[Federal Register Volume 81, Number 17 (Wednesday, January 27, 2016)]
[Rules and Regulations]
[Pages 4838-4874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01633]



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Vol. 81

Wednesday,

No. 17

January 27, 2016

Part IV





 Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 226





 Endangered and Threatened Species; Critical Habitat for Endangered 
North Atlantic Right Whale; Final Rule

  Federal Register / Vol. 81 , No. 17 / Wednesday, January 27, 2016 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 100217099-5999-03]
RIN 0648-AY54


Endangered and Threatened Species; Critical Habitat for 
Endangered North Atlantic Right Whale

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

ACTION: Final rule.

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SUMMARY: We (NMFS) are issuing this final rule to replace the critical 
habitat for right whales in the North Atlantic with two new areas. The 
areas being designated as critical habitat contain approximately 29,763 
nm \2\ of marine habitat in the Gulf of Maine and Georges Bank region 
(Unit 1) and off the Southeast U.S. coast (Unit 2). We have considered 
positive and negative economic, national security, and other relevant 
impacts of the critical habitat. We are not excluding any particular 
area from the final critical habitat.
    A Biological Source Document provides the basis for our 
identification of the physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection. A report was also prepared pursuant to 
section 4(b)(2) of the Endangered Species Act (ESA) in support of this 
rule.

DATES: This rule is effective February 26, 2016.

ADDRESSES: The final rule as well as comments and information received, 
and accompanying documents are available at 
www.greateratlantic.fisheries.noaa.gov or by contacting Mark Minton, 
NMFS, Greater Atlantic Regional Fisheries Office (GARFO) 55 Great 
Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Mark Minton, NMFS, Greater Atlantic 
Regional Fisheries Office (GARFO), 978-282-8484, [email protected]; 
Barb Zoodsma, NMFS, Southeast Regional Office, 904-321-2806, 
[email protected]; Lisa Manning, NMFS, Office of Protected 
Resources, 301-427-8466, [email protected].

SUPPLEMENTARY INFORMATION: 
    The Biological Source Document (NMFS 2015a) and ESA Section 4(b)(2) 
Report (NMFS 2015b) are available on our Web site at 
www.greateratlantic.fisheries.noaa.gov, on the Federal eRulemaking Web 
site at www.regulations.gov, or upon request (see ADDRESSES).

Background

    In 1970, right whales, Eubalaena spp. were listed as endangered (35 
FR 18319, December 2, 1970). At that time, we considered the northern 
right whale species (Eubalaena glacialis) to consist of two 
populations--one occurring in the North Atlantic Ocean and the other in 
the North Pacific Ocean. In 1994, we designated critical habitat for 
the northern right whale population in the North Atlantic Ocean (59 FR 
28805, June 3, 1994). This critical habitat designation included 
portions of Cape Cod Bay and Stellwagen Bank, the Great South Channel 
(each off the coast of Massachusetts), and waters adjacent to the 
coasts of Georgia and the east coast of Florida. These areas were 
determined to provide critical feeding, nursery, and calving habitat 
for the North Atlantic population of northern right whales. This 
critical habitat was revised in 2006 to include two foraging areas in 
the North Pacific Ocean--one in the Bering Sea and one in the Gulf of 
Alaska (71 FR 38277, July 6, 2006).
    In 2006, we published a comprehensive right whale status review, 
which concluded that recent genetic data provided unequivocal support 
to distinguish three right whale lineages as separate phylogenetic 
species (Rosenbaum et al. 2000). They are: (1) The North Atlantic right 
whale (Eubalaena glacialis) ranging in the North Atlantic Ocean, (2) 
The North Pacific right whale (Eubalaena japonica), ranging in the 
North Pacific Ocean, and (3) The southern right whale (Eubalaena 
australis), historically ranging throughout the southern hemisphere's 
oceans. Based on these findings, we published proposed and final 
determinations listing right whales in the North Atlantic, North 
Pacific, and southern hemisphere as separate endangered species under 
the ESA (71 FR 77704, December 27, 2006; 73 FR 12024, March 6, 2008). 
In April 2008, a final critical habitat designation was published for 
the North Pacific right whale (73 FR 19000, April 8, 2008).
    On October 1, 2009, we received a petition to revise the 1994 
critical habitat designation for right whales in the North Atlantic. In 
response, pursuant to section 4(b)(3)(D), we published a combined 90-
day finding and 12-month determination on October 6, 2010 (75 FR 
61690), that the petition presented substantial scientific information 
indicating that the requested revision may be warranted, and that we 
intended to issue a proposed rule to revise critical habitat for the 
North Atlantic right whale. As noted in that finding, the biological 
basis and analysis for the 1994 critical habitat designation were based 
on the North Atlantic population of right whales, so that designation 
continued to apply to North Atlantic right whales after they were 
listed as a separate species in 2008. On February 20, 2015 (80 FR 
9314), we proposed replacing the 1994 critical habitat designation for 
the population of right whales in the North Atlantic Ocean with two new 
areas of critical habitat for the North Atlantic right whale.
    In the proposed rule we requested public comment through April 21, 
2015. For a complete description of our proposed action, including the 
natural history of the North Atlantic right whale, please see the 
proposed rule (80 FR 9314, February 20, 2015).
    We are making one change from the proposed rule to the areas 
designated as right whale critical habitat. The one change is based on 
public comments received and further review of the best available 
scientific data. We are extending Unit 2 further to the south to 
include an area that is a portion of the 1994-designated critical 
habitat, increasing Unit 2 by approximately 341 nm \2\. Unit 2 now 
includes nearshore and offshore waters of the southeastern U.S., 
extending from Cape Fear, North Carolina south to approximately 27 nm 
below Cape Canaveral, Florida.

Summary of Comments and Responses

    We received 261 letters and general comments on the proposed rule 
and supporting analyses via Regulations.gov, letter, fax, and email. In 
addition, 20,826 form letters were also received via letter and email. 
We received 20,325 form letters from an environmental advocacy group 
stating their general support for the proposed designation of critical 
habitat and urging NMFS to include a migratory corridor in the final 
designation. We received an additional 500 form letters from a second 
environmental advocacy group as well as 210 (additional) form letters 
that contained slight variations to the main form letter. We also 
received two petitions from environmental advocacy groups with 
approximately 17,420 and 2,069 signatures, respectively stating general 
support for designating critical habitat and urging the inclusion of a 
migratory corridor.
    Many comments urged imposing restrictions on Navy activities as 
well as oil and gas exploration and

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development, expanding existing fishing gear restrictions, and 
expanding seasonal management areas (SMAs) to reduce the risk to right 
whales due to ship strikes and vessel speeds as part of this 
rulemaking; however, these issues are not within the scope of this 
critical habitat rulemaking.

Unit 1 Boundaries

    Comment 1: One commenter stated that in proposing to designate Unit 
1, we mistakenly proposed to designate a large area in which right 
whales congregate, rather than identifying the ``specific areas'' on 
which essential foraging features ``are found.'' As a result, the 
proposed Unit 1 designation is overbroad and should be more narrowly 
tailored, consistent with the ESA. The comment states that the proposed 
boundaries of Unit 1 are not based upon the established presence of the 
essential features.
    Response: We disagree with this comment. The proposed boundaries of 
Unit 1 encompass the combination of physical and biological features of 
foraging habitat that are essential to right whale conservation and 
that may require special management considerations or protection. We 
did not simply propose to designate the area depicted as Unit 1 based 
on where ``right whales congregate'' as the comment suggests. As 
discussed in detail in the Biological Source Document, the seasonal 
distributions and general patterns of abundance of C. finmarchicus 
within the Gulf of Maine and Cape Cod Bay have been documented. The 
geographic scales and depths at which copepods are sampled only rarely 
match the fine-scale at which right whales forage (Mayo and Marx 1990, 
Baumgartner and Mate 2003). Basin-scale zooplankton monitoring schemes 
have proved ineffective in detecting the high concentrations usually 
present in the vicinity of actively feeding whales. Furthermore, using 
direct copepod sampling efforts to identify where dense aggregations 
occur would be unproductive because sufficient data are not available 
to establish a specific threshold density of C. finmarchicus that 
triggers feeding. For these reasons, the specific area on which are 
found dense aggregations of late stage C. finmarchicus cannot be 
defined by relying on data from such efforts to sample copepod 
aggregations directly throughout the vast Gulf of Maine and Georges 
Bank region. Instead, we used an alternative ``whale centric'' approach 
for detecting dense prey patches. The location of actively foraging 
right whales provides a proxy for the distribution of dense copepod 
patches (Marx and Mayo 1990, Wishner et al. 1995, Pace and Merrick 
2008). We used the protocol for determining the whale density and 
residency indicative of feeding behavior developed by Clapham and Pace 
(2001) for the Dynamic Area Management (DAM) program to determine where 
the dense patches of C. finmarchicus are found. The boundaries of Unit 
1 are not solely based on the presence of the dense C. finmarchicus 
patches, as determined by the foraging right whale proxy, but also by 
the presence of the physical oceanographic features and the biological 
feature of diapausing copepods identified in this rulemaking (see 
responses to comment 36 and 49).
    Comment 2: The State of Maine Department of Marine Resources stated 
that it disagreed with the use of the current exemption line identified 
in the Atlantic Large Whale Take Reduction Plan (ALWTRP, 50 CFR 229.32) 
as the inshore boundary of the proposed critical habitat. It suggested 
that NMFS should use the 100 meter isobath contour as the near shore 
boundary to better align with the biological and physical features 
identified as supporting the aggregation and distribution of copepods. 
This commenter stated that the proposed boundary (the exemption line) 
does not have any bearing on the biological and physical oceanographic 
features that have been identified as drivers for copepod production, 
distribution, aggregation, and retention in the Gulf of Maine, nor is 
there a biological justification for using the exemption line as the 
inshore boundary given the location of right whale sightings. The 
commenter noted that the agency analyzed 35 years of DAM-qualified 
sightings but identified only one aggregation of right whales near the 
coast of Maine (Pace and Merrick 2008). They noted that all other 
identified aggregations occurred beyond the 100 meter contour, which is 
well seaward of the ALWTRP's exemption line. The commenter also cited a 
study completed by Runge et al. (2010) who found that densities of late 
stage copepods were statistically significantly higher at offshore 
stations (>100 m) than inshore area and that copepods were not 
aggregating in water depths less than 100 meters. The commenter also 
stated that this finding was consistent with the statement in Runge et 
al. (2010) that the Maine Coastal Current centers at the 100 m contour.
    Response: After review of this comment and the study cited, we 
conclude that the use of the ALWTRP Exemption line remains appropriate 
as the inshore boundary of the area on which the essential foraging 
features of right whale critical habitat are found.
    The study provided by the commenter in support of the requested 
change was somewhat limited both spatially and temporally. The study of 
copepod densities cited was based on the sampling that was conducted 
over a three-year period with sampling occurring only during the months 
of July and August. Also, there is uncertainty as to what exact density 
of copepods triggers feeding, with the density seeming to vary both 
temporally and spatially.
    Asaro (2012) depicts an overlay of the DAMs and Dynamic Management 
Areas (DMAs) in the western Gulf of Maine. The inshore extent of the 
plots of these events in the western Gulf of Maine closely approximates 
the Maine exemption line. While there are several instances of buffered 
DAMs and DMAs extending into Maine inshore waters, the sightings 
themselves were not located in these waters (Asaro 2012). This analysis 
does provide some evidence of right whale foraging activities in areas 
seaward and adjacent to the Maine exemption line. As we tried to 
explain in the proposed rule and its supporting documents and clarify 
now, the essential biological feature of dense patches of copepods is 
present in areas seaward and adjacent to the Maine exemption line. 
Therefore, the Maine exemption line does have bearing on the presence 
of this biological feature and is a reasonable approximation of the 
shoreward boundary of critical habitat in Unit 1.
    In addition, the decision to retain the Maine Exemption line, as 
proposed, for the inshore boundary of right whale critical habitat is 
based on the presence of one of the physical oceanographic features 
identified as being essential to the conservation of the species--
specifically, the oceanographic conditions and structures of the Gulf 
of Maine and Georges Bank region that combine to distribute and 
aggregate copepods for right whale foraging, namely prevailing currents 
and circulation patterns. The Maine Coastal Current (MCC) is one of the 
major oceanographic features in the western Gulf of Maine that is 
essential to the conservation of North Atlantic right whales because of 
its role in aggregating and distributing copepods. The MCC has two 
major components, the Eastern Maine Coastal Current (EMCC) off Maine's 
northeast coastline and the Western Maine Coastal Current (WMCC) off 
the coastlines of southern Maine, New Hampshire, and Massachusetts. 
Manning et al. (2009) report that the

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MMC is centered from approximately the 71 m isobath inshore to the 117 
m isobath seaward. Churchill et al. (2005) report that the EMMC is 20 
km wide, with its shoreward extent at about 10 km from shore. Manning 
et al. (2009) report that on average, the core of the WMCC is centered 
at the depth of 67 m. As these studies document, the center of both of 
the two major components of the MMC are shoreward of the 100 m isobath 
proposed by the commenter as the inshore boundary of critical habitat. 
Although the MMC coastal current is highly variable, the ALWTRP 
exemption line generally follows the 50 meter isobath and is also the 
approximate inshore boundary of the MMC. Further, as the depths 
reported represent the core of the two MMC currents; both the EMCC and 
the WMCC are present further inshore. The MMC is very dynamic with 
interannual variability due to such factors as wind and water 
temperature.
    Based on our review of the proposed use of the 100 m isobaths as 
the inshore boundary of critical habitat instead of the Maine exemption 
line, we conclude that the Maine exemption line corresponds more 
closely to the inshore extent of the essential physical oceanographic 
feature that is the MCC.
    Comment 3: Several fishing industry comments supported the 
designation of additional right whale critical habitat that is 
essential to the conservation and recovery of the North Atlantic right 
whale. However, they opposed the designation area as proposed. The 
commenters agreed with Maine Department of Marine Resources' (DMR) 
review of the scientific literature on the physical oceanographic 
conditions and structures of the Gulf of Maine as well as foraging 
aggregations. They strongly supported DMR's recommendation that the 
shoreward boundary of the proposed Gulf of Maine critical habitat (Unit 
1) follow the 100 m contour and not the Maine exemption line defined in 
the Atlantic Large Whale Take Reduction Plan. The commenters stated 
that Maine's exemption line has no direct bearing on the four physical 
and biological features identified by us as being essential to defining 
this critical habitat. They stated that in the absence of this 
adjustment, they would oppose the change in the Gulf of Maine current 
critical habitat designation.
    Response: See response to Comment 2.
    Comment 4: One commenter requested the expansion of critical 
habitat in the Northeast to include all waters in the Gulf of Maine and 
Georges Bank from the Hague Line to the shoreline based on the best 
available science indicating that the area contains physical and 
biological features essential for the survival of the species. The 
commenter sought to extend the critical habitat boundary to the 
shoreline in Maine beyond the Maine Exemption line. The commenter 
questioned the agency's determination that the essential physical and 
biological foraging features are not found inshore of the Maine 
exemption line. The commenter cited several factors in support of the 
expansion of the critical habitat boundary to the shoreline. The 
factors cited by the commenter include: (1) Limited systematic 
sightings effort inside the ALWTRP Maine exemption line as well as a 
recent analysis by Industrial Economics, Inc., evaluating the co-
occurrence of whales and vertical lines used in commercial fisheries in 
the northeast shows large areas in inshore Maine, indicating that there 
was no survey effort in large segments of the inshore area; (2) the 
NMFS program of dynamic management; currently for ship traffic, but 
formerly for fishing gear as well, has resulted in the imposition of 
dynamic management measures in inshore Maine waters; and (3) the 
results of a satellite telemetry study that was done targeting right 
whales in the northeast. The commenter stated that in that study at 
least 2 of the 14 tagged right whales (approximately 14%) showed tracks 
that appear to be within the areas of coastal Maine that were not 
included in the proposed Unit 1 critical habitat.
    Response: As discussed in our response to Comment 2, we used 
foraging right whales as a proxy for identifying areas where the 
essential feature of dense aggregations of late-stage copepods are 
found. As part of that process, we analyzed 35 years of DAM-qualified 
sightings and identified only one aggregation of foraging right whales 
near the coast of Maine inshore of the Maine exemption line (see 
response to Comment 15 for additional discussion). This analysis 
provides strong support for our determination that late stage copepods 
in quantities sufficient to trigger right whale foraging are not 
present inshore of the Maine exemption line. While the commenter is 
correct that some areas have been surveyed more extensively than others 
within the Gulf of Maine and Georges Bank region, we are required to 
use the best available data. With regard to the results of the 
telemetry studies cited by the commenter (Baumgartner and Mate 2005), 
the telemetry data were included in the 35 years of DAM-qualified 
sightings data we analyzed. The two right whales referenced by the 
commenter did not trigger a DAM qualified sighting (aggregations of 
three or more feeding right whales in a specified area), indicating the 
whales were not foraging and were spatially and/or temporally separate 
from each other while in the inshore waters. As such, these data do not 
indicate that one or more of the essential physical and biological 
features were present.
    Comment 5: One commenter stated that the regular imposition of 
multiple dynamic management measures that extended into the inshore 
waters of Maine in a number of instances casts doubt on the conclusion 
that whales are unlikely to use the inshore area with any regularity.
    Response: We disagree. As stated in our response to Comment 2, 
Asaro (2012) depicts an overlay of the DAMs and Dynamic Management 
Areas (DMAs) in the western Gulf of Maine. The inshore extent of the 
plots of these events in the western Gulf of Maine closely approximates 
the Maine exemption line. While there are several instances of buffered 
DAM and DMAs areas extending into Maine inshore waters, the sightings 
themselves were not located in these waters, just the buffer zone(s) 
associated with the DAM(s) and DMA(s) (Asaro 2012). This analysis does 
provide some evidence of right whale foraging activities in areas 
seaward and adjacent to the Maine exemption line and thus, provides 
support for its use as the shoreward boundary of critical habitat in 
Unit 1.
    Comment 6: A commenter stated that regardless of right whale 
sightings, the inshore waters of Maine contribute to the circulation 
patterns of the Gulf of Maine, which support and concentrate C. 
finmarchicus--the primary forage of North Atlantic right whales. The 
commenter stated that, according to NMFS, ``freshwater inflow from 
numerous rivers (e.g., the St. John, Penobscot, Kennebec, Androscoggin, 
and Merrimac Rivers) within the Gulf of Maine watershed contributes to 
the density driven circulation pattern.'' The commenter asserts that 
therefore the inshore waters of Maine contain the physical and 
biological features necessary to maintain food resources for right 
whales, and that area is therefore essential to the survival of the 
species. The commenter stated that because the currents in the Gulf of 
Maine are strongly influenced by density gradients between the high-
salinity slope water entering from the Atlantic and fresher waters, 
which form in the Gulf of Maine or enter from the Scotian Shelf, the 
freshwater inflow from these and other rivers within the Gulf of Maine

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watershed that contributes to the density driven circulation pattern 
must be adequately protected. The commenter further stated that the 
bays and inlets into which these rivers flow may require special 
management to ensure that this flow is not impeded by development such 
as hydroelectric or hydrokinetic projects designed to provide 
alternative energy to the region.
    Response: The physical features in question here are the physical 
oceanographic conditions and structures that combine to distribute and 
aggregate copepods in sufficient densities to support right whale 
foraging and energetic requirements. We agree that freshwater inflow 
from numerous rivers (including the St. John, Penobscot, Kennebec, 
Androscoggin, and Merrimac Rivers) are one of several external 
environmental processes within the Gulf of Maine watershed that may 
influence the density driven circulation pattern. However, these 
influences are not physical oceanographic features. Rather they simply 
have the potential to influence the identified oceanographic features. 
The physical oceanographic features of the Gulf of Maine Georges Bank 
region are influenced by a variety of conditions including several 
outside of the Gulf of Maine. For example, the North Atlantic 
Oscillation (NAO) (a climatic phenomenon in the North Atlantic Ocean of 
fluctuations in the difference of atmospheric pressure at sea-level 
between the Icelandic low and the Azores high) influences the relative 
location within the Atlantic Ocean of warm Gulf Stream waters that 
approach the Gulf of Maine from the south, and the colder Labrador 
Current waters that flow toward the area from the north. Small-scale 
changes in the North Atlantic can produce large-scale changes in the 
Gulf of Maine. There are large-scale coastal circulation patterns that 
influence the Gulf of Maine that originate from the Labrador Sea. The 
circulation and water properties within the Gulf of Maine therefore may 
depend as much on influences originating over 1,000 km away as on local 
processes (Thompson 2010).
    In addition, there are other local environmental processes that 
influence the physical oceanographic conditions inside the Gulf of 
Maine including such factors as wind, tidal mixing, the periodic cooler 
and more fresh inflow from the Scotian Shelf, winter cooling, summer 
heating, the deep warmer and more saline inflow of the slope water, and 
river runoff including from those identified by the commenter (Xue et 
al. 2000, Thompson 2010).
    Further, the information cited by the commenter regarding 
freshwater input into the Gulf of Maine is taken out of context and 
relates to the ``may require special management considerations or 
protection'' analysis we conducted to determine if the areas containing 
the physical oceanographic conditions and structures met the definition 
of critical habitat. Consequently, we did not identify the external 
freshwater input associated with river inflow from the various sources, 
including rivers within the Gulf of Maine watershed, as part of the 
physical feature. We have updated the Biological Source Document 
accordingly to clarify this issue.

