[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Proposed Rules]
[Pages 77704-77716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22182]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 224
[Docket No. 061212328-6328-01; I.D. 120706B]
RIN 0648-XB58
Endangered And Threatened Species; Proposed Endangered Status for
North Atlantic Right Whales
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, NMFS, have completed a comprehensive status review of
right whales in the northern hemisphere under the Endangered Species
Act (ESA). Based on the findings from the status review, we have
concluded these right whales exist as two species, the North Atlantic
right whale (Eubalaena glacialis) and the North Pacific right whale (E.
japonicus). We have also determined that each of these species is in
danger of extinction throughout its range. To reflect this taxonomic
revision, we are issuing two proposed rules to designate each
separately as an endangered species. This proposed rule is to list the
North Atlantic right whale; a proposed rule to list the North Pacific
right whale is issued separately. We are soliciting public comment on
this proposed listing determination.
DATES: Comments on this proposed rule must be received by close of
business on February 26, 2007. Requests for public hearings must be
made in writing by February 12, 2007.
ADDRESSES: Send comments to Mark Minton on the North Atlantic right
whale. Comments may be submitted by:
E-mail: [email protected]. Include in the subject
line the following
[[Page 77705]]
document identifier: ``NARW Proposed Rule.'' E-mail comments, with or
without attachments, are limited to 5 megabytes.
Webform at the Federal eRulemaking Portal:
www.regulations.gov. Follow the instructions at that site for
submitting comments.
Mail: Mark Minton, NMFS Northeast Region, One Blackburn
Drive, Gloucester, MA 01930
Hand delivery to: NMFS Northeast Region, One Blackburn
Drive, Gloucester, MA 01930
Fax: 978-281-9394
The proposed rule and other materials relating to this proposed
rule can be found on NMFS' Northeast Region website: http://www.nero.noaa.gov/.
FOR FURTHER INFORMATION CONTACT: Mark Minton, NMFS, Northeast Region,
978-281-9328, ext. 6534; or Marta Nammack, NMFS, Office of Protected
Resources, 301-713-1401, ext. 180.
SUPPLEMENTARY INFORMATION:
Background
Status Review
We have completed a status review report that assesses the status
of right whales in the North Atlantic and North Pacific Oceans.
Specifically, we describe the population structure and examine the
extent to which phylogenetic uniqueness exists between right whales
found in the North Atlantic and North Pacific. We also examine the
biological status and adverse impacts on the right whale and its
habitat in those oceans.
Biology of Right Whales in the North Atlantic Ocean
The right whale is a large baleen whale. Adults are generally
between 45 and 55 feet (13.7 - 16.8 m) in length and can weigh up to 70
tons (63.5 metric tons). Females are larger than males. The
distinguishing features of right whales include a stocky body,
generally black coloration (although some individuals have white
patches on their undersides), lack of a dorsal fin, large head (about
1/4 of the body length), strongly bowed margin of the lower lip, and
callosities on the head region. Two rows of long (up to about eight
feet (2.4 m) in length), dark baleen plates hang from the upper jaw,
with about 225 plates on each side. The tail is broad, deeply notched,
and all black with smooth trailing edge.
The International Whaling Commission (IWC) recognizes two right
whale populations in the North Atlantic: a western and eastern
population (IWC, 1986). The current distribution and migration patterns
of the eastern North Atlantic right whale population are unknown. Based
on whaling records, it appears that the eastern population migrated
along the coast from northern Europe to northwest Africa. Sighting
surveys from the eastern Atlantic Ocean suggest that right whales
present in this region are rare (Best et al., 2001). The western North
Atlantic population is believed to contain only about 300 individuals,
and it is unclear whether its abundance is remaining static, undergoing
modest growth, or declining, as recent modeling exercises suggest
(Caswell et al., 1999).
Prior to extensive exploitation, the North Atlantic right whale was
found distributed in temperate, subarctic, coastal and continental
shelf waters throughout the North Atlantic Ocean rim (Perry et al.,
1999). Right whales prefer shallow coastal waters, but their
distribution is also strongly correlated to the distribution of
zooplankton prey. In both northern and southern hemispheres, right
whales are observed in low latitudes and in nearshore waters during
winter where calving takes place. During the summer and fall months,
right whales tend to migrate to the high latitudes where their
distribution is likely linked to the patchy distribution of their
principal zooplankton prey (Winn et al., 1986; Perry et al., 1999).
In the western North Atlantic, right whales migrate along the North
American coast from Nova Scotia to Florida. Considerable data exist
documenting use of areas in the western North Atlantic Ocean where
right whales presently occur. Right whales have been observed from the
Mid-Atlantic Bight northward through the Gulf of Maine during all
months of the year. Foraging right whales (and their habitat) appear to
be concentrated in New England waters. In New England, peak abundance
of right whales in feeding areas occurs in Cape Cod Bay beginning in
late winter. In early spring (May), peak right whale abundance occurs
in Wilkinson Basin to the Great South Channel (Kenney et al., 1995). In
late June and July, right whale distribution gradually shifts to the
northern edge of Georges Bank. In late summer (August) and fall, much
of the population is found in waters in the Bay of Fundy and around
Roseway Basin (Winn et al., 1986; Kenny et al., 1995; Kenny et al.,
2001). Variation in the abundance and development of suitable food
patches appears to modify the general patterns of movement by reducing
peak numbers, stay durations, and specific locales (Brown et al., 2001;
Kenny, 2001). In particular, large changes in the typical pattern of
food abundance will dramatically change the general pattern of right
whale habitat use (Kenny, 2001). Known wintering areas for the North
Atlantic right whale occur along the southeastern U.S. coast where
calving occurs from December through March (Winn, 1984; Kraus et al.,
1986; IWC, 1986). In the North Atlantic it appears that not all
reproductively active females return to the calving grounds each year
(Kraus et al., 1986; Payne, 1986). The location of the majority of the
population during the winter months remains unknown (NMFS, 2005).
Knowlton et al. (1992) reported several long-distance movements as
far north as Newfoundland, the Labrador Basin, and southeast of
Greenland; in addition, recent resightings of photographically
identified individuals have been made off Iceland, arctic Norway, and
in the old Cape Farewell whaling ground east of Greenland. The
Norwegian sighting (September 1999) represents one of only two
sightings this century of a right whale in Norwegian waters, and the
first since 1926. Together, these long-range matches indicate an
extended range for at least some individuals and perhaps the existence
of important habitat areas not presently well described. Similarly,
records from the Gulf of Mexico (Moore and Clark, 1963; Schmidly et
al., 1972) 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., 2004).
Listing Determinations under the ESA
The ESA defines an endangered species as one that is in danger of
extinction throughout all or a significant portion of its range, and a
threatened species as one that is likely to become endangered in the
foreseeable future throughout all or a significant portion of its range
(sections 3(6) and 3(20), respectively). The statute requires us to
determine whether any species is endangered or threatened because of
any one of the following five factors: (1) The present or threatened
destruction, modification or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting its continued existence (section 4(a)(1)(A)-(E)). We are to
make this determination based solely on the best available scientific
information after conducting a review of the status of the species and
taking into account any efforts being made by states or foreign
governments to protect the species. The focus of our
[[Page 77706]]
evaluation of the ESA section 4(a)(1) factors is to evaluate whether
and to what extent a given factor represents a threat to the future
survival of the species. The focus of our consideration of protective
efforts is to evaluate whether and to what extent they address the
identified threats and so ameliorate a species' risk of extinction. The
steps we follow in implementing this statutory scheme are to: (1)
delineate the species under consideration; (2) review the status of the
species; (3) consider the ESA section 4 (a)(1) factors to identify
threats facing the species; (4) assess whether certain protective
efforts mitigate these threats; and (5) predict the species' future
persistence.
Review of ``Species'' Delineation
Since 1974, NMFS has maintained the right whale listing as
originally listed by the United States Fish and Wildlife Service
(USFWS) under the Endangered Species Conservation Act of 1969, the
precursor to the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.; the ESA)(35 FR 18319, December 2, 1970) -- Eubalaena spp., i.e.,
all the species within the genus Eubalaena. The USFWS maintains the
official lists of threatened and endangered species and is required to
add species to the official lists when NMFS or USFWS determines species
under its jurisdiction should be listed. The USFWS has changed the
nomenclature for right whales several times over the years in various
iterations of the list of threatened and endangered wildlife. NMFS also
changed the nomenclature for a period of time after one of the USFWS
changes, but later reverted back to the original Eubalaena spp.
listing. The changes may have been made as a reflection of the
discussion in the scientific literature over the appropriate taxonomic
status of right whales. At no point did the USFWS ever propose
delisting any of the species that were included in the original listing
of Eubalaena spp. Regardless of the changes to the list, NMFS maintains
that right whale species were listed as Eubalaena spp., which reflects
the predominant view that existed in 1974: that right whale species are
distinct from bowhead whales (Balaena mysticetus), they belong in the
genus Eubalaena, and the genus Eubalaena contains at least two species:
E. glacialis in the northern hemisphere and E. australis in the
southern hemisphere.
