing language 
in this section.
    Response: NMFS believes that ongoing industry dialogue is important 
to develop and implement ship strike reduction protection measures. The 
language has not been changed in the plan.
    Comment 47: One commenter noted that there is currently no 
requirement for vessel operators to report ship collisions with right 
whales and the commenter recommended that NMFS include a new task for 
developing requirements for reporting vessel collisions with large 
whales since such reports were vital for improving information on 
conditions causing ship collisions with whales and how to avoid them.
    Response: NMFS has added objective 1.1.17 to the plan to address 
this concern. Please note that this addition changes the numbering of 
subsequent objectives.
    Comment 48: One commenter recommended updating objective 1.1.18 - 
Establish regionally-based liaison positions to work directly, and 
maintain a dialog, with the shipping industry, discuss feasibility of 
various management measures, foster industry cooperation, and conduct 
related activities - since the establishment and filling of some 
regional shipping liaison positions has already occurred, for example, 
in the Southeast.
    Response: NMFS believes in the importance of the liaison role and, 
although these positions have been filled, this activity is ongoing. 
The title of this objective has been modified to reflect the same.
    Comment 49: One commenter recommended updating objective 1.1.22 - 
Continue to implement mandatory ship reporting systems along the East 
coast of the U.S. - to include information on the new Automated 
Information System (AIS) that is being required in 2005 for all ships 
along the eastern seaboard to assist in assuring

[[Page 32300]]

national security. The commenter also recommended that this section 
include a meaningful discussion of compliance with this system and 
efforts by the USCG to enforce it, given that the mandatory ship 
reporting system has been in place since 1999.
    Response: A discussion of the Automated Information System (AIS) 
would be out of context in this section, inasmuch as this objective is 
in regard to the Mandatory Ship Reporting Systems (MSRS). Compliance 
with, and efforts to improve compliance, already appears in section 
1.1.23.
    Comment 50: Five comments were received on objective 1.1.26 - 
Conduct studies of active acoustic (e.g., SONAR) and passive acoustic 
devices (e.g., ``pop-up buoys''), and other underwater acoustic 
technologies on southern right whales to determine their feasibility 
and efficiency in detecting submerged whales. One commenter recommended 
including results of recent experimental work on pop-up buoys to help 
explain their benefits and limitations. Another commenter requested 
that an additional task be added to identify the need for tagging 
studies or other studies to determine the frequency that whales of 
different ages and sexes vocalize in different parts of their range. A 
third commenter suggested that passive acoustic detection technologies 
could be particularly useful in helping avoid collisions, could trigger 
and perhaps suspend management measures such as speed or routing in 
areas where right whales occur seasonally, and thereby would help 
ensure that economic costs to vessel operators are limited to periods 
when such protection needs are most important. Two commenters believed 
that SONAR technologies should not be tested through controlled 
exposure experiments on southern right whales. They recommended that 
mitigation technologies using sound should be avoided, and that 
alternative, promising technologies such as automated passive acoustic 
detection should be used to mitigate vessel strikes with right whales.
    Response: The response to comment 41 discusses passive acoustic 
devices. With regard to comments on tagging studies and SONAR 
technologies, NMFS believes the task is sufficiently direct as stated 
and that determining the study design to assess the utility of a 
particular technology is outside the scope of this document. The 
reference to southern right whales has been removed.
    Comment 51: Four comments were received on objective 1.1.29 - 
Consider conducting studies of whale behavior relative to various types 
of ``alerting'' sounds that may warn sleeping, feeding, or courting 
whales to the presence of oncoming ships, and assess the desirability 
of deploying such devices in an environment already heavily polluted by 
noise. One commenter recommended updating the section on the need to 
test whale response to so-called ``alerting'' devices. The commenter 
suggests that this section include this updated information and a 
caution on the utility of these devices. Three commenters objected to 
the use of acoustic alarms as a management tool. The commenters stated 
that these were unnecessary and harmful to the right whale leading to 
greater risk of ship strike. It was recommended that this action be 
omitted from the recovery plan. Additionally, the commenters were 
opposed to testing this technology on southern right whales, and highly 
discouraged this type of substitution in recovery plans.
    Response: NMFS recognizes the biological concerns and drawbacks of 
using such a device; and the need to explore all means to reduce the 
likelihood of ship strikes. NMFS' corresponding planning objective is 
to assess the feasibility and desirability (given the biological 
concerns) of such devices through controlled studies. Therefore, NMFS 
has modified the task to indicate the studies should be ``considered''. 
As noted in response to comment 55 above, the reference to southern 
right whales has been removed.
    Comment 52: One commenter requested that objective 1.1.35 - Using 
benign techniques, conduct studies of whale responses to ship noise and 
to ships of various types and speeds be modified to include the 
statement ``Incorporate these findings into comprehensive hydrodynamic 
studies to assess the potential risk of collision of various ship types 
and speeds with whales depending on whale responses.''
    Response: NMFS believes that a recovery plan is not the appropriate 
vehicle to identify the specifics of study designs for directed 
research.