Unit 2 Boundaries

    Comment 7: A number of comments were received concerning the 
location of the southern boundary of the proposed revised calving area 
critical habitat. Comments requested to (1) move the proposed revised 
boundary southward (commenter did not specify how far south), (2) keep 
the southern boundary for the proposed revised critical habitat the 
same as current critical habitat designated in 1994, and (3) move the 
proposed revised boundary south of the current critical habitat 
designated in 1994. One commenter was concerned that the proposed Unit 
2 would exclude Port Canaveral and noted one mother-calf pair was 
observed in the Canaveral ship channel while cruise ships were 
departing the port. Commenters supported a more southerly boundary 
because: (1) Sightings of mother/calf pairs (available at http://www.nefsc.noaa.gov/psb/surveys/) reported since Good's analysis 
indicate that waters south of proposed Unit 2 are used consistently--
including by mother-calf pairs, (2) the agency previously recognized 
the area as critical to calving right whales, (3) calves are observed 
in the area so the areas should be protected even though they are not 
part of the area selected by the habitat models, (4) Good's model 
(available at: http://dukespace.lib.duke.edu/dspace/handle/10161/588) 
predicts calving habitat in the area for at least part of the calving 
season, and (5) right whales utilize the area at above-average 
densities.
    Response: We agree with the commenters and have modified the 
southern boundary of Unit 2. We originally considered an alternative 
retaining the southern portion of the 1994 designated calving area 
critical habitat, discussed in the consideration of alternatives for 
the Initial Regulatory Flexibility Analysis (see Appendix B in the 
draft ESA Section 4(b)(2) Report). We noted that retaining the southern 
boundary as designated in 1994 would have captured suitable habitat 
predicted by Good's (2008) combined model for one month. However, in 
that analysis we noted that Garrison's (2007) habitat model did not 
predict suitable calving habitat that far south, yet it captured 91% of 
observed mother-calf pairs.
    In response to public comments, we investigated observations of 
mother-calf pairs collected subsequent to the data used in the cited 
models and re-examined Garrison (2007), Good (2008), and Keller et al. 
(2006). We reviewed the North Atlantic Right Whale Consortium Database 
(2015) (available at http://www.narwc.org/index.php?mc=8&p=28) for 
mother-calf pair sightings south of the proposed Unit 2 and from the 
2001-2002 calving season to present. We used this timeframe because 
Garrison (2007) and Keller et al. (2006) used Consortium data through 
March 2001. We found 39 mother-calf pair sightings at an annual 
sighting rate of just under three mother-calf pairs (highest annual 
number of pair sightings was 10). Of these, January and February 
sightings were most prevalent and totaled 12 and 19, respectively. 
While the number of sightings varies among years, sightings of mother-
calf pairs within that area are predictable and consistent, as noted by 
some of the commenters. Because occupied critical habitat must be based 
on the presence of features essential to the species' conservation that 
may require special management considerations or protection, we re-
evaluated the predictive habitat model results in terms of temporal 
distribution of the essential depth, temperature, and sea surface 
roughness features. First, we reviewed the models and temporal scales 
of model outputs. Garrison's (2007) and Keller et al.'s (2006) models 
at the 4-month (season-level) temporal resolution (as illustrated in 
Garrison's Figure 19 and Keller et al.'s Figure 7), which were used for 
the proposed designation, do not predict presence of all the essential 
features south of the proposed boundary. This is because the 4-month 
scale obscured the areas containing the essential features for a 
smaller timeframe (i.e., one month). Garrison's (2007) model output at 
a finer temporal resolution (monthly scale) does predict presence of 
the essential features south of the proposed revised critical habitat 
for at least a portion of the calving season (in January and February) 
(see Garrison's Figure 21 and 22). Good's (2008) model outputs are 
similar. The presence of all the essential features are not predicted 
to simultaneously co-occur south of the proposed unit boundary for the 
coarser temporal scale of 3 or 4 months, but the

[[Page 4842]]

essential features are expected to simultaneously co-occur over a 
contiguous area in the finer, 1-month temporal scale. Good's model also 
predicts presence of the essential features south of the proposed 
revised critical habitat in January and February, and to a lesser 
degree, in December. Thus, this southern area contains the essential 
features at times when the majority of the right whale mother-calf 
pairs have been observed there in the years since the models were 
published. Mother/calf pairs in the area were most often seen swimming 
(n = 23) but other behaviors were observed (diving-7, breaching-1, and 
slapping the water with flippers or tails-2) (Right Whale Consortium 
2015). The high number of observations of swimming mother/calf pairs in 
this area is consistent with our analysis, discussed in the Biological 
Source Document for the Critical Habitat Designation, that mother-calf 
pairs likely loop many miles up and down the coast in the calving area 
to strengthen calves' swimming abilities. Apparent nursing was also 
observed in the area (n = 4), and mother-calf pairs were also seen in 
physical contact with each other (n = 9).
    Therefore, we believe the available data show consistent and 
predictable presence of right whale mother-calf pairs in this southern 
area, during the months the habitat models predict presence of all the 
essential features. The features here may require special management 
considerations or protections for the same reasons as the rest of Unit 
2: Because of possible negative impacts from activities and events of 
offshore energy development, large-scale offshore aquaculture 
operations, and global climate change. These activities and their 
potential broad-scale impacts on the essential features are discussed 
in detail in the Biological Source Document (NMFS 2015). For these 
reasons, we agree with the commenters that the southern boundary of the 
calving area critical habitat should be moved southward from where we 
proposed. Next, we identified new coordinates for including this area 
in Unit 2. Based on the above information and Good's (2008) one-month 
model, the Southeast Calving Area (Unit 2) boundaries were developed by 
drawing straight lines around the modelled one-month area extending 
from Daytona Beach to just south of Melbourne, Florida, trying to use 
the fewest number of waypoints as possible, and rounding waypoints to 
the nearest minute to the greatest extent possible. This extension 
represents an approximate 4% increase in the area of Unit 2 from the 
proposed rule and retains critical habitat in Atlantic waters adjacent 
to Port Canaveral.
    To evaluate and consider the economic impacts of including this 
area in the designation, we followed the same methodology described in 
the proposed rule (80 FR 9314, February 20, 2015) and in the Section 
4(b)(2) Report. Similar to the proposed Unit 2 area, we identified 
three categories of activities that have occurred and are likely to 
recur in the future and have the potential to affect the essential 
features in the expanded Unit 2 area: (1) U.S. Army Corps of Engineers 
(USACE) maintenance dredging or permitting of dredge and disposal 
activities under the Clean Water Act; (2) USACE permitting of marine 
construction, including shoreline restoration and artificial reef 
placement under the Rivers and Harbors Act and/or Clean Water Act; and 
(3) Bureau of Ocean Energy and Management permitting of sand and gravel 
extraction under the Outer Continental Shelf Lands Act.
    Additionally, we identified one category of activities that has not 
occurred in the expanded Unit 2 area in the past but, based on 
available information, may occur in the future. The projected activity 
is offshore renewable/alternative energy development. If this activity 
occurs, it may adversely affect the essential features. In the proposed 
rule (80 FR 9314, February 20, 2015), we described our justification 
for determining relative levels of impacts (i.e., incremental, or co-
extensive) for all of these activities. We repeated that process, to 
consider the impacts of adding the southern extension to the 
designation. Based on our analysis of past consultation history, we 
project that over the next ten years, there will be 22 consultations, 
or about two consultations per year, in this area which may affect the 
features of critical habitat. Eleven of these projects would involve 
dredging and/or disposal by the U.S. Army Corps of Engineers, and 11 
projects would involve permitting of marine construction or artificial 
reef placement by the U.S. Army Corps of Engineers. Thus, adding the 
southern extension would involve no additional federal agencies or 
actions that are different from those that will be conducted in the 
rest of Unit 2 and were evaluated in the Draft Section 4(b)(2) report. 
As discussed in the Section 4(b)(2) Report, these activities are only 
expected to involve incremental administrative costs of consultation as 
a result of this designation. Annual administrative costs for these 
projected consultations are $10,160 (at $5,080 per consultation--see 
the Economics Impact section in the proposed rule and the Section 
4(b)(2) Report for background information on the costs for conducting 
consultations).
    Relative to projected, new activities, offshore renewable/
alternative energy may occur in the southern extension area, given its 
proximity to shore and available information about where and how these 
activities might be implemented (http://www.boem.gov/Florida/). Because 
there are no records in NMFS's consultation history for offshore 
renewable or alternative energy projects occurring within Unit 2, we 
are unable to (a) predict how many section 7 consultations may result 
from projects of this type over the next 10 years or (b) calculate the 
projected incremental costs resulting from this action. We are not 
aware of any other future new federal activity that may be implemented 
in the southern extension area.
    We also contacted Department of Defense agencies that are active in 
the area to determine if they anticipated any impacts from critical 
habitat designation on their activities within the additional southern 
area that would pose national security concerns. Their responses were 
similar to those submitted for the proposed Unit 2 area in that they 
did not anticipate their activities would destroy or adversely modify 
the essential features of calving habitat. Therefore, other than the 
administrative costs of consultation for about 2 consultations annually 
over the next 2 years, there will be no economic or national security 
impacts of this addition. Yet, as the sightings data demonstrate, there 
appear to be measurable conservation benefits to right whale mother-
calf pairs that use this particular area every year.
    Finally, we evaluated whether the data suggest the Unit 2 
boundaries should be expanded on a similar basis elsewhere. In other 
words, whether there is consistent mother-calf pair usage of other 
areas predicted by the habitat suitability models to contain the 
essential features in one month of the calving season evaluated in the 
models. Good's (2008) model generally predicts calving habitat in one 
month (two months in some portions of the area) north of the proposed 
Unit 2 boundaries, from Cape Fear to approximately Cape Hatteras, North 
Carolina. Nine mother/calf pair sightings occurred in the approximately 
2,386 nm\2\ area from the 2001/2002 calving season to present (Right 
Whale Consortium, 2015) and at an annual sighting rate of just under 
one pair (highest number of pair sightings is four in one season). In 
other words, the area

[[Page 4843]]

off North Carolina is approximately 600% larger than the area off 
Florida, yet it has 75% fewer sightings of mother/calf pairs of right 
whales. Mother-calf pair sightings occurred in three different calving 
seasons. Two mother calf pairs observed off North Carolina in April 
2010 were likely migrating northward as both were observed earlier in 
the calving season off Florida and Georgia (Right Whale Consortium, 
2015a). Since available data do not demonstrate that mother-calf pair 
usage of the area off North Carolina and north of the proposed Unit 2 
boundary is as consistent and predictable as off Florida south of 
proposed Unit 2 during the peak calving season (North Atlantic Right 
Whale Consortium sighting database), we are not expanding the Unit 2 
boundaries to the north at this time.
    Consequently, at this time we are extending Unit 2 further to the 
south to include a portion of the 1994-designated critical habitat. We 
find that this is supported because: (a) Garrison (2007) and Good 
(2008) confirm the presence of the essential features of critical 
habitat in the area for at least a portion of the right whale calving 
season; (b) we confirmed mother-calf pairs were sighted in the area 
most frequently when the essential features are expected to be in that 
area, and (c) multiple mother-calf pairs consistently and predictably 
occur there every year.
    Comment 8: One commenter recommended extending calving area 
critical habitat eastward off Florida to include the location of an 
observed March 20, 2010, right whale birthing event.
    Response: We are not extending the calving area critical habitat 
boundary farther to the east off South Carolina or Florida. The March 
20, 2010, right whale calving event was at least 15 nm east of 
predicted suitable right whale calving habitat--at any temporal 
resolution (see response to Comment 23).
    Comment 9: One commenter suggested extending calving critical 
habitat into the Gulf of Mexico because the area was occupied by right 
whales at the time the species was listed and because of recent calving 
events there.
    Response: NMFS is not aware of known incidents of right whale 
calves being born in the Gulf of Mexico. Right whales have been 
observed only rarely in the Gulf of Mexico. The few published sightings 
(Moore and Clark 1963; Schmidly and Melcher 1974; Ward-Geiger et al. 
2011) represent either right whale presence that is abnormal (i.e. 
outliers) or a more extensive historical range beyond the current sole 
known calving and wintering ground in the waters of the southeastern 
United States (Waring et al. 2009). We also concur with other right 
whale researchers that the Gulf Stream serves as a thermal barrier 
preventing right whales from routinely using the Gulf of Mexico (Keller 
et al. 2006, Good 2008, Keller et al. 2012). Therefore, we are not 
extending the critical habitat to include the Gulf of Mexico.
    Comment 10: One commenter stated that Unit 2 should match the area 
in Action 1 Alternative 9a of Regulatory Amendment 16 (Reg-16) under 
consideration by the South Atlantic Fishery Management Council for the 
Snapper-Grouper Fishery Management Plan (S-G FMP).
    Response: We do not agree with matching the boundaries as specified 
by the commenter. The area created for S-G FMP Reg-16 meets the needs 
of a fishery management plan development process but is not consistent 
with the ESA-specific requirements for designation of critical habitat. 
Based on the statutory definition of critical habitat we applied a 
step-wise approach to identifying occupied areas that may be designated 
as critical habitat for North Atlantic right whales. Briefly, the steps 
we followed included: (1) Identifying the right whale range, (2) 
identifying areas within that range where physical or biological 
features essential to right whale conservation are found, and (3) 
determining if those features may require special management 
considerations or protections. The boundaries of Alternative 9a do not 
contain the full area identified by us as containing physical features 
essential to the conservation of the North Atlantic right whale, 
particularly off South and North Carolina.
    Comment 11: A number of comments supported the designation of Unit 
2 as critical habitat. Comments included (a) the calving area critical 
habitat should be expanded to incorporate the entire area proposed as 
Unit 2, (b) strong support for the area proposed for critical habitat, 
and (c) the Bureau of Ocean Energy Management (BOEM) is supportive of 
the proposal to replace critical habitat for the North Atlantic right 
whale.
    Response: NMFS appreciates the support.
    Comment 12: One commenter suggested considering additional 
information to better support the calving area critical habitat 
designation including:
    (a) Identifying the relative value of various nursery areas (e.g. 
track the location where an individual was born to see if differential 
growth or survival occurs) as has been done in fishery science;
    (b) using opportunistic sightings;
    (c) changing distribution of calves due to climate change--a 
northward shift in cow-calf distribution may mean a greater need to 
protect additional northern habitat, while expanding distribution to 
north and south could be due to increased abundance of whales;
    (d) using a depth contour that captures 90% of right whale cow-calf 
pairs.
    Response: As mentioned in the Federal Register Notice of Proposed 
Rulemaking and Biological Source Document, the ESA definition of 
critical habitat provides NMFS with a step-wise approach to identifying 
areas that may be designated as critical habitat for North Atlantic 
right whales. Briefly, the steps we follow include: (1) Identifying the 
right whale range, (2) identifying areas within that range where 
physical or biological features essential to right whale conservation 
are found, and (3) determining if those features may require special 
management considerations or protection. Calving is essential to the 
species' conservation and the physical features that are essential to 
successful calving include: (1) Calm sea surface conditions associated 
with Force 4 or less on the Beaufort Scale, (2) sea surface 
temperatures from 7 [deg]C through 17 [deg]C, and (3) water depths of 6 
to 28 meters where these features simultaneously co-occur over 
contiguous areas of at least 231 km 2 during the months of November 
through April. The distribution of optimal values of these features 
changes throughout a calving season, and between calving seasons. 
Further, the needs cow-calf pairs' have for each of the individual 
parameters change over the course of rearing, and the pairs move across 
broad swaths of the calving area to seek out optimal conditions and to 
condition the calf. Therefore, we believe that all of Unit 2 is highly 
valuable to calving right whales.
    Opportunistic sightings lack associated information on search 
effort so are not included in efforts to statistically analyze and 
predict right whale habitat. Thus, Garrison (2007), Good (2008), and 
Keller et al. (2012) did not use opportunistic sightings in their work. 
However, we reviewed opportunistic sightings when considering the 
importance of calving habitat south of proposed Unit 2. Opportunistic 
sightings were used to assess the consistency of calving right whale 
use of that area.

[[Page 4844]]

    We also considered climate change effects on calving right whale 
(including calf) distribution using the same step-wise approach to 
identify critical habitat. We determined that increased temperatures 
and hurricane activity due to global climate change may alter sea 
surface conditions within the specific area such that the area capable 
of providing dynamic, optimal combinations of the essential features is 
reduced and the ability of the specific area to support the key 
conservation objective of facilitating successful calving is reduced. 
We determined that the essential features of the calving habitat may 
require special management considerations or protection due to future 
climate change impacts. Existing predictions of climate change impacts 
do not provide fine enough information to determine how the 
distribution of essential features in the SAB will change in the 
future, and thus setting boundaries based on future climate change 
impacts would be speculative at this time.
    Comment 13: One commenter submitted a number of comments on the 
underlying models used to identify the Unit 2 proposed critical 
habitat. Comments included: (1) Concern about averaging and aggregating 
data, (2) the treatment of zero-inflated data, (3) suggestions for 
other parameters (water density, underwater currents, substrate, and 
salinity) to include, (4) the nonrandom nature of survey design used to 
collect underlying data, (5) concern over model fit, (6) the use of 
limited information, (7) use Easting (relative east-west location) and 
Northing (relative north-south location) or the interaction parameter 
of the two variables, and (8) models should be updated and viewed with 
caution. Another commenter suggested that we utilize the Duke 
University Marine Geospatial Ecology Lab (MGEL) and Atlantic Marine 
Assessment Program for Protected Species (AMAPPS) models of marine 
mammal habitat utilization when making decisions on North Atlantic 
right whale (NARW) Critical Habitat boundaries.
    Response: The first comment is focused on methods used in 
generating models described in publications we used to inform critical 
habitat, and changing those analyses is beyond the scope of the actions 
proposed in this rule. In general, we use information from a wide 
variety of sources. We are required to gather, review, and evaluate 
available information to ensure it is reliable, credible, and 
represents the best scientific and commercial data available. We 
reviewed Garrison (2008), Keller et al. (2012), and Good (2008) and 
found these to be the best scientific and commercial data available at 
the time the proposed rule was published in the Federal Register. As 
far as updating models: We did not, nor does the ESA require us, to 
develop new models as part of the rulemaking. Moreover, based on our 
review of whale sightings dated after publication of the models (see 
response to comment 7), the models are performing well in predicting 
the overall boundaries of the calving area. However, we will continue 
to monitor ongoing studies and publications to determine if new 
information will enhance our understanding of right whale habitat, and 
the ESA allows us to revise critical habitat when appropriate.
    We are aware that the Duke Marine Geospatial Ecology Lab and AMAPPs 
are modeling densities and abundance of right whales; however, those 
products were not available at the time this final rule was developed.
    Comment 14: One commenter noted that Good et al. (2008) stated that 
bottom type is an important habitat component that was not included in 
either modeling approach. This commenter also reported that the bottom 
type had been mapped for a significant portion of the area where right 
whales occur in the Southeast U.S. Atlantic (A screenshot of the SAFMC 
Habitat and Ecosystem Viewer was included with the comment, which we 
assume was taken from http://ocean.floridamarine.org/SA_Fisheries/). 
The commenter went on to state that including this available 
information into the modeling approach might improve our understanding 
of habitat selection by right whales.
    Response: We agree that additional information into the modeling 
approach might improve our understanding of habitat selection by right 
whales. However, the information in Good (2008), also said this about 
substrate type: ``Substrate was not considered because of lack of 
suitable data for the broader Atlantic Ocean and because available 
substrate data for the [South Atlantic Bight] showed little 
variation.'' Therefore, it was concluded that the inclusion of the 
substrate information as provided in Good (2008) was not warranted at 
this time. In addition, see our response to comment 13 above.
    Comment 15: One commenter stated that Good's (2008) box-plots 
showed that the majority of mother-calf pairs in the southeastern U.S. 
were observed from 6 through 20 m depth and 11[deg] through 21 [deg]C 
sea surface temperature (SST) in calm waters. However, the proposed 
right whale critical habitat (Unit 2) includes waters with SSTs ranging 
from 8[deg] through 17[deg] C and depths of 6 through 28 m, which are 
beyond the range where right whales are typically observed.
    Response: We assume the commenter is referring to Good's (2008) 
box-plots of habitat conditions illustrated in Figure 3. This figure 
compares habitat conditions associated with mother-calf sightings 
against the survey search area. The data and, by extension, the figure 
illustrate that mother-calf pairs occurred in shallower and cooler 
waters compared to available conditions throughout the study area. Good 
(2008) used Mantel tests to evaluate the association of mother-calf 
pairs with habitat conditions. Although she found SST and depth were 
significant predictors, Good (2008) didn't specify what proportion of 
observed or predicted sightings, corrected for effort, would occur with 
the various SST and depth ranges. For that information, we looked to 
Garrison (2007).
    Garrison (2007) generated a figure that illustrates percentile of 
predicted sightings per unit of effort by water depth and temperature 
(see Garrison's Figure 16). For reasons specified in the Notice of 
Proposed Rulemaking and Biological Source Document, we concluded 
Garrison's (2007) 75th percentile and Good's (2008) habitat selected in 
3 and 4 months were the most appropriate bases for determining the best 
distribution of essential features of right whale calving habitat. 
Garrison's (2007) Figure 16 illustrate that SST ranging from 7-17 
[deg]C and depth ranging from 6-28 m are habitat features associated 
with the 75th percentile of predicted sightings per unit of effort. 
Thus, the physical features essential to the conservation of the North 
Atlantic right whale, which provide calving area functions in Unit 2 
include sea surface temperatures of 7 [deg]C to 17 [deg]C, and water 
depths of 6 to 28 meters.
    Comment 16: One commenter stated that the proposed critical habitat 
is strongly based on areas from Keller et al. (2012) that indicate the 
probability of right whale sightings based on SST alone (see Figure 8b 
in Keller et al. (2012)). Depth should have been included in the model 
similar to cell mapping in Good et al. (2008).
    Response: We acknowledge that Unit 2 closely resembles Figure 8b 
from Keller et al. (2012). As indicated in the Source Document, in 
order to identify the area that contains essential features of calving 
habitat, we used the predictive models of Garrison (2007), Good (2008), 
and Keller et al. (2012). All of these authors included water depth and 
sea surface temperature in their models because they found depth and 
sea surface temperature were significant

[[Page 4845]]

variables in predicting the spatial distribution of calving right 
whales. Keller et al.'s (2012) Figure 8b illustrates where their model, 
which does include bathymetry, predicts right whales to be distributed 
based on SST in December through March (as opposed to June through 
September). This temporal delineation rightfully constrains the model 
to predicting calving habitat during the known right whale core calving 
season of December through March.
    Comment 17: One commenter noted that Good et al. (2008) limited 
their dataset to presence only to reduce the influence of the zero 
observations. This commenter was concerned that eliminating the zeros 
could give a false increase in the preferred habitat and, resultantly, 
in protecting calving habitats that are not truly critical habitat for 
right whales.
    Response: We concur with Good et al. (2008) in that this is a 
suitable approach for a very small population. As that author states: 
``if habitat conditions associated with whale absence are incorporated 
into a model as `unsuitable', the outcome may be biased away from 
suitable habitat due to limited species dispersal.'' This would be 
particularly true with a small, remnant population like right whales. 
Therefore, we do not agree that eliminating zeros from the data will 
result in protecting calving habitats that are not truly critical 
habitat for right whales.
    Comment 18: The justification for choosing the 75[th] percentile of 
the predicted whale sightings stated that 91% of the observed whale 
sightings were included in the selected model. This transforms the goal 
of the modeling exercise from an exercise to select the best habitat 
based on environmental parameters to a selection of a model to best 
cover the data. Therefore, the selection of the model to describe the 
critical habitat may not give a realistic representation of the 
environmental parameter's influence on the distribution of the species.
    Response: Garrison (2007), Keller et al. (2012), and Good (2008) 
found that sea surface temperature and water depth were significant 
predictors of calving right whale spatial distribution. Good (2008) 
also found surface roughness to be a significant predictor. The extent 
to which calving right whales select the range and combination of these 
features is best represented as a spatial gradient between the most 
suitable and least suitable environments. There is no discrete spatial 
boundary for the habitat (e.g. shore line, watershed boundary, etc.). 
Therefore, NMFS defined a geographic area that contained a significant 
amount of the habitat features used by a large proportion of calving 
right whales (i.e. ``best'' plus ``good'' habitat) over the entirety of 
the calving season. When selecting boundaries of critical habitat, we 
used the model results, but we also considered the behaviors, 
physiologies, and growth and development of cow-calf pairs during the 
calving season, including the significant amount of movement of pairs 
over the period. We also considered the fact that the distribution of 
temperature and surface roughness values changes over the course of 
calving seasons, and between calving seasons. The purpose of a critical 
habitat designation is to facilitate compliance with section 7 of the 
ESA, year in and year out, to ensure that actions of federal agencies 
do not destroy or adversely modify critical habitat. This objective is 
accomplished by evaluating whale presence and behavior, and status of 
essential features, in specific project areas at the time they are 
proposed to be implemented. The critical habitat features and 
boundaries being designated will facilitate compliance with ESA section 
7.
    Comment 19: One commenter inquired about the portion of the 
population that uses the proposed critical habitats during the winter 
months. The commenter also asked at what point does the critical 
habitat no longer become vital on a monthly basis. This information 
would be useful for planning purposes.
    Response: It is not entirely clear, but we believe this commenter 
is inquiring about either the demographic segments or how many right 
whales are in the calving area critical habitat on a monthly basis. We 
know all demographic segments (adult females and males, juveniles, and 
calves) may be found within the calving area critical habitat in the 
winter months. As far as the proportion of the total right whale 
population that uses the calving area critical habitat then, we do not 
know. We know that as many as 243 different whales have been seen in 
the Southeast U.S. during one winter (P. Hamilton pers. Comm., April 
11, 2014). We interpret the second question to be asking when are 
potential impacts to right whales in this area no longer of concern. 
From Good (2008), we know that at least 85% of all observed right whale 
mother-calf pair sightings from January 2000 through March 2005 are 
located within the modified calving area critical habitat (Good 2008). 
Generally, by the end of March, mother-calf pairs have begun moving 
northward out of the area.