Recent investigations of right whale genetics confirm the
distinction between E. glacialis and E. australis at the species level
and suggest that the North Pacific form of E. glacialis should be
recognized as a separate species and named E. japonica, distinct from
the other two species. NMFS is proposing to adopt this view and, in a
separate rulemaking, to modify its listing to add E. japonica to the
current listing Eubalaena spp. (which includes E. glacialis and E.
australis).
Taxonomy of Right Whales
All whales belong to the mammalian order Cetacea, which is divided
into two suborders: Odontoceti (toothed whales) and Mysticeti (baleen
whales). The Mysticeti are further divided into four families: the
Eschrichtidae, a monotypic family (i.e., containing only one species),
the gray whale; Neobalaenidae, another monotypic family containing only
the pygmy right whale; Balaenidae, which contains two genera: Balaena
(bowhead whales) and Eubalaena (right whales); and Balaenopteridae,
which contains all of the other baleen whales.
Balaena is the genus name for the bowhead whale (Balaena
mysticetus), recognized by Linnaeus in 1758. Eubalaena is the genus
name for right whales, first proposed by Gray in 1864. The first right
whale to be named was what we today call the North Atlantic right whale
or Nord-Kaper (Balaena glacialis, Muller, 1776), from North Cape,
Norway. The second right whale to be named was what we today call the
North Pacific right whale (Balaena japonica, Lacepede, 1818), from
Japan. And the third right whale to be named was what we today call the
Southern right whale (Balaena australis, Desmoulins, 1822), from Algoa
Bay, Cape of Good Hope, South Africa. In the 1970s when all baleen
whales were being considered for listing as endangered under the
Endangered Species Conservation Act of 1969, authors disagreed on the
taxonomic status of right whales. One view was that they belonged in
the genus Balaena along with bowhead whales and that the genus contains
two species: Baleana mysticetus and Baleana glacialis (Rice, 1977). The
subspecific composition of B. glacialis was unclear. The other view was
that right whales were distinct from bowhead whales at the genus level
and that right whales should be identified as Eubalaena (Schevill,
1986). This later view is currently the prevailing view, and it is the
view embraced by USFWS and NMFS.
There were also two views about the species composition of
Eubalaena. One view was that there was only one species Eubalaena
glacialis containing several subspecies (E. glacialis glacialis (North
Atlantic), E. glacialis sieboldii (North Pacific), and E. glacialis
australis (Southern oceans)) (Tomilin, 1957). Hershkovitz (1966) also
describes these three subspecies, except that he refers to North
Pacific right whales as E. glacialis japonica. The other view was that
Eubalaena comprised two species E. glacialis and E. australis (Omura,
1958; Omura et al., 1969). This is the view represented by the
designation of Eubalaena spp. in the original listing by USFWS in 1970
and by NMFS in its first listing in 1974. Generally accepted taxonomic
nomenclature recognized the term ``spp.'' as an abbreviation for
multiple species within a genus.
The two-species view is summarized by Perry et al.'s (1999) summary
of morphological (Muller, 1954) and genetic data (Schaeff et al.,
1991), both of which recognized distinct species in the northern and
southern hemispheres. Cummings (1985) used E. australis for all right
whales below the equator (southern right whales). The International
Whaling Commission also recognizes the presence of two distinct
species, E. glacialis and E. australis, in the schedule appended to the
Convention in which species under purview of the Commission are listed.
Conclusion
Although the listing of right whales has changed from the original
nomenclature of Eubalaena spp., there is no indication in the record
that USFWS ever intended to delist any of the species contained in the
original listing of the entire genus. Since the original 1970 listing
was described as ``Eubalaena spp.'', the logical interpretation is that
at least two species of right whale were listed, the northern right
whale (E. glacialis) and the southern right whale (E. australis), since
``spp.'' refers to more than one species, not ``subspecies.'' Even if
three separate species had been recognized in 1970, southern right
whale (E. australis) would have been one of them. Each plausible
scenario results in the right whale in the Southern Hemisphere being
recognized as a separate species. Since NMFS has maintained its listing
as ``Right whales, Eubalaena spp.'', and USFWS has never proposed
delisting any of the species included in the original listing, we
conclude that both E. glacialis and E. australis were listed in 1970,
carried forward to the list created pursuant to the ESA, and determined
to be endangered in our listing in 1974.
Right Whale Species Currently Being Considered for Listing
As discussed above, genetic data now provide unequivocal support to
distinguish three right whale lineages as separate phylogenetic
species: (1) the North Atlantic right whale (Eubalaena glacialis),
ranging in the North Atlantic Ocean; (2) the North Pacific right whale
[[Page 77707]]
(Eubalaena japonica), ranging in the North Pacific Ocean, and (3) the
southern right whale (Eubalaena australis), historically ranging
throughout the southern hemisphere's oceans (Rosenbaum et al., 2000).
Based on evidence from recent genetic studies (Gaines et al., 2005), we
conclude that the current taxonomic classification of right whales in
the northern hemisphere should be revised consistent with the generally
accepted analyses by Rosenbaum et al. (2000). We have determined that
listing right whales in the North Atlantic and the North Pacific as two
separate species is warranted in light of the compelling evidence
provided by recent scientific studies on right whale taxonomy and
classification. In accordance with the applicable statutory definitions
and requirements, the North Atlantic right whale (E. glacialis) and the
North Pacific right whale (E. japonica) are being considered for
listing as separate species under the ESA.
Refining the taxonomy of these endangered cetaceans is critical to
the recovery planning and conservation of these species. The separate
listings of these two species in the northern hemisphere will allow for
consistent scientific practice and management policies in recovering
these species.
Status of the Three Right Whale Species
The determination that right whales in the North Atlantic and North
Pacific Oceans are two separate species requires us to consider these
species separately for the purposes of listing under the ESA. We will
consider the status of the North Atlantic right whale (E. glacialis) in
this proposed rule and that of the North Pacific right whale (E.
japonica) in a separate proposed rule in today's issue of the Federal
Register. At the final rule stage, we will address both species in the
same rule so that any changes become effective together. The southern
right whale, E. australis, will remain listed as endangered, though we
intend to conduct a 5-year review of its status in the near future. In
the following discussion of the status of the North Atlantic right
whale, E. glacialis, we provide the rationale for today's proposal to
list this species as a separate endangered species. The other proposed
rule in today's issue of the Federal Register, referenced above,
provides the rationale for the proposal to list the North Pacific right
whale, E. japonica, as a separate endangered species. We also identify
the southern right whale, E. australis (one of two species that was
listed in 1970 and is still listed) in the regulatory language as a
separate endangered species and remove Eubalaena spp. from the list.
Status of the North Atlantic Right Whale (Eubalaena glacialis)
Abundance and Trends
Sighting surveys from the eastern Atlantic Ocean suggest that right
whales present in this region are rare (Best et al,. 2001). In 1992,
based on a census of individual whales identified using photo-
identification techniques and the assumption that whales not seen for 7
years are dead, the western North Atlantic stock size was estimated to
be 295 individuals (Knowlton et al.,1994). In 1998, an updated analysis
using the same method gave an estimate of 299 animals (Kraus et al.,
2001). Because this was a nearly complete census, it is assumed that
this represents a minimum population size estimate. However, no
estimate of abundance with an associated coefficient of variation has
been calculated for this population. Calculation of a reliable point
estimate is likely to be difficult, given the known problem of
heterogeneity of distribution in this population. An IWC workshop on
status and trends of western North Atlantic right whales gave a minimum
direct-count estimate of 263 right whales alive in 1996 and noted that
the true population was unlikely to be substantially greater than this
(Best et al., 2001).