Comments on Reducing Injury and Mortality Caused by Fisheries and 
Fishing Equipment

    Comment 53: One comment was received on objective 1.2.4 - Conduct 
studies of gear modifications that reduce the likelihood of 
entanglement, mitigate the effects of entanglements, and enhance the 
possibility of disentanglement - on the statement that acoustic 
deterrents be investigated. The commenter believes that acoustic 
deterrents are not an appropriate avenue for research and should be 
removed from this section. Further, in an October 2004 workshop of gear 
modification co-sponsored by NMFS and MMC, acoustic deterrents were not 
mentioned as a risk reduction strategy.
    Response: NMFS has chosen to maintain the text as written inasmuch 
as the task as the task is about ``gear modifications that reduce the 
likelihood of entanglement'' and the amplifying text provides examples 
of studies that ``might include'' a number of possibilities.
    Comment 54: One commenter recommended that objectives 1.2.8 - 
Continue, expand, and improve procedures for responding to reports of 
entangled whales - and 1.2.10 - Continue to review, evaluate, and act 
upon reports from fishermen and fishery observers of fishery 
interactions with right whales - mention the important role that whale 
watch boats play as reporters and responders (standing by) for 
entangled right whales.
    Response: Section 1.2.10 is specific to fisheries and fishing 
observer programs, and section 1.2.8 is intentionally stated broadly to 
include all reporters of entanglement without singling out one type of 
participant in particular.
    Comment 55: One commenter stated in objective 1.2.9 - Expand 
fisheries observer programs - that an expanded observer program (in the 
lobster fishery) is expensive and of little use in quantifying 
entanglement rates or educating fishermen in disentanglement due to the 
low catch per unit effort.
    Response: NMFS concurs and has removed the specific reference to 
lobster fisheries in objective 1.2.9.
    Comment 56: Two commenters recommended adding a task to investigate 
methods to encourage groups to stand by entangled whales until 
disentanglement teams can arrive.
    Response: NMFS concurs and has added objective 1.2.15 to the plan 
to address these comments. Please note that this addition changes the 
numbering of subsequent objectives.
    Comment 57: One commenter requested that objective 1.2.19 - 
Determine whether measures to reduce entanglement are effective - 
include the analysis of gear removed from entangled whales as a means 
of monitoring efficacy of risk reduction measures for right whales. The 
commenter also recommended that this gear be available to scientists 
and fishermen and others who wish to inspect it to learn more about the 
entanglement.
    Response: NMFS has added text in objective 1.2.19 to ``analyze gear 
removed and determine the fishing industry component and technique 
used.'' To this point, the analyses are done routinely.

[[Page 32301]]

Comments on Education and Outreach Programs

    Comment 58: One commenter requested the first subtitle under 
objective 1.3 i.e. Providing Relevant and Timely Information - be 
changed to ``Provide Relevant and Timely Information''. The commenter 
believed that action items should be developed related to getting real 
time information out to mariners and fishermen and perhaps others.
    Response: NMFS has modified the subtitle under objective 1.3 in 
response to this comment.
    Comment 59: One comment was received recommending that objective 
1.3.1 - Continue and expand efforts to inform mariners - and objective 
1.3.3 - Raise awareness on regulatory requirements - also include 
education of regulatory requirements in the action description.
    Response: NMFS agrees and has modified objectives 1.3.1 and 1.3.3 
accordingly.