Designation of a Migratory Corridor

    A number of comments focused on the agency's determination that we 
are unable to identify physical or biological feature associated with 
right whale migration. These ranged from comments in favor of the 
agency designating a migratory corridor and comments in support of the 
agency's determination that identification of features associated with 
migration is not possible at this time. This determination was based on 
our review of the best available information.
    Many of the comments received advocating the designation of a 
migratory corridor focused on the presence of right whales but provide 
little if any additional information on the characteristics of physical 
and biological features that enable the agency to identify and define 
critical habitat.
    Comment 20: A number of commenters stated that the agency must 
designate a migratory corridor for the North Atlantic right whale in 
the mid-Atlantic, asserting there is no other route between the 
southern calving and northern feeding grounds. They stated that the 
agency undervalued the data in the available studies and other data the 
agency has relied upon in other rulemakings regarding protections for 
North Atlantic right whales. The commenters stated that the agency's 
summary in the proposed rule relied primarily on a single study of the 
broad movements of two tagged animals to conclude that not all right 
whales migrate within 30 miles of shore, the distance referenced in the 
petition to revise critical habitat. The commenters stated that the 
study in question (Schick et al. 2009) showed that while not all right 
whales are found within 30 miles of the coast, the tagging data from 
Schick et al. (2009) show that the tagged whales were primarily found 
within 30 miles of the coast of the mid-Atlantic and only appeared to 
travel significantly farther from shore off of the Delaware Bay area 
toward Block Island Sound. The commenters also stated that a recently 
published report of the tagging of two right whales in 2014 showed a 
similar nearshore travel pattern, with all movements on the narrow 
shelf to the Chesapeake Bay and only farther offshore northward of that 
area where the shelf is broader.
    Response: Given that large-scale migratory movements between 
feeding habitat in the northeast and calving habitat in the southeast 
are a necessary component in the life-history of the

[[Page 4846]]

North Atlantic right whale, we agree with the commenters that 
facilitating successful migration by protecting the species' migratory 
area is a key conservation objective that could be supported by 
designation of critical habitat for the species. As described in the 
Biological Source Document, we explored the possibility of using known 
occurrences of North Atlantic right whales in the mid-Atlantic to 
identify the specific areas used for migration and essential physical 
and biological features in those areas. Data and information considered 
by NMFS included sightings data used while developing the rule to 
implement ship speed restrictions to reduce the threat of ship 
collisions to North Atlantic right whales (73 FR 60173, October 10, 
2008); the studies by, Knowlton et al. (2002), and Firestone et al. 
(2008); and telemetry data and model results used in Schick et al. 
(2009).
    The authors of these three publications expressed whale 
distribution in terms of distance from shore. For example, of the 
sightings used in support of the ship speed rule, NMFS found that 
approximately 83 percent of all observed right whale sightings occurred 
within 20 nm (37 km) of the coast, and approximately 90 percent of all 
right whale sightings occurred within 30 nm (55.6 km) of the coast (73 
FR 60173). Schick et al. (2009) found that, based on telemetry data for 
two tagged whales, peak habitat suitability occurred in the range of 17 
to 108 nm from shore for one tagged whale (a mother-calf pair), and for 
the other, peak suitability occurred in the range of 8 to 40 nm from 
shore for the other. Regardless of the distance from shore in which 
right whales have been documented along the mid-Atlantic, we found no 
evidence to support a conclusion that ``distance from shore'' is a 
physical or biological habitat feature essential to the conservation of 
right whales. In other words, we found no basis to suggest that right 
whales key in on distance from shore, or somehow use distance from 
shore, to facilitate migration.
    The commenter also cited the recently published report of two 
tagged right whales from 2014. We are aware of this three-year ongoing 
North Atlantic right whale telemetry project that tagged three right 
whales in 2014, and we did consider the preliminary results of this 
work. Estimated tracks of two of the whales were well publicized and 
made available on www.alaskasealife.org. However, we are also aware 
that there are varying levels of error and uncertainty associated with 
those preliminary telemetry tracks, and the data have not been 
processed completely to account for those errors (thus, the Web site 
correctly refers to the tracks as ``estimated tracks''). Further, 
similar to the discussion of the Schick et al. (2009) study above, 
these preliminary data do not provide us with any indication of 
physical or biological features essential to the conservation of right 
whales and whether any such features warranted any special management 
considerations. Therefore, we determined that those data are 
preliminary and do not represent the best available information present 
at the time of this final rule. For the reasons stated above, we 
conclude it is not possible to designate migratory critical habitat at 
this time.
    Comment 21: Several commenters stated that they supported our 
conclusion that there is no basis for the designation of a migratory 
corridor as critical habitat because there are no reliable data by 
which the physical and biological features of migratory critical 
habitat can be determined.
    Response: We agree with this comment.
    Comment 22: One commenter stated that right whales seasonally 
residing in Cape Cod waters are known to travel along the mid-Atlantic 
coastal waters as part of their migration between calving grounds 
offshore of the southeastern United States and feeding areas in Cape 
Cod Bay and the Gulf of Maine. Both the Biological Source Document and 
the proposed rule reference Schick et al. (2009) in support of the 
statement that ``The space used by right whales along their migration 
remains almost entirely unknown.'' The commenter suggested that, while 
these data and analyses may not be judged sufficient to designate a 
critical habitat along a migratory corridor, the compilation of 
sightings data from 1974-2002 prepared as part of the analyses for the 
Ship Strike Reduction Program (http://www.greateratlantic.fisheries.noaa.gov/shipstrike/doc/Historical%20sightings.htm), and the papers of Knowlton et al. (2002), 
Firestone et al. (2008), Asaro (2012), Laist et al. (2014), LaBrecque 
et al. (2015), and Andrews (2015) highlight areas of migratory 
importance and should be considered for designation.
    Response: The sightings data referenced compiled from 1974-2002 
prepared as part of the analyses for the Ship Strike Reduction Program 
were considered. For the purposes of the ship strike rule analysis, the 
focus was to determine the risk of ship strikes of right whales in the 
vicinity of ports. As discussed, the best available data are limited in 
scope, and do not provide a complete description of migratory habitat 
(i.e., survey data were biased near shore, and not all right whales 
migrated within 30 nm of shore). Since the vast majority of the survey 
effort was focused close to shore, the fact that the majority of 
migrating whales were observed close to shore is not surprising and 
does not indicate that distance from shore and shallow habitat contain 
or comprise essential features for migration. The one completed study 
that removes the associated biases related to survey effort and 
location was based on two telemetry tagged whales and the movements of 
those whales were much broader and variable (Schick et al. 2009).
    Comment 23: One commenter stated that the rationale for not 
designating a migratory corridor is not convincing. The commenter 
stated that female right whales are seen both in nearshore areas within 
30 nm of shore and also much farther offshore, which suggests that the 
migratory corridor may be wide, not that it is non-existent or 
impossible to delineate in some form. The commenter stated that 
adequate information exists, along with viable models, to provide the 
necessary data to develop a migratory corridor that would provide the 
minimum necessary requirement to enhance survivability of the right 
whale populations under consideration (Firestone et al. 2008, LaBreque 
2015, Pendoley et al. 2014, Schick et al. 2009, Whitt et al. 2013).
    Response: See response to Comment 20.
    Comment 24: One commenter stated that ensuring that mothers and 
calves are not disturbed as they transit the Mid-Atlantic on their way 
to the southern calving grounds is a special management consideration 
associated with migration. The comment stated that this is essential to 
the conservation of the species and that this area and the essential 
life activities that occur in it may be impacted by the activities we 
have identified for Unit 2, as well as by oil and gas activities, 
vessel traffic, and other federal actions.
    Response: We agree that migrating right whales, including mothers 
and calves, need to be protected. The potential impacts identified in 
the comment, however, relate to potential impacts to individual whales, 
which would be addressed through a jeopardy analysis as required under 
section 7 of the ESA. The impacts identified by the commenter do not 
relate to physical and biological features associated with possible 
critical habitat used by migrating whales. Designated critical habitat 
receives protection pursuant to section 7 of the ESA through a separate

[[Page 4847]]

provision and process in which potential adverse modification or 
destruction of the habitat must be evaluated. The protection of 
physical and biological features of critical habitat is distinct from 
the protection the animals themselves receive under section 7 of the 
ESA.
    Comment 25: One commenter stated that the importance of migratory 
corridors as a Biologically Important Area (BIA) is discussed in the 
Aquatic Mammals Journal Special Issue on BIAs for Cetaceans within U.S. 
waters. The four categories of BIAs identified in the journal articles 
are: Reproductive areas, feeding areas, migratory corridors, and areas 
in which small and resident populations are concentrated. NOAA's 
Cetsound Web site (cetsound.noaa.gov) includes a CetMap module that can 
display Migration BIAs for numerous cetacean species, including the 
North Atlantic right whale. Migration BIAs cover an extensive area of 
the Atlantic coast from Maine to Florida. The commenter recognized that 
the CetMap migratory corridor was not intended as a regulatory 
boundary, but the absence of a migratory corridor of any size within 
the proposed rule means that one of the major BIA categories important 
for the survival of the North Atlantic right whale has been omitted.
    Response: Schick et al. (2009) provide the only unbiased data and 
analysis on the actual extent of movements of right whales in the Mid-
Atlantic. Although we acknowledge that some portion of the right whale 
population is sighted transiting through the waters of the Mid-
Atlantic, designating migratory critical habitat requires more than 
just a general understanding of where some whales may be seen 
transiting (see Response 20 above). The paper identified by the 
commenter, LaBrecque et al. (2015), which discusses a migratory 
corridor for right whales relies on the same studies that we analyzed 
in our efforts to identify essential physical and biological features 
associated with migratory behavior in right whales. Although the 
authors identify a ``migratory BIA'' for right whales, this paper, like 
the others evaluated through this rulemaking, do not provide us with a 
basis for identifying physical or biological features used by right 
whales to facilitate their migration.
    Comment 26: One commenter stated that the features of migratory 
habitat are: Shallow, minimal slope, nearshore. Another commenter 
stated that the primary physical features for a migratory habitat would 
appear to be the existence of a contiguous volume of ocean water, 
within an appropriate range of temperatures which provides a path 
through which North Atlantic right whales migrate from their foraging 
areas to their calving areas and return.
    Response: The non-specific terms ``shallow,'' ``minimal slope'' and 
``nearshore'' simply describe the general bathymetry of nearshore 
shallow continental shelf benthic habitat. The comment did not include 
any data or specific information that would allow us to define the 
appropriate or essential values of depth or slope within right whale 
migratory habitat, nor are we aware of any such data. The suggestion 
that right whale migratory habitat appears to be the existence of a 
contiguous volume of ocean water, within an appropriate range of 
temperatures that provides a path through which North Atlantic right 
whales migrate from their foraging areas to their calving areas and 
return is also non-specific. Again, the comment did not include any 
additional data or information that would allow us to define an 
appropriate volume of water or range of water temperatures that are 
essential for the conservation of right whales. What the range of 
temperatures that may be essential for right whale migration is unknown 
but is a potential focus of future research and analysis.
    Comment 27: One commenter stated that many of the same habitat 
features identified as essential for calving and nursing whales south 
of Cape Fear (i.e., relatively calm, shallow waters between 7-17 
[deg]C) are present in the coastal waters between southern North 
Carolina and southern Massachusetts. The commenter states that although 
empirical data to support a conclusion are lacking, it seems reasonable 
to assume that calves and their mothers would continue to prefer waters 
with those characteristics as long as possible along their migratory 
route. This is consistent with observations that mother-calf pairs do 
not follow a straight-line route between the calving and feeding 
grounds, which would take them far off shore, but rather follow the 
coast line to at least the Chesapeake Bay where those same conditions 
also occur.
    Response: The commenter is correct in noting that there are no 
empirical data to support the suggestion that right whale mother-calf 
pairs' migratory movements are linked to the temperature and sea states 
similar to essential calving features. Also, as discussed previously, 
data from two tagged female right whales, one with a calf, demonstrate 
that one migrating right whale (the mother calf pair) moved with a 
range of peak habitat suitability of 17 to 108 nm from shore, and for 
the other whale, peak suitability occurred in the range of 8 to 40 nm 
from shore (Schick et al. 2009). This contradicts the statement by the 
commenter that transiting right whales ``follow the coastline.'' While 
two recently tagged animals provide additional information regarding 
right whale movements, Schick et al. (2009) still provide the best 
available data related to movements of migrating whales. The comment 
itself does suggest to us potential future research into whether 
temperature and sea state are possibly being actively selected by 
transiting right whales.
    Comment 28: One commenter stated that the agency used the same 
studies the commenter considered in analysis of whether it is possible 
to identify essential migratory features in prior rulemakings to 
protect North Atlantic right whales. The commenter states that the 
agency inexplicably dismissed them for purposes of this rulemaking, by 
claiming that they are effort-biased (i.e., most effort is within 30 
miles of shore).
    Response: The commenter may be referring to the ship strike rule 
analysis (73 FR 60173, October 10, 2008). For the purposes of the ship 
strike rule analysis, the nearshore area was of greatest interest for 
determining risk in the vicinity of ports. The data were used to 
determine the risk to the species in order to mitigate the threat of 
ship strikes of right whales in these areas, not to identify a 
migratory corridor or physical and biological features essential to the 
conservation of the species which may require special management 
considerations or protection. The difficultly in using the data for 
identification of critical habitat is also discussed above.
    Comment 29: One commenter stated that with regard to identifying 
features essential to conservation of the species along its migratory 
route, Knowlton et al. (2002), which is cited in the Biological Source 
Document found that 93% of all sightings are within 25 fathoms of water 
and 80.5% of the sightings are within 15 fathoms of water indicating 
reliable physical parameters that are likely features for the mid-
Atlantic migratory corridor.
    Response: In terms of water depth, Knowlton et al. (2002) found 
that a majority of the sightings were within 5 to 10 fathoms of water, 
with the second highest number of sightings in 0 to 5 fathoms of water. 
The analysis indicated that 93 percent of sightings are in water depths 
of 25 fathoms or less, and 80.5 percent are in water depths of 15 
fathoms or less. As noted above, in so far as the sightings were 
positively biased towards shore, it would also be expected that the 
water depth analysis would be positively biased towards shallow water.

[[Page 4848]]

    Comment 30: One commenter stated that we should take the same 
approach to assessing the inclusion of migratory habitat in the 
designation as we did for calving and feeding habitat. Not all calving 
and feeding occurs within the areas identified in the proposed 
designation. However, the best available scientific information 
indicates that most whales use those areas for calving and feeding and 
supports inclusion of those areas in the critical habitat designation.
    Response 30: As described in the proposed rule and Biological 
Source Document, we identified essential calving and foraging features 
that meet the definition of critical habitat. The areas we are 
designating as right whale critical habitat are the areas in which are 
found the essential forging and calving features. As discussed in the 
Biological Source Document, the areas where right whales feed and calve 
are well established and thus we were able to analyze what specific 
physical and biological features are found in these areas that meet the 
definition of critical habitat as required by the ESA. Currently, based 
on the best available information, we do not know the actual route or 
routes that right whales typically use to transit between other 
habitats, nor do we have data to identify the essential physical and 
biological features of a migratory route. Some individuals advocate 
that because right whales are sighted in nearshore waters, those areas 
should be designated as critical habitat. This approach, however, fails 
to acknowledge the limitations of virtually all of the available 
sightings data and overlook the data provided by Schick et al. (2009), 
which show broad scale offshore movements of migrating right whales far 
beyond nearshore waters. Additional research is needed to help identify 
what areas are typically used by right whales for migration, so that we 
can begin to try to identify what physical and biological features are 
associated with such an area and whether or not, these as yet 
unidentified features may require special management and as such 
qualify for designation as critical habitat under the ESA.
    Comment 31: One commenter stated that the rationale for excluding 
all areas along the migratory corridor from the proposed designation 
fails to recognize the importance of this corridor to the conservation 
of the species and the fact that most whales migrate through a fairly 
well-defined area. The commenter stated that although the data 
documenting right whale migratory patterns are less extensive than 
those for other activities in other areas, available data from whale 
sightings and the increasing number of tagging and passive acoustic 
studies strongly indicate that waters within 30 nm of shore are an 
important component of the migratory corridor likely used by most 
pregnant and nursing females and calves, as well as by other whales for 
overwintering (Kraus et al. 1986, Kenny et al. 2001, Knowlton et al. 
2002, Schick et al. 2009, Van Parjis et al. 2009, and Morano et al. 
2012). The commenter stated that most right whales migrate between the 
calving and feeding grounds within a fairly well defined corridor, that 
we should expand the proposed critical habitat to include all waters 
that provide migratory and overwintering habitat for North Atlantic 
right whales within 30 nm of the coast between the proposed critical 
habitats areas in the northeastern and southeastern United States. 
Another commenter stated that there is little doubt that virtually all 
females and calves that use the calving grounds in winter pass through 
waters over the continental shelf between North Carolina and the known 
feeding grounds. The comment stated that the conservation of the 
species will be undermined if whales have no other way to transit 
between the two areas.
    Response: See response to Comment 20.
    Comment 32: One commenter stated that historical whaling records 
provide support for designating waters in the Mid-Atlantic region as 
migratory and overwintering areas in the critical habitat designation. 
The commenter stated that whaling records indicate that nearshore 
waters between Cape Lookout, North Carolina, and Nantucket, 
Massachusetts, at least historically, were important habitat for right 
whales from November through April. The commenter cited Reeves et al. 
(2007) who, based on a review of historical whaling records along the 
U.S. East Coast, estimated that at least 5,500 right whales were killed 
by whalers in the western North Atlantic between 1630 and 1950, with 
perhaps 80 to 90 percent killed during a 50-year period between 1680 
and 1730. The commenter stated that most of that whaling occurred 
between the months of November and May and was conducted by shore-based 
whalers operating between North Carolina and Nantucket.
    Response: Historical whaling records indicate the historic presence 
of North Atlantic right whales and are another source of non-systematic 
data that were collected for the purpose of documenting the harvest of 
whales for commercial purposes. These records merely provide broad 
geographic information concerning general locations of right whales 
during harvesting operations. The harvesting records do not provide 
information that can be used to identify the physical or biological 
features that promote the conservation of the species and which may 
require special management protections.

Identification of Additional Essential Features

    Comment 33: One commenter stated that the proposed rule does not 
specifically identify features that may require special management 
considerations or protections, although these are discussed in the 
preamble.
    Response: A detailed description of the physical and biological 
features we identified as essential to the conservation of the species 
and that may require special management considerations or protections 
are provided in the proposed rule as well as in the Biological Source 
Document and Section 4(b)(2) Report.
    Comment 34: One commenter recommended that we expand the list of 
essential physical and biological features for North Atlantic right 
whales in all critical habitat areas to include the acoustic qualities 
that allow right whales to communicate efficiently and carry out other 
essential biological functions.
    Response: The acoustic qualities or features of the habitat that 
are essential to the conservation of North Atlantic right whales are 
currently unknown. Clark et al. (2009) noted that specific questions 
and uncertainty exists regarding large whale communications and the 
potential for communication loss to lead to impacts to the conservation 
of right whales. These researchers concluded that ``At present, we can 
only speculate because we do not know enough details about when and how 
whales use their calls to communicate relative to the behavioral and 
ecological contexts, and how reductions in these capabilities translate 
to biological cost.'' In addition Clark et al. (2009), with regard to 
bioacoustic effects of ocean noise states ``. . . the greatest 
uncertainties in our abilities to estimate the impacts of communication 
masking come from our ignorance of spatial and temporal scales over 
which animals engage in their bioacoustic activities. Very little is 
known about the ranges over which the large whales actually communicate 
. . .'' Therefore, an expansion of the list of essential physical and 
biological features for North Atlantic right whales to include the 
acoustic qualities that allow them to

[[Page 4849]]

communicate efficiently and carry out other essential biological 
functions is not warranted at this time. As new information becomes 
available, we will take appropriate action if warranted.
    Comment 35: One commenter stated that we should identify water 
quality capable of sustaining robust copepod blooms without risk of 
passing contaminant concentrations through the food web to right whales 
as an essential habitat feature. The commenter stated that successful 
foraging also requires clean ocean waters that support healthy copepod 
populations on which right whales depend. Several activities discussed 
in the preamble to the proposed rule were identified as potentially 
requiring special management attention because of their effects on 
water quality (e.g., sewage outfalls and offshore oil and gas 
development). Water quality, however, was not identified as an 
essential habitat feature.
    Response: Although we did not include water quality as an essential 
feature of the critical habitat, we did consider impacts associated 
with water quality. The available information on the impacts of 
contaminants directly on copepod abundance and reproduction is lacking. 
Copepods are widely distributed over a vast expanse in the feeding 
area. While contaminants could impact particular parts of this vast 
oceanic expanse, it is unlikely that contaminant concentrations would 
be of such magnitude as to negatively affect copepod blooms throughout 
the entire feeding area. Further, many of the contaminants such as DDT 
and PCBs have been banned in the United States for many years, and as 
such, contaminant inputs have decreased in many areas. Additionally, 
within our Section 4(b)(2) Report we identified two categories of 
activities, one under the Environmental Protection Agency's (EPA's) 
jurisdiction and one under the U.S. Coast Guard's (USCG's) authority, 
that may require modifications specifically to avoid adverse 
modification of the essential features. These activities are Water 
Quality/National Pollutant Discharge Elimination System (NPDES) and oil 
spill response. Effluent may affect the foraging feature by influencing 
the phytoplankton community structure. Similarly, dispersants used in 
oil spill response may have direct impact to the foraging features. 
Both of these activities would be subject to consultation requirements 
to ensure they do not destroy or adversely modify the essential 
features of the critical habitat.
    With respect to the issue of contamination and passing contaminants 
throughout the food web to right whales, there is currently no evidence 
for significant contaminant-related problems in baleen whales (O'Shea 
and Brownell 1994, Weisbrod et al. 2000). Weisbrod et al. (2000) found 
that the PCB and pesticide concentrations in the right whale biopsies 
were relatively low and did not provide evidence that the endangered 
right whales bioaccumulate hazardous concentrations of organochlorines. 
We do not have evidence that the endangered whales bioaccumulate 
hazardous concentrations of organochlorines (Weisbrod et al. 2000). 
Although more research is needed, the existing data on mysticetes 
support the view that the lower trophic levels at which these animals 
feed should result in lower levels of contaminant accumulation than 
would be expected in many odontocetes, which typically show 
concentrations that differ from those of baleen whales by an order of 
magnitude (O'Shea and Brownell 1994, Weisbrod et al. 2000). However, 
the manner in which pollutants negatively impact animals is complex and 
difficult to study, particularly in taxa for which many of the key 
variables and pathways are unknown (such as large whales) (Aguilar 
1987; O'Shea and Brownell 1994).
    Comment 36: The Marine Mammal Commission recommended that we should 
expand the list of essential physical and biological features for 
designated feeding areas to include (1) water quality able to sustain 
and maintain blooms of copepods, particularly Calanus finmarchicus, and 
(2) waters free of materials that could impede or interfere with the 
filter-feeding behavior of North Atlantic right whales.
    Response: Regarding the recommendation to include water quality as 
a feature, please see response to Comment 35. We do not agree with the 
commenter's recommendation that we should identify ``waters free of 
materials that could impede or interfere with the filter-feeding 
behavior of North Atlantic right whales'' as an essential foraging 
feature, and that this proposed feature may need special management 
attention because placement of fishing or other lines in the water 
column could interfere with right whale filter feeding or become caught 
in right whale baleen. Although we agree that addressing direct impacts 
to right whales as they forage is important to the overall recovery and 
conservation of the species, this rule addresses impacts to the 
physical and biological features of the foraging habitat, not direct 
impacts to the species itself.
    As provided throughout this rule, the features of right whale 
foraging habitat that are essential to the conservation of the North 
Atlantic right whale are a combination of the following biological and 
physical oceanographic features: (1) The physical oceanographic 
conditions and structures of the Gulf of Maine and Georges Bank region 
that combine to distribute and aggregate C. finmarchicus for right 
whale foraging, namely prevailing currents and circulation patterns, 
bathymetric features (basins, banks, and channels), oceanic fronts, 
density gradients, and temperature regimes; (2) Low flow velocities in 
Jordan, Wilkinson, and Georges Basins that allow diapausing C. 
finmarchicus to aggregate passively below the convective layer so that 
the copepods are retained in the basins; (3) Late stage C. finmarchicus 
in dense aggregations in the Gulf of Maine and Georges Bank region; and 
(4) Diapausing C. finmarchicus in aggregations in the Gulf of Maine and 
Georges Bank region. Facilitating successful feeding by protecting 
these physical and biological features that characterize feeding 
habitat is a key conservation objective that is supported by 
designation of critical habitat for the species.
    With respect to activities that may impede or interfere with 
filter-feeding behavior of right whales, such as placement of fishing 
or other lines in the water column that could interfere with right 
whale filter feeding or become caught in right whale baleen and thus 
pose direct impacts to the species itself, these impacts are not 
effects to the physical and biological features of the foraging 
habitat. These direct impacts to the species itself are already 
provided protection through Sections 7 and 9 of the ESA and through the 
MMPA.