The population growth rate for North Atlantic right whale reported
for the period 1986-1992 by Knowlton et al. (1994) was 2.5 percent
(coefficient of variation=0.12), suggesting that the stock was showing
signs of slow recovery. In contrast, southern right whale populations
(those off Argentina, Australia, and South Africa) are increasing at
annual rates on the order of 7 to 8 percent (IWC, 1998). However,
Caswell et al. (1999) found that crude survival probabilities for North
Atlantic right whale decreased from about 0.99 per year in 1980 to
about 0.94 in 1994, and that population growth rate declined from about
5.3 percent in 1980 to a negative 2.4 percent in 1994 (Caswell et al.,
1999). The decline was statistically significant. This model suggested
that the western population of North Atlantic right whales was headed
for extinction with an upper bound on the expected time to extinction
of 191 years (Caswell et al., 1999). Modified versions of the Caswell
et al. (1999) model as well as several other models were reviewed at
the 1999 IWC workshop (Best et al., 2001). Despite differences in
approach, all of the models indicated a decline in right whale survival
in the 1990s relative to the 1980s with female survival, in particular,
apparently affected (Best et al., 2001; Waring et al., 2002).
In 2002, our Northeast Fisheries Science Center (NEFSC) hosted a
workshop to review right whale population models to examine: (1)
potential bias in the models, and (2) changes in the subpopulation
trend based on new information collected in the late 1990s (Clapham et
al., 2002). Three different models were used to explore right whale
survivability and to address potential sources of bias. Although biases
were identified that could negatively affect the results, all three
modeling techniques resulted in the same conclusion; survival has
continued to decline and seems due to female mortalities (Clapham et
al., 2002).
Life History Characteristics
Females give birth to their first calf at an average age of 9 years
(Best et al., 1998; Hamilton et al., 1998a). Standard reproductive
rates for the western North Atlantic population have yet to be
calculated. The calving interval for right whales is between 2 and 7
years, with means ranging from 3.12 (95 percent confidence interval
(CI) 3.05-3.17) to 3.67 years (95 percent CI 3.3-4.1) (Knowlton et al.,
1994; Best et al., 2001; Burwell, 2001; Cooke et al., 2001). In the
western North Atlantic, there was a significant increase in the calving
interval from 3.67 years for the period 1980 to 1992 (Knowlton et al.,
1994) to 5.8 years for the period 1990 to 1998 (Kraus et al. 2001). The
increase in the calving interval is of particular concern and, together
with other perplexing biological parameters, may suggest the population
is under rather unusual biological, energetic, or reproductive stress.
Most recently (2001-2005), a dramatic increase in North Atlantic right
whale calving (23 calves per year) may have decreased the interval to
levels more similar to that of the southern right whale (Kraus et al.,
in press).
Since 1999, 125 right whale calves have been observed, including 31
right whale births during a record calving season in 2000-2001 (B.
Pike, New England Aquarium, pers. comm.). Calving numbers have been
sporadic, with large differences among years. The three calving years
(1997-2000) prior to the record year in 2000-2001 provided low
recruitment with only 10 calves born. The last five calving seasons
(2001-2005) have been substantially better (31, 21, 19, 16, and 28
calves, respectively). Despite improved calving rates over the last
several years,
[[Page 77708]]
mortalities of calves, juveniles, and adults have continued.
An analysis of the age structure of this population suggests that
it contains a smaller proportion of juvenile whales than expected
(Hamilton et al., 1998a; Best et al., 2001), which may reflect low
recruitment and/or high juvenile mortality. In addition, it is possible
that the apparently low reproductive rate is due in part to unstable
age structure or to decreased reproduction due to aging (i.e.,
reproductive senescence) on the part of some females (Waring et al.,
2004).
Genetic Diversity
The size of the western population of the North Atlantic right
whale at the cessation of whaling is unknown, but generally it is
believed to have been very small. Such a reduction of population size
may have resulted in a loss of genetic diversity that could affect the
ability of the current population to successfully reproduce (e.g.,
decreased conceptions, increased abortions, increased neonate
mortality). Studies by Schaeff et al. (1997) and Malik et al. (2000)
indicate that the western population of the North Atlantic right whale
is less genetically diverse than southern right whale populations.
However, several apparently healthy populations of cetaceans, such as
sperm whales and pilot whales, have even lower genetic diversity than
observed in the western North Atlantic right whales (IWC, 2001b).
Summary of Factors Affecting the North Atlantic Right Whale
Section 4(a)(1) of the ESA requires the Secretary of Commerce
(Secretary) to determine whether a species is endangered or threatened
because of any of the following factors: (A) the present or threatened
destruction, modification or curtailment of a species' habitat or
range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (c) disease or predation factors; (D) the
inadequacy of existing regulatory mechanisms; (E) other natural or
manmade factors affecting its continued existence. A discussion of
these considerations follows:
The Present or Threatened Destruction, Modification, or Curtailment of
its Habitat or Range
Habitat loss or degradation is not believed to be a causal factor
placing the North Atlantic right whale in danger of extinction at this
time or in the foreseeable future. Unlike many terrestrial species,
right whales and other cetaceans do not compete directly with human
populations for space (Clapham et al., 1999). Because right whales are
dependent on coastal waters adjacent to highly developed coastline,
however, habitat degradation may adversely affect this species.
Consequently, threats to right whales may arise from onshore and near
shore activities.
Right whales frequent coastal waters where dredging and dredge
spoil disposal occur on a regular basis, such as along the southeastern
U.S. coast (Perry et al., 1999). Dredging of harbors and port channels
occurs in a number of locations in or near areas where right whales
aggregate. Noise, increased ship traffic, disposal of dredge material,
and related activities may all contribute to degrade right whale
habitat. It is unknown to what extent these activities affect right
whales (Perry et al., 1999). It appears that more information is needed
to determine specific habitat impacts, if any, from these activities.
Increased ship traffic associated with dredging activities may increase
the risk of ship strikes of right whales resulting in serious injury
and mortality. At present, efforts made to reduce adverse effects on
right whales include posting observers on ships transporting dredge
spoils to reduce the risk of ship strikes.
One potential source of habitat degradation for baleen whales is
oil pollution. General concerns with regard to oil pollution, some of
which are direct impacts on the whales rather than habitat impacts, are
ingestion of contaminated prey, potential irritation of skin and eyes,
inhalation of toxic fumes, and abandonment of polluted feeding habitat
(Geraci and St. Aubin, 1980; Geraci, 1990). However, data on the
effects of oil pollution on cetaceans are inconclusive, and the large
baleen whales appear to be generally unaffected by oil per se (Geraci,
1990; Loughlin, 1994).
Offshore oil and gas exploration activities have been proposed off
the U.S. Atlantic coast. At the present time however, there are no
known plans for oil exploration in the major habitats of the western
population of the North Atlantic right whale, but the possibility
remains for future oil and gas exploration and development activity.
In addition to oil and gas exploration and production, the undersea
exploration and development of techniques for mining minerals deposits
could threaten the North Atlantic right whale and its habitat (Perry et
al., 1999).
An additional potential source of habitat degradation for right
whales is chemical contaminants. The impact of pollution on right
whales is debatable. O'Shea and Brownell (1994) conclude that there is
currently no evidence for significant contaminant-related problems in
baleen whales. 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). However, the
manner in which pollutants negatively impact animals is complex and
difficult to study, particularly in taxa such as large whales for which
many of the key variables and pathways are unknown (Aguilar, 1987;
O'Shea and Brownell, 1994). A more plausible potential problem is that
of transgenerational accumulation (Colborn and Smolen, 1996), but this
remains unstudied in right whales or any other cetacean species.
Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Right whales have not been the target of commercial hunting in the
North Atlantic since 1935, and relatively few catches were made in the
20th century prior to that date. Historical whaling activities are
responsible for the significant depletion of the eastern population of
the North Atlantic right whale and the current severely depleted
numbers of individuals remaining in the western population. The small
population size of the North Atlantic right whale is probably the most
significant factor affecting its continued existence because small
populations are subject to extinction from a variety of factors that
would not seriously affect a larger population. The North Atlantic
right whale is in danger of extinction throughout its range because of
historical whaling. Unlike right whales in the North Pacific, there is
no evidence of the illegal harvest of right whales.
An estimate of pre-exploitation population size is not available.
Basque whalers may have taken substantial numbers of right whales at
times during the 1500s in the Strait of Belle Isle region (Aguilar,
1986), and the stock of right whales may have already been
substantially reduced by the time colonists began whaling in the
Plymouth area in the 1600s (Reeves and Mitchell, 1987). A modest but
persistent whaling effort along the coast of the eastern United States
lasted 3 centuries, and the records include one report of 29 whales
killed in Cape Cod Bay in a single day during January 1700. Based
[[Page 77709]]
on incomplete historical whaling data, Reeves and Mitchell (1987) could
conclude only that there were at least some hundreds of right whales
present in the western North Atlantic during the late 1600s. In a later
study (Reeves et al., 1992), a series of population trajectories using
historical data and an estimated present population size of 350 were
plotted. The results suggest that there may have been at least 1,000
right whales in this population during the early to mid-1600s, with the
greatest population decline occurring in the early 1700s. The authors
cautioned, however, that the record of removals is incomplete, the
results were preliminary, and refinements are required. Based on back
calculations using the present population size and growth rate, the
population may have numbered fewer than 100 individuals by the time
international protection for right whales came into effect in 1935
(Hain, 1975; Reeves et al., 1992; Kenney et al., 1995). However, too
little is known about the population dynamics of right whales in the
intervening years to estimate a pre-exploitation population size with
confidence.