Comments on Reducing Human Impact to Habitat

    Comment 60: One commenter suggested that energy development be 
added to the list in section 3.3.1 - Conduct studies to determine the 
direct and indirect effects of activities and impacts associated with 
coastal development on the distribution, behavior, and productivity of 
right whales. The commenter also suggested that NMFS mention the recent 
workshops held by NMFS in 2004 dealing with the impact of shipping 
noise on whales.
    Response: Section 3.3.1 was modified to include oil and gas 
exploration and development. Information on these workshops can be 
found athttp://www.shippingnoiseand marinemammals.com/.
    Comment 61: One commenter recommended adding an objective to 
conduct ESA section 7 consultations on activities that involve 
anthropogenic noise that may have an adverse impact on right whales.
    Response: NMFS concurs and has added objective 3.3.3 to provide for 
section 7 consultations on these activities. Please note that this 
addition changes the numbering of subsequent objectives.
    Comment 62: One commenter recommended that objective 3.3.9 - 
Conduct studies to assess possible adverse effects of oil, gas, and 
hard mineral exploration and development and other industrial 
activities - include ``other energy-related development''. The 
commenter requested that NMFS require formal section 7 consultations 
under ESA for any energy-related development.
    Response: NMFS has included a provision to conduct section 7 
consultations for Federally authorized or funded industrial activities 
under this section.
    Comment 63: One commenter suggested that objective 3.3.13 - Conduct 
studies to assess the short- and long-term effects of whale-watching on 
right whales - contradicts the 500-yard (460 m) approach rule notably 
with regard to high-speed vessels, and the entire spirit of the ship 
strike mitigation strategy. The commenter stated that it is not clear 
in objectives 3.3.13 through 3.3.15, if the intent is to observe right 
whale behavior when vessels are engaged in whale watching at distances 
greater than 500 yards (460 m). These actions appear to apply to the 
whale watching industry in general (both commercial and recreational) 
and the commenter objected to any whale watching being allowed on right 
whales until the recovery criteria for delisting have been met 
irrefutably.
    Response: Vessels engaged legally in whale watching activities (or 
when traveling to/from whale watch locations) have struck whales, 
including right whales. In some cases, citizens uninformed about the 
500-yard (460 m) no approach rule, approach and potentially disturb 
right whales. This task is aimed at assessing the impact of whale 
watching activities, both within and outside the 500-yard (460 m) 
mandatory limit as well as those on other species, to determine if they 
are having detrimental impacts on the population.
    Comment 64: One comment was received stating that NMFS should 
address commercial whale-watching vessels and the potential threats 
they pose to right whales and other species due to the nature of their 
business. The commenter stated that the current voluntary measures are 
not effective and that the recovery plan should address threats from 
commercial whale-watching activities.
    Response: NMFS has modified objective 3.3.14 to incorporate this 
comment.
    Comment 65: One comment, received on 3.3.15 - Continue and expand 
education/public awareness programs to ensure that commercial and 
recreational vessel operators are aware of applicable regulations and 
guidelines - stated that right whale watching is prohibited by the 500-
yard (460 m) no approach rule and so action items are not needed in the 
recovery plan to address whale watching.
    Response: See response to comment 63 above.
    Comment 66: One commenter stated that in objective 3.3.15 it was 
unclear if NMFS meant that the National Park Service should educate the 
public visiting coastal parks (in that case National Marine Sanctuaries 
should be included) or if NMFS means that they might assist in 
designing public education efforts.
    Response: NMFS has clarified the language in objective 3.3.15 by 
adding, ``In some areas, the National Park Service and National Marine 
Sanctuary Program interpretive staff could provide valuable assistance 
in this regard.''
    Comment 67: One commenter recommended including the need for an 
evaluation of the impacts of the large quantity of right whale research 
that is being conducted to assure that it is accurate, minimally 
intrusive, non-duplicative and appropriate. The commenter states that 
NMFS is planning to evaluate these impacts and that an EIS will look at 
assessing research that is, has been, or may be proposed. The commenter 
requests that a discussion of this planned effort by NMFS should be 
part of the recovery plan.
    Response: NMFS noted that at the time of this writing, right whale 
research is being assessed in an EIS. In addition, NMFS has added 
objective 3.3.16 on the possible negative impacts of whale research. 
Please note that this addition changes the numbering of subsequent 
objectives.
    Comment 68: One commenter recommended adding an objective to 
provide for ESA section 7 consultations on Federal activities that have 
the potential to affect right whales.
    Response: NMFS agrees and has added objective 3.3.17. Please note 
that this addition changes the numbering of subsequent objectives.