Inclusion of Area to the South of Cape Cod/Nantucket in the Critical 
Habitat Designation

    Comment 37: One commenter recommended that NOAA support research 
focused upon two areas likely critical to the NARW population: (1) The 
entire migratory corridor between the Southeast U.S. and the Gulf of 
Maine, and (2) a potentially important feeding, residency, and nursery 
area south of Cape Cod, Martha's Vineyard, and Nantucket.
    Response: We agree and will continue to support research focused on 
identifying those physical and biological features that promote 
conservation for North Atlantic right whales.
    Comment 38: Several commenters stated that we have inappropriately

[[Page 4850]]

excluded the waters south of Cape Cod, specifically the waters south of 
Nantucket and Martha's Vineyard from the Unit 1 designation. While the 
agency concluded that right whale sightings in Block Island Sound have 
not been consistent annually, sightings of right whales off Nantucket 
and Martha's Vineyard have been consistent and may be increasing. The 
commenter referenced statements found in the Biological Source Document 
as evidence that Nantucket Shoals is a physical feature of right whale 
foraging habitat and therefore stated that we should include areas 
south of Cape Cod in the Unit 1 critical habitat designation.
    Response: We acknowledge that sightings occur to the south and east 
of Unit 1 as depicted in Figure 9 in the Biological Source Document, 
including Nantucket Sound and Block Island Sound. There is no basis 
that we are aware of for the statement that sightings ``may be 
increasing.'' Typically, whales were sighted in these areas in one 
year, but were not seen again in these areas on an annual basis. 
Therefore, a pattern of repeated annual observations is not evident in 
these areas. As a result, we have concluded that the combination of the 
physical and biological foraging features; including the dense 
aggregations of late stage C. finmarchicus are not present in these 
areas as found in the Gulf of Maine/Georges Bank region. We have 
concluded that most likely, these are sightings of transiting whales 
that may feed opportunistically while migrating to the Gulf of Maine/
Georges Bank region (Richard Merrick, Pers. Comm., May 2010). As 
discussed in the Source Document, researchers have documented that 
right whales forage on the copepods other than Calanus finmarchicus, 
including Pseudocalanus and Centropages typicus as well as barnacle 
larvae (Mayo and Marx 1990, Baumgartner et al. 2007). These researchers 
note, that right whales quickly ceased foraging on these zooplankton 
assemblages indicating that the prey was likely not suitable to meet 
their energetic requirements (Baumgartner et al. 2007). In addition, 
recent survey effort in the areas south of Cape Cod off of Nantucket, 
Martha's Vineyard and in Rhode Island Sound have observed socially 
active groups (reproductive behavior) of right whales, which provides 
some additional insight into the behaviors of right whales present in 
these areas (Kraus et al. 2014).
    We have considered additional sightings data available (see Kraus 
et al. 2014, Khan, C. et al. 2010, 2011, 2012, 2014, Gatzke J. et al. 
2013). Their inclusion does not fundamentally change the outcome of the 
analysis provided by Pace and Merrick 2008 in light of the 35 years of 
sightings data already used in that analysis (Richard Merrick, Pers. 
Comm., May 2010). However, we will continue to monitor sightings in 
these areas and will take appropriate action if warranted.
    Therefore, we have concluded that the combination of physical and 
biological foraging features, including the dense aggregations of late 
stage C. finmarchicus, are not present in these areas and thus do not 
include these areas south of the Gulf of Maine-Georges Bank region in 
the boundaries of right whale critical habitat. We will continue to 
monitor sightings in these areas and will take appropriate action if 
warranted.
    Comment 39: One commenter stated that we have acknowledged the 
importance of the areas surrounding Nantucket Sound for spring 
aggregations of copepods. The agency has stated in a separate resource 
document that the early spring abundances of C. finmarchicus increase 
throughout the ecosystem, but are highest in the shallower portions of 
the Gulf of Maine, on Georges Bank and on Nantucket Shoals. Abundance 
continues to increase into late spring, with high abundance throughout 
the Gulf of Maine, Georges Bank, the Southern New England shelf and the 
outer Middle Atlantic Bight shelf. The comment referenced the following 
NMFS document: Seasonal and Spatial Trends' in Ecology of the Northeast 
Continental Shelf: Zooplankton. Retrieved from: www.nefsc.noaa.gov/ecosys/ecology/Zooplankton/.
    Response: The Web site cited by the commenter describes our current 
understanding of ecosystem properties of the Northeast U.S. Continental 
Shelf Large Marine Ecosystem (NES LME). As described, the commenter is 
correct that C. finmarchicus is found seasonally throughout the Gulf of 
Maine, Georges Bank, the Southern New England shelf and the outer 
Middle Atlantic Bight shelf including Nantucket Shoals. As noted, given 
the diversity of zooplankton (>100 species), it is difficult to 
generalize seasonal and interannual trends; the dynamics of individual 
species can be very different. As discussed in the Biological Source 
Document, right whales must locate and exploit extremely dense patches 
of zooplankton to feed efficiently (Mayo and Marx 1990).
    Bi et al. (2014) studied the abundance of the subarctic copepod, 
Calanus finmarchicus, and temperate, shelf copepod, Centropages 
typicus, over the Northeast U.S. continental shelf (NEUS) from 1977-
2010. These researchers studied variation in long term trends and 
seasonal patterns for the two copepod species for four sub-regions: The 
Gulf of Maine (GOM), Georges Bank (GB), Southern New England (SNE), and 
Mid-Atlantic Bight (MAB). Results suggested that there was significant 
difference in long term variation between northern region (GOM and GB), 
and the MAB for both species. Calanus finmarchicus had the highest 
abundance in the Gulf of Maine and Georges Bank followed in Southern 
New England region. Relative to the Gulf of Maine and Georges Bank, the 
long term trend of C. finmarchicus showed more variation in the SNE but 
less variation than the Mid-Atlantic Bight (MAB). The long term 
abundance of C. finmarchicus showed more fluctuation in the Mid-
Atlantic Bight than the Gulf of Maine Georges Banks region (Bi et al. 
2014).
    As described above and in the Biological Source Document we have 
used foraging right whales as a proxy for the presence of essential 
foraging features because basin-scale zooplankton monitoring schemes 
have proved ineffective in detecting the high concentrations usually 
present in the vicinity of actively feeding whales. Furthermore, 
zooplankton such as C. finmarchicus are found throughout the ocean, but 
frequently at concentrations far too low to meet right whales' 
energetic requirements (Baumgartner et al. 2007). As discussed, using 
direct copepod sampling efforts to identify where dense aggregations 
occur is also confounded by the fact that sufficient data are not 
available to establish a specific threshold density of C. finmarchicus 
that triggers feeding.
    While C. finmarchicus is present in the waters south of Cape Cod 
including Nantucket Sound and Martha's Vineyard, we have concluded that 
those areas do not have the combination essential physical and 
biological features, including late stage C. finmarchicus in dense 
aggregations that are evident in the GoM-Georges Bank region.

4(b)(2) Report

    Comment 40: One commenter stated that our Section 4(b)(2) Report 
does not present a clear assessment of the costs and benefits of the 
proposed designation. In addition, the commenter stated that the report 
underestimates the total section 7 administrative costs that will be 
incurred because of the proposed critical habitat designation. The 
commenter stated the 4(b)(2) Report's estimated section 7 consultation 
administrative costs are

[[Page 4851]]

extraordinarily low and are inconsistent with other recent section 
4(b)(2) cost assessments performed by NMFS. The commenter cited two 
recent administrative cost estimates they believe provide more accurate 
administrative cost estimates including the recent 4(b)(2) impact 
analysis prepared for the Northwest Atlantic Ocean Distinct Population 
Segment of the Loggerhead Sea Turtle critical habitat designation.
    The commenter stated that we improperly concluded that we are 
unable to estimate the critical habitat-related section 7 
administrative costs associated with oil and gas exploration and 
development in Unit 1 on the basis that there is not a consultation 
history on this activity. The commenter stated that section 7 
consultations for actions involving offshore oil and gas-related 
activities that have been completed in other areas, such as the Gulf of 
Mexico and Alaska, as well as for certain areas in the Atlantic Ocean, 
could be used as the basis for estimating the costs of future oil and 
gas-related consultations in Unit 1.
    Response: We disagree. As discussed in the 4(b)(2) Report, we 
concluded that no categories of future federal actions would require 
consultation solely due to the critical habitat; all future activities 
will involve consultation on impacts both to the species and to 
critical habitat. The administrative costs we estimated as being 
associated with the critical habitat consultations represent the 
incremental costs of conducting critical habitat analyses in 
consultations on federal actions that ``may affect'' the essential 
features of the critical habitat. According to our regulations, we are 
required to analyze the incremental (i.e., the portion of) costs 
attributable to the critical habitat. Therefore, consistent with our 
previous critical habitat designations, any administrative costs 
associated with evaluating impacts to the species are not included in 
the administrative costs we estimated for the proposed North Atlantic 
right whale critical habitat.
    Based on our review of past consultations and on comments received, 
we have identified six categories of activities that may affect the 
critical habitat: National Pollution Discharge Elimination System 
(NPDES) permitting, oil spill response, dredging and spoil disposal, 
marine construction permitting, construction and operation of offshore 
liquefied natural gas (LNG) facilities, and construction and operation 
of energy facilities and sand extraction on the Outer Continental 
Shelf. Of these six categories, we identified two categories of 
activities, one under the Environmental Protection Agency's (EPA's) 
jurisdiction and one under the U.S. Coast Guard's (USCG's) authority, 
that may require unique modifications specifically to avoid adverse 
modification of the essential features, in addition to modifications 
that may be required to address impacts to the whales. We have also 
identified four new (i.e., not previously consulted on) categories of 
federal activities that may occur in the future and, if they do occur, 
may affect the essential features. These potential activities are: Oil 
and gas exploration and development activities, offshore alternative 
energy development activities, directed copepod fisheries, and marine 
aquaculture. Due to uncertainty in timing of these activities and a 
lack of a consultation history for these four new categories, we are 
not able to project annual administrative costs for future 
consultations because we don't know how many such activities might 
occur. However, we expect any of these consultations would each result 
in incremental administrative costs for the agencies and applicants 
involved of $5,080 per action, again, because these activities will 
also require consultation due to impacts to the whales.
    As discussed in the Section 4(b)(2) Report, we used administrative 
cost estimates for section 7 consultations developed by Industrial 
Economics, Inc. (IEc 2014, See exhibit 2-1 at page 2-11 in: Industrial 
Economics (2014) Economic Analysis of Critical Habitat Designation of 
Marine Habitat for the Northwest Atlantic Ocean Distinct Population 
Segment of the Loggerhead Sea Turtle, Final Report, April 29, 2014, 
prepared for NMFS, 220 pp, http://www.nmfs.noaa.gov/pr/species/documents/loggerhead_sea_turtle_fea-final.pdf). The IEc (2014) report 
provides estimates of administrative costs for different categories of 
consultations as follows: (1) New consultations resulting entirely from 
critical habitat designation; (2) new consultations considering only 
adverse modification (unoccupied habitat); (3) re-initiation of 
consultation to address adverse modification; and (4) additional 
consultation effort to address adverse modification in a new 
consultation. Given that all the consultations we project to result 
from this designation will be co-extensive consultations on new actions 
that would be evaluating impacts to the whales as well as impacts to 
critical habitat, the administrative costs would all be in category 4 
above. As discussed in the Section 4(b)(2) Report, we applied the 
conservative assumption that all potential future consultations will be 
formal consultations (as opposed to less expensive informal 
consultations); therefore, the incremental administrative costs for the 
agencies and applicants likely represents an overestimation of the 
costs.
    The example of the higher administrative cost estimate provided by 
the commenter of $20,000 per formal consultation was taken from the IEc 
(2014) report and represents the cost of a new consultation resulting 
entirely from a critical habitat designation (See exhibit 2-1 at page 
2-11 (IEc 2014)). As explained above, this scenario does not apply to 
the North Atlantic right whale critical habitat designation.
    The commenter asserted we improperly concluded that we are unable 
to estimate the critical habitat-related section 7 administrative costs 
associated with oil and gas exploration and development in Unit 1 on 
the basis that we do not have a consultation history on this activity 
and are therefore unable to estimate the number of projected section 7 
consultations, and their associated costs, due to uncertainty about the 
nature, scope, and scale of future activities. The commenter referenced 
previous section 7 consultations for actions involving offshore oil and 
gas-related activities that have been completed in other areas, such as 
the Gulf of Mexico and Alaska, as well as for certain areas in the 
Atlantic Ocean. The commenter states that these consultations could 
easily be used as the basis for estimating the costs of future oil and 
gas-related consultations in Unit 1. However, the number of past 
section 7 consultations that have taken place in Alaska, the Gulf of 
Mexico, and the Mid-Atlantic does not provide a basis by which we can 
estimate the number of potential future oil and gas related activities 
in Unit 1, as these planning areas and their state of development are 
vastly different from each other. As discussed, we have identified the 
incremental costs of future section 7 consultations associated with the 
designation of North Atlantic right whale critical habitat in our 
4(b)(2) analysis. As discussed in the Biological Source Document and 
4(b)(2) Report, we have identified oil and gas exploration and 
development as potential future activities that may affect the 
essential features of right whale critical habitat. Unit 1 is currently 
under a moratorium for oil and gas exploration. Within Unit 1, the 
current moratorium is due to expire in 2017 in U.S. waters. The scope 
and nature of the previous projects as well as the ecological settings 
vary between geographic region, each

[[Page 4852]]

presenting unique environmental impacts and mitigation needs.
    Comment 41: One commenter stated that the Section 4(b)(2) Report is 
disorganized, at times internally inconsistent, and does not provide a 
clear accounting or comparison of the projected costs and the projected 
benefits of the proposed designation. The commenter states that 
therefore it is difficult to provide specific responsive comments 
because the report does not provide a straightforward or specific 
explanation of what we have considered to be the costs of the 
designation.
    Response: The commenter did not provide specific examples of what 
they believe is disorganized, unclear, or internally inconsistent with 
the Section 4(b)(2) Report. While we disagree with the comment, we have 
reviewed the Section 4(b)(2) Report in response to this comment and 
have made several minor organizational changes and updates. We believe 
that the Section 4(b)(2) Report provides as clear a non-speculative 
assessment of the economic, national security, and other relevant 
impacts of the designation of critical habitat for the North Atlantic 
right whale as is possible given the nature of projecting the type, 
scale, number and timing of future activities that may trigger 
consultation. As discussed in the Section 4(b)(2) Report, the joint 
NMFS and Fish and Wildlife Service (FWS) regulations at 50 CFR 424.19 
require NMFS and FWS to conduct an ``incremental analysis'' by 
considering economic impacts attributable to the proposed designation 
and to describe the impacts either qualitatively or quantitatively. In 
order to estimate the incremental costs of the proposed designation, we 
attempted to identify whether the potential impacts of any activities 
would require efforts to specifically avoid adverse modification or 
destruction of the proposed critical habitat. Any such efforts were 
considered incremental economic costs of the proposed critical habitat 
designation. In addition, the added administrative costs associated 
with evaluating impacts to the critical habitat are considered 
incremental costs of the proposed designation. While it was not 
possible to provide quantitative estimates for all the projected 
benefits and costs that may be uniquely attributable to North Atlantic 
right whale critical habitat, the analysis attempts to comprehensively 
identify (and, wherever practicable, quantify) benefits and costs 
attributable to the proposed action. We expect that this critical 
habitat designation will result in both direct and indirect benefits, 
with non-consumptive use and non-use values representing a significant 
component of the benefits derived from the critical habitat. These 
values are described qualitatively in the Section 4(b)(2) Report 
because the economic studies needed to quantify those benefits are not 
available. See also the Response 42.
    Comment 42: One commenter stated that we incorrectly assumed that 
section 7 consultations for actions that are more likely to affect 
listed species than affect essential habitat features have zero costs 
associated with critical habitat. Further, the commenter stated that 
consultation involving a species for which critical habitat has been 
designated results in additional costs that are attributable to the 
critical habitat designation, specifically as it relates to analysis 
contained in biological opinions. The commenter stated that the report 
therefore underestimates the total section 7-related costs incurred as 
a result of the designation of North Atlantic right whale critical 
habitat.
    Response: The comment is not correct. We identified incremental 
administrative costs for each future action we projected would require 
consultation due to potential impacts to critical habitat. 
Administrative section 7 costs estimated at $95,504 are presented in 
the Section 4(b)(2) Report and represent the annual, incremental (i.e., 
additional), administrative cost of conducting critical habitat 
assessments for a projected 188 formal consultations per year over the 
next ten years. The estimated incremental administrative cost for the 
agencies and applicants involved in the consultations we identified 
totaled $5,080 per action. The incremental administrative costs were 
derived from data from the Federal Government Schedule Rates, Office of 
Personnel Management, 2013, and a review of consultation records from 
several Service field offices across the country. In calculating these 
estimates, we assumed all future consultations would be ``formal'' (as 
opposed to some being informal); this assumption was applied to avoid 
underestimating the administrative costs associated with the critical 
habitat.
    In terms of project modification costs, we identified those 
activities for which project modifications to address impacts to 
critical habitat could be required and would be different from any 
modifications needed to address impacts to the whales. We could not 
monetize project modification costs, because there are too many 
variables about potential future actions (e.g., size, location, timing) 
that make it impossible to project exactly what type or combination of 
project modifications might be needed.

Special Management Considerations and Impacts of the Designation

    Comment 43: Several organizations agreed with concerns we raised in 
the Biological Source Document that fragmented habitat may have an 
adverse impact on successful calving. Several of these commenters 
identified additional activities that they believed could fragment 
calving habitat and therefore be subject to federal consultation 
requirements. Among these were activities that could alter the acoustic 
habitat necessary for whale communication including seismic airguns, 
pile driving, underwater detonations, military sonar, and vessel 
traffic that could interfere with essential physical or biological 
features of calving habitat. One organization stated that installation 
and operation of oil and gas rigs and supportive structures could act 
as a type of barrier to calving right whales and prevent them from 
moving around to find optimal combinations of essential calving area 
features.
    Response: As stated in the Biological Source Document, activities 
or conditions that fragment the contiguousness of the essential 
features or reduce or eliminate the ``selectability'' of dynamic, 
optimal combination of the essential features may have negative impacts 
on right whale calving. However, we do not agree that oil and gas rigs 
will reduce or eliminate the selectability of dynamic, optimal 
combination of the essential calving features. The BOEM presently 
implements a 50-mile no-leasing buffer from the Georgia, South 
Carolina, and North Carolina coastlines for oil and gas leasing, and 
the buffer is being proposed for the 2017-2022 lease sale. Unit 2 off 
Florida is not within BOEM's South Atlantic Planning Area (i.e., there 
are no oil and gas leases proposed through 2022), based on objections 
from the State. Consequently, no oil or gas rigs are projected to be 
located within Unit 2.
    As stated in the Biological Source Document, activities or 
conditions that fragment the contiguousness of the essential features 
or reduce or eliminate the ``selectability'' of dynamic, optimal 
combination of the essential features may have negative impacts on 
right whale calving. The Section 4(b)(2) report also outlines the 
process and set of activities we expect may affect the features of the 
calving habitat. The activities identified by the commenter may have 
impacts on right whales themselves but are not be expected to affect 
the essential physical and

[[Page 4853]]

biological features of calving habitat. Therefore, we would consult on 
the effect of those activities on the listed species, not the 
designated critical habitat.
    Comment 44: One commenter stated that the impacts of overlapping 
North Atlantic right whale calves and wind farms off Southeast North 
Carolina has not been studied and should be added as a future 
management concern. This commenter further advocated that no marine 
wind energy construction be allowed until impacts on right whales are 
understood.
    Response: We are also unaware of any studies that investigate the 
effects of wind farms on right whales, including calves. In the 
proposed rule and Biological Source Document, we identified wind farms 
(i.e., offshore energy development) as a reason the calving habitat 
essential features may require special management considerations or 
protection, given potential impacts on (1) the essential physical 
features of North Atlantic right whale calving habitat and (2) the 
contiguousness and selectability of the essential features. 
Construction and presence of large arrays of permanent structures may 
limit the availability of essential habitat features to calving right 
whales. Arrays of structures may also act as physical barriers and 
prevent or limit the ability of right whale mothers and calves to 
select dynamic combinations of the essential habitat features. 
Windfarms may also impact the contiguousness the physical habitat 
features essential for successful calving. By explicitly acknowledging 
these potential impacts to calving right whale critical habitat, we 
encourage Federal agencies and applicants whose actions may affect 
critical habitat features in these ways to consider and address these 
concerns to critical habitat in early planning of such activities.
    Comment 45: One commenter stated that hydrokinetic energy is 
proposed for coastal Maine and was evaluated by the Department of 
Energy (DOE). The commenter stated that the DOE report, though 
acknowledging the lack of information on large-scale operations, also 
acknowledges that there could be adverse ``effects on bottom habitats, 
hydrographic conditions, or animal movements.'' The commenter further 
stated that the DOE Report indicated that floating and submerged 
structures, mooring lines, and transmission cables associated with 
large ocean energy facilities could interfere with the movement of 
animals and it cites entanglement risk for right whales that has been 
documented in other lines and cables.
    Response: In Unit 1, we considered the potential impacts of wave 
and tidal energy facilities, should they be developed, on dense 
aggregations of copepods and concluded based on the information 
available that the activity would not likely affect the survivability 
of dense copepod aggregations. We do not believe that hydrokinetic 
energy facilities will impact essential physical features in Unit 1. 
The basin-wide scale of the physical oceanographic features we have 
identified as essential features of foraging habitat in Unit 1 will not 
be affected by the relatively localized impacts of hydrokinetics energy 
facilities.
    Most of ocean energy and hydrokinetic renewable energy technologies 
remain at the conceptual stage and have not yet been developed as full-
scale prototypes or tested in the field (DOE 2009). Several potential 
hydrokinetic tidal energy sites have been identified in Maine as part 
of Maine Tidal Power Initiative (Available at: http://umaine.edu/mtpi/overview). These sites are all located inshore, either at the lower 
reaches of rivers or bays. Studies are underway at a potential tidal 
turbine site in Eastport, Maine to better understand the impact a tidal 
energy project could have on fish.
    The DOE (2009) report, cited by the commenter, indicates that 
``effects on bottom habitats, hydrographic conditions, or animal 
movements'' may possibly need further investigation as part of siting 
and licensing a project investigation, not that there could be adverse 
effects as suggested. Future proposals for development of hydrokinetic 
energy and deployment of arrays will provide an opportunity to evaluate 
the potential impacts to the essential features and the species through 
the section 7 consultation process.
    We considered the potential impacts of the construction and 
operation of energy production technologies including hydrokinetic on 
the dynamically distributed essential features of calving habitat and 
their selectability by right whales. In Unit 2, we concluded that the 
installation and operation of offshore energy development facilities 
are not likely to negatively impact the preferred ranges of sea surface 
roughness, sea surface temperatures, or water depths, in that it will 
not raise or lower the available value ranges for these features. 
However, installation and operation of these technologies may fragment 
large, continuous areas where the essential features are present. 
Additionally, installation and operation of these technologies may 
limit the availability of the essential features such that right whales 
are not able to select dynamic, optimal combinations of the features 
necessary for successful calving.
    Comment 46: Multiple commenters stated that with regard to the 
installation of offshore wind energy facilities, the Biological Source 
Document discusses potential offshore wind energy projects only with 
regard to the possible adverse impacts on the essential features of 
calving habitat in Unit 2. One comment stated that the concerns and 
cautions raised for the installation of offshore wind energy facilities 
in calving grounds are also applicable to the installation of these 
facilities in the northeast, and cited an application for a lease site 
in federal waters approximately 12 miles off of Portland, Maine. The 
commenter stated that so-called ``floating'' turbines such as are 
proposed for this project are anchored to the bottom by heavy cables 
that could, as discussed in the Biological Source Document for Unit 2, 
impede passage or disrupt current flows, possibly disrupting some of 
the physical features of this critical feeding habitat.
    Additionally, installation and operation of these technologies may 
limit the availability of the essential features such that right whales 
are not able to select dynamic, optimal combinations of the features. 
This document also stated that ``[l]arger whales may have difficulty 
passing through an energy facility with numerous, closely spaced 
mooring or transmission lines.''
    Response: We disagree with the statement that special management 
considerations and protections associated with the potential impacts of 
offshore wind energy development on the essential features of calving 
habitat in Unit 2 are applicable in Unit 1. The special management 
considerations and protections associated with calving and foraging 
habitat are different, as are the routes of potential impacts, because 
the features are defined differently. We considered the potential 
impacts from the construction, operation, and decommissioning of wind 
farms on the essential physical and biological foraging features in 
Unit 1. We concluded there would be no impacts to the essential 
features.
    The effects on passage and a whale's ability to feed that the 
commenter suggested might be associated with the activity would 
constitute impacts on the species and not critical habitat features. On 
December 30, 2010, we completed a formal section 7 consultation on the 
proposed Cape Wind Energy Project. We