An intense period of whaling in the eastern North Atlantic between
1902 and 1967 (including harvest off the Shetlands, Hebrides, and
Ireland in the years 1906-1910) was particularly catastrophic for the
eastern North Atlantic right whale population. Since that time, there
have only been sporadic sightings of right whales in the eastern North
Atlantic (Best et al., 2001). In two recent winter surveys of Cintra
Bay (off the northwestern coast of Africa), no evidence was found to
suggest that right whales still use the area; this absence of evidence
also corresponds to a lack of recent observations in northern European
waters (Reeves, 2001). Based on the paucity of sighting information,
current distribution and migration patterns of the eastern North
Atlantic right whale population are unknown.
With respect to recreational and educational use, problems may
arise from vessels whose operations are directed at the whales
themselves (i.e., whale watching from either commercial or recreational
vessels). These activities have the potential to disturb right whales
or disrupt their activities and behavior such as feeding, courtship,
and nursing. The impact of such harassment on the reproductive success
of individuals has not been studied and is unknown. Currently, Federal
regulations prohibit the close approach by vessels within 500 yards
(457.2 m) of North Atlantic right whales in U.S. waters. This activity
is allowed, however, in Canadian waters.
Scientific research on right whales frequently involves close
approaches to the animals for the purpose of photographic, genetic, or
behavioral sampling. These activities are controlled by permits in both
U.S. and Canadian waters, and the potential adverse impact on the
animals is considered during the permitting process. Efforts are needed
to ensure coordination of research activities between the United States
and Canada, as well as among U.S. researchers themselves to minimize
any potential adverse impact to right whales.
Disease or Predation
Disease and predation are not believed to be factors causing the
North Atlantic right whale to be in danger of extinction. Unlike in
some dolphin and pinniped (i.e., seals and sea lions) species, there
have been no recorded epizootics in baleen whales. The occurrence of
skin lesions on the bodies of North Atlantic right whales has been
documented in recent years, with an apparent increase in frequency
culminating in a peak in 1995 when they were observed on 24 percent of
photographed individuals (Marx et al., 1999). The origins and
significance of these lesions are unknown. Further research is required
to determine whether they represent a topical or systemic health
problem for the affected animals.
In October 2006, we declared an unusual mortality event (UME) for
humpback whales in the Northeast United States. At least 17 dead
humpback whales have been discovered since March 2006. There has also
been a documented bloom of Alexandrium sp., a toxic dinoflagellate that
causes red tide from Maine to Massachusetts. Prior to the most recent
UME, there had been only three other known cases of a mass mortality
involving large whale species along the east coast: 1987-1988, 2003,
and 2005. Geraci et al. (1989) provide strong evidence that, in the
former case, these deaths of humpback whales resulted from the
consumption of mackerel whose livers contained high levels of
saxitoxin, a naturally occurring red tide toxin, the origin of which
remains unknown. It has been suggested that the occurrence of a red
tide event is related to an increase in freshwater runoff from coastal
development, leading some observers to suggest that such events may
become more common among marine mammals as coastal development
continues. There is currently no conclusive evidence linking red tide
toxins to the deaths or chronic health problems in right whales.
Doucette et al. (2006) assessed the occurrence of paralytic shellfish
poisoning (PSP) toxins in right whales and in co-occurring zooplankton
assemblages dominated by Calanus finmarchicus, the primary food of the
North Atlantic right whale. Samples of right whale feces collected from
at least 11 different whales by these researchers in the Bay of Fundy
tested positive for PSP toxins. These results suggest that trophic
transfer of marine algal toxins may be a factor inhibiting the recovery
of the North Atlantic right whale.
Predation of right whales by killer whales and large shark species
is likely to occur, but the level is not documented. North Atlantic
right whales bearing scars thought to be from killer whale attacks have
been photographed (Kraus, 1990), but the number of whales killed by
this predator is unknown (Perry et al., 1999). Mehta (2004) more
recently concluded that scars recorded on the flukes and bodies of
North Atlantic right whales are more consistent with harassment by some
smaller cetacean, possibly pilot whales (Globicephala spp) and do not
originate from killer whales.
The Inadequacy of Existing Regulatory Mechanisms
Right whales are protected under both U.S. and Canadian law, and
internationally by the IWC. Death and serious injury resulting from
ship strikes and fishing gear interactions are significant factors
that, at current rates, place the North Atlantic right whale in danger
of extinction throughout its range. There are numerous ongoing
conservation efforts to reduce the impact of ship strikes on the
survival and recovery of the species. These efforts involve Federal,
state, local, conservation, academic, and industry agencies and
organizations. We, in cooperation with other state, Federal, industry,
and private groups and organizations, have developed a plan to
implement a broad Ship Strike Reduction Strategy (SSRS) designed to
reduce the impacts of vessel interactions on the survival of the North
Atlantic right whale.
The SSRS consists of both regulatory and non-regulatory components.
As part of efforts to implement the SSRS, we published an advanced
notice of proposed rulemaking (ANPR) on June 1, 2004 (69 FR 30857) and
proposed regulations on June 14, 2006, that contain speed restrictions
and routing measures to reduce the likelihood of collisions between
vessels and endangered North Atlantic right whales (71 FR 36299).
We have implemented a number of measures to reduce the impact to
right
[[Page 77710]]
whale survival due to fishing gear interactions. We, with the
assistance of the Atlantic Large Whale Take Reduction Team (ALWTRT),
developed the Atlantic Large Whale Take Reduction Plan (ALWTRP). The
goal of this plan is to reduce the level of serious injury and
mortality of three strategic stocks of large whales, including North
Atlantic right whales, in commercial gillnet and trap/pot fisheries. In
general, the ALWTRP consists of a combination of regulatory and non-
regulatory programs, including broad gear modifications, time-area
closures, expanded disentanglement efforts, extensive outreach efforts
in key areas, gear research, and an expanded right whale surveillance
program to supplement the Mandatory Ship Reporting System.
Since its implementation in 1997, the ALWTRP has been modified on
several occasions in response to the serious injury and mortality of
large whales in gillnet and lobster trap/pot gear. Recent amendments to
the ALWTRP include restrictions to the Southeast Atlantic gillnet
fishery (67 FR 59471, September 23, 2002; 68 FR 19464, April 21, 2003).
Other amendments to the ALWTRP include additional gear modifications
for lobster trap/pot gear in particular management areas and changes to
the lobster trap/pot and gillnet take reduction technology lists (67 FR
1300, January 10, 2002; 67 FR 15493, April 2, 2002), a Seasonal Area
Management (SAM) program (67 FR 1142, January 9, 2002; 67 FR 65722,
October 28, 2002), a Dynamic Area Management (DAM) program (67 FR 1133,
January 9, 2002; 67 FR 65722, October 28, 2002), and implementation of
gear modifications determined to sufficiently reduce the risk of
entanglement to right whales (68 FR 10195, March 4, 2003; 68 FR 51195,
August 26, 2003).
We continue to work with the ALWTRT to evaluate the ALWTRP and
determine whether additional modifications are necessary to meet the
goals of the MMPA and the ESA. On June 30, 2003, we published a Notice
of Intent (NOI) to announce the agency's intent to prepare an
Environmental Impact Statement (EIS) to analyze the impacts of
alternatives for amending the ALWTRP (68 FR 38676). On June 21, 2005,
we also published a proposed rule (70 FR 35894) that details how
modifications to the ALWTRP would be implemented.
Despite previous efforts, ship strikes and fishing gear
interactions remain a serious factor negatively affecting the continued
survival and recovery of the species. As the new conservation measures
discussed above are implemented, the frequency of ship strikes and
fishing gear interactions will need to be monitored to assess the
effectiveness of measures in reducing the impact of these factors on
the survival of the species. Based on the efficacy of these measures,
it may be necessary to continue or enhance existing regulations or
promulgate new regulations to reduce or eliminate the effect of these
factors on the survival and recovery of the species.
Other Natural or Manmade Factors Affecting its Continued Existence
Ship strikes and fishing gear interactions are the most common
anthropogenic causes of mortality in western North Atlantic right
whales, and place the North Atlantic right whale in danger of
extinction throughout its range. The available evidence strongly
suggests that the North Atlantic right whale cannot sustain the current
number of deaths that result from vessel collisions and fishing gear
interactions. If mortality from these activities continues at current
rates, it is likely to result in the extinction of the North Atlantic
right whale.