Comments on Monitoring Right Whale Occurrence and Habitat Use

    Comment 69: Two comments were received on objective 4.4 - Monitor 
right whale occurrence and habitat use pattern in known high-use areas 
- requesting that this section state the importance of regular, 
periodic surveys in the winter through summer offshore of Massachusetts 
to the North of the Great South Channel where increased sightings of 
right whales have correlated with increased effort. Additionally, two 
commenters stated that surveys are needed in the mid-Atlantic in the 
fall through late winter, where increased effort due to migratory 
corridors and habitat use. These objectives should be added to this 
section.

[[Page 32302]]

    Response: NMFS concurs and has modified the titles of all survey 
objectives to read ``annual'' instead of specifying seasonal surveys. 
NMFS has also added objective 4.4.6 to conduct annual right whale 
surveys in waters off the U.S. mid-Atlantic States.
    Comment 70: Two commenters suggested additional assessment of Cape 
Fear, North Carolina to South Carolina as possible calving areas.
    Response: NMFS agrees and has added objective 4.4.9 to the plan. 
Please note that this addition changes the numbering of subsequent 
objectives.

Other Comments on the Recovery Narrative

    Comment 71: Few comments were received regarding the Mandatory Ship 
Reporting System (MSRS). One commenter stated that the current Plan 
would not ensure enforcement of the MSRS, which is considered the key 
measure for reducing vessel impact on whale numbers. Another commenter 
stated that NMFS should ensure that MSRS compliance is high, and that 
NMFS should take strong enforcement measures to achieve that high level 
of compliance. In the Step-Down Outline, the action that the Federal 
Government should ``[m]onitor compliance with the mandatory ship 
reporting system and take steps to improve compliance as necessary'' 
should be changed so that emphasis is placed on action to enforce 
compliance, rather than just monitoring compliance.
    Response: As noted in response to comment 49, the U.S. Coast Guard 
(using direct communications with mariners and letters of citation) is 
ensuring compliance with the MSRS.
    Comment 72: One comment was received stating that management and 
monitoring tasks should address large recreational vessels and non-
regulatory programs.
    Response: The management and monitoring tasks currently address all 
vessels 65 feet (19.8 m) or longer.
    Comment 73: One comment was received regarding the stated 
population size of right whales used routinely throughout the plan. As 
of data incorporated through 2003, the number of presumed living 
animals is 342. This number includes the high number of calves born 
from 2001-2003, and only half of those have been added to the catalog. 
Thus, this population number should increase over the next few years as 
these juveniles are photo-identified and added to the catalog. The 
commenter suggested that the plan include a discussion of the catalog 
total and a statement that a re-analysis of population models has not 
yet been done with this new spurt of calving to understand whether the 
population is static, increasing or decreasing, prior to finalizing the 
recovery plan.
    Response: In preparing the plan, NMFS used population numbers 
contained in annual Stock Assessment Reports, the International Whaling 
Commission reports, and scientific literature. NMFS notes that not all 
calves are ``recruited'' into the population and that calf and juvenile 
mortality can be relatively high and, further, that regardless of 
recent birth rates the population still remains alarmingly low. 
Nonetheless, in response to this and other comments, portions of the 
text have been updated regarding population numbers.
    Comment 74: One commenter recommended that NMFS expedite updates to 
all Take Reduction Plans once there has been a take in excess of the 
incidental take statement in the relevant Biological Opinion 
accompanying an ESA section 7 consultation.
    Response: This comment does not pertain to the recovery plan, per 
se.
    Comment 75: One commenter objected to the reference that right 
whale entanglement is ``nearly inevitable.'' (Pg. IVB-15) Although the 
commenter acknowledges that NMFS is trying to be realistic that no 
system is perfect, the commenter recommends that the wording be changed 
to ``may still occasionally occur'' so that the plan conveys the caveat 
without implying that no meaningful solution is possible.
    Response: NMFS has changed this passage by striking the sentence 
that contained the phrase ``nearly inevitable''.
    Comment 76: Two comments were received on gear replacement programs 
in fisheries. One commenter recommended that NMFS take a more active 
role in trade-in programs or gear replacement programs to reduce 
entanglements. Another commenter suggested that NMFS develop financial 
incentive programs to encourage the use of whale-safe gear and to 
strengthen the cooperation between competing interests.
    Response: NMFS notes that although these comments do not appear to 
pertain directly to the recovery plan, both types of programs described 
are underway. No changes to the Plan were made.