[[Page 4854]]

concluded that all effects to whales from the proposed project were 
insignificant or discountable, and therefore the proposed action was 
not likely to adversely affect listed whales, including right whales.
    While impacts to critical habitat were not considered for this 
project because there is none designated within the project's action 
area, the potential environmental impacts of the Cape Wind Energy 
Project were analyzed (DOE 2012). As part of the analysis, the 
potential impact associated with possible alterations to circulation 
patterns and currents were considered and determined to be negligible 
(DOE 2012). We believe that this would be the case in other future wind 
energy projects should they be proposed within Unit 1. Therefore, there 
would be no impacts to essential physical foraging features in Unit 1. 
Furthermore, we cannot currently identify any mechanisms by which the 
construction, operation or decommissioning of a wind energy project 
would affect the other essential foraging features we have identified 
in Unit 1.
    However, future proposals for development of offshore wind 
facilities will provide an opportunity to evaluate the potential 
impacts to the essential features and the species through the section 7 
consultation process.
    Comment 47: One commenter stated that for both the Unit 1 and Unit 
2 proposed designations, we summarily concluded that future special 
management measures may be needed to address possible, but uncertain, 
future consequences of climate change. The comment stated that, we did 
not identify any special management measures that may address those 
projected consequences. Because there is no support for the proposed 
climate change-related special management finding, the commenter 
recommended that we eliminate it in any final rule that is issued. The 
comment stated that critical habitat designations must be supported by 
a finding that the essential habitat features ``may require special 
management considerations or protection[s].'' 16 U.S.C. 
1532(5)(A)(i)(II). The comment stated that any special management 
``methods or procedures'' identified by the agency must be ``useful in 
protecting physical and biological features of the environment for the 
conservation of listed species.'' 50 CFR 424.02(j). The comment stated 
that for both Unit 1 and Unit 2, we recited a number of possible future 
consequences that the agency believes may be related to climate change 
and then summarily concluded that future special management measures 
may be needed to address those possible, but uncertain, future 
consequences. The commenter stated that we did not speculate as to what 
type of special management measures (if any) may be needed with respect 
to projected climate change effects. The comment provided previous 
cases and legal standards that they believe support this 
recommendation, such as ``Cape Hatteras Pres. Alliance, F. Supp. 2d at 
124.''
    Response: We disagree with this comment. A review of the decision 
in Cape Hatteras Access Preservation Alliance v. U.S. Dep't of the 
Interior et al., 344 F. Supp. 2d 108 (D.D.C., Nov. 1, 2004), reveals 
that the court remanded the critical habitat designation to the U.S 
Fish and Wildlife Service (FWS) because they failed to make a 
determination as to whether the essential features (``PCEs'') they 
identified in the designation of critical habitat may require special 
management considerations or protections. The ruling was not that FWS 
must make the determinations and also identify specific special 
management measures that may be needed with respect to possible future 
effects.
    In the proposed rule, we identified specific routes, where possible 
by which we believe that the essential foraging and calving features 
could be impacted by climate change and thus why the features might 
require special management considerations or protections in the future 
(See pages 117-131 for Unit 1 essential features and pages 139-143 for 
Unit 2 in the Biological Source Document).
    Comment 48: The commenter stated that one special management 
situation for Unit 1 that was not considered is a proposed increase in 
shellfish aquaculture. The commenter provided a specific example of a 
project under consideration on Jeffreys Ledge as being illustrative of 
this particular concern and provided a number of potential impacts 
including the introduction of vertical lines and mooring and buoy lines 
into the water column. The commenter asserted that this type of 
facility might block free passage of whales or disrupt foraging 
behavior and increase entanglement risks. The commenter noted that 
there are proposals to site other facilities outside of the area in 
which the essential foraging features are found (e.g., Nantucket 
Sound). The commenter stated that these activities have not been 
adequately considered by the agency with regard to potential threats to 
right whales and whether they may potentially disrupt foraging behavior 
to determine if special management considerations or protections are 
necessary.
    Response: During the development of the proposed rule and the 
supporting documents (e.g., Biological Source Document, Section 4(b)(2) 
Report), we conducted an in-depth and thorough analysis of the 
potential for a variety of activities to impact the essential features 
of foraging and calving habitat including offshore aquaculture. The 
potential impacts of the activities cited by the commenter were not 
identified as reasons the essential features may require special 
management, or as activities that would require section 7 consultation 
because they might adversely affect the essential features of foraging 
habitat. The introduction of vertical lines, mooring, and buoy lines 
into the water column associated with the development of offshore 
shellfish aquaculture may present an entanglement risk for large 
whales, including right whales, but is not a route of effects to the 
essential foraging features of the critical habitat. Thus, the agency 
would consider those impacts during a section 7 consultation to insure 
those activities are not likely to jeopardize the continued existence 
of North Atlantic right whales.
    Comment 49: One commenter states that the proposed rule discusses 
several activities that may adversely affect essential physical or 
biological features and that require special management considerations 
or protection. The commenter stated that while they recognize that it 
may be unrealistic to list all such activities, a more extensive 
discussion of the range of activities that may affect essential 
physical and biological features should be provided. The commenter 
states that for their recommended feature of ``acoustic habitat 
necessary for whale communication or other essential whale behavior'' 
we should note in the preamble that seismic airguns, pile driving, 
underwater detonations, military sonar, and vessel traffic could 
interfere with essential physical or biological features, prompting the 
need for special management considerations. With regard to feeding 
areas, it would be appropriate to note that activities that discharge 
contaminants, in addition to those already mentioned in the proposed 
rule, and could affect the reproduction or abundance of copepods, also 
may trigger special management action. Similarly, the placement of 
fishing or other lines in the water column that could interfere with 
right whale filter feeding or become caught in right whale baleen may 
need special management attention as well.

[[Page 4855]]

    Response: The ``special management considerations'' that the 
commenter identifies apply to physical and biological features that the 
Marine Mammal Commission recommended be identified as essential right 
whale critical habitat features. We have considered their 
recommendations and have concluded that the features they propose are 
not appropriate for identification as such (see responses to comments 
34, 35 and 36). Further, many of the activities that they identify and 
that they believe require special management are issues related to the 
takings of right whales, not impacts to essential features of critical 
habitat. The activities identified by the commenter would affect right 
whale individuals and not critical habitat itself. Therefore, these 
were not identified as part of the impact analysis as having the 
potential to affect the essential features.
    Comment 50: One commenter stated that the impacts of overlapping 
North Atlantic right whale calves and wind farms off Southeast North 
Carolina has not been studied and should be added as a future 
management concern. This commenter further advocated that no marine 
wind energy construction be allowed until impacts on right whales are 
understood.
    Response: We are also unaware of any studies that investigate the 
effects of wind farms on right whales, including calves. In the 
proposed rule and Biological Source Document, we identified wind farms 
(i.e., offshore energy development) as a reason the calving habitat 
essential features may require special management considerations or 
protection, given potential impacts on (1) the essential physical 
features of North Atlantic right whale calving habitat and (2) the 
contiguousness and selectability of the essential features. 
Construction and presence of large arrays of permanent structures may 
limit the availability of essential habitat features to calving right 
whales. Arrays of structures may also act as physical barriers and 
prevent or limit the ability of right whale mothers and calves to 
select dynamic combinations of the essential habitat features. 
Windfarms may also impact the contiguousness the physical habitat 
features essential for successful calving. By explicitly acknowledging 
these potential impacts to calving right whale critical habitat, we 
encourage Federal agencies and applicants whose actions may affect 
critical habitat features in these ways to consider and address these 
concerns to critical habitat in early planning of such activities.
    Comment 51: BOEM commented that their Marine Minerals Program has a 
role in sand resources leasing to support identified U.S. Army Corps of 
Engineers actions. However, the proposed rule and ESA Section 4(b)(2) 
Report did not, but should, consider BOEM's administrative costs for 
these actions.
    Response: In response to this comment, we modified the Section 
4(b)(2) Report to reflect BOEM's sand leasing activities and 
administrative costs associated with section 7 consultations.
    Comment 52: Several comments discussed the relationship between 
critical habitat and take avoidance measures implemented to protect the 
species during geological and geophysical activities. One commenter 
asked if protection measures would change to accommodate the change in 
critical habitat. Another commenter supported extending protection 
measures from the 1994-designated critical habitat area to the modified 
critical habitat. Finally, one commenter suggested considering the 
impact of oil spills from oil and gas activities off the Southeast U.S. 
coast on calves and lactating mothers.
    Response: The ESA requires Federal agencies, in consultation with 
us, to ensure that ``any action authorized, funded, or carried out'' by 
the action agency is not likely to jeopardize the continued existence 
of any listed species or result in the destruction or adverse 
modification of the species' habitat (16 U.S.C. 1536(a)(2)). The 
purpose of the referenced protection measures is to avoid harm to right 
whales (the animals themselves). The purpose of consulting on critical 
habitat is to avoid destroying or adversely modifying critical habitat. 
We are not aware of how measures protecting the species from physical 
harm (e.g., injury from vessel strike) would protect habitat essential 
features (e.g., water depth in Unit 2); consequently, we do not 
anticipate the protection measures will change as the result of 
modification to critical habitat. However, protection measures may 
change as we all learn more about the North Atlantic right whales--
including their distribution patterns. As far as oil spills, we would 
analyze those possible impacts to the animals during ESA section 7 
consultations.
    Comment 53: One commenter requested that we consider impacts 
associated with coastally-located industrial electric generators (e.g., 
Pilgrim Nuclear Power Station, Seabrook Nuclear power station, Mirant 
Canal Power Plant) as a cause for special management considerations or 
protections. The comment stated that the proposed critical habitat area 
includes the large embayments of Cape Cod Bay and Massachusetts Bay and 
deep underwater basins, incorporating state and federal waters from 
Maine through Massachusetts, but inshore waters were not considered. 
The commenter stated that over the last several years, there have been 
increasing concentrations of right whales in the western portion of 
Cape Cod Bay, including inshore areas off the shore of Plymouth, MA. 
The commenter recommended that we consider including these inshore 
areas where high concentrations of right whales have been sighted. The 
commenter also stated that there may be cumulative impacts to copepods 
or other foraging habitat features due to industrial electric 
generators operating on the shoreline, such as Entergy's Pilgrim 
Nuclear Power Station (PNPS) on the shore of Cape Cod Bay (Plymouth, 
MA), Seabrook Station Nuclear Power Plant (SBNPP) (Seabrook, NH), and 
Mirant Canal Power Plant (MCPP) (Sandwich, MA). The commenter stated 
that negative impacts include entrainment of copepods and other 
planktonic species, as well as chemical, thermal and radioactive 
discharges occurring in important foraging areas. The comment stated 
that this issue should be included as a cause for special management 
considerations or protections.
    Response: We agree that in recent years there has been an increase 
in the concentration of right whales in Western Cape Cod Bay, which has 
been included in this critical habitat designation. We have conducted 
informal consultations for the relicensing of the named power plants. 
The consultations concluded that the relicensing and continued 
operation of the power plants was not likely to adversely affect any 
NMFS ESA-listed species under our jurisdiction and would be would be 
extremely unlikely to adversely affect right whale critical habitat as 
it was designated at the time.
    The best available scientific information, derived from recent 
modeling, indicates that population level effects of zooplankton/
copepods removal due to entrainment in liquefied natural gas (LNG) 
operations involving water withdrawals would be so minor that the 
change would be indistinguishable from natural variability (NMFS 2007, 
Robert Kenney in October 11, 2011, letter to NMFS). While some copepods 
are likely lost to entrainment at Pilgrim each year, approximately 85% 
of entrained zooplankton are believed to survive. As such, the 
essential feature of dense aggregations of late stage C. finmarchicus 
does not require special

[[Page 4856]]

management considerations or protection due to entrainment by the PNPS, 
SBNPP or MCPP.
    Comment 54: One commenter questioned how critical habitat 
designation will impact the efficiency and overall processes for future 
ESA consultations for BOEM's three programs of Oil and Gas, Renewable 
Energy, and Marine Minerals.
    Response: The impacts of designating critical habitat on BOEM's 
programs are considered in the Economic Impacts section of the proposed 
rule and accompanying ESA Section 4(b)(2) Report. How the critical 
habitat designation will affect the efficiency and overall process for 
future ESA consultations is contingent upon whether BOEM's particular 
proposed activity has the potential to adversely affect essential 
features in Unit 2, and on the project scope, and routes of effects. 
For BOEM's renewable energy programs only, we concluded proposed 
actions will more likely affect the essential features of critical 
habitat than the species in Unit 2. However, because there are no 
records in our consultation history for offshore renewable or 
alternative energy projects occurring within Unit 2, we are unable to 
(a) predict how many section 7 consultations may result from projects 
of this type or (b) calculate the projected incremental costs resulting 
from this action. Ultimately, proposed projects will have to be 
analyzed on a case-by-case basis and we encourage BOEM to coordinate 
with us early in the project development phase.
    Comment 55: We received a number of comments from BOEM regarding 
Atlantic geological and geophysical (seismic) activities in Unit 2. 
Comments included: A request to identify and address effects of 
Geological and Geophysical Data Acquisition on critical habitat or 
further offshore; an inquiry as to whether the revised critical habitat 
would affect existing mitigation measures that are tied to existing 
critical habitat or require additional protection measures for the 
species (BOEM stated that additional measures were required in recent 
consultations on Navy dredging and disposal activities within the 1994-
designated critical habitat); information on and examples of possible 
special considerations or protections that may be required as the 
result of changes to critical habitat was requested.
    Response: We are not aware of any routes of impact concerning 
seismic activity that would potentially create adverse effects on the 
essential features of Unit 2 of North Atlantic right whale critical 
habitat--i.e., the physical features of sea surface conditions or 
temperature, or water depths, or their selectability over large 
contiguous areas. Consequently, we believe that seismic activities are 
more likely to affect the species in Unit 2 than the physical features 
of critical habitat. As far as the effects of seismic activity on the 
species, we would analyze those possible impacts to the animals during 
ESA section 7 consultations.
    Comment 56: BOEM requested that the administrative costs associated 
with the changes in critical habitat be captured in the Section 4(b)(2) 
Report for BOEM's three program areas: Marine minerals, renewable 
energy, and oil and gas. BOEM commented that possible additional 
protections and special considerations resulting from the modified 
critical habitat were not included in the analysis estimating BOEM's 
costs for future renewable energy programs. BOEM believes $5,080 per 
action underestimates BOEM's true administrative cost so the Section 
4(b)(2) Report should be revised.
    Response: As mentioned in the Economic Impacts section of the 
proposed rule (80 FR 9314, February 20, 2015), we are unable to 
quantify the number of potential future consultations and thus the 
annualized incremental administrative costs associated with renewable 
energy activities in the calving area. The reason for this is that 
these are future activities for which there is no past consultation 
history, and we received a correspondence from BOEM that stated they 
have no specific or planned project proposals. We disagree that $5,080 
per action underestimates true incremental administrative costs for 
consultations on impacts to critical habitat that will be required as a 
result of this rulemaking. We used costs for consultations developed by 
Industrial Economics, Inc. (IEc 2014). The administrative costs 
associated with critical habitat consultations are low because they 
represent the incremental costs of adding critical habitat analyses to 
consultations that would be required to address potential impacts to 
the species. The costs of consultation that would occur even in the 
absence of critical habitat are not incremental costs of this 
designation.
    Comment 57: One commenter stated although the 4(b)(2) Report 
correctly recognizes the potential for oil and gas exploration and 
development in Units 1 and 2, we incorrectly assume that project 
modifications associated with critical habitat may occur in Unit 1 but 
not in Unit 2 for these activities. However, project modifications have 
already been proposed in Unit 2 for currently proposed actions that are 
solely attributable to right whale critical habitat. For example, the 
Bureau of Ocean Energy Management's Record of Decision for the Atlantic 
OCS Proposed Geological and Geophysical Activities Mid-Atlantic and 
South Atlantic Planning Areas, Final Environmental Impact Statement 
recommends an expansion of the time-area closure applicable to right 
whale critical habitat to a continuous 37 km wide zone and includes 
protective restrictions. None of the costs associated with these 
restrictions are identified in the Report and consequently the Report 
underestimates critical habitat related costs for oil and gas 
activities in Unit 2.
    Response: We do not agree that the Section 4(b)(2) Report should be 
updated to recognize potential project modifications to oil and gas 
exploration and development activities in Units 2. The BOEM Record of 
Decision (ROD) for the Atlantic OCS Proposed Geological and Geophysical 
Activities Mid-Atlantic and South Atlantic Planning Areas, Final 
Environmental Impact Statement (FEIS) contains mitigation measures 
intended to avoid or minimize effects to right whales themselves (and 
other environmental impacts) related to oil and gas geological and 
geophysical (G&G) activities and other proposed G&G activities 
throughout the Mid- and South Atlantic Planning areas. These mitigation 
measures include guidance for ship strike avoidance, mitigation 
measures for seismic airgun surveys and mitigation measures for high 
resolution geophysical (HRG) surveys. The mitigation measures are not 
intended to provide protection measures for critical habitat features 
but are intended to reduce the risk of acoustic and vessel strike 
impacts to North Atlantic right whales. Based on our 4(b)(2) impact 
analysis, we have not identified any routes of effects for acoustic 
impacts to the essential calving features. Any costs associated with 
the implementation of such G&G mitigation measures are not attributable 
to the designation of right whale critical habitat. As such, the 
Section 4(b)(2) Report does not underestimate critical habitat-related 
costs for oil and gas activities in Unit 2.

Fishing and Critical Habitat

    Comment 58: Several commenters noted that while the proposed rule 
does not include any new restrictions for commercial fishing commenters 
are concerned about the waters being proposed for designation. The 
commenters stated that while we have determined ``current fishing 
practices and techniques will not affect the essential foraging 
features'' and we do

[[Page 4857]]

not anticipate ``fishery related activities that would trigger 
consultation on the basis of critical habitat designation,'' commenters 
feel it is not a guarantee. The commenters could not support a formal 
designation with the potential to negatively impact fishermen without 
concrete scientific evidence of its need.
    Response: As part of its impact analysis, we concluded that 
commercial fishing activities, as currently conducted, are not expected 
to affect the essential features of right whale foraging habitat with 
the exception of a potential future directed copepod fishery. Gear 
restrictions currently in place to protect large whales, including 
right whales, were established by the regulations implementing the 
Marine Mammal Protection Act's Atlantic Large Whale Take Reduction 
Plan. Changes to gear restrictions are beyond the scope of this 
rulemaking to designate critical habitat under the ESA. The Atlantic 
Large Whale Take Reduction Team process is the proper venue to consider 
the adequacy of gear restrictions. Consequently, we are not making any 
changes to the current gear restrictions as part of this critical 
habitat rule.
    Comment 59: One commenter stated that Maine's lobster industry has 
been engaged in the Take Reduction Team process since its inception and 
fishermen have worked diligently over nearly two decades to implement 
changes in fishing practices to aid in the recovery of right whales. 
The commenter questioned the potential impact of new federal 
regulations on fishermen and doubted that the proposed designation area 
reflects a balanced review of the best available science, nor does it 
properly consider the economic impacts that will result from using an 
arbitrarily drawn critical habitat area that fails to exclude all areas 
that are not essential for conservation and recovery of the species.
    Response: We have identified the areas on which are found the 
physical and biological features which are essential to the 
conservation of the species and which may require special management 
considerations or protections as required by the ESA. The boundaries of 
the proposed critical habitat encompass the essential foraging and 
calving features. In identifying the essential calving and foraging 
features and considering the economic impacts of the designation, we 
have used the best available data and information. See also Response to 
Comment 58 regarding commercial fishing.
    Comment 60: Multiple commenters stated that while they support the 
concept of expanding the existing critical habitat areas where 
essential to the conservation and recovery of the right whale, this 
support for the proposed expansion is predicated on our finding in the 
Section 4(b)(2) Report that neither commercial nor recreational 
fishery[hyphen]related activities are expected to affect the essential 
features of right whale foraging habitat with the exception of a 
directed copepod fishery.
    Response: See response to Comment 58.

Other Comments

    Comment 61: Several organizations commented that we should not 
exclude areas from critical habitat based on economic or other impacts.
    Response: As required by section 4(b)(2) of the ESA, we considered 
the economic, national security, and any other relevant impact, of 
specifying any particular area as critical habitat. Section 4(b)(2) 
allows, but does not require, us to consider excluding a particular 
area from a designation, but only if the benefits of excluding that 
area outweigh the benefits of including it in the designation, and if 
the exclusion will not result in extinction of the species. We 
considered the economic impacts of specifying North Atlantic critical 
habitat; however, based on those considerations, we are not exercising 
our discretion to exclude any areas from the designation.
    Comment 62: One commenter stated that we can exclude any area where 
the costs of designation, including economic impacts, outweigh the 
conservation or economic benefits of designation. Such exclusions avoid 
unnecessarily burdening economic activity and designating areas as 
critical habitat where there is little or no benefit in doing so. The 
comment further stated that the ESA does not require us, in making 
section 4(b)(2) decisions, to limit our analysis to only those economic 
impacts that are certain and quantifiable. Instead, the economic 
analysis is a reasoned projection of what human activities may happen 
in the future and the economic impacts that the designation may have on 
those future activities.
    Response: See response to Comment 61.
    Comment 63: Several commenters noted that they supported our 
determinations not to designate a migratory corridor or breeding areas 
as critical habitat or to designate unoccupied areas as critical 
habitat.
    Response: We acknowledge these comments.
    Comment 64: One commenter was concerned about possible impacts of 
the proposed critical habitat designation on ferry service in the 
coastal waters and islands of Maine, New Hampshire and Boston Harbor/
Massachusetts Bay that are served by existing or likely ferry routes. 
The commenter recommended that the Secretary exercise her discretion 
under section 4(b)(2) of the Endangered Species Act and exclude coastal 
ferry routes from the critical habitat designation. The commenter 
stated that they believe that the expansion of critical habitat in the 
coastal waters of Unit 1 will lead to proposals to expand or create 
seasonal management areas with mandatory speed limits. The commenter 
expressed concern that we did not evaluate the potential economic 
impact of the proposed designation on ferry operators, the majority of 
whom are classified as small businesses or entities under the criteria 
of the U.S. Small Business Administration. The commenter noted they 
recognize that the critical habitat designation alone will impose no 
direct or immediate burden or impact on the ferry systems.
    Response: We do not believe that the normal transit of coastal 
ferries through areas designated as critical habitat will have any 
impact on the essential foraging features present in Unit 1 waters of 
the Gulf of Maine and Georges Bank. We have concluded that transiting 
vessels, whether military, civilian, or commercial do not impact the 
essential foraging features of critical habitat. Furthermore, we are 
not aware of a federal nexus regarding routine operation of the ferries 
such that this activity would be subject to the federal consultation 
requirements of section 7 of the ESA. Therefore, there will be no 
impact to the operation of ferries as a result of the designation of 
critical habitat and as such, no impacts to these small business 
entities. Under the ship speed rule (73 FR 6017, December 10, 2008), 
vessels greater than 65' in length are required to not exceed 10 knots 
seasonally in certain locations covered by seasonal management areas 
(SMAs) or are recommended to maintain speeds of 10 knots or less in 
dynamic management areas in certain times and locations. These measures 
are in place to reduce the risk of serious injury and mortality to 
right whales due to ship strikes.