Ship Strikes - Collisions with ships are the single largest cause
of right whale mortality in the western North Atlantic. Of 45 confirmed
deaths of western North Atlantic right whales between 1970 and 1999, 16
are known to have been caused by ship strikes, and two additional
collisions were possibly fatal (Knowlton and Kraus, 1998). There were
two known ship strike right whale deaths in 2001, one in both 2002 and
2003, and two in 2004. The low incidence (7 percent) of
photographically identified whales showing scars and wounds from ship
propellers compared to the high rate of ship propeller wounds on
stranded carcasses indicates that a high proportion of interactions
between ships and whales are fatal to the whale (Kraus, 1990). It
should be noted that with improved reporting and more thorough
necropsies in recent years, the rate of detection and confirmation of
ship-strike deaths has probably increased. This may confound efforts to
determine trends in the frequency of collisions.
Concern has been raised over the possible adverse effects of whale
watching and scientific research activities on right whale
aggregations, particularly in the western North Atlantic (e.g., Cape
Cod Bay and lower Bay of Fundy). On February 13, 1997, we published an
interim final rule (62 FR 6729) to prohibit both boats and aircraft
from approaching any right whale closer than 500 yards (457.2 m). These
minimum distance regulations are designed to reduce the potential to
disturb right whales or disrupt their activities and to reduce the
adverse effect of vessel collisions. However, collisions between whale-
watching boats and a humpback (2001) and a minke whale (1998) indicate
that much more serious consequences (e.g., death or serious injury) are
also possible. In addition, the number of high-speed (capable of speeds
> 28 knots) whale watching vessels, ferries, and other craft has
increased recently in areas where right whales occur. Consequently, the
threat of collisions has potentially grown. It may be necessary to
examine the effects of whale watching in the vicinity of right whales
and issue additional regulations and/or guidelines regarding the number
of vessels, and their speed, manner, and distances of approaches near
whales.
Scientific research on right whales frequently involves close
approaches to the animals for the purpose of photographic, genetic, or
behavioral sampling. These activities are controlled by permits in both
U.S. and Canadian waters, and the potential adverse impact on the
animals is considered during the permitting process. Efforts are needed
to ensure coordination of research activities between the U.S. and
Canada, as well as among U.S. researchers themselves to minimize any
potential adverse impact to right whales.
Fishing Gear Interactions - The exact magnitude and nature of
fisheries interactions with right whales is not known. Kraus (1990)
estimated that 57 percent of right whales in the western North Atlantic
bear scars and injuries indicating fishing gear interactions. More
recent analysis estimated that 61.6 percent of right whales exhibit
evidence of fishing gear entanglement (Hamilton et al., 1998b). The
1998 North Atlantic Stock Assessment Report (Waring et al., 1999)
indicated NMFS-monitored fisheries showed a mean annual mortality of
1.0 right whale from 1992 through 1996. Sources of interaction are
mainly gillnets, lobster pots, seine nets, and fish weirs (NMFS, 1991),
which, with the exception of gillnet fisheries, are largely not
monitored. Gear entanglement was estimated to account for 7 percent of
the known mortality in right whales in the western North Atlantic from
1970 through early 1993 (Kenney and Kraus, 1993). There were at least
two additional entanglement deaths between late 1993 and 1999 (Knowlton
and Kraus, 2001). Since 2001 there has been at least one additional
mortality due to entanglement. These mortalities involved entanglements
with fixed fishing gear. Of 45 known deaths between 1970 and 1999,
three were
[[Page 77711]]
directly linked to entanglements, and eight were suspected to have been
linked to entanglements (NMFS, 2005). Entanglements may be responsible
for more deaths than indicated by the stranding and necropsy data. It
is possible that fishing gear was responsible for some of the deaths
for which a cause could not be determined. In addition, some whales may
become entangled, drown, and fail to resurface. Injuries and
entanglements that are not initially lethal may result in a gradual
weakening of entangled individuals, making them more vulnerable to some
other direct cause of mortality (Kenney and Kraus, 1993). For example,
entanglement may reduce a whale's ability to maneuver, making it more
susceptible to ship strikes. Entanglement-related stress may decrease
an individual's reproductive success or reduce its life span. This may
in turn depress population growth.
Noise - The effect on behavior (e.g., foraging, mating, nursing) of
noise pollution from shipping or oil and gas development is unclear,
though various observations suggest that marine mammals can habituate
well to even quite high levels of sound (Geraci and St. Aubin, 1980;
Richardson et al., 1995). Playback experiments on gray and bowhead
whales indicate that whales will actively avoid a very loud sound
source (Malme et al., 1983), but whether real-life sources (such as
drilling platforms) negatively impact behavior to the point that it
diminishes reproductive success and population productivity is unclear.
It appears that right whale sensitivity to noise disturbance and vessel
activity is related to the behavior and activity in which they are
engaged in at the time (Watkins, 1986; Perry et al., 1999).
Recreational boat traffic - Some studies suggest increased
recreational boat traffic can disrupt whale behavior (Glockner-Ferrari
and Ferrari, 1990). Pleasure boat traffic occurs in various coastal
areas with little regulation or enforcement; however, its impact on
right whales is unknown.
Conservation Measures
Section 4(b)(1)(a) of the ESA requires that determinations of
whether a species is threatened or endangered be based solely on the
best scientific and commercial data available and after taking into
account those efforts, if any, being made to protect the species. Right
whales have been listed under the ESA for many years and numerous
conservation measures have been implemented in order to protect and
conserve the species. On March 28, 2003, we and the USFWS (the
Services) published the final policy for evaluating conservation
efforts (PECE)(68 FR 15100). The PECE provides guidance on evaluating
current protective efforts identified in conservation agreements,
conservation plans, management plans, or similar documents (developed
by Federal agencies, state and local governments, tribal governments,
businesses, organizations, and individuals) that have not yet been
implemented, or have been implemented but have not yet demonstrated
effectiveness. The PECE establishes two basic criteria for evaluating
current conservation efforts: (1) the certainty that the conservation
efforts will be implemented, and (2) the certainty that the efforts
will be effective. The PECE provides specific factors under these two
basic criteria that direct the analysis of adequacy and efficacy of
existing conservation efforts.
Right whales were protected by the 1931 Convention for the
Regulation of Whaling, which took effect in 1935. Since 1949, right
whales have been protected from commercial whaling by the IWC and its
implementing convention. In U.S. waters, right whales are protected by
the MMPA and the ESA.
Current North Atlantic right whale conservation efforts in the
North Atlantic are extensive. These efforts reflect a cooperative
collaboration between numerous state and Federal agencies, industry
groups, conservation organizations, academic institutions, and other
interested parties and individuals. These efforts are vital to the
survival and recovery of the North Atlantic right whale.
Current conservation efforts have resulted in the implementation of
a number of regulatory and non-regulatory measures intended to enhance
the survival and recovery of the species, particularly fishing gear
modifications and ship strike reduction strategies. Moreover, a number
of conservation measures being developed and/or considered will further
reduce the adverse affect of fishing gear interactions and ship
strikes. However, despite these ongoing efforts to mitigate factors
affecting the species, right whales have continued to suffer serious
injury and mortalities due to ship strikes and fishing gear
interactions.
As discussed, direct and indirect impacts from human activities,
particularly vessel collisions and fishing gear entanglements, place
the species in danger of extinction throughout its range and have
contributed to a lack of recovery. Currently, we are working with
state, Federal, private, and industry groups to address these two
factors affecting the survival and recovery of the species.
Vessel Interactions
As discussed, ship strikes are responsible for the majority of
human-caused right whale mortalities (Jensen and Silber, 2003). The ESA
provides authority to the Secretary to establish implementation teams
to, among other things, review recovery activities and provide
recommendations to NMFS on actions necessary for the survival and
recovery of the species. Two such teams have been formed: one in the
southeastern U.S., the second in the northeastern U.S. Although both
teams have addressed a variety of right whale conservation issues over
the years, they have evolved over time to focus on issues related
primarily to the reduction of ship strikes of right whales.
Southeastern U.S. Implementation Team (SEIT) - In August 1993, the
SEIT was formed. The team consists of representatives from Federal,
state, and local agencies, as well as other private organizations.