Recovery Plan Implementation Teams

    Comment 77: One commenter suggested that several actions in the 
implementation schedule were assigned inappropriately to the Right 
Whale Recovery Plan Northeast U.S. Implementation Team (NEIT), 
specifically actions numbered: 3.1.2, 3.2.1, 3.3.1, 3.3.5, 4.3, 4.6.1, 
4.6.2, 4.6.3, 4.6.4, and 5.6.
    Response: Actions 4.6.1, 4.6.2, 4.6.3, and 4.6.4 have been modified 
and currently do not involve the NEIT. NMFS believes that the other 
actions are ongoing tasks that will be enhanced by NEIT involvement.
    Comment 78: Two comments were received on section H.1.1 - 
Southeastern U.S. Implementation Team (SEIT). One commenter noted that 
Florida is currently the Chair of the SEIT, and that this position 
rotates between Florida and Georgia. Another commenter recommended that 
the following text be inserted: ``Additionally, these two agencies 
(USCG and GDNR) developed and implemented procedures for broadcasting 
right whale locations over NAVTEX. In 1999, the USCG extended 
transmission range of NAVTEX to include the entire Southeast U.S. 
coastal area by installing a NAVTEX transmission tower near Savannah at 
the request of the SEIT.''
    Response: NMFS has updated section H.1.1 based on these comments.
    Comment 79: Another commenter requested clarification on whether 
measures implemented in Canada will be assessed under the proposed 
Conservation Agreement and if the NEIT will be involved.
    Response: This approach is under consideration and it is too early 
to determine how the proposed conservation agreement will be addressed 
and what it will contain. No changes were made to the Plan.
    Comment 80: Five comments were received on section H.1.2 - 
Northeastern U.S. Implementation Team (NEIT). Two commenters stated 
that the mandate and membership of the NEIT have changed since the 
draft plan was revised. One commenter stated that the NEIT was 
established to implement recovery tasks for both right whales and 
humpback whales. The focus of this team has since narrowed to 
activities related to ship collisions and the responsibility for 
entanglement related mortality has shifted to a take reduction team. 
The section should be updated with language on the current status and 
role of the NEIT. One commenter urged NMFS to be more proactive in 
utilizing and empowering the NEIT to implement the recovery plan. Two 
commenters recommended that ship strikes be the priority focus of the 
NEIT's future work. One commenter recommended that the plan specify 
that the NEIT play a greater role in survey and data collection, 
especially when data will be for real-

[[Page 32303]]

time and retrospective management purposes.
    Response: Text has been added, and the section has been updated, to 
reflect the change in status and role of the NEIT.
    Comment 81: One commenter questioned the effectiveness of the SEIT 
and NEIT, and recommended that NMFS pursue an independent evaluation of 
the NEIT and SEIT. The commenter felt that this assessment would be 
helpful in advancing the team process to accomplish more for right 
whales.
    Response: NMFS agrees that these teams can and should be effective. 
Objective 5.3 indicates that the effectiveness of the teams will be 
periodically evaluated, and ways to make them more effective will be 
identified.