Beyond the Scope of This Action

    Comment 65: One commenter stated that we failed to mention the 
potential impacts of noise on right whale mothers and calves and their 
need to stay together during the calving and nursing season. The need 
for ``noise levels to remain below those that would cause abandonment 
of critical habitat'' has

[[Page 4858]]

previously been recognized by us in our designation of critical habitat 
for other sound dependent marine mammals. This commenter cited our 
designation of critical habitat for Cook Inlet Beluga Whale. The 
commenter also stated that activities, such as seismic airguns, pile 
driving, underwater detonations, military sonar, and vessel traffic, 
could alter the acoustic habitat necessary for whale communication and 
interfere with the use of calving habitat; and therefore, sound 
qualifies as an essential feature that may require special management 
considerations.
    Response: As stated in the Federal Register Notice of Proposed 
Rulemaking for Cook Inlet Beluga Whale Critical Habitat (74 FR 63080, 
December 2, 2009), beluga whales are known to be among the most adept 
users of sound of all marine mammals, using sound rather than sight for 
many important functions, especially in the highly turbid waters of 
upper Cook Inlet. Beluga whales use sound to communicate, locate prey, 
and navigate, and may make different sounds in response to different 
stimuli. Beluga whales produce high frequency sounds which they use as 
a type of sonar for finding and pursuing prey. For these, and other 
reasons, we consider ``quiet'' areas in which noise levels do not 
interfere with important life history functions and behavior of these 
whales to be an essential feature of Cook Inlet Beluga Whale critical 
habitat.
    In contrast, in our final rule to designate critical habitat for 
the southern resident killer whale, we discussed the lack of sufficient 
information to include noise as an essential feature, but noted that we 
would continue to consider sound in any future revisions of that 
critical habitat (71 FR 69054, November 29, 2006). In that rule, we 
acknowledged the many observations about the potential for sound to 
startle or even physically injure killer whales. These effects, 
however, are direct effects to the animal itself and not to its 
habitat.
    Physical and biological features that are identified as essential 
to the conservation of a species vary among species. Similar to 
southern resident killer whales, we lack sufficient information to 
include noise as an essential feature for North Atlantic right whale 
calving area critical habitat. Unlike the other physical features 
identified as essential to the conservation of right whales because 
they facilitate successful calving, we are not aware of any information 
on acoustic thresholds that facilitate successful calving in right 
whales or other baleen whales. However, the agency has conducted and 
will continue to conduct ESA section 7 consultations on noise impacts 
of construction and geologic and geophysical exploration activities, 
and in completed consultations, measures have been included to avoid 
direct impacts to the whales as a consequence of noise associated with 
the proposed activities.
    Comment 66: One commenter recommended that the agency expand 
Seasonal Management Areas that reduce ship strikes to include all 
portions of the proposed critical habitat in the northeast and critical 
habitat in the mid-Atlantic migratory corridor out to 30 nm as well as 
areas in the Southeast Atlantic.
    Response: The commenters assertion that the SMA boundaries be 
reconfigured and extended out to 30 nautical miles from shore are 
beyond the scope of this rulemaking as the SMA rulemaking was 
concerning risk reduction to large whale interactions directly with 
North Atlantic right whales not its habitat. The purpose of the 
Seasonal Management Area (SMA) program is to promote direct protection 
to North Atlantic right whales by reducing the likelihood of death and 
serious injury that may result from collisions with ships. The SMA 
boundaries were based on right whale sightings not the presence of 
physical and biological features associated with right whale migration. 
The SMA program is not intended to provide protections to the essential 
features of right whale critical habitat.
    Comment 67: A commenter stated that the right whale population data 
used to support the proposed designation is not based on the best 
available science. The commenter noted the discrepancy between the 
North Atlantic Right Whale Consortium's 2012 and 2014 Right Whale 
Report Cards, which indicated that the population was at least 509 and 
522 whales, respectively; and the 450 population number referenced by 
us. The commenter stated that we should amend our rule to reflect this 
best available science.
    Response: The current abundance of North Atlantic right whales is 
not directly relevant to designating critical habitat, and we disagree 
with the assertion that we did not rely on the best available science 
when determining which areas meet the definition of critical habitat 
under the ESA. Furthermore, although not relevant to this rulemaking, 
we offer the following explanation of the differing abundance estimates 
cited by the commenter. The estimates provided in the North Atlantic 
Right Whale Consortium's reports state, ``This `best estimate' is based 
upon the number of photographed whales, but it excludes potential 
unphotographed whales, and therefore, should not be considered a 
`population estimate.' '' Therefore, it is not considered to be an 
appropriate estimate to use for right whale abundance. However, the 
Marine Mammal Protection Act requires that we use the minimum 
population estimate to ensure a more precautionary, conservative 
approach in the management of the marine mammal species. The 2014 Final 
NMFS Marine Mammal Stock Assessment Report (SARs) indicates 465 
individually recognized North Atlantic right whales were known to be 
alive in 2011 (Waring et al. 2015)--this is a direct count, represents 
a minimum population size, is peer-reviewed, published, and is 
considered the best available science. We are required to use the 
minimum population developed by the NOAA Fisheries Northeast Fisheries 
Science Center for the annual Marine Mammal Stock Assessment Reports in 
our management actions.
    Comment 68: One commenter expressed concerns about the lack of 
regulation in Canadian waters, noting that, right whales traverse 
international borders and yet there has been no effort made to 
establish uniform regulations across U.S. and Canadian waters. The 
commenter also appreciated our caution in not designating a mating 
habitat area.
    Response: As stated in the proposed rule, we are not authorized to 
designate critical habitat outside of U.S. jurisdiction. However, we 
acknowledge the commenter's view concerning the non-designation of a 
critical habitat associated with mating, and we will continue to work 
with our Canadian counterparts to coordinate and implement measures 
necessary to promote the conservation and recovery of protected species 
including the North Atlantic right whale.
    Comment 69: One commenter recommended that right whales be 
protected from gear entanglement through expanded SMAs and expanding 
entanglement regulations to encourage the use of gear innovations such 
as sinking or neutrally buoyant line to reduce and prevent entanglement 
and to promote science based catch quotas.
    Response: The commenter's suggestion is beyond the scope of this 
rulemaking (see response to Comment 58).
    Comment 70: A number of commenters expressed concerns about seismic 
exploration for oil and gas in proposed critical habitat. Concerns for 
right whales included: Habitat displacement, injuries, mortalities, 
behavioral disruption, acoustic masking, increase in noise pollution 
(particularly

[[Page 4859]]

as climate change impacts increase), and impacts to reproduction and 
survival. One commenter suggested that oil and gas rigs may act as a 
type of barrier similar to types of barriers we identify with regard to 
other activities. One commenter stated that oil and gas activities may 
require management considerations similar to the installation and 
operation of offshore energy development facilities. Seismic testing, 
drilling, vessel traffic, construction of infrastructure, and 
industrialization of the coast may fragment large, contiguous areas 
containing the optimum ranges of all essential features that are 
necessary for right whale calving and rearing.
    Response: In the Biological Source Document and Section 4(b)(2) 
Report, we concluded that future potential oil and gas leasing 
development was one of the reasons the essential features may require 
special management considerations or protection in Unit 1. However, we 
do not anticipate oil and gas rig construction in Unit 2, because BOEM 
presently implements a 50-mile no-leasing buffer from the coastline for 
oil and gas leasing off Georgia and South and North Carolina. That 
buffer is being proposed for the year 2017 through 2022. No oil and gas 
leases off Florida are planned through 2022. We have clarified that in 
the final Section 4(b)(2) Report and Biological Source Document. We 
will work with BOEM to determine whether any of the activities listed 
by the commenters and proposed or authorized by BOEM may affect right 
whales (or any other listed species under our purview) or may affect 
right whale critical habitat, and thus require section 7 consultation.
    Comment 71: One commenter recommended that right whales be 
protected from proposed oil and gas exploration and development in the 
Atlantic Ocean through rules that prevent or limit the seismic airgun 
activity.
    Response: See response to comment 49. Based on our analysis of past 
and potential future activities that may affect critical habitat, we 
identified a number of activities with the potential to affect the 
essential features of right whale critical habitat. Seismic airguns 
were not identified as having the potential to impact right whale 
critical habitat. The effects of any oil and gas exploration activities 
and their potential to impact right whales as well as critical habitat 
will be analyzed in section 7 consultations.

Information Quality Act and Peer Review

    The data and analyses supporting this designation have undergone a 
pre-dissemination review and have been determined to be in compliance 
with applicable information quality guidelines implementing the 
Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). In 
December 2004, the Office of Management and Budget (OMB) issued a Final 
Information Quality Bulletin for Peer Review pursuant to the IQA. The 
Bulletin established minimum peer review standards, a transparent 
process for public disclosure of peer review planning, and 
opportunities for public participation with regard to certain types of 
information disseminated by the Federal Government. The peer review 
requirements of the OMB Bulletin apply to influential or highly 
influential scientific information disseminated on or after June 16, 
2005. To satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of the Biological Source Document and Section 
4(b)(2) Impacts Report that support the designation of critical habitat 
for the North Atlantic right whale, and we incorporated the peer review 
comments prior to publishing the proposed rule. The final peer review 
report is available along with all materials related to the peer review 
on the agency's Web site at: http://www.cio.noaa.gov/services_programs/prplans/ID259.html. The majority of the peer review comments were 
editorial in nature, and no substantive comments were received. For 
additional information on the specific comments received please see the 
Web site identified above.

Changes From Proposed Rule

    We are making one change from the proposed rule to the areas 
designated as right whale critical habitat. The one change is based on 
public comments received and further review of the best available 
scientific data. We are extending Unit 2 further to the south to 
include an area that is a portion of the critical habitat designated in 
1994, expanding the area south and increasing Unit 2 by approximately 
341 nm\2\. Unit 2 now includes nearshore and offshore waters of the 
southeastern U.S., extending from Cape Fear, North Carolina south to 
approximately 27 nm below Cape Canaveral, Florida.
    In addition to this change, we corrected an inadvertent omission of 
coordinates by which we have determined that following inshore waters 
associated with the harbors of Sandwich, Scorton and Barnstable should 
be excluded from the proposed critical habitat area of Unit 1. We also 
corrected a few omissions from the Section 4(b)(2) report, based on 
input from commenters.

Critical Habitat Identification and Designation

    Critical habitat is defined by section 3 of the ESA as (1) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed, on which are found those physical or biological 
features (a) essential to the conservation of the species and (b) which 
may require special management considerations or protection; and (2) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species.

Geographical Areas Occupied by the Species

    ``Geographical areas occupied'' in the definition of critical 
habitat is interpreted to mean the entire range of the species at the 
time it was listed, inclusive of all areas they use and move through 
seasonally (45 FR 13011, February 27, 1980). Prior to extensive 
exploitation, the North Atlantic right whale occurred in temperate, 
subarctic, coastal and continental shelf waters throughout the North 
Atlantic Ocean rim (Perry et al. 1999). Considerable sightings data 
document the use of areas in the western North Atlantic Ocean where 
right whales presently occur. The current known distribution of North 
Atlantic right whales is largely limited to the western North Atlantic 
Ocean. In the western North Atlantic, right whales migrate along the 
North American coast between areas as far south as Florida, and 
northward to the Gulf of Maine, the Bay of Fundy, the Gulf of St. 
Lawrence and the Scotian shelf, extending to the waters of Greenland 
and Iceland (Waring et al. 2011).
    Right whales have also been rarely observed in the Gulf of Mexico. 
The few published sightings (Moore and Clark 1963; Schmidly and Melcher 
1974; Ward-Geiger et al. 2011) represent either geographic anomalies or 
a more extensive historic range beyond the sole known calving and 
wintering ground in the waters of the southeastern United States 
(Waring et al. 2009). Therefore, the Gulf of Mexico is not considered 
part of the geographical area occupied by the species ``at the time it 
was listed.''
    Our regulations at 50 CFR 424.12(h) state: ``Critical habitat shall 
not be designated within foreign countries or

[[Page 4860]]

in other areas outside of United States jurisdiction.'' Although North 
Atlantic right whales have been sighted in coastal waters of Canada, 
Greenland, Iceland, and Norway, these areas cannot be considered for 
designation. The geographical area occupied by listed North Atlantic 
right whales that is within the jurisdiction of the United States is 
therefore limited to waters off the U.S. east coast between Maine and 
Florida, seaward to the boundary of the U.S. Exclusive Economic Zone.

Physical or Biological Features Essential for Conservation of the 
Species

    Within the geographical area occupied, critical habitat consists of 
specific areas on which those physical or biological features essential 
to the conservation of the species are found (hereafter referred to as 
``essential features'') and that may require special management 
considerations or protection. Section 3 of the ESA (16 U.S.C. 1532(3)) 
defines the terms ``conserve,'' ``conserving,'' and ``conservation'' in 
part to mean: ``To use and the use of all methods and procedures which 
are necessary to bring any endangered species or threatened species to 
the point at which the measures provided pursuant to this chapter are 
no longer necessary.'' Further, our regulations at 50 CFR 424.12(b) for 
designating critical habitat state that physical and biological 
features that are essential to the conservation of a given species and 
that may require special management considerations or protection may 
include: (1) Space for individual and population growth and for normal 
behavior; (2) food, water, air, light, minerals, or other nutritional 
or physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, rearing of offspring, germination, or seed 
dispersal, and generally; (5) habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species.
    As noted previously, we produced a Biological Source Document (NMFS 
2015a) that discusses our application of the ESA's definition of 
critical habitat for right whales in detail. When defining critical 
habitat for right whales, we considered the physical and/or biological 
features of foraging and calving habitats. The features of right whale 
foraging habitat that are essential to the conservation of the North 
Atlantic right whale are a combination of the following biological and 
physical oceanographic features:
    (1) The physical oceanographic conditions and structures of the 
Gulf of Maine and Georges Bank region that combine to distribute and 
aggregate C. finmarchicus for right whale foraging, namely prevailing 
currents and circulation patterns, bathymetric features (basins, banks, 
and channels), oceanic fronts, density gradients, and temperature 
regimes;
    (2) Low flow velocities in Jordan, Wilkinson, and Georges Basins 
that allow diapausing C. finmarchicus to aggregate passively below the 
convective layer so that the copepods are retained in the basins;
    (3) Late stage C. finmarchicus in dense aggregations in the Gulf of 
Maine and Georges Bank region; and
    (4) Diapausing C. finmarchicus in aggregations in the Gulf of Maine 
and Georges Bank region.
    The physical and biological features of right whale calving habitat 
that are essential to the conservation of the North Atlantic right 
whale are: (1) Calm sea surface conditions of Force 4 or less on the 
Beaufort Wind Scale; (2) sea surface temperatures from a minimum of 7 
[deg]C, and never more than 17 [deg]C; and (3) water depths of 6 to 28 
meters, where these features simultaneously co-occur over contiguous 
areas of at least 231 nm\2\ of ocean waters during the months of 
November through April. When these features are available, they are 
selected by right whale cows and calves in dynamic combinations that 
are suitable for calving, nursing, and rearing, and which vary, within 
the ranges specified, depending on factors such as weather and age of 
the calves.
    Beyond the uncertainty over the location of one or more migratory 
corridors, we cannot currently identify any specific physical or 
biological features that define migratory habitat. Therefore, we have 
concluded that it is not currently possible to define critical habitat 
associated with right whale migratory behaviors.
    Large-scale migratory movements between feeding habitat in the 
northeast and calving habitat in the southeast are a necessary 
component in the life history of the North Atlantic right whale. A 
proportion of the population makes this migration annually, and the 
most valuable life-history stage (calving females) must make this 
migration for successful reproduction. The subset of the North Atlantic 
right whale population that has been observed migrating between the 
northern feeding grounds and southern calving grounds is comprised 
disproportionately of reproductively mature females, pregnant females, 
juveniles, and young calves (Ward-Geiger et al. 2005; Fujiwara and 
Caswell 2001; Kraus et al. 1986, as cited by Firestone et al. 2008). 
For logistical reasons, survey efforts have also been disproportionally 
focused in the nearshore area (within 30 nm of shore). The Biological 
Source Document (NMFS 2015a) contains a thorough discussion of the 
available data we considered in our analysis.
    Likewise, we have concluded that it is not possible to identify 
essential physical or biological features related to breeding habitat, 
primarily because we cannot identify areas where breeding occurs. Right 
whales are known to aggregate in large groups known as Surface Active 
Groups (SAGs). While indicative of courtship and reproductive behavior, 
not all SAGs are reproductive in nature (Kraus et al. 2007). SAGs are 
observed year round, both in the northeast feeding areas as well as in 
the southeast calving grounds. SAGS are usually observed 
opportunistically during directed survey efforts as well as other 
random sightings.

Specific Areas Within the Geographical Area Occupied by the Species

    The definition of critical habitat instructs us to identify 
specific areas on which the physical or biological features essential 
to the species' conservation are found. Our regulations state that 
critical habitat will be defined by specific limits using reference 
points and lines on standard topographic maps of the area, and 
referencing each area by the state, county, or other local governmental 
unit in which it is located (50 CFR 424.12(c)). Our regulations also 
state that when several habitats, each satisfying requirements for 
designation as critical habitat, are located in proximity to one 
another, an inclusive area may be designated as critical habitat (50 
CFR 424.12(d)). We identified two ``specific areas'' within the 
geographical area occupied by the species, at the time of listing, that 
contain the essential features for right whale foraging and calving 
habitat.
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[[Page 4861]]

[GRAPHIC] [TIFF OMITTED] TR27JA16.001

    Consistent with our regulations (50 CFR 424.12(c)), we have 
identified one ``specific area'' within the geographical area occupied 
by the species at the time of listing, that contains the identified 
physical and biological features of foraging habitat that are essential 
to the conservation of North Atlantic right whales. This encompasses a 
large area within the Gulf of Maine and Georges Bank region, including 
the large embayments of Cape Cod Bay and Massachusetts Bay and deep 
underwater basins. This area also incorporates state waters, except for 
inshore areas, bays, harbors, and inlets, from Maine through 
Massachusetts in addition to federal waters.
    The specific area on which the physical and biological features 
essential to foraging and thus to the conservation of the North 
Atlantic right whale are found includes all waters, seaward of the 
boundary depicted in Figure 1 (see below for actual coordinates). The 
boundary of the critical habitat for Unit 1 is delineated generally by 
a line connecting the geographic coordinates and landmarks as follows: 
From the southern tip of Monomoy Island (Cape Cod) (41[deg]38.39' N., 
69[deg]57.32' W.) extending southeasterly to 40[deg]50' N., 69[deg]12' 
W. (the Great South Channel), then east to 40[deg]50' N. 68[deg]50' W. 
From this point, the boundary extends northeasterly

[[Page 4862]]

direction to 42[deg]00' N., 67[deg]55' W. and then in an easterly 
direction to 42[deg]00' N. 67[deg]30' W. From this point, the boundary 
extends northeast along the northern edge of Georges Bank to the 
intersection of the U.S.-Canada maritime boundary at 42[deg]10' N., 
67[deg]09.38' W. The boundary then follows the U.S.-Canada maritime 
boundary north to the intersection of 44[deg]49.727' N., 66[deg]57.952' 
W. From this point, moving southwest along the coast of Maine, the 
specific area is located seaward of the Maine exemption line developed 
as part of the Atlantic Large Whale Take Reduction Plan to the point 
(43[deg]02.55' N., 70[deg]43.33' W.) on the coast of New Hampshire 
south of Portsmouth, NH. The boundary of the area then follows the 
coastline southward along the coasts of New Hampshire and Massachusetts 
along Cape Cod to Provincetown southward along the eastern edge of Cape 
Cod to the southern tip of Monomoy Island. As noted, the specific area 
includes the large embayments of Cape Cod Bay and Massachusetts Bay but 
does not include inshore areas, bays, harbors and inlets. In addition, 
the specific area does not include waters landward of the 72 COLREGS 
lines (33 CFR part 80) as described below.
    The second ``specific area'' we identified contains the essential 
features identified for North Atlantic right whale calving. The 
southeast right whale calving area consists of all marine waters from 
Cape Fear, North Carolina, southward to approximately 27 nm below Cape 
Canaveral, Florida, within the area bounded on the west by the 
shoreline and the 72 COLREGS lines, and on the east by rhumb lines 
connecting the specific points described below.
    Based on the prior discussion and consistent with our regulations 
(50 CFR 424.12(d)), we identified one ``specific area'' within the 
geographical area occupied by the species, at the time of listing, that 
contains the essential features for calving right whales in the 
southeastern U.S (Figure 2). This area comprises waters of Brunswick 
County, North Carolina; Horry, Georgetown, Charleston, Colleton, 
Beaufort, and Jasper Counties, South Carolina; Chatham, Bryan, Liberty, 
McIntosh, Glynn, and Camden Counties, Georgia; and Nassau, Duval, St. 
John's, Flagler, Volusia, and Brevard Counties, Florida.

[[Page 4863]]

[GRAPHIC] [TIFF OMITTED] TR27JA16.002

BILLING CODE 3510-22-C

Special Management Considerations or Protection

    Specific areas within the geographical area occupied by a species 
may be designated as critical habitat only if they contain physical or 
biological features that ``may require special management 
considerations or protection.'' To meet

[[Page 4864]]

the definition of critical habitat, it is not necessary that the 
features currently require special management considerations or 
protection, only that they may require special management 
considerations or protections. Our regulations define ``special 
management considerations or protections'' to mean ``any methods or 
procedures useful in protecting physical and biological features of the 
environment for the conservation of listed species'' (50 CFR 
424.02(j)). As noted previously, we produced a Biological Source 
Document (NMFS 2015a) that discusses our application of the ESA's 
definition of critical habitat for right whales in detail, including 
evaluation of whether essential features ``may require special 
management considerations or protections.''
    As summarized in the Biological Source Document (NMFS 2015a), the 
essential features of right whale foraging habitat may require special 
management considerations or protections because of possible negative 
impacts from the following activities and events: (1) Zooplankton 
fisheries, (2) effluent discharge from municipal outfalls, (3) 
discharges and spills of petroleum products to the marine environment 
as a result of oil and gas exploration, development and transportation, 
and (4) climate change.
    The essential features of right whale calving habitat may require 
special management considerations or protections because of possible 
negative impacts from the following activities and events: Offshore 
energy development, large-scale offshore aquaculture operations, and 
global climate change. These activities and their potential broad-scale 
impacts on the essential features are discussed in detail in the 
Biological Source Document (NMFS 2015a).

Unoccupied Areas

    ESA section 3(5)(A)(ii) defines critical habitat to include 
specific areas outside the geographical area occupied if the areas are 
determined by the Secretary to be essential for the conservation of the 
species. Regulations at 50 CFR 424.12(e) specify that we shall 
designate as critical habitat areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species. Our regulations at 50 CFR 424.12(h) also state: ``Critical 
habitat shall not be designated within foreign countries or in other 
areas outside of United States jurisdiction.'' At the present time, the 
geographical area occupied by listed North Atlantic right whales which 
is within the jurisdiction of the United States is limited to waters 
off the U.S. east coast from Maine through Florida, seaward to the 
boundary of the U.S. Exclusive Economic Zone. As discussed previously, 
the Gulf of Mexico is not considered part of the geographical area 
occupied by the species, nor do we consider it an unoccupied area 
essential to the species' conservation given the infrequent use of the 
area by right whales in the past. We have not identified any other 
areas outside the geographical area occupied by the species that are 
essential for their conservation and therefore are not proposing to 
designate any unoccupied areas as critical habitat for the North 
Atlantic right whale.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B)(i) prohibits designating as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DOD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP), if we determine 
that such a plan provides a benefit to the species (16 U.S.C. 
1533(a)(3)(B)).
    No areas within the specific areas designated are covered by 
INRMPs. Therefore, there are no military lands ineligible for 
designation as critical habitat within Unit 1 and Unit 2.