Since its inception, the SEIT has met regularly and has been active in
a number of areas related to ship strike mitigation. Among other
things, the SEIT was instrumental in developing a system of aircraft
surveys and communication systems that alert mariners to the presence
of right whales in the southeast United States (SEUS) in real time. Two
agencies represented on the SEIT, the Georgia Department of Natural
Resources (GDNR) and the United States Coast Guard (USCG), implemented
a local Notice to Mariners broadcast about right whale calving grounds.
Additionally, the USCG and the GDNR have developed and implemented
procedures for broadcasting right whale locations over NAVTEX (the USCG
international communication system). The SEIT has also coordinated a
number of efforts to educate mariners about the threat of ship strikes,
including development and distribution of brochures, pamphlets, and
posters. In addition, the SEIT provides us with recommendations
regarding measures to reduce the possibility of ship strikes,
development of safe operating procedures for large vessels transiting
right whale habitat, minimum vessel approach distances, research needs,
and measures necessary to reduce fishing gear interactions in right
whale calving areas.
Northeast U.S. Implementation Team (NEIT) - The NEIT was
established in 1994 and is coordinated by our Northeast Regional
Office. The NEIT was originally created to implement recovery tasks for
both the North
[[Page 77712]]
Atlantic right whale and the humpback whale.
The NEIT's responsibilities have evolved since its inception in
1994. Initially, the NEIT's focus was the mitigation of the threat to
right whales of fishing gear interactions. More recently the NEIT's
charge has shifted to focus primarily on issues related to ship strike
reduction. The NEIT Ship Strike Subcommittee assisted in the
development of NOAA's SSRS. The NEIT most recently has been reorganized
to function as a continuation of the former Northeast Large Whale
Recovery Plan Implementation Team's Ship Strike Committee. The goal is
for the NEIT to assist, where possible, with various ship-strike
reduction-related strategies.
SSRS
We, in cooperation with other state, Federal, industry, and private
groups and organizations, have developed a broad SSRS designed to
reduce the danger posed by vessel interactions to the survival of the
North Atlantic right whale. The SSRS is an Atlantic coast initiative
consisting of both regulatory and non-regulatory components. The ship
strike reduction conservation efforts have been implemented, in large
part, under the statutory authority of the ESA and the MMPA. Certain
details of the SSRS are still under development. The SSRS consists of
five elements: (1) Establishment of new operational measures for the
shipping industry, including consideration of routing measures and
speed restrictions; (2) negotiation of a Right Whale Conservation
Agreement with the Canadian Government to address the issue of ship
strikes; (3) development and implementation of ship strike education
and outreach programs; (4) initiation of Section 7 consultations under
the ESA with all Federal agencies that have vessels operating in waters
inhabited by right whales; and (5) continuation of ongoing research and
conservation activities.
Ship Strike Reduction Strategy Proposed Rule - We published an
advanced notice of proposed rulemaking (ANPR) on June 1, 2004 (69 FR
30857), and proposed regulations on June 26, 2006 (71 FR 36299). The
proposed regulations would establish speed restrictions and routing
measures to reduce the likelihood of collisions between vessels and
endangered North Atlantic right whales.
Mandatory Ship Reporting System - In 1998, the USCG, on behalf of
the U.S. Government, submitted a proposal developed by NOAA with the
assistance of the Marine Mammal Commission and the International Fund
for Animal Welfare to the International Maritime Organization (IMO).
The proposal requested approval of two mandatory ship reporting
systems. The proposal received IMO endorsement and systems became
operational in 1999. The systems obligate all commercial ships 300
gross tons (272 metric tons) and greater entering areas designated as
right whale critical habitat to call into a shore-based station. The
systems provide information on right whales directly to mariners as
they enter right whale habitat, the right whales' vulnerability to ship
strikes, and steps that can be taken to reduce the chance of collision.
They also provide a means to obtain information on ship traffic volume
and routes to assist in identifying measures to reduce future ship
strikes. The systems are administered primarily by the USCG.
Aerial Surveys - In 1993, the SEIT developed a system to help alert
area ship traffic to the presence of right whales, thereby reducing the
possibility of ship strikes. The central feature of the system has been
an aerial survey program designed to obtain accurate, current
information on the locations of whales. Aerial surveys were initiated
in 1993 in the waters off the SEUS and have continued each year since.
Continuously updated right whale sighting information from survey teams
is immediately relayed to area mariners via centralized communication
systems operated by the USCG and the U.S. Navy. Information is provided
through a number of real time media, including USCG Broadcast Notices
to Mariners, NAVTEX and NOAA Weather Radio. Among other measures,
vessels are advised to proceed at reduced speeds to reduce the
likelihood of serious injury or death if a collision occurs. However,
even in very good sighting conditions, not all whales are detected.
Therefore, whales may be present but not always reported to mariners.
In 1997, an aerial survey program was initiated in waters off the
northeastern United States. These efforts focused on Cape Cod Bay (CCB)
and the Great South Channel (GSC) in late winter and early spring. From
1997 to present, aerial surveys supported by NMFS and the State of
Massachusetts have been conducted to cover peak abundance periods,
principally between January and March in CCB, and between March and
early July in the GSC . Aerial surveys have been recently expanded in
the Gulf of Maine and waters of Rhode Island, New York, and New Jersey.
Sightings from aerial survey platforms, right whale researchers,
and multiple other sources are reported to our NEFSC. These data are
plotted using a Geographic Information System with sightings grouped
and 'circled' with a buffer zone. Right whale sighting advisories, or
'alerts,' are disseminated to notify mariners of the presence of right
whales via a number of mechanisms. The USCG issues Broadcast Notices to
Mariners and via NAVTEX. NOAA Weather Radio provides geographic and
positional data on the sightings periodically. The Cape Cod Canal
Traffic Controllers contact ships and provide positions and a radius
for each sighting.
Notifications to individual ships, commercial fishing vessels, and
military vessels are made directly from the aircraft when observed
vessels are transiting close to a whale. In addition, these surveys
have provided sightings of entangled and floating right whales, and
provide photo identification data for numerous studies. Current plans
are to continue the surveys into the foreseeable future. While
dedicated aircraft surveys may be the best available means to attempt
to alert mariners about the presence of right whales, these programs
have a number of limitations. For example, aerial surveys are costly to
implement. Also, the surveys are limited by weather and can be
conducted only in daylight and under the best of survey conditions. In
addition, it is likely that, even under good conditions, many whales
are missed by observers, especially since only those whales at or near
the surface can be seen. Nonetheless, until effective alternatives are
identified, the surveys are expected to continue.
Vessel Approach Regulations - As discussed, on February 13, 1997,
an interim final rule (62 FR 6729) was published that prohibits both
boats and aircraft from approaching any right whale closer than 500
yards (457.2 m). Exceptions for closer approach are provided for
emergency situations and where certain authorizations are provided.
Updating Navigational Publications - The National Ocean Service
publishes and periodically updates nautical charts and a series of
regional books called U.S. Coast Pilots. These are basic references on
regional environmental conditions, navigation hazards, and rules. In
U.S. waters, captains of ships greater than 1,200 gross tons (1,088
metric tons) are required to carry Coast Pilots. Information contained
in the Coast Pilots covering the entire eastern United States has been
updated to include information on the status of right whales, the times
and areas where they occur, the threats posed to whales by ships, and
advice on measures
[[Page 77713]]
mariners might take to avoid hitting right whales. Also, updated
information regarding right whale critical habitat and regulations
about approaching right whales are published on nautical charts when
they are re-printed.
Educational Materials and Outreach - A number of agencies and
organizations have collaborated on developing brochures, pamphlets, and
informational papers to educate mariners about the vulnerability of
right whales to ship strikes. We have published magazine articles
directed to the shipping industry. Also, as noted above, a video on
this subject was prepared and is being distributed to the shipping
industry. The SEIT and NEIT are developing a comprehensive education
and outreach strategy and have played a key role in past education and
outreach efforts. These efforts include providing training at mariner
academies and local marinas.
Boston Harbor Ship Routing Measures - Part of NOAA's SSRS includes
consideration of ship traffic routing measures, including shifting the
port of Boston's Traffic Separation Scheme (TSS). In 2006, NOAA
developed a proposal that was submitted by the USCG on behalf of the
U.S. Government to the IMO to narrow and re-align the northern leg of
the Boston TSS 12 degrees to the north to redirect shipping traffic
through areas with lower densities of right whales and other baleen
species. The shift is expected to significantly reduce the risk of ship
strikes for both right whales and other baleen whale species. The IMO
endorsed the proposal in December 2006. The United States expects to
implement the change by July 2007.
Canadian Ship Routing Measures - In July 2003, with approval from
the IMO, Canada moved shipping lanes in the Bay of Fundy four nautical
miles (7.4 km) to the east to protect the feeding whales from ship
collisions. During summer and early fall, right whales aggregate to
feed in the Bay of Fundy, between New Brunswick and Nova Scotia,
Canada. During this time the whales are exposed to heavy vessel traffic
in major shipping channels that pass through the area.