Miscellaneous Comments

    Comment 82: One commenter requested clarification of whether the 
terms ``adequacy'' and ``effectiveness'' are equivalent. 
``Effectiveness'' is used in objective 1.1.16 - Assess effectiveness of 
ship strike measures and adjust, as necessary.
    Response: The section mentioned by the commenter use the term 
``effectiveness''. No reference to ``adequacy'' was found in the 
section; therefore no changes were made to the plan.
    Comment 83: One commenter expressed concern about the plan's 
message on right whale recovery that it gives the impression that what 
is most needed is monitoring the effectiveness of existing measures and 
taking further steps as may become necessary and possible. NMFS is 
currently commencing an in-depth process of developing major new 
management initiatives for both entanglement and ship collision risks. 
However, the commenter noted that the draft plan does not mention the 
need for or the existence of these major initiatives.
    Response: NMFS believes that the Plan does an adequate job 
explaining the lack of recovery of right whales, the severity of 
threats from human activities and the need for aggressive steps to 
reduce the threats. With regard to this comment, no changes were made 
to the Plan.
    Comment 84: One commenter recommended that NMFS adopt, urgently 
implement, and rigorously enforce the revised Recovery Plan.
    Response: NMFS appreciates this comment and is moving to do so. No 
changes were made to the Plan.
    Comment 85: One commenter expressed support for the ship strike 
strategy, and the imposition and enforcement of speed restrictions in 
areas where right whales are located.
    Response: NMFS appreciates this comment although it does not appear 
to pertain directly to the Plan. The agency is moving as swiftly as 
possible to reduce the threat of ship strikes.
    Comment 86: Two commenters expressed concern that lack of 
scientific information or certainty as to the effects of human 
activities on right whales would become an excuse for delaying 
regulation of such activities. The commenters recognized that science 
was essential, but that the lack of science should not delay measures 
to protect the species and its habitat, given the critical status of 
this species.
    Response: NMFS appreciates these comments and recognizes the need 
to move decisively and without delay to reduce threats and the agency 
is attempting to do so. At the same time it is committed to using the 
best scientific data available in defining management measures.
    Comment 87: One comment was received on 3.3.10 - Take steps to 
minimize identified adverse effects from oil, gas, and hard mineral 
exploration and development - reinforcing that in the Southeast U.S. 
this is an extremely vital objective due to the presence of mothers and 
highly vulnerable calves in the coastal waters during winter months. No 
changes were recommended.
    Response: No changes were made to the Plan.
    Comment 88: One commenter expressed concern regarding the statement 
reading ``Navy has consulted with NMFS under section 7 of the ESA on 
the potential effect of some of its operations on protected species'' 
on page IG-4. The commenter noted that the Plan omits that the Navy has 
refused to consult with NMFS on its operations out of Norfolk, which 
result in over 3,000 transits per year and dwarf the commercial 
operations in that area. The commenter stated that the ESA legally 
mandates section 7 consultations, and that NMFS should contact the Navy 
about engaging in consultation immediately.
    Response: As noted earlier, NMFS inserted objective 3.3.17, which 
calls for section 7 consultations on all Federal activities.
    Comment 89: One comment was received that strongly agreed with 
action 1.2.1 - Develop and implement strategies to modify fishing 
operations and gear to reduce the likelihood of entanglement, mitigate 
the effect of entanglements and enhance the possibility of 
disentanglement, and assess the effectiveness of such strategies. The 
commenter supported the idea that NMFS should pursue and implement 
universal gear requirements for high-risk fisheries and expand time/
area closures and/or restrictions. It was also recommended that NMFS 
consider fisheries closures where feasible.
    Response: No changes were made to the Plan.
    Comment 90: One comment expressed concern regarding section 3.2 - 
Assess the need for modifying critical habitat boundaries. The 
commenter was concerned that overlap of critical habitat in the 
Southeast with the Navy's Jacksonville Operating Area and its 
implications on potential restrictions to the Navy's training or 
operations in open ocean areas. No recommended changes were presented.
    Response: No changes were made to the plan, as this comment did not 
appear to pertain directly to modifications to the Recovery Plan. NMFS 
notes however, that critical habitat assessments and determinations are 
underway at the time of this writing. Determinations will be made based 
on the needs of the endangered population.

Authority

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

    Dated: May 25, 2005.
P. Michael Payne,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-10987 Filed 6-1-05; 8:45 am]
BILLING CODE 3510-22-S