Application of ESA Section 4(b)(2)

    The foregoing discussion described the specific areas within U.S. 
jurisdiction that fall within the ESA section 3(5) definition of 
critical habitat in that they contain the physical and biological 
features essential to the North Atlantic right whale's conservation 
that may require special management considerations or protection. 
Section 4(b)(2) of the ESA requires that we consider the economic 
impact, impact on national security, and any other relevant impact, of 
designating any particular area as critical habitat. Additionally, the 
Secretary has the discretion to consider excluding any area from 
critical habitat if she determines the benefits of exclusion (that is, 
avoiding some or all of the impacts that would result from designation) 
outweigh the benefits of designation based upon the best scientific and 
commercial data available. The Secretary may not exclude an area from 
designation if exclusion will result in the extinction of the species. 
Because the authority to exclude is discretionary, exclusion is not 
required for any particular area under any circumstances.
    The following discussion of impacts summarizes the analysis 
contained in our ESA Section 4(b)(2) Report (NMFS 2015b), which 
identifies the economic, national security, and other relevant impacts 
that we projected would result from including each of the two specific 
areas in the critical habitat designation. We considered these impacts 
when deciding whether to exercise our discretion to propose excluding 
particular areas from the designation. Both positive and negative 
impacts were identified and considered (these terms are used 
interchangeably with benefits and costs, respectively). Impacts were 
evaluated in quantitative terms where feasible, but qualitative 
appraisals were used where that was more appropriate to particular 
impacts. The ESA Section 4(b)(2) Report (NMFS 2015b) is available on 
our Web site at www.greateratlantic.fisheries.noaa.gov.
    The primary impacts of a critical habitat designation result from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat, and that they consult with us in 
fulfilling this requirement. Determining these impacts is complicated 
by the fact that section 7(a)(2) also requires that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications they would make because of listing and 
the jeopardy requirement. When the same modification would be required 
due to impacts to both the species and critical habitat, the impact of 
the designation is co-extensive with the ESA listing of the species 
(i.e., attributable to both the listing of the species and the 
designation critical habitat). To the extent possible, our analysis 
identified impacts that were incremental to the designation of critical 
habitat--meaning those impacts that are over and above impacts 
attributable to the species' listing or any other existing regulatory 
protections. Relevant, existing regulatory protections (including the 
species' listing) are referred to as the ``baseline'' and are also 
discussed in the Section 4(b)(2) Report.
    The ESA Section 4(b)(2) Report describes the projected future 
federal activities that would trigger section 7 consultation 
requirements because they may affect the essential features, and 
consequently may result in economic

[[Page 4865]]

costs or negative impacts. Additionally, the report describes broad 
categories of project modifications that may reduce impacts to the 
essential features, and states whether the modifications are likely to 
be solely a result of the critical habitat designation or co-extensive 
with another regulation, including the ESA listing of the species. The 
report also identifies the potential national security and other 
relevant impacts that may arise due to the critical habitat 
designation, such as positive impacts that may arise from conservation 
of the species and its habitat, state and local protections that may be 
triggered as a result of designation, and education of the public to 
the importance of an area for species conservation.

Economic Impacts

    Economic impacts of the critical habitat designation result through 
implementation of section 7 of the ESA in consultations with Federal 
agencies to ensure their proposed actions are not likely to destroy or 
adversely modify critical habitat. These economic impacts are discussed 
in further detail in the Section 4(b)(2) Report (NMFS 2015b) and the 
proposed rule of this action. Changes to Economic Impacts as a result 
of the change in area to Unit 2 are described below.
    Six categories of activities were identified as likely to recur in 
the future and have the potential to affect the essential features:
    1. Environmental Protection Agency (EPA) Clean Water Act permitting 
or management of pollution discharges through the NPDES programs in 
Unit 1;
    2. United States Coast Guard (USCG) authorization or use of 
dispersants during an oil spill response in Unit 1;
    3. U.S. Army Corps of Engineers (USACE) maintenance dredging or 
permitting of dredge and disposal activities under the Clean Water Act 
in Unit 2;
    4. USACE permitting of marine construction, including shoreline 
restoration and artificial reef placement under the Rivers and Harbors 
Act and/or Clean Water Act in Unit 2;
    5. The Maritime Administration's permitting of siting and 
construction of offshore liquefied natural gas facilities in Unit 1;
    6. The Bureau of Ocean Energy Management's (BOEM's) permitting of 
sand extraction on the Outer Continental Shelf in Unit 2.
    As discussed in more detail in our ESA Section 4(b)(2) Report (NMFS 
2015b), we determined that two of these federal actions, Water Quality/
NPDES related actions and oil spill response activities implemented 
respectively by the EPA and the USCG, could result in incremental 
impacts from section 7 consultations related to the critical habitat.
    Additionally, we identified four categories of activities that have 
not occurred in the critical habitat areas in the past but based on 
available information and discussions with action agencies, may occur 
in the future. If they do occur, these activities may adversely affect 
the essential features. These projected activities are: Oil and gas 
exploration and development activities, directed copepod fisheries, 
offshore alternative energy development activities, and marine 
aquaculture. As with past or ongoing federal activities in the critical 
habitat areas, these four categories of projected future actions may 
trigger consultation because they have the potential to adversely 
affect both the essential features and the whales themselves. Three 
categories of future activities were judged as being likely to have 
incremental impacts due to the critical habitat: Oil and gas 
exploration and development activities (Unit 1), directed copepod 
fishery (Unit 1), and offshore alternative or renewable energy 
activities (Unit 2). Consequently, costs of project modifications 
required through section 7 were considered to be incremental impacts of 
the designation.
    As previously mentioned, we assumed that all future activities that 
may affect the essential features will require formal consultations. 
Based on analyses conducted by Industrial Economics, Inc. (Industrial 
Economics 2014), we project that each formal consultation will result 
in the following additional costs to address critical habitat impacts: 
$1,400 in NMFS' costs; $1,600 in action agency costs; and $880 in third 
party (e.g., permittee) costs, if applicable. Administrative costs for 
the projected number of formal consultations representing incremental 
costs of the critical habitat designation were estimated in the 
proposed rule to total approximately $82,296 per year. Based on the 
addition of 22 consultations that may occur as a result of the expanded 
Unit 2 area, the incremental administrative costs of the critical 
habitat designation are now expected to total approximately $95,504 per 
year. As discussed in responses to comments, to evaluate and consider 
the economic impacts of including this area to Unit 2, we followed the 
same methodology described in the proposed rule (80 FR 9314, February 
20, 2015) and in the Section 4(b)(2) Report (NMFS 2015b).
    Based on our analysis of past consultation history, we project that 
over the next ten years, there will be 22 consultations, or about 2 
consultations per year, in this area which may affect the features of 
critical habitat. Eleven of these projects are expected to involve 
dredging and/or disposal by the U.S. Army Corps of Engineers. Eleven 
projects are expected to involve permitting of marine construction or 
artificial reef placement by the U.S. Army Corps of Engineers. Thus, 
adding the southern extension is not expected to involve additional 
federal agency nor additional federal actions that are different from 
those that will be conducted in the rest of Unit 2. As discussed in the 
Section 4(b)(2) Report, these activities are only expected to involve 
incremental administrative costs of consultation, as a result of this 
designation. Annual administrative costs for these projected 
consultations is $10,160 (at $5,080 per consultation--see the Economics 
Impact section in the Notice of Proposed Rulemaking and the Section 
4(b)(2) Report for background information on the costs for conducting 
consultations).
    Relative to projected, new activities, offshore renewable/
alternative energy may occur in the southern extension area, given its 
proximity to shore and available information about where and how these 
activities might be implemented (www.boem.gov/Florida/). Because there 
are no records in our consultation history for offshore renewable or 
alternative energy projects occurring within Unit 2, we are unable to 
(a) predict how many section 7 consultations may result from projects 
of this type over the next 10 years or (b) calculate the projected 
incremental costs resulting from this action. We are not aware of any 
other future new federal activity that may be implemented in the 
southern extension area.

National Security Impacts

    Previous critical habitat designations have recognized that impacts 
to national security result if a designation would trigger future ESA 
section 7 consultations because a proposed military activity ``may 
affect'' the physical or biological features essential to the listed 
species' conservation. Anticipated interference with mission-essential 
training or testing or unit readiness, either through delays caused by 
the consultation process or through expected requirements to modify the 
action to prevent adverse modification of critical habitat, has been 
identified as a negative impact of critical habitat designations. (See, 
e.g., Proposed Designation of Critical Habitat for the Pacific Coast 
Population of the Western Snowy Plover (71 FR 34571, June 15,

[[Page 4866]]

2006, at 34583); and Proposed Designation of Critical Habitat for 
Southern Resident Killer Whales (69 FR 75608, December 17, 2004, at 
75633).)
    Based on the past consultation history and information submitted by 
DOD for this analysis, it is unlikely that consultations with respect 
to DOD activities will be triggered as a result of the critical habitat 
designation.
    In September 2009, and again in November 2010, we sent letters to 
DOD requesting information on national security impacts of the proposed 
critical habitat designation, and we received responses from the Navy, 
United States Marine Corps (USMC), USCG, Department of Homeland 
Security (DHS), and the United States Air Force (USAF). We discuss the 
information contained within the responses thoroughly in the Section 
4(b)(2) Report (NMFS 2015b).
    Based on a review of the information provided by the Navy, USMC, 
and USCG, DHS, and USAF, and on our review of the activities conducted 
by these entities associated with national security within the specific 
areas designated as right whale critical habitat, their activities have 
no routes of potential adverse effects to the essential features and 
will not require consultation to prevent adverse effects to critical 
habitat (see Section 4(b)(2) Report, NMFS 2015b). Therefore, based on 
information available at this time, we do not anticipate there will be 
national security impacts associated with the critical habitat for the 
North Atlantic right whale.

Other Relevant Impacts

    Other relevant impacts of critical habitat designations can include 
conservation benefits to the species and to society, and impacts to 
governmental and private entities. Our Section 4(b)(2) Report (NMFS 
2015b) discusses conservation benefits of designating the two specific 
areas, and the benefits of conserving the right whale to society, in 
both ecological and economic metrics.
    As discussed in the Section 4(b)(2) Report (NMFS 2015b) and 
summarized here, large whales, including the North Atlantic right 
whale, currently provide a range of benefits to society. Given the 
positive benefits of protecting the physical and biological features 
essential to the conservation of the right whale, this protection will 
in turn contribute to an increase in the benefits of this species to 
society in the future as the species recovers. While we can neither 
quantify nor monetize these benefits, we believe they are not 
negligible and would be an incremental benefit of this designation. 
However, although the features are essential to the conservation of 
right whales, critical habitat designation alone will not bring about 
the recovery of the species. The benefits of conserving right whales 
are, and will continue to be, the result of several laws and 
regulations.
    We identified in the Section 4(b)(2) Report (NMFS 2015b) both 
consumptive (e.g., commercial and recreational fishing) and non-
consumptive (e.g., wildlife viewing) activities that occur in the 
critical habitat area. Commercial and recreational fishing are 
components of the economy related to the ecosystem services provided by 
the resources within the right whale critical habitat areas. The 
essential features provide for abundant fish species diversity. 
Commercial fishing is the largest revenue generating activity occurring 
within the critical habitat area, and protection of the essential 
features will contribute to sustaining this activity.
    Further, the economic value of right whales can be estimated in 
part by such metrics as increased visitation and user enjoyment 
measured by the value of whale watching activities.
    Education and awareness benefits stem from the critical habitat 
designation when non-federal government entities or members of the 
general public responsible for, or interested in, North Atlantic right 
whale conservation change their behavior or activities when they become 
aware of the designation and the importance of the critical habitat 
areas and features. Designation of critical habitat raises the public's 
awareness that there are special considerations that may need to be 
taken within the area. Similarly, state and local governments may be 
prompted to carry out programs to complement the critical habitat 
designation and benefit the North Atlantic right whale. Those programs 
would likely result in additional impacts of the designation. However, 
it is impossible to quantify the beneficial effects of the awareness 
gained or the secondary impacts from state and local programs resulting 
from the critical habitat designation

Exclusions Under Section 4(b)(2)

    On the basis of our impacts analysis, we are not excluding any 
particular areas from the critical habitat designation. This has not 
changed since the proposed rule.
    We have analyzed the economic, national security, and other 
relevant impacts of designating critical habitat. While we have 
utilized the best available information and an approach designed to 
avoid underestimating impacts, many of the potential impacts are 
speculative and may not occur in the future. Our conservative 
identification of potential incremental economic impacts indicates that 
any such impacts would be very small, resulting from very few (less 
than 18) federal section 7 consultations annually. Furthermore, the 
analysis indicates that there is no particular area within the areas 
designated as critical habitat where economic impacts would be 
particularly high or concentrated. No impacts to national security are 
expected. Other relevant impacts include conservation benefits of the 
designation, both to the species and to society. Because the features 
that form the basis of the critical habitat designation are essential 
to the conservation of North Atlantic right whales, the protection of 
critical habitat from destruction or adverse modification may at 
minimum prevent loss of the benefits currently provided by the species 
and may contribute to an increase in the benefits of these species to 
society in the future. While we can neither quantify nor monetize the 
benefits, we believe they are not negligible and would be an 
incremental benefit of this designation. Moreover, our analysis 
indicates that all potential future section 7 consultations on impacts 
to critical habitat features would also be conducted for the projects' 
potential impacts on the species, resulting in at least partial co-
extensive impacts of the designation and the baseline listing of the 
species. Therefore, we have concluded that there is no basis to exclude 
any particular area from the critical habitat.

Final Determinations and Critical Habitat Designation

    We conclude that specific areas meet the definition of critical 
habitat, comprising approximately 29,763 nm\2\ of marine habitat within 
the geographical area occupied by North Atlantic right whales at the 
time of its listing. The two units designated as critical habitat are 
in the Gulf of Maine and Georges Bank region (Unit 1) and in waters off 
the Southeast U.S coast (Unit 2).

Activities That May Be Affected

    ESA section 4(b)(8) requires in any proposed or final regulation to 
designate or revise critical habitat an evaluation and brief 
description of those activities (whether public or private) that may 
adversely modify such habitat or that may be affected by such 
designation. A variety of activities may affect the critical habitat 
and may be subject to the ESA section 7 consultation process when 
carried out, funded, or authorized by a Federal agency. As indicated 
above

[[Page 4867]]

and in the Section 4(b)(2) Report, activities (3) through (6) and (9) 
are only predicted to result in incremental administrative costs of 
consultation. As discussed previously, the activities most likely to be 
affected by this critical habitat designation are: (1) Water Quality/
NPDES permitting and regulatory activities (Unit 1), (2) Oil Spill 
Response (Unit 1), (3) Maintenance Dredging and Disposal or Dredging 
(Unit 2), (4) Construction Permitting (Unit 2), (5) Offshore Liquid 
Natural Gas Facilities (Unit 1), (6) Oil and Gas Exploration and 
Development (Unit 1), (7) Offshore alternative energy development 
activities (Unit 2), (8) Directed copepod fisheries (Unit 1), and (9) 
Marine aquaculture (Unit 2). Private entities may also be affected by 
this critical habitat designation if a Federal permit is required, 
Federal funding is received, or the entity is involved in or receives 
benefits from a Federal project. These activities will need to be 
evaluated with respect to their potential to destroy or adversely 
modify critical habitat. Changes to the actions to avoid destruction or 
adverse modification of critical habitat may result in changes to some 
activities. Please see the ESA Section 4(b)(2) Report (NMFS 2015b) for 
more details and examples of changes that may need to occur in order 
for activities to avoid destruction or adverse modification of 
designated critical habitat. Questions regarding whether specific 
activities will constitute destruction or adverse modification of 
critical habitat should be directed to NMFS (see ADDRESSES and FOR 
FURTHER INFORMATION CONTACT).

Classification

Regulatory Planning and Review (E.O. 12866)

    This rule has been determined to be ``not significant'' under 
Executive Order (E.O.) 12866.

National Environmental Policy Act

    An environmental analysis as provided for under the National 
Environmental Policy Act (NEPA) for critical habitat designations made 
pursuant to the ESA is not required. See Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied, 116 S.Ct. 698 (1996).

Regulatory Flexibility Act

    We prepared a Final Regulatory Flexibility Analysis (FRFA) pursuant 
to section 604 of the Regulatory Flexibility Act (5 U.S.C. 601, et 
seq.). The FRFA is found in Appendix B of the ESA Section 4(b)(2) 
Report and is available upon request (see ADDRESSES). A summary of the 
analysis follows.
    This rule is needed in order to comply with the ESA's requirement 
to designate critical habitat to the maximum extent prudent and 
determinable when species are listed as threatened or endangered, and 
to respond to a petition to revise critical habitat for right whales in 
the North Atlantic. The objectives of this action are to help conserve 
endangered North Atlantic right whales by identifying critical habitat 
areas, consistent with the best available scientific information, that 
contain the physical and biological features essential to the 
conservation of the species and which may require special management 
considerations or protection. Once designated, this critical habitat 
can be protected through the ESA section 7 consultation process in 
which NMFS and federal action agencies review the effects of federal 
actions on the survival and recovery of North Atlantic right whales.
    Along with the proposed rule, the Initial Regulatory Flexibility 
Analysis (IRFA) was published for public comment. None of the public 
comments received focused specifically on the IRFA, which was presented 
in the draft Section 4(b)(2) Report. However, one comment expressed 
concern that we did not evaluate the potential economic impact of the 
proposed designation on ferry operators, the majority of whom are 
classified as small business or entities according to the commenter. We 
did not identify the coastal ferry services as a small business that 
might be impacted by this rule, because we concluded that transiting 
vessels, whether military, civilian, or commercial do not impact the 
essential foraging features of critical habitat. As a result, there 
will be no impact to the operation of ferries as a result of the 
designation of critical habitat and, as such, no impacts to small 
business entities. We did not amend the rule or our analysis as a 
result of this comment (see response to comment 64).
    Prior to the publication of the proposed rule and the Initial 
Regulatory Flexibility Analysis (IRFA), the Chief Counsel of the Small 
Business Administration (SBA) provided several comments concerning the 
analysis that relate to small entities and the impacts to these 
entities. The SBA stated that the Regulatory Flexibility Act requires 
an IRFA to identify the number and type of small businesses that may be 
affected. Because the potentially affected industries were identified, 
SBA recommended that NMFS research whether Census information may be 
available that would aid in identifying the number of small businesses 
as well as the impact the estimated costs could have on their yearly 
income and revenue. To address this comment, we solicited public 
comments through the proposed rule on all aspects of the proposed 
action including impacts to small businesses. We also directly 
consulted with the members of the Atlantic Large Take Reduction Team 
(ALWTRT), which includes industry representatives. However, no new 
information became available to alter our analysis, and no additional 
comments were received. In addition, the available Census data were not 
informative such that we could further refine our analysis of the 
number and type of small entities that may be affected by this rule.
    SBA also stated that there did not appear to be any basis for 
concluding in our IRFA that potential project modifications that may be 
required to avoid adverse modification of critical habitat are unit 
costs such that total project modification costs would be proportional 
to the size of the project, and therefore it is not unreasonable to 
assume that larger entities would be involved in implementing the 
larger projects with proportionally larger project modification costs. 
SBA asked us to consider whether the modification costs are similar 
regardless of the size of the project, which could lead to 
proportionally larger costs for small projects than for larger 
projects. To respond in part to this comment, we noted that the 
particular statement referenced in the IRFA did not indicate an 
absolute conclusion, but instead indicated we were making what can be 
considered a `reasonable assumption.' A more detailed response is 
presented in our FRFA.
    Lastly, SBA asked how the agency came to the conclusion that the 
maximum, estimated, annualized, administrative cost to third parties of 
$33,696--some portion of which could be borne by small entities--won't 
have a significant effect on small entities if we aren't clear on the 
relative number of small entities that will be affected. To help 
address this question, we clarified in the IRFA and the proposed rule 
that this amount represents the cost to NMFS, other federal agencies, 
and third parties, combined. The total estimated annualized cost to 
third parties is $14,256, and the estimated cost for development of 
Biological Assessments (BA), which may be borne at least in part by 
third parties, is $19,440. The maximum total the annualized 
administrative cost to third parties is thus $33,696, some portion of 
which could be borne by small entities.

[[Page 4868]]

    The critical habitat rule does not directly apply to any particular 
entity, small or large. The rule would operate in conjunction with ESA 
section 7(a)(2), which requires that federal agencies ensure, in 
consultation with NMFS, that any action they authorize, fund, or carry 
out is not likely to jeopardize the continued existence of listed 
species or destroy or adversely modify critical habitat. Consultations 
may result in economic impacts to federal agencies and proponents of 
proposed actions. Those economic impacts may be in the form of 
administrative costs of participating in a section 7 consultation and, 
if the consultation results in required measures to protect critical 
habitat, project modification costs. As discussed in the Section 
4(b)(2) Report, which serves as the basis for the FRFA and this 
summary, we determined that six types of federal actions that have 
occurred in the critical habitat areas in the past could result in 
incremental impacts from section 7 consultations related to the 
critical habitat. These activities are: Clean Water Act water quality/
NPDES related actions implemented by the EPA; oil spill response 
actions by the USCG; dredging and spoil disposal implemented or 
permitted by the USACE; marine construction permitting by the USACE, 
including restoration and artificial reef placement; offshore energy 
regulation by BOEM; and authorization of sand extraction on the Outer 
Continental Shelf by BOEM. We project that 188 actions in these 
categories will be implemented over the next 10 years. However, we also 
determined that these activities would not require consultation solely 
due to impacts to critical habitat. Instead, these activities would 
require consultation due to impacts to the whale themselves, even in 
the absence of designated critical habitat. Additionally, we identified 
four categories of activities that have not occurred in the critical 
habitat areas in the past but, based on available information and 
discussions with action agencies, may occur in the future. If they do 
occur, these activities may adversely affect the essential features. 
These projected activities are: Oil and gas exploration and development 
activities, directed copepod fisheries, offshore alternative energy 
development activities, and marine aquaculture. As with past or ongoing 
federal activities in the critical habitat areas, these four categories 
of projected future actions may trigger consultation because they have 
the potential to adversely affect both the essential features and the 
whales themselves. However, we could not project the number of actions 
in these categories that would occur in the future, due to the lack of 
a consultation history or concrete plans by action agencies to 
implement these activities. Three categories of future activities were 
judged as being likely to have incremental impacts due to critical 
habitat impacts that would require project modifications to avoid these 
impacts, above and beyond any modifications required to address impacts 
to the whales: Oil and gas exploration and development activities (Unit 
1), directed copepod fishery (Unit 1), and offshore alternative or 
renewable energy activities (Unit 2). Consequently, costs of project 
modifications required through section 7 were considered to be 
incremental impacts of the designation.
    We applied the conservative assumption that all future activities 
that may affect the essential features will require formal 
consultations. Based on analyses conducted by Industrial Economics, 
Inc. (Industrial Economics 2014), we project that each formal 
consultation will result in the following additional costs to address 
critical habitat impacts: $1,400 in NMFS' costs; $1,600 in action 
agency costs; and $880 in third party (e.g., permittee) costs, if 
applicable. Administrative costs for the projected number of formal 
consultations representing incremental costs of the critical habitat 
designation were estimated in the proposed rule to total approximately 
$82,296 per year. Based on the addition of 22 consultations that may 
occur as a result of the expanded Unit 2 area, the incremental 
administrative costs of the critical habitat designation are now 
expected to total approximately $95,504 per year. The rule, implemented 
through ESA section 7(a)(2) consultations, may indirectly affect small 
businesses, small nonprofit organizations, and small governmental 
jurisdictions that engage in the 10 categories of activities listed 
above, through accrual of administrative costs ($880 per action). Small 
entities that engage in water quality/NPDES related actions, oil spill 
response activities, oil and gas exploration and development 
activities, directed copepod fisheries, offshore alternative energy 
development activities, and marine aquaculture activities authorized or 
funded by a federal agency that may affect the essential features could 
also incur costs in the way of project modifications necessary to avoid 
destroying or adversely modifying critical habitat. As we discuss in 
the Section 4(b)(2) report (NMFS 2015b), it is not possible for us to 
estimate what these costs might be, individually or collectively. The 
rule may also indirectly benefit small entities that benefit from or 
strive for the protection of the essential features, such as fishing 
operations and whale watch companies.
    We do know from the consultation record that applicants for federal 
permits or funds have included small entities. However, our 
consultation tracking database does not track the identity of past 
permit recipients or whether the recipients were small entities; 
therefore, it does not provide a basis to estimate the number of small 
businesses that may be indirectly affected by this rule. It is also 
difficult to estimate the number of small entities that may be affected 
indirectly by this rule due to a lack of specific information regarding 
the nature, scope, and timing of future projects that would undergo 
section 7 consultations.
    Within Unit 1, the Gulf of Maine-Georges Bank Region, virtually all 
current fishing operations in the eastern U.S. are small businesses. We 
have determined that there were 483 dealers and 8,094 fishing vessels 
in 2014 that meet the definition of small business entities. These 
numbers provide an estimate of the total number of vessels and fish 
dealers engaged in the harvest of seafood within Unit 1 that may 
benefit from this rule.
    With regard to a potential copepod fishery, this rule could affect 
small businesses if fishermen choose to prosecute a copepod fishery in 
the future as virtually all fishing interests in Unit 1 are considered 
small businesses under the SBA small business entity size standards. 
Currently, there are no proposals to conduct a copepod fishery within 
Unit 1; nor have there been any in the past. Therefore, we have no 
basis to estimate the number of vessels that would be classified as 
small business entities in a copepod fishery.
    Other small business entities include the approximately 55-70 
whale-watching companies that operate within Unit 1. Neither current 
fishing operations nor whale watching companies would be negatively 
affected by this action as their activities were not identified as 
having the potential to affect the features. There is the potential for 
some unquantifiable positive benefit to accrue to these small 
businesses as a result of the preservation and maintenance of the 
ecosystem benefits associated with the essential foraging features.
    In Unit 1, another potentially impacted group of small entities is 
small municipalities. A review of the consultation history indicates 
that we have consulted with the EPA on small