Fishing Gear Entanglement
Death and serious injury resulting from entanglement in fishing
gear are significant factors causing the North Atlantic right whale to
be in danger of extinction throughout its range. Under the MMPA, we are
required to develop a List of Fisheries (LOF) that classifies all U.S.
commercial fisheries into one of three categories based on the level of
marine mammal deaths and serious injuries that occur incidental to the
fishery. The categorization of a fishery in the LOF determines whether
participants in that fishery may be required to comply with certain
provisions of the MMPA, such as registration, observer coverage, and
take reduction plan requirements.
The Atlantic Large Whale Take Reduction Plan - Numerous actions and
activities have been implemented to reduce the danger posed by gear
entanglement to the survival and recovery of the North Atlantic right
whale. Under the 1994 amendments to the MMPA, we are required to
establish take reduction teams (TRT) to develop and implement take
reduction plans (TRP). The principle goal of the TRT process is to
reduce the levels of mortality and serious injury of strategic stocks
of marine mammals in Category I and II fisheries (i.e., those with
frequent or occasional mortality and serious injury of marine mammals).
In general, the purpose of the TRT is to provide recommendations and
assist us in developing management measures as part of the take
reduction planning process. Take reduction teams are composed of
representatives from the fishing industry, fishery management councils,
state and Federal resource management agencies, the scientific
community, and conservation organizations. After a plan is implemented,
the TRT provides us with recommendations on implementation activities,
feedback on the effectiveness of current management measures, and
strategies for modifying the plan as necessary.
We, with the assistance of the ALWTRT, developed the ALWTRP to
reduce the level of serious injury and mortality of three strategic
stocks of large whales, including North Atlantic right whales in
commercial gillnet and trap/pot fisheries. In general, the ALWTRP
consists of a combination of regulatory and non-regulatory programs,
including broad gear modifications, time-area closures, expanded
disentanglement efforts, extensive outreach efforts in key areas, gear
research, and an expanded right whale surveillance program to
supplement the Mandatory Ship Reporting System.
Since its implementation in 1997, the ALWTRP has been modified on
several occasions to address the serious injury and mortality of large
whales in gillnet and lobster trap/pot gear. Recent amendments to the
ALWTRP include restrictions to the Southeast Atlantic gillnet fishery
(67 FR 59471, September 23, 2002; 68 FR 19464, April 21, 2003). Other
amendments to the ALWTRP include additional gear modifications for
lobster trap/pot gear in particular management areas and changes to the
lobster trap/pot and gillnet take reduction technology lists (67 FR
1300, January 10, 2002; 67 FR 15493, April 2, 2002).
In addition, a Seasonal Area Management (SAM) program was
implemented (67 FR 1142, January 9, 2002; 67 FR 65722, October 28,
2002), which identified two management areas based on annual
predictable aggregations of right whales. The SAM program also requires
gear modifications for lobster trap/pot and anchored gillnet gear in
these areas on a seasonal basis.
A Dynamic Area Management (DAM) program (67 FR 1133, January 9,
2002; 67 FR 65722, October 28, 2002) was also implemented to protect
unexpected aggregations of right whales that met an appropriate trigger
by temporarily restricting lobster trap/pot and anchored gillnet
fishing in a designated DAM area. Subsequent to the introduction of the
DAM program, gear modifications determined to sufficiently reduce the
risk of entanglement to right whales and, therefore, deemed acceptable
for fishing in DAM zones were implemented (68 FR 10195, March 4, 2003;
68 FR 51195, August 26, 2003).
We reconvened the ALWTRT in 2003 to help evaluate the ALWTRP and
discuss additional modifications necessary to meet the goals of the
MMPA and the ESA. Particular emphasis was placed on those options
designed to reduce the potential for entanglements and minimize adverse
impacts if entanglements occur. On June 30, 2003, we published a NOI to
prepare an Environmental Impact Statement (EIS) that would analyze the
impacts of alternatives for amending the ALWTRP (68 FR 38676). On June
21, 2005, we also published a proposed rule (70 FR 35894) that
discussed how modifications to the ALWTRP would be implemented.
Disentanglement Efforts - The 1991 right whale recovery plan called
for establishment of a marine mammal disentanglement program. We
established a team of scientists from the Center for Coastal Studies
and the New England Aquarium to respond to all marine mammal
entanglements, with an emphasis on right whale and humpback whale
entanglements. The current disentanglement effort consists of one
primary team and basic field support in the Bay of Fundy, Gulf of
Maine, the mid-Atlantic, and Georgia/Florida. The program covers
nearshore disentanglement events along the eastern seaboard, though the
team can be deployed in some offshore locations.
[[Page 77714]]
There are, however, limitations; for example, the northern Gulf of
Maine/Bay of Fundy field stations are operational only when biologists
are conducting seasonal whale research, and, even then, disentanglement
response relies on the timely transfer of the team and its equipment to
the entanglement site. In the southeast United States, trained
biologists are available to assist, and disentanglement equipment
caches have been established at key locations.
Coordination of Federal Agency Recovery Activities under the ESA
Under section 7(a)(1) of the ESA all Federal agencies, in
consultation with and with the assistance of the Secretary, must use
their authorities in the furtherance of the ESA by carrying out
programs for the conservation of endangered and threatened species
listed pursuant to section 4 of the ESA. Under Section 7(a)(2) of the
ESA, all Federal agencies must ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of endangered or threatened species or destroy or adversely modify
designated critical habitat. These agencies must consult with us on any
action that may affect listed species or critical habitat for species
under our jurisdiction (including right whales). As a result of these
consultations, we issue either a letter of concurrence that the
activity is not likely to adversely affect a species or critical
habitat, or a Biological Opinion for activities likely to adversely
affect a species or critical habitat. A Biological Opinion evaluates
whether the activity is likely to jeopardize the continued existence of
the species or result in the destruction or adverse modification of
critical habitat and, if so, provides reasonable and prudent
alternatives to the activity. In those cases where we conclude that an
action (or implementation of any reasonable and prudent alternatives)
and the resultant incidental take of listed species is not likely to
jeopardize the continued existence of listed species, we specify
reasonable and prudent measures necessary and appropriate to minimize
effects of the action on the species of concern.
We have consulted under section 7(a)(2) of the ESA with the ACOE,
USCG, and the U.S. Navy on several occasions for a variety of
activities. We have also conducted consultations on our fishery
management plans.
Canadian Recovery Efforts
In 2000, the Canadian Department of Fisheries and Oceans published
a recovery plan for the North Atlantic right whale (E. glacialis). The
recovery plan proposes five broad recovery strategies for the North
Atlantic right whale: (1) reduction of vessel collisions; (2) reduction
of the impacts of encounters with fishing gear; (3) reduction of
disturbance from human activities; (4) reduction of exposure to
contaminants and habitat degradation; and (5) population monitoring and
research.
Despite ongoing conservation efforts, the North Atlantic right
whale remains in danger of extinction throughout its range.
Proposed Listing Determination
The best available scientific and commercial data supports the
classification of right whales in the North Atlantic as a separate
species under the ESA. Based on the review of the status of this
species and the section 4(a)(1) factors (see above), and after taking
into account any ongoing conservation efforts to protect the species,
we conclude that the North Atlantic right whale is in danger of
extinction throughout its range because of the following factors:
Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Historically, North Atlantic right whale populations were severely
depleted by commercial whaling. While North Atlantic right whales have
been protected since 1931 under the Convention for the Regulation of
Whaling and more recently by the IWC (circa 1949) and in U.S. waters
under the MMPA (1972) and the ESA (1973), the North Atlantic right
whale is in danger of extinction throughout its range because of past
whaling and has not exhibited signs of recovery from the effects of
commercial whaling.
The Inadequacy of Existing Regulatory Mechanisms
While regulatory mechanisms have provided increased protection to
right whales in the North Atlantic, human activities still result in
serious injuries and mortalities of right whales. The inadequacy of
existing regulatory mechanisms is a factor that places the North
Atlantic right whale in danger of extinction throughout its range.
Other Natural or Manmade Factors Affecting Its Continued Existence
The most significant factor currently placing the North Atlantic
right whale in danger of extinction remains human-related mortality,
most notably, ship collisions and entanglement in fishing gear. The
available evidence strongly suggests that the western population of
North Atlantic right whale cannot sustain the number of deaths that
result from ship strikes and fishing gear interactions. If the impact
of these activities continue at current rates, it is likely to result
in the extirpation of the western population of North Atlantic right
whales. Given the low population size of North Atlantic right whales in
the eastern Atlantic Ocean, the extirpation of right whales in the
western Atlantic Ocean would render the entire species effectively
extinct. No natural factors are known to be threatening the continued
existence of the North Atlantic right whale at this time.
Conclusion
Based on an analysis of the best scientific and commercial data
available, the North Atlantic right whale is a separate species, E.
glacialis. There is reason for serious concern about the future of the
North Atlantic right whale. Due to the continued anthropogenic factors
affecting the survival of the species, and the whale's life history,
the North Atlantic right whale is in danger of extinction throughout
its range. Because the right whale is a long-lived species, extinction
may not occur in the immediate future, but the possibility of
biological extinction in the next century is very real. Based on an
analysis of the best scientific and commercial data available and after
taking into consideration current population trends and abundance,
demographic risk factors affecting the continued survival of the
species, and ongoing conservation efforts, it is clear that the North
Atlantic right whale is in danger of extinction throughout its range
and because of: (1) overutilization for commercial, recreational
scientific, or educational purposes; (2) the inadequacy of existing
regulatory mechanisms; and (3) other natural and manmade factors
affecting it continued existence.
Prohibitions and Protective Measures
Section 9 of the ESA prohibits certain activities that directly or
indirectly affect endangered species. These prohibitions apply to all
individuals, organizations, and agencies subject to U.S. jurisdiction.
Sections 7(a)(2) and (4) of the ESA require Federal agencies to
consult with us to ensure that activities they authorize, fund, or
conduct are not likely to jeopardize the continued existence of a
listed species or a species proposed for listing, or to destroy or
adversely modify critical habitat or proposed critical habitat. If a
Federal action may affect a listed species or its
[[Page 77715]]
critical habitat, the responsible Federal agency must enter into
consultation with us. Examples of Federal actions that may affect the
North Atlantic right whale include coastal development, oil and gas
development, seismic exploration, point and non-point source discharge
of contaminants, contaminated waste disposal, water quality standards,
emerging chemical contaminant practices, vessel operations and noise
level standards, and fishery management practices.
Sections 10(a)(1)(A) and (B) of the ESA authorize us to grant
exceptions to the ESA's Section 9 ''take'' prohibitions. Section
10(a)(1)(A) scientific research and enhancement permits may be issued
to entities (Federal and non-federal) for scientific purposes or to
enhance the propagation or survival of a listed species. The type of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets North
Atlantic right whales. Under section 10(a)(1)(B), the Secretary may
permit takings otherwise prohibited by section 9(a)(1)(B) if such
taking is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity.
NMFS Policies on Endangered and Threatened Fish and Wildlife
On July 1, 1994, we and FWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270) and a policy to identify, to the maximum
extent possible, those activities that would or would not constitute a
violation of section 9 of the ESA (59 FR 34272).
Role of Peer Review
The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. Prior to a
final listing, we will solicit the expert opinions of three qualified
specialists, concurrent with the public comment period. Independent
specialists will be selected from the academic and scientific
community, Federal and state agencies, and the private sector.
Identification of Those Activities That Would Constitute a Violation of
Section 9 of the ESA
The intent of this policy is to increase public awareness of the
effect of our ESA listing on proposed and ongoing activities within the
species' range. We will identify, to the extent known at the time of
the final rule, specific activities that will be considered likely to
result in violation of section 9, as well as activities that will not
be considered likely to result in violation. Activities that we believe
could result in violation of section 9 prohibitions against ''take'' of
the North Atlantic right whale include, but are not limited to, the
following: (1) Operating vessels in a manner that results in ship
strikes or disrupts foraging, resting, or care for young or results in
noise levels that disrupt foraging, communication, resting, or care for
young; (2) fishing practices that can result in entanglement when
lines, nets, or other gear are placed in the water column; (3) coastal
development that adversely affects North Atlantic right whales (e.g.,
dredging, waste treatment); (4) discharging or dumping toxic chemicals
or other pollutants into areas used by North Atlantic right whales; (5)
scientific research activities; (6) Land/water use or fishing practices
that result in reduced availability of prey species during periods when
North Atlantic right whales are present.
We believe, based on the best available information, the following
actions will not result in a violation of ESA Section 9: (1) federally
funded or approved projects for which ESA section 7 consultation has
been completed, and that are conducted in accordance with any terms and
conditions we provide in an incidental take statement accompanying a
biological opinion; and (2) takes of North Atlantic right whales that
have been authorized by NMFS pursuant to section 10 of the ESA.
These lists are not exhaustive. They are intended to provide some
examples of the types of activities that we might or might not consider
as constituting a take of North Atlantic right whales.
Critical Habitat
Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(3)) as: ``(i) the specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
provisions of [section 4 of this Act], on which are found those
physical or biological features (I) essential to conservation of the
species and (II) which may require special management considerations or
protection; and (ii) specific areas outside the geographical area
occupied by a species at the time it is listed in accordance with the
provisions of [section 4 of this Act], upon a determination by the
Secretary that such areas are essential for the conservation of the
species.'' Conservation means to use and the use of all methods and
procedures needed to bring the species to the point at which listing
under the ESA is no longer necessary.
Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires
that, to the maximum extent prudent and determinable, critical habitat
shall be designated concurrent with making a determination that a
species is an endangered species or threatened species, unless some
limited exceptions apply.
In July 2002, we received a petition to revise the current critical
habitat designation for right whales in the North Atlantic. On August
28, 2003, we published a determination that the petitioned action was
not warranted at that time (68 FR 51758). This notice stated that we
would continue to analyze the physical and biological habitat features
(PCEs) essential to the conservation of the species. Our Northeast
Region and Southeast Region are developing a proposed rule to designate
critical habitat for the North Atlantic right whale.
Public Comments Solicited
We are soliciting public comments and information from the public,
other concerned governmental agencies, the scientific community,
industry, and any other interested parties on this proposed listing of
the North Atlantic right whale (E. glacialis) under the ESA as an
endangered species throughout its range.
Classification
National Environmental Policy Act
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing
to the best scientific and commercial data available. Based on this
limitation of criteria for a listing decision and the opinion in
Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 1981), we
have concluded that ESA listing actions are not subject to the
requirements of the National Environmental Policy Act. (See NOAA
Administrative Order 216 6.)
Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork
Reduction Act
As noted in the Conference Report on the 1982 amendments to the
ESA, economic impacts cannot be considered when assessing the status of
a species. Therefore, the economic analysis requirements of the
Regulatory Flexibility Act are not applicable to the listing process.
In addition, this proposed rule is exempt from review under E.O. 12866.
This proposed rule
[[Page 77716]]
does not contain a collection-of-information requirement for the
purposes of the Paperwork Reduction Act.
E.O. 13132 - Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of these
circumstances is applicable to this proposed listing determination. In
keeping with the intent of the Administration and Congress to provide
continuing and meaningful dialogue on issues of mutual state and
Federal interest, we intend to provide this proposed rule to relevant
state agencies and invite their comments on it.
References Cited
The status review report of the right whales in the North Atlantic
and North Pacific forms the basis for the proposed listing
determinations for both the North Atlantic and the North Pacific right
whales. This status review report and a complete list of references
used in its preparation is available online on our website at http://www.nero.noaa.gov/ and is available upon request from our Northeast
Regional Office in Gloucester, Massachusetts (see ADDRESSES).
List of Subjects in 50 CFR Part 224
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: December 20, 2006.
Samuel D. Rauch III.,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, we propose to amend 50 CFR
part 224 as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
1. The authority citation for part 224 continues to read as
follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
2. Revise Sec. 224.101(b) to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
(b) Marine mammals. Blue whale (Balaenoptera musculus); Bowhead
whale (Balaena mysticetus); Caribbean monk seal (Monachus tropicalis);
Chinese river dolphin (Lipotes vexillifer); Cochito (Phocoena sinus);
Fin or finback whale (Balaenoptera physalus); Hawaiian monk seal
(Monachus schauinslandi); Humpback whale (Megaptera novaeangliae);
Indus River dolphin (Platanista minor); Mediterranean monk seal
(Monachus monachus); North Atlantic right whale (Eubalaena glacialis);
Saimaa seal (Phoca hispida saimensis); Sei whale (Balaenoptera
borealis); Sperm whale (Physeter catodon); Western North Pacific
(Korean) gray whale (Eschrichtius robustus); Steller sea lion, western
population, (Eumetopias jubatus), which consists of Stellar sea lions
from breeding colonies located west of 144[deg] W. longitude.
[FR Doc. E6-22182 Filed 12-26-06; 8:45 am]
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