[[Page 4869]]

governmental jurisdictions' (population less than or equal to 50,000) 
municipal wastewater discharges adjacent to the area under 
consideration for designation as critical habitat. Based on our review 
of past consultation history, we are projecting a total of 21 
consultations over the next 10 years involving primarily small 
municipalities and NPDES/Water Quality activities. Of the states 
bordering Unit 1, EPA administers the discharge permit program only in 
Massachusetts and New Hampshire; therefore, consultations with EPA 
would be required for municipal discharges only from those two states. 
Thus, the number of small municipalities that might be impacted would 
be equal to or less than the 21 predicted to be involved in 
consultations from all states bordering Unit 1, over the next 10 years.
    We have determined that this rule will not likely have an impact on 
small business entities engaged in oil and gas exploration and 
development or have a disproportionate impact on them compared to large 
entities. Currently no specific or planned oil and gas exploration and 
development activities for this activity in Unit 1 as it is under an 
oil and gas exploration and development moratorium. Furthermore, 
business entities involved in offshore oil and gas exploration are 
generally large scale business entities as the technological 
capabilities to engage in offshore oil and gas development require 
large amounts of capital for these types of endeavors.
    We have also determined this rule will not have any impact on small 
business entities engaged in oil spill response activities related to 
the at-sea use of oil dispersants. The SBA small business entity size 
standards for environmental remediation services establish an employee 
threshold of 500 individuals or less as a small business entity. 
Entities that are involved in offshore emergency oil spill response are 
generally either governmental agencies and/or large scale business 
entities. For example, the USCG is responsible for implementing the Oil 
Pollution Act including emergency oil spill responses responding to oil 
spills. The type of platform assets (e.g., aerial, vessel) and 
technological capabilities necessary to respond to an oil spill in the 
marine involvement, specifically the application of oil dispersants, 
require large amounts of capital for these types of endeavors.
    In Unit 2, the Southeastern calving habitat, the only category of 
activity that might potentially impact small entities through 
requirements and costs of project modifications necessary to avoid 
destroying or adversely modifying critical habitat is offshore energy 
development (e.g., wind energy farms). Because there is no past 
consultation history or any specific or planned federal proposals for 
wind energy facilities in Unit 2, we are unable to estimate the number 
of potential projects in this category that may require consultation 
due to critical habitat impacts over the next 10 years. Therefore, we 
have no basis to estimate the number of small entities that might be 
involved.
    It is unclear whether small entities would be placed at a 
competitive disadvantage compared to large entities as a result of this 
rule. Because the costs of many potential project modifications that 
may be required to avoid adverse effects to the essential features of 
critical habitat are unit costs such that total project modification 
costs would be proportional to the size of the project, it is not 
unreasonable to assume that larger entities would be involved in 
implementing the larger projects with proportionally larger project 
modification costs. In addition, though it is not possible to determine 
the exact cost of any given project modification resulting from 
consultation, the smaller projects most likely to be undertaken by 
small entities would likely result in relatively small modification 
costs. Finally, many of the modifications identified to reduce the 
impact of a project on critical habitat may be a baseline requirement 
either due to the ESA listing of the species or under another 
regulatory authority, notably the Clean Water Act.
    There are no record-keeping or reporting requirements associated 
with the rule. Similarly, there are no other compliance requirements in 
the rule. There are no professional skills necessary for preparation of 
any report or record.
    We considered the effect to small businesses throughout our 
analysis and, as stated above, there will be no significant economic 
impact to small businesses. We have thus not made any changes from the 
proposed rule that would minimize significant economic impacts on small 
entities. We expect many small entities to benefit from this rule. We 
also estimate the average per consultation administrative costs for 
third parties, some of which may be small entities, is approximately 
$880. It is unlikely that the rule will significantly reduce profits or 
revenue for small businesses. Although it is not possible to determine 
the exact cost of any given project modification resulting from 
consultation, the smaller projects most likely to be undertaken by 
small entities would likely result in relatively small modification 
costs.
    In the IRFA, we considered the alternative of not proposing new 
critical habitat for the North Atlantic right whale. We rejected this 
alternative because we determined designating critical habitat for the 
North Atlantic right whale listed in 2008 was prudent and determinable, 
and the ESA requires critical habitat designation at the time of 
listing in that circumstance. Also, new scientific information has 
become available since the 1994 designation that supports expansion of 
the foraging and calving habitat areas.
    In the IRFA, we also analyzed the proposed rule's preferred 
alternative. This alternative, would have expanded calving habitat to 
the north and east compared to the 1994 designation, but it would not 
have included a portion of the 1994 designation that extends 
approximately 27 nm south of Cape Canaveral, FL. However, in response 
to public comments on our proposal, we reviewed the best available 
scientific information again. We rejected what we had called the 
preferred alternative in the proposed rule, because we believe the 
available data show consistent and predictable presence of right whale 
mother-calf pairs in this southern area, during the months the habitat 
models predict presence of all the essential features. The features 
here may require special management considerations or protections for 
the same reasons as the rest of Unit 2--because of possible negative 
impacts from activities and events of offshore energy development, 
large-scale offshore aquaculture operations, and global climate change. 
These activities and their potential broad-scale impacts on the 
essential features are discussed in detail in the Biological Source 
Document (NMFS 2015). For these reasons, we agreed with the commenters 
that the southern boundary of the calving area critical habitat should 
be moved southward from where we proposed. We updated the economic 
impact analysis in the Section 4(b)(2) Report and FRFA to reflect this 
change.
    Finally, in the IRFA we also considered an alternative in which the 
boundaries of both Unit 1 and Unit 2 would be expanded compared to the 
proposed rule's preferred alternative. Specifically, under the expanded 
alternative, Unit 1 would encompass additional right whale sightings 
within the Gulf of Maine-Georges Bank region (particularly inshore 
waters along the coasts of Maine, New Hampshire and Massachusetts) and 
it would be expanded south and east of the southern boundary of 
proposed Unit 1 (south and

[[Page 4870]]

east of Cape Cod). The expanded alternative would also have extended 
Unit 2 boundaries south of Cape Canaveral, Florida, similar to the 1994 
calving critical habitat. As discussed above, in response to public 
comments, we chose in the final rule to extend Unit 2 boundaries south 
of Cape Canaveral, Florida, as considered in this alternative. However, 
for Unit 1, we rejected this alternative to expand Unit 1 boundaries 
closer inshore in the Gulf of Maine-Georges Bank region and south and 
east of Cape Cod. We rejected the expansion of Unit 1 boundaries 
because, based on the best available scientific information, we 
determined that the essential features of foraging habitat were not 
present in those areas. As discussed in our FRFA, we considered the 
nature and number of additional consultations that may be required to 
address impacts to critical habitat given the extended calving area. 
The addition of this area did not change our assessment of impacts to 
small entities.

Coastal Zone Management Act

    We have determined that this action will have no reasonably 
foreseeable effects on the coastal uses and resources of Maine, New 
Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New 
Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, 
Georgia and Florida. Upon publication of the proposed rule, these 
determinations were submitted for review by the responsible state 
agencies under section 307 of the Coastal Zone Management Act. No 
comments were received on this Coastal Zone Management Act 
determination.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain a new or revised collection of 
information. This rule would not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations.

Federalism (E.O. 13132)

    Pursuant to the Executive Order on Federalism, E.O. 13132, we 
determined that this rule does not have significant Federalism effects 
and that a Federalism assessment is not required. However, in keeping 
with Department of Commerce policies and consistent with ESA 
regulations at 50 CFR 424.16(c)(1)(ii), we requested information from, 
and coordinated this critical habitat designation with, appropriate 
state resource agencies in Maine, New Hampshire, Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, Georgia, and Florida.

Energy Supply, Distribution, and Use (E.O. 13211)

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking an action expected to lead to the promulgation 
of a final rule or regulation that is a significant regulatory action 
under E.O. 12866 and is likely to have a significant adverse effect on 
the supply, distribution, or use of energy. We have considered the 
potential impacts of this action on the supply, distribution, or use of 
energy. The critical habitat designation will not affect the 
distribution or use of energy and would not affect supply. This rule 
will not have a significant adverse effect on the supply, distribution, 
or use of energy. Therefore, we have not prepared a Statement of Energy 
Effects. The rationale for this is discussed in the proposed rule (80 
FR 9314) and Section 4(b)(2) Report (NMFS 2015b).

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act, NMFS makes the 
following findings:
    (A) This final rule will not produce a Federal mandate. In general, 
a Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, Tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal government's 
responsibility to provide funding'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance; or (ii) a duty arising from participation in a 
voluntary Federal program.'' The designation of critical habitat does 
not impose an enforceable duty on non-Federal government entities or 
private parties. The only regulatory effect of a critical habitat 
designation is that Federal agencies must ensure that their actions do 
not destroy or adversely modify critical habitat under ESA section 7. 
Non-Federal entities that receive funding, assistance, or permits from 
Federal agencies, or otherwise require approval or authorization from a 
Federal agency for an action may be indirectly affected by the 
designation of critical habitat. Furthermore, to the extent that non-
Federal entities are indirectly impacted because they receive Federal 
assistance or participate in a voluntary Federal aid program, the 
Unfunded Mandates Reform Act would not apply, nor would critical 
habitat shift the costs of the large entitlement programs listed 
previously to State governments.
    (B) We do not anticipate that this final rule will significantly or 
uniquely affect small governments. As such, a Small Government Agency 
Plan is not required.

Takings (E.O. 12630)

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this rule would not have significant takings implications. A takings 
implication assessment is not required. The designation of critical 
habitat in the marine environment does not affect private property, and 
it affects only Federal agency actions.

References

    A complete list of all references cited in this rulemaking can be 
found on our Web site at www.greateratlantic.fisheries.noaa.gov/ and is 
available upon request from the NMFS Greater Atlantic Regional Office 
in Gloucester, Massachusetts (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.



[[Page 4871]]


    Dated: January 21, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, we amend 50 CFR part 226 
as follows:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation for part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.


0
2. Revise Sec.  226.203 to read as follows:


Sec.  226.203  Critical habitat for North Atlantic right whales 
(Eubalaena glacialis).

    Critical habitat is designated for North Atlantic right whales as 
described in this section. The textual descriptions in paragraph (b) of 
this section are the definitive source for determining the critical 
habitat boundaries. The maps of the critical habitat units provided in 
paragraph (c) of this section are for illustrative purposes only.
    (a) Physical and biological features essential to the conservation 
of endangered North Atlantic right whales.
    (1) Unit 1. The physical and biological features essential to the 
conservation of the North Atlantic right whale, which provide foraging 
area functions in Unit 1 are: The physical oceanographic conditions and 
structures of the Gulf of Maine and Georges Bank region that combine to 
distribute and aggregate C. finmarchicus for right whale foraging, 
namely prevailing currents and circulation patterns, bathymetric 
features (basins, banks, and channels), oceanic fronts, density 
gradients, and temperature regimes; low flow velocities in Jordan, 
Wilkinson, and Georges Basins that allow diapausing C. finmarchicus to 
aggregate passively below the convective layer so that the copepods are 
retained in the basins; late stage C. finmarchicus in dense 
aggregations in the Gulf of Maine and Georges Bank region; and 
diapausing C. finmarchicus in aggregations in the Gulf of Maine and 
Georges Bank region.
    (2) Unit 2. The physical features essential to the conservation of 
the North Atlantic right whale, which provide calving area functions in 
Unit 2, are:
    (i) Sea surface conditions associated with Force 4 or less on the 
Beaufort Scale,
    (ii) Sea surface temperatures of 7 [deg]C to 17 [deg]C, and
    (iii) Water depths of 6 to 28 meters, where these features 
simultaneously co-occur over contiguous areas of at least 231 nmi\2\ of 
ocean waters during the months of November through April. When these 
features are available, they are selected by right whale cows and 
calves in dynamic combinations that are suitable for calving, nursing, 
and rearing, and which vary, within the ranges specified, depending on 
factors such as weather and age of the calves.
    (b) Critical habitat boundaries. Critical habitat includes two 
areas (Units) located in the Gulf of Maine and Georges Bank Region 
(Unit 1) and off the coast of North Carolina, South Carolina, Georgia 
and Florida (Unit 2).
    (1) Unit 1. The specific area on which are found the physical and 
biological features essential to the conservation of the North Atlantic 
right whale include all waters, seaward of the boundary delineated by 
the line connecting the geographic coordinates and landmarks identified 
herein:
    (i) The southern tip of Nauset Beach (Cape Cod) (41[deg]38.39' N./
69[deg]57.32' W.).
    (ii) From this point, southwesterly to 41[deg]37.19' N./
69[deg]59.11' W.
    (iii) From this point, southward along the eastern shore of South 
Monomoy Island to 41[deg]32.76' N./69[deg]59.73' W.
    (iv) From this point, southeasterly to 40[deg]50' N./69[deg]12' W.
    (v) From this point, east to 40[deg]50' N. 68[deg]50' W.
    (vi) From this point, northeasterly to 42[deg]00' N. 67[deg]55' W.
    (vii) From this point, east to 42[deg]00' N. 67[deg]30' W.
    (viii) From this point, northeast to the intersection of the U.S.-
Canada maritime boundary and 42[deg]10' N.
    (ix) From this point, following the U.S.-Canada maritime boundary 
north to the intersection of 44[deg]49.727' N./66[deg]57.952' W.; From 
this point, moving southwest along the coast of Maine, the specific 
area is located seaward of the line connecting the following points:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
44[deg]49.727' N..........................  66[deg]57.952' W.
44[deg]49.67' N...........................  66[deg]57.77' W.
44[deg]48.64' N...........................  66[deg]56.43' W.
44[deg]47.36' N...........................  66[deg]59.25' W.
44[deg]45.51' N...........................  67[deg]2.87' W.
44[deg]37.7' N............................  67[deg]9.75' W.
44[deg]27.77' N...........................  67[deg]32.86' W.
44[deg]25.74' N...........................  67[deg]38.39' W.
44[deg]21.66' N...........................  67[deg]51.78' W.
44[deg]19.08' N...........................  68[deg]2.05' W.
44[deg]13.55' N...........................  68[deg]10.71' W.
44[deg]8.36' N............................  68[deg]14.75' W.
43[deg]59.36' N...........................  68[deg]37.95' W.
43[deg]59.83' N...........................  68[deg]50.06' W.
43[deg]56.72' N...........................  69[deg]4.89' W.
43[deg]50.28' N...........................  69[deg]18.86' W.
43[deg]48.96' N...........................  69[deg]31.15' W.
43[deg]43.64' N...........................  69[deg]37.58' W.
43[deg]41.44' N...........................  69[deg]45.27' W.
43[deg]36.04' N...........................  70[deg]3.98' W.
43[deg]31.94' N...........................  70[deg]8.68' W.
43[deg]27.63' N...........................  70[deg]17.48' W.
43[deg]20.23' N...........................  70[deg]23.64' W.
43[deg]4.06' N............................  70[deg]36.70' W.
43[deg]2.93' N............................  70[deg]41.47' W.
------------------------------------------------------------------------

    (x) From this point (43[deg]2.93' N/70[deg]41.47' W.) on the coast 
of New Hampshire south of Portsmouth, the boundary of the specific area 
follows the coastline southward along the coasts of New Hampshire and 
Massachusetts along Cape Cod to Provincetown southward along the 
eastern edge of Cape Cod to the southern tip of Nauset Beach (Cape Cod) 
(41[deg]38.39' N./69[deg]57.32' W.) with the exception of the area 
landward of the lines drawn by connecting the following points:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
42[deg]59.986' N...................  70[deg]44.654' W......     TO   Rye Harbor.
42[deg]59.956' N...................  70[deg]44.737' W......  ......  Rye Harbor.
42[deg]53.691' N...................  70[deg]48.516' W......     TO   Hampton Harbor.
42[deg]53.516' N...................  70[deg]48.748' W......  ......  Hampton Harbor.
42[deg]49.136' N...................  70[deg]48.242' W......     TO   Newburyport Harbor.
42[deg]48.964' N...................  70[deg]48.282' W......  ......  Newburyport Harbor.
42[deg]42.145' N...................  70[deg]46.995' W......     TO   Plum Island Sound.
42[deg]41.523' N...................  70[deg]47.356' W......  ......  Plum Island Sound.
42[deg]40.266' N...................  70[deg]43.838' W......     TO   Essex Bay.
42[deg]39.778' N...................  70[deg]43.142' W......  ......  Essex Bay.
42[deg]39.645' N...................  70[deg]36.715' W......     TO   Rockport Harbor.
42[deg]39.613' N...................  70[deg]36.60' W.......  ......  Rockport Harbor.
42[deg]20.665' N...................  70[deg]57.205' W......     TO   Boston Harbor.
42[deg]20.009' N...................  70[deg]55.803' W......  ......  Boston Harbor.
42[deg]19.548' N...................  70[deg]55.436' W......     TO   Boston Harbor.
42[deg]18.599' N...................  70[deg]52.961' W......  ......  Boston Harbor.
42[deg]15.203' N...................  70[deg]46.324' W......     TO   Cohasset Harbor.

[[Page 4872]]

 
42[deg]15.214' N...................  70[deg]47.352' W......  ......  Cohasset Harbor.
42[deg]12.09' N....................  70[deg]42.98' W.......     TO   Scituate Harbor.
42[deg]12.211' N...................  70[deg]43.002 W.......  ......  Scituate Harbor.
42[deg]09.724' N...................  70[deg]42.378' W......     TO   New Inlet.
42[deg]10.085' N...................  70[deg]42.875' W......  ......  New Inlet.
42[deg]04.64' N....................  70[deg]38.587' W......     TO   Green Harbor.
42[deg]04.583' N...................  70[deg]38.631' W......  ......  Green Harbor.
41[deg]59.686' N...................  70[deg]37.948' W......     TO   Duxbury Bay/Plymouth Harbor.
41[deg]58.75' N....................  70[deg]39.052' W......  ......  Duxbury Bay/Plymouth Harbor.
41[deg]50.395' N...................  70[deg]31.943' W......     TO   Ellisville Harbor.
41[deg]50.369' N...................  70[deg]32.145' W......  ......  Ellisville Harbor.
41[deg]45.87' N....................  70[deg]28.62' W.......     TO   Sandwich Harbor.
41[deg]45.75' N....................  70[deg]28.40' W.......  ......  Sandwich Harbor.
41[deg]44.93' N....................  70[deg]25.74' W.......     TO   Scorton Harbor.
41[deg]44.90' N....................  70[deg]25.60' W.......  ......  Scorton Harbor.
41[deg]44.00' N....................  70[deg]17.50' W.......     TO   Barnstable Harbor.
41[deg]44.00' N....................  70[deg]13.90' W.......  ......  Barnstable Harbor.
41[deg]45.53' N....................  70[deg]09.387' W......     TO   Sesuit Harbor.
41[deg]45.523' N...................  70[deg]09.307' W......  ......  Sesuit Harbor.
41[deg]45.546' N...................  70[deg]07.39' W.......     TO   Quivett Creek.
41[deg]45.551' N...................  70[deg]07.32' W.......  ......  Quivett Creek.
41[deg]47.269' N...................  70[deg]01.411' W......     TO   Namskaket Creek.
41[deg]47.418' N...................  70[deg]01.306' W......  ......  Namskaket Creek.
41[deg]47.961' N...................  70[deg]0.561' W.......     TO   Rock Harbor Creek.
41[deg]48.07' N....................  70[deg]0.514' W.......  ......  Rock Harbor Creek.
41[deg]48.932' N...................  70[deg]0.286' W.......     TO   Boat Meadow River.
41[deg]48.483' N...................  70[deg]0.216' W.......  ......  Boat Meadow River.
41[deg]48.777' N...................  70[deg]0.317' W.......     TO   Herring River.
41[deg]48.983' N...................  70[deg]0.196' W.......  ......  Herring River.
41[deg]55.501' N...................  70[deg]03.51' W.......     TO   Herring River, inside Wellfleet Harbor.
41[deg]55.322' N...................  70[deg]03.191' W......  ......  Herring River, inside Wellfleet Harbor.
41[deg]53.922' N...................  70[deg]01.333' W......     TO   Blackfish Creek/Loagy Bay.
41[deg]54.497' N...................  70[deg]01.182' W......  ......  Blackfish Creek/Loagy Bay.
41[deg]55.503' N...................  70[deg]02.07' W.......     TO   Duck Creek.
41[deg]55.753' N...................  70[deg]02.281' W......  ......  Duck Creek.
41[deg]59.481' N...................  70[deg]04.779' W......     TO   Pamet River.
41[deg]59.563' N...................  70[deg]04.718' W......  ......  Pamet River.
42[deg]03.601' N...................  70[deg]14.269' W......     TO   Hatches Harbor.
42[deg]03.601' N...................  70[deg]14.416' W......  ......  Hatches Harbor.
41[deg]48.708' N...................  69[deg]56.319' W......     TO   Nauset Harbor.
41[deg]48.554' N...................  69[deg]56.238' W......  ......  Nauset Harbor.
41[deg]40.685' N...................  69[deg]56.781' W......     TO   Chatham Harbor.
41[deg]40.884' N...................  69[deg]56.28' W.......  ......  Chatham Harbor.
----------------------------------------------------------------------------------------------------------------

    (xi) In addition, the specific area does not include waters 
landward of the 72 COLREGS lines (33 CFR part 80) described below.
    (A) Portland Head, ME to Cape Ann, MA.
    (1) A line drawn from the northernmost extremity of Farm Point to 
Annisquam Harbor Light.
    (2) [Reserved]
    (B) Cape Ann MA to Marblehead Neck, MA.
    (1) A line drawn from Gloucester Harbor Breakwater Light to the 
twin towers charted at latitude 42[deg]35.1' N. longitude 70[deg]41.6' 
W.
    (2) A line drawn from the westernmost extremity of Gales Point to 
the easternmost extremity of House Island; thence to Bakers Island 
Light; thence to Marblehead Light.
    (C) Hull, MA to Race Point, MA.
    (1) A line drawn from Canal Breakwater Light 4 south to the 
shoreline.
    (2) [Reserved]
    (2) Unit 2. Unit 2 includes marine waters from Cape Fear, North 
Carolina, southward to 28[deg] N . latitude (approximately 31 miles 
south of Cape Canaveral, Florida) within the area bounded on the west 
by the shoreline and the 72 COLREGS lines, and on the east by rhumb 
lines connecting the following points in the order stated from north to 
south.

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
33[deg]51' N..............................  at shoreline.
33[deg]42' N..............................  77[deg]43' W.
33[deg]37' N..............................  77[deg]47' W.
33[deg]28' N..............................  78[deg]33' W.
32[deg]59' N..............................  78[deg]50' W.
32[deg]17' N..............................  79[deg]53' W.
31[deg]31' N..............................  80[deg]33' W.
30[deg]43' N..............................  80[deg]49' W.
30[deg]30' N..............................  81[deg]01' W.
29[deg]45' N..............................  81[deg]01' W.
29[deg]15' N..............................  80[deg]55' W.
29[deg]08' N..............................  80[deg]51' W.
28[deg]50' N..............................  80[deg]39' W.
28[deg]38' N..............................  80[deg]30' W.
28[deg]28' N..............................  80[deg]26' W.
28[deg]24' N..............................  80[deg]27' W.
28[deg]21' N..............................  80[deg]31' W.
28[deg]16' N..............................  80[deg]31' W.
28[deg]11' N..............................  80[deg]33' W.
28[deg]00'................................  80[deg]29' W.
28[deg]00' N..............................  At shoreline.
------------------------------------------------------------------------

    (c) Overview maps of the designated critical habitat for the North 
Atlantic right whale follow.
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[FR Doc. 2016-01633 Filed 1-26-16; 8:45 am]